State ex rel. CITIES

Service Oil Company

v. Board of APPEALS,



 21 Wis.2d 516 (1963)

124 N.W.2d 809

                                              * RELATED CITATIONS

_________________________________________________________________



                                       Pages: 516 522 528 534 540

                                              517 523 529 535 541

                                              518 524 530 536 542

                                              519 525 531 537 543

                                              520 526 532 538 544

                                              521 527 533 539 545

_________________________________________________________________

State ex rel. CITIES Service Oil Company,



Appellant,



v.                                               



BOARD OF APPEALS (and members thereof),

Respondents: MODERN CAR WASH, INC., and

another, Impleaded, Appellants:

POST, Intervenor, Respondent.  [fn*]

_________________________________________________________________



Supreme Court October 30, 1963 Ä November 26, 1963.



[fn*]     Motion for rehearing denied,

          without costs, on February 4, 1964.
TOP
PREVIOUS
NEXT
PAGE 520
APPEAL from a judgment of the circuit court for Milwaukee county:

ELMER W. ROLLER, Circuit Judge. Affirmed.



Two separate petitions for certiorari were filed to review a

decision of the Board of Zoning Appeals (hereinafter "Board of

Appeals") of the city of Milwaukee which revoked a building

permit previously issued to relator Modern Car Wash, Inc.



 

(hereinafter "Modern").



The relators on one petition were Modern and its affiliate,

Milwaukee Car Wash, Inc.



This certiorari proceeding was initiated pursuant to pars. 10



and 11 of Section 62.23(7)(e), Stats.
TOP
PREVIOUS
NEXT
PAGE 521
The relator on the second petition was Cities Service Oil

Company (hereinafter "Cities Service") which initiated its

proceeding under common law.



 For a number of years prior to February 2, 1961, Cities Service

owned and operated a gasoline service station on West Wisconsin

avenue in the city of Milwaukee.



This service station is located in an area which is zoned as a

"local business district" by a city zoning ordinance.



Cities Service agreed to lease the station to Modern and its

affiliate under an arrangement whereby an addition would be

constructed to house a conveyor-system car wash.



This leasing agreement was contingent upon Modern's securing a

building permit authorizing the construction of the addition.



Cities Service authorized Modern to apply to the city building

inspector for a permit to construct the new addition.



On February 2, 1961, the city building inspector

issued the permit to Modern.



On February 8, 1961, a joint "Notice of Appeal" by Paul D. Post

and David Refkin, nearby landowners, was mailed to

the Board of Appeals.



The stated ground of appeal was that the issuance of the building

permit "constitutes a violation of 16-5 12 Milwaukee Code of

Ordinances."



Section 16-5 of the Milwaukee Code of Ordinances

(as amended by Ordinance No. 311, September 20, 1960)

then provided that:[fn1]



     "In a local business district no building or land shall be

     used, and no building shall be erected which is arranged,

     intended or designed to be used for any of the following

     specified trades, industries or uses: . . . .



          12.  Automobile laundries or washing stations as a

               principal business."
TOP
PREVIOUS
NEXT
PAGE 522
On March 30, 1961, an individual notice of appeal by Post

was filed with the Board of Appeals, and on April 2, 1961,

a similar notice of appeal was filed by Refkin.



However, on June 1, 1961, Refkin withdrew his individual

appeal and his participation in the joint appeal.



Public hearings were conducted by the Board of Appeals

on March 2, 1961; April 6, 1961; April 11, 1961;

May 11, 1961; June 1, 1961; July 6, 1961;

August 10, 1961; and September 7, 1961.



On October 5, 1961, at an executive session, a vote was taken by

the Board of Appeals and all five members thereof voted that the

permit be revoked.



Thereafter, on October 10, 1961, the Board of Appeals

issued its decision which revoked the permit.



This decision, which was signed by the Board

of Appeal's chairman, stated in part:



     ". . . that the Building Inspector had erred in issuing the

     building permit because, in the opinion of the Board,

     the car wash addition was arranged, intended and

     designed to be used as an automobile laundry or

     washing station as a principal business. . . "



The two certiorari proceedings were then

instituted to review this decision.



Writs of certiorari were issued by the circuit court

and the two proceedings were consolidated for

trial pursuant to Section 269.05, Stats.



The Board of Appeals in its return incorporated the minutes of

the testimony taken before the board, together with exhibits.



Additional testimony was also taken in circuit court.



On July 30, 1962, the circuit court filed its memorandum decision

in which it was determined that the decision of the Board of

Appeals should be affirmed and the writs of certiorari quashed.



Judgment to this effect was entered November 19, 1962.



The relators have appealed from this judgment.



For the appellant Cities Service Oil Company there were briefs

by Hanley, Wedemeyer & Cavanaugh, attorneys, and John M. Hanley

and Robert F. Cavanaugh of counsel, all of Milwaukee,

and oral argument by John M. Hanley.
TOP
PREVIOUS
NEXT
PAGE 523
For the appellants Modern Car Wash, Inc., and Milwaukee

Car Wash, Inc., there were briefs and oral argument

by Harry W. Theuerkauf of Milwaukee.



