Gail Moreschi v. Village of Williams Bay and Town of Linn ETZ Zoning Board of Appeals

2020 WI 95, 953 N.W.2d 318, 395 Wis. 2d 55

• Court: Wisconsin Supreme Court
• Decided: December 30, 2020
• Docket: 2018AP000283
• Status: Published

Opinion

2020 WI 95

SUPREME COURT OF WISCONSIN CASE NO.: 2018AP283

COMPLETE TITLE: Gail Moreschi, Plaintiff-Appellant-Petitioner, v. Village of Williams Bay and Town of Linn ETZ Zoning Board of Appeals, William L. Edwards and Suzanne Edwards, Defendants-Respondents.

REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 388 Wis. 2d 475,934 N.W.2d 573 (2019 – unpublished)

OPINION FILED: December 30, 2020 SUBMITTED ON BRIEFS: ORAL ARGUMENT: September 8, 2020

SOURCE OF APPEAL: COURT: Circuit COUNTY: Walworth JUDGE: David M. Reddy

JUSTICES: DALLET, J., delivered the majority opinion of the Court with respect to all parts except ¶¶23 and 24, in which ROGGENSACK, C.J., ANN WALSH BRADLEY, ZIEGLER, and KAROFSKY, JJ., joined, and an opinion with respect to ¶¶23 and 24, in which ANN WALSH BRADLEY and KAROFSKY, JJ., joined. ZIEGLER, J., filed a concurring opinion, in which ROGGENSACK, C.J., joined. REBECCA GRASSL BRADLEY, J., filed a dissenting opinion. NOT PARTICIPATING: HAGEDORN, J., did not participate.

ATTORNEYS:

For the plaintiff-appellant-petitioner, there were briefs filed by Charles W. Pollard, Edward F. Thompson and Clair, Thompson & Pollard, S.C., Delavan. There was an oral argument by Charles W. Pollard.

For the defendant-respondents Village of Williams Bay Town of Linn ETZ Zoning Board of Appeals, there was a brief filed by Thomas C. Cabush, Dustin T. Woehl and Kasdorf Lewis & Swietlik, SC, Milwaukee. There was an oral argument by Thomas C. Cabush.

For the defendants-respondents William L. Edwards and Suzanne Edwards, there was a brief filed by Anthony A. Coletti and Law Offices of Anthony A. Coletti, S.C., Elkhorn. There was oral argument by Anthony A. Coletti.

2 2020 WI 95 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2018AP283 (L.C. No. 2017CV338)

STATE OF WISCONSIN : IN SUPREME COURT

Gail Moreschi,

Plaintiff-Appellant-Petitioner, FILED v. DEC 30, 2020 Village of Williams Bay and Town of Linn ETZ Zoning Board of Appeals, William L. Edwards and Sheila T. Reiff Clerk of Supreme Court Suzanne Edwards,

Defendants-Respondents.

DALLET, J., delivered the majority opinion of the Court with respect to all parts except ¶¶23 and 24, in which ROGGENSACK, C.J., ANN WALSH BRADLEY, ZIEGLER, and KAROFSKY, JJ., joined, and an opinion with respect to ¶¶23 and 24, in which ANN WALSH BRADLEY and KAROFSKY, JJ., joined. ZIEGLER, J., filed a concurring opinion, in which ROGGENSACK, C.J., joined. REBECCA GRASSL BRADLEY, J., filed a dissenting opinion.

HAGEDORN, J., did not participate.

REVIEW of a decision of the Court of Appeals. Affirmed.

¶1 REBECCA FRANK DALLET, J. A person aggrieved by a local

zoning board's decision may commence a certiorari-review action

"within 30 days after the filing of the decision in the office of No. 2018AP283

the board of appeals." Wis. Stat. § 62.23(7)(e)10. (2017-18).1

After the Village of Williams Bay Extraterritorial Zoning Board of

Appeals (the "Board") approved Suzanne and William Edwards'

variance request, Gail Moreschi, the Edwardses' neighbor, filed a

writ of certiorari. She filed her writ within 30 days after the

Board orally voted to grant the Edwardses a variance but well

before the Board issued and filed a written copy of its decision.

We must determine the "triggering event" for an aggrieved party's

right to certiorari review of a local zoning board of appeals'

decision. We conclude that, pursuant to § 62.23(7)(e)10.,

certiorari review of the board's decision is triggered when a

written copy of the decision is filed in the board's office.

¶2 That conclusion informs our decision regarding

Moreschi's other two claims: (1) that her due process rights were

violated by the inclusion of the Board's written decision and its

approved minutes in the certiorari record; and (2) that the Board

reached its decision under the incorrect theory of law because at

the time she filed her writ, the Board had not made the findings required under the relevant local ordinance. We reject both

claims. The Board's written decision and approved minutes were

properly included in the certiorari record and the Board's filed

decision contains all findings required by the local ordinance.

Accordingly, we affirm the court of appeals.

1 All subsequent references to the Wisconsin Statutes are to the 2017–18 version unless otherwise indicated.

2 No. 2018AP283

I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE

¶3 Gail Moreschi owns residential property in Linn Township

next to Suzanne and William Edwards. The Edwardses tore down the

existing home on their property with plans to rebuild it, but their

plans required a variance to the setback zoning ordinance. After

Linn Township approved their building plans, the Edwardses

petitioned the Board for a zoning variance.2

¶4 On May 23, 2017, the Board held a public hearing on the

Edwardses' request. The Edwardses argued that a variance was

necessary in order to install a septic system and, because their

lot had a 12-percent slope and trees that Linn Township required

them to preserve, there was only one place they could put it. The

septic system's placement, in turn, dictated where the Edwardses

could build their home. They noted that their new home would have

"roughly . . . the same footprint" as the previous home although

it would "actually encroach[] a little bit less into the setbacks."

The Edwardses argued that their request satisfied the five

conditions necessary for the Board to grant a variance pursuant to Village of Williams Bay Extraterritorial Zoning (ETZ) Ordinance

§ 18.1716(H)3: (1) their proposal was consistent with the local

development's purpose and intent; (2) the lot's slope constituted

The Board hears such variance requests from residents of 2

Linn, Delavan, Geneva, and Walworth Townships and the Village of Williams Bay. Village of Williams Bay Extraterritorial Zoning (ETZ) Ord. § 18.1700(H).

ETZ Ord. § 18.1716 contains two subsections labeled "(H)." 3

Throughout this opinion, each reference to subsec. (H) is to the one titled "Findings."

3 No. 2018AP283

an exceptional circumstance; (3) they had not caused any of the

reasons necessitating the variance; (4) they could not build their

home without the variance; and (5) there was no detriment to

Moreschi's property because the Edwardses' new home would be three

feet further away from Moreschi's property line than the previous

one.4

¶5 Moreschi opposed the Edwardses' variance request on the

grounds that it failed to meet at least one of those conditions.

Specifically, she argued that, according to an affidavit of the

Walworth County Sanitarian, the Edwardses had several other

options available that would not require a variance. Those options

included moving their driveway to accommodate the septic system,

installing a smaller system, using a holding tank instead of a

septic system, or simply building a smaller home. Moreschi

asserted that because the Edwardses would not be prevented from

building any home, a variance was not necessary to preserve their

property rights.

