Lead Opinion
¶1. Petitioners Richard and Barbara Eberle (Eberles) sought review in this case of the court of appeals' decision to uphold the circuit court's dismissal of various claims they alleged in connection with the Dane County Board of Adjustment's (Board's) denial of a special exception permit. The Eberles contend that the effect of the permit denial was to deprive them of a legal means of access to their property. Following a certiorari review, the circuit court ordered the Board to issue the permit, a decision which the court of appeals affirmed and which has not been appealed to this court.
¶ 3. We hold that the Eberles have stated a valid temporary regulatory taking claim under Article I, § 13 of the Wisconsin Constitution. To the extent that Reel prohibits the Eberles' claim, we overrule that decision as contrary to the takings jurisprudence of this court and the United States Supreme Court. Given our decision that the Eberles may pursue their art. I, § 13 claim, we hold that the Eberles' federal claims under 42 U.S.C. § 1983 are not ripe for review. It follows that the Eberles are not entitled to attorney's fees under 42 U.S.C. § 1988 at this point in the lawsuit, although nothing forecloses them from seeking such attorney's fees at a later stage in this litigation. Consistent with these conclusions, we reverse the portion of the court of appeals' decision dismissing the Eberles' art. I, § 13 claim, affirm the rest of the court's decision,
¶ 4. The Eberles are real estate developers and builders who own a tract of land in the Town of Verona (Town), Dane County (County). On January 11, 1994, after securing the approval of the County; the Eberles recorded a certified survey map dividing the land into two parcels, Lots 1 and 2. Effective with the recording of the certified survey map, the zoning of Lots 1 and 2 was changed to classifications which would permit residential uses.
¶ 5. Prior to this rezoning, Lots 1 and 2 could be accessed from either of two public roads, Coray Lane and Timber Lane. As a condition of the rezoning, however, the County, at the request of the Town,
¶ 6. On February 17,1995, the Eberles sold Lot 1 to Burt and Silvana Avedon (Avedons) and contracted to build a home on the lot for them. The deal required the Eberles to secure all necessary permits, including a
¶ 7. Following several public hearings,
¶ 8. The Eberles requested reconsideration, which the Board denied on August 24, 1995. The Eberles responded by seeking certiorari review of the denial in Dane County Circuit Court, pursuant to Wis. Stat. § 59.99(10X1993-94).
¶ 9. Subsequently, the Avedons filed a separate lawsuit against the Eberles, seeking recission of the Lot 1 purchase contract and damages. The Avedons alleged that the Eberles' failure to obtain the special exception permit deprived them of the ability to use Lot 1 by preventing the legal construction of any driveway to the property. The Avedons' suit was dismissed by stipulation of the parties after the Eberles agreed to repurchase Lot 1 for $195,000 ($20,000 more than the price paid by the Avedons) and waive all claims for the work which had been completed on the home.
¶ 10. On March 13, 1996, the Eberles amended their complaint, adding as defendants the four individual Board members who had voted to deny the special exception permit. In the amended complaint, the Eberles reasserted their claim for certiorari review. They also alleged the following additional claims stem
¶ 11. The Board and the individual defendants moved to dismiss all of the claims added by the amended complaint, contending that they failed to state claims upon which relief could be granted. On September 6, 1996, the circuit court, Judge Sarah B. O'Brien presiding, reversed the Board's denial of the permit and remanded the matter to the Board for a new hearing using the correct law and procedures comporting with due process. The court ruled that the Board improperly applied standards for wetland zoning districts to property of the Eberles which did not appear on any Wisconsin Wetland Inventory Map. The court also determined that the Board exceeded its jurisdic
¶ 12. Both the Eberles and the defendants sought reconsideration. On November 8, 1996, Judge O'Brien determined that her September 6, 1996, decision to remand the matter was incorrect. Finding that the record in this case was complete, the court reversed the Board's decision and ordered the Board to issue the special exception permit to the Eberles.
