40-foot “rear yard” requirement is a setback requirement

by Kaitlin Heinen and Gary Taylor

Quin R. Feuerstein v. Sawyer County Board of Appeals
(Wisconsin Court of Appeals, August 14, 2012)

In 2008, the Feuersteins presented a certified survey map (CSM) to Sawyer County (WI) for approval. The CSM was denied by the Sawyer County zoning administrator, however, because a boat house on the lot was only 10 feet from the rear lot line, which the zoning administrator identified as such because it roughly paralleled the shoreline.  As a result, the administrator concluded that the 40 foot rear yard setback found in the zoning ordinance was required to the rear of the boat house (not the principal residence as urged by the Feuersteins). The Sawyer County Zoning Board of Appeals upheld the administrator’s decision.  The Feuersteins appealed.

The Feuersteins’ argument was that the zoning ordinance is ambiguous, and therefore must be construed in favor of private property owners. The Feuersteins argued that the ordinance is ambiguous because it does not define “rear lot line,” and that the Board could not reasonably conclude that the lot line behind the boat house was the rear lot line.  However, “rear yard” is defined as an “open[,] unoccupied space on the same lot with the building between the rear line of the building and the rear line of the lot and extending the full width of the lot,” according to SAWYER COUNTY, WI, ZONING ORDINANCE § 2.1(106). Additionally, SAWYER COUNTY, WI, ZONING ORDINANCE § 18.4(a) states that 40 feet of yard is required in areas zoned as RR-1. The Feuersteins’ argument that the ordinance’s use of the phrase “yard required” instead of “setback” created ambiguity was rejected by the court.

The Feuersteins also argued that § 2.1(106)’s reference to building in the singular adds to the ordinance’s ambiguity; asserting that since their cabin is the principal building on their lot, then it is sufficiently distant from the lot line for their proposed CSM to comply with the ordinance.  However, The Wisconsin Court of Appeals disagreed, The ordinance clearly states in § 2.1 that references made in the singular include the plural. Additionally, SAWYER COUNTY, WI, ZONING ORDINANCE § 4.26(1) states that a permanent, roofed structure not attached to the principal building shall conform to the setback requirements.

The Court of Appeals stated that the setback requirements unambiguously apply to the Feuerstein’s boat house: “The ordinance is evidently clear when read as a whole in its requirement of a 40 foot setback from even the accessory buildings on the lot in question.”  The Wisconsin Court of Appeals affirmed the Board’s decision in upholding the order for the Feuersteins to comply with the 40 foot setback of the rear lot line from their boat house.

Village’s extraterritorial zoning valid and applicable to condominium development

by Kaitlin Heinen

Village of Newburg v. Deerprint Enterprises, LLC
(Wisconsin Court of Appeals, August 15, 2012)

Deerprint Enterprises, LLC filed a motion for summary judgment seeking declaration that its condominium plat the Town of Trenton approved in 2007 is not subject to the Village of Newburg’s extraterritorial plat approval ordinances. The Village also filed a motion for summary judgment seeking declaration that the Town’s earlier approval is void, so as to require that Deerprint’s development be reapproved. The circuit court granted the Village’s motion and denied Deerprint’s.

The case was previously before the Court of Appeals on a related question.  Deerprint proposed a 6-unit condominium that sits on a 35-acre parcel of land zoned as CES-5 Country Estates under the Town’s zoning ordinance. This zoning allows one single-family unit per a minimum of 5 acres in a residential development; however one of the condominium units was initially commercial. The Village objected to the Town’s approval of the mixed-use development, designated as a Planned Development Overlay (PDO) and sought a declaration that it was invalid under the Village’s extraterritorial zoning authority that was in place at the time. The Wisconsin Court of Appeals agreed and remanded the case to the trial court.

On remand, the trial court held the Town’s approval was null and void and granted the Village’s motion for a summary judgment. Deerprint then simply amended their condominium declaration to make all units residential. The Village objected, arguing that no valid condominium plat existed that could be amended, since the Town’s approval had since been invalidated, and was never re-submitted to the Village for approval. The trial court found that amending the rejected declaration was insufficient and granted the Village’s request for summary judgment. Deerprint appealed again, or as Judge Todd K. Martens cleverly remarked, Deerprint “essentially [tried] for a second kick at the same old cat.”

