Hambleton v. Friedmann

Court of Appeals of Wisconsin

Hambleton v. Friedmann

344 N.W.2d 212, 117 Wis. 2d 460, 1984 Wisc. App. LEXIS 3477

CourtCourt of Appeals of Wisconsin

DecidedJanuary 24, 1984

Docket83-134

StatusPublished

Cited by8 cases

This text of 344 N.W.2d 212 (Hambleton v. Friedmann) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hambleton v. Friedmann, 344 N.W.2d 212, 117 Wis. 2d 460, 1984 Wisc. App. LEXIS 3477 (Wis. Ct. App. 1984).

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Opinions

DEAN, J.

Ralph and Elizabeth Friedmann, James Building Corporation, and North Point Development Corporation (appellants) appeal a judgment and an order that invalidates a conditional use zoning permit that the Door County Resource Planning Committee issued. The action was before the trial court on remand from this court. Hambleton v. Friedmann, No. 80-1366, slip op. (Wis. Ct. App. July 28, 1981). Appellants contend that the trial court wrongly interpreted the applicable local zoning ordinance. They also make several other contentions that were raised in the earlier appeal. Because the trial court correctly interpreted the ordinance and because the other issues were decided by our earlier decision, we affirm the judgment and the order.

James applied for and received a conditional use zoning permit to build condominiums on property zoned for single-family residences. A public hearing was held on the application, but no notice of the hearing was posted in the vicinity of the conditional use. The local zoning ordinance required the notice to be “posted in the vicinity of the conditional use where practical.” Door County Zoning Ordinance sec. X. Our earlier decision remanded this action to have the trial court determine whether posting was practical. On remand, the trial court found that posting was practical and, since no notice was posted, it invalidated the conditional use permit.

We agree with the trial court that the ordinance requires notice to be posted where a posting is physically possible. The meaning of an ordinance is a question of law that we independently decide. See First National Leasing Corp. v. City of Madison, 81 Wis. 2d 205, 208, [462]*462260 N.W.2d 251, 253 (1977). The rules for the construction of statutes and ordinances are the same. County of Columbia v. Bylewski, 94 Wis. 2d 153, 163 n. 7, 288 N.W.2d 129, 137 n. 7 (1980). In construing statutes, effect must be given, if possible, to every word. Id. at 164, 288 N.W.2d at 135.

The ordinance required posting “where practical.” If the ordinance was intended to mean, as the appellants contend, that posting was required only when useful, the ordinance would have required posting “when practical” or “if practical.” The only reasonable interpretation of the phrase is, as the trial court concluded, that notice had to be posted where it was physically possible to post.

The other issues the appellants raise were effectively decided by our earlier decision. We will not reconsider the merits of arguments considered in the first appeal. See Fehrman v. Smirl, 25 Wis. 2d 645, 649, 131 N.W.2d 314, 316 (1964). Appellants again contend that the notice requirement is directory, not mandatory, and that the local authorities waived the requirement by their failure to comply with it. Our earlier decision held “if such posting is practical, then this notice must be given for the subsequent proceedings to be valid.” Since posting was practical, the notice is mandatory.

The claims that the respondents failed to exhaust their administrative remedies and that they are estopped from challenging the lack of notice were also rejected by our prior decision to remand. If the trial court was without jurisdiction, we would not have remanded the cause to that court. If the respondents were estopped from challenging the lack of notice, no determination of the practicality of posting would have been required.

By the Court. — Judgment and order affirmed.

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DEAN, J.

Ralph and Elizabeth Friedmann, James Building Corporation, and North Point Development Corporation (appellants) appeal a judgment and an order that invalidates a conditional use zoning permit that the Door County Resource Planning Committee issued. The action was before the trial court on remand from this court. Hambleton v. Friedmann, No. 80-1366, slip op. (Wis. Ct. App. July 28, 1981). Appellants contend that the trial court wrongly interpreted the applicable local zoning ordinance. They also make several other contentions that were raised in the earlier appeal. Because the trial court correctly interpreted the ordinance and because the other issues were decided by our earlier decision, we affirm the judgment and the order.

James applied for and received a conditional use zoning permit to build condominiums on property zoned for single-family residences. A public hearing was held on the application, but no notice of the hearing was posted in the vicinity of the conditional use. The local zoning ordinance required the notice to be “posted in the vicinity of the conditional use where practical.” Door County Zoning Ordinance sec. X. Our earlier decision remanded this action to have the trial court determine whether posting was practical. On remand, the trial court found that posting was practical and, since no notice was posted, it invalidated the conditional use permit.

We agree with the trial court that the ordinance requires notice to be posted where a posting is physically possible. The meaning of an ordinance is a question of law that we independently decide. See First National Leasing Corp. v. City of Madison, 81 Wis. 2d 205, 208, [462]*462260 N.W.2d 251, 253 (1977). The rules for the construction of statutes and ordinances are the same. County of Columbia v. Bylewski, 94 Wis. 2d 153, 163 n. 7, 288 N.W.2d 129, 137 n. 7 (1980). In construing statutes, effect must be given, if possible, to every word. Id. at 164, 288 N.W.2d at 135.

The ordinance required posting “where practical.” If the ordinance was intended to mean, as the appellants contend, that posting was required only when useful, the ordinance would have required posting “when practical” or “if practical.” The only reasonable interpretation of the phrase is, as the trial court concluded, that notice had to be posted where it was physically possible to post.

The other issues the appellants raise were effectively decided by our earlier decision. We will not reconsider the merits of arguments considered in the first appeal. See Fehrman v. Smirl, 25 Wis. 2d 645, 649, 131 N.W.2d 314, 316 (1964). Appellants again contend that the notice requirement is directory, not mandatory, and that the local authorities waived the requirement by their failure to comply with it. Our earlier decision held “if such posting is practical, then this notice must be given for the subsequent proceedings to be valid.” Since posting was practical, the notice is mandatory.

The claims that the respondents failed to exhaust their administrative remedies and that they are estopped from challenging the lack of notice were also rejected by our prior decision to remand. If the trial court was without jurisdiction, we would not have remanded the cause to that court. If the respondents were estopped from challenging the lack of notice, no determination of the practicality of posting would have been required.

By the Court. — Judgment and order affirmed.

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344 N.W.2d 212, 117 Wis. 2d 460, 1984 Wisc. App. LEXIS 3477, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hambleton-v-friedmann-wisctapp-1984.

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