Shared driveway resulting from DOT condemnation may be undesirable, but does not constitute a taking

by Hannah Dankbar

Bailey v Wisconsin DOT
Wisconsin Court of Appeals, April 23, 2015

Bradley and Caroline Bailey appealed the circuit court’s dismissal of their takings claim against the Wisconsin DOT. The Baileys claimed that the DOT took part of their land that resulted in a change in access to their property and left them with an “uneconomic remnant” which, according to Wis. Stat. 32.05(3m) means that the “property remaining is of such size, shape or condition as to be of little value or of substantially impaired economic viability.”

The DOT condemned two parcels of the Baileys’ property as part of a highway construction project.  As part of this project the DOT moved the Baileys’ driveway and created a new access point from the highway. The Baileys claimed that the DOT’s actions left them with an “uneconomic remnant,” but the circuit court dismissed the complaint.

The Baileys first argued that the circuit court erred because the DOT failed to make a prima facie case that the “Baileys’ property had reasonable access after condemnation.”  The DOT responded that the question of reasonable access is separate from, and plays no part in a determination whether an uneconomic remnant exists under the statute.

The Court of Appeals dismissed the Baileys’ argument over any supposed stand-alone “reasonable access” issue. Instead it focused on whether the change in access left the Baileys with an uneconomic remnant. The Baileys submitted four affidavits in support of this claim: one by the Baileys’ attorney, two by individuals the Baileys listed as experts, and one by Caroline Bailey. The circuit court excluded everything in the attorney’s and experts’ affidavits based on lack of foundation and other admissibility factors.  Caroline Bailey’s affidavit was the exception. She stated that they now shared a driveway with a neighbor whom they find difficult and threatening, and with whom they believe they will be unable to agree on driveway maintenance.  The Court of Appeals found that this only demonstrated that the Baileys’ situation is undesirable; not that the remaining property is “of little value or of substantially impaired economic viability.”

Because of these reasons the Court of Appeals affirmed the circuit court’s dismissal.

DoT must pay just compensation for property erroneously recorded as “dedication” on plat map

by Hannah Dankbar and Gary Taylor

Somers USA, LLC v. Wisconsin Department of Transportation
Wisconsin Court of Appeals, March 25, 2015

Somers purchased about 47 acres in 2007 to build a truck stop off of I-94. At the time the state was planning on using about 9.5 of those acres for a frontage road, and about 3 acres for an on ramp for a highway project. An engineering company helped create the Certified Survey Map (CSM).  The initial draft of the CSM reserved both the 9.5-acre and the 3-acre parcels as “Future Wisconsin D.O.T. Right-of-Way.”  The Kenosha County Land Use Committee approved the CSM without any conditions or communications regarding land dedication for public use.

In 2008 when Somers recorded their final CSM it dedicated the 9.5 acres as “Road Dedication for Future Highway Purposes,” and the 3 acres as “a road reservation for potential future state highway purposes.” All parties agree that Somers never intended to dedicate land for the highway project and that none of the governmental bodies involved had required or asked for a dedication. Individuals involved with drafting and signing the CSM stated that they do not know how the “dedication” language wound up in the document.  The State thereafter built a frontage road and on-ramp on the two parcels without compensating Somers, relying on the “reservation” and “dedication” language in the CSM to give it a right to the property without any requirement to pay Somers for the land taken. Somers filed a complaint seeking just compensation for their land. The court ordered the state to pay Somers $500,000 plus attorney fees, costs and interest. The state appealed this decision.

The Fifth Amendment of the US Constitution and Article I section 13 of the Wisconsin Constitution prohibit the taking of land without just compensation. The state relied on Wis. Stat. §236.29(1) which states, ““[w]hen any plat is certified, signed, acknowledged and recorded as prescribed in this chapter, every donation or grant to the public … marked or noted as such on said plat shall be deemed a sufficient conveyance to vest the fee simple of all parcels of land so marked or noted.” However, for the state to rely on this statute the land must be dedicated according to proper procedure under Wis. Stat. §236.34(1m)(e), which require a local governing board to approve the dedication in the CSM. No governmental board involved in Somers’ development approved any road dedication or land grant for inclusion in the CSM; therefore, the CSM lacked the force and effect required to convey the property to the State.

