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Town’s denial of driveway permit based on unique ordinance upheld

September 26th, 2011

Ottman v. Town of Primrose
(Supreme Court of Wisconsin, March 22, 2011)

by Victoria Heldt

In 2001, the Ottmans had interest in a plot of land located in the Town of Primrose, which had been zoned “A-1 Exclusive Agricultural.”  Before purchasing the land, the Ottmans petitioned the Town of Primrose Board of Supervisors to approve their request to build a field road on the property.  Primrose operates under a Land Use Plan that ultimately works to “actively use and improve land use control measures which will discourage and prevent non-farm development in agricultural preservation areas.”   The Ottmans intended to turn the plot into a Christmas tree farm and needed access to the trees and to an agricultural accessory building they planned to build.  After discussion, the Board granted the Ottman’s permission to build an access off Primrose Center Road in order to enhance the agricultural use of the property.  The Board made special mention of the fact that permission to construct the field road could later be misinterpreted as approval for a residential driveway; however, it was concluded that a driveway permit would not be issued on the property because of safety issues.

Subsequently the Ottmans purchased the property, erected an agricultural accessory building, built a 500-foot gravel field road, planted trees on 18 acres, and rented 29 acres to Al Hanna (a neighbor) to grow field corn.  In 2004, the Ottmans filed a preliminary application for a driveway permit and an approval of the site plan for an area on which they planned to build a residence.  They contended that the Christmas tree farm would not be viable without a residence and, upon completion, the farm will produce an annual income of $30,000.  They planned to construct the home on the top of a hill about 200 feet north of the existing agricultural accessory building.  The Board denied the application primarily on the grounds that the Ottmans application failed to meet the Agricultural Productivity Clause contained in the Town of Primrose Driveway Ordinance.  The clause reads:  “No driveway shall be approved in the Town of Primrose if the Town Board finds that the driveway will adversely impact productive agricultural land, unless the town Board finds that the driveway is necessary to enhance the agricultural productivity of an adjacent parcel or the person requesting the permit can show that the parcel to be served by the driveway is capable of producing at least $6000 of gross income per year.  Under any circumstance, the Town Board shall approve a driveway with the least impact on agricultural land.”  A supervisor explained that the previous interpretation of the farm income requirement needed proof of actual income, not speculative income.  Since the Ottman’s did not show any evidence of actual income from the farm operations, their request was denied.

The Ottmans filed a certiorari action in the Dane County Circuit Court and, while the case was pending, both parties agreed to send the case back to the Town of Primrose for review under Wis. Stat. Ch. 68.  This statute allows a review of municipal determinations.  The review included a site visit and a special hearing where both sides presented exhibits, called witnesses, and provided testimony.  Again, the Board denied the Ottman’s request due to the failure to meet the Agricultural Productivity Clause’s farm income requirement.  The Board added that even if the Ottmans did meet that requirement, the Board would not have approved of the proposed site of the residence.  Since the site sat atop a hill and would require a longer driveway that would consume more amounts of agricultural land, the Board felt it did not meet the ‘least impact’ requirement of the Ordinance.

In the circuit court, the Ottmans amended their complaint to include new arguments.  They argued that the Board interpreted the law incorrectly when they stated that it required proof of current income from the property.  They argued that it should only require proof of the capability to produce income.  Additionally, the Ottmans argued that the Town’s denial was willfully arbitrary and biased, and that the proposed site for the residence would satisfy the ‘least impact’ clause.  The court noted that in a certiorari review a presumption of correctness is granted to the municipality’s decision, and that the permit denial was correctly reviewed under Chapter 68 rather than the statutory certiorari review.  It also stated that the Board accurately interpreted and applied both the “farm income” requirement and that “least impact” requirement within the ordinance.   The court of appeals affirmed.

The Ottmans brought three main questions to the Supreme Court, two of which are reviewed here:  1) does the deference given to land use decisions made by local governments prevent them from proper judicial review? 2) does the Board’s decision withstand judgment under customary standard of certiorari review?  They answered each question in turn.

In regards to the issue of deference given to the municipality’s decision, the Court stated that it was appropriate.  In this case, the ordinance was unique and did not closely resemble a state statute.  In these instances, the Court feels the local government is more attuned to local matters and therefore should be given more weight to its judgments.  The Court also refused to apply to the town’s decision the level of deference that it uses when reviewing state administrative agency’s decisions .

The Court also stated that the Board’s interpretation of the law was correct and withstands review.  It noted that the language in the ordinance required one to show that the land is capable of producing $6000 of annual income.  The word “show” suggests that an applicant must provide some proof beyond speculation of the land’s income-producing abilities.  The Ottmans failed to do this.  It also stated that this interpretation furthers the land use regulation’s goal of promoting the preservation of agricultural land and is therefore justified.  The Supreme Court affirmed the decision of the court of appeals.

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