For the respondents Board of Appeals and members thereof

there were briefs by John J. Fleming, city attorney of

the city of Milwaukee, and Cornelius J. Merten,

assistant city attorney, and oral argument by Mr. Merten.



For the respondent Post, there was a brief by Grootemaat,

Cook & Franke, attorneys, and Robert E. Cook of counsel,

all of Milwaukee, and oral argument by Robert E. Cook.



CURRIE, J.



These appeals raise the following pertinent issues:



(1)  Does the defendant Board of Appeals possess the

     power to revoke a building permit issued by

     the city building inspector?



(2)  Did the relators make expenditures in reliance

     upon the validity of the permit so as to acquire

     vested rights therein which would prevent the

     board from thereafter revoking the permit?



(3)  Was the appeal to the board by Post, a nearby property

     owner, fatally defective with respect to timeliness,

     adequately stating the ground of appeal, or failure

     to pay required filing fee?



(4)  Was the Board of Appeals without jurisdiction to proceed

     because of alleged defects in the published notices of

     the hearings called to consider the appeal?



(5)  Did the board commit prejudicial error in the manner in

     which the minutes of its proceedings were kept and made

     available to public inspection?
TOP
PREVIOUS
NEXT
PAGE 524
(6)  Did the board commit prejudicial error by holding

     executive sessions, or by taking any action

     at such executive sessions?



(7)  Were there such absences from meetings on the part of

     individual board members as to disqualify them from

     participating in the final decision revoking the permit?



(8)  Did a subsequent change in the applicable zoning ordinance

     render the proceeding before the board moot?



(9)  Does the revocation of the permit constitute a

     discriminatory enforcement of the applicable

     zoning ordinance so as to violate the

     constitutional rights of the relators?



Power of Board to Revoke Building Permit.



The appellants advance two reasons in support of their

contention that the Board of Appeals was without

authority to revoke the building permit.



First, they contend that it does not possess this power under the

provisions of pars. 7 and 8 of Section 62.23(7)(e), Stats. 1959.



Secondly, they maintain that, even if a board of appeals

organized pursuant to Section 62.23(7)(e) does possess this

power, the instant Board of Appeals was not so organized.



In contending that a board of zoning appeals generally does not

possess the power to revoke a building permit, appellants quote

this statement appearing in State ex rel. Tingley v. Gurda

(1932), 209 Wis. 63, 68, 243 N.W. 317:



     "It has been held that zoning boards of adjustment are

     not created as appellate bodies, and that legal or

     constitutional questions involved in zoning requirements

     are not a subject matter for the determination of such

     boards, but must be presented for consideration to the

     proper legal forum."



It seems that, generally, their powers of review are limited

to practical difficulties, or unnecessary hardship, in the

way of carrying out the strict letter of the law.



Municipal Gas Co. v. Nolan, 121 Misc. 606, 201 N. Y. Supp. 582;

Losick v. Binda, 102 N. J. L. 157, 130 Atl. 537; Builders' Realty

Corp. v. Bigelow, 102 N. J. L. 433, 131 Atl. 888."
TOP
PREVIOUS
NEXT
PAGE 525
When the Tingley Case arose, the powers of the board of

appeals were found in Section 62.23(8)(b), Stats. 1929.



Subsequently the statutory language was greatly amended.



Not only does par. 7 of Section 62.23(7)(e), Stats. 1959, provide

that the board of appeals has power, "To hear and decide appeals

where it is alleged there is error in any order, . . . decision

or determination made by an administrative official in the

enforcement of this section," but par. 8 of Section 62.23(7)(e)

has been added which provides:



     "In exercising the above mentioned powers such board may,

     in conformity with the provisions of such section, reverse

     or affirm, wholly or partly, or may modify the order,

     requirement, decision or determination appealed from, and

     may make such order, requirement, decision or determination

     as ought to be made, and to that end shall have all the

     powers of the officer from whom the appeal is taken, and may

     issue or direct the issue of a permit."



In Ostrowsky v. Newark (1928), 102 N. J. Eq. 169, 139 Atl. 911,

the court had before it a New Jersey zoning statute dealing with

the powers of the board of appeals couched in substantially the

same language as par. 8 of Section 62.23(7)(e), Wis. Stats. 1959.



The New Jersey court held that under such statute the board of

appeals possessed the power to revoke a building permit.



We are of the opinion that par. 8 of Section 62.23(7)(e) clearly

confers such power upon a board of appeals constituted pursuant

to Section 62.23(7)(e).



Section 62.03, Stats., was enacted in 1921, and has remained

unamended in its original form to the present time.



This statute provides:



(1)  The provisions of chapter 62 of the statutes shall not

     apply to cities of the first class under special charter.





(2)  Any such city may adopt by ordinance the provisions of

     chapter 62 of the statutes or any section or sections

     thereof, which when so adopted shall apply to such city."



     Milwaukee is a city of the first class.
TOP
PREVIOUS
NEXT
PAGE 526
On October 15, 1923, its common council enacted an ordinance,

Section 1 of which provided:



     "Section 62.23 of the Statutes of the State of Wisconsin,

     relating to the Public Land Commission, is hereby adopted

     by the Common Council and made applicable to the City of

     Milwaukee."



Section 62.23, Stats. 1923, was entitled "City planning" and

among other things authorized cities to enact zoning ordinances

which would regulate the location of industries and restrict the

use of buildings in certain districts.