The court went on:  “Undeterred by the evidence that no dedication was ever intended or approved, the State proffers the absurd argument that it can still take Somers’ property without compensation as it was entitled to rely on an invalid dedication in a CSM.”

When a court leads by calling an argument “absurd” you can anticipate the results….

The court found no legal dedication, and therefore found that the state owes just compensation to the Somers.






Single-family residential district provisions construed to allow short-term rentals

by Hannah Dankbar

Heef Realty and Investments, LLC & Sandra Desjardin v. City of Cedarburg Board of Appeals
Wisconsin Court of Appeals, February 4, 2015

In September 2012 two homeowners received citations for renting out their homes on a short-term basis. They appealed the citations, but their challenges were denied by the City of Cedarburg Board of Appeals (BoA), which concluded that the Cedarburg zoning ordinance did not allow the short-term rental of homes in a single-family residential district. The homeowners sued.  The question before the court was whether short-term rental is a permitted use of property in a single-family residential district.

The zoning ordinance in question reads in part:


(b)     Permitted Uses.

(1)     Single-family dwellings.

(2)     Family day care home.

(3)     Foster family home.

(4)     Community living arrangements which have a capacity for either (8) or fewer persons served by the program.

(5)     Essential services.

Zoning Code art. C, § 13-1-46.  Thus, the Ordinance lists “single-family dwellings” as a permitted use in a “single-family residential district.”

The BoA argued that to qualify as a single-family dwelling under the ordinance the property must be the occupant’s established residence.  The owners, on the other hand, argued that the plain language of the ordinance permits a short-term rental, that ambiguity in the ordinance must be resolved in favor of the free use of property, and that Wisconsin case law and that of other jurisdictions makes it clear that short-term rentals are a permitted use of a single-family dwelling.

The Court of Appeals sided with the owners.  It looked to a prior Wisconsin case in which the issue was a time-share, where thirteen families would own the property and each would use it for four weeks per year.  The court in that case reasoned that the use constituted a single-family dwelling because only one family would be staying in the property at a time.  According to the court the same reasoning holds true for short-term leases: the property will only be used by family at at time.  The ordinance does not require occupancy over a period of time, and the BoA cannot arbitrarily impose such a restriction.  Construing the ordinance in favor of the free use of property demands that short-term rentals be allowed in the city’s RS-5 district.

Landowner’s marina operation not legally nonconforming, but rather was limited, occasional, sporadic

by Hannah Dankbar

Walworth County v West Rod Cottage Industries LLC
Wisconsin Court of Appeals, January 14, 2015

Fred’s Tap is located on Lake Beulah in Walworth County. It opened in 1961 and consists of two pieces of land divided by Stringers Bridge Road. The “tavern” parcel is adjacent to a channel leading into Lake Beulah, and the “lake” parcel consists of a cottage, garage, and parking area along the main body of Lake Beulah. Both properties have areas to moor boats. West Rod bought the land of Fred’s Tap in the early 2000s.

In 1971 Walworth County enacted a shoreline zoning ordinance (§ 74-179) which zoned the tavern parcel as B-3, Waterfront Business District. In this area ten or fewer boat rentals and “boat liveries” are allowed. Conditional uses allowed in B-3 include, “[t]averns and bars, [y]achting clubs and marinas, and boat liveries” (which the court assumes to be liveries operating with more than ten boats). The county zoned the lake parcel as C-4, Lowland Resource Conservation District. Marinas and boat liveries are prohibited in this district, but boating is allowed.

In 2012 the County issued a citation to West Rod for operating a boat marina/access cite in the C-4 zoning district.”  The trial court upheld the citation, and West Rod appealed.  The questions in this case are whether the use the County is trying to prevent was a use that lawfully existed when the zoning was first imposed upon the lake parcel, and if so, whether that use continued uninterrupted after the zoning ordinance was enacted.

