COURT OF APPEALS

DECISION

DATED AND FILED

May 12, 2020

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2019AP159 Cir. Ct. No. 2018CV4856

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT I

HUMMINGBIRD STORAGE, LLC,

PETITIONER-APPELLANT,

V.

CITY OF MILWAUKEE BOARD OF ZONING APPEALS AND 

ACQUISITION B, LLC,

RESPONDENTS-RESPONDENTS.

APPEAL from an order of the circuit court for Milwaukee County: 

WILLIAM S. POCAN, Judge. Affirmed. 

Before Brash, P.J., Dugan and Fitzpatrick, JJ.

¶1 DUGAN, J. Hummingbird Storage, LLC, appeals an order

dismissing its action for certiorari review of the decision of the City of 

Milwaukee’s Board of Zoning Appeals (BOZA) allowing a use variance for a self-
No. 2019AP159

2

service storage facility at 6801 West Morgan Avenue (Morgan Avenue property) 

in the City. Acquisition B owns the Morgan Avenue property.

1

 

¶2 Hummingbird argues that the trial court erred as a matter of law by 

granting BOZA and Acquisition B’s motion to dismiss the action based on 

Hummingbird’s lack of standing to challenge BOZA’s decision. Hummingbird 

argues it has standing (1) as an aggrieved person, (2) as a taxpayer, and 

(3) because the use variance violates the City’s comprehensive plan. 

Hummingbird also argues that the criteria to establish standing for challengers of 

use variances should be expanded and that the trial court erred because it should 

have allowed Hummingbird to present evidence to support its claim of standing. 

We are not persuaded and, therefore, affirm. 

BACKGROUND

¶3 On June 7, 2018, Hummingbird filed a certiorari review action in the 

circuit court for Milwaukee County seeking review of BOZA’s decision to grant a

use variance2for the Morgan Avenue property in Milwaukee, which allows the 

property to be used as a self-service storage facility.

3

 Hummingbird owns a selfservice storage facility. 

 

1

 Acquisition B was not an original party to the action. On July 26, 2018, Acquisition B 

filed a motion to intervene in the action as a defendant and, on September 14, 2018, the trial court 

granted that motion. 

2

 “A use variance is one that permits a use other than that prescribed by the zoning 

ordinance in a particular district.” State ex rel. Ziervogel v. Washington Cty. Bd. of Adjustment, 

2004 WI 23, ¶21, 269 Wis. 2d 549, 676 N.W.2d 401 (citation omitted). 

3

 Matthew Mehring had a pending offer to purchase the Morgan Avenue property and he 

applied for the use variance. After BOZA granted the use variance, Mehring assigned his right to 

purchase the property to Acquisition B, which then purchased the Morgan Avenue property. 

(continued)
No. 2019AP159

3

¶4 A section of Hummingbird’s complaint alleged that Hummingbird 

had standing to challenge the use variance (1) as an aggrieved person, based on the 

proximity of its property to the Morgan Avenue property and because “the 

properties are each located within competing neighborhood shopping districts 

formed at neighboring intersection”; and (2) as a property taxpayer. Hummingbird 

alleged that it had the express statutory rights to challenge BOZA’s actions as both 

an aggrieved person and as a taxpayer. 

¶5 On August 3, 2018, BOZA filed a motion seeking an order 

dismissing the action on the ground that Hummingbird lacked standing to bring 

the action. On September 21, 2018, Hummingbird filed an amended complaint “to 

address more specifically the issue of pecuniary loss.” 

¶6 The trial court conducted a hearing on the motion to dismiss for lack 

of standing on November 9, 2018, where the parties presented arguments and 

issued an oral decision granting the motion to dismiss the action. The trial court 

concluded that Hummingbird did not have standing as an aggrieved person 

because it did not allege any facts to support its assumption that the Morgan 

Avenue facility would be a direct competitor and would impact Hummingbird’s 

market share simply because the two facilities are located seven-tenths of a mile 

apart. The trial court also held Hummingbird did not have standing as taxpayer 

because it did not allege that there was any public expenditure or that any public 

body acted unlawfully or unconstitutionally. The trial court further held that the 

 

Hummingbird subsequently filed an amended complaint; however, that complaint 

incorporates by reference all the allegations of the original complaint. 
No. 2019AP159

4

added allegations of the amended complaint pointed to personal pecuniary losses, 

not losses accruing to a class of taxpayers. 