It also authorized a five-member board of appeals.



Nowhere does the ordinance specifically refer

to a public land commission.



The 1923 statute which authorized the creation of a board of

public land commissioners is Section 27.11, Stats. 1923.



Subsection (14) of Section 62.23, Stats. 1923, relates to special

assessments for street improvements, bridges, memorial grounds,

parks and playgrounds, and provides that the plan for these may

be adopted either under Section 62.23 or Section 27.11.



The words of the October 15, 1923, ordinance "relating to the

Public Land Commission" does create an ambiguity. However, we

cannot interpret this ordinance as only adopting Subsection (14)

of Section 62.23, Stats. 1923, or hold that the ordinance

mistakenly referred to Section 62.23 instead of Section 27.11.



The preamble states that its purpose was to "adopt certain

sections of the general charter law according to the provisions

of section 62.03 of the statutes of the State of Wisconsin."



In case of ambiguity it is proper to resort to

the preamble to ascertain legislative intent.



Smith v. Brookfield (1956), 272 Wis. 1, 74 N.W.2d 770.



Section 62.03 is entirely inapplicable to any section of

the statutes not found in Chapter 62, Stats.,

the General Charter Law.



In order to avoid an absurd result we hold that the words

     

     "relating to the Public Land Commission"



do not qualify or restrict the preceding language

whereby the common council of the city

adopted Section 62.23.
TOP
PREVIOUS
NEXT
PAGE 527
We determine that where a city of the first class, pursuant to

Section 62.03, Stats., by ordinance adopts a particular section

of Chapter 62, Stats., the General Charter Law, such adoption

embraces any subsequent amendment which the legislature may

thereafter make in the adopted statute which is not wholly

incompatible with such statute as it stood at the time the

adopting ordinance was enacted.



Cf. George Williams College v. Williams Bay (1943),

242 Wis. 311, 316, 7 N.W.2d 891.



Here the legislature by Chapter 203,

Laws of 1941, repealed certain subsections of Section 62.23,

Stats. 1939, and created new subsections to take their place.



The provisions relating to the board of appeals, which were

formerly found in Subsection (8), were placed in newly created

Subsection (7)(e).



It is well settled that the effect of the repeal of a statute

and its re-enactment at the same time in substantially the same

words is to continue the statute in uninterrupted operation.



E. L. Husting Co. v. Milwaukee (1930), 200 Wis. 434, 437,

                                       228 N.W. 502;



State ex rel. Ohlenforst v. Beck (1909), 139 Wis. 37, 39, 40,

                                         119 N.W. 300;



and



State v. Gumber (1875), 37 Wis. 298, 303.



This principle is applicable here to the extent that both

before and after the enactment of Chapter 203, Laws of 1941,

a five-member board of appeals was authorized by Section 62.23,

Stats. 1939 and 1941.



While extensive changes were wrought as a result of the

enactment of Chapter 203, Laws of 1941, none of them

were so incompatible with Section 62.23, Stats. 1939,

so as to terminate the operation of Milwaukee's

adopting ordinance of October 15, 1923.





The effect is the same as if these changes had been made by

simple amendment without repeal.



We deem it immaterial that the device of repeal, with

simultaneous creation of compatible new provisions,

was used to accomplish the amending process.
TOP
PREVIOUS
NEXT
PAGE 528
Prior to the 1941 changes in Section 62.23, Stats.,

the common council of a city was authorized to create

a board of appeals by resolution while thereafter such

a board could only be created by city ordinance.



See Section 62.23(8), Stats. 1939,

and Section 62.23(7)(e), Stats. 1941.



Therefore, because Milwaukee's then existing board of appeals had

been created by resolution the common council on June 14, 1943,

enacted an ordinance creating a new board of appeals.



For reasons already stated this ordinance was sufficient to

clothe the instant Board of Appeals with the statutory powers set

forth in pars. 7 and 8 of Section 62.23(7)(e), Stats. 1959.



Claim of Vested Rights in Building Permit.



Appellants contend that both Modern and Cities Service made

expenditures of money in reliance on the building permit of

February 2, 1961, and that such expenditures gave them

vested rights in the permit that precluded the

Board of Appeals from legally revoking it.



Modern's claimed expenditures were $2,690 paid to the architect

who drew the plans for the addition and $500 as a down payment

on the car-wash conveyor equipment contracted for.



Cities Service's expenditures involved the installation of two

additional 10,000 gallon gasoline storage tanks in anticipation

of the increased volume of gasoline sales which would

result from having the conveyor car wash.



Appellants place great reliance upon this court's citation in

State ex rel. A. Hynek & Sons Co. v. Board of Appeals (1954),

267 Wis. 309, 315f, 64 N.W.2d 741, 66 N.W.2d 623, which approves

the principle enunciated in Crow v. Board of Adjustment of

Iowa City (1939), 227 Iowa 324, 288 N.W. 145.



