Activities of landowner, not intent, determine whether “land disturbing activity” has taken place

by Rachel Greifenkamp

Town of Raymond v. Mary Jane Vogt and Raymond R. Vogt

(Wisconsin Court of Appeals, January 22, 2014)

The Town of Raymond, WI has an ordinance that prohibits landowners from engaging in land-disturbing construction activities that cause runoff into state waters without first obtaining a permit. Raymond and Mary Jane Vogt testified that they removed weeds and thistles, moved land in order to vertically install a large steel plate five to eight feet from the neighbor’s property line, and filled a ten-by-twenty-foot area of the ditch with gravel and multiple truckloads of dirt to enhance a drainage ditch between their property and their neighbors property.  All of this work was performed without a permit. A trial court determined this to be “land-disturbing activity” within the meaning of the term found in the Town ordinance, The trial court ordered the Vogts to allow Town agents to inspect their property and develop a remedial plan, which the court then approved and ordered the plan to be carried out at the expense of the Vogts. In all, the trial court awarded the Town $16,676 for expenditures and $45,131.50 for daily forfeitures and costs, totally nearly $52,000 to be paid by the Vogts.  The Vogts appealed.

The Town ordinance defined “land disturbing activity” as “any man-made alteration of the land surface resulting in a change in the topography or existing vegetative or nonvegetative soil cover, that may result in runoff and lead to an increase in soil erosion and movement of sediment into waters of the state.”  At the trial court hearing, the town of Raymond’s engineer testified that the changes made by the Vogts restricted water flow and led to an increase in water on their neighbors property and that it reduced the amount of water flowing from the Vogts’ property into the Root River (a state waterway). The Vogts countered by saying that the activities were performed to clean and restore the existing drainage ditch, and were intended to reduce erosion. The trial court concluded – and the Court of Appeals affirmed however – that the activities of a party are what determines whether a permit is necessary to proceed. The trial court found that the Vogts performed clearing, excavating, filling, and grading on the property that changed the topography by more than a foot, and that the runoff from the Vogts’ property drained into the Root River.  The Court of Appeals concluded that the evidence sufficiently proved that the Vogts’ work constituted non-exempt land-disturbing construction activities. The holding in favor of the Town of Raymond was held by the Court of Appeals.

City (WI) cannot use extraterritorial plat approval authority to regulate land use

by Rachel Greifenkamp

Lake Delavan Property Company, LLC v. City of Delavan

(Wisconsin Court of Appeals, February 12, 2014)

Delavan, a city in southeastern Wisconsin recently attempted to “protect rural character and farming viability” by utilizing its extraterritorial plat approval authority to deny a proposal made by Lake Delavan Property Company to develop a 600-home subdivision just outside of the city limits.  According to WIS. STAT. § 236.10(1)(b), a municipality is authorized to exercise extraterritorial plat approval authority over land within one and one-half miles of the city limits. The land that the developer purchased is in the Town of Delavan, but within one and one-half miles of the City of Delavan.

The question in this case was whether the City’s denial of the Company’s plan is prohibited by WIS. STAT. § 236.45(3)(b). This provision states that a city may not use its extraterritorial power to deny the approval of a plat on the basis of the proposed land use unless the denial is based on zoning regulations passed cooperatively with neighboring towns. The only part of the statute that was contested was whether the proposed subdivision was denied on the basis of the proposed land use. The city maintained that the denial was based on its application of its density restrictions (one residential dwelling per 35 acres in the extraterritorial area), which is a permissible use of extraterritorial plat approval authority. Conversely, the developer claimed that the thirty-five acre density restriction is designed to keep the borders of the city agricultural.

When a developer believes that the denial of a plat was arbitrary, unreasonable, or discriminatory, they can appeal to the circuit court where, if it is found that the denial of the plat was arbitrary, unreasonable, or discriminatory, the court will direct the City to approve the plat. In the circuit court it was ruled that the city acted outside its jurisdiction by using its extraterritorial power to deny the proposed plat based on land use. The state court of appeals agreed with the circuit court. “The city’s 35-acre density restriction is an improper use if its extraterritorial plat approval authority to rezone land….Common knowledge and experience tell us that the ordinance’s blanket density requirements effectively preclude residential development throughout extraterritorial jurisdiction. Indeed, the ordinance’s preamble states the ordinance was enacted ‘in order to protect rural character and farming viability.'”  The judgment in favor of Lake Delavan Property Company was affirmed.

