Nodell Investment Corp. v. City of Glendale

254 N.W.2d 310, 78 Wis. 2d 416, 1977 Wisc. LEXIS 1256
CourtWisconsin Supreme Court
DecidedJune 1, 1977
Docket75-506
StatusPublished
Cited by53 cases

This text of 254 N.W.2d 310 (Nodell Investment Corp. v. City of Glendale) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nodell Investment Corp. v. City of Glendale, 254 N.W.2d 310, 78 Wis. 2d 416, 1977 Wisc. LEXIS 1256 (Wis. 1977).

Opinion

ABRAHAMSON, J.

The determinative issue for this court on appeal is whether a property owner may challenge as unconstitutional the method of administering and applying an apparently constitutional ordinance by a declaratory judgment action in the circuit court without first appealing to the zoning board of appeals. The circuit court held that since the property owners had failed to exhaust the available administrative remedies, the court did not possess jurisdiction over the subject matter of the controversy. We agree.

On or about March 5, 1956, the Echo Bowl partnership applied to the City of Glendale for a building permit to construct a bowling alley. Pursuant to city ordinances, the application was referred to the city plan commission which approved the application on the condition that the partnership dedicate to the city a strip of land along North Port Washington Road for road expansion pur *418 poses. To obtain the permit the dedication was made on or about April 2,1956.

On or about April 18, 1966, the Nodell Investment Corporation applied to the City of Glendale for a building permit to construct an automobile showroom and garage. An initial “foundation permit” was granted to allow the project to begin, but the plan commission withheld a final permit pending the dedication to the city of a strip of land along North Port Washington Road for road expansion purposes. Nodell Investment Corporation complied with the condition and made the dedication on August 30, 1966, allegedly because of increasing construction costs and the continued interest charges on loans taken to complete construction.

The complaint alleges that prior to and subsequent to the dedications mentioned above, the city plan commission required as a condition of the granting of building or occupancy permits gratuitous dedication of land along North Port Washington Road by several other property owners.

The North Port Washington road widening project began in 1974, and the State began purchasing frontage property not previously dedicated to the city. The two property owners described above commenced this action in 1975 under the Declaratory Judgment Act 1 seeking to have their 1956 and 1966 deeds to the city declared *419 null and void. They alleged that the plan commission’s administration of the Glendale building permit ordinance, sec. 85.17-(9), 2 violated the constitutional guarantees of equal protection of the laws and just compensation for private property taken for public use. The trial court sustained demurrers to the complaint, and this appeal followed.

*420 The parties agree that the plan commission required applicants for building permits to deed strips of street frontage to the city, without receiving the city’s payment therefor, as a condition for issuance of the permits pursuant to ordinance sec. 85.17-(9). The parties further agree that at all times material to the controversy the City of Glendale had in operation a board of appeals 3 to which grievances concerning the administration of city zoning ordinances may be taken, 4 as mandated by sec. 62.23(7) (e)l, Stats. 5 The powers of the board are set *421 forth in sec. 62.23(7) (e)7, Stats. 6 and they include the power to “hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by an administrative official in the enforcement of this section or of any ordinance adopted pursuant thereto.” Sec. 62.37(7) (e), Stats., provides for judicial review of the decision of the board of appeals. 7 The property owners concede in their statement *422 of facts that they did not challenge before the board of appeals the validity of the plan commission’s conditional building permits.

In a continuing line of cases this court has stated that where a statute sets forth a procedure for review of administrative action and court review of the administrative decision, such remedy is exclusive and must be employed before other remedies are used. In Ferch v. Schroedel, 241 Wis. 457, 461, 6 N.W.2d 176 (1942), this court refused to allow a lot owner to enjoin the holders of a building permit, holding that the remedy was to follow the statutory route for judicial review of the issuance of a permit. The court adopted the language of State ex rel. Martin v. Juneau, 238 Wis. 564, 568, 300 N.W. 187 (1941):

“ ‘This court has repeatedly held that where a specified method of review is prescribed in an act creating a new right or conferring a new power, the method so prescribed is exclusive and if review is sought that method must be pursued.’ Citing State ex rel. Attorney General v. Fasekas, 223 Wis. 356, 362, 269 N.W. 700; Corstvet v. Bank of Deerfield, 220 Wis. 209, 263 N.W. 687.
“Plaintiff having failed to follow the required statutory procedure, the court below had no jurisdiction in the *423 instant case, and should have dismissed the action on that ground . . . .” 241 Wis.2d at 461.

See also Master Disposal v. Village of Menomonee Falls, 60 Wis.2d 653, 656, 657, 211 N.W.2d 477 (1973); Corstvet v. Bank of Deerfield, 220 Wis. 209, 232, 233, 263 N.W. 687 (1936).

In Jefferson County v. Timmel, 261 Wis. 39, 63, 51 N.W.2d 518 (1952), the court construed sec. 59.99, Stats., the county analogue of sub. 62.23(7) (e), as follows:

“8 McQuillin, Mun. Corp. (3d ed.), p. 538, sec. 25.283, states that the authorities are in conflict as to whether a property owner must first pursue and exhaust the administrative remedy available to him under a zoning ordinance or statute before resorting to the courts for in-junctive or other relief. We believe the sounder rule is that which holds that if a zoning ordinance provides for an appeal to a board of adjustment created pursuant to a statute similar to sec. 59.99 from an adverse ruling of an administrative officer or board in administering the ordinance, and court review of the decision or order of the board of adjustment is specifically provided for by statute, such remedy is exclusive of all other remedies and must be exhausted before a party can resort to the courts for other relief except in cases where the validity of the ordinance itself is attacked.”

See also Kmiec v. Town of Spider Lake,

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Bluebook (online)
254 N.W.2d 310, 78 Wis. 2d 416, 1977 Wisc. LEXIS 1256, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nodell-investment-corp-v-city-of-glendale-wis-1977.