The Wisconsin Court of Appeals recognized that a legal nonconforming use is (1) an active and actual use of the land and buildings that existed prior to the commencement of the zoning ordinance and (2) that has continued in the same or a related way until the present. The burden is on the property owner to prove by a preponderance of evidence that the nonconforming use existed at the time of the adoption of the ordinance and has continued since. This burden includes the requirement that the property owner show that the use was “so active and actual that it can be said he [or she] has acquired a ‘vested interest’ in its continuance.”

From this statement of the law the court concluded:

  • The leasing of boat slips is the “use” at issue;
  • The County has the burden to prove that Fred’s Tap was leasing boat slips and that such activity was not allowed without a conditional use permit as to the “tavern” parcel and not at all on the “lake” parcel; and
  • West Rod bears the burden to prove by a preponderance of the evidence that its leasing of boat slips was an active and actual use that existed prior to 1971 and has continued as the same or a related use until the present such that it is a valid nonconforming use.

After chastising both West Rod and the County for “fundamental deficits” in their arguments, the court concluded that the County had met its burden to prove that Fred’s Tap was using its property to rent boats in 2011 in violation of the code, but that West Rod failed to meet its burden to show that a valid nonconforming use of the property existed.  The evidence at best showed a limited and occasional rental of boat slips as of 1971 and thereafter until 2010 when West Rod began large-scale boat slip rentals.  West Rod’s evidence may have been sufficient had the use at issue been the rental of boats (a “boat livery” business), but it was not sufficient to show that a marina was actively operating either prior to 1971 or in the years up to 2010.

Judgment for the County was affirmed.

Junk vehicle ordinance not a traffic regulation; neither overbroad nor vague

by Hannah Dankbar

Village of North Hudson v Randy Krongard
(Wisconsin Court of Appeals, November 18, 2014)

In November 2011 Krongard received two citations from Village of North Hudson for violating article II, chapter 90, § 44 of the Village Code by having two junk vehicles (cars without current registration) in plain view on his property.

Krongard pleaded not guilty in municipal court, but failed to show for his trial. He showed up a few months later with counsel seeking to vacate the municipal court judgment against him by saying that the Village ordinance is void, unlawful and invalid as it is preempted by, contrary and inconsistent with Wisconsin traffic regulations. The municipal court refused to vacate the judgment.  Krongard’s appeal was also dismissed by the circuit court. Krongard then appealed to the court of appeals.

Krongard claimed the Village’s ordinance conflicted with state traffic regulations in chapters 341 to 348 and 350.  Krongard argued that The Village’s ordinance “impermissibly defines unregistered vehicles as junk vehicles and regulates unregistered vehicles on private property.”

The Village argued that its ordinance and the state traffic regulations could not be contradictory because they regulated “two completely different issues.”  While the village ordinance is “concerned with the upkeep of private property,” the state traffic regulations were concerned “with the licensing, regulation of, outfitting and operation of vehicles[.]”

The circuit court decided, “this regulation, because of the way it is written, its location within the Village Ordinances, and the Village’s alternative definition of junk vehicle, falls under the Village’s ‘health, safety, welfare’ power granted in Wis. Stat. § 61.34.”  It also found the ordinance was a constitutionally valid exercise of that ‘health, safety, and welfare’ power.  As a result, the circuit court denied Krongard’s motion to vacate the default judgment. Krongard appealed to the court of appeals.

Krongard argued that because the village ordinance concerns motor vehicles, it must be a traffic regulation. The Village argued that its ordinance only addresses the problem of uncovered junk vehicles and has nothing to do with the operation of motor vehicles on highways or city streets.  Rather, as the circuit court correctly noted it “simply requires owners of inoperable or unlicensed vehicles to keep their vehicles out of the public’s view, either by storage in a fully enclosed garage or by weatherproof, non transparent commercial car cover.”

