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COURT OF APPEALS
NOTICE
DECISION
DATED AND FILED                                                 This opinion is subject to further editing.   If
published, the official version will appear in
the bound volume of the Official Reports.
December 22, 2010
A party may file with the Supreme Court a
A. John Voelker                                                                                                    petition to review an adverse decision by the
Acting Clerk of Court of Appeals                                                                                   Court of Appeals.   See WIS. STAT. § 808.10
                                                                                                                   and RULE 809.62.
                                                                                                                   Cir. Ct. No.   2009CV2324
Appeal No.                                                      2010AP70
STATE OF WISCONSIN                                                                                                 IN COURT OF APPEALS
                                                                                                                   DISTRICT II
LINDA ACEVEDO,
PLAINTIFF-APPELLANT,
V.
CITY OF KENOSHA,
DEFENDANT-RESPONDENT,
CITY OF KENOSHA ZONING BOARD OF APPEALS,
DEFENDANT.
APPEAL from an order of the circuit court for Kenosha County:
DAVID M. BASTIANELLI, Judge.  Affirmed.
Before Neubauer, P.J., Anderson and Reilly, JJ.




No.   2010AP70
¶1                                                                                          ANDERSON, J.     On September 23, 2009, Linda Acevedo filed a
certiorari action in Kenosha county circuit court.   The action named only the City
of Kenosha as the defendant.   The City moved to dismiss Acevedo’s lawsuit on
the basis that the action failed to state a claim for which relief could be granted.   In
particular, the City argued that Acevedo’s claim should have been against the City
of Kenosha Zoning Board of Appeals, which, the City contends, is a separate body
politic.   The City further asserted that the City was not a proper party to the action.
After the City filed its motion to dismiss, Acevedo amended her complaint to add
the Board as a defendant.   Following briefing and oral argument, the court granted
the City’s motion to dismiss and an order to that effect was entered by the court on
November 23, 2009.   Acevedo appeals the circuit court’s order dismissing the City
as  a  party  to  her  action  in  certiorari.    Because  the  circuit  court  correctly
determined that the City is not a proper party to the suit, we affirm.
¶2                                                                                          Acevedo is a state licensed child day care center operator.   In March
2007, Acevedo began operating a child day care center in the lower unit of a two-
family residential dwelling “zoned RG-1 General Residential District within the
meaning of Section 3.08 of the Zoning Ordinance for the City of Kenosha” and
located at 3823 10th Avenue, Kenosha, Wisconsin.   The property is owned by
Acevedo’s mother, Rose M. Franceschi.   Neither Acevedo nor Franceschi reside at
the property.
¶3                                                                                          In April 2009, Acevedo sought to obtain a license from the state to
operate a second child day care center in the upper unit of the property.   Beatrice
Riojas, a licensing supervisor from the Wisconsin Department of Children and
Families                                                                                    (WDCF),  contacted  Paula  Blise,  the  City  of  Kenosha  Zoning
Coordinator, with concerns about licensing another child care center at the same
residential property.    Riojas’s inquiry, on behalf of WDCF, for the first time
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No.   2010AP70
alerted the City of Kenosha Department of Neighborhood Services and Inspections
that Acevedo was seeking a license from WDCF to operate a child day care center
in the upper unit of the property.
¶4                                                                                        Blise informed Acevedo that the child day care center in the lower
unit and the proposed child day care center in the upper unit violated the City of
Kenosha  zoning  ordinance.    After  informing  Acevedo,  Blise—by  letter  dated
May 20, 2009—notified the property owner, Franceschi, of the zoning ordinance
violation.   Blise also notified Franceschi of the penalties for failing to comply with
the included directive to cease and desist all day care activities at the property by
May 30, 2009.
¶5                                                                                        On  or  about  July                                                    9,   2009,  Acevedo  filed  a  request  for  an
administrative appeal with the City of Kenosha Zoning Board of Appeals.   The
matter came before the Board for an evidentiary hearing on August  13,  2009.
After testimony and evidence was received, the Board affirmed the interpretation
of the City’s zoning ordinance by the zoning administrator and the Department of
Neighborhood Services and Inspections.   On August 25, 2009, the Board ordered
that Acevedo cease and desist all day care operations at the property and remove a
ground sign on the property.