¶ 13. This time, the circuit court went on to address the additional claims raised by the amended complaint. First, the court dismissed the Eberles' claim of inverse condemnation under Wis. Stat. ch. 32. The court reasoned that the Board was not "a person possessing the power of condemnation," as required by Wis. Stat. § 32.10. Further, even if the complaint were amended to add Dane County as the defendant, the court characterized the Eberles' claim as a "temporary taking" claim, which, under Zinn v. State,
¶ 14. Finally, the court dismissed the Eberles' federal constitutional claims based on 42 U.S.C. § 1983, concluding that they were not ripe for adjudication.
¶ 15. The defendants moved for reconsideration and the Eberles requested clarification of the November 8, 1996, order. On July 11, 1997, Judge O'Brien issued a third decision and order in the matter. Based on Reel, the circuit court reversed its November order and granted the defendants' motion to dismiss the Eberles' art. I, § 13 temporary taking claim. The court reasoned that, under the rule of Reel, this case involved no legally imposed restriction, and thus, no taking, because the circuit court had reversed the Board's denial of the permit.
¶ 17. The Eberles appealed the circuit court's orders dismissing their claims
¶ 18. After an independent review of the record, the court of appeals determined that the circuit court had correctly ordered the Board to issue the special exception permit. Id. at 12. The court of appeals also agreed with the circuit court that Reel required the dismissal of the art. I, § 13 temporary taking claim.
¶ 19. The court of appeals, like the circuit court, concluded that the 42 U.S.C. § 1983 due process claims were not ripe. See id. at 13-16. Although the court concluded that the Board's actions did implicate the
¶ 20. Finally, the court of appeals rejected the Eberles' claim for attorney's fees under 42 U.S.C. § 1988. Id. at 17. Citing Hensley v. Eckerhart,
I — I I — I
¶ 21. We granted the Eberles' petition for review of the court of appeals' decision. Because that decision affirmed the circuit court's grant of a motion to dismiss the Eberles' amended complaint, the question before this court is whether the amended complaint states a claim upon which relief can be granted. See Zinn,
¶ 22. Article I, § 13 of the Wisconsin Constitution provides, "The property of no person shall be taken for public use without just compensation therefor." When determining whether art. I, § 13 is triggered by factual allegations concerning a particular piece of property, the threshold inquiry is whether the property has been "taken." See Zealy v. City of Waukesha,
A.
¶ 23. A "taking" need not arise from an actual physical occupation of land by the government. Howell Plaza, Inc., v. State Highway Comm’n,
[T]he absolute position. . .that there must be an actual physical occupation by the condemning authority, is not the only test of a "taking." There can be a "taking" if a restriction, short of an actual occupation, deprives the owner of all, or substantially all, of the beneficial use of his property.
Howell Plaza I,
¶ 24. In Howell Plaza II, recognizing that "[s]ome of the language in [.Howell Plaza Z] is broad enough to allow the finding of a 'taking' whenever a property owner is unable to beneficially use his property, even where this is only an indirect result of government
¶ 25. Takings which do not involve physical invasions of land are called "regulatory takings." See Hoepker v. City of Madison Plan Comm'n,
¶ 26. Both the Wisconsin Supreme Court and the United States Supreme Court have recognized that just compensation is constitutionally required for "temporary regulatory takings," or regulatory takings which continue for only a temporary period of time. See First English Evangelical Lutheran Church v. Los Angeles County,
¶ 27. Zinn was an action brought by Rose Zinn, the sole owner of the riparian rights to a lake and all of the land around it. Zinn,
¶ 28. Subsequently, Zinn filed a lawsuit against the state, alleging that the DNR's ruling, during the period it was in effect, constituted a taking of her land for public use requiring just compensation under Article I, § 13 of the Wisconsin Constitution. Id. at 422. This court reversed the court of appeals' holding that Zinn's claim should be dismissed, holding that Zinn had stated a valid claim for a temporary regulatory taking under art. I, § 13. Id. at 423-24.