Deerprint argued that the circuit court erred in that neither the Town nor the Village can prohibit the condominium form of ownership according to WIS. STAT. §703.27(1), but the Wisconsin Court of Appeals disagreed. The trial court did not require Deerprint to get approval for condominium ownership but to be approved for a multi-family residential development on land zoned for single-family residence per five acres. Additionally, WIS. STAT. §703.27(1) does not exempt condominiums from zoning regulations. Rezoning via another PDO is required then since the first PDO designation was invalidated.

WIS. STAT. §703.27(1) “(1) prohibits zoning ordinances from either outlawing the condominium form of ownership or imposing on condominiums requirements not imposed on other forms of ownership; and (2) requires a municipality to pass an ordinance if it wants to apply subdivision ordinances to condominiums.”  WIS. STAT. §236.10(1)(b) requires approval by both the town and the governing municipality for the property within the overall jurisdiction of both. The Village’s extraterritorial plat approval encompasses the condominium plat by VILLAGE OF NEWBURG,WIS., ORDINANCES ch. 18, § 18.04(6)(b) (2007), which expressly states that platting regulations are applicable to condominiums. Also, WIS. STAT. §236.45 authorizes a municipality to regulate subdivisions, which are applicable outside city and village boundaries. And WIS. STAT. § 703.27(1) authorizes the inclusion of condominiums under these regulations. Since the Village’s ordinance expressly refers to condominiums, it is applicable to Deerprint’s parcel.

The Court held that all zoning provisions have to be met for a condominium to be valid. Deerprint’s parcel clearly lies within the Village’s jurisdiction, and Deerprint has never sought approval from the Village. So the judgment of the circuit court was affirmed.

Conditional use permit requirement did not constitute a taking

by Victoria Heldt

Peter J. Butzen, D/B/A Falls Metals, Inc. v. City of Sheboygan Falls
(Wisconsin Court of Appeals, February 29, 2012)

Peter J. Butzen owns a piece of property within the City of Sheboygan Falls that is zoned C2 commercial.  He operated a scrap metal recycling business on the land during the 1990s which grew in size to the point that it appeared to be a junkyard.  In January 2000 the City decided the use of the land exceeded the scope of what was permitted in the C2 district.  It advised Butzen to clean up and make some modifications and apply for a conditional use permit, which Butzen did in February.  In April 2000 (before it considered Butzen’s application) the City amended the ordinance under which Butzen applied with Ordinance 11.  This ordinance eliminated all permitted uses in C2 zoning districts unless the owner received a conditional use permit.  The City advised Butzen that if he performed the specified cleanup actions, the committee would recommend his permit application be granted.  Butzen was given several deadlines through 2001 to complete the cleanup, but never completed the actions.

In November 2007 Butzen filed for a conditional use permit but was denied since the application was incomplete.  In July 2008 the Supreme Court decided Town of Rhine v. Bizzell in which it concluded that a zoning provision such as Sheboygan Falls’ Ordinance No. 11 is unconstitutional on its face if it precludes any use as of right in a zoning district and if the limitation bears no substantial relation to the public health, safety, morals or general welfare.  In response, the Sheboygan Falls passed a moratorium on development in its C1, C2, and C3 zoning districts to prevent any further development until it decided how to move forward after the Town of Rhine ruling.

Butzen continued to use his property and filed a complaint seeking a judicial determination regarding the constitutionality of Ordinance 11 and questioning the validity of the City’s moratorium.  The circuit court, following the lead of the Supreme Court in the Town of Rhine case, declared Ordinance 11 to be unconstitutional.  It did, however, uphold the validity of the moratorium.  Butzen filed an inverse condemnation complaint asserting that the City’s actions amounted to a taking of his property.  He also raised a substantive due process claim under 42 U.S.C. §1983 that the City’s efforts to enforce the ordinance violations were arbitrary and capricious.  The circuit court found that he did not sufficiently establish either of the claims and that they were barred by a statute of limitations.  This appeal followed.