¶6                                                                                        Thereafter, on September 23, 2009, Acevedo filed a certiorari action
in Kenosha county circuit court which initially named only the City and later was
amended to name the City and the Board.   The City successfully moved to dismiss
Acevedo’s lawsuit on the basis that the action failed to state a claim for which
relief could be granted.
¶7                                                                                        Whether a complaint states a claim upon which relief can be granted
presents a question of law.   Weber v. City of Cedarburg, 129 Wis. 2d 57, 64, 384
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No.   2010AP70
N.W.2d  333  (1986).    We review questions of law without deference to lower
courts.   See id.   Because Acevedo’s action comes to this court on appeal from a
motion to dismiss for failure to state a claim, only the allegations made within the
complaint are relevant to our decision.   See id.   In Torres v. Dean Health Plan,
Inc., 2005 WI App 89, ¶6, 282 Wis. 2d 725, 698 N.W.2d 107, we recapped our
well-settled standard of review:
A motion to dismiss a complaint for failure to state a claim
upon which relief can be granted tests the legal sufficiency
of  the  complaint.     All  facts  pleaded  and  reasonable
inferences that may be drawn from such facts are accepted
as true, but only for purposes of testing the complaint’s
legal  sufficiency.                                                                          Nevertheless,  legal  inferences  and
unreasonable inferences need not be accepted as true.   A
complaint should not be dismissed as legally insufficient
unless  it  appears  certain  that  a  plaintiff  cannot  recover
under any circumstances.   (Citations omitted.)
¶8                                                                                           Certiorari  is  an  extraordinary  remedy  by  which  courts  exercise
supervisory control over inferior tribunals, quasi-judicial bodies and officers.   See
State ex rel. Gaster v. Whitcher,  117 Wis.  668,  671-72,  94 N.W.  787  (1903).
Certiorari is used to test the validity of decisions made by administrative or quasi-
judicial bodies.   See Winkelman v. Town of Delafield, 2000 WI App 254, ¶3, 239
Wis. 2d 542, 546, 620 N.W.2d 438.   The scope of certiorari extends to questions
of  jurisdiction,  power  and  authority  of  the  inferior  tribunal  to  do  the  action
complained of as well as questions relating to the irregularity of the proceedings.
Id., ¶5.
¶9                                                                                           Acevedo appeals the circuit court’s order dismissing the City as a
party.   The issue on appeal is whether the City is the proper party for a writ of
certiorari challenging a decision of the Board.   The City contends that Acevedo’s
complaint sounding in certiorari cannot compel any action from the City and, as
such, fails to state a claim against the City.
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No.   2010AP70
¶10    Acevedo points to City News & Novelty, Inc. v. City of Waukesha,
231 Wis. 2d 93, 604 N.W.2d 870 (Ct. App. 1999), and Lake City Corp. v. City of
Mequon,  207 Wis.  2d  155,  558 N.W.2d 100 (1997), for the proposition that a
“certiorari plaintiff may properly name only the municipality itself as a defendant
in an action challenging the final actions of a board created by that municipality.”
¶11    We agree with the City that both City News and Lake  City are
distinguishable.    In neither case did the issue of  the propriety of  naming the
municipality arise; thus, while these cases name only the municipality, they are
distinguishable.   See State ex rel. Kulike v. Town Clerk, 132 Wis. 103, 111 N.W.
1129 (1907) (where the court, in referring to State ex rel. Hewitt v. Graves, 120
Wis. 607, 98 N.W. 516 (1904), stated that “the question of whether the writ was
properly directed or not was neither raised nor considered, therefore [it] cannot be
regarded as authority upon the question”).
¶12    Additionally, both City News and Lake City clearly indicate that a
review was made of the decision of the inferior tribunal.   City News applied for
renewal of its license.   City News, 231 Wis. 2d at 101.   The common council
passed a resolution one month later finding that City News had committed several
code violations and, therefore, denied its renewal application.    Id.    City News
requested review of the resolution and the common council affirmed the decision.
Id.  at                                                                                   102.    City  News  next  sought  administrative  review,  and  the  City  of
Waukesha Administrative Review Appeals Board affirmed the common council’s
decision.   Id.   City News then filed a certiorari action in the circuit court seeking
judicial review of the denial of its license renewal application.   Id.   The circuit
court  affirmed  the  City  of  Waukesha  Administrative  Review  Appeal  Board’s
determination.  City News appealed.   Id.