Addition of third support post did not cause billboard to lose nonconforming use status

by Rachel Greifenkamp

Lamar Central Outdoor, LLC v. State of Wisconsin Department of Transportation

(Wisconsin Court of Appeals, February 6, 2014)

Lamar Central Outdoor Advertising owns a sign located along Interstate highway 39/90/94 in the Town of Dekorra. On March 18, 1972 WIS. STAT. §84.30 became effective. This statute generally prohibits construction of signs along state or interstate highways subject to specified exceptions; however, because the sign in question was in existence before the statute was enacted it was granted nonconforming status. Section 84.30(5)(bm) also provides that if a lawful nonconforming sign is enlarged, replaced, relocated, or if additional signs are erected, the sign loses its lawful nonconforming status and is subject to removal. In November, 2010 the Wisconsin Department of Transportation (DOT) ordered Lamar to take down the sign because modifications had been made to the support structure. The DOT said that a third wooden support beam had been added to the sign along with several other modifications. The DOT argued that this modification constituted a substantial change to the structure, causing the sign to lose its legal nonconforming status.

The Division of Hearings and Appeals (DHA) heard the case and determined that the addition of the third wooden post constituted a substantial change but the other modifications did not. The DHA concluded that the sign had therefore lost its legal nonconforming status. A circuit court later reversed the decision made by the DHA because the addition of the third wooden post did not constitute a substantial change.  The DOT appealed the ruling and the Wisconsin Court of Appeals affirmed the circuit court ruling in favor of Lamar. The Court of Appeals decided that the support post constituted maintenance and repair because it did not enlarge or expand the sign, nor change the look or appearance of it, and did not exceed fifty percent of the replacement value of the sign.  “From all that we can glean from the record [the third post was] added to stabilize the sign structure, a maintenance and repair function.”  As a result, the sign did not lose its nonconforming status.

Wisconsin town zoning board has no jurisdiction in shoreland zoning area regulated by county

by Kaitlin Heinen

Stephen Hegwood v. Town of Eagle Zoning Board of Appeals
(Wisconsin Court of Appeals, September 25, 2013)

Stephen Hegwood owns shoreline property in the town of Eagle upon which he built an outdoor fireplace and pergola…located, respectively, fourteen and eight feet from the lot line.  The property was in an area under the jurisdiction of the Waukesha County shoreland zoning ordinance. Hegwood applied for variances from the county’s twenty-foot setback requirement after these structures were built. Waukesha County conditionally approved both. Then Hegwood applied for variances from the town of Eagle’s twenty-foot setback requirement, but the Town Zoning Board Appeals denied his application. Hegwood filed for certiorari in circuit court. The court reversed the Board’s decision, so the Board appealed to the Wisconsin Court of Appeals.

The Board argued the circuit court erred when it reviewed Hegwood’s appeal as a certiorari action. However, both Hegwood and the Board agreed that Wis. Stat. § 62.23(7)(e)10 governed an appeal of a board of appeals’ decision, which states that “[a]ny person … aggrieved by any decision of the board of appeals … may … commence an action seeking the remedy available by certiorari.” On certiorari review, the court must presume the correctness of the board of appeals’ decision and review the board’s decision to determine whether it “(1) kept within its jurisdiction; (2) proceeded on a correct theory of law; (3) acted in an arbitrary, oppressive or unreasonable manner that represented its will and not its judgment; and (4) ‘might reasonably make the order or determination in question based on the evidence.’” Hegwood was an “aggrieved person” and was “specifically authorized…to seek relief by means of a certiorari action,” according to Wis. Stat. § 62.23(7)(e)10. The statute also allowed the court to determine whether the Board proceeded under a correct theory of law. Thus Hegwood’s action was appropriately brought as a certiorari action.

In addition, the Board argued the court erred in concluding that the Board proceeded on an incorrect theory of law when it applied the town’s zoning code to the fireplace and pergola. Hegwood argued that “Wis. Stat. § 59.692 vests counties with the exclusive authority to zone shorelands.” However, the Board countered that “there is no specific statutory language prohibiting towns from adopting and enforcing zoning ordinances affecting shorelands and that it is permitted to do so pursuant to its village powers.”

The court has previously held that the “legislature has given shoreland zoning authority to counties.” The court concluded that towns do not have zoning authority over the same shorelands, except for limited circumstances, and proceeded to examine the possibilities for town jurisdiction over shorelands asserted by the town.

