Rоy S. THORP and Helene T. Thorp, Plaintiffs-Appellants-Petitioners, v. TOWN OF LEBANON, and County of Dodge, Defendants-Respondents-Cross Petitioners.
No. 98-2358
Supreme Court of Wisconsin
Decided June 21, 2000
2000 WI 60 | 612 N.W.2d 59
Oral argument January 6, 2000.
For the defendant-respondent-cross petitioner Town of Lebanon, there were briefs by Michael J. Cieslewicz, Patti J. Kurth and Kasdorf, Lewis & Swietlik, S.C., Milwaukee, and oral argument by Michael Cieslewicz.
For the defendant-respondent-cross petitioner Dodge County, there were briefs by John M. Moore, W. Scott McAndrew, Sheila M. Sullivan and Bell, Gierhart & Moore, S.C., Madison, and oral argument by W. Scott McAndrew.
¶ 2. In an earlier unpublished decision, the court of appeals determined that the notice provisions in
¶ 3. The Thorps appealed. On the second appеal, the court of appeals affirmed the circuit court‘s decision to dismiss the Thorps’ claims of deprivation of substantive and procedural due process. Thorp v. Town of Lebanon and County of Dodge, 225 Wis. 2d 672, 689, 697, 593 N.W.2d 878 (Ct. App. 1999). However, it concluded that the Thorps’ “complaint does state a claim for relief under the equal protection clause.” Id. at 691.
¶ 4. We affirm. We first hold that according to Felder v. Casey, 487 U.S. 131 (1988), the Thorps did not have to comply with the Wisconsin notice statute to bring their federal constitutional claims. Further, the Thorps complied with
I.
¶ 5. The Thorps own approximately 255 acres in the Town of Lebanon, which is located in Dodge County. The property is a mix of open land, woods, and wetlands, with some of the land being within the floodplain. Before July 7, 1994, the Thorps’ land was zoned to a rural development classification.
¶ 7. In October 1994, the Dodge County Board of Supervisors amended its “official zoning map” to incorporate the Town‘s zoning reclassifications. The Thorps’ land was one of the properties reclassified from rural development to general agricultural. According to the Thorps, the change in zoning substantially interfered with the use of their property and had a material adverse effect on its value. The Thorps’ attorney sent a letter to both the Town and the County on November 21, 1994, notifying them that the rezoning was handled improperly and requesting that the property be rezoned to a rural development classification.
¶ 8. On November 28, 1994, the Thorps filed a petition with the Town of Lebanon Plan Commission to rezone the non-wetland and floodplain areas of their property, which constituted approximately 155-165 acres. The Town Plan Commission denied their petition in February 1995, and they appealed to the Town Board of Supervisors. The Town Board of Supervisors voted to grant the Thorps’ request and authorized аpproximately 165 acres to be rezoned to its original classification.
¶ 9. The Thorps then petitioned the Dodge County Planning and Development Department to con-
¶ 10. On May 23, 1995, the Thorps filed a summons and complaint stating three claims against the Town and the County and seeking declaratory, injunctive, and monetary relief. First, the Thorps alleged that the Town and the County‘s zoning ordinance was invalid and violated their due process and equal protection rights.3 In support of their claim, they alleged that the Town Zoning Committee did not consist of five members, as required by
¶ 11. Second, the Thorps claimed that the rezoning amounted to an inverse condemnation and taking of their land, for which they were not justly compensated. They alleged that the rezoning resulted in a substantial decrease in the property‘s value per acre, as well as a permanent and substantial interference with the use and enjoyment of the land. (R. at 1:5.)
¶ 12. Third, the Thorps claimed that they were denied a fair and impartial hearing. The complaint stated that the Dodge County Planning and Surveyor Committee voted 4-1 to grant the Thorps’ rezoning request and that Betty Balian, the Town Board Chairman, cast the only negative vote. The complaint further alleged that chair of the County Planning and Surveyor Committee informed the County Board of Supervisors that the vote was 3-2, and that he cast one of the negative votes. According to the complaint, Balian also made numerous misrepresentations to the Board of Supervisors relating to the Thorps’ motives for requesting the zoning change, and yet failed to recuse herself from voting on the issue. (R. at 1:5-6.)