On appeal, Butzen focused only on the “takings” claim.  He asserted that “because of the Town of Rhine ruling, Ordinance No. 11 unconstitutionally eliminated all use of his C2-zoned property without a conditional use permit, resulting in a regulatory taking.”  According to statute, a regulatory taking occurs when a regulation denies a landowner all or substantially all practical uses of his or her property.  The Court noted that Butzen overlooked two key findings within the circuit court’s rulings.  First, the denial of Butzen’s permit was based on the ordinance in effect prior to Ordinance 11, so the determination of Ordinance 11 as unconstitutional was not relevant to his claimed injury.  Second, the fact that Butzen needed a conditional use permit to run the scrap metal shop did not deprive him of “substantially all” beneficial uses of the property since he could still conduct other business there.  The Court concluded Butzen did not sufficiently show that a regulatory taking occurred and affirmed the circuit court’s decision.

Hatfields and McCoys, meet Huss and Price

by Victoria Heldt

Apple Hill Farms Development LLP, Jon Huss Construction Corp. v. Daryl Price, Nicole Palmer v. Berhoff Homes LLC
(Wisconsin Court of Appeals May 15, 2012)

Jon Huss Construction Corp., a homebuilder, frequently builds speculation homes intended for resale. Huss built one such home on a lot adjacent to Daryl Price’s lot within the Apple Hill Farms Development. Price received approval from Apple Hill to build his house at a specific elevation, which required his lot to slope towards Huss’s and to be no more than four feet higher than Huss’s lot at the border. Price built his lot two feet higher than approved and chose not to slope his lot. Alternatively, he built a 32-foot long, 12-foot high concrete retaining wall near the property line. John Hofferber, who built the wall, stated he built it in a way that allowed it to later be faced with brick or stone. Numerous potential homeowners told Huss they would not purchase the speculation home unless something was done to make the bordering wall more aesthetically pleasing. The wall also blocked the view from Huss’s property, blocked sunlight, and caused increased water, mud, and stones to come onto the property from Price’s property.

The relationship between Huss and Price was contentious from the start. Huss testified that when Price started construction of his home, Huss walked over to introduce himself as the builder next-door. Huss allegedly responded “what the f*** do I need you for?” Hofferber testified that when he would question Price about the concrete wall he would say that “he’ll put stone or brick on it when a judge tells him he has to put stone or brick on.” Matthew Hurteau, a worker on Price’s home, testified that he heard Price say the “big ugly wall can face the ugly house next-door.” Furthermore, Huss claimed someone wrote “a** h***” on his lawn with grass killer.

Apple Hill initially sued Price on the grounds that the wall and site grading violated several restrictions and named Huss as an involuntary plaintiff. Subsequently, Huss filed his own claim, alleging the wall was a private nuisance. It also claimed that the wall prevented Huss from selling the property and decreased the fair market value of the property. It further purported that the wall was built to intentionally cause economic loss and damage to Huss. Prior to trial, the parties reached a partial agreement with Price agreeing to cut off the four feet of wall that extended above ground level and to face the remaining portion of the wall with natural stone. The district court declared the wall an intentional nuisance under common law and under Wis Stat. § 844.10. It concluded Huss suffered approximately $148,000 in damages. Price appealed.

Price argued that Huss’s complaint should have been dismissed on summary judgment because he did not prove an “interference with the use of the property as a family residence.” He argued that a private nuisance claim cannot be made based only on physical appearance. The Court quickly dismissed this argument, first noting that Price failed to cite any legal authority. The court cited Prah v. Maretti in which the Court declared a spite fence to be an actionable private nuisance. Within that ruling, it also declared that a private nuisance could exist in the form of blocked sunlight. It referred to the current definition of a nuisance as “a nontrespassory invasion of another’s interest in the private use and enjoyment of land.” Clearly, nuisance claims can arise from any disturbance of the enjoyment of property regardless of physical interference.

