DCPVAR-1983-01141 - Laserfiche WebLink

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Mr. Voges Page 2 April 28, 1983 Turning first to Appellant's argument based upon state law, I am of the opinion that it is not correct. First of all, it is doubtful whether the Board of Adjustment has the power to declare a provision of the ordinance unlawful. Certainly, the authority to do so is not found in the pertinent statutes. Indeed, under the rule of exclusio unius, it could be argued that by establish- ing a procedure for direct appeal to the circuit court in sec. 59.97(14), Stats., the legislature intended to exclude such powers from the jurisdiction of the Board of Adjustment. Finally, even if one were to concede that the Board of Adjustment might have concurrent jurisdiction with the circuit court to declare a zoning ordinance unlawful, the time limits of sec. 59.97(14), Stats., have evidently long since expired. I am assuming that the exceptions stated in sec. 59.97(14), Stats., are not available here. This aspect of Appellant's argument might also be construed to mean that the Board of Adjustment should not adopt a cons�ruc- tion of the ordinance which is contrary to state law. In my opinion, before taking into account the applicable state law, the Board of Adjustment should first view the language of the -ordinance in isolation to determine if it is clear and unambigous. In my opinion the ordinance is clear on its face and means simply as its says, that registered mineral extraction sites are not deemed abandoned because unworked for a period of time. If the Board of Adjustment agrees with this analysis and interpretation, then the issue goes back to whether such a provision is unlawful because contrary to state law, an issue which I believe is beyond the power of the Board of Adjustment to decide.. Only the Board of Adjustment can decide whether Appellant is correct in his view of the Zoning Administrator's interpretation of sec. 10.21(1), D. C. Ords. The plain language of the ordinance is certainly one factor the Board of Adjustment should consider in deciding the question. "In construing a language of the statute] on the terms." State v. statute, our first recourse is to statute, and we must interpret basis of the plain meaning of Derenne (1981) 102 Wis.2d 38, 45. Sec. 10.21(1), D. C. Ords., in pertinent part, reads: the the its "Mineral extraction sites that were registered as non- conforming sites under section 10.126(2)(a)5 shall not be considered abandoned or discontinued if the site is inactive for more than one year."