¶ 13. In response, the Town and the County moved to dismiss the Thorps’ complaint for failure to comply with the notice requirements contained in
¶ 14. The Thorps appealed. In an unpublished decision, the court of appeals affirmed in part and
¶ 15. Recognizing that the claims were brought under
¶ 16. The Town and the County then filed motions for summary judgment. The County argued that because adequate state post-deprivation remedies existed, the Thorps could not assert their federal constitutional claims. The Town additionally argued that the Town Board‘s actions did not violate the Thorps’ constitutional rights. The circuit court granted their motions, holding that the Town was not liable for the rezoning as a matter of law, since the Town Board had voted in favor of rezoning the Thorps’ property back to rural development. The circuit court also determined that the Thorps failed to avail themselves of adequate state remedies, and therefore, they could not then base their claims on the federal constitution.
Thorp, 225 Wis. 2d at 683 (citing Schultz v. Schultz, 194 Wis. 2d 799, 802, 535 N.W.2d 116 (Ct. App. 1995)). The court of appeals then determined that the Thorps did not state a claim for a deprivation of procedural due process. Id. at 688-89. The court stated that “the Thorps have not suffered a deprivation of property without procedural due process if there is an adequate ‘state remedy.‘” Id. at 688. Common law certiorari provides an adequate state post-deprivation remedy, but the Thorps did not seek review of the County Board‘s decision to deny their rezoning request by certiorari. Id. at 689. Furthermore, none of the factual allegations contained in the complaint constituted a basis for a substantive due process claim. Id. at 698-99. However, the Thorps’ factual allegations relating to the lack of a reasonable basis for the change in zoning did state a claim for a violation of equal protection. Id. at 691. Finally, the court of appeals held that the Town could not be dismissed from the action. The Thorps could recover from the Town if they proved that the Town‘s actions in amending the ordinance deprived them of equal protection. Id. at 700.
II.
¶ 18. We first consider the issue of whether the Thorps complied with
¶ 19. We begin our analysis by noting that the Thorps brought this action in part under
¶ 20. Although the Thorps’ complaint does not expressly state that the claims are brought under
¶ 21. We hold that according to Felder, 487 U.S. 131, the Thorps did not have to comply with
¶ 22. Moreover, the Thorps fulfilled
¶ 23. Subsection (1)(a) is the notice of injury provision. Id. at 592. The notice of injury provision allows governmental entities to “investigate and evaluate” potential claims. Id. at 593 (citing Mannino v. Davenport, 99 Wis. 2d 602, 610, 299 N.W.2d 823 (1981)). It states that an action cannot be brought against a governmental entity unless a signed “written notice of the circumstances of the claim” is served on the governmental entity within 120 days of the initial event.