Price next argued that Huss failed to file a claim under the appropriate statute (Wis. Stat. § 844.10) and that the wall did not constitute a public nuisance under the statute. The Court declined to discuss this argument since it did not affect the circuit court’s determination that the wall constituted a nuisance under common law. It did, however, state that Huss’s complaint was sufficiently filed because Wisconsin statute only requires an individual to set forth basic facts in order to make a claim. Price’s last claim argued that the $148,000 awarded was speculative since it relied primarily on one real estate agent’s estimate. The Court rejected this argument since it was not supported by legal authority. It affirmed the district court’s opinion.

“Substantially similar” new construction in floodplain is not the same as elevating existing structure authorized by permit

by Victoria Heldt

Delbert E. Johnson and Nancy L. Johnson v. Pierce County Zoning Board of Adjustment
(Wisconsin Court of Appeals, March 6, 2012)

The Johnsons own a piece of property that abuts the Mississippi River in Pierce County, Wisconsin.  It is undisputed that the area is a floodplain and, therefore, the Johnsons’ mobile home, screened-in porch, and deck are nonconforming uses under Pierce County’s zoning ordinances.  In April 2010 James Kleinhans (the county zoning administrator) issued the Johnsons a land use permit to floodproof the existing structures on the property.  The permit consisted of the application, a materials list, and a hand-drawn plan of the project.  The plan ordered for the elevation of all three structures onto a new concrete foundation.

In June 2010, Kleinhans observed that the Johnsons’ construction did not conform to the plan.  The screen porch was still sitting on the ground and a new structure had essentially been built where the mobile home previously sat.  It did not resemble the preexisting mobile home or deck so Kleinhans rescinded the permit and issued a stop work order.  The Johnsons appealed the decision to the Pierce County Zoning Board of Adjustment (Board) arguing that the construction did not violate the permit.  They testified that the preexisting mobile home had been destroyed by a flood before the permit was issued, so they could not elevate it in its ruined state.  They also claimed that Kleinhans was aware that the Johnsons did not plan to elevate the entire structure when he issued the permit.  They stated they tried to incorporate as much of the old structure as possible (windows, siding, paneling) in reconstruction.  Kleinhans responded by saying that if he had known the Johnsons were not elevating the existing structure in its previous state he would not have issued the permit.  The Board concluded that the Johnsons used the permit to construct a “substantially different building” and upheld the revocation of the permit.  The circuit court affirmed the Board’s decision.  The Johnsons appealed.

The Johnsons argued several points.  First, the Johnsons contended that the Board proceeded on an incorrect theory of law.  They argued that the county’s zoning ordinance does not comply with Wis. Stat. §§ 59.69 and 59.692.  The Johnsons argued that specifically ch. 238 of the Pierce County zoning code conflicts with the previously mentioned Wis. Stat.  The Court pointed out, however, that the Johnsons relied on language within that section of the zoning code to support their argument later in the appeal.  The Johnsons may not argue that a part of the zoning code conflicts with statute while simultaneously relying on the code for their argument.  The Court noted further that the Johnsons did not make this claim before the Board and therefore forfeited the right to raise the argument on appeal.

The Johnsons argued that the structure they built was “substantially similar” to the original structure and, therefore, was not a violation of the permit.  The Court ruled that, since the Johnsons provided no legal authority for the notion that a “substantially similar” structure is allowable under a permit, it would not consider the argument.  The Court concluded that the Board did not act on an incorrect theory of law.

The Johnsons claimed that the evidence presented did not support the Board’s conclusion.  To begin its analysis, the Court acknowledged that deference is given to an agency’s decision on appeal and that “the Board is the sole judge of the weight and credibility of the evidence presented.”  The Court found that the evidence presented did indeed support the Board’s decision.  The permit issued allowed the Johnsons to elevate the existing structures and observation showed that the Johnsons instead constructed a new structure.  Johnson confirmed that he did not elevate the previously existing structure because it was ruined.  He also failed to dispute that the new structure did not include the previous porch and deck or that the Johnsons were attempting to sell the porch.  Photographs were submitted in support of all these facts.