¶ 29. The Zinn court concluded that the DNR’s ruling was a "legally imposed restriction on Zinn's property" under Howell Plaza II and rejected the position that a temporary governmental restraint on
The test to determine whether there was a taking is whether the government action deprived the property owner of all or substantially all beneficial use of the property. While the length of the time period of the restriction is a factor in determining whether such a deprivation has occurred once this test is satisfied there has been taking even though the property owner has regained full use of the property due to the government's rescission of the restriction. The governmental unit which has taken the property must then provide just compensation for the period of the taking. Therefore the fact that the DNR's ruling which took Zinn's property was later rescinded does not prevent Zinn, if her allegations are proven at trial, from recovering just compensation for the period in which her property was taken.
Zinn,
¶ 30. The court in Zinn rejected the state's argument that the ruling was not a taking because the DNR did not intend to take Zinn's property. Id. at 429-30. We stated:
It is well established that "the constitution measures a taking of property not by what a state says, or by what it intends, but by what it does." SanDiego, 450 U.S. at 652-53 (Brennan, J., dissenting) [internal quotation omitted]. It is the effect of the state's action that triggers the Just Compensation Clause, not the intent of the government in taking the action which led to the deprivation of private property rights. If government action has the effect of taking private property for public use, just compensation must be made.
Id. at 430 (emphasis in original). This court also held that a decision of an administrative agency could constitute a taking, reasoning that the civil immunity of the individual decision-makers did not alter the fact that just compensation is constitutionally due whenever a taking occurs. Id. at 431.
¶ 31. For these reasons, this court concluded that Zinn had stated a valid claim for a temporary regulatory taking under Article I, § 13 of the Wisconsin Constitution. Id. at 432. The court then tackled the issue of the proper remedy for Zinn's claim. Id. We concluded that in the absence of applicable legislatively prescribed procedures for obtaining just compensation, a claim for a taking may be brought directly under art. I, § 13 of the Wisconsin Constitution. See id. at 437-38. See also Wisconsin Retired Teachers Ass’n, Inc. v. Employe Trust Funds Bd.,
B.
¶ 32. We are satisfied, based on the foregoing legal principles, that the Eberles have stated a valid claim for a temporary
¶ 33. Further, the Eberles have alleged a sufficient legally imposed restriction, as this court applied that criterion in Howell Plaza II and Zinn. Unlike the plaintiff in Howell Plaza II, the Eberles do not allege that a taking resulted from a tentative development plan which the government has not yet implemented or a statement that permits would be denied by a person lacking the authority to deny or grant permits. See Howell Plaza II,
¶ 34. Likewise, a comparison of the circumstances of this case to the facts of Zinn make plain that the Eberles have alleged a sufficient legally imposed restriction. The court in Zinn held that Zinn had sufficiently alleged a legally imposed restriction because the DNR had the statutory authority to make the ruling, the ruling was binding on Zinn, and the ruling had the effect, under the applicable statutes, of retitling Zinn's land to the state for public use. Zinn,
¶ 35. We are unmoved by the Board's contention that the Eberles should have sought a variance, requested rezoning of the parcel, or asked the County to lift the condition that access had to be from Timber Lane. It would not make sense to require the Eberles to pursue a variance or rezoning when the zoning of the parcel permitted the construction of a driveway to the lot.
¶ 36. Because the Eberles have alleged facts which, if proved, would show that the Board's denial of the special exception permit resulted in a legally imposed restriction which deprived the Eberles of all or substantially all practical use of Lot 1, we conclude that the Eberles have stated a valid claim for a temporary regulatory taking under Article I, § 13 of the Wisconsin Constitution.
C.
¶ 37. Before moving on, we must address the conclusion of the courts below that the court of appeals' decision in Reel Enterprises v. City of LaCrosse,
DNR's refusal to allow a sewer extension to the plaintiffs' properties was a restriction on the use of their properties. However, the circuit court reversed the DNR's disapproval of the extension. Consequently, DNR's refusal was not a legally enforceable restriction on the use of the plaintiffs properties. It therefore could not be a taking. Compare Howell Plaza II,92 Wis. 2d at 86 ,284 N.W.2d at 893 (taking cannot occur by restraint imposed by agency lacking legal authority to do so).