The court rejected Krongard’s argument that the village ordinance is a traffic regulation. It stated that Krongard’s argument “ignores the fact that § 90-44 does not affect—directly or incidentally—motor vehicle operation. Rather, as the circuit court aptly noted on remand, it ‘simply requires owners of inoperable or unlicensed vehicles to keep their vehicles out of the public’s view, either by storage in a fully enclosed garage or by weatherproof, non transparent commercial car cover.’”

Regarding the constitutionality of the ordinance, Krongard raises due process concerns that the Village’s provisions in Article II are overbroad and vague.

An ordinance is vague if it is “so obscure that [persons] of ordinary intelligence must necessarily guess as to its meaning and differ as to its applicability.” It is overbroad “when its language, given its normal meaning, is so sweeping that its sanctions may be applied to conduct which the state is not permitted to regulate.” The court found “no indication that Krongard could reasonably have any question as to what constituted a violation of the village ordinance, or the consequences for such a violation.”

The court dismissed all of Krongard’s claims.

Insufficient evidence to establish uncut lawn was a public nuisance

by Rachel Greifenkamp and Gary Taylor

County of Forest v. Dwayne Pasternak
(Wisconsin Court of Appeals, July 1, 2014)

In Forest County, Wisconsin Robert Lawrence filed a nuisance complaint against his neighbor, Dwayne Pasternak, for not cutting a portion of his lawn. Pasternak was given ten days to mow his lawn by the County. On July 15, 2013, Pasternak was issued a nuisance citation which he filed a motion to dismiss. The complaint went to trial at the circuit court for Forest County where court concluded that Pasternak’s uncut lawn constituted a public nuisance.  Pasternak appealed.

The county ordinance defines a nuisance as “any  condition which is injurious to health, offensive to the senses, or interferes with public or private use of property….”  In the circuit court, the County argued, and the court concluded, Pasternak’s uncut lawn constituted a public nuisance because it promoted mosquitos, pollen, weeds, and small animals. The court of appeals stated, however, that “if we agreed Pasternak’s uncut lawn constituted a public nuisance on that basis, that determination has no standard of enforcement and has the potential of applying to all lawns in Forest County.”

The Court of Appeals noted that the Wisconsin Supreme Court has held “offensive” to mean “giving pain or unpleasant sensation,” “revolting” or “obnoxious.” In the conclusion reached by the circuit court, Pasternak’s uncut lawn was declared offensive and a nuisance because it did not look nice. Based on precedent, however, just because something is disliked or disagreeable it does not make it a public nuisance. The court of appeals concluded that there was insufficient evidence in the record to establish that the uncut lawn was “offensive” and therefore a public nuisance under the definition in the county code.  The judgment of the circuit court was therefore reversed.

Plat approval results in town acceptance of public road, but does not obligate town to construct it

by Rachel Greifenkamp

Runkle, et al. v. Town of Albany
(Wisconsin Court of Appeals, June 19, 2014)

In the Town of Albany, Wisconsin several individuals purchased land and built homes along a street called Proverbs Pass. The developer of the subdivision entered into a development agreement with the town to build Proverbs Pass; however, neither the developer nor the town has completed construction or maintained the street. The people who built homes on the road filed a complaint asking the court to direct the town to complete the road and accept it as a town road, meaning the town would be responsible for it’s maintenance. The town admitted that the plat for the road had been approved and recorded with the register of deed but denied that it had any obligation to complete or maintain it as the town had not accepted the street as a town road. The circuit court ruled in favor of the town because certain conditions that were set forth in the development agreement were not met by the developer and the court concluded that that meant the town had not accepted the plat. The homeowners appealed the decision.

The Wisconsin Court of Appeals found that the only issue was whether the town accepted Proverbs Pass as a town road when the town approved and recorded the plat. If the approval does not equal acceptance, then the Town would be correct in assuming no responsibility for the road. If the approval does equal acceptance, the the Town would be required to assume the same responsibility it does for all other town roads. The town argued that acceptance of Proverbs Pass as a town road hinged on the developer meeting conditions in the development agreement, and that those conditions were not met. Based on Wisconsin court precedent, a town accepts a plat when it is approved and recorded in the register of deed, therefore the Court of Appeals reversed the Circuit Court’s ruling and found that the the Town of Albany did in fact accept Proverbs Pass as a town road.  This, however, did not determine whether the town had an obligation to construct and maintain the street.  “The acceptance of a plat by the city does not require that it shall open all the streets and alleys for immediate use.”  This issue was handed back to the circuit court to determine whether any other events or agreements obligated the town to complete construction of Proverbs Pass.

