Willow Creek Ranch, L.L.C. v. Town of Shelby

Plaintiff-Appellant-P Ranch, L.L.C., Creek Willow etitioner,† v. County LaCrosse, Defendants- Shelby

Town of Respondents. Plaintiff-Appellant-Pe Ranch, L.L.C., Willow Creek titioner,† LaCrosse, and Wisconsin Shelby, Town Company, Municipal Defendants- Mutual Insurance

Respondents.

Supreme Court 6, 97-2075, argument Oral October Nos. 98-0138. June 1999.—Decided 2000 WI 56 693.) (Also reported in 611 N.W.2d September denied for reconsideration †Motion plaintiff-appellant-petitioner For the there were by Koby, Mougin briefs James R. Julie A. and Parke O'Flaherty, argument by Ltd., LaCrosse and oral Koby. James R. defendant-respondent, Shelby,

For the Town of by there was a brief William Crivello, W. Ehrke and Carlson, Steeves, Mentkowski & S.C., Milwaukee and argument by oral William W.Ehrke. defendant-respondent, County

For the of LaCrosse by Lange, Deputy there Corpora- was brief David L. argument Counsel,

tion LaCrosse and oral David L.

Lange. defendant-respondent,

For the Wisconsin Munici- pal Company, Mutual Insurance there awas brief Bradley Armstrong, Axley D. Steven A. Brezinski and argument by Brynelson, Steven LLP, Madison and oral A. Brezinski.

¶1. BRADLEY, Creek J. Willow ANN WALSH Creek) (Willow published a deci- seeks review of Ranch appeals in these consolidated of the court of sion summary judgments in of the favor cases affirmed (Town), County Shelby of La Crosse of the Town Municipal (County), Mutual Insurance and Wisconsin (WMMIC).1 Company that the Creek contends Willow (DNR) Department of Resources Natural Wisconsin authority regulate operation the of has the exclusive to game of and and that the actions the Town bird farm zoning County regulating Creek's the of Willow the illegal game unconstitutional. bird farm were and statutory ¶ DNR's 2. conclude that the We authority authority preclude the of the Town does not regulate County the of Willow the to and game the farm. conclude that Creek's We further bird County's from suit and actions are immune Town's the 893.80(4) (1995-96)2 § and that under Wis. Stat. Finally, legal deter- we

actions are constitutional. equitably are mine that Town not asserting immunity estopped as defense from game operation preventing bird of Willow Creek's appeals. Accordingly, court of we affirm the farm. acres of land in the Creek owns 115 Willow County. Shelby, Creek's La Willow

Town Crosse 1 Ranch, Shelby, 224 Wis. 2d v. Town WillowCreek L.L.C. 1998) (consolidated (Ct. appeal 269, App. N.W.2d summary by La Crosse affirming judgment orders J.). Mulroy, Montabon, Court, J. and Michael Circuit Dennis G. indicated, future to Unless all references otherwise volumes. Statutes are 1995-96 Wisconsin property is zoned as an "Exclusive Agricultural" dis- A) trict (Agricultural under La Crosse County Zoning Ordinance Agricultural 17.34. A district uses are lim- ited specific agricultural activities, while Agricultural B district uses include activities that are more commercial in nature. The County has the authority enact and enforce zoning ordinances while the Town has the power to veto a county zoning change. late Willow Creek contacted the

Town to inquire whether a zoning change was required to operate a game bird farm on its property. The Town chairperson, Jeff Brudos, allegedly informed Willow Creek that no county rezoning was needed for Willow Creek's operation of a bird farm.3 Shortly prior of the farm opening in late and after already having expended substantial sums of money, Willow Creek obtained a DNR license.4

3Although the County dispute Town and sequence the of leading events game citation of farm, Willow Creek's bird for purposes summary the of judgment they accept the facts as true. 4The record is exactly unclear as to when the DNR issued Willow Creek a operate game license to bird farm. One of the Creek, affidavits submitted Willow complaint, as well as its alleges that the license was 1994, issued in June yet another alleges affidavit that the license was issued in October 1994.

The record contains copies numerous of the October 1994 license, subsequent ones, as well two yet any it is devoid of June license.

Regardless of whether the DNR issued a license in June or October, expended Willow Creek substantial sums to establish game its bird farm initially meeting after with Brudos in late having without even received a DNR license authorizing operation the of the farm. The record game indicates that the opened bird farm September either in early October, late County Creek ¶ the notified Willow hunting conducting a commercial it that because was exclusively agricul- enterprise property on zoned for rezoning. petition purposes, for it needed to tural County petitioned Subsequently, to Creek the Willow Agricultural property B. Creek to Willow rezone its possibility of to the met with the Town discuss also obtaining permit it that enable use would conditional Agricultural operation property. A as continue to County to follow instructed Willow Creek and Brudos guarantee operation safe the several conditions agreed game follow Creek the bird farm. Willow steps compliance. took to ensure those conditions and County Creek 6. The informed Willow operation pending that it should cease December 1995 month However, a resolution of the issues. the temporarily Creek later, the allowed Willow Responding operation. to citizen concerns resume safety operation the from the and noise about February passed farm, a resolution in the Town bird approve indicating the it neither would grant rezoning property nor a condi- Creek's Willow permit. use tional County granted Although Willow the rezoning petition Town March, for