The Johnsons further argued that the Board improperly disregarded Johnson’s testimony in which he claimed that Kleinhans already knew of his plan to modify the structure.  The Court noted that the Board is the proper judge of witnesses’ credibility and that it apparently found Kleinhans’ testimony more credible.  The Johnsons also claimed that the Board could not rely on Kleinhans’ testimony because he was never sworn in.  The Court responded by stating that the rules of evidence do not apply in administrative procedures.  Furthermore, the letter sent to the Johnsons and the record of the permit provided sufficient evidence that the Johnsons’ activities did not comply with the permit.  The Johnsons finally argued that the materials list attached to the permit served as evidence that Kleinhans authorized the new construction.  The Court pointed to Kleinhans’ testimony in which he admitted that some new construction was allowed under the permit only because “the new foundation’s footprint was slightly larger than that of the existing structures.”  Nevertheless, the primary purpose of the permit was to allow floodproofing to existing structures.  The Court rejected the argument that the Board’s decision was unsupported by the evidence.

Finally, the Johnsons purported that the Board’s decision was arbitrary, oppressive, and unreasonable.  The Johnsons first support the argument by stating that the decision was based on an incorrect theory of law and was unsupported by the evidence.  The Court already rejected those arguments in previous sections.  The Johnsons also claim that the decision prevents them from using their property and renders the property useless.  The Court noted that the Johnsons did not provide any support for these claims and that the Johnsons never asserted these claims before the Board.  They also failed to explain why the alleged uselessness of their property should allow them to violate their permit.  The Court found that the Board appropriately considered the evidence and came to a reasonable conclusion.  It affirmed the Board’s revocation of the Johnson’s permit.

Wisconsin county allowed to regulate billboards under general zoning authority, even when town specifically regulated billboards

by Victoria Heldt

Adams Outdoor Advertising, L.P., and Town of Madison v. County of Dane
(Wisconsin Court of Appeals, February 2, 2012)

Adams Outdoor Advertising, L.P. (Adams) wanted to construct a billboard on a highway located in the Town of Madison (Town) and within Dane County (County).  Adams obtained permits to build the billboard from the Town and from the Wisconsin Department of Transportation, but not from Dane County.  In order to clarify whether a permit from the County was also necessary, Adams brought a declaratory judgment action in circuit court.  The trial court concluded that the Town’s billboard ordinance preempts the County’s billboard ordinance, so a permit from the County was unnecessary.  The County appealed.

The Court analyzed the various layers of zoning laws governing the area in order to decide whether a billboard in the Town of Madison is subject to both the Town’s zoning ordinance regulating billboards and to Dane County’s similar ordinance.   The County claims it has the authority to regulate billboards pursuant to Wis. Stat. §59.69 (4), which is a broad, general county zoning enabling act.  Wis. Stat. §59.70 (22) is a more specific statute stating that the County has the authority to regulate billboards built next to highways that the County maintains.  Since the highway next to the billboard in question is maintained by the Town, it does not apply to this case.  Wis. Stat. § 60.23 (29) grants authority to the Town to regulate billboards located along highways maintained by the Town or by the County in which the town resides.  The Court identified two issues:  whether the Court has authority to regulate billboards under its general zoning authority (Wis. Stat. §59.69) and, if so, does a Town ordinance preempt any such authority.

Within Wis. Stat. §59.69 the County points to Section 4, which authorizes it to regulate “the location of buildings and structures.”  The Court looked to the Webster’s Dictionary definition of a structure as “something constructed or built…something made up of more or less interdependent elements or parts.”  It also cited the phrase “billboards and other similar structures” which can be found in several zoning statutes as evidence that a billboard is considered as structure.  The court confirmed that a billboard fit the definition of a structure.  Consequently, the County does indeed have the authority to regulate the construction and maintenance of billboards under Wis. Stat. §59.69.