¶7 Thereafter, the trial court issued a short written order granting the 

motion and an order for judgment. Judgment was entered accordingly. 

¶8 This appeal followed. 

DISCUSSION

¶9 Hummingbird argues that the trial court erred as a matter of law 

when it concluded that Hummingbird lacked standing to bring this action. 

Hummingbird’s opening brief argues it has standing (1) as an aggrieved person, 

(2) as a taxpayer, and (3) because BOZA’s grant of the use variance violates the 

City’s comprehensive plan. Hummingbird also argues that the criteria to establish

standing for challengers of use variances should be expanded, and that the trial 

court should have allowed it to present evidence in support of its claim of 

standing. 

¶10 Acquisition B argues that Hummingbird is neither an aggrieved 

person nor a taxpayer within the meaning of the applicable statute, Hummingbird

has no legally protected interest in BOZA’s compliance with the comprehensive 

plan, and Hummingbird will not benefit by submitting evidence. 

¶11 BOZA adopts Acquisition B’s arguments that Hummingbird lacks 

standing either as an aggrieved person or a taxpayer. BOZA further argues that 

this court should reject Hummingbird’s policy argument for expanding standing 

for use variance challengers, and that any allegations by Hummingbird that the use 

variance violates the City’s comprehensive plan does not create an independent 

basis for standing under the statute. BOZA also argues that Hummingbird offers 
No. 2019AP159

5

no record citations to support its assertion that it contended in the trial court that 

the trial court should allow it to present evidentiary support for its claim of 

standing.

4

 

I. The standard of review and the applicable law

¶12 This court’s “review of a motion to dismiss for lack of standing is 

de novo.” See Town of Delavan v. City of Delavan, 160 Wis. 2d 403, 410, 466 

N.W.2d 227 (Ct. App. 1991). This court also engages in de novo consideration of 

issues of statutory construction. See Tateoka v. City of Waukesha Bd. of Zoning 

Appeals, 220 Wis. 2d 656, 667, 583 N.W.2d 871 (Ct. App. 1998). Statutory 

interpretation begins with the statute’s plain language. See State ex rel. Kalal v. 

Circuit Court for Dane Cty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110. 

“Statutory language is given its common, ordinary, and accepted meaning[.]” Id.

¶13 “[A] motion to dismiss test[s] the legal sufficiency of the facts 

alleged in the complaint.” State ex rel. Myers v. Swenson, 2004 WI App 224, ¶6, 

277 Wis. 2d 749, 691 N.W.2d 357. On review, the court accepts “all properly 

pleaded” facts in the complaint as true and assumes all reasonable inferences 

deriving from them. First Nat’l Bank of Wis. Rapids v. Dickinson, 103 Wis. 2d 

428, 432, 308 N.W.2d 910 (Ct. App. 1981). The court, however, is not required to 

 

4

 BOZA further argues that, to the extent that this court considers the issue, 

Hummingbird provides no supporting authority; WIS. STAT. § 62.23(7)(e)10. (2017-18) does not 

require the trial court to take evidence, rather it provides that the trial court may take evidence 

“[i]f necessary for the proper disposition of the matter”; and that the only reasonable inferences to 

be drawn from Hummingbird’s allegations do not establish its standing to challenge the use 

variance at issue. 

All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise 

noted.
No. 2019AP159

6

accept legal conclusions contained in the complaint. Cattau v. National Ins. 

Servs. of Wis., Inc., 2019 WI 46, ¶5, 386 Wis. 2d 515, 926 N.W.2d 756. 

¶14 WISCONSIN STAT. § 62.23(7)(e)10. provides for certiorari review of 

zoning decisions and states, in pertinent part, “[a]ny person ... aggrieved by any 

decision of the board of appeals, or any taxpayer ... may ... commence an action 

seeking the remedy available by certiorari.” A person “is aggrieved by an 

administrative decision when that decision has a direct effect on [its] legally 

protected interests.” State ex rel. Brookside Poultry Farms, Inc. v. Jefferson Cty.

