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,
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.
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.
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.
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
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
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.
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.
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?
(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."
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.
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
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.
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
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;
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.
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."
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.
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.
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.
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
"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.
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, . . ."
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.
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."
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.
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.
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.
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.
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.
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
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
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.
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
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.
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.
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
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.
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
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.