As to the question of preemption, the Court concluded that the Town ordinance does not preempt the County ordinance.  It noted that the Town had indeed approved the County’s ordinance and, therefore, it was in effect within the Town’s boundaries.  Additionally, nothing within the Town’s ordinance explicitly prohibits County regulation of billboards.   Although preemptive languages does exist within the statutory scheme for regulating billboards, it applies only to ordinances pursuant to Wis Stat. §59.70(22).  Dane County draws its billboard regulation power from Wis. Stat. §59.69.  The Court concluded that the Town’s ordinance does not preempt the County’s ordinance and acknowledged that “the County and the Town share regulatory authority over billboards located on property that abuts the subject highway maintained by the Town.”

The Court addressed Adams’ main arguments and rejected them all.  First, Adams claims that the County does not have authority to regulate billboards under Wis. Stat. §59.69 because the statute makes no mention of signs or advertisement of any kind.  The Court referred to its previous discussion of the definition of a structure.  Next, Adams argues that, since Wis. Stat. §59.70 and Wis. Stat. § 60.23 are more specific to billboards, they should prevail over the general zoning enabling statutes.  The Court replied by noting that this rule of statutory construction normally applies when two statutes conflict.  Here, the two statutes do not conflict, but rather allow for shared regulatory authority.  Third, Adams purports that the County manipulated its general zoning ordinance in order to avoid regulating billboards under the more specific Wis Stat. §59.70.  The Court dismissed that claim for lack of evidence.  Lastly, Adams argued that “the County’s interest in promoting aesthetics is not sufficient to warrant its exercise of authority over billboards.”  In response, the Court notes that the statute provides more concerns than simply aesthetic concerns, mainly public health and the safety of structures.  The Court concluded that the County does have authority under Wis. Stat. §59.69 to regulate billboards and that the Town’s billboard regulation ordinance does not preempt that authority.  It reversed the circuit court’s decision and ruled in favor of Dane County.

Ordinance prohibiting lot splits found constitutional

by Victoria Heldt

Richard W. Guse and Clara Guse v. City of New Berlin and Common Council of the City of New Berlin
(Wisconsin Court of Appeals, January 18, 2012)

The Guses own a lot in the Hillcrest Terrace Subdivision in the City of New Berlin.  They wanted to divide their existing lot into two lots, with each measuring approximately 29,000 square feet with a width of 147 feet.  The average lot within the subdivision contained approximately 41,000 square feet and measured 181 feet wide.  Both the New Berlin Plan Commission and the New Berlin Common Council denied the Guses’ request based on NBMC §235-23(G).  This ordinance allows the City to prohibit new lots that are smaller than or not as wide as existing lots in the subdivision.  It also allows the city to prohibit the formation of new lots in a subdivision that is more than 25 years old.  The Guses appealed the decision to the district court, arguing that the ordinance was unconstitutionally vague and that the Council’s denial of their request was arbitrary, unreasonable, and discriminatory.  The court agreed and reversed the Council’s decision, ruling in favor of the Guses.  The City appealed.

The Court looked first to the constitutionality of NBMC §235-26(G).  An ordinance is unconstitutionally vague if “it fails to afford proper notice of the conduct it seeks to proscribe or if encourages arbitrary and erratic enforcement.”   The Guses argued it was vague because it did not set forth adequate standards for the City to consider when deciding whether to allow such a lot split.  The Court looked to previous judicial decisions regarding vague statutes and ordinances.  In the case of Humble Oil, the Court struck down an ordinance that allowed a city to prohibit gas filling stations.  In the ordinance in that case, the only factors that were to be considered when deciding on a permit were public health, safety, convenience, prosperity, or general welfare.  The Court deemed those standards to be too vague and concluded there should be some standards to guide the municipality’s actions.