Wis. Stat. § 281.31 (the “Navigable waters protection law”) subsection (1) “authorize[s] municipal shoreland zoning regulations.” Subsection 2(c) of that statute defines a “municipality” as “a county, village, or city”—towns are not included. Furthermore, Wis. Stat. § 281.31(2)(e) provides that “‘Regulation’ means ordinances enacted… pursuant to any of the zoning…powers delegated by law to cities, villages and counties.” The court reasoned that “[h]ad the legislature intended to generally permit towns to regulate shorelands, we would expect to see a reference to such authority in § 281.31; but no such reference is made.”

The court also considered Wis. Stat. § 59.692 (“Zoning of shorelands on navigable waters”). Subsection 59.692(1m) states that “each county shall zone by ordinance all shorelands in its unincorporated area.” Subsection (2)(a) states that “ordinances…related to shorelands and enacted under § 59.692 ‘shall not require approval or be subject to disapproval by any town or town board.’” The legislature “specifically prohibited towns from having authority to approve or disapprove of county shoreland ordinances operating within the town.” Additionally, subsection (2)(b) established that town regulations in regards to shorelands would have effect only “if they were in existence before enactment of the county ordinance and were more restrictive than the county provisions affecting the same shorelands.” In this case, the town ordinance was adopted after the county ordinance. Even in regards to the DNR’s shoreland zoning standards (Wis. Stat. § 59.692(4)(a)), “the legislature did not include a reference to towns.”

The Board also claimed that it acted appropriately because the town had concurrent zoning authority with the county over shorelands and that it had the authority to reject Hegwood’s application for a variance, since the town passed the zoning ordinance pursuant to village powers. The statute the Board points to (Wis. Stat. § 60.22(3)), however, clearly indicates that “permitting general town regulation of shorelands under village powers does conflict with the statutory scheme of Wis. Stat. §§ 281.31 and 59.692…[and] deliberately excludes towns from having shoreland zoning authority.” The court concluded that from “[t]he plain language of…Wis. Stat. §§ 281.31 and 59.692, the legislature intended that towns would not have authority to regulate shorelands.” Thus, the Board’s claim of authority failed.

The Wisconsin Court of Appeals concluded that the Board had no authority to consider Hegwood’s application for variances. “Had the Board proceeded on a correct theory of law, it would have recognized that Hegwood’s property was subject only to the county’s shoreland zoning ordinance and dismissed his application for the variances as unnecessary.”  The circuit court’s reversal of the Board’s decision was affirmed.

Failure to appeal original determination of permit violation prevents revisiting original permit conditions

by Kaitlin Heinen and Gary Taylor

Eric and Deborah Ringsred v. City of Bayfield, Wisconsin
(Wisconsin Court of Appeals, May 21, 2013)

In 2006, Eric and Deborah Ringsred were granted a conditional use permit to operate a bed and breakfast located in an R-1 residential zoning district in the City of Bayfield, Wisconsin. One of the conditions required a separate cottage to remain vacant until the City was notified the cottage was to be used for habitation. On September 8, the Ringsreds notified the City that they planned to use the cottage as an accessory dwelling. On September 19, the City’s attorney told the Ringsreds that the cottage could not be used as such for the bed and breakfast unless another conditional use permit was obtained, as required by the City’s ordinances. However, the Ringsreds did not apply for an additional conditional use permits regarding the cottage.

On July 2, 2009, the City’s zoning administrator notified the Ringsreds that it had “come to the City’s attention the cottage was occupied during a portion of this past year…[The City] respectfully request[ed] [the Ringsreds] to respond to this issue in writing prior to the Commission’s next meeting on July 20, 2009.” The Ringsreds responded, stating that during the “non-B&B period of the year,” someone needed a place to stay and was allowed to stay in the cottage, but it was not a “rental situation.” In August and September 2009, the City of Bayfield Plan Commission convened a hearing in regards to the alleged permit violations, which the Ringsreds attended. On September 15, 2009, the Commission issued a decision, which held that the Ringsreds had violated the conditional use permit by allowing the cottage to be used as a dwelling. The Commission upheld the requirement that the cottage remain vacant and that an application need be completed for it to be used as an accessory dwelling. The Commission also required that the Ringsreds respond in writing that they would not use it as a dwelling without complying with this requirement, which the Ringsreds promptly did.

In September 2010, the City investigated another complaint that the cottage was being used as a residence. A hearing was held on November 9, 2010, where evidence established that the cottage had been occupied during the summer of 2010. The Commission decided that there was no reasonable modifications of the conditional use permit that could be made to assure compliance, so the Commission voted to revoke the permit.The Board of Appeals upheld this decision at a February 15, 2011 hearing. The circuit court later affirmed the Board, so the Ringsreds appealed to the Wisconsin Court of Appeals.