¶6 At the hearing, the Board heard community commentary on the Edwardses' request. Some in favor of the variance noted that

The Board's governing ordinance provides that the Board 4

"shall grant no variance" unless it finds "beyond a reasonable doubt" that the following five conditions are satisfied: (1) the variance is "consistent with the purpose and intent" of the local development; (2) there are "exceptional, extraordinary, or unusual circumstances" requiring the variance; (3) the basis for the variance is not solely "economic gain or loss" or a "[s]elf-imposed hardship[]"; (4) the variance is "necessary" to preserve the applicant's "enjoyment of substantial property rights" similar to those of neighboring properties; and (5) the variance will not cause "substantial detriment" to others' property or the "public interest." ETZ Ord. § 18.1716(H)(A)-(E).

4 No. 2018AP283

the Edwardses' plans were consistent with attempts to "modernize"

the subdivision and that denying the Edwardses a variance would

frustrate that process. Some against it pointed out that what the

Edwardses claimed as an "exceptional circumstance," a 12-percent

slope, was not exceptional at all because "virtually all

properties" in the subdivision had similar slopes. At the end of

the hearing, the Board unanimously approved the Edwardses'

variance request by oral vote.

¶7 On June 12, 2017, Moreschi filed for a writ of certiorari

in the Walworth County Circuit Court.5 She alleged that the Board

improperly granted the Edwardses a variance because it failed to

find beyond a reasonable doubt all five conditions required under

ETZ Ord. § 18.1716(H). The circuit court granted the writ on June

28, 2017, giving the Board until July 7 to return a certified

transcript of the record. Also on June 28, Moreschi received draft

minutes of the Board's May 23 hearing via an open records request.

The draft minutes reflected the Board's unanimous approval of the

Edwardses' variance. Under the heading "Board of Appeals['] Findings," the draft minutes indicated that the Board had approved

the variance because it "felt that there was a lack of detriment."

¶8 At the Board's next meeting on July 31, the Board issued

"approved" minutes of the May 23 hearing, which included expansive

factual findings not included in the draft minutes.6 At the July

5The Honorable David M. Reddy of the Walworth County Circuit Court presiding. Moreschi filed her complaint pursuant to Wis. Stat. § 801.02(5). 6 In the approved minutes, the Board's findings read:

5 No. 2018AP283

31 meeting, the Board also issued a signed, written document titled

"Determination Form." The Determination Form reiterated the

factual findings from the approved minutes and included specific

conclusions on each of the five conditions required under ETZ Ord.

§ 18.1716(H):

The Board found beyond a reasonable doubt that: (1) the requested variance is consistent with the purpose and content of the regulations for the district and a permitted use——a single family residence; (2) exceptional circumstances exist re: the location of the septic system on the lot and a 12% slope on the lot justifying the requested variance; (3) economic hardship is not the basis for granting the variance; (4) the variance is necessary to preserve the property rights and enjoyment of the property by the owner who looks to build a single family home on the property that is consistent with other homes in the district; and (5) the variance will not create a substantial detriment to the adjacent properties because the new home will be set back further from the property lines than the pre- existing home.

The Village of Williams Bay Extraterritorial Zoning Board of Appeals having considered all of the testimony and evidence presented at the hearing found beyond a reasonable doubt that all of the facts and conditions set forth in ETZ Zoning Ordinance Sec. 18.1716(H) exist in favor of granting the requested variance. The Board reviewed the application for variance and attached documents; letter from Town of Linn approving the variance; letters from citizens in favor and opposed to the variance; documents presented by Attorney Thompson; along with other documents presented at the hearing. The Board heard testimony from Mr. Edwards and his attorney, Mara Spring re: why the variance was necessary. The Board heard testimony from citizens in favor and opposed to the variance, including Attorney Thompson on behalf of Ms. Moreschi.

6 No. 2018AP283

That same day, both the approved minutes and the Determination

Form were filed in the Board's office.7

¶9 The day after the Board's July 31 meeting, the Board

submitted the certiorari record to the circuit court. The record

contained the approved minutes, the Determination Form, a

recording of the May 23 hearing, the Edwardses' variance

application, and documents the parties presented at the May 23

hearing. Following briefing and a hearing, the circuit court

affirmed the Board's decision granting the Edwardses a variance.

¶10 Moreschi appealed the circuit court's decision on both

procedural and substantive grounds. Her procedural claim was that

the Board violated her due process rights when it included the

approved minutes and Determination Form in the certiorari record.

She maintained that the circuit court should have reviewed only

the documents that existed at the time she filed for a writ: the

transcript of the May 23 hearing and the draft minutes. As for

Moreschi's substantive claim, she argued that the Board made its

decision under the incorrect theory of law because at the time she filed for a writ, the Board had not explicitly found beyond a

7 The record is unclear regarding when the Determination Form and the approved minutes were filed in the Board's office. The record indicates that the Board issued both documents at its July 31, 2017 meeting. It also shows that the Williams Bay Zoning Administrator included both documents in the certiorari record that was delivered to the circuit court on August 1. At oral argument, the Board explained that the Zoning Administrator could not have included the documents in the certiorari record unless they were filed in the Board's office. We therefore accept July 31, 2017, as the date the Determination Form and the approved minutes were filed in the office of the Board.

7 No. 2018AP283

reasonable doubt that the Edwardses' variance met the five

conditions set forth in ETZ Ord. § 18.1716(H).

¶11 The court of appeals rejected both of Moreschi's claims.

Moreschi v. Vill. of Williams Bay and Town of Linn ETZ Zoning Bd.

of Appeals, No. 2018AP283, unpublished slip op. (Wis. Ct. App.

July 31, 2019). The court of appeals held that the Determination

Form was the Board's decision that was filed in the office of the

Board for purposes of triggering certiorari review. In reaching

its conclusion, the court of appeals determined that only the

Determination Form could be both filed as set forth in Wis. Stat.

§ 62.23(7)(e)10. and signed and transmitted to the applicant or

appellant as required by ETZ Ord. § 18.1716(J). It also held that

the Board did not violate Moreschi's due process rights by

including the Determination Form and approved minutes in the

certiorari record because Moreschi had no right to certiorari

review until after the Determination Form was filed. Lastly, the

court of appeals rejected Moreschi's substantive challenge,

holding that the Board's findings on the requisite five conditions as stated in the Determination Form were "reasonable and supported

by the evidence." Id., ¶¶22–27.

¶12 On appeal to this court, Moreschi raises three issues:

(1) whether the court of appeals properly determined what

constitutes the "triggering event" for purposes of appealing the

Board's decision on a writ of certiorari; (2) whether her due

process rights were violated by the inclusion of the Determination Form and approved minutes in the certiorari record; and (3) whether

8 No. 2018AP283

the Board failed to follow the correct theory of law in granting

the Edwardses' variance request.