The Crow Case holds (267 Wis. p. 315f):



     ". . . that when the applicant has made full disclosure and

     a building permit is then granted by the proper city

     official upon a reasonable interpretation by him of the

     applicable ordinance, the permit is valid in its inception

     and by proceeding in reliance on it the property owner

     secures a vested right which the board [of appeals] could

     not extinguish by a subsequent different, though in itself

     reasonable, interpretation of the terms of the ordinance."
TOP
PREVIOUS
NEXT
PAGE 529
In issuing the building permit to Modern, the city building

inspector construed the provision of the zoning ordinance which

prohibited automobile laundries or washing stations in a local

business district "as a principal business" as only prohibiting

such a use where the proposed automobile laundry or washing

station would be the predominant use. This clearly was not a

reasonable interpretation but a legally erroneous one.



This is because it is a rule of statutory construction that

the article "a" is generally not used in a statute

in a singular sense unless such an intention

is clear from the language of the statute.



Lindley v. Murphy (1944), 387 Ill. 506, 56 N.E.2d 832;

Application of Hotel St. George Corp. (1960),

207 N. Y. Supp. 2d 529;



Dobbs v. Board of County Commissioners of Oklahoma County

(1953), 208 Okla. 514, 257 P.2d 802;



82 C. J. S., Statutes, p. 676, Section 337.



The instant ordinance contains nothing which would indicate an

intent that the article "a" preceding "princpal use" was used in

the singular sense.



Therefore, this ordinance must be construed as prohibiting an

automobile laundry or washing stand if the same would

constitute one of the several principal uses

to which the property would be put.



Construing the evidence most favorable to Modern, it is clear

that the additional building authorized by the permit, and

the installation therein of conveyor car-wash equipment,

would make car washing one of the principal uses to

which the service station would be put.



Berggren, president of Modern, testified that the cost

of the new addition would be $64,000, and that

of the car-washing equipment, $32,000.



He stated that in square footage 45 to 55 percent of

the new addition would be devoted to car washing

and another 23 to 27 percent to car waxing.
TOP
PREVIOUS
NEXT
PAGE 530
Berggren further testified that 120 cars could be washed

per hour, and that 87,000 cars had been washed in a

twelve-month period at a conveyor type of car wash

being operated by Berggren at another location.



An expert witness called by Modern estimated that

60 cents of every $3.70 income by a service

car-wash station would be for car washing.



However, purchasers of gasoline at the station would be allowed

a credit on the usual charge for car washing which credit

is not reflected in these comparative income figures.



The car-washing end of the business serves as

a feeder for the sale of gasoline.



Cities Service, in anticipation of the increased volume of

gasoline sales resulting from the installation of the conveyor

car wash, increased the existing gasoline-storage capacity of the

station from 12,000 gallons to 32,000 gallons.



The rule of Crow v. Board of Adjustment of Iowa City, supra, is

inapplicable here because the building inspector issued the

permit in violation of the zoning ordinance because of his

unreasonable and erroneous interpretation of its meaning.



Section 13-5 of the Milwaukee zoning ordinance provides:



      "The issuance of a [building] permit . . . shall not be

      deemed or construed to be a permit for, or an approval of,

      any violation of any of the regulations of this code."



A similar provision of the Milwaukee county zoning ordinance was

before this court in Wauwatosa v. Strudell (1959),

6 Wis.2d 450, 455, 95 N.W.2d 257.



It was there claimed that an expenditure of $60,000

had been made in reliance on the permit.



We held that the issuance of a permit did not authorize

a use which violated the zoning ordinance.



This holding controls the issue raised by appellants that

the expenditure of funds by them precluded the Board

of Appeals from revoking the building permit.



There is a further reason why appellants' contention

in this respect must fail.



There is no showing made that any of the expenditures claimed to

have been made by them were incurred between the issuance of the

permit on February 2, 1961, and the date Modern received notice

of the Post and Refkin appeal of February 6, 1961.
TOP
PREVIOUS
NEXT
PAGE 531
Once the appellants received notice of this appeal and

the claim that the permit violated the zoning ordinance,

they thereafter proceeded at their peril in incurring

expenditures in reliance on the permit.



Alleged Defects in Appeal to Board.



Par. 4 of Section 62.23(7)(e), Stats. 1959, provides that appeals

to the Board of Appeals may be taken by any person aggrieved by

any decision of "the administrative officer," which officer in

this case was the building inspector; and that such an appeal



     "shall be taken within a reasonable time, as provided by the

     rules of the board, by filing with the officer from whom the

     appeal is taken and with the board of appeals a notice of

     appeal specifying the grounds thereof."



The circuit court found that the Board of Appeals had no rules

in effect at the pertinent times in question because the

board's rules were then in the process of revision.



Appellants point out that the separate individual appeals by

Post and Refkin were made on printed forms supplied by the

Board of Appeals and that such forms bore this legend:



     "Appeal must be taken within twenty days from the date of

     decision or order appealed from, and served upon the

     Inspector of Buildings and the Board of Zoning Appeals

     at least one week before date of hearing."



Assuming that this legend had the force of a board rule,

the original joint notice of appeal was received by both

the board and the building inspector well within the time

limits of such rule, while the later separate individual

appeals of Post and Refkin were not.



If the joint appeal was validly taken, it is immaterial that the

individual appeals may have been nullities because of lateness.