Bd. of Adjustment, 125 Wis. 2d 387, 390, 373 N.W.2d 450 (Ct. App. 1985).

I. Hummingbird has conceded that its allegations do not 

establish its standing as a person aggrieved or as a 

taxpayer

¶15 In its initial brief, Hummingbird argues that the allegations of the 

complaint establish that, under WIS. STAT. § 62.23(7)(e)10., it is both a person 

aggrieved and a taxpayer that will sustain pecuniary losses. Hummingbird cites 

Brookside Poultry Farms, Inc., 125 Wis. 2d at 390 (regarding the term “person 

aggrieved”) and City of Appleton v. Town of Menasha, 142 Wis. 2d 870, 878, 419 

N.W.2d 249 (1988) (regarding the standing of a taxpayer). 

¶16 By contrast, Acquisition B argues that Hummingbird is not a person 

“aggrieved by a decision of a board of zoning appeals” because BOZA’s decision 

to grant the use variance did not have “a direct effect on [Hummingbird’s] legally 

protected interests.” See Brookside Poultry Farms, Inc., 125 Wis. 2d at 390. 

Regarding the term “taxpayer” in WIS. STAT. § 62.23(7)(e)10., Acquisition B 

states that it is not aware of any published case addressing its meaning; however, 

Acquisition B argues that the term taxpayer should be construed “to be similar to 
No. 2019AP159

7

the definition of” a person aggrieved in the same statute.

5

 Acquisition B suggests 

that a taxpayer may only appeal if he or she has sustained a loss or has been 

negatively impacted by a BOZA decision, and that a taxpayer appealing a BOZA 

decision would have standing for the same reason as would a plaintiff in a 

taxpayer’s action. Specifically, in a taxpayer action, the taxpayer “must allege ... 

a direct and personal pecuniary loss, a damage to himself different in character 

from the damage sustained by the general public.” City of Appleton, 142 Wis. 2d 

at 877.

¶17 Hummingbird does not address Acquisition B’s arguments that it is 

neither a person aggrieved nor a taxpayer under WIS. STAT. § 62.23(7)(e)10. in its 

reply brief. We construe Hummingbird’s failure to refute Acquisition B’s 

arguments as a concession. See Charolais Breeding Ranches, Ltd. v. FPC Secs. 

Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979) (holding that a 

party’s failure to refute an argument constitutes a concession). Therefore, we 

deem Hummingbird to have conceded that its allegations do not establish its 

standing under § 62.23(7)(e)10., either as an aggrieved person or as a taxpayer. 

II. Hummingbird has conceded that it has not established 

standing based on any allegation that the use variance 

violates the City’s comprehensive plan

¶18 Hummingbird also argues as an independent basis for standing based 

on its claim that BOZA’s grant of the use variance violates the City’s 

 

5

 Acquisition B relies on the “in pari materia rule.” “The statutory construction doctrine 

of in pari materia requires a court to read, apply, and construe statutes relating to the same 

subject matter together.” Winebow, Inc. v. Capitol-Husting Co., Inc., 2018 WI 60, ¶30 n.6, 381 

Wis. 2d 732, 914 N.W.2d 631. We do not address this argument of Acquisition B because we 

resolve the case on other grounds. See State v. Castillo, 213 Wis. 2d 488, 492, 570 N.W.2d 44 

(1997) (stating that appellate courts should resolve appeals “on the narrowest possible grounds”).
No. 2019AP159

8

comprehensive plan for the area where the Morgan Avenue property is located. 

Both BOZA and Acquisition B filed responses opposing this argument. 

Hummingbird filed a reply brief regarding Acquisition B’s response to this 

argument; however, it filed no reply to BOZA’s arguments. 