On appeal, the Ringsreds claimed they notified the City in 2006 of their intent to use the cottage as an accessory dwelling, which fulfilled the condition in the original permit. The Ringsreds thus argued that the Commission  had no authority to modify the permit at the September 15, 2009 hearing since there was no permit violation. The Wisconsin Court of Appeals disagreed.

First, the Ringsreds never appealed the Commission’s September 2009 modification. As such, the Ringsreds were not entitled to fresh consideration of all relevant facts and law surrounding the conditions of the 2006 permit or the alleged 2009 violation. The Ringsreds had been provided the opportunity to submit testimony and documents to the Board, but did not. The evidence available was sufficient to support the Board’s decision because “[t]he  Board reasonably inferred the purpose of the original conditional use permit’s third condition was to ensure that occupancy of the cottage would be in compliance with the City’s zoning ordinances.” Further, the Ringsreds were explicitly informed by the City’s attorney of the requirement for a separate conditional permit to use the cottage, and the Ringsreds made no effort to obtain such an additional permit. Not only did the Ringsreds not object to the permit modifications, they promptly complied with the requirement that they provide a written commitment to the Commission that they would not use the cottage as a dwelling without obtaining the required permit. Thus the Ringsreds’ multiple violations of their permit were enough to sustain the Board’s decision that no reasonable further modifications could assure compliance with the ordinance, given the history of their case. So the Wisconsin Court of Appeals affirmed the Board’s decision as well.

Village junk vehicle ordinance broader than state traffic regulations, but validity of ordinance could not be determined

by Kaitlin Heinen

Village of North Hudson v. Randy J. Krongard
(Wisconsin Court of Appeals, March 12, 2013)

In November of 2011, the Village of North Hudson issued 2 citations to Randy Krongard for having 2 junk vehicles in plain view on his property, which was contrary to North Hudson Village Ordinance §§ 90-41 and 90-44. The vehicles were considered junk vehicles because they had expired registrations. In December, Krongard pleaded not guilty in municipal court; however, he did not appear at the scheduled trial, so the court entered default judgment against him. In March of 2012, Krongard moved to vacate the municipal court’s judgment because “90-44 is void, unlawful, and invalid as preempted, contrary to, and inconsistent with” Wisconsin state law.  His motion was denied. Krongard appealed to the circuit court, which also denied his motion, and then to the Wisconsin Court of Appeals. The Village argued that Krongard’s appeal was an improper one because Krongard should be prohibited from appealing a default judgment. However, Krongard appealed the order denying his motion to vacate the default judgment. So Krongard’s appeal was properly before the circuit court and the Wisconsin Court of Appeals.

Before the court, Krongard argued that the circuit court wrongly denied his motion because the judgment against him was void, since the Village’s junk vehicle ordinance was invalid based on its conflict with state traffic regulations. An ordinance regarding traffic regulation “must be in strict conformity with state law,” otherwise it will be preempted. Krongard asserted the conflict stemmed from the ordinance’s defining unregistered vehicles as junk vehicles and regulating unregistered vehicles on private property. Wis. Stat. § 340.01(25j) does not include unregistered vehicles in its definition of a “junk vehicle.” Instead it defines a “junk vehicle” as a “vehicle which is incapable of operation or use upon a highway and which has no resale value except as a source of parts or scrap” and a “vehicle for which an insurance company has taken possession of or title to if the estimated cost of repairing the vehicle exceeds its fair market value.” Also, state traffic regulations allow for vehicles to be parked on private property with the owner’s consent and only permit municipalities to regulate unregistered vehicles on highways. So Krongard held that the Wisconsin Court of Appeals must conclude the ordinance is invalid, rendering his judgment void.

The Village counter-argued that the state traffic regulations are concerned “with the licensing, regulation of, outfitting and operation of vehicles” and its ordinance is “concerned with the upkeep of private property,” which are “two completely different issues.” The Village also contended that its junk vehicle ordinance is not inconsistent with or contrary to the state’s definition of a junk vehicle.  The Village argued that, under Wis. Stat. § 340.01(25j), a vehicle is junk if it is not capable of legal operation on the highway, and an unregistered vehicle is incapable of legal operation on the highway and therefore constitutes a junk vehicle.  Finally, the Village contended that parking motor vehicles is different than storing vehicles on private property.

