BRIDGET FASSETT, PLAINTIFF-RESPONDENT, v. CITY OF BROOKFIELD, DEFENDANT-APPELLANT.
Case No.: 2021AP269
COURT OF APPEALS OF WISCONSIN
April 20, 2022
2022 WI App 22
Neubauer, Grogan and Kornblum, JJ.
Appeal No. 2021AP269; Cir. Ct. No. 2020CV317
Opinion Filed: April 20, 2022
Submitted on Briefs: February 10, 2022
Oral Argument:
JUDGES: Neubauer, Grogan and Kornblum, JJ.
Concurred:
Dissented:
Appellant ATTORNEYS: On behalf of the defendant-appellant, the cause was submitted on the briefs of Jenna Merten of City of Brookfield, Brookfield.
Respondent ATTORNEYS: On behalf of the plaintiff-respondent, the cause was submitted on the briefs of Lisa Lawless of Husch Blackwell LLP, Milwaukee.
Nonparty ATTORNEYS: A nonparty brief was filed by Thomas Larson of Wisconsin Realtors Association, for Wisconsin Realtors Assoc., Wisconsin Builders Association, and NAOIP-WI.
COURT OF APPEALS DECISION DATED AND FILED April 20, 2022
Sheila T. Reiff Clerk of Court of Appeals
NOTICE
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.
A рarty may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See
Appeal No. 2021AP269 STATE OF WISCONSIN IN COURT OF APPEALS
BRIDGET FASSETT, PLAINTIFF-RESPONDENT, V. CITY OF BROOKFIELD, DEFENDANT-APPELLANT.
APPEAL from an order of the circuit court for Waukesha County: MICHAEL O. BOHREN, Judge. Affirmed.
Before Neubauer, Grogan and Kornblum, JJ.
BACKGROUND
¶2 The following undisputed facts are taken from the parties’ summary judgment submissions. Fassett owns a rectangular 4.93-acre parcel of land (the Property) located between two subdivisions in the City of Brookfield. The two subdivisions each have a dead-end street named Choctaw Trail that terminates at approximately the middle of the Property. The Choctaw Trail dead ends have existed for many decades, one since the 1950‘s, and the City anticipated they would one day be connected to form a through road.
¶3 Under the City of Brookfield‘s subdivision code, a property owner may ask for approval of a land division before submitting formal documentation. Approval would be subject to execution of the land division instruments, which typically consist of a plat or certified survey map (“CSM“), subdivider agreements, and other conditions.
¶4 On January 8, 2018, Fassett submitted a written request tо split the Property into four pieces, three single-family home sites and one outlot with wetlands to be dedicated to the City. Fassett‘s request included maps of three conceptual plans: (1) creating a cul-du-sac connected to the eastern portion of Choctaw Trail, but leaving the dead end on the western side; (2) connecting both Choctaw dead ends with a through street; and (3) using a shared driveway for the two proposed southern lots from the east, leaving the two Choctaw Trail dead ends in the adjacent subdivisions. Fassett stаted that she preferred the third option, the shared driveway.
¶5 Fassett received feedback from the City of Brookfield plan commission and City staff at a hearing on February 12, 2018, at which time it appeared that the plan commission was in favor of accepting the staff recommendation to require the extension of Choctaw Trail across the Property. Fassett followed up with a letter explaining the basis for her preference for the third option, a shared driveway, along with information that the neighbors opposеd a through street across the Property and between the Choctaw Trail two dead ends in the adjacent subdivisions.
¶6 Nonetheless, the plan commission approved and recommended that the City‘s common council adopt the second concept, which required that Fassett install a public through street connecting the Choctaw Trail dead ends. On June 19, 2018, the common council adopted the plan commission‘s recommendation. The approval was conditioned on Fassett satisfying several additional requirements, including submission of a CSM, dedication of the new through street, dedication of the wetlands outlot, and execution of a subdivision agreement.
¶7 In late 2019, Fassett submitted a preliminary survey map, a final CSM, and a subdivider agreement, requesting that the City adopt the CSM without the need for a through road connecting the two dead ends of Choctaw Trail. In addition to the site plan, Fassett submitted a master grading and erosion control plan, site utilities plan, and construction notes and details. Fassett also submitted a letter from legal counsel opining that the rеquired dedicated through street was an unconstitutional taking known as an exaction.