The fact that Refkin later withdrew from the joint appeal and the

board thereafter entitled its decision of October 10, 1961, "In

the Matter of the Appeal of Paul D. Post" is also immaterial.
TOP
PREVIOUS
NEXT
PAGE 532
That was a correct title to employ after Refkin's withdrawal.



Thus there was a timely appeal pending on which the Board of

Appeals could act, absent any other jurisdictional defects.



Appellants contend that the grounds of appeal stated in the

joint notice of appeal were insufficient to comply with the

requirement of par. 4 of Section 62.23(7)(e), Stats. 1959,

that a notice of appeal must specify "the grounds" of appeal.



This notice of appeal stated the grounds of appeal in these

words:



     "The undersigned are aggrieved by the decision of the

     Building Inspector and the grounds of appeal are that

     the issuance of said permit constitutes a violation

     of 16-5 12 Milwaukee Code of Ordinances."



Par. 12 of Section 16-5, Milwaukee Code of Ordinances, covered

the single prohibition against automobile laundries or washing

stations in a local business district as a principal business.



Therefore, we have no hesitancy in holding that this notice of

appeal adequately stated the grounds of appeal, and that there

was full compliance with the statute in this respect.



We next turn to the more-troublesome question

of the payment of the filing fee.



Section 16-35.5 of the Milwaukee Code of Ordinances

provides in part,



     "A filing fee of $10 for each appeal shall

     be paid to the city treasurer."



No such filing fee was paid by Post and Refkin upon taking

their joint appeal, but on March 13, 1961, their counsel

mailed to the Board of Appeals a letter inclosing

a $10 check to cover this filing fee.



This check remained in the board's files until June 1, 1961, when

counsel for Post and Refkin discovered it was still there, took

the check to the city treasurer, and paid it to that officer.



The circuit court found that the filing fee had

been paid to the board on March 14, 1961.



We interpret the ordinance requirement with respect to

payment of the filing fee as requiring its payment within

the twenty-day period provided for taking an appeal.
TOP
PREVIOUS
NEXT
PAGE 533
At the first hearing on March 2, 1961, counsel for Modern

entered a special appearance and stated various reasons why he

contended the board was without jurisdiction to hear the appeal.



One of the stated reasons was the failure to

have paid the $10 filing fee.



However, thereafter, at the hearing of April 6, 1961,

counsel for Modern entered a general appearance.



While it would have been proper for the board to have

dismissed the appeal because of failure to

timely pay the filing fee it did not do so.





We hold that the failure to timely pay the filing fee was not

such a defect as to have deprived the board of jurisdiction,

and that Modern waived this defect when, after having raised

the issue on March 2, 1961, it thereafter on April 6, 1961,

entered a general appearance.



Cf. McKesson-Fuller-Morrison Co. v. Industrial Comm. (1933),

212 Wis. 507, 510, 250 N.W. 396.



We also determine that this waiver by Modern

is binding upon Cities Service.



Cities Service authorized Modern to apply for

the building permit in its name.



With respect to all proceedings relating to this permit a

relationship of either agency or joint venture existed so that

the act of Modern in entering its general appearance before the

board on April 6, 1961, also constituted a waiver of the

filing-fee defect by Cities Service.



It is significant that, while Cities Service did not enter any

appearance in the appeal proceeding before the board, the record

discloses that it had representatives present as observers at

some of the hearings, including a representative of its legal

staff from New York.



Thus Cities Service was apparently content to stand by and let

Modern carry the ball throughout the board hearings.



Alleged Defect in Published Notices of Board Hearings.



Par. 6 of Section 62.23(7)(e), Stats. 1959, provides in part:



     "The board of appeals shall fix a reasonable time for the

     hearing of the appeal or other matter referred to it, and

     give public notice thereof, as well as due notice to the

     parties in interest, . . ."
TOP
PREVIOUS
NEXT
PAGE 534
No public notice of the original hearing of March 2, 1961,

was apparently published by the Board of Appeals.



Timely notices of the subsequent hearings were published

in the Daily Reporter, a daily newspaper published in the

city of Milwaukee.



These notices stated the time and place where the Board of

Appeals would conduct public hearings "affecting the

following premises" which was followed by a list

of the affected premises.



These notices described the instant service station premises as:

"Modern Car Wash, Owner: Floyd Berggren, 2455 W. Wisconsin Ave."



Appellants contend that such notices were inadequate notice

to the public because they failed to apprise any reader

thereof of the nature of the matter to be heard

concerning the affected premises.



They further maintain that as a result of such claimed defective

notice the Board of Appeals was without jurisdiction to act.



A number of New York decisions are cited as supporting authority.



Significantly these cases deal with public notices of hearings

on the issue of granting variances and not with the issue

of whether a building permit should be revoked.



We consider the situation with respect to a claimed defect in

the published notice of a hearing to consider a variance to be

entirely different than that of a hearing to consider an appeal

by a nearby property owner to revoke a building permit which he

contends violated a zoning ordinance.



In the former situation adequate public notice is most essential

in order to give affected property owners a chance to protest

against the proposed variance.
TOP
PREVIOUS
NEXT
PAGE 535
If the variance is granted and the published notice is defective,

nearby property owners adversely affected, who have been

seriously prejudiced thereby, ought to be entitled to assert that

the board's action in granting the variance is illegal and void.