Next the Court looked to cases in which it upheld statutes and ordinances.  In Wadhams Oil Co. v. Delavan the Court upheld an ordinance allowing the city to prohibit a gas station to be placed within 165 of the main street of a city.  In Smith v. Brookfield, the Court upheld an ordinance that required the submission of location and a plan of operation before a board would allow certain types of businesses.  It also contained language in the preamble that required consideration of general welfare objectives.  After analyzing those cases, the Court concluded that “ordinances may vest boards with some (and even significant) discretion without being unconstitutionally vague.”  Turning to the ordinance in question, the Court determined that the New Berlin Municipal Code clearly outlines three considerations for the court to consider when contemplating the issuance of a permit, so it is not unconstitutionally vague.

The Guses further argued that the Council’s decision to deny the request was arbitrary because the lot in question is relatively large compared to those around it, and that the denial was unreasonable because it “lacked a health, safety, or general welfare basis.”  The Court noted that the existence of differences in decisions is not necessarily indicative of arbitrariness.  In making the decision, the Council considered the criteria of the statute and citizen’s opposition to the division, so there was clearly a rational basis for the decision.

The Guses finally argued that the decision was discriminatory because the Council previously approved lot divisions that created lots smaller than the average lot size within the subdivision.  The Court found this claim to be unsupported by the record.  The Guses presented evidence of previous lot divisions, but no evidence of how those lots compared in size to surrounding lots.  The Court reversed the trial court’s decision, ruling in favor of the City.

Grant of land for county highway was an easement; land could be included to meet minimum acreage requirement

by Victoria Heldt

Wade Berger and Ilona Berger v. Town of New Denmark, William Kreuger, Norbert Buresh
(Wisconsin Court of Appeals, January 10, 2012)

The Bergers own two contiguous plots of land in the Town of New Denmark.  The two plots are zoned for Agricultural use.  Since 2003, they have been attempting to obtain building permits for both plots.  The Town’s zoning ordinances require a plot to have at least 35 acres in area in order to grant a building permit.   At a meeting before the Town Board, Wade Berger demonstrated how part of plot A had been added to plot B so that plot B would comply with the 35 acre requirement.  In addition, the Bergers purchased additional property next to plot A in order for plot A to comply with the requirement.  In the presentation, Berger showed each plot having 35.190 acres.

The Town denied their request, claiming that the plots did not meet the 35 acre requirement.  They argued that the land over which County Highway T ran should not be included when totaling the acres.  When excluded, the parcels only totaled 34.5 acres each.  The Town argued that the Selners, the previous owners of the land, had granted full title of the property underlying the highway to the Town in the 1950’s when the road was constructed.  The district court ruled in favor of the Town.

On appeal, the Court focused primarily on the language that described the conveyance of property in the 1950s.  The title of the document read “Conveyance of Land for Highway Purposes.”  The Court noted that in previous cases, it was recognized that municipalities did not receive ownership of land used for a highway, only a right of way over such property.  It further pointed out that the language “right of way” used in the conveyance strongly suggests it was granting the County a “right to a reasonable and usual enjoyment” of the land and not full ownership rights.  It found that, unless clearly stated otherwise, a granting of land for the purpose of a highway is meant to serve only as an easement. As a result, both plots were determined to be over 35 acres.

Since this decision only clarified the plot’s compliance with the 35-acre requirement and not whether it is otherwise eligible for building, further proceedings were necessary.  The Court reversed the district court’s decision and remanded it for further judgment.

Intermunicipal agreement not a “boundary agreement” exempting Village from payment requirement

by Victoria Heldt

Town of Buchanan v. Village of Kimberly
(Wisconsin Court of Appeals, December 6, 2011)

This case revolves around an agreement made between the Town of Buchanan and the Village of Kimberly regarding annexation.  In 2000 the two municipalities designated a specific area within the Town as a Village growth area.  The Town agreed not to oppose the Village’s annexation of land within the described area and the Village agreed not to try to annex land outside the area.  In 2006 the Village annexed property known as Emons Farm that was situated outside the designated Village growth area.  To settle the matter, the Village and the Town entered into an “intermunicipal agreement” in 2007.  In it, the Village agreed to pay the Town $25,000 and to refrain from attracting property owners to annex additional property in the Town.  On the other hand, it clarified that the Village may not disallow future annexation of property within the Town if a unanimous petition to do so is presented.