¶8 The plan commission rejected Fassett‘s application, setting forth specific findings of fact. On January 21, 2020, the
¶9 On February 19, 2020, Fassett brought this action seeking certiorari review of the City‘s January 21, 2020 denial. Fassett moved for summary judgment, arguing that the City engaged in an unconstitutional taking when it refused to approve the preliminary survey map and the CSM and conditioned approval of the development on the dedication of property and construction of the through street for public use. The circuit court granted Fassett‘s motion for summary judgment and ordered the City to approve Fassett‘s application with the preliminary survey map, final CSM, and subdivider agreement depicting the land split using the shared driveway conсept. The court also rejected the City‘s contention that the appeal was untimely. The City appeals those determinations.
DISCUSSION
I. Fassett‘s certiorari petition was timely filed.
¶10 The City argues as a threshold matter that Fassett‘s petition for certiorari review was untimely. Whether a request for certiorari review is timely is a question of law we review de novo. Awve v. Physicians Ins. Co. of Wis., 181 Wis. 2d 815, 821, 512 N.W.2d 216 (Ct. App. 1994).
¶11 A person aggrieved by the denial or failure to approve a plat “may appeal therefrom as provided in [WIS. STAT. §] 62.23(7)(e)10., 14. and 15., within 30 days of notification of the rejection of the plat.”
¶12 Nevertheless, the City contends Fassett‘s failure to appeal the City‘s June 19, 2018 approval of the through street concept in her earlier proposal renders this appeal untimely, depriving the circuit court of jurisdiction. We disagree.2
¶13 Our decision in O‘Connor v. Buffalo County Board of Adjustment, 2014 WI App 60, 354 Wis. 2d 231, 847 N.W.2d 881, provides guidance. In that case, a landowner applied for a conditional use permit (“CUP“), which was denied and not appealed. Id., ¶¶2-5. The landowner later filed a second CUP applicatiоn, which the board granted. Id., ¶¶5, 9. Citizens filed for certiorari review, arguing that the board was precluded from considering the second CUP after the denial of the first, and as
¶14 The court in O‘Connor rejected this argument, first recognizing that if the CUP applicant had wished to challenge the board‘s denial of its first CUP application, it would have been required to seek certiorari review as prescribed in
¶15 The same is true here. Fassett was not required to seek certiorari review of the City‘s 2018 decision on her three conceptual plans. The City fails to identify any statute, оrdinance, or case that prevents an applicant who first sought a determination of a proposed conceptual land split from submitting a second revised application for approval with a CSM and other supporting documents, such as the subdivider agreement. As such, we reject the City‘s unsupported contentions that Fassett was precluded from submitting the second application in 2019, or that the City was prevented from considering the second application, and more to the point, that Fassett was precluded from appealing the denial of her subsequent application seeking approval of the shared driveway concept.3
II. The City‘s proposed exaction is an unconstitutional taking.
A. Applicable Certiorari Review Principles and Standards of Review
¶16 On appeal, we review the municipal body‘s decision, not that of the circuit court. Oneida Seven Generations Corp. v. City of Green Bay, 2015 WI 50, ¶42, 362 Wis. 2d 290, 865 N.W.2d 162. Our certiorari review is limited to whether: (1) the governing body acted within its jurisdiction; (2) the governing body proceeded according to law; (3) the governing body acted in an arbitrary, оppressive, or unreasonable manner that represented its will and not its judgment; and (4) the order or determination was reasonable as based on the evidence. Id., ¶41.4 Under the statute authorizing certiorari review of municipal platting decisions, if the circuit court finds that the action of the approving authority in denying a plat was arbitrary, unreasonable, or discriminatory, the circuit court “shall direct that the plat be approved.”
¶17 Here, the City required Fassett to install public improvements as a condition for approvаl of her proposed subdivision. A municipality may “require that the subdivider make and install any public improvements reasonably necessary or that the
¶18 “[W]e must give deference to the City‘s factual reasons for conditionally approving the plat.” Hoepker v. City of Madison Plan Comm‘n, 209 Wis. 2d 633, 644, 563 N.W.2d 145 (1997). However, we owe no deference to the City‘s decision when determining if an approving authority exceeded its constitutional authority, which is a question of law. Id.