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No.   2010AP70
¶13    In Lake City, the City of Mequon sought review of a published
decision of the court of appeals which reversed and remanded a judgment of the
circuit court.   Lake City, 207 Wis. 2d at 157.   The court of appeals held that, under
WIS. STAT.  § 236.13(1)(c)  (1991-92),1 a local master plan is consistent with an
official map only to the extent the master plan reflects issues encompassed in the
official map.   Lake City, 207 Wis. 2d at 157-58.   Accordingly, the court of appeals
held that Mequon’s plan commission improperly denied preliminary plat approval
to Lake City Corporation on the grounds that the plat conflicted with an element
contained only in the master plan.   Id. at 158.   The supreme court concluded that,
under § 236.13(1)(c) (1991-92), a master plan is consistent with an official map if
any common elements contained in both the master plan and official map are not
contradictory.   Lake City, 207 Wis. 2d at 158.   It further concluded that a master
plan is consistent with an official map even if the master plan contains additional
elements that the official map does not.   Id.   It therefore held that a city plan
commission may rely on an element contained solely in a master plan to reject plat
approval.   Thus, the supreme court reversed the decision of the court of appeals.
Id.
¶14    Again, while City News and Lake City do indeed name only the
municipality,  we  deem it significant that in  neither  case  did the  issue  of  the
propriety of naming the municipality arise.   Given this distinction, neither case
aids in our analysis.
1  All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise
noted.
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No.   2010AP70
¶15    Looking for other support, Acevedo contends in her brief that the
statutory mechanism under which she took her appeal was that provided in the city
planning statute, WIS. STAT. § 62.23(7)(e)10.; however, Acevedo’s complaint fails
to allege that it is an action under § 62.23(7)(e)10.   It instead alleges that it is an
action brought pursuant to the judicial review statute, WIS. STAT. § 68.13.   In any
case, as with City News and Lake City, Acevedo’s position is not bolstered by the
language in either statute.
¶16    Looking   first   at   the   city   planning   statute,   WIS.                      STAT.
§ 62.23(7)(e)10. provides:
Any person or persons, jointly or severally aggrieved by
any decision of the board of appeals, or any taxpayer, or
any   officer,   department,   board   or   bureau   of   the
municipality, may, within  30 days after the filing of the
decision in the office of the board of appeals, commence an
action  seeking  the  remedy  available  by  certiorari.    The
court shall not stay proceedings upon the decision appealed
from, but may, on application, on notice to the board of
appeals and on due cause shown, grant a restraining order.
The board of appeals shall not be required to return the
original papers acted upon by it, but it shall be sufficient to
return certified or sworn copies thereof.   If necessary for
the proper disposition of the matter, the court may take
evidence, or appoint a referee to take evidence and report
findings of fact and conclusions of law as it directs, which
shall constitute a part of the proceedings upon which the
determination of the court shall be made.   The court may
reverse or  affirm,  wholly or  partly, or may modify, the
decision brought up for review.
This same statute, in a later subdivision, provides:
Costs shall not be allowed against the board unless it shall
appear  to  the  court  that  the  board  acted  with  gross
negligence or in bad faith, or with malice, in making the
decision appealed from.
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No.   2010AP70
Sec. 62.23(7)(e)14. (emphasis added).   Thus, the language of § 62.23, rather than
lend support to Acevedo’s argument, gives credence to the City’s.   It clearly and
unambiguously conveys that the mechanism for an appeal of a board of appeals
decision is an action in certiorari for review of the board’s decision.   Likewise,
Acevedo’s reliance on WIS. STAT. § 68.13(1) goes nowhere.   It, too, conveys that
the decision maker, i.e., the board, is the properly named party on certification;
why else would the court be instructed to “remand to the decision maker”?:
Any  party  to  a  proceeding  resulting  in  a  final
determination may seek review thereof by certiorari within
30 days of receipt of the final determination.    The court
may affirm or reverse the final determination, or remand to
the decision maker for further proceedings consistent with
the court’s decision.