Creek's County's with decision consistent vetoed against rezoning prior a condi- Town's resolution permit. Subsequently, issued use tional violating County's zon- Creek a citation Willow hunting by conducting ing commercial ordinance exclusively agricultural property for on zoned activities purposes. $340,000 in asserts that it invested Willow Creek

after preparation. May

¶ 8. In 1996, Willow Creek filed the first of seeking declaratory judgment suits, two that the County authority Town and had acted in excess of their powers arbitrary had exercised their in an unconstitutional manner. In addition to the declara- tory judgment, requested injunction Willow Creek an prohibiting County taking the Town and from further operation action in game interference with the of its argued bird County farm. It also that the Town and equitably estopped preventing should oper- be from the game ation of the farm, bird because Willow Creek had upon misrepresentations relied to its detriment Chairperson, Town Jeff Brudos.

¶ 9. The summary Town and moved for judgment asserting they according had acted statutory authority deciding their to enforce the zon- ing petition ordinance and to veto Willow Creek's They argued rezone. authority also that the DNR's operation issue a license for the of a bird farm did preclude County's authority not to devise and enforce ordinances. Subsequently,

¶ Willow Creek filed a notice County pursuant of claim with the Town and to Wis. 893.80(1), making Stat. money a formal demand for damages. Upon the disallowance of its claims, Willow raising essentially Creek filed a second suit the same issues as in seeking money its first suit but this time damages. July granted 1997, the circuit court County's summary

Town's and the judg- motions ment and dismissed Willow Creek's first suit. Subsequently, County, Town, and its insurer, summary judgment WMMIC, moved for on the second arguing preclusion suit, that claim barred Willow Creek's second suit and that the Town and liability immune under Stat. from Wis. were 893.80(4) represented § discre- their actions because tionary 1997, December the circuit court acts. In granted the Creek's second suit and dismissed Willow summary judgment. Willow Creek motions for appeals summary judgments, appealed and the both consolidated. were appeals

¶ determined that authority The court of regu- statutory although has the the DNR licensing authority game does not farms, its late County creating preclude and and from the Town zoning enforcing addition, con- the court ordinances. County not act and did

cluded that the Town authority by statutory arbitrarily or in excess of their game operating issuing a citation for its Willow Creek agricul- exclusively property farm on zoned bird purposes. that the Town tural The court also concluded liability Stat. immune from under Wis. and are 893.80(4). summary motions for 13. When we review methodology judgment, as does the the same we follow 39, 332, 2d Boss, v. 97 Wis. circuit court. Grams 337 - (1980). genuine issue of If there is no 294 N.W.2d 473 judgment party as a is entitled to material fact and appropri the action is law, the resolution of matter of summary judgment. Spring Farms v. Green ate for (1987). 816 304, 315, 2d 401 N.W.2d Kersten, 136 Wis. inquiry the DNR's initial of whether 14. Our game pre- regulate operation

authority farms regulating and from the Town vents a matter of farm involves Creek's bird of Willow presents question statutory interpretation Jungbluth 320, Hometown, 2d Inc., 201 Wis. v. law. subsequent 327, 548 Likewise, N.W.2d our inquiries immunity equitable estoppel present questions Kimps Hill, 8, of law. Wis. 2d (1996); Harms, N.W.2d 151 Harms v. (1993). ques-

784, 498 N.W.2d 229 This court reviews independently tions of law of the determinations of the appeals, benefiting circuit court and the court of while analyses. from their Thomack, Miller v.

650, 658, 563 N.W.2d 891 Licensing Zoning Authority ¶ 15. We address first whether the DNR's authority regulate operation game the of farms § under Wis. Stat. 29.574 and Wis. Admin. Code NR prevents regulating § 16.02 the Town and from zoning game the of Willow Creek's bird farm.5 If we authority precludes decide that the DNR's to license part: Wisconsin Stat. 29.574 states in relevant § (1) any The owner or lessee of lands within the state suitable for breeding propagating game, may the birds or animals as be approved by department right upon complying shall have the section, establish, operate game with this and maintain a bird purpose breeding, propagating, killing and animal farm for the selling game game birds and animals on such lands....

Wisconsin Admin. Code essentially NR 16.02 contains § language same as Wis. Stat. 29.574 and states relevant § part: (1) Application. applies game provided This section to all farms as 29.867, Stats., including. .shooting game

in s. . farms. . . . The right upon complying owner or lessee. . .shall have the with this establish, operate game section to and maintain a bird and animal farm....