II. STANDARD OF REVIEW

¶13 To determine what constitutes the triggering event for

purposes of certiorari review, we must engage in statutory

interpretation. Statutory interpretation is a question of law

that we review de novo. Myers v. DNR, 2019 WI 5, ¶18, 385

Wis. 2d 176, 922 N.W.2d 47. Statutory interpretation begins with

the language of the statute and if it "yields a plain [and] clear"

meaning, there is no need to consult extrinsic sources. State ex

rel. Kalal v. Circuit Ct. for Dane Cty., 2004 WI 58, ¶¶45–46, 271

Wis. 2d 633, 681 N.W.2d 110. When interpreting the meaning of a

specific statutory term, we "focus primarily on the language"

itself and give that term its "common, ordinary, and accepted

meaning," unless the statute provides a special or technical

definition. Id., ¶¶44–45, 53. We interpret a statute "in the

context in which it is used" and in such a way "to give reasonable

effect to every word, in order to avoid surplusage." Id., ¶46.8 ¶14 The question of whether the Board violated Moreschi's

due process rights by including the Determination Form and the

approved minutes in the certiorari record is a question of law

that we review de novo. See State v. Sorenson, 2002 WI 78,

¶25, 254 Wis. 2d 54, 646 N.W.2d 354.

8 To the extent that we must also interpret ETZ Ord. § 18.1716, we do so under the same rules as when we interpret a statute. See Stoker v. Milwaukee Cty., 2014 WI 130, ¶17, 359 Wis. 2d 347, 857 N.W.2d 102 ("The rules for statutory interpretation apply to our interpretation of an ordinance.").

9 No. 2018AP283

¶15 Statutory certiorari review is limited to, among other

considerations, whether the Board "proceeded on a correct theory

of law."9 State ex rel. Ziervogel v. Washington Cty. Bd. of

Adjustment, 2004 WI 23, ¶14, 269 Wis. 2d 549, 676 N.W.2d 401. This

is also a question of law that we review de novo. Id. "A board

proceeds under a correct theory of law when it relies on the

applicable ordinances . . . and applies them properly." Edward

Kraemer & Sons v. Sauk Cty. Bd. of Adjustment, 183 Wis. 2d 1, 8-

9, 515 N.W.2d 256 (1994).

III. ANALYSIS

¶16 Moreschi urges us to hold that the triggering event for

certiorari review occurred either immediately after the Board

orally voted at the May 23, 2017 hearing or when she received the

Board's draft minutes of that hearing on June 28, 2017. She claims

that Wis. Stat. § 62.23(7)(e)3. and ETZ Ord. § 18.1716(C)(2)

support her position because they require the Board to

"immediately" file its minutes "showing the vote of each member

upon each question."10 She points to ETZ Ord. § 18.1716(H), which

The other considerations, which are not at issue in this 9

case, are whether the Board kept within its jurisdiction, whether its action was arbitrary or unreasonable, and whether its decision is reasonably based on the evidence. State ex rel. Ziervogel v. Washington Cty. Bd. of Adjustment, 2004 WI 23, ¶14, 269 Wis. 2d 549, 676 N.W.2d 401. 10 Wisconsin Stat. § 62.23(7)(e)3. provides, in relevant part:

The board shall keep minutes of its proceedings, showing the vote of each member upon each question, or, if absent or failing to vote, indicating such fact, and shall keep records of its examinations and other official actions, 10 No. 2018AP283

requires the Board's minutes to indicate that the Board found

beyond a reasonable doubt that all variance requirements were

present.11 Moreschi further relies upon ETZ Ord. § 18.1716(J),

which states that the Board "shall decide all appeals and

applications within thirty (30) days after the final hearing and

shall transmit a signed copy of the Board's decision to the

appellant or applicant." Moreschi also asserts that the Board

violated her due process rights by "supplementing" the certiorari

record with the approved minutes and the Determination Form after

she had filed her certiorari petition. Lastly, she claims that

the Board proceeded under an incorrect theory of law because the

draft minutes do not contain the findings of fact necessary to

grant a variance under ETZ Ord. § 18.1716(H).

all of which shall be immediately filed in the office of the board and shall be a public record.

ETZ Ord. § 18.1716(C)(2) reads as follows:

Minutes of the proceedings and a record of all actions shall be kept by the secretary, or other designated person, showing the vote of each member upon each question, the reasons for the Board's determination, and its findings of facts. These records shall be immediately filed in the office of the Board and shall be a public record. 11 The text of ETZ Ord. § 18.1716(H) is as follows:

No variance to the provisions of this Ordinance shall be granted by the Board unless it finds beyond a reasonable doubt that all of the following facts and conditions exist and so indicates such in the minutes of its proceedings.

11 No. 2018AP283

¶17 The Board counters that certiorari review was triggered

on the date the Board filed the Determination Form and the approved

minutes of the May 23 hearing. The Board issued both documents at

its July 31 meeting and it submitted the certiorari record to the

circuit court the next day. Therefore, the Board argues, both

documents were properly included as part of the certiorari record.

The Board further claims that it made its decision under the

correct theory of law because both the Determination Form and the

approved minutes reflect all findings of fact and legal conclusions

required under Wis. Stat. § 62.23(7)(e) and ETZ Ord. § 18.1716(H).

¶18 We agree with the Board that the filing of the

Determination Form was the triggering event for Moreschi's right

to certiorari review. Accordingly, we conclude that Moreschi's

due process rights were not violated by the Board's inclusion of

the Determination Form and the approved minutes in the certiorari

record. We also decide that the Board applied the correct theory

of law in its decision to grant the Edwardses a variance as

reflected in the Determination Form.

A. The Certiorari-Triggering Event

¶19 Moreschi's appeal turns on our interpretation of Wis.

Stat. § 62.23(7)(e)10.,12 which allows any person "aggrieved by any

decision of the board of appeals" to commence an action seeking

certiorari review "within 30 days after the filing of the decision

12We do not address Moreschi's arguments that rely on the ETZ Ordinances because that reliance is misplaced. Nothing in those ordinances affects the criteria for triggering certiorari review under Wis. Stat. § 62.23(7)(e)10. and our interpretation of that statute fully resolves the certiorari-triggering question.

12 No. 2018AP283

in the office of the board of appeals." Specifically, we must

determine what constitutes the filing of the Board's decision for

purposes of certiorari review.

¶20 We first observe that the "filing of the decision" must

mean something more than the Board's oral decision to grant the

Edwardses a variance.13 We must give effect to every word of Wis.

Stat. § 62.23(7)(e)10. and the statutory text makes clear that

certiorari review is triggered by the filing of the decision, not

the decision itself. See State v. Matasek, 2014 WI 27, ¶¶17-19,

353 Wis. 2d 601, 846 N.W.2d 811. Focusing on the statutory text,

our next step is to define "filing."