B. General Takings/Exaction Principles
¶19 Both the Fifth Amendment to the United States Constitution and article I, section 13 of the Wisconsin Constitution prohibit the taking of private property for public use without compensation.5 These prohibitions do not ban the taking of privatе property for public use, “but instead place a condition on the exercise of that power ... to secure compensation” for the taking. Somers USA, LLC v. DOT, 2015 WI App 33, ¶9, 361 Wis. 2d 807, 864 N.W.2d 114 (citation omitted).
¶20 The issue presented is whether the City‘s conditional approval of Fassett‘s proposed land-split development, requiring land dedication and the street connection, is a constitutionally permitted exaction, a category of regulatory takings. An “exaction” is defined as “conditioning approval of development on the dedication of propеrty to public use.” City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 702 (1999).6 Exactions also can include conditioning a development approval (a permit, subdivision plat, etc.) upon the developer making some financial commitment, such as here requiring Fassett to construct a public street. See Koontz v. St. Johns River Water Mgmt. Dist., 570 U.S. 595, 612 (2013) (monetary exactions must be constitutional takings); Jordan v. Village of Menomonee Falls, 28 Wis. 2d 608, 137 N.W.2d 442 (1965) (upholding ordinance requiring subdivision developer to pay fee in lieu of dedication of land as condition of subdivision approval where dedication not feasible); see also Brian W. Blaesser & Christine M. Kentopp, Impact Fees: The “Second Generation,” 38 WASH. U. J. URB. & CONTEMP. L. 55, 63-64 (1990).
¶21 The analysis of whether a government exaction is constitutional hаs been set forth by the United States Supreme
¶22 The government has the burden of proving both prongs of the Nollan/Dolan test. See Dolan, 512 U.S. at 391 & n.8. On certiorari review, those prongs must be proven by substantial evidence. Oneida Seven Generations, 362 Wis. 2d 290, ¶41.
C. The City has failed to show property dedication and street-connection conditions are required to mitigate any impacts caused by the proposed lot-split development.
¶23 The heart of the issue is who pays for the land dedication and new public street the City wants—the developer through exaction or, potentially, the taxpayers through eminent domain. The Nollan/Dolan test is designed to determine whether a landowner can be required to bear the costs to mitigate anticipated negative impacts of a development, such that the exaction roughly offsets the costs of the development (financial or otherwise) to the municipality. Here, as explained below, the City has failed to meet its burden of proof to show that the property dedication and street-connection conditions are required to mitigate negative impacts caused by the proposed lot-split development.
¶24 As the Supreme Court explained in Koontz, under the Nollan/Dolan test, the government “may not condition the approval of a land-use permit on the owner‘s relinquishment of a portion of his [or her] property unlеss there is a ‘nexus’ and ‘rough proportionality’ between the government‘s demand and the effects of the proposed land use.” Koontz, 570 U.S. at 599; see also 5 Dwight H. Merriam & Sara C. Bronin, RATHKOPF‘S THE LAW OF ZONING AND PLANNING § 90:44 (4th ed. 2021) (observing that Supreme Court case law requires that “development conditions, exactions or impact fees be reasonably related in their nature and extent to some specific problem or need generated by a particular development proposal” (footnotes omitted)).
¶25 Under Nollan, “a substantial nexus must exist between the purpose for a development exaction or condition and some problem or need generated by the particular development in question.” Merriam & Bronin, § 90:45. Thus, the government must show that the proposed development created the need for the condition—such that the government has a legitimate interest in demanding mitigation of the impacts of a proposed development. Nollan, 483 U.S. at 838; Koontz, 570 U.S. at 605-606 (government may insist that the developer internalize the “negative externalities” of the development proposal, so long as there is a “nexus” and “rough proрortionality” between the exaction that the government demands and the full public costs of the applicant‘s proposal (citation omitted)).