Chapter 29 of the Wisconsin Statutes was renumbered and by revised 1997 Wis. Act 248. The former 29.574 has been § change renumbered as 29.867. This does not affect our analysis. County, zoning authority of the Town and the we remaining by issues raised Wil-

need not address the appeal. on this low Creek that because the 16. Willow Creek maintains

regulation game farms lies within exclusive province DNR, the Town and had no of the authority operation Creek's to restrict of Willow County zoning through the enforcement of the farm rezoning peti- Creek's ordinance and the veto of Willow disagree. tion. The location of bird farms We subject notwithstanding rules, to local remains right granting a DNR license an owner the establish such a farm. Municipal only powers

¶ 17. have such as bodies legislature expressly upon are conferred them the necessarily implied powers from the conferred. are First Nat'l Bank Milwaukee v. Town Wis. of of Catawba, 220, 224, 197 N.W. 1013 Wis. licensing provides § Stat. 29.574 for the of

Wisconsin "game gives animal" farms and the DNR the bird and right Nothing in the text of the to establish such farms. explicitly regulation game allows local of bird statute farms. 29.425(3)(c) comparison, § Wis. Stat. power

grants municipal prohibit sale bodies the game Chapter 29, however, of animals."6 demon- "live legislature's attempt conscious strates distinguish "game "game animals," birds" and between they separately under Stat. are defined Wis. 29.425(3)(c) part: in Wisconsin Stat. states relevant § by governing body any county, city, village may, or town of ordinance, game fur-bearing prohibit any the sale of live animal or animal. grant §

§ 29.01.7 While 29.425 evinces the intent game animals, of the same is local control of sale game Thus, we cannot conclude that not true of birds. authority explicit Chapter there is regulate local under 29 to operation bird farms. See Ball v. 4, Area Bd., 529, 539, Dist. No. 345 N.W.2d (1984) (legislature presumed to have known the chosen). words it has authority explicit However, lack of such Chapter

under granted 29 is not are fatal. boards zoning authority

broad under Wis. Stat. 59.69(4) purpose promoting public § to effectuate the safety, general pro- health, convenience, and welfare as 59.69(1). 59.69(4) Specifically, § § vided states part: relevant purpose promoting health,

For the the public safety general may and welfare board ordi- nance effective county within the areas within such outside the incorporated villages limits of and cities number, area, establish districts of such shape adopt regulations such for each such district as carry pur- the board considers best suited to out the poses powers granted by of this section. The this through section shall be exercised an ordinance (4e), may, subject determine, which to sub. estab- lish, regulate and restrict: 29.01(6) "[g]ame

7 Wisconsin Stat. defines animals" as § "deer, moose, bear, including elk, rabbits, squirrels, fox and raccoon." 29.01(7) "[g]ame

Wisconsin Stat. defines birds" as includ- ing brant, geese, .pheasants. .quail, "[w]ild wild ducks. . . turkey." quail, California and wild

422 (a) agriculture, which for- The areas within trades, business and estry, industry, mining, added). may (emphasis be conducted recreation authority disapprove Furthermore, towns have zoning particular amendments recommended or veto 59.69(5)(e)6. county by boards. Wis. Stat. argues

¶ that the zon- 20. Willow Creek may municipality ing because a ordinance is invalid infringe upon spirit pass of a not ordinances repugnant general policy of the are state law or Norman, 2d Dane v. 174 Wis. state. (1993). Furthermore, the state 714 when N.W.2d regulate specific an intent to field has manifested subject, conflicting municipal on the same ordinances subject DeRosso the extent of the conflict. are invalid to City 642, 651, Creek, 200 2d Co. v. Oak Wis. Landfill N.W.2d authority persuaded Wil- are not We County's proposition its that the low Creek offers for exclusive conflicts with the state's ordinance hunting exclusive and the DNR's control over with hunting right grant to conduct such activi- licenses e.g., See, § 29.574. ties on farms under Wis. Stat. (local at 664 ordi- Co., 200 Wis. 2d

DeRosso Landfill exempting conflicting policy clean fill with state nance approval); Envtl. Dec- from local Wisconsin's facilities (1978) ade, 518, 271 N.W.2d 69 DNR, Inc. v. city

(city repudiating treatment of chemical resolution statutes); Krenz v. Nich- inconsistent with state lakes (state's (1928) broad 394, 222 N.W. 300 ols, 197 Wis. hunting disposition

authority regulate of fish game). the interaction do not address 22. These cases activity. state-regulated zoning ordinances and they attempt Rather involve local ordinances that regulate activity the identical the are as state "diametrically opposed" policy. to the state's Wiscon- agree Decade, 2d at sin's Envtl. 85 Wis. 535. While we right that operation the DNR has exclusive to license the the game right pre- farms, bird this does not County regulating zoning clude the Town and from the Zoning licensing powers represent of such farms. powers

distinct that do not conflict with each other. purpose County case, In this the of the zon- ing demarcating appropriate ordinance involves the game may operate. areas or location where a farm bird directly regulate operation game It does not of the power bird farm. Because the to zone does not conflict right specific activity, with the to issue a license for a authority grant game the DNR's licenses to establish prevent County bird farms does not the Town and from regulating by enforcing of these farms ordi- vetoing specific zoning changes. nances and