City’s reduction of assessed value for condemnation calculation “beyond anything that appears reasonable”

by Rachel Greifenkamp

Iyad Nabham v. City of Beloit

(Wisconsin Court of Appeals, April 24, 2014)

In June of 2011 the City of Beloit issued a condemnation order on property owned by Iyad Nabham after an inspection in March 2011 during which several substantial code violations were identified. This was despite the fact that an inspection four months prior found only “minor violations.” The building in question houses a retail business and five apartment units, the City of Beloit ordered Nabham to raze the structure within 30 days as they had found that the estimated repair cost to bring the building up to code was $63,000 and the property’s value was $49,300. Nabham contested the condemnation order and was granted a temporary injunction and trial in circuit court.

The violations found in March had existed for many years and the city offered no explanation for why the violation suddenly required immediate attention. The City of Beloit also did not justify why the value of repairs was increased from the inspector’s estimate and the property’s assessed value was cut in half. According to the circuit court judge, the value of the property was cut in half between 2007 and 2011 for the purpose of allowing the City to claim that repairs would cost 50% of the assessed value. Finally, the inspector’s report contained several unnecessary references to Nabham’s Middle East ethnicity. It was concluded that such details suggested that the city had an interest in removing the building because of the ethnic background of the people living there rather than code violations.

The circuit court action concluded with the injunction being made permanent, the repairs being deemed unnecessary, and a reassessment of the building’s value. The City of Beloit appealed. The Wisconsin District IV Court of Appeals affirmed the circuit court, stating:

“Overall the evidence supports the circuit court’s credibility determination and findings.  The circuit court found that there were no violations needing repair and that the City suddenly reduced the assessed value of the property “beyond anything that appears reasonable.”  Not only was there no basis for the City’s declaration that the building was “so out of repair as to be dangerous,” but there also was no basis to claim needed repairs exceeded 50% of the assessed value…We conclude that the circuit court’s findings are based on a credibility assessment and those findings support a determination that the condemnation order was unreasonable.  We affirm the injunction order.”

The city was ordered to withdraw the condemnation order and begin the inspection process again.

Annexation after incorporation satisfied the “rule of reason”

by Rachel Greifenkamp and Gary Taylor

Michael H. Ries v. Village of Bristol
(Wisconsin Court of Appeals, April 17, 2014)

In 2008, the Town of Bristol in Kenosha, WI petitioned to incorporate a portion of the town as a village.  After a failed attempt at incorporating  an area of 18 square miles (a majority of the land area of the Town), a revised petition to incorporate 9.2 square miles was submitted to the Wisconsin board on incorporation, which approved  a referendum after determining that the standards for incorporation were met. The incorporation referendum was held and passed. Soon after, the new Village of Bristol petitioned the circuit court to allow a referendum on whether to annex the entire remainder of the Town to the Village.  The court granted the petition, an annexation referendum was held and passed, and the Village enacted an ordinance annexing the entire remainder of the Town into the Village.

Michael H. Ries, M.D., and Ries Partners, Limited Partnership (Ries) challenged the annexation by referendum of the former Town of Bristol into the Village of Bristol. Ries sought a declaration that the annexation of the Town to the Village was invalid because it did not satisfy the rule of reason. The circuit court concluded that the annexation satisfied the rule of reason and dismissed the complaint. Ries appealed to the Wisconsin Court of Appeals

The rule of reason is a judicially created doctrine that “is applied by the courts to ascertain whether the power delegated to the cities and villages has been abused in a given case.” An annexation satisfies the rule of reason when three requirements are met: (1) exclusions and irregularities in boundary lines are not the result of arbitrariness; (2) there is a reasonable present or demonstrable future need for the annexed territory; and (3) no other factors exist that constitute an abuse of discretion on the part of the annexing municipality. Ries challenged whether the second and third requirements were met. Because the challenger to an annexation bears the burden of showing that the annexation violates the rule of reason, Ries must prove that the second and third requirements have not been met.