The Wisconsin Court of Appeals concluded that nothing in the state traffic regulations provides that a municipality can regulate unregistered vehicles on private property and that Wis. Stat. § 340.01(25j) defines a junk vehicle as one that is inoperable, not legally inoperable.  Therefore, the Village’s definition was broader than the traffic regulation. The ordinance requires owners of junk vehicles to notify and return the vehicle’s certificate of title to the Department of Transportation, but requires owners of unlicensed vehicles to keep their vehicles out of the public’s view. As such, the Village’s argument regarding the purpose of the ordinance and the ordinance’s language itself suggest that the ordinance is not a traffic regulation and the Village did not enact it pursuant to the power granted under the state traffic regulations.  Instead, it appears the ordinance may have been enacted using a different power, such as its zoning authority. However, because it could not be determined from the record whether the ordinance in question was a traffic regulation or part of a different regulatory scheme, the Wisconsin Court of Appeals reversed and remanded the order to the circuit court to determine the validity of the Village’s ordinance.

Plaintiff’s brief inadequate to maintain claim with Wisconsin Court of Appeals

by Kaitlin Heinen

Patrick J. Riley, Mary J. Riley, and Daniel S. Riley v. Town of Nasewaupee
(Wisconsin Court of Appeals, March 5, 2013)

Betty Riley acquired a 42-acre shoreline property in Door County in 1988. She died in March 2007, and her children–Patrick, Mary, and Daniel–received the property from her estate in July 2011. Much of the property is wetlands. In 1994, the wetlands were mistakenly removed from zoning maps. This error resulted in a 1-year increase in the assessed value from $256,500 to $431, 400. Betty never objected to the tax assessment. In August 2010, the Door County zoning administrator informed the Rileys of the error and indicated that the zoning maps had been remedied. In September, the Town of Nasewaupee mailed a preliminary notice of assessment the 2010 value of $841,900 would be reduced to $498,500 for 2011. In November 2011, filed a claim for recovery of taxes overpaid from 1994-2010, totaling $68, 662.48. The Town disallowed the claim, so the Rileys brought suit in circuit court. The court granted the Town’s motion, so the Rileys appealed to the Wisconsin Court of Appeals.

The Rileys argued that the time limitations in Wis. Stat. § 74.35(5) should not apply to them. That section requires that a claim for recovery of unlawful taxes be filed with the taxing district “by January 31 of the year in which the tax is payable.”  So this would require the Rileys to have submitted a claim about their 2010 real estate taxes no later than January 31, 2011.  Since the Riley’s claims was filed with the Town in November 2011, it was too late to contest any taxes from 2010 or earlier. However, the Rileys contended that they did not have an enforceable claim under Wis. Stat. § 74.35 “until the [a]ssessor filed a Notice of Assessment setting the new assessed value … on May 18, 2011.”  The Rileys did not provide any legal authority or argument; rather, in their filing with the Court of Appeals they simply restated the circuit court’s ruling and “boldly declare, ‘This cannot be the law.’” The Rileys concluded their brief, stating that “the provisions of [Wis. Stat.] § 70.43 impose upon the assessors the duty of correcting the assessment and making provision for reimbursement of the parties affected.” According to the Court, “Unfortunately, the Rileys fail to explain the significance of this, much less develop a reasoned argument.  Further, in their poorly edited reply brief, the Rileys clarify that they are not relying on § 70.43, ever though they insist that statute is ‘part of the context of this case.'”

“The Wisconsin Court of Appeals does not decide issues that are inadequately briefed or are unsupported by legal authority.” The Rileys’ brief lacked both reasoned legal argument and supporting legal authority, so the Wisconsin Court of Appeals affirmed the circuit court’s ruling.

The notion of a house without a garage is “disagreeable in Wisconsin”

by Kaitlin Heinen

State of Wisconsin v. Manitowoc County Board of Adjustment
(Wisconsin Court of Appeals, February 13, 2013)

In 2010, Rebecca Rach built a house on Wilke Lake in the Town of Schleswig.  When she purchased another piece of land at the back of her residence, the Town built a road on part of it to give 4 lake residents access to a main road. The remainder of the land is wetland. Rach petitioned the Manitowoc County Board of Adjustment for a variance to construct a 4’ x 50’ walkway and a 40’ x 40’ patio adjacent to a concrete porch on the east side of her house, facing the lake.  The patio would intrude 49 feet into the 75-foot required shoreland setback.  Rach argued that without the variance, she would suffer an unnecessary hardship because there was no other place on her lot to construct a patio. Board members conducted an on-site inspection of Rach’s property and held a hearing on her request.  Rach and her husband presented a landscaping plan showing that the patio would be built with materials and plantings to aid infiltration and catch any runoff.  The Town stated in a letter that its board and planning commission both approved Rach’s variance request.  However, the Wisconsin Department of Natural Resources, by a letter from a shoreland zoning specialist, opposed the variance, citing the lack of unnecessary hardship and the negative effects the patio and walkway encroachment would have on the lake.