Here, the only purpose served by publishing notice of the

hearings would be to alert other property owners in the

area who would be harmed if the permit were not revoked.



However, Post, by his appeal, did such an effective

job that the board did revoke the permit.



It would seem highly incongruous if Modern and Cities Service

were permitted to successfully attack the board's action in

revoking the permit on the ground that other nearby property

owners were not given adequate published notice of the hearings

so that they might join in the attack upon the permit.



Such defect would not be prejudicial to Modern.



Therefore it is our considered judgment that any defect in the

publishing of notices of hearing did not deprive the Board of

Appeals of jurisdiction to revoke the permit.



The interests of nearby property owners were adequately protected

by Post's prosecution of the appeal.



Modern, by its general appearance and active participation in the

appeal proceedings, is not entitled to raise this lack of

adequate notice to others than itself.



For reasons previously stated, Cities Service possesses no

greater right to raise any error than does Modern.



Minutes of Board Meetings.



Par. 3 of Section 62.23(7)(e), Stats. 1959,

provides in part as follows:



     "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, all

     of which shall be immediately filed in the office of the

     board and shall be a public record."
TOP
PREVIOUS
NEXT
PAGE 536
Miss Marsh, secretary of the Board of Appeals, kept minutes

of all board meetings pertaining to the instant controversy.



The minutes disclosed who was present, when

testimony was given, and who testified.



Minutes were not taken of the testimony itself.



Testimony of all witnesses given at the hearings, however, was

taken down verbatim in shorthand by a court-reporting firm.



These shorthand notes were later transcribed after the writs of

certiorari were issued, and the transcript of this testimony was

included in the return made by the Board of Appeals to the writs.



On October 5, 1961, counsel for Modern requested permission of

Miss Marsh to see the board minutes for the purpose of

ascertaining the board's decision and made a similar request for

the same purpose on October 10, 1961.



Miss Marsh refused these requests on the ground that her

instructions were that until the decision was typed up and

signed, no information could be given regarding the case,

nor was she permitted to show the board minutes.



A copy of the board's decision was mailed to

counsel for Modern on October 10, 1961.



The only breaches of the quoted provisions of par. 3 of Section

62.23(7)(e), Stats. 1959, reflected by the record were that there

may have been unreasonable delay in transcribing and filing with

the board some of the shorthand notes of testimony taken at the

hearing, and the refusal on board orders to permit Modern's

counsel to see the minutes of the October 5, 1961, board meeting.





Appellants, however, have pointed to no prejudice

sustained by reason of such breaches.



In the absence of such a showing of prejudice, we do not find

such error as would require reversal of the board's decision.



However, we do not condone this practice since it violates

statutory provisions which require that such minutes be kept and

be open to public inspection.
TOP
PREVIOUS
NEXT
PAGE 537
Holding of Executive Sessions by Board.



Par. 3 of Section 62.23(7)(e), Stats. 1959, also provides:



     "... All meetings of the board shall be open to the public."



Another statute bearing on the question of the right of a

municipal board, while acting in a quasi-judicial capacity,

to hold executive sessions from which the public is excluded,

is Section 14.90, Stats. 1959.



We quote the pertinent provisions thereof as follows:



     "(2) To implement and insure the public policy herein

     expressed, all meetings of all state and local governing and

     administrative bodies, boards, commissions, committees and

     agencies, including municipal and quasi-municipal

     corporations, unless otherwise expressly provided by law,

     shall be publicly held and open to all citizens at all

     times, except as hereinafter provided.



     No formal action of any kind shall be introduced,

     deliberated upon or adopted at any closed executive session

     or closed meeting of any such body.



     (3)       Nothing herein contained shall prevent executive

               or closed sessions for purposes of:



          (a)  Deliberating after judicial or quasi-judicial

               trial or hearing."



When the two statutes are construed together we think it clear

that where a municipal board, such as the instant Board of

Appeals, is acting in a quasi-judicial capacity, all meetings

in the nature of hearings held on a pending appeal must be open

to the public, but that closed executive sessions may then

be held for the purpose of deliberating to determine what

decision should be made.



The instant Board of Appeals, upon conclusion of the open

hearings held on the pending appeal, held several executive

sessions for the purpose of deliberation.



The dates of these sessions were August 29, September 7,

September 19, and October 5, 1961.
TOP
PREVIOUS
NEXT
PAGE 538
At the October 5th session the board, by the affirmative

vote of all five members, voted to revoke the building

permit which had been issued to Modern on February 2, 1961.



A further executive session was held on October 10, 1961,

but the only business apparently transacted was the chairman's

signing the typed decision which revoked the permit.



The question arises as to whether the taking of the vote,

whereby the board determined the appeal, could properly

take place at an executive session or whether it was

required to be taken at a meeting open to the public.



Sullivan v. Northwest Garage, Inc. (1960), 223 Md. 544,

165 A.2d 881, held that under a Maryland statute, which

required the meetings of a municipal zoning board of

appeals to be public, such board after the public

hearings might deliberate and vote on the

pending matter in private.



In its opinion the Maryland court stated (233 Md. at p. 550):



     "The weight of such authority as there is supports our

     conclusion that the hearings of the Board must be public but

     that the deliberations of the Board after the hearing is

     completed may be in private.