Immunity Having ¶ 24. determined that the DNR's author- ity game operation to license the farms does not preclude authority of the Town and the regulate zoning, we examine next whether Wis. Stat. 893.80(4) grants immunity § to their actions preventing operation of Willow Creek's bird farm. Willow Creek maintains that the actions of the represent discretionary Town and the do not they acts, but rather ministerial acts which are not immune. 893.80(4), municipal- 25. Under Wis. Stat.

ity "any is immune from suit" for "acts done in the legislative, quasi-legislative, judicial exercise of synony- quasi-judicial functions."8 These functions are discretionary Raymond, mous with acts. Lifer 511-12, A discre- Wis. 2d N.W.2d tionary judgment in the act involves exercise of application specific facts. Id. at 512. rule to recognized exceptions

¶ 26. court four This has 893.80(4). governmental immunity § under Stat. Wis.

In Kierstyn Dist., Sch. 228 Wis. 2d Racine Unified (1999), immunity 90-97, noted that 596 N.W.2d 417 we (1) apply performance does not to the of: ministerial (2) (3) danger;" duties; duties to address a "known (the involving Scarpaci medical discretion actions (4) rule); "malicious, willful, and actions that are and only exception intentional." The advanced Willow present performance Creek in the case is the of a minis duty, terial and therefore we need not address the immunity remaining exceptions three under Wis. 893.80(4). §

Stat. act, A in an immune 27. ministerial contrast to discretionary duty absolute, cer- act, involves a that "is involving merely performance imperative, tain and specific imposes, prescribes of a task when the law performance time, for its defines the mode and occasion certainty nothing judgment for with such that remains Olson, 701, 711-12, 2d or discretion." C.L. v. 143 Wis.

8 893.80(4) Wisconsin Stat. states full: (4) may brought against any volunteer fire com- No suit be corporation, governmental

pany organized political under ch. any agency for the intentional torts of its subdivision or thereof officials, brought officers, agents employes may any be or nor suit agency against corporation, fire such subdivision or or volunteer officials, officers, agents employes company against or its or judicial legislative, quasi-legislative, acts done in the exercise of quasi-judicial functions.

425 (1988) (quoting v. Board N.W.2d 614 Lister (1976)). Regents, 282, 301, 2d 240 N.W.2d 610 72 Wis. zoning

¶ 28. Decisions to enforce a ordinance and legislative zoning changes represent to veto acts. of Dodgeville, 570, 578, 2d Quinn v. Town 122 Wis. they discretionary Thus, are deci

N.W.2d 149 subject immunity provisions. City to the Beres v. sions Berlin, 229, 232, New N.W.2d (1967). Although Creek concedes that the deci Willow zoning represents sion to enact a ordinance discretionary act, it maintains Town duty had a ministerial to defer to the state's authority regulate game exclusive to license and farms. According Creek, to Willow the Town and duty by exercising their ministerial the dis breached cretion to enforce the ordinance and to veto rezoning petition opposition Willow Creek's authority. state's exclusive already

¶ However, we have determined that authority the DNR's to license farms does not preclude regulating zoning the and Town from by enforcing zoning vetoing zoning ordinances and changes. Thus, Creek has Willow failed demonstrate duty an absolute and certain ministerial to defer the considering In fact, state. when the of the Wil- property, duty low Creek the Town and have no whatsoever defer to the state.

¶ Rather, the decisions to veto Creek's Willow rezoning petition County zoning and to enforce the by issuing represent purely ordinance a citation discre- tionary Without Willow Creek's articulation of a acts.9

9The dissent notes that the distinction between ministerial discretionary perhaps functions is ill-defined and artificial.

426 specific duty subsequent breach, ministerial and its we immunity provisions apply conclude that County against Town and Willow Creek's claim for money damages. only immunity