Rach’s husband testified that they could not have built their house further back because the land behind their house was for sale after they had built and that, with the remainder of the land being wetland, there is no room to build a patio.  A Board member even commented, “I don’t think [the DNR shoreland zoning specialist] realized that…. He wasn’t there [at the property].” So the Board concluded that Rach faced an unnecessary hardship because the wetlands behind the house is not suitable for a patio; the landscaping of the patio would handle runoff; and the variance would not be against the public interest because the landscaping would screen the patio from the lake, beautify the shoreline, and create a buffer to prevent runoff.  The Board reduced the walkway’s width from 48 to 42 inches and the patio’s length from 40 feet to 20 feet, cutting the setback intrusion to 29 feet. The variance was approved as modified.  The State filed a complaint in the circuit court, which affirmed the Board’s decision.  So the State appealed to the Wisconsin Court of Appeals.

The Wisconsin Court Appeals reviewed the Board’s decision by applying the substantial evidence test to determine whether the evidence before the Board was sufficient. Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” In its review, the court must presume the correctness of the Board’s decision. When a variance request is before the Board, it must decide whether denying the variance would impose an unnecessary hardship on the landowner. Unnecessary hardship must be based on conditions unique to the property itself and cannot be self-created. The State argued that Rach failed to produce sufficient evidence of “unnecessary hardship” and that the hardship Rach faced was self-created because she built the house a year before applying for the variance, choosing its size and where to situate it on the lot.  The State also argued that a patio is not essential and if Rach wants one she can build it, instead of a garage, at the back of the house. However, the court reasoned that even if Rach could construct the patio on the wetland, substantial evidence existed to support the Board’s decision because the State’s arguments ignored that building the patio behind the house would leave Rach without a garage—”disagreeable in Wisconsin.”

The Board must evaluate the hardship with the purpose of the zoning restriction in mind, and a variance cannot be against the public interest. The purpose of a shoreland zoning ordinance “is to protect navigable waters and the public rights therein from the degradation and deterioration which results from uncontrolled use and development of shorelands.” Since the Board considered the purpose of the ordinance and after viewing the site and taking testimony from the Town and the DNR, it modified the variance by imposing conditions designed to protect the shoreland setback zone. It found that, as modified, the construction would not be against the public interest. The Board acted within its authority, so the Wisconsin Court of Appeals concluded that the Board’s decision to grant the variance to Rach was supported by sufficient evidence.

Right-of-way method for calculating special assessments did not treat similarly-situated properties similarly

by Kaitlin Heinen

Peller Investments, LLC v. City of Lake Geneva
(Wisconsin Court of Appeals, January 31, 2013)

In the City of Lake Geneva, Edwards Boulevard runs north and south, with its northern-most end intersecting Sheridan Springs Road. Prior to 2010, Edwards Boulevard was not a through street to Sheridan Springs Road; it ended at the northern edge of a Target store property. In 2010, the City undertook a project to extend Edwards Boulevard to Sheridan Springs Road. This project included the construction of other structures such as storm water detention ponds. The Peller Investments, LLC property is located to the north of the Target property and has frontage on Edwards Boulevard as extended. The Peller property was originally 16.63 acres in size, but on May 3, 2010, Peller executed a quit-claim deed to the City for a 3.61-acre portion of the Peller property.  The City had planned to place a storm water detention pond via an easement on the 3.61-acre parcel, as part of the project.