¶17    This statutory interpretation is in harmony with the rule that the writ
of certiorari must go to the board or body whose acts are to be reviewed, otherwise
the court cannot obtain jurisdiction either of the subject matter or the persons
composing the board.    Kulike,  132 Wis. at  105.    That said, we do note two
exceptions  to  this  rule,  though  Acevedo’s  situation  does  not  fit  either:
(1)  “where specially provided by statute, or in particular cases of necessity, as
where the board or body whose acts are sought to be reviewed is not continuing or
has ceased to exist,” see id.; see also Weber v. Dodge Cnty. Planning & Dev.
Dep’t, 231 Wis. 2d 222, 225-26, 604 N.W.2d 297 (Ct. App. 1999), and (2) when
service requirements are ambiguous and there is an absence of a clear statutory
identity of the board or body, see Weber, 231 Wis. 2d at 227-28.   We agree with
the City that neither exception applies in this instance.
¶18    Here, regardless of which statute Acevedo hangs her hat on, the
language  of  both  WIS.  STAT.  §§ 62.23(7)(e)10.  and  68.13(1)  convey  that  the
decision maker, i.e., the board, is the properly named party on certification when
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No.   2010AP70
the board, as was the case here, made the decision from which Acevedo seeks
judicial review by certiorari.
¶19    Acevedo also cites to Driehaus v. Walworth County, 2009 WI App
63,  317 Wis. 2d 734, 767 N.W.2d 343, and Marris v. City of Cedarburg, 176
Wis. 2d 14, 498 N.W.2d 842 (1993), for the proposition that certiorari review of a
board’s determination may be sought “against both a municipality and its board or
commission.”   Again, as in City News and Lake City, the issue of who is the
proper party was not before the court.   For the reasons discussed earlier, we reject
these cases as authoritative on this issue.
¶20    Finally, Acevedo cites to Pleva v. Norquist, 195 F.3d 905 (7th Cir.
1999), for the argument2 that “[i]f the chair of a zoning board of appeals can be
removed at the pleasure of a city’s mayor … the board’s existence depends on its
parent municipality to such a degree that it hardly seems possible that such a board
is truly a separate political body.”
¶21    Pleva is readily distinguishable on its facts.    There, Pleva filed a
claim in  federal district court for the  Eastern District of  Wisconsin under  42
U.S.C. § 1983, alleging that Mayor Norquist’s politically motivated decisions to
reassign the position of chairperson and not to reappoint Pleva to the Milwaukee
Board of Zoning Appeals violated Pleva’s First and Fourteenth Amendment rights.
Pleva,  195 F.3d at  910.   Pleva also filed a claim under the ADEA,  29 U.S.C.
2  Acevedo makes other arguments in her appellate brief.   We have identified the main
issues raised, and we address only those issues.   See Libertarian Party v. State, 199 Wis. 2d 790,
801, 546 N.W.2d 424 (1996) (appellate court need not address issues that “lack sufficient merit to
warrant individual attention”); State v. Waste Mgmt., Inc., 81 Wis. 2d 555, 564, 261 N.W.2d 147
(1978) (“An appellate court is not a performing bear, required to dance to each and every tune
played on an appeal.”).
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No.   2010AP70
§ 621, alleging that the failure to reappoint him was due to his age.   Pleva, 195
F.3d  at  910-11.    Finally,  Pleva  filed state  law  claims for  breach  of  contract,
tortious interference with contract, defamation, conspiracy to injure reputation,
and civil conspiracy.    Id. at  911.    The district court dismissed Pleva’s federal
claims and state contract claims under F.R.C.P.  12(b)(6) for failure to state a
claim.  Pleva, 195 F.3d at 911.
¶22    Thus,  Pleva’s  case  bears  no  resemblance  to  Acevedo’s  case.
Moreover,  Pleva—a  federal  case  and  therefore  only  persuasive  authority—is
distinguishable for the same reason the state cases are:   there was no issue litigated
over whether the city was a proper party and any comments about how a zoning
board of appeals and a city are intertwined are, at most, dicta.
¶23    Finally, to further underscore the vain position Acevedo takes, we
note that the City, through the office of its city attorney, prosecuted the case
against Acevedo before the Board.
¶24    The circuit court correctly understood the distinction between the
City and the Board.   The circuit court properly dismissed the City as a defendant
in this action on the ground that Acevedo should have commenced her certiorari
action against the City of Kenosha Zoning Board of Appeals, not against the City.
By the Court.—Order affirmed.
Recommended for publication in the official reports.
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