¶21 Wisconsin Stat. § 62.23 contains no special or technical

definition of "filing." Absent a technical definition, we turn to

the dictionary definition of "filing" for its common and accepted

meaning. See Kalal, 271 Wis. 2d 633, ¶53 (explaining that a word's

ordinary meaning is "ascertainable by reference to [its]

dictionary definition"). The common dictionary definitions of

"filing" suggest that only tangible things may be filed. See Filing, Black's Law Dictionary (11th ed. 2019) ("submitting or

lodging a document with a court clerk or record custodian"

(emphasis added)); File, Webster's Third New International

13We have previously held that a board may render its decision either orally or in writing. See Lamar Cent. Outdoor, Inc. v. Bd. of Zoning Appeals, 2005 WI 117, ¶¶31-35, 284 Wis. 2d 1, 700 N.W.2d 87. Here, the Board decided to grant the Edwardses' variance at the May 23 hearing when, after gathering evidence, it voted on the Edwardses' variance request. See Decision, Black's Law Dictionary (11th ed. 2019) (defining "decision" as a "determination after consideration of the facts and law.").

13 No. 2018AP283

Dictionary of the English Language 849 (2002) ("to deliver (as a

legal paper or instrument) . . . to the proper officer" (emphasis

added)). Therefore, the "filing of the decision in the office of

the Board" must be the delivery of a document to the Board's office

that states the Board's decision.

¶22 The parties present three possibilities for what may

constitute the filing of the Board's decision: the Board's oral

vote, the minutes of the May 23 hearing (draft or approved), and

the Determination Form. Given the above definition of "filing,"

the Board's oral vote cannot be the filing of its decision. It is

neither a tangible thing nor a document. The oral vote simply

cannot be filed.

¶23 As for the minutes, they are a tangible document, but

the language of the surrounding statutory provisions suggests that

they are something different than the filing of the decision. See

United States v. Sahm, 2019 WI 64, ¶13, 387 Wis. 2d 259, 928

N.W.2d 545 ("Evaluation of the context of a statute is part of a

plain-meaning analysis and includes review of the language of 'surrounding or closely-related statutes.'") (quoting Kalal, 271

Wis. 2d 633, ¶46). Under Wis. Stat. § 62.23(7)(e)(3)., the Board

is required to "keep minutes of its proceedings, showing the vote

of each member upon each question" and to file those minutes in

its office. But § 62.23(7)(e)10. states that certiorari review is

triggered by the filing of the Board's decision, not its minutes.

In order to give meaning to every word in the statute, filing the minutes and filing the decision must refer to separate actions and

separate documents. See Matasek, 353 Wis. 2d 601, ¶¶17-19. 14 No. 2018AP283

Reading § 62.23(7)(e)10. to allow the filing of the minutes to

trigger certiorari review would impermissibly strip the word

"decision" of any independent meaning. See id., ¶18. Therefore,

the filing of the minutes does not trigger certiorari review.

¶24 All of which leads us to the conclusion that the filing

of the Determination Form is the filing of the Board's decision.

The Determination Form checks all the requisite boxes for a filing

of the decision: it is a tangible document, it states the Board's

decision, it was filed in the Board's office, and it is a separate

document from the Board's minutes. Therefore, Moreschi's right to

certiorari review was triggered on July 31, 2017, when the

Determination Form was filed in the office of the Board.

B. Due Process

¶25 Because Moreschi's certiorari-review right was not

triggered until the Board filed the Determination Form, there is

no merit to her claim that she was denied due process by the

inclusion of the Determination Form or the approved minutes in the

certiorari record. As the court of appeals explained, Moreschi's premature filing of her certiorari action did not preclude the

Board from reducing its decision to writing so that the decision

could be filed as required by law. Nor did Moreschi's early filing

cut off the Board's process for finalizing and approving its

meeting minutes. Indeed, as Moreschi points out, the certiorari

record must contain the "official history of [the Board's]

proceedings." See State ex rel. Augusta v. Losby, 115 Wis. 57, 59, 90 N.W. 188 (1902). Moreschi, however, provides no authority

for the proposition that prematurely filing for a writ of 15 No. 2018AP283

certiorari precludes the Board from developing its official

history in accordance with its standard procedures. And nothing

in the record indicates the Board deviated from those procedures

when it issued the Determination Form and the approved minutes at

its next meeting.

¶26 We also reject Moreschi's argument that the

Determination Form constituted a "new decision." The Board's

decision was to grant the Edwardses a variance; that decision

remains unchanged in the Determination Form. The Determination

Form simply reduced the Board's decision to writing so that the

decision could be filed as required by Wis. Stat. § 62.23(7)(e)10.

Thus, both the Determination Form and the approved minutes are

properly part of the certiorari record and Moreschi's due process

claim is without merit.

C. Correct Theory of Law

¶27 Finally, we conclude that the Board reached its decision

under the correct theory of law. "A board proceeds on a correct

theory of law when it relies on the applicable ordinances . . . and applies them correctly." Edward Kraemer & Sons, 183 Wis. 2d 1, 8-

9 (emphasis added). ETZ Ord. § 18.1716(H) provides that the Board

"shall grant no variance" unless it finds "beyond a reasonable

doubt" that five conditions are satisfied. In the Determination

Form, the Board recounted the relevant facts, applied those facts,

and concluded that each of the five conditions in ETZ Ord.

§ 18.1716(H) were satisfied beyond a reasonable doubt. Thus, the Board relied on the correct ordinance and applied that ordinance

16 No. 2018AP283

correctly.14 The Board therefore proceeded under the correct

theory of law. See id. at 8-9.

IV. CONCLUSION

¶28 We conclude that an aggrieved party's right to

certiorari review under Wis. Stat. § 62.23(7)(e)10. is triggered

when a written copy of a zoning board of appeals' decision is filed

in the office of the board. Moreschi's right to certiorari review

was therefore triggered on July 31, 2017, the date the

Determination Form was filed. Accordingly, Moreschi suffered no

due process violation when the Determination Form and approved

minutes were included in the certiorari record. Finally, we decide

that the Board acted under the correct theory of law because its

explanation in the Determination Form satisfies the requirements

of ETZ Ord. § 18.1716.

By the Court.—The decision of the court of appeals is

affirmed.

Although the Board did not discuss each condition on the 14

record at the May 23, 2017 hearing, the record makes clear that the Board did not reach its decision until it heard presentations from both parties regarding each condition required under ETZ Ord. § 18.1716(H) as well as the appropriate burden of proof. We cannot say, after reviewing the "whole record," that the Board's decision was not "reasonable based on the evidence before it." See AllEnergy Corp. v. Trempealeau Cnty. Evn't & Land Use Comm'n, 2017 WI 52, ¶89, 375 Wis. 2d 329, 895 N.W.2d 368. Therefore, we must uphold the Board's decision. See Ziervogel, 269 Wis. 2d 549, ¶13.

17 No. 2018AP283.akz

¶29 ANNETTE KINGSLAND ZIEGLER, J. (concurring). I agree

with the majority opinion's conclusions in this case and its

analyses of Moreschi's due process and certiorari review

challenges. However, I do not join the majority's analysis of

Wis. Stat. § 62.23(7)(e)10. in full because the majority

inexplicably concludes that minutes of a board's meeting may never

serve as a triggering event under § 62.23(7)(e)10. As I explain

below, a board's minutes may also meet the statutory prerequisites

for certiorari review. While I write separately as to the proper

interpretation of § 62.23(7)(e)10., I reach the same conclusion as

the majority——the filing of the Determination Form is the

triggering event in this case. As a result, I respectfully concur,

and I join all of the majority opinion except ¶¶23-24.