Future need for annexed territory.  The Court stated that “as long as the annexing authority shows any reasonable need for the annexation, the courts must respect the legislative decision to annex.”  “Need” may be demonstrated by a need for services the Town cannot provide, or a need to extend police, fire, sewer and other services to a substantial number of residents of adjacent areas.  According to the record from the circuit court, the village provided the annexed territory fire and emergency services, public works. and administrative services.  Ries countered that “the annexation was not necessary to extend services from the Village to the Town because even without the annexation, residents of the Town were receiving all of the same services as residents of the Village.” The Court of Appeals noted the circuit court’s findings that the only reason Town residents were receiving services was because they had contracted with the Village for them.  The Village was under no obligation to continue to provide services to the Town, and without the contract the Town, in fact, would not be able to provide them.  The Court dismissed this line of argument.

Abuse of discretion by annexing municipality.  Ries first argued that the village annexed the Town as a means of circumventing the requirements of the incorporation statutes, essentially making an “end run” around the incorporation requirements.  The Court rejected this argument, stating that there is no provision in the annexation or incorporation statutes that makes it unlawful to follow the process that the Village did; i.e., to incorporate, then annex the territory that would not meet the requirements for incorporation.

Ries’s second argument was that the Wisconsin Constitution prohibits annexation of territory that lacks the essential characteristics of a village.  Noting that the “essential characteristics of a village” is a reference to the court’s “village-in-fact” test established in State ex rel. Town of Holland v. Lammers. The Court dismissed this argument as well because the village-in-fact test applies to incorporations, not annexations.

Ultimately, the Court of Appeals analyzed and systematically dismissed each of Ries’ arguments and concluded that the annexation satisfied the rule of reason and the the court’s evidentiary ruling was not an erroneous exercise of discretion. The Court of Appeals affirmed the Circuit Court’s decision.

Claim preclusion not applicable to second application for conditional use permit for frac sand mining

by Gary Taylor

O’Connor v. Buffalo County Board of Adjustment and Glacier Sands, LLC
(Wisconsin Court of Appeals, April 22, 2014)

On January 13, 2012, R&J Rolling Acres (R&J) applied to Buffalo County for a conditional use permit to establish a frac sand mining operation on property zoned Agricultural.  The application identified R&J as the “owner” of the property and Glacier Sands, LLC, as the “developer.” Among the application materials was included a map showing the proposed route trucks would use to travel to and from the property.  R&J asserted the haul route would be “south on [State Highway] 88 to [State Highway] 35,” and that an estimated 80 trucks would leave the property via this route every weekday.  In February 2012 the Buffalo County Board of Adjustment (Board) held a public hearing on the application, which was continued to Marc.  Numerous people spoke up at the hearings about issues related to traffic safety on Highway 88, especially after R&J clarified it expected 126 trucks to leave the site each day instead of 80. At the end of the meeting, the Board voted 2-1 to deny R&J’s application. In its written decision issued March 29, the only reason the Board identified for denying the application was its concern that the large number of trucks leaving the mine site each day would decrease traffic safety on Highway 88. 

R&J did not seek circuit court review of the Board’s decision.  Instead, on March 27, 2012, R&J submitted a second CUP application.  The second application was identical to the first, except that it corrected a misspelled word, changed the proposed number of trucks leaving the site from 80 per day to 126, and proposed to have trucks hauling six days per week instead of five.  After a hearing (continued twice to obtain and digest a traffic study from the Wisconsin DOT), the Board granted the second conditional use permit request subject to 43 conditions. Two conditions were to limit to 105 the number of truck loads laving the site daily, and to prohibit hauling on weekends and holidays.  The Board’s written decision was similar to the earlier written denial, except that the Board explained:

The Wisconsin DOT Northwest Region contracted with AECOM to conduct a “Traffic Safety Impact Assessment” for [Highway 88] during May and June of 2012 in light of the potential increase in truck volume on [Highway 88] from proposed, new non-metallic mine operations in the area.  Representatives of the DOT were present at the hearings/meetings to present the initial as well as updated results of their assessment and answer questions.  Specifically, AECOM addressed crashes and crash rates as well as geometric and operational features pertaining to [Highway 88].  Overall, the [DOT] acknowledges that [Highway 88] may have some substandard features, but believes the road can handle increased traffic volumes.

O’Connor, one of the citizens opposing the permit, filed suit, claiming that the Board erred in two respects:  (1) the Buffalo County zoning ordinance does not allow frac sand mining as a conditional use in the agricultural district; and (2) after the Board denied R&J’s first CUP application, it was prohibited from considering the merits of R&J’s second application. 

Frac sand mining as a conditional use.  The Court of Appeals reviewed the Buffalo County zoning ordinance and found that it allows as a conditional use “[m]anufacturing and processing of natural mineral resources indigenous to Buffalo County incidental to the extraction of sand and gravel and the quarrying of limestone and other rock for aggregate purposes, including the erection of buildings, and the installation of necessary machinery and equipment incidental thereto, but not the storage of cement, asphalt, or road oils or the mixing of concrete or black top or related materials, provided that any county, town, or municipal government or its agent may store or mix such materials when incidental to the improvement of highways or streets.”  O’Connor argued that because frac sand mines do not extract sand “for aggregate purposes,” they are not allowed as conditional uses.  The Board argued that the phrase “for aggregate purposes” referred only to “the quarrying of limestone and other rock,” and therefore “manufacturing and processing of natural mineral resources indigenous to Buffalo County incidental to the extraction of sand and gravel” was allowed.  Finding both interpretations reasonable, the Court deferred to the Board’s interpretation because under prior caselaw the Board’s decision is entitled to a presumption of correctness.

Consideration of second application.  O’Connor asserted that, after the Board denied R&J’s first application, R&J’s “sole remedy … was to commence a certiorari action in the circuit court.”  The Court disagreed.  It noted that a county may enact a rule prohibiting a party whose application to the zoning board has been denied from filing a new application absent a substantial change in circumstances, but Buffalo County has not done so.  Absent such a rule, an individual is free to submit a second conditional use permit application after the first has been denied, as long as he or she is willing to pay a second application fee.  The Court rejected O’Connor’s assertion that the Court’s conclusion places an unfair burden on those opposing the application and creates an uneven playing field.  “Filing successive applications clearly places a significant burden on the  applicant, as well as those opposing the application.  For each additional application, the applicant must pay an additional review fee.  The applicant must spend time preparing a new application and appearing at new hearings before the board of adjustment.  If the board ultimately grants a successive application, the applicant then faces the prospect that opponents will file an action for certiorari review, in which the applicant will likely choose to participate to defend the permit.”

Alternatively, O’Connor relied on the doctrine of claim preclusion.  “Claim preclusion provides that a ‘final judgment on the merits in one action bars parties from relitigating any claim that arises out of the same relevant facts, transactions, or occurrences.The doctrine has three elements:  (1) identity between the parties or their privies in the prior and present suits, (2) prior litigation that resulted in a final judgment on the merits by a court with jurisdiction, and (3) identity of the causes of action in the two suits.”  In questioning whether the doctrine extends beyond judicial judgments, neither O’Connor nor the Court could cite any Wisconsin case holding that a board of adjustment’s unreviewed denial of an application precludes it from considering a subsequent application submitted by the same party.  Indeed, the Court again pointed to the existence of local rules prohibiting successive applications in support of its conclusion that claim preclusion did not bar the Board in this case from considering R&J’s second CUP application.  “If claim preclusion operated to bar zoning boards from considering successive applications, there would be no need for these successive application rules.”

The Court affirmed the Board’s decision to grant the conditional use permit.







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