A legally imposed restriction which the adopting agency later repeals, rescinds or amends may be a compensable temporary taking. [First English], 482 U.S. at —,107 S. Ct. at 2389 ; Zinn,112 Wis. 2d at 429 ,334 N.W.2d at 73 . But if a court reverses the agency’s action which created the restriction, a legally imposed restriction does not exist and no taking has occurred.
Id. at 676-77 (emphasis added).
¶ 41. The United States Supreme Court later indicated its agreement with these principles in First English, in which the Court stated, "We merely hold
¶ 42. The Reel rule runs counter to these settled rules of law. To illustrate, imagine a decision by a governmental entity which constitutes an unconstitutional taking of land. Under the above principles, the landowner is entitled to just compensation starting on the date the decision took effect. Now imagine that the landowner succeeds in getting a court to overturn the entity's decision. In the absence of Reel, the effect of the court's decision is to place an ending date on the temporary taking period, and thus, help to determine the amount of just compensation due the landowner. Under Reel, however, the effect of the court's decision is to convert the taking, after the fact, into something which was not a taking, and thereby wipe out the landowner's ability to recover any just compensation.
¶ 43. As such a result is not consistent with the law of takings established in cases of this court and the
IV.
¶ 44. The Eberles have asserted two claims of a temporary regulatory taking contrary to the federal constitution under 42 U.S.C. § 1983,
¶45. We have utilized a two-pronged test in determining whether a regulatory taking claim is ripe for adjudication:
[W]here a regulatory taking claim is made, a plaintiff must prove that: (1) a government restriction or regulation is excessive and therefore constitutes a "taking" of property; and (2) any proffered compensation is unjust. See MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, 348 (1986). Both elements must be ripe before a claim is justiciable. See Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172 , 186, 194 (1985).
Hoepker,
¶ 46. In regard to the second element, the United States Supreme Court has explained that "because the Fifth Amendment proscribes takings without just compensation, no constitutional violation occurs until just compensation has been denied." Williamson County,
¶ 47. The Eberles' temporary regulatory taking claims fail the second element of the ripeness test. As we have already explained, Wisconsin has a procedure for remedying temporary regulatory taking claims. Plaintiffs seeking just compensation for a temporary regulatory taking may seek just compensation directly under Article I, § 13 of the Wisconsin Constitution, con
¶ 48. We hold that the Eberles' federal regulatory taking claims are not ripe for our review. Consequently, we affirm the decision of the court of appeals upholding the circuit court's dismissal of those claims.
¶ 49. Finally, we consider whether the Eberles may recover attorney's fees pursuant to 42 U.S.C. § 1988(b), which provides:
In any action or proceeding to enforce a provision of sections 1981,1981a, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318 [20 U.S.C.A. § 1681 et seq.], the Religious Freedom Restoration Act of 1993 [42 U.S.C.A. § 2000bb et seq.], title VI of the Civil Rights Act of 1964 [42 U.S.C.A. § 2000d et seq.], or section 13981 of this title,, [sic] the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs.. . .
42 U.S.C.A. § 1988(b). In determining the availability of attorney's fees under § 1988, the threshold question is whether the plaintiff is a "prevailing party." Hensley v. Eckerhart,
¶ 50. Under the plain language of 42 U.S.C. § 1988(b), our ruling that the Eberles' 42 U.S.C. § 1983 claims were properly dismissed would seem to preclude the Eberles from recovering attorney's fees under § 1988 in this suit. The United States Supreme Court has held that "only a court in an action to enforce one of the civil rights laws listed in s. 1988 may award attorney's fees." See North Carolina Dep't of Transp. v. Crest St. Community Council, Inc.,
¶ 51. Since the Eberles' 42 U.S.C. § 1983 claims were dismissed only because they were not ripe, however, the situation is not so clear-cut. The § 1983 claims might become ripe at some later stage in this litigation and the Eberles might successfully pursue them. In that event, this might become "an action to enforce one of the civil rights laws listed in s. 1988," id., and Eberles might be entitled to 42 U.S.C. § 1988 attorney's fees on the § 1983 claims and other claims under the reasoning of the Court in Hensley.