¶ 31. Not does under Wis. Stat. 893.80(4) against § bar Willow Creek's suit the Town County money damages, precludes for it also suit injunctive City in this instance for relief. Johnson v. (Ct. Edgerton, 343, 352, 207 Wis. 2d 558 N.W.2d 653 1996). App. plaintiff property Johnson, owners city injunctive damages sued the city's for relief and for the open unimproved refusal to "stub-end" of a city plaintiffs gain street so that could access to property. their at Id. 345. The court held that the offi- 893.80(4) immunity provisions § cial of Wis. Stat. are money damages apply actions, not limited to or tort but seeking injunctive against as well to actions relief municipalities employees. and their Id. at 352.10 129, McQuillin, (quoting Municipal See Dissent at (3d ed.) 53.04.10). Corporations at The dissent also states that Kierstyn this court last addressed the distinction v. Racine Dist., Sch. 228 Wis. 2d 596 N.W.2d 417 Unified However, refer we the dissent to this court's recent decision in State ex rel. J.H. Son v. Circuit Court Milwaukee Findorff & County, WI 30, 428, 608 N.W.2d which majority vitality of the court affirmed the of the distinction discretionary by adopting between ministerial and acts it in the wholly separate judicial context substitution. concurring opinion appeals' of the court of decision Johnson, expresses concern particularly over the broad reach of applicability may in its equitable estoppel to cases in which lie against municipality enjoin so as to its enforcement of an Creek, However, ordinance. See 224 Willow Wis. 2d at 286-87. Chairperson, since we determine below that the actions of Town Brudos, equitable estoppel Jeff do not afford a in basis for this attempts that

¶ to establish The dissent legal represents precedent a dubious with Johnson overruled, "consecrated," not that should be foundation Reasoning by reach of Johnson is that the this court. indiscriminately immu- broad, dissent asserts that the 893.80(4) nity was never intended to under Stat. Wis. injunctive tort, but rather was relief based extend to money damages in tort. to be limited language "any contained in the suit" 33. The immunity statute, however, does not limit suits to encompasses injunc- money damages in tort but also interpretation furthers in tort. This tive relief based underlying immunity policy that rationales tort the "unduly hampered or intimidated the not be officials per- discharge of their functions threat lawsuit County, liability." Scarpaci v. Milwaukee Wis. sonal (1980) (citing 663, 682, 292 N.W.2d 816 Lister 2d Regents, 282, 299, 240 N.W.2d Board of (1976)). expenditure ofboth time The concerns over seeking apply equal with force to actions and resources money injunctive they dam- relief as do to actions ages. recognize, however, that the suits must be We immunity garner protection con- in tort to based the statute. sistent with agree with the dissent that the lan- 34. We may overly expansive,

guage in Johnson have been beyond encompass reaching in tort to actions based However, well. we note contract and other actions as presented the actual narrow issue before plaintiffs permit- court was whether the were Johnson injunctive on their claim of ted to seek relief based negligence against city. Thus, the Johnson court essentially applicability of Wis. Stat. addressed case, concurring opinion's concern for we leave resolution of the day. another 893.80(4) injunctive concluding

§ tort, to relief in based municipality's immunity that the assertion of barred language such relief. To the extent that the in Johnson suggests by expanding immunity otherwise too broadly, language. limit we respect,

¶ 35. In this our rationale is consistent Energy Complexes County, with v. Eau Claire 152 Wis. (1989), 453, 466,

2d 449 N.W.2d 35 which held that 893.80(4) grant immunity Wis. Stat. does not Here, actions based in contract.11 Johnson, as in Wil- injunctive low Creek's claim for relief is based in tort. immunity

Thus, the Town and the are afforded against request injunction. Willow Creek's for an Although immunity

¶ 36. serves as a bar to both money damages injunctive tort, relief in based municipalities do not benefit from the shield of immu- nity seeking declaratory Schmeling in actions relief. v. (Ct.

Phelps, App. 898, 915, Wis. 2d 569 N.W.2d 784 1997). Schmeling although The court in noted that public policy may require that local officials not be appears recognize appeals The dissent that the court of may very in Johnson interpretation well have intended the we Yet, adopt. according dissent, Dissent at 93. this inter pretation "torts-only" would have us read into the statute a government reading "torts-only" limitation on acts while out a difficulty limitation on Id. suits. We foresee no with such an interpretation purposes underlying in consideration of the Immunity premised avoiding tort claims statute. for torts is on unnecessary public performing in hindrance of officials Scarpaci County, their official duties. Milwaukee 663, 682, (1980); Regents, 292 N.W.2d 816 Lister v. Board 282, 300, 240 Wis. 2d purpose N.W.2d 610 This is served only by limiting immunity money damages not for actions immunity applying injunctive tort but also to claims for relief based in tort. intimidate[d]"

"unduly hamper[ed] in the execution requires discretionary public policy duties, also of their opportunity a court to be afforded the that citizens rights. their Id.12 declare a declara- case, Creek seeks In this Willow may operate bird farm its

tion that it County zoning ordinance because of the contravention acquired However, a DNR license. Creek has Willow County already the Town and determined that we have zoning authority and enforce the ordinance have the game operation prevent Creek's bird of Willow granting notwithstanding Wil- the DNR license farm, right Therefore, its farm. to establish low Creek the declaratory judg- cannot benefit from a Willow Creek ment on this basis.