I. ANALYSIS

A. Filing an Oral Decision and Minutes

¶30 While I agree with the majority that the Determination

Form is the triggering event in this case, I disagree with its

broad statements about a board's minutes. As such, I write

separately to demonstrate that the minutes can serve as a filed

decision for purposes of Wis. Stat. § 62.23(7)(e)10.

¶31 A board's oral vote alone cannot serve as the triggering

event. Cf. Helmrick v. Helmrick, 95 Wis. 2d 554, 556, 291

N.W.2d 582 (Ct. App. 1980) (denying appeal from an oral ruling of

a circuit court). However, if that oral vote is reduced to writing

and filed in the office of the board, then it is sufficient to

serve as a triggering event under Wis. Stat. § 62.23(7)(e)10. As

required by statute, the minutes of a board must "show[] the vote of each member upon each question." § 62.23(7)(e)3. That means

1 No. 2018AP283.akz

that the statute requires that any oral votes of a board be reduced

to writing in the minutes. Accordingly, if those minutes are filed

in the office of the board, then they can sufficiently serve as

the triggering event under § 62.23(7)(e)10.

¶32 This is consistent with how we treat appeals of oral

orders of circuit courts. See Wis. Stat. § 808.03(1). This court

has long recognized "that oral orders, although effective as soon

as they are announced, must nevertheless be reduced to writing

before an appellate court may have jurisdiction to review them."

State v. Malone, 136 Wis. 2d 250, 257, 401 N.W.2d 563 (1987).

Those oral orders, reduced to writing, must then be "filed in the

office of the clerk of court." Wis. Stat. § 807.11(2). Once an

oral order is "filed in the office of the clerk of court," the

order is entered and appealable. § 808.03(1). Appeals of final

orders are similar to certiorari review of a board's decision

because they both seek relief from a decision. Compare Wis. Stat.

§ 808.03(1) ("[A] final order of a circuit court may be appealed

as a matter of right to the court of appeals unless otherwise

expressly provided by law.") with Wis. Stat. § 62.23(7)(e)10.

("Any person . . . aggrieved by any decision of the board of

appeals . . . may . . . commence an action seeking the remedy

available by certiorari."). Accordingly, like an appeal of an

oral order of a circuit court, an oral vote of a board, reduced to

writing in the minutes and filed in the office of the board, can

serve as the triggering event for § 62.23(7)(e)10.

¶33 The majority disagrees and states that, "[i]n order to

give meaning to every word in the statute, filing the minutes and filing the decision must refer to separate actions and separate

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documents." Majority op., ¶23. While it is true that the filing

of minutes and the filing of a decision can be separate actions

and separate documents, they can occur simultaneously in the filing

of the same document in the office of the board.1 The board,

regardless of whether a vote is taken at a meeting, must still

file the minutes. Wis. Stat. § 62.23(7)(e)3. Similarly, the board

can, as it did here with the Determination Form, file a decision

in the office of the board without any minutes. Thus, the filing

of minutes and the filing of a decision are clearly separate

actions. Notwithstanding the fact that they are separate actions,

the filing of the minutes can serve as the filing of the decision

if the minutes contain "the vote of each member upon each

question." § 62.23(7)(e)3.

¶34 The majority claims that "allow[ing] the filing of the

minutes to trigger certiorari review would impermissibly strip the

word 'decision' of any independent meaning." Majority op., ¶23.

The majority is incorrect. There will be occasions where the

minutes do not contain a decision——for example, if a board defers

1This conclusion is consistent with the language of the statute. The only time the phrase "in the office of the board" appears in the statute is in reference to the filing of the minutes and the filing of a decision. Compare Wis. Stat. § 62.23(7)(e)3. ("all of which shall be immediately filed in the office of the board . . . ." (emphasis added)) with § 62.23(7)(e)10. ("after the filing of the decision [of the board] in the office of the board of appeals . . . ." (emphasis added)). Reading these two provisions together, the legislature used the exact same phrase indicating that these two separate actions could occur simultaneously. If the majority's position stands, it would render these two provisions in conflict, contrary to our duty to construe statutes harmoniously. See State v. Hemp, 2014 WI 129, ¶29, 359 Wis. 2d 320, 856 N.W.2d 811 (applying the harmonious reading canon).

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voting on the matter to a later meeting. Similarly, there will be

occasions where a board issues a decision outside of a meeting——

as the Board did in this case with the Determination Form. As

such, allowing the minutes to serve as the triggering event does

not strip "decision" of any independent meaning.

¶35 Therefore, under the plain text of the statute, minutes

of a board's meeting can serve as a triggering event for Wis. Stat.

§ 62.23(7)(e)10., if the minutes meet the two statutory

prerequisites: a decision and that decision is filed in the office

of the board.

B. The Triggering Event Here

¶36 While I disagree with majority's analysis of Wis. Stat.

§ 62.23(7)(e)10., I agree with the conclusion that the

Determination Form serves as the triggering event in this case.

The parties argue about which of three actions may serve as the

triggering event in this case: the oral vote at the May 23 meeting,

the draft minutes of the May 23 meeting, or the Determination Form

with the approved minutes.2 Applying the two statutory

prerequisites, only the Determination Form with approved minutes

may serve as the triggering event for § 62.23(7)(e)10.

¶37 Neither the oral vote at the May 23 meeting nor the draft

minutes of the May 23 meeting may serve as the triggering event

under Wis. Stat. § 62.23(7)(e)10. As I explained above, the oral

vote alone cannot serve as the triggering event. The majority

correctly points out that an oral vote "is neither a tangible thing

nor a document" that can be filed. Majority op., ¶22. However,

Because the Determination Form and the approved minutes were 2

filed simultaneously, I refer to them as one collective document.

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Moreschi argues that the board's draft minutes that she received

on June 28, 2017, are the triggering event in this case. Despite

my conclusion above that minutes may serve as the triggering event,

Moreschi failed to show that such minutes were filed in the office

of the board. She argues that because the board was required to

file the minutes under § 62.23(7)(e)3. and Village of Williams Bay

Extraterritorial Zoning Ordinance § 18.1716(C)(2), the draft

minutes must serve as the triggering event. While the filing of

the minutes could normally serve as the triggering event, nothing

in the record supports the conclusion that the draft minutes were

actually filed in the office of the board, as the statute requires.

As such, the draft minutes of the May 23 meeting cannot serve as

the triggering event for certiorari review under § 62.23(7)(e)10.3

¶38 Thus, in this case, the triggering event must be the

Determination Form with the approved minutes. Both the

Determination Form and the approved minutes contain the board's

decision to grant the Edwards' variance request, satisfying the

first statutory prerequisite. As the board acknowledges, these

documents were filed in the office of the board on July 31, 2017,

satisfying the second statutory prerequisite. Accordingly, the

Determination Form with the approved minutes meet the two statutory

prerequisites of Wis. Stat. § 62.23(7)(e)10. and serve as the

triggering event in this case.