¶ 24. A governmental entity must affirmatively plead that a plaintiff did not comply with
¶ 25. The Thorps complied with subsection (1)(a) by providing notice within 120 days of the initial
¶ 26. Moreover, the Thorps’ letter set forth “written notice of the circumstances of the claim,” permitting the Tоwn and the County to evaluate and investigate the possibility of rezoning the Thorps’ property. Vanstone, 191 Wis. 2d at 595 (quoting Liberty Trucking Co. v. DILHR, 57 Wis. 2d 331, 342, 204 N.W.2d 457 (1973)). The letter stated that the zoning ordinance was “improper” because “the methods and procedures utilized by the Town of Lebanon and Dodge County were defective.” (R. at 10:5.) The letter then proceeded to specify in detail what procedures were defective. First, the letter alleged that the Town Zoning Committee consisted of three members, not five, contrary to
¶ 27. We also note that the Thorps alternatively complied with subsection (1)(a) by providing actual notice of the claim without prejudice to the Town or the County. The Thorps argued before the circuit court that the defendants were not prejudiced by a lack of formal notice, because the Thorps had corresponded with the defendants on numerous occasions and presented their case before them in person. In short, the Town and the County could not have been prejudiced because “they were part of the entire process.” (R. at 24:6.) In DNR v. City of Waukesha, 184 Wis. 2d at 197, we determined that the City of Waukesha was not prejudiced by the state‘s failure to formally notify the city. The city was not prejudiced, we held, because the state and the city had been in contact for four years over the city‘s inability to comply with water safety standards. Id. Similarly, in this case, the Thorps waited to file their complaint with the circuit court until they had exhausted their options for administrative review with the Town and the County. Therefore, we conclude that the Town and the County were not
¶ 28. Subsection (1)(b) is the notice of claim provision. DNR v. City of Waukesha, 184 Wis. 2d at 197. This provision affords a municipality the opportunity to compromise and settle a claim. Vanstone, 191 Wis. 2d at 593. A notice must substantially comply with each of the four requirements listed in subsection (1)(b).10 DNR v. City of Waukesha, 184 Wis. 2d at 197-98. A notice must 1) state a claimant‘s address, 2) include an itemized statemеnt of the relief sought, 3) be presented to the appropriate clerk, and 4) be disallowed by the governmental entity.
¶ 29. The Thorps also complied with the requirements listed in
¶ 30. Second, the letter contained an itemized account of the relief sought. A notice of claim must state the requested relief in terms of a specific dollar
the net effеct of the recent rezoning action taken by the Town and County has resulted in a substantial loss of value per acre of not only the Thorp property, but many of the other properties in the Town of Lebanon. I [the Thorps’ attorney] have been informed by local appraisers in your area that agricultural/farmland sells for approximately $850.00 to $1,000.00 per acre. On the other hand, rural development zoned land sells for approximately $3,000.00 to $4,000.00 per acre. As a result thereof, the recent rezoning ordinance has dropped the value of the Thorp property by more than 50%.
(R. at 10:6.) The letter also noted that the Thorps’ property consists of 255 acres of land. (R. at 10:5.) Finally, the Thorps’ attorney stated that the purpose of the letter was to request the Town to rezone the Thorps’ property. Certainly, the letter provided enough information to notify the Town and the County of the budget it would need to set aside in case of litigаtion or settlement. As such, we conclude that the letter sufficiently stated an itemized request for relief.
¶ 31. Third, the letter was submitted to the appropriate individuals. We have found substantial compliance with the third requirement when the claimant has not presented the notice to the clerk or secretary, if the notice was presented to a “proper representative.” DNR v. City of Waukesha, 184 Wis. 2d at 200. In that case, the state submitted its claim directly to the Waukesha city attorneys. Id. at 199. We stated that by failing to file with the city clerk, the claimant did not “follow the letter of the statute,” but even so, the state “present[ed] the claim to a proper representative
¶ 32. In this case, the letter was addressed to several officials: Betty Balian, the Town Chairman; LeRoy Tietz, a Town Supervisor; Allen Behl, another Town Supervisor; and James Erdmann, the Executive Director оf the Dodge County Planning and Development Department. A copy of the letter was also sent to Dan Creydt, the Town Planning Committee Chair; Joan Wilson, the Planning Committee Secretary; and Alfred Schoenike, a Planning Committee member. However, the letter was not sent to either the town clerk or the county clerk. While the statute was not followed literally in this case, the claim was presented to several individuals who were all involved in the rezoning effort. Under the circumstances in this case, the above-named Town and County officials were all proper representatives, and therefore, the Thorps substantially complied with the third requirement.
¶ 33. Finally, the claim was disallowed by both the Town and the County. The Town initially refused to rezone the Thorps’ property for rural development, and the County flatly refused to rezone the property.
