975 N.W.2d 300
Wis. Ct. App.2022Background
- Fassett owns a 4.93‑acre parcel between two subdivisions whose streets (Choctaw Trail) end in dead‑ends abutting her property; the City long anticipated connecting those dead‑ends.
- In January 2018 Fassett proposed three conceptual lot‑split plans and preferred a shared‑driveway plan that would leave the dead‑ends unconnected; the plan commission and common council favored a plan requiring a public through‑street connecting the dead‑ends.
- In 2019 Fassett submitted a final certified survey map (CSM) and subdivider agreement adopting the shared‑driveway option and challenged the City’s requirement that she dedicate land and construct a through‑street as an unconstitutional exaction.
- The City denied the CSM unless Fassett dedicated property and built the through‑street, citing the municipal code preference to minimize dead‑ends and asserted public‑safety, snowplow, and circulation benefits.
- Fassett filed certiorari review; the circuit court held her petition was timely, found the exaction violated the federal and state takings clauses under the Nollan/Dolan framework, and ordered approval of the CSM with the shared‑driveway plan.
- The City appealed; the court of appeals affirmed, concluding the City failed to prove an essential nexus and rough proportionality between the exaction and impacts caused by Fassett’s proposed development.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of certiorari petition | Fassett filed within 30 days of the City’s January 21, 2020 denial of the CSM | City: Fassett should have appealed the June 19, 2018 conceptual decision; failure renders current appeal untimely | Timely. Applicant may submit a subsequent revised application; O’Connor controls — no bar here to filing a second application |
| Whether dedication/construction condition is an unconstitutional exaction | Condition lacks essential nexus and rough proportionality because dead‑ends pre‑exist and are not caused by Fassett’s lot split | City: Connecting streets advances public safety, snow removal, and circulation and the municipal code favors minimizing dead‑ends | Exaction unconstitutional. City failed to show the exaction mitigates impacts caused by the proposed development (no nexus or rough proportionality) |
| Standard of review for certiorari and constitutional claim | Defer to City’s factual findings but constitutional questions reviewed de novo | City sought deference to its planning judgment | Court: factual reasons get deference, but the constitutional takings question is legal and reviewed without deference; City’s action was unreasonable |
| Remedy — relief requested by Fassett | Direct approval of CSM and subdivider agreement reflecting shared‑driveway plan | City sought to uphold denial and condition approval on dedication/construction | Affirmed. Circuit court correctly ordered the City to approve the proposed lot split as submitted |
Key Cases Cited
- Nollan v. California Coastal Comm’n, 483 U.S. 825 (1987) (establishes the "essential nexus" test for development exactions)
- Dolan v. City of Tigard, 512 U.S. 374 (1994) (requires an individualized "rough proportionality" showing between exaction and development impact)
- Koontz v. St. Johns River Water Mgmt. Dist., 570 U.S. 595 (2013) (applies Nollan/Dolan principles to monetary exactions)
- Oneida Seven Generations Corp. v. City of Green Bay, 362 Wis. 2d 290 (2015) (scope and standards for certiorari review of municipal decisions)
- O’Connor v. Buffalo County Bd. of Adjustment, 354 Wis. 2d 231 (2014) (municipalities may consider successive applications; prior denial did not bar a new application)
- Hartland Sportsmen’s Club, Inc. v. City of Delafield, 393 Wis. 2d 496 (2020) (reversal appropriate where municipality’s decision lacks evidentiary support)