¶ 52. In Hensley, the Court ruled that a plaintiff who prevails on some claims but not others may nevertheless be entitled to full attorney's fees under 42 U.S.C. § 1988. See Hensley,
¶ 53. If, in the future, the Eberles pursue and prevail on their 42 U.S.C. § 1983 temporary regulatory taking claims, they might qualify as "prevailing par
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¶ 54. In sum, we hold that the Eberles have stated a valid claim for a temporary regulatory taking under Article I, § 13 of the Wisconsin Constitution. We conclude that the language in Reel upon which the circuit court and court of appeals relied is contrary to established precedent of this court and the United
¶ 5 5. In light of our holding that the Eberles have a valid state law remedy in their art. I, § 13 claim, we determine that the Eberles' federal temporary regulatory taking claims under 42 U.S.C. § 1983 are not ripe for review. Consequently, the Eberles may not seek attorney's fees under 42 U.S.C. § 1988 at this point in this lawsuit, although nothing prevents them from reasserting their right to § 1988 attorney's fees at a later stage in this litigation. Consistent with these conclusions, we reverse the portion of the court of appeals' decision dismissing the Eberles' art. I, § 13 claim, affirm the rest of the court's decision,
By the Court. — The decision of the court of appeals is affirmed in part and reversed in part, and the cause is remanded to the circuit court.
Notes
Neither the Board nor the individual defendants responded to the Eberles' petition for review or sought review in this court of the decision of the court of appeals to affirm the circuit court's order directing the Board to issue the special
Counsel for the Eberles indicated at oral argument that the primary reason that the Town opposed access from Coray Lane was that Coray Lane's location in the northwest corner of the township would require the Town's emergency vehicles and school buses to drive approximately six miles further to reach the two lots than they would have to if access were from Timber Lane. See also Letter from Town to Dane County Board of Adjustment of 5/10/95.
The dissent repeatedly mischaracterizes this permit as a "building permit," in an apparent attempt to fit this case into particular language in First English Evangelical Lutheran Church v. Los Angeles County,
The special exception permit allegedly was mandated by a Dane County ordinance applicable to projects involving the filling of areas located within a certain distance of navigable waterways. See Dane County Ordinance § 11.05(3)(a). The majority of Lot 1 is connected to Timber Lane by a narrow strip of land approximately 1/2 mile long. Any driveway from Lot 1 to Timber Lane would have to cross a small, unnamed tributary of the Sugar River which runs through the strip of land. For purposes of this action, the Eberles accept that the tributary is navigable.
At these hearings, the Eberles presented detailed plans for the construction of a driveway from Lot 1 to Timber Lane. The proposed driveway included a bridge to cross the small tributary which ran through the land. The Eberles also presented a soil erosion control plan. There is no indication that the Board had any concerns with the Eberles' proposed plans; in fact, the record reveals that the Board commented favorably on the design numerous times during the hearings.
Wisconsin Stat. § 59.99(10)(1993-94) was renumbered Wis. Stat. § 59.694(10)(1995-96) by 1995 Wis. Act 201.
We do not determine whether, as the dissent contends, the Eberles might have avoided these damages. The proper amount of damages is an issue for trial. As we explain later in this opinion, our task at this point is only to determine whether the Eberles have stated a claim.
Unless otherwise noted, all statutory references are to the 1995-96 version.
In their amended complaint, the Eberles also alleged claims under 42 U.S.C. §§ 1985(3) and 1986. The plaintiffs withdrew these claims in their Brief in Opposition to Motion to Dismiss, filed in the circuit court on May 16, 1996.