¶19 BOZA argues that, because Hummingbird cites neither authority to 

support its contention nor specific portions of its complaint, this court need not 

address Hummingbird’s argument that it has standing based on its claim that the 

use variance violates the City’s comprehensive plan. BOZA further argues that

WIS. STAT. § 62.23(7)(e)10. unambiguously creates two categories of individuals 

with standing to seek review of a BOZA decision—aggrieved persons and 

taxpayers, and that Hummingbird has not explained how or why the court should 

interpret § 62.23(7)(e)10. as creating a third basis for standing. Acquisition B also 

argues that Hummingbird cites no authority in support of its contention. 

¶20 Hummingbird does not address BOZA’s arguments in its reply brief. 

Nor does it address Acquisition B’s argument that it cites no supporting authority. 

We, therefore, conclude that Hummingbird conceded those arguments. See 

Charolais Breeding Ranches, Ltd., 90 Wis. 2d at 109 (holding that a party’s 

failure to refute an argument constitutes a concession).6 

¶21 Furthermore, Hummingbird’s reply brief focuses solely on 

Hummingbird’s policy argument that a variance which is inconsistent with the 

 

6 Acquisition B makes additional arguments in opposing Hummingbird’s claim that it 

has standing based on Hummingbird’s interest in having BOZA comply with the comprehensive 

plan when granting use variances. However, we decline to address them. See Castillo, 213 

Wis. 2d at 492 (stating that appellate courts should resolve appeals “on the narrowest possible 

grounds”).
No. 2019AP159

9

City’s comprehensive plan should create another method of acquiring standing for 

commencing an action against a BOZA decision. Both Acquisition B and BOZA 

assert that Hummingbird provides no legal support for this contention that such a 

violation would create standing in this matter for Hummingbird. Hummingbird 

concedes this, but urges this court to consider the policy argument. We decline. 

The standing for commencing this type of action is specifically and 

unambiguously set forth in WIS. STAT. § 62.23(7)(e)10. “One of the maxims of 

statutory construction is that courts should not add words to a statute to give it a 

certain meaning.” Fond du Lac Cty. v. Town of Rosendale, 149 Wis. 2d 326, 

334, 440 N.W.2d 818 (Ct. App. 1989). We cannot add words to § 62.23(7)(e)10 

to create another method of acquiring standing for bringing this action that the 

legislature did not contemplate.

III. Hummingbird has conceded the record does not show that 

it asked to present evidence regarding damage to its 

protected property interests

¶22 Hummingbird argued in its opening brief that the trial court should 

have allowed it to present evidence to support its claim that it sustained damages 

to its protected property interests. BOZA countered that Hummingbird offered no 

record citations for its assertion that it had asked the trial court to permit it to 

provide evidence to support that claim. 

¶23 Hummingbird’s reply brief does not address the argument. We 

construe Hummingbird’s failure to refute the argument as a concession. See id. 

Therefore, we decline to further address the argument that the trial court should 

have allowed Hummingbird to present evidence to support its claim that it 
No. 2019AP159

10

sustained damages to its protected property interests or to further consider 

BOZA’s additional arguments related to the issue.

7

 

IV. The appeal is not frivolous 

¶24 Acquisition B seeks an award of sanctions arguing that 

Hummingbird’s appeal is frivolous under WIS. STAT. RULE 809.25(3)(c). The test 

is whether “under all the circumstances,” the appeal is “‘so indefensible that the 

party or his attorney should have known it to be frivolous.’” Baumeister v. 

Automated Prods., Inc., 2004 WI 148, ¶¶28, 30, 277 Wis. 2d 21, 690 N.W.2d 1 

(citation omitted). “In order to be awarded costs, fees, and reasonable attorney 

fees, the moving party must prove that the entire appeal presented was frivolous. 

If an argument advanced has arguable merit, then the appeal is not frivolous.” See 

id., ¶34. Although Hummingbird has not prevailed on appeal, and its single reply 

brief focused solely on its policy argument, we are not persuaded that its 

arguments on appeal are frivolous. See id., ¶27. Therefore, the motion for 

sanctions is denied. 

CONCLUSION

¶25 For the stated reasons, we affirm the trial court’s order dismissing 

Hummingbird’s action based on its lack of standing.

By the Court.—Order affirmed. 

Not recommended for publication in the official reports. 

 

7

 As an appellate court, we decide cases on the narrowest possible grounds. See Castillo, 

213 Wis. 2d at 492.