II. CONCLUSION

3 If Moreschi wished to compel the board to file the minutes, she could have filed an action in mandamus in the circuit court to compel the board to file the minutes. See State ex. rel. Milwaukee Cnty. Pers. Rev. Bd. v. Clarke, 2006 WI App 186, ¶40, 296 Wis. 2d 210, 723 N.W.2d 141.

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¶39 I agree with the majority opinion's conclusions in this

case and its analyses of Moreschi's due process and certiorari

review challenges. But I do not join the majority's analysis of

inexplicably concludes that minutes of a board's meeting cannot

serve as a triggering event under § 62.23(7)(e)10., even though

the minutes can meet the statutory prerequisites for certiorari

review. While I write separately as to the proper interpretation

of § 62.23(7)(e)10., I reach the same conclusion as the majority—

—the filing of the Determination Form is the triggering event in

this case. As a result, I respectfully concur, and I join all of

the majority opinion except ¶¶23-24.

¶40 For the foregoing reasons, I respectfully concur.

¶41 I am authorized to state that Chief Justice PATIENCE

DRAKE ROGGENSACK joins this concurrence.

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¶42 REBECCA GRASSL BRADLEY, J. (dissenting). The Board

violated its own governing ordinance and then altered its minutes,

adding findings that were never made during the hearing. The

majority overlooks these unlawful and improper acts.1 I cannot.

I respectfully dissent.

I

¶43 The Village of Williams Bay enacted Ordinance § 18.1700,

the "Extraterritorial Zoning Ordinance for the Village of Williams

Bay."2 Section 18.1701C details the "INTENT" of the ordinance,

which, as material, provides:

It is the general intent of this ETZ Ordinance to regulate and restrict the use of all structures, lands, and waters; . . . and regulate and restrict size and location of all structures so as to; lessen congestion . . .; secure safety from fire, flooding, panic, and other dangers; provide adequate light, air sanitation and drainage; prevent overcrowding; avoid undue population concentration; protect property values; further the appropriate use of land and conservation of natural resources[.] The ordinance then sets forth all the rules for each zoning

district based on the classification of property. As applicable to the Edwardses' property, the ordinance requires a Single-Family

Residence to be placed at a "[m]inimum 25 feet" from the rear

property line and at a "[m]inimum 15 feet" from the side property

line. Ord. § 18.1703M(D).

1 I use the term "majority" to refer collectively to the lead and concurring opinions. 2 Williams Bay Ordinance § 18.1700 may be viewed at https://www.williamsbay.org/#ordinances (last accessed on Nov. 23, 2020) (all caps omitted).

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¶44 The ordinance created the "Zoning Board of Appeals for

each Extraterritorial Zoning District" for the "purpose of hearing

appeals and applications and for granting variances[.]" Ord.

§ 18.1716(A). This section also establishes the rules the Zoning

Board must follow and directs that the Zoning Board's minutes

"shall be kept" "showing the vote of each member upon each

question, the reasons for the Board's determination, and its

findings of facts." Ord. § 18.1716(C)(2). The ordinance prohibits

the Zoning Board from granting a variance "unless it finds beyond

a reasonable doubt that all of the following facts and conditions

exist and so indicates in the minutes of its proceedings." As

pertinent to the variance sought by the Edwardses, Ordinance

§ 18.1716(H) provides:3

3 Ordinance § 18.1716(H) contains a sixth factor in subsection (F) applicable only to C-4 ETZ Districts, the purpose of which "is to preserve, protect, and enhance the lakes, streams, and wetland areas in the ETZ Zoning District." Ordinance § 18.1703J. That factor provides:

(F) Additional Requirements in C-4 ETZ Districts: No variance shall be granted where:

(A) Filling and development contrary to the purpose and intent of the C-4 ETZ District would result.

(B) A change in the boundaries of the C-4 ETZ District would result.

(C) A lower degree of flood protection that a point two (2) feet above the 100-year recurrence interval flood for the particular area would result.

(D) Any action contrary to the provisions of Chapter NR-116 of the Wisconsin Administrative Code would result.

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No variance to the provisions of this Ordinance shall be granted by the Board unless it finds beyond a reasonable doubt that all of the following facts and conditions exist and so indicates such in the minutes of its proceedings.

(A) Preservation of Intent: No variance shall be granted that is not consistent with the purpose and intent of the regulations for the district in which the development is located. No variance shall have the effect of permitting a use in any district that is not a stated permitted use, accessory use, or conditional use in that particular district.

(B) Exceptional Circumstances: There must be exceptional, extraordinary, or unusual circumstances or conditions applying to the lot or parcel, structure, use, or intended use that do not apply generally to other properties of uses in the same district, and the granting of the variance should not be of so general or recurrent nature as to suggest that this Ordinance should be changed.

(C) Economic Hardship and Self-Imposed Hardship Not Grounds for Variance: No variance shall be granted solely on the basis of economic gain or loss. Self- imposed hardships shall not be considered as grounds for the granting of a variance.

(D) Preservation of Property Rights: The variance must be necessary for the preservation and enjoyment of substantial property rights possessed by other properties in the same district and same vicinity.

(E) Absence of Detriment: No variance shall be granted that will create substantial detriment to adjacent property or that will materially impair or be contrary to the purpose and spirit of this Ordinance or the public interest. (Emphasis added.)

¶45 The record contains the transcript of the Zoning Board's

May 23, 2017 hearing. It is undisputed that during the hearing no

None of the parties claim that the Edwardses' property is located in a C-4 ETZ Lowland Reserve Conservation District.

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member of the Board expressed any finding "beyond a reasonable

doubt" nor addressed the five findings required by the ordinance.

The transcript reveals exactly what occurred:

 The Edwardses' attorney explained they wanted a variance

due to the 12 percent slope of their lot; because of the

slope, the septic system needed to be in a certain spot,

limiting where the home could be built.

 Board Chairman Richard Tuma asked if there were any

questions.

 Board member Vernon Choyce asked whether the septic could

be a mound system instead; Mr. Edwards answered they were

told the preferred system for sanitation was "in ground."

 Several neighbors stated they were in favor of the

variance.

 Moreschi's attorney relayed the history of the case,

outlined the legal requirements the Edwardses needed to

prove to secure the variance, and discussed with the Board

whether the file was missing paperwork upon which the Town

of Linn Plan Commission had conditioned its approval.

 Board member Robert Winter asked Moreschi's attorney what

he meant when he said granting a variance would be "against

the law" and counsel explained the variance would be

against the law unless the Board would find that the five

ordinance factors were proven beyond a reasonable doubt.

 There was some discussion about the packet of documents

Moreschi provided to the Board at the last minute, whether the ordinance reflecting the five factors was contained

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within the packet, whether the Town of Linn actually

approved or merely recommended a variance and whether it

did so without actually receiving the proper documentation.

 Moreschi spoke at length about why she opposed the

 Several other people spoke in opposition to granting the

 The Edwardses' lawyer responded to some of the comments

opposing the variance, argued that the five factors were

satisfied, and addressed the burden of proof.

 Mr. Edwards spoke, expressing it was not his intent to

cause dissension in the community and discussing his

investment in building his home.