¶ a declaration that Creek also seeks 38. Willow and the as to Willow the actions of the Town illegal game unconstitu- farm were and Creek's bird by preventing that tional. Willow Creek contends operation unconstitu- farm, the Town and of its argues examples, the dissent Setting forth numerous injunctive immunity for relief based extending to claims range for a citizens without recourse or remedies tort will leave activity. at illegal governmental unfair Dissent declaratory However, instituting relief remains an an action arbitrary governmental action. challenge unfair and avenue to 59.694(10) Furthermore, is review under Wis. Stat. § certiorari arbitrary municipal decisions. The fourth available to check Kierstyn, addressing "mali exception immunity set forth in conduct, remedy cious, remains to willful and intentional" also (citations wrongdoing. 2d at 90 n.8 gross municipal 228 Wis. omitted). government Finally, appropriate an means to address government officials gone awry replacement with the lies litiga procedures, removal not with endless through ballot and Lister, 72 Wis. 2d at 299. tion court. See

tionally police powers applied exercised their zoning arbitrary ordinance in an manner. particular,

¶ 39. Willow Creek maintains that game permitted its bird farm did not violate the activi- Agricultural ties under the A district and that its farm operated similarly to other farms zoned within the same district. Willow Creek also maintains that game pose significant bird farm did not health or safety drawing range safety threat, our attention to a implemented measures Willow Creek to ensure the safety neighbors. preventing operation of its Since promote of the bird farm will neither health nor protect neighboring property owners, Willow Creek argues County's that the Town's and the actions were arbitrary and unconstitutional. municipality's represents 40. A decision police power.

a valid exercise of its State ex rel. Ameri can Bessent, Oil Co. v. 537, 540, 135 N.W.2d (1965); Harper, State ex rel. Carter 182 Wis. (1923). zoning 155, 196 N.W. 451 Since ordinances are for the benefit and welfare of the enacted citizens of a municipality, generally great this court affords defer zoning Eggers, ence to decisions. See Jelinski v. 34 Wis. (1967). may

2d 85, 93-94, 148 N.W.2d 750 However, we zoning declare a ordinance or action unconstitutional legitimate purpose arbitrary when it serves no and is having and unreasonable, no substantial relation to public safety. Spider health or Kmiec v. Town Lake, of (1973). 640, 647, 60 Wis. 2d 211 471 N.W.2d See also City Cushman v. Racine, 303, 311, (1968) N.W.2d 67 . power power

¶ 41. Both the to zone and the zoning change represent legislative veto a functions. legislative review of Judicial 2d at 578.

Quinn, Wis. authority the cases which limited to is functions power of law. or under error its in excess of acted County, 137, 146, 146 2d 33 Wis. v. Racine Buhler (1966). may Although the debate this court N.W.2d zoning desirability particular deci- of a the wisdom or substituting our from are constrained sion, we authority. zoning Bessent, 27 judgment the for that of only applies as to decisions not This rule Wis. 2d at 546. zoning necessity decisions as to also to but change in circumstances of whether

determination rezoning. justifies 147. Buhler, 2d at 33 Wis. provides Agricultural for a A district An including "[florest range agricultural activities,

wide Zoning management." game Ordinance La Crosse 17.34(l)(c)(6). Agricultural B district allows § An parks "riding shooting of a more and other clubs" Zoning Ordinance nature. La Crosse commercial 17.37(1)(1). game Arguably, farm bird Willow Creek's agricultural may belong However, we district. in either judgment may for that of our not substitute any authority for the "reasonable basis" if there is Timmel, 261 Wis. action taken. Jefferson 62-63, 51 N.W.2d 518 operation that the determined consistent farm was more bird

of Willow Creek's According Agricultural B district. the uses of an with exclusively preserve County, it was crucial Agricultural agricultural A district character of disallowing district. within that activities commercial underlying the a reasonable basis Because there was property County's Creek's that Willow determination Agricultural district, B we suited for the was better County arbitrary conclude that the did not act in an unconstitutional manner. Similarly, County

¶ 44. the Town and did not act power preventing operation in in excess of their the of game reasoning Willow Creek's bird farm on the based necessary protect such action was to the health safety community. and of the is While it true that Wil- implemented safety low Creek several measures to safety neighbors, the ensure health and of its we can- conclude not from the record that the Town and arbitrarily determining operation acted in that the pose the bird farm would a health nevertheless safety arbitrary and threat. evidence action, Absent produce, which Willow has failed Creek we will not judgment substitute our for that the Town or County. Buhler, 33 2d at Wis. 146-47. by deny-

¶ 45. Willow Creek also maintains that petition ing Agricultural district, its to rezone to an B granting petition while a similar to the La Crosse Rifle arbitrarily Club, the Town and the acted and in authority. of their excess our determination of petition whether the denial of Willow Creek's consti- arbitrary by an tuted action unreasonable the County, guided analysis we Town are Schmeling Phelps, Wis. 2d 569 N.W.2d 784 (Ct. 1997). App. Schmeling sought