The court inadvertently stated in its September 6, 1996, Decision and Order that the Board found that access from Timber Lane (rather than Coray Lane) was preferable. As the court of appeals noted, the court corrected that error in a later Decision and Order. See Decision and Order, November 8, 1996 at n.1, 1-2.
The circuit court declined to address the individual defendants' argument that this claim should be dismissed on grounds of immunity under Wis. Stat. § 893.80(4). The court concluded that the issue of qualified immunity could be raised by summary judgment prior to trial but could not be decided on a motion to dismiss.
In doing so, the court discussed only the Eberles' claim of a taking under the Fifth Amendment of the United States Constitution, and did not mention the Eberles' substantive and procedural due process claims under 42 U.S.C. § 1983 or their claim for attorney's fees under 42 U.S.C. § 1988.
The Eberles did not appeal the circuit court's dismissal of their inverse condemnation claim under Wis. Stat. ch. 32.
The court of appeals declined to consider the Eberles' argument that Reel is unconstitutional and contrary to other binding decisions, noting that the court of appeals does not have the power to overrule its own published decisions. Eberle v. Dane County Bd. of Adjustment, No. 97-2869, unpublished slip op. at 13-14 (Wis. Ct. App. Aug. 20, 1998) (citing Cook v. Cook,
See Brian W. Ohm, Towards a Theory of Wisconsin Regulatory Takings Jurisprudence, 4 Wis. Envtl. L.J. 173, 175 (Summer, 1997) (calling this court "a national leader in the development of regulatory takings jurisprudence.")
See Dolan v. City of Tigard,
For a discussion of Zinn, see Alemante Gebre-Selassie, Note, Inverse Liability of the State of Wisconsin for a De Facto "Temporary Taking" as a Result of an Erroneous Administrative Decision: Zinn v. State, 1984 Wis. L. Rev. 1431 (1984).
As noted earlier, the United States Supreme Court later reached the same conclusion in First English.
The court in Zinn specifically rejected the argument that a landowner who suffers a temporary taking should be required to proceed under Wis. Stat. § 32.10, which allows a landowner to sue for "inverse condemnation" if he or she "believes that his or her property has been taken by the government without instituting formal condemnation proceedings." Zinn, 112 Wis. 2d at
The statute is designed solely to deal with the traditional exercise of eminent domain by the government: the government has occupied private property, plans to continue such occupation and the landowner is merely requesting just payment for this land. In effect the land which has been taken by the government without first commencing condemnation proceedings is sold to the government by the landowner.
But this is not the situation presented by the facts alleged in the complaint. Here, the state, through the action of the DNR, has for a temporary period taken title to the plaintiffs land. The ruling affecting the title transfer has since been rescinded and the state does not want the land and the plaintiff does not want to "sell" the land to the state. The landowner simply wants just compensation for the period in which the state took the property which has since been returned. Sec. 32.10, Stats., was simply not designed to remedy this type of taking.
Id. at 433-34. We note that the language of Wis. Stat. § 32.10 has remained substantially the same since Zinn was decided.
Because the circuit court eventually ordered the Board to issue the permit, any regulatory taking claim asserted by the Eberles would have to be for the temporary deprivation of use which occurred during the period in which the permit denial was in effect. Consistent with Zinn, we do not attempt to pinpoint this time period, leaving that issue to the determination of the circuit court upon remand. See Zinn,
Since the issue was not raised in this court, we do not address whether an Article I, § 13 claim can be brought against these particular defendants. See Zinn,
In this regard, the instant case is distinguishable from Zealy v. City of Waukesha,
The dissent claims that this conclusion leads us into "uncharted" territory. See dissent at 643-44. We find our course to be well mapped.