¶ 34. In sum, the Thorps satisfied the notice requirements of
¶ 35. We now turn to the constitutional claims presented in the Thorps’ complaint.11 We must determine whether the Thorps’ complaint stated any claims for relief. On the second appeal, the court of appeals reviewed this case using standards appropriate for a dismissal motion, even though the circuit court and the parties treated the appeal as a review of a summary judgment motion. Thorp, 225 Wis. 2d at 684. The court of appeals did so because the Town and the County did not submit evidentiary materials in support of or in opposition to the motion. Id. We employ the same reasoning and thus the same approach as the court of appeals. The legal sufficiency of a complaint presents an issue of law, which we review de novo. Irby v. Macht, 184 Wis. 2d 831, 836, 522 N.W.2d 9 (1994) (overruled on other grounds, Sandin v. Conner, 515 U.S. 472 (1995)). In making our determination of the complaint‘s legal sufficiency, we accept the facts pleaded,
¶ 36. The Thorps alleged that the zoning ordinance was invalid and violated their right to еqual protection, substantive due process, and procedural due process. We conclude that the complaint stated a claim for deprivation of equal protection, but not a claim for deprivation of procedural or substantive due process. We first address the equal protection claim.
THE EQUAL PROTECTION CLAIM
¶ 37. The Equal Protection Clause ensures that people will not be discriminated against with regard to “‘statutory classifications and other governmental activity.‘” Jackson v. Benson, 218 Wis. 2d 835, 901, 578 N.W.2d 602 (1998) (quoting Harris v. McRae, 448 U.S. 297, 322 (1980));
¶ 38. Generally, two levels of judicial scrutiny are applied to equal protection challenges.12 State ex
¶ 39. Nowhere have the Thorps alleged that they belong to a suspect class such as a racial minority. See Jackson, 218 Wis. 2d at 901-02. Moreover, it has been held that zoning does not involve fundamental rights. Kawaoka v. City of Arroyo Grande, 17 F.3d 1227, 1239 (9th Cir. 1994), cert. denied, 513 U.S. 870 (1994). Because neither a suspect class nor a fundamental right is implicated in this case, the strict scrutiny test does not apply to the ordinance at issue.
¶ 40. The second level of scrutiny applies “[w]here a suspect class or fundamental interest is not
¶ 41. Therefore, the Thorps’ complaint must allege facts that the ordinance is not rationally related to its purpose. We conclude that the Thorps have alleged sufficient facts to state a claim for deprivation of equal protection.13 The following allegations from the complaint support the Thorps’ claim that the ordinance lacks a rational basis:
(b) The highest and best suited use of the Plaintiffs’ property is not agricultural, but rather rural development. The Plaintiffs’ land is hilly, rocky and has a light gravel soil base which dries out after any type of rain. The soil is very erodible. Part of the Plaintiffs’ property is located within wet lands. (c) In adopting the new zoning map, the Town and County left numerous ‘islands’ throughout the Town that have not been rezoned and have been left with a rural development classification without any logical explanation. Some of the land that has kept its rural development classification is even more suitable for agricultural and farming than the Plaintiffs’ own property. To that extent, there has been discriminatory zoning.
(R. at 1:4.) It appears from these pleadings, which we must accept as true, that the ordinance may not be “rationally related to the public health, safety, morals, or general welfare” of the Town of Lebanon residents. State ex rel. Grand Bazaar v. Milwaukee, 105 Wis. 2d 203, 211, 313 N.W.2d 805 (1982). The pleadings indicate that the Town may have engaged in wholesale rezoning efforts, without examining the particular suitability of the land to its zoned usage.