¶ 46. The landowner declaratory judgment invalidating peti- veto of his particular, 903. In tion rezone. Id. at landowner county argued arbitrarily that the had acted executive rezoning peti- because he had failed veto similar Schmeling tions. Id. at 904. The court in concluded petitions assuming approved that, even the seven were nature, similar had of a landowner nevertheless satisfy show that the denial of to his burden to failed arbitrary rezoning petition constituted an and his Id. action. at 917. unreasonable single only Here, Willow Creek refers to a approved subsequent

petition the denial of that was petition. Creek offers no further its own similar Willow of the and the evidence to show that actions Town County arbitrary. evidence, further Wil- were Without satisfy failed of low Creek has its burden demonstrating County in an that the and acted Town arbitrary manner. and unconstitutional although sum, we that Wis. conclude 893.80(4) immunity § affords and Stat. County the Town money involving damages

for and actions both injunctive immunity tort, there is relief based no 893.80(4) declaratory However, under actions. and the because the actions of the Town were illegal declaratory unconstitutional, neither nor relief is unavailable in this case.

Equitable Estoppel Finally, ¶ 49. Willow Creek contends equitably estopped Town asserting immunity should be from preventing

as a defense from operation of Willow Creek's bird farm due to negligent misrepresentations Chairper- of Town Although municipalities son, Jeff not Brudos. are wholly equitable estop- from the of immune doctrine pel,13 it is well established that erroneous acts representations municipal of officers do not afford a 13 City County, v. Wis. 2d Milwaukee Milwaukee 27 (1965). 66, 133 N.W.2d 393 434 basis to estop municipality from enforcing zoning ordinances enacted pursuant to the police power. Town Richmond Murdock, v. 642, 654, Wis. 2d N.W.2d City Milwaukee (1975); Leavitt, v. 72, 76-77,

Wis. 2d 142 N.W.2d 169 See also Snyder Waukesha County Bd., Zoning 468, 476-77, 247 N.W.2d 98 (1976); State ex rel. West brook v. New City Berlin, 120 256, 262, Wis. 2d of (Ct. 1984).14 N.W.2d 206 App. 50. Binding municipalities every

¶ representa- tion made by subordinate employees would produce severe results for the municipalities. Endless litigation would ensue over the words of those employees, important municipal decisions would be delayed pend- ing resolution of those suits. Consistent with the above- cited, law, well-established we determine that the mis- representations of Jeff Brudos may not serve as a basis for the estopping Town and County from enforcing the County zoning ordinance and vetoing Willow Creek's rezoning petition.

14The dissent's extensive depict recitation of the facts to the perceived injustice ignores to Willow Creek that the law of estoppel zoning in the context is Notwithstanding well-defined. unjust acts,

the results of those the erroneous acts of officers do estopping not serve as a municipality enforcing basis from an pursuant police ordinance enacted power. its

Furthermore, although the dissent sets forth the actions of County why defendant, the to demonstrate it is a named we again County note once that the voted in rezoning favor of game bird farm to allow legally operate Willow Creek to its enterprise. County's commercial subsequent citation to the Town's veto of the rezoning petition is repre- consistent with the by sentations made that problem it did not foresee a rezoning acquiesced. with if the Town See Dissent at 105. ¶ Similarly,

¶ that the Town we conclude immunity asserting estopped as a from are not support of its Creek offers defense. The cases Willow application argument the doctrine of do not involve zoning equitable estoppel ordi- police enforcement of municipality's pursuant ato nances enacted City power. Milwaukee, 208 2dWis. Anderson v. See (waiver (1997) discretionary 18, 34, 559 N.W.2d omission); immunity Fritsch v. St. Croix defense 2d 515 N.W.2d Dist., 183 Wis. Cent. Sch. defense).

(Ct. App. 1994)(estoppel of claim of notice Dairy Stores refers to Russell 52. Willow Creek (1956), Chippewa 138, 74 N.W.2d 759 Falls, 272 Wis. may estoppel equitable position lie its to buttress prevent against municipality the enforce- so as to Dairy However, Russell its ordinance. ment of present distinguishable from the facts of Stores is case. city Dairy Stores, the entire In Russell already granted Chippewa had

council of Falls driveway. plaintiff permit In reliance to construct a a signif- city's plaintiff permit, a the then invested on the money in of the the construction icant amount of city driveway. later, the council voted to A few months determining plaintiffs permit. court, the This revoke any permit law of the did not violate that the issuance applied city's state, the the doc- the contract with city prevent equitable estoppel to the trine of already revoking permit Chippewa had a it Falls from driveway. granted noted the The court to the owner of right per- plaintiff gained vested in the had a that city, by could not then be which mit issued Dairy arbitrarily Stores, 272 Wis. at Russell revoked.