This court held 16 years ago in Zinn that once the government takes action which strips a property owner of "all or
The Eberles also argue that Reel is contrary to Article I, § 9, the "remedy for wrongs" provision of the Wisconsin Constitution. This court has relied on art. I, § 9 in prior cases. E.g., Estate of Makos v. Wisconsin Masons Health Care Fund,
The Board and the dissent urge us to adopt the reasoning of the majority in Landgate, Inc. v. California Coastal Comm’n,
The dissent would conclude that the Eberles' eventual receipt of their permit renders the period in which the permit denial allegedly deprived them of the use of their land a mere "delay," rather than a "taking." See dissent at 646-47. This position-is without merit, as we have previously explained. See First English,
It is important to keep in mind that the question before us at this stage of the litigation is whether there is any set of facts which, if proved by the Eberles, would entitle them to relief. See Zinn,
In Reel, the court of appeals attempted to reconcile its decision with First English by adopting a narrow reading of that decision. See Reel,
Specifically, we overrule the language appearing on pages 676 and 677 which is quoted in the text of this opinion, starting with "DNR's refusal to allow a sewer extension," Reel,
In addition, we overrule those portions of Reel which suggest that Wis. Stat. §32.10 may provide a remedy for a temporary taking. See id. at 666, 674-75. As we explained in footnote 16, we came to the opposite conclusion in Zinn.
We agree with the court of appeals that any due process claims which might be characterized as other than regulatory taking claims were* disposed of by the circuit court and court of appeals in connection with the certiorari review of the Board's denial of the permit. See slip op. at 16 & n.13. See also Williamson County,
Further, we reject the Eberles' argument that they will be unable to recover consequential damages unless we permit them to bring their substantive and procedural due process claims. This court has held that the just compensation required by Article I, § 13 of the Wisconsin Constitution may include consequential damages. See Luber v. Milwaukee County,
We recognized in Hoepker v. City of Madison Plan Commission,
It should be noted that in concluding that the plaintiffs' regulatory taking claim was not ripe in Hoepker v. City of Madison Plan Comm'n,
In Hoepker, however, it was not clear whether the plaintiffs' unripe regulatory taking claim would involve a temporary Or permanent taking; under the applicable ordinance, the plaintiffs potentially could have been required to reserve land permanently or for only a five-year period. See id. at 649. The discussion in Hoepker regarding § 32.10 was intended to address solely the potential permanent regulatory taking claim, which was the primary focus of the parties' arguments. Accordingly, Hoepker should not be construed as supporting in any way the position that temporary takings can be remedied through § 32.10.
We acknowledge that in Zealy, this court elected to address the merits of the plaintiffs claim under Wis. Stat. § 32.10 even though we determined that the claim was not ripe.
Texas State Teachers Ass'n v. Garland School Dist.,
As we explained in footnote 1, the court of appeals' ruling regarding the order to issue the permit remains unaffected by this opinion.
Dissenting Opinion
¶ 56. (dissenting). A commentator recently described the takings jurisprudence of the U.S. Supreme Court as "a top contender for the dubious title of 'most incoherent area of American law.' "
¶ 57. The law is undisputed in Wisconsin that the state must compensate for temporary takings. Zinn v. State,
¶ 58. The majority opinion overturns Wisconsin precedent
¶ 59. The U.S. Supreme Court was careful to distinguish the facts in First English from the facts presented in the instant case. In First English, the U.S. Supreme Court cautioned that a normal delay in obtaining permits, variances and the like, was quite a different question. The U.S. Supreme Court limited its holding as follows: "We limit our holding to the facts presented, and of course do not deal with the quite different questions that would arise in the case of normal delays in obtaining building permits, changes in zoning ordinances, variances, and the like which are not before us."
¶ 60. The holding in First English is distinguishable from the situation before us. I would follow the courts that limit First English to its facts. In each of these cases, as in the present case, an administrative body refused to allow the landowner’s requested use. Thereafter a court overturned the administrative decision and allowed the use requested. See, e.g., Landgate, Inc. v. California Coastal Commission,
¶ 61. In all of these cases, the courts refused to view the relatively short time between the application and ultimate government approval of the application
¶ 62. The result reached by the majority opinion interferes with the balancing of policies underlying our system of permits and approvals by agencies. The permit process is imposed on the public as a whole to ensure the orderly development of real property, simultaneously benefiting and burdening property owners. The protection of public rights may be accomplished by the exercise of the police power unless the damage to the property owner is too great and amounts to a confiscation. Short of that, the government retains the ability, in furtherance of the interests of all citizens, to regulate uses of land. It is only when government regulation goes too far that there is an unconstitutional taking.