¶26 If an exaction satisfies the essential nexus requirement, the government also must demonstrate the exaction is “rough[ly] proportional[]” to the impact caused by the development. Dolan, 512 U.S. at 391. To do so, the government must make an “individualized
¶27 As the circuit court aptly concluded, the City‘s condition seeks to mitigate, or improve, the impacts of the “status quo“—the existing dead-end streets. That condition was not created by Fassett‘s subdivision proposal, but by the platting of the earlier subdivisions which the Property abuts. When denying Fassett‘s applicаtion seeking the shared-driveway option, the City repeatedly pointed to the municipal code‘s goal of minimizing dead-end streets. The City failed to identify any anticipated impacts caused by the proposed land split, much less impacts that would be roughly proportional to the costs of the exaction.
¶28 The City‘s argument rests exclusively on its contention that the exaction advances public benefits. It identified public safety response time benefits and improved snowplow operations, as well as shortened distances for transportation and pedestrians. However, the City did not tie these considerations to any impact caused by the proposed land split. There is no evidence that the proposed development would increase congestion, decrease safety, or hinder the adequate provision of transportation. The City‘s desire to improve current conditions for the public‘s benefit, while laudable, is not sufficient to shift the cost of eliminating the dead ends to Fassett. See Nollan, 483 U.S. at 841 (government‘s belief that exaction will serve public interest “does not establish that the [landowner] alone can be compelled to contribute to its realization“). The City ignores that it must identify anticipated impacts caused by Fassett‘s proposed development. See Nollan, 483 U.S. at 838. Moreover, to require that Fassett dedicate her land and build a street without compensation, the City must show that the conditions it imposed are roughly proportional to offset the costs of those impacts, which the municipality would otherwise bear. As explained above, the City has failed tо show the land split will create or exacerbate these identified public problems or needs.
The City does not cite to any evidence of a public financial impact caused by the proposed development that will be roughly offset with an exaction.7
¶30 While we need not go on, one of the conditions at issue in Dolan also illustrates the lack of rough proportionality between the conditions imposed and the development at issue. Dolan sought a permit to expand the footprint of her store and pave a new parking lot next to it. Id. at 379. The city conditioned approval of the permit upon the dedication of a portiоn of Dolan‘s property for a pedestrian/bicycle path. Dolan, 512 U.S. at 380. While there was a nexus between the bike path and reducing traffic congestion caused by the expansion, the city failed to establish that the bike path would roughly offset the traffic demands generated by the proposed expansion. Id. at 387-88, 395-96.
¶31 Again, here, there is not even an identified burden, i.e., increased traffic demands generated by the development that would necessitate connecting the two dead-end streets. It therefore follows that there can bе no rough proportionality vis-à-vis the through-street condition.
¶32 In short, the City has not met the “essential nexus” and rough proportionality requirements because there is no evidence that the identified impacts of the dead-end streets are caused by the proposed lot split of the Property. Rather, it is apparent that the City would like to seize upon this opportunity to address the existing dead ends and assign the costs of providing a public benefit—a through street—to Fassett. As the United States Supreme Court has made clear, while the Takings Clause does not bar the government
¶33 Thus, we affirm the circuit court order determining that the City did not act according to law and, as such, its decision was unreasonable. The application of the municipal code provision stating a preference to minimize dead ends was unreasonable because the proposed lot split did not cause the dead ends in this case. As explained herein, the exaction was unconstitutional under the Nollan/Dolan test, and thus, the circuit court appropriately ordered the City to approve Fassett‘s application. See Hartland Sportsmen‘s Club, Inc. v. City of Delafield, 2020 WI App 44, ¶20, 393 Wis. 2d 496, 947 N.W.2d 214 (reversal appropriate “where the factual evidence failed to support the municipality‘s ... decision“; “[b]ecause the decision maker cannot supplement the record with new evidence or new grounds, the defect cannоt be cured“).8
CONCLUSION
¶34 There is no evidence that the proposed development of Fassett‘s property would cause any of the City‘s identified impacts, which are caused by the existing dead ends. As application of the Nollan-Dolan test makes clear, elimination of pre-existing needs does not establish a constitutional basis to require that Fassett bear the costs of putting into place a public through street to benefit the public at large.
By the Court.—Order affirmed.