In 2009, the Village once again annexed property within the Town.  The Town did not object, but claimed that it was entitled to five annual payments pursuant to Wis. Stat. §66.0217(14)(a)1. This statute states that the annexation of a property cannot take place unless the party petitioning for annexation agrees to pay the Town five annual payments equal to the amount of property taxes the Town would normally collect for the property.  The Village was of the opinion that it was exempt from the payments under subd. 2 of the same statute, which states that, in the existence of a boundary agreement, the payment requirement does not apply.  The Village argued that the intermunicipal agreement made in 2007 constituted a boundary agreement, so the payments were not required.  The Town countered that the agreement was not a “boundary agreement” as defined by statute.  The circuit court ruled in favor of the Town that the agreement was not a “boundary agreement.”  It found it illogical to allow a one-time boundary negotiation for a specific instance to govern all future boundary agreements.  It opined that doing so would “render meaningless the statute.”

On appeal, the Town argued that the 2007-2008 version of Wis. Stat. §66.0301 applied while the Village argued that the 2005-2006 version of the statute applied.  The two versions were identical except that the more recent version contained an additional subsection (6) which addressed agreements “determining all or a portion of the common boundary line between two municipalities.”  The Court noted that it did not need to settle the conflict regarding which version applied since the intermunicipal agreement formed in 2007 did not constituted a boundary agreement per statute.  In order to constitute an agreement under Wis. Stat. §66.0301, it must provide for “the receipt or furnishing of services or the joint exercise of any power or duty required or authorized by law.”  Since the agreement made between the Village and the Town in 2007 contained no such provision, it did not qualify as a boundary agreement under the relevant statute.  Consequently, the payment exception in §66.0217(14)(a)2 did not apply.  The Court affirmed the circuit court’s decision in favor of the Town.

Statute of limitation runs on claims resulting from stormwater discharge

by Victoria Heldt

Charles Tsamardinos and Suzanne Tsamardinos v. Town of Burlington
(Wisconsin Court of Appeals, December 7, 2011)

Charles and Suzanne Tsamardinos own a residential property in Burlington.  They brought a claim for inverse condemnation against the Town of Burlington, arguing that the increased presence of draining water on their property after the development of Villa Heights Subdivision constitutes “physical occupation” by the Town, and results in a taking.  Storm water from Cedar Drive and from Villa Heights Subdivision flows through a culvert, across their property, and into Brown Lake, and that by this action the Town “has incorporated part of their property into its storm water management system.”  They provided two expert witnesses, the first being Hey and Associates, Inc.  The company reported that the problem was indeed due to water flowing through the culvert under Cedar Drive and that the Town was responsible for the drainage system.  Jendusa Design, the second expert witness, similarly described the source of the problem and reported that the flooding had been occurring over the past eight years. The district court denied the claim, finding that a legal taking did not occur, and further finding that the claim was barred by the statute of limitations.

On appeal, the Court of Appeals ruled against the Tsamardinos on the grounds that the statutes of limitations had expired regarding the issue. First,  Wis Stat. §88.87(2)(c) states that a property owner has three years to file a complaint if a government agency has damaged property due to negligent construction a highway or railroad grade (this would include the culvert).  Since the culvert was constructed 24 years prior, and flooding problems had been occurring for at least 8 years according to the expert witnesses, the Tsamardinos filed the complaint too late.  In response to the alternative claim that the water run-off is due to the development of the Villa Heights subdivision, the Court found that claim to be barred as well.  The governing statue requires a complaint to be filed within ten years of completion of the improvement on the property.  Since Villa Heights was recorded in 1948 and graded in the mid-1960’s, the ten year period had expired.  The Tsamardonoses argued that they should be permitted to file a complaint outside the ten year required period since the time limit does not apply to those affected by negligence in maintenance.  The Court concluded that their problem was not the result of negligent maintenance, but of the development of the subdivision, they were subject to the ten year limit.

The Court affirmed the lower court’s decision in favor of the Town of Burlington.





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