 Two more people spoke generally about the neighborhood and

the changes happening there.

 Moreschi told the Board that Mr. Edwards said he needed a

variance in order to preserve the old trees, but since his

trees had died, the space available on his lot had changed.

 Moreschi's attorney apologized for not providing the packet

of information to the Board earlier, explaining the timing

was connected to the public notice date for the hearing.

 An individual suggested the Board hold off on issuing a

decision until it could ask the Town of Linn to determine

whether it had in fact received the information upon which

it had conditioned its approval.

 Board member Choyce asked the Building Inspector about the Inspector's letter referring to the 12 percent slope in

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which he "said the remaining four items do not apply."

Choyce explained he did not "know what the remaining four

items are." The building inspector responded that he would

"strike that last sentence" in his letter.4

 Chairman Tuma then attempted to call for a vote on the

variance request, but Board member Winter asked if there

could be "some discussion first[.]" Winter then mentioned

he lives in the Town of Linn——in the same subdivision

involved——and how the area is changing, "[s]o what we do

today might have a lot of impact upon what's gonna happen

in the future."

 Board member Mike O'Brien said it seems like the Board

keeps trying to move forward with a decision on this but

keeps discussing the same topics.

 Board member Choyce said "the only thing that I see is the

exceptional circumstances." He said that he has built

homes in that subdivision and suggested using a mound

system would make everything work: "I've built in

Knollwood and put a house on a lot that had a significant

slope for a client, we were able to make everything work

and inclusive of the septic system by doing mounds. So

everybody's talked about holding tanks and regular septic

systems, but I haven't heard a soul talk about a mound

4 This discussion during the hearing appears to relate to the Building Inspector's letter discussing conditions on the lot that may provide a topographical basis to satisfy the exceptional circumstances requirement for the variance. This does not refer to the five ordinance factors.

system, so I'm not certain I see that there's an

exceptional circumstance that the home, uh, be approved."

Choyce expressed not knowing how to deal with the fact that

the variance request came so late——after the foundation

had already been put in: "I would've thought this would've

all been done ahead of time. Um, but I'm not sure how to

get around that."

 Chairman Tuma then immediately asked for a motion to

approve, which Winter made, and Tuma seconded. Then Tuma

said: "All those in favor, signify by saying 'aye,'" and

all four Board members simultaneously said "aye."

¶46 Aside from Choyce's concern about the exceptional

circumstance factor, none of the Zoning Board's four members

discussed or even mentioned any of the five required ordinance

factors. Additionally, not a single Board member acknowledged the

burden of proof each member was required to apply. Although the

lawyers presented argument on the five ordinance factors as well

as the burden of proof, the Board members simply voted "aye" as a

group to granting the variance, without discussing or mentioning

the required findings and without stating that each had been proven

beyond a reasonable doubt. The original minutes from the May 23,

2017 meeting, which were sent to Moreschi on June 28, 2017,

provided:

Consider Variance

Williams and Susan Edwards, W4247 Indian Drive, Lake Geneva, WI 53147 (Linn Township), Tax Key ICI-160

The petitioner is requesting a variance to zoning code section 18.1703M(D) to allow a rear yard setback of 18'

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(25' required) and a side yard setback of 6' (15' required).

Board of Appeals Decision: The Village of Williams Bay Extraterritorial Zoning Board of Appeals, during the meeting of March 23, 2017 for the petition of Williams and Susan Edwards requesting a variance to the zoning code section 18.1703M(D) to allow a rear yard setback of 18' (25' required) and a side yard setback of 6' (15' required). Robert Winter moved to APPROVE the request. Richard Tuma seconded the motion. A vote was taken and carried unanimously by those present. 4 – AYE (Richard Tuma, Vernon Choyce, Mike O'Brien, Robert Winter), 0 – NAY. The request was APPROVED.

Board of Appeals Findings:

The Village of Williams Bay Extraterritorial Zoning Board of Appeals felt that there was a lack of detriment and allowed the variance. ¶47 After Moreschi filed her certiorari action in the

circuit court seeking reversal because the Zoning Board did not

make the required findings at the hearing (beyond a reasonable

doubt or otherwise), someone on the Zoning Board's behalf rewrote

the minutes and prepared a written Determination form. These new

minutes, which the Board calls the "official" or "approved"

minutes, were released on August 1, 2017, 70 days after the Board's

oral decision:

Williams and Susan Edwards, W4247 Indian Drive, Lake Geneva, WI 53147 (Linn Township), Tax Key ICI-160

The petitioner is requesting a variance to zoning code section 18.1703M(D) to allow a rear yard setback of 18' (25' required) and a side yard setback of 6' (15' required).

Board of Appeals Decision: A motion was made by Robert Winter to approve the variance requested by William and Susan Edwards to zoning code section 18.1703M(D) to allow a rear yard setback of 18' and north side lot set

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back of 6'. The motion was seconded by Richard Tuma. A vote was taken and the motion carried unanimously. 4 - Aye (Richard Tuma, Vernon Choice, Mike O'Brien, Robert Winter), 0- Nay. The variance was granted.

Board of Appeals Findings: The Village of Williams Bay Extraterritorial Zoning Board of Appeals having considered all of the testimony and evidence presented at the hearing found beyond a reasonable doubt that all of the facts and conditions set forth in ETZ Zoning Ordinance Sec. 18.1716(H) exist in favor of granting the requested variance. The Board reviewed the application for variance and attached documents; letter from Town of Linn approving the variance; letters from citizens in favor and opposed to the variance; documents presented by Attorney Thompson; along with other documents presented at the hearing. The Board heard testimony from Mr. Edwards and his attorney, Mara Spring re: why the variance was necessary. The Board heard testimony from citizens in favor and opposed to the variance, including Attorney Thompson on behalf of Ms. Moreschi. ¶48 The four members of the Board who were present at the

May 23, 2017 hearing subsequently signed and issued a written

decision, titled "Determination Form" and dated July 31, 2017.

The Determination Form explicitly references all five ordinance

factors and the proper burden of proof:

The Village of Williams Bay Extraterritorial Zoning Board of Appeals having considered all of the testimony and evidence presented at the hearing finds beyond a reasonable doubt that all of the facts and conditions set forth in ETZ Zoning Ordinance Sec. 18.1716(H) exist in favor of granting the requested variance. The Board reviewed the application for variance and attached documents; letter from Town of Linn approving the variance; letters from citizens in favor and opposed to the variance; documents presented by Attorney Thompson; along with other documents presented at the hearing. The Board heard testimony from Mr. Edwards and his attorney, Mara Spring re: why the variance was necessary. The Board heard testimony from citizens in favor and opposed to the variance, including Attorney Thompson on behalf of Ms. Moreschi. The Board reviewed the Affidavit of the Walworth County Sanitarian. The Affidavit of the Sanitarian does not dispute the Edwards representations 9 No. 2018AP283.rgb

re: the location of the septic system on their property. The affidavit indicates some possibilities re: other septic alternatives, but does not state that any of these alternatives can definitely be applied on the Edwards property. The Board found beyond a reasonable doubt that: (1) the requested variance is consistent with the purpose and content of the regulations for the district and a permitted use - a single family residence; (2) exceptional circumstances exist re: the location of the septic system on the lot and a 12% slope on the lot justifying the requested variance; (3) economic hardship is not the basis for granting the variance; (4) the variance is necessary to preserve the property rights and enjoyment of the property by the owner who looks to build a single family home on the property that is consistent with other homes in the district; and (5) the variance will not create a substantial detriment to the adjacent properties because the new home will be set back further from the property lines than the pre- existing home. While the Board may control the drafting of the minutes, it cannot

control the past; it is what it was and not what the Board says.