On September 27, 2010, the City’s Common Council adopted a resolution that directed the City’s engineer (from Crispell-Snyder, Inc.) to prepare a report consisting of plans and costs for the improvements, a schedule of assessments, and the properties to be benefited. Kurt Davidsen drafted the assessment report. Under the straight-line method, Davidsen calculated assessments based on the length of each property running parallel to Edwards Boulevard. The report listed the Peller property as a benefited property, assessing it for 916.52 feet running parallel to Edwards Boulevard at a rate of $377.36 per foot for an assessment total of $345,857.99. The City’s Public Works Director, Dan Winkler, and the City Administrator, Dennis Jordan, consulted with Sue Barker, another engineer with Crispell-Snyder. Winkler and Jordan believed that the straight-line method did not adequately reflect the benefits received by the properties. They believed that the Peller property received a “unique special benefit” because it was the only property that became develop-able as a result. So the City asked Crispell-Snyder to draft a second report applying a different assessment method called the right-of-way method, which calculates assessments based on the length of the road right-of-way abutting each property. On October 25, 2010, the City’s Common Council held a public hearing on the assessment. The City adopted a resolution that approved the second report, using the right-of-way method. The second report increased the project cost from $2,629,981.50 to $2,746,359.60. The City issued an assessment on the Peller property for 1,142.01 feet of right-of-way frontage, having measured Peller’s curb frontage on Edwards Boulevard (657.03 feet) plus the boundary line between the Peller property and the 3.61-acre parcel (484.98 feet). The City treated the 3.61-acre parcel as part of the road right-of-way, so while the parcel borders only 379.36 feet of Edwards Boulevard, the City considered the boundary between the Peller property and the parcel to be the road right-of-way.

The City sent a letter on October 28, 2010, notifying Peller that the City had adopted the final resolution. The letter included the assessment schedule, which reflected a special assessment levy of $521, 5333.13 against the Peller property. Peller filed a complaint against the City under Wis. Stat. § 66.0703(12)(a), which authorizes property owners to challenge special assessments in circuit court. Peller argued that the City’s special assessment method was unreasonable because:  (1) the City did not treat uniformly the City’s parcel 4 and Peller’s 3.61-acre parcel because, unlike parcel 4, the City did not assess the road frontage of the 3.61-acre parcel, but treated it as part of the road right-of-way, and (2) it resulted in Peller paying a disproportionate share of the project cost.  Peller also argued that the City unreasonably allocated a portion of the Ryan Companies’ (another benefited property) $600,000 payment to cover part of the assessments for which the City was responsible. However, the City argued that Peller was the only property that became develop-able as a result of the Edwards Boulevard extension, and because of the “unique benefit” it imposed, the right-of-way assessment was reasonable. On January 11, 2012, the circuit court held a hearing and granted Peller’s motion against the City, so the City appealed to the Wisconsin Court of Appeals.

The court stated that when a municipality imposes special assessments by exercise of its police powers, it is required that the property be benefited and the assessment be made upon a reasonable basis. The Edwards Boulevard extension project benefited all properties in the assessment district. So the Wisconsin Court of Appeals then examined the reasonableness of the assessment. There is no single methodology for apportioning assessments, and the law presumes that the municipality proceeded reasonably in making the assessment. Challengers to the assessment must show evidence that the assessment was unreasonable. Since “reasonable basis” is not defined by law, the facts of each situation must determine the reasonableness of the assessment. Past cases have established that “an assessment is unfair when property owners in comparable positions face a marked disparity in cost for the receipt of equal benefits when an alternate, more equitable, method of assessment is feasible.” Wisconsin appellate courts have also established a two-part test to determine reasonableness: 1) the assessment must be uniform, fairly and equitably apportioned among property owners in comparable situations, and 2) the assessment must not affect a unique property disproportionate to the benefit  conferred.

Peller challenged whether the right-of-way method treated comparable properties uniformly. Peller argued that the City treated parcel 4 as an assess-able lot, but did not treat the similarly-situated 3.61-acre parcel as an assess-able lot. Instead, the City assessed the 3.61-acre parcel as part of the road right-of-way, thus increasing the Peller property frontage. The Court of Appeals agreed. Uniformity is required among comparable properties, and although the right-of-way method is uniform in its calculations, the application of the method by the City resulted in disparate treatment of similarly-situated properties. Parcel 4 and the 3.61-acre parcel were characterized differently, even though both abutted Edwards Boulevard and contained storm water detention ponds, which was therefore unreasonable. Since Peller showed evidence that the assessment was unreasonable, the City then must show otherwise. The City argued that under the right-of-way method, all properties were treated the same. However, this does not explain the disparate treatment of parcel 4 and the 3.61-acre parcel. The City stated that the pond on the 3.61-acre parcel abutted private property whereas the pond on parcel 4 did not, so there was no reason to make the parcel 4 pond part of the right-of-way. Because the City does not explain why this difference should matter, the court concluded that the City did not show that the assessment was reasonable. Because the assessment failed the first prong pf the two-part test, the court did not need to examine the second prong.

The Wisconsin Court of Appeals affirmed the circuit court’s judgment in regards to the City not treating comparable properties uniformly and that the special assessment against Peller was unreasonable. The total cost of the project was $2,746,359.60, which involved a total of 5,741.05 feet in the special assessment district.  Dividing the $2,746,359.60 project cost by 5,741.05 feet provides an assessment rate of $478.37 per foot.  The Peller property had 657.03 feet of assess-able frontage, so the proper levy against the Peller property was determined by the court to be $314,303.44.