58 Am. Jur. Zoning Section 222; Keiser v.



Inhabitants of City of Plainfield (Sup. Ct. N. J.),

159 A. 785, 786;



St. John's Roman Catholic Church v. Board of Adjustments

(Conn.) 8 A.2d 1, 4;



School District No. 9 v. District Boundary Board (Wyo.),

351 P.2d 106, 110."



A case contra to Sullivan v. Northwest Garage, Inc., is Blum v.

Board of Zoning & Appeals (1956),   1 Misc. 2d 668,

                                  149 N. Y. Supp. 2d 5.



We deem the majority rule followed in the

Sullivan Case to be the preferable rule.



We cannot believe the legislature intended that the board,

after concluding its deliberations in executive sessions,

was then required to schedule a public meeting and publish

notice thereof in order to record the vote embodying the

result reached in a prior executive session.





It seems to us that voting is an integral part of deliberating

and merely formalizes the result reached

in the deliberating process.
TOP
PREVIOUS
NEXT
PAGE 539
However, we do find that certain occurrences which took

place at some of the board's executive sessions did

violate par. 3 of Section 62.23(7)(e) and

Section 14.90, Stats. 1959.



In addition to the members of the board and their counsel

(an assistant city attorney), the building inspector,

or a representative of his office, and a representative

of the city planning commission attended some

of these executive sessions.



The views of these representatives were communicated

to the board at the closed sessions of the board.



Not only did this exceed the scope of permissible deliberation at

an executive session, but it constituted improper board conduct

even if there had been no statute prohibiting it.



Clearly, it is improper for an administrative agency, when acting

in a quasi-judicial capacity, to base a decision or finding upon

evidence or information obtained without the presence of

and notice to the interested parties, and not made

known to them prior to the decision.



See Annotation in 18 A.L.R.2d 552, and 1 Davis, Administrative

Law Treatise, pp. 412-415, Section 7.02, to such effect.



This principle was recognized by this court in International

Harvester Co. v. Industrial Comm. (1914),

157 Wis. 167, 147 N.W. 53.



However, it was not improper for the board to permit its attorney

to be present at the executive sessions or in then soliciting his

legal advice with respect to issues raised by the pending appeal.



If we believed that there was any probability that information

improperly received at executive board sessions might have

influenced the board's decision, we would reverse and direct

the circuit court to set aside the board's decision and remand

for further proceedings in the nature of a new trial.



However, our review of the record convinces us that it would not

support a decision in favor of sustaining the building permit, if

such a decision would have been made.
TOP
PREVIOUS
NEXT
PAGE 540
The evidence conclusively establishes that washing cars would be

one of the principal business uses to which the affected premises

would be put upon installation of the proposed conveyor car wash.



We, therefore, find that the error committed did not influence

the board's decision.



Absence of Board Members from Meetings.



Par. 9 of Section 62.23(7)(e), Stats. 1959, requires the

concurring vote of four of the five board members in order

to reverse an order of the building inspector.



Here all five members voted to revoke the permit.



Appellants contend, however, that three board members

were absent from certain board meetings, and that this

disqualified them from voting.



These absences were as follows: Caravella was absent from the

entire July 6, 1961, hearing; Chairman Christ was absent from a

part of the June 1, 1961, hearing, but was present at a

considerable portion thereof; and Mrs. Podkomorski was

absent from the October 10, 1961, executive session.



Since the concluding final vote was taken at the October 5, 1961,

executive session, we deem the October 10, 1961,

executive session is without legal significance.



Therefore, Mrs. Podkomorski's absence from this latter meeting

could not reach back and retroactively disqualify

her vote at the October 5th executive session.



We find it unnecessary to decide whether Caravella's absence

from the entire July 6, 1961, hearing disqualified him from

voting, because there would be four valid votes in favor of

revocation if both Mrs. Podkomorski and 

Chairman Christ were not disqualified.



Thus the crucial absence is that of Chairman Christ from part

of the June 1, 1961, hearing, such absence having

occurred during the middle portion of that hearing.



In resolving this issue we consider the absence of a member of an

administrative agency (while acting in a quasi-judicial

capacity), from a portion of a hearing stands in a

different category than the absence of a juror

from the courtroom during a portion of the trial.
TOP
PREVIOUS
NEXT
PAGE 541
In the latter case of course the verdict would be void.



Courts should be careful not to lay down such stringent rules

with respect to administrative agencies as to hamstring their

efficient operation.



This court in Wright v. Industrial Comm.



(1960), 10 Wis.2d 653, 103 N.W.2d 531, held there was no denial

of due process where two different examiners in a workmen's

compensation case separately conducted hearings and

then both joined in the findings and order.



Inherent in this determination was the assumption that each

examiner was in some manner adequately informed of the nature

of the material testimony given at the hearing conducted

by the other examiner.



In the instant case it is not improbable that Christ was

advised by one of his fellow board members, or by the

reporter, of the nature of the testimony given during

his absence during part of the hearing.



Appellants made no attempt to question Christ

as to whether this did or did not occur.



If he had been adequately so informed of what had transpired

during his absence, we would not hold him to have been

disqualified to vote at the October 5th meeting.