II

¶49 In reviewing the Zoning Board's decision, this court's

review is limited to determining:

(1) whether the board kept within its jurisdiction; (2) whether it proceeded on a correct theory of law; (3) whether its action was arbitrary, oppressive, or unreasonable and represented its will and not its judgment; and (4) whether the board might reasonably make the order or determination in question based on the evidence. State ex rel. Ziervogel v. Washington Cnty. Bd. of Adjustment,

2004 WI 23, ¶14, 269 Wis. 2d 549, 676 N.W.2d 401.

¶50 The Zoning Board failed to proceed on a correct theory

of law in considering the Edwardses' variance request. The Board

violated its own ordinance, which required it to make five findings beyond a reasonable doubt and on the record at the hearing before

it had the authority to grant a variance. The transcript of the 10 No. 2018AP283.rgb

May 23, 2017, hearing reflects that the Board neither discussed

nor made findings on the ordinance's five factors. Chairman Tuma

let everyone who wanted to make a statement speak, and then he

immediately called for a vote. Board member Winter asked for

discussion time. During that discussion, Board member Choyce said

he had not seen evidence of exceptional circumstances, but did not

know what to do about that since the home's foundation had already

been completed. Without any discussion of the five factors or any

mention by any Board member of the burden of proof, a vote was

taken and the variance was granted.

¶51 The ordinance governing the Board required it to deny

any variance unless it (1) finds that five facts and conditions

exist beyond a reasonable doubt; and (2) "so indicates such in the

minutes of its proceedings." Ord. § 18.1716(H). In other words,

the ordinance required the Board members to make findings beyond

a reasonable doubt that "all of" the five "facts and conditions"

are present before granting any variance. In violation of the

ordinance, the Board instead granted the variance with no mention

of the five factors, which are: (1) preservation of intent; (2)

exceptional circumstances; (3) economic hardship cannot be the

sole basis for the variance, nor can self-imposed hardship be

considered as grounds for granting a variance; (4) preservation of

property rights; and (5) absence of detriment. If the Board makes

those five findings at the hearing, they must be noted in the

minutes. More importantly, if the Board neglects to make any of

these findings at the hearing, logically they cannot be indicated

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in the minutes of the proceedings and the variance cannot be

granted.

¶52 At the May 23rd hearing, not a single Board member made

a finding on preservation of intent——at all——let alone to the

beyond a reasonable doubt standard. Not a single Board member

found that the Edwardses had proven the economic hardship,

preservation of property rights, or absence of detriment factors

either, and certainly not to the proper burden. Only one Board

member seemingly found that this property did not present

exceptional circumstances, but the Board itself did not address

this finding and the Board member ultimately ignored it when he

voted to grant the variance. This is a direct violation of the

Board's own ordinance.

¶53 Although the ordinance requires the Board to include its

findings in the minutes, the Board failed to meet this requirement

too. The governing ordinance requires that "Minutes of the

proceedings and a record of all actions shall be kept by the

secretary, or other designated person, showing the vote of each

member upon each question, the reasons for the Board's

determination, and its finding of facts." Ord. § 18.1716(C)(2).

Minutes are a record of what happens at a hearing. Minutes,

Black's Law Dictionary (11th ed. 2019) ("Memoranda or notes of a

transaction, proceeding, or meeting."). They are "[a]n official

record of the proceedings of a meeting." Minutes, The American

Heritage Dictionary (5th ed. 2011). Minutes, therefore, cannot

contain things that did not actually happen at the meeting. Despite this fundamental characteristic of meeting minutes, the

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Board's "official" minutes contain things that did not even occur

at the meeting. The transcript expressly shows the falsification

of the minutes. Of course, it is not unusual for minutes of a

meeting to be circulated in a draft form first so that members of

an organization may review the minutes to make corrections before

they are finalized and approved. This process, however, cannot

reinvent history; minutes must be limited to that which actually

occurred at the hearing. The "official" minutes created by the

Board do not reflect what really happened at the May 23rd hearing.

Instead, the minutes contain content generated in reaction to

Moreschi's certiorari petition.

¶54 The Board's "findings" in the "official" minutes say the

Board "found beyond a reasonable doubt" that all of the ordinance's

factors "exist." Board members never said anything close to this

at the hearing. The findings section also refers to the Board

having "heard testimony." To the contrary, no witnesses were

sworn. People spoke informally, giving statements in favor of or

against the variance. The rewritten minutes reflect a complete

overhaul of the draft minutes to insert things that never happened

in an attempt to rectify the Board's failure to comply with the

ordinance's dictates.

¶55 The Board's fabrication of the "official" minutes

highlights what the Board neglected to do, in violation of the

ordinance. The "draft" minutes, which Moreschi obtained in June

2017, fare no better. Those minutes contain a single finding:

"that there was a lack of detriment." No Board member, however, discussed the lack of detriment factor and no Board member made

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any finding with respect to that factor. Those minutes do not

reflect what occurred at the May 23rd hearing either.

¶56 Instead of following the mandates of its own ordinance,

the Board granted the variance first and only after Moreschi filed

her certiorari action did the Board perfunctorily recite the facts

and conditions to justify what amounts to an unlawful exercise of

its will and not its judgment.5 The majority should have

acknowledged what actually happened instead of ratifying the

Board's acts. This court should have sent the matter back to the

Board and directed it to follow its own ordinance. The Board's

post hoc attempt to pretend it did what the ordinance required

should not relieve it of its obligation to follow the law.

¶57 I would reverse the Board's decision granting the

variance and remand the matter to the Board to act in accordance

with the law. Even though this may have resulted in the Board

simply reconvening on remand, stating the required findings on the

record based on the proper burden of proof, and ultimately voting

the same way, at least the Board would then have followed the law

the Village of Williams Bay enacted. Local government must follow

the law that binds it. When a zoning board blatantly violates its

own rules, a court should not allow the decision to stand.

Instead, the majority looks the other way without bothering to

5I agree with court of appeals Judge Paul Reilly, who concluded, in his dissent to the court of appeals opinion affirming the Board's decision, that "[t]he Board's manufactured 'decision' seventy days later——after it learned what it did was wrong via Moreschi's certiorari action——invented findings that were never made by the Board and violated due process and is not fair play." Moreschi v. Village of Williams Bay, No. 2018AP283, unpublished slip op., ¶35 (Wis. Ct. App. July 31, 2019).

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address the Board's farcical if not mendacious procedures. The

majority gives the Board a free pass to disregard its own governing

laws. I will not, and I therefore respectfully dissent.

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