¶ 42. Citing case law from the Seventh Circuit and the District Court for the Eastern District of Wisconsin, the County argues that “[t]he Thorps do not allege any intentional discrimination based on their membership in a particular group” and that the Thorps’ allegations merely amount to claims of imperfect zoning. (Resp‘t County Br. at 9-11.) We have already established that the first level of scrutiny applicable to suspect classifications is not at issue in this case. As such, the Thorps’ membership in a group
¶ 43. The County also argues that the Thorps are barred from making an equal protection claim because they did not avail themselves of an adequate state law remedy, namely certiorari review under
¶ 44. Finally, we note that the burden on a plaintiff to prove that an ordinance lacks a rational relationship to a valid governmental objective is difficult. The rational basis test has been characterized as creating a “frequently insurmountable task” for the challenger of an ordinance to prove “beyond a reasonable doubt that the ordinance possesses no rational basis to any legitimate municipal objective.” Grand Bazaar, 105 Wis. 2d at 209. Moreover, ordinances enjoy a presumption of validity, even when they are challenged on the basis of equal protection. State v. Post, 197 Wis. 2d 279, 301, 541 N.W.2d 115 (1995). An opponent of an ordinance must establish the ordinance‘s unconstitutionality beyond a reasonable doubt. Id.; Kmiec v. Town of Spider Lake, 60 Wis. 2d 640, 651, 211 N.W.2d 471 (1973). We agree with the court of appeals, however, that our determination relates to the sufficiency of the Thorps’ pleadings, not their ability to prove an equal prоtection claim. Thorp, 225 Wis. 2d at 692. As such, the “frequently insurmountable” presumptions and burdens associated with the rational basis test do not apply at this point in the inquiry. Grand Bazaar, 105 Wis. 2d at 209.
THE SUBSTANTIVE DUE PROCESS CLAIM
¶ 45. Second, the Thorps did not state a claim for violation of substantive due process. The Substantive Due Process Clause also emanates from the Fourteenth Amendment. Penterman, 211 Wis. 2d at 480.
¶ 46. This court has stated that when evaluating a substantive due process claim, a plaintiff must demonstrate that he or she has been deprived of a liberty or property interest that is constitutionally protected. Penterman, 211 Wis. 2d at 480. See also Board of Regents v. Roth, 408 U.S. 564, 577 (1972). A property interest is constitutionally protected if “state law recognizes and protects that interest.” Penterman, 211 Wis. 2d at 480.
¶ 47. The Thorps argue that they have allegеd a deprivation of substantive due process in both their first and third claims. The first claim relates to the invalidity of the zoning ordinance, and the third claim relates to the denial of a fair and impartial hearing.
¶ 48. We address the allegations contained in the claim relating to the invalidity of the ordinance first. In their complaint, the Thorps stated that their substantive due process rights were violated because the Town failed to comply with the five member zoning committee requirement as set forth in
¶ 49. The Thorps also alleged that the Town and the County misinterрreted and misused the various surveys that were conducted before the rezoning was implemented. Similarly, we agree with the court of appeals that the Thorps’ allegations do not constitute a violation of substantive due process. Smithfield Concerned Citizens for Fair Zoning v. Town of Smithfield, 907 F.2d 239, 245 (1st Cir. 1990) (stating that a governmental entity does not have to justify its actions by the use of any specific studies).
¶ 50. Finally, we note the similarity between the test for a violation of equal protection and substantive due process: one test deals with the rational basis for a statute or ordinance, while the other test deals with the arbitrariness of the statute or ordinance. See Daniel R. Mandelker, Land Use Law, § 2.47 (4th ed. 1997). Here, the court of appeals found that the Thorps’ remaining allegations supporting a substantive due process claim were better suited to their equal protection claim, and therefore, did not permit the Thorps to use the allegations to support both claims. Thorp, 225 Wis. 2d at 699. We agree. In Sacramento, the United States Supreme Court expressed its reluctance to expand the concept of substantive due process and stated that “‘where a particular amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims.‘” 523 U.S. at 842. Because the factual allegations pertaining to the classification of the Thorps’ property and other Town properties support the Thorps’ equal protection claim,
¶ 51. We also do not address the allegations in the complaint relating to the denial of a fair and impartial hearing at this point in our analysis. The denial of a fair and impartial hearing implicates the procedural component of due process, not the substantive component. See Goldberg v. Kelly, 397 U.S. 254, 271 (1970).