While our decision on this issue is contra to Koslow v. Board of

Zoning Appeals (1955), 19 Conn. Sup. 303, 112 A.2d 513,

we are not persuaded by that authority.



Further, we deem this to be a proper case to invoke the

presumption of regularity, and assume, in the absence of

any showing to the contrary, that Christ had been

adequately informed.



Cf. Marshall Drainage Dist. v. Festge (1956), 272 Wis. 114, 118,

74 N.W.2d 616, and State ex rel. Nelson v. Rock County (1955),

271 Wis. 312, 316, 73 N.W.2d 564.



Appellants contend that the board itself was disqualified

from proceeding with a hearing unless all five members



were at all times present, and cite Sesnovich v. Board of Appeal

(1943), 313 Mass. 393, 47 N.E.2d 943.
TOP
PREVIOUS
NEXT
PAGE 542
There a decision of a zoning board of appeals was held void

because of the absence of a member from the hearing even though

the absent member before voting on the final decision had read a

transcript of the testimony and viewed the premises.



The Massachusetts court construed the applicable statute as

requiring the presence of the "entire membership of the board" at

the hearing.



We read no such requirement into the provisions of Section

62.23(7)(e), Stats. 1959.



Therefore, it is our conclusion that the absence of Christ from

part of the June 1, 1961, hearing was not in itself a

jurisdictional defect which disqualified him from voting to

revoke the permit or which rendered the board's decision void.



Issue of Mootness.



On April 28, 1961, the applicable zoning ordinance was amended

so as to prohibit automobile washing or cleaning stations which

employed a conveyor system.[fn2] Because of this amendment,

appellants argue that the appeal before the board

was rendered moot.



They assert that the grounds of objection, viz., that automobile

washing would constitute a principal business use, was legislated

out of the ordinance by this amendment.



We consider this contention to be without merit.



The chief reason why automobile washing would have become a

principal business use was because under the permit a

conveyor-system car wash was to be installed.



The April 28, 1961, amendment prohibits a conveyor-system car

wash in a local business district.



Therefore, appellants will never be able to install a

conveyor-system car wash on the premises so long as the amended

ordinance stands in its present form unless the validity of the

February 2, 1961, permit is ultimately upheld.
TOP
PREVIOUS
NEXT
PAGE 543
As stated in State v. Zisch (1943), 243 Wis. 175, 177, 9 N.W.2d

625, "A case is moot when a determination is sought `upon some

matter which, when rendered, for any reason, cannot have any

practical legal effect upon a then existing controversy.'"

Clearly such was not the case here.



Constitutionality Issue.



Appellants' final contention is that if the board's revocation

of the building permit is allowed to stand it will work such a

discriminatory enforcement of the applicable zoning law

prohibition as to constitute a denial of the

equal-protection-of-the-laws clause of

the Fourteenth amendment to

the United States constitution.



The record is very meager on this issue of discriminatory

enforcement.



The building inspector testified that six or eight building

permits had been issued for combination service and

automobile-washing stations in local business districts.



These were not enumerated, but he identified five of these in

answer to questions put by Modern's counsel.



In one case he said the conditions were similar to those of the

instant Cities Service's premises, possibly implying thereby

that the car-washing equipment was of the conveyor type.



There was no express showing made that these other permits

related to conveyor-system car washes as distinguished

from a stationary washing rack.



There also is completely lacking any evidence as to whether

these permits were issued before or after Post and

Refkin filed their joint appeal.



This is material because until then the building inspector

had erroneously interpreted the ordinance as permitting

car washing as long as it was not the predominant

business use of the premises.



However, of even more significance is the complete absence of

any evidence that any property owners in the vicinity of any of

these other combination service and washing stations ever

protested against the issuance of these other building

permits or filed any appeal with the Board of Appeals.
TOP
PREVIOUS
NEXT
PAGE 544
Post should not be denied his right to have the ordinance

enforced in this instance because property owners elsewhere

may have been indifferent to having the ordinance enforced.



Even if there had been evidence that the city itself had

enforced the ordinance in one instance and not in others,

this would not in itself establish a violation of the

equal-protection-of-the-laws clause of the Fourteenth amendment.



This was pointed out by Mr. Chief Justice STONE in

Snowden v. Hughes (1944),

321 U.S. 1, 8, 9, 64 Sup. Ct. 397, 88 L. Ed. 497,



wherein he declared:



     "The unlawful administration by state officers of a state

     statute fair on its face, resulting in its unequal

     application to those who are entitled to be

     treated alike, is not a denial of equal

     protection unless there is shown to be

     present in it an element of intentional

     or purposeful discrimination....But a

     discriminatory purpose is not presumed,..."



See also Nick v. State Highway Comm., ante,

Pages 489, 496, 124 N.W.2d 574.



Upon the evidence before us we find no violation of the

Fourteenth amendment.



By the Court. Ä Judgment affirmed.



[fn1]     Section 16-5 12 Milwaukee Code of Ordinances

          (as amended by Ordinance No. 29, April 28, 1961)

          now prohibits from local business districts,

          "Washing or cleaning stations for automobiles

          employing a mechanical conveyor system for the

          movement of the vehicles."



[fn2]     See footnote 1, supra.
TOP
PREVIOUS
NEXT
PAGE 545


RELATED CITATIONS
PENDING