Claimants fail to demonstrate unnecessary hardship in request for variance from 5-acre minimum lot size

by Kaitlin Heinen

Gordon & Kathy Michaels v. Town of Farmington, et al.
(Wisconsin Court of Appeals, January 3, 2012)

Gordon and Kathy Michaels have operated a 340-acre dairy farm in the Town of Farmington since the 1970s and hoped to develop or sell the land to fund their retirement.  In 2005, the Town adopted a new zoning code and revised its subdivision ordinance.  The zoning ordinance established 5-acre minimum lot sizes.  The subdivision ordinance limited the number of building permits that could be issued per year. The Michaelses sought a variance to allow them to develop their acreage into 1½-acre lots.  They claimed they could not sell their farm to a developer due to a unique and unnecessary hardship as a result of the ordinances and other stray voltage issues.  The circuit court ordered the Town to convene the Board of Zoning Appeals and allow the Michaelses a hearing, but the BOZA denied their variance request.

When the Michaelses appealed this decision, the circuit court remanded the case and ordered the BOZA to issue a decision that stated its reasons for denying the variance. The BOZA clarified that the Michaelses’ evidence was based solely on economics, and the stray voltage issues did not qualify as an unnecessary hardship because the Michaelses still operated their dairy farm.  The circuit court concluded that the BOZA’s decision was not arbitrary, oppressive, or unreasonable and that the BOZA could reasonably deny the Michaelses’ variance request, which the Michaelses appealed to the Wisconsin Court of Appeals.

The Michaelses argue that since they spent six years trying to get the hearing, it was unfair for the circuit court to allow the BOZA a “do-over” to supplement its earlier decision.  The Wisconsin Court of Appeals disagreed and held that the circuit court properly remanded the case to the BOZA for it to better express its reasonings for denying the Michaelses’ variance request.

Next, to determine whether a variance imposes an unnecessary hardship depends on whether compliance with the restrictions would unreasonably prevent the owner from using the property for a permitted purpose. The BOZA noted that to grant a variance to the zoning ordinance, it had to find beyond a reasonable doubt the existence of all of the following:  “(1) preservation of the intent of the ordinance; (2) ‘exceptional, extraordinary, or unusual circumstances or conditions’; (3) preservation of the property rights of others; (4) the variance request was not due to self-imposed hardship or solely on the basis of economic hardship; and (5) the absence of decrement.” The BOZA found that the Michaelses proved none of these criteria.  Instead it found that the primary use for the Michaelses’ property is agricultural; that granting a variance to allow 200+ residential building sites is not consistent with the primary zoning; that the Michaelses continue to farm the property despite the stray voltage issues; that the Michaelses’ motivation was based solely on economic considerations (the property would be sold for less than they hoped without a variance); that granting a variance is not necessary to preserve their property rights to farm their land; and that granting a variance is contrary to the purpose and spirit of the zoning code because it would change the agricultural conduct of the area and would alter the density and distribution of the Town’s population.

The Michaelses also argued that the 2005 ordinance severely limited growth with no sunset provision, which causes an unconstitutional permanent moratorium. However, this claim applies to a  rate-of-development (ROD) bylaw enacted fifteen years earlier, which limited the number of building permits the town could issue in a year.  Although similar to the Town’s subdivision ordinance, the ROD ordinance was not at issue in case because the Michaelses never applied for a number of building permits over the limit. Furthermore, the Michaelses failed to demonstrate, beyond a reasonable doubt, that an unnecessary hardship results from compliance with the Town’s ordinances.

Finally, the Michaelses argue they are entitled to attorney fees under 42 U.S.C. § 1988(b) in this action. However, the circuit court concluded that the Michaelses’ procedural and substantive due process rights were not abridged.  They were afforded a remedy by getting the hearing to which they were entitled. They also did not establish either that the 2005 ordinance is “clearly arbitrary and unreasonable,” with “no substantial relation to the public health, safety, morals or general welfare,” or that they were the victim of administrative action that “shocks the conscience.” Public welfare certainly can be related to the orderliness of community growth by the minimum-lot size ordinance in question.  Thus the Michaelses have not shown that the circuit court erroneously exercised its discretion in denying their bid for attorney fees.

The Wisconsin Court of Appeals affirmed the Town of Farmington’s Board of Zoning Appeals’ decision.





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