¶ 52. We conclude that the Thorps’ complaint does not make any allegations that the zoning ordinance was clearly arbitrary and unreasonable.
THE PROCEDURAL DUE PROCESS CLAIM
¶ 53. Third, the Thorps have not stated a claim for relief under the Procedural Due Process Clause. Like equal protection and substantive due process rights, procedural due process rights emanate from the Fourteenth Amendment. Penterman, 211 Wis. 2d at 473. See also
¶ 54. The state provides an adequate post-deprivation remedy in the form of certiorari. See State ex rel. Johnson v. Cady, 50 Wis. 2d 540, 549-50, 185 N.W.2d 306 (1971). The adequate post-deprivation remedy available to the Thorps was to petition for certiorari review under
¶ 56. Citing Tobler v. Door County, 158 Wis. 2d 19, 25, 461 N.W.2d 775 (1990), the Thorps argue that by filing an ordinary summons and complaint they commenced a review by writ of certiorari. However, Tobler is distinguishable because in Tobler, the complaint specifically “asked the circuit court to issue a writ of certiorari and to review the decision of the Door County Board of Adjustments.” 158 Wis. 2d at 20-21. Here, the Thorps did not ask for issuance of a writ оf certiorari in their complaint. As such, the Thorps did not meet the requirements of either statutory or common law certiorari. Because the Thorps did not use the available state law remedy, they may not now claim that they were denied procedural due process.
IV.
¶ 57. The last issue we address is the dismissal of the Town of Lebanon. The court of appeals concluded that the circuit court properly dismissed the Town from any constitutional deprivations on the basis that the Town voted to grant the Thorps’ rezoning request. However, the court of appeals found that the Town could not be dismissed on that basis as to the equal
V.
¶ 58. We conclude that the Thorps have stated a claim for relief alleging violation of equal protection. However, they are barred from asserting a claim for either substantive or procedural due process. Their factual allegations do not support a claim for substantive due process, and the availability of a remedy by certiorari satisfies the procedural due process requirements. We also conclude that the Thorps are not in violation of statutory notice requirements. According to Felder, the federal constitutional claims brought under
By the Court.—The decision of the court of appeals is affirmed.
¶ 59. SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE (concurring). I join the majority opinion
¶ 60. I agree with the court of appeals, 225 Wis. 2d at 697-99, that the law is unsettled about whether a zoning challenge can state a claim for violation of substantive due process. The majority dismisses the plaintiffs’ substantive due process claim based on the alleged violation of
¶ 61. For the reasons stated, I join the opinion except for the paragraphs relating to substantive due process. I would adopt the opinion of the court of appeals on this issue.
¶ 62. I am authorized to state that Justices ANN WALSH BRADLEY and DIANE S. SYKES join this concurrence.
Notes
Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceеding for redress.
(1) Except as provided in subs. (1m) and (1p), no action may be brought or maintained against any volunteer fire company organized under ch. 213, political corporation, governmental subdivision or agency thereof nor against any officer, official, agent or employe of the corporation, subdivision or agency for acts done in their official capacity or in the course of their agency or employment upon a claim or cause of action unless:
(a) Within 120 days after the happening of the event giving rise to the claim, written notice of the circumstances of the claim signed by the party, agent or attorney is served on the volunteer fire company, political corporation, governmental subdivision or agency and on the officer, official, agent or employe under s. 801.11. Failure to give the requisite notice shall not bar action on the claim if the fire company, corporation, subdivision or agency had actual notice of the claim and the claimant shows to the satisfaction of the court that the delay or failure to give the requisite notice has not been prejudicial to the defendant fire company, corporation, subdivision or agency or to the defendant officer, official, agent or employe; and
(b) A claim containing the address of the claimant and an itemized statement of the relief sought is presented to the appropriate clerk or person who performs the duties of a clerk or secretary for the defendant fire company, corporation, subdivision or agency and the сlaim is disallowed.