¶ 63. I am not persuaded that delays in the development of property that are occasioned by administrative proceedings are compensable as takings, except perhaps in the most unusual circumstances. A simple mistake in governmental deci-sionmaking for which a review remedy is available should not ordinarily constitute a temporary taking. I am convinced that the public interest in having important land use decisions made in an orderly way justifies a temporary burden on a land owner. This burden is the inevitable by-product of democratic government.
¶ 64. In my opinion, the facts alleged in this case demonstrate nothing more than an ordinary delay associated with the usual process for obtaining such a permit, rather than a matter of constitutional magni
¶ 65. I hope that the majority opinion does not induce government officials and boards to avoid making decisions for fear that the decisions might later be challenged and give rise to lawsuits for damages.
¶ 66. I also write to state my unease with certain facts indicating that the plaintiffs may have contributed to the circumstances giving rise to the damages they claim. On January 20, 1995, the plaintiffs petitioned the Board for a special exception permit. On February 17,1995, prior to obtaining the permit, plaintiffs sold Lot 1 under a sales agreement that required the plaintiffs to secure all necessary permits, including the special exception permit for constructing the driveway. On July 27,1995, after a series of public hearings at which the plaintiffs presented detailed plans for construction of the driveway, the Board voted 4 to 1 to deny the permit. Subsequently, the purchasers filed a suit seeking rescission of the sales contract, which the plaintiffs settled at an amount that constituted a $20,000 loss. On September 6, 1996, the circuit court, on certiorari review, reversed the Board's denial of the permit.
¶ 67. On these facts, it appears that the plaintiffs most likely would have avoided most, if not all, losses if they had obtained the special exception permit before beginning construction. Instead, the plaintiffs took a calculated business risk founded upon their expectation that they would obtain the permit.
¶ 69. For the stated reasons, I dissent.
Jeanne L. Schroeder, Never Jam To-day: On the Impossibility of Takings Jurisprudence, 84 Geo. L.J. 1531, 1531 (1996) ("A LEXIS search will produce hundreds of recent articles attempting to reconcile, critique, or condemn Supreme Court takings jurisprudence or to justify, reinterpret, or re-imagine the underlying theory of property.")
The Zinn case is distinguishable from this case. In Zinn the Department of Natural Resources issued a declaratory ruling under Wis. Stat. § 227.06 (1975) and later rescinded the ruling. As a result of the initial declaratory ruling, title to Zinn's property was transferred to the state. As a result of the later rescission, title to the land was transferred back to Zinn. This court concluded: "It is difficult to conceive of a greater restriction on the property, in the absence of actual physical occupancy, than the loss of title to private land. We find that the allegations of the complaint, which demonstrate that the plaintiff temporarily lost title to her land to the state, are sufficient without more to allege a constitutionally compensable taking." Zinn,
See Reel Enterprises v. City of La Crosse,
Ultimately it was held that there was no taking in First English. See First English Evangelical Lutheran Church of Glendale v. County of Los Angeles,
In contrast, the majority opinion cites no case, either federal or state, that has held that a denial of a permit or other agency approval that is reversed on appeal constitutes a temporary taking. Instead, the majority opinion refers to two recent U.S. Supreme Court cases. In both cases, unlike in this case, the landowners were ultimately denied their request to develop the land. These two cases do not fall within the limiting language in First English. Neither is applicable to the case at hand.
First, Suitum v. Tahoe Regional Planning Agency,
Second, in City of Monterey v. Del Monte Dunes at Monterey, Ltd., No. 97-1235,