145-46. significant

¶ 54. There are several and differ- Dairy present ences between Russell Stores and the Dairy prior First, case. Russell Stores was decided present immunity the formulation of the statute, Wis. 893.80(4). concept immunity

Stat. as a defense implicated was not in the case. estoppel Second, the basis for in Russell

Dairy Stores involved the erroneous acts of the munici- pality, not its subordinate In officers. Willow Creek's approved

case, neither the Town nor the had petition Willow Creek's to rezone before Willow Creek money prepare operation game invested for the of a acquired bird farm. Willow Creek had not a vested right operation Agricultural in the of its farm on B property. informally Rather, Willow Creek was Chairperson

advised the Town it would not rezoning. Although equitable estoppel need to seek may against municipalities be invoked cases, in certain officers, erroneous acts of subordinate rather than municipality, may those of the not serve as the basis for estoppel against municipality in the enforcement of a Leavitt, ordinance. 31 Wis. 2d at 76-77. Finally, permit

¶ 57. the issuance of the in Rus- Dairy any city's sell did Stores not violate law or the contract with the state. The court determined that in revoking legal permit, city Chippewa Falls had arbitrarily. Dairy acted Stores, Russell 272 Wis. at case, however, 147-48. Willow Creek's there is an County zoning asserted violation of the ordinance. already

Moreover, as determined, we have the decision prevent operation of Willow Creek's bird Agricultural farm due to a violation of A uses was not arbitrary. County equita- Thus, the Town and are not operation preventing

bly estopped of Willow the from Creek's farm. although summary, the conclude that In we statutory authority to license the establish- has

DNR preclude authority game not farms, its does ment of zoning County regulating of and the from Town game conclude farm. We further Creek's bird Willow from suit under are immune that the Town and 893.80(4), and that their actions Stat. Wis. operation

preventing Creek's bird of Willow Finally, illegal. nor neither unconstitutional farm were equi- Town and are not we determine that the tably estopped immunity asserting as a defense or from vetoing enforcing Wil- ordinance from Accordingly, property. petition to rezone its low Creek's appeals. we affirm the court appeals

By court of decision of the the Court.—The is affirmed. (dissenting). PROSSER, J. Wis- 59. DAVID T. unintelligible explaining has become

consin law persons rights who and remedies are available what government. injured by state or local have been provide purpose an overview of this of this dissent is to injus- it has led to a serious dilemma and to show how present in the case. tice ¶ 60. abrogated principle this court I. Holytz immunity governmental from tort claims. City Milwaukee, 2d 115 N.W.2d 618 17 Wis. American that few tenets of Our court declared unanimously

jurisprudence as the so berated had been immunity governmental doctrine. 17 Wis. 2d at We governmental-immunity origin in had its found that judicial decisions and concluded that the time had immunity, though legisla- even the come to abolish the Id. 37. ture had not acted. at scope

¶ addressed the of abro- 61. court then announcing gation, that, henceforward, "so far as governmental responsibility concerned, for torts is liability exception immunity." rule is Id. at 39. is —the Further: government's

Our decision does not broaden the responsible so as to make it for all harms obligation others; only it is as to those harms which are torts governmental that bodies are to be liable reason of this decision. interpreted imposing decision is not to as

This be body in the exercise of liability governmental on a or legislative judicial quasi-legislative its or quasi-judicial functions. (citing Hargrove Beach, v. Cocoa 96 So. 2d

Id. at 39-40 1957)). (Fla. 130, 133 acknowledged legisla-

¶ that 62. The court thus free to reinstate ture had the last word and was immunity, impose damage caps, and establish "admin- requirements. .preliminary istrative . judicial alleged proceedings for an

commencement of at 40.1 tort." Id. legislature responded 1963,

Holytz by enacting Chapter decision Laws July Chapter Stat. 27, 1963. 198 created Wis. effective ruling prospective, its was 1 The court determined that suit, Holytz, injured young child in the except for Janet July 15, 1962," occurring about apply would "not to torts before Milwaukee, Holytz City five weeks after the decision. 26, 42, 115 2d N.W.2d 618 Wis. becapie

§ 331.43, which in time Wis. Stat. 895.43 (1975-76) § 893.80, the section and is now Wis. Stat. applies legislature to this case. The has amended provision

this several times. statute, To understand the current we (1) Subsection of the 1963 law

must look backward. except tort, directed that: "No action founded on as against provided 345.05, in s. shall be maintained" government entity, including local company, a volunteer fire employe" agent "officer, official, or of such

or entity, filing timely claim. without first notice of (2) imposed damage cap

¶ 65. Subsection any against $25,000 "in founded on local action tort" governments, precluded punitive damages it in and any such action. (3) stated: 66. Subsection brought against any politicalcorpo-

Nosuit shall be ration, thereof for the intentional torts of its any governmental agency subdivision or

officers, offi- agents employes any cials, or nor shall suit be brought against company, corporation, such fire agency against officers, subdivision or or its offi- agents employes cials, or for acts done in the legislative, quasi-legislative,judicial exercise of or quasi-judicial functions. (3) language

The latter half of subsection tracked the in Holytz, explicitly maintaining immunity in tort for discretionary governmental certain functions.2 (4) provided provisions ¶ 67. Subsection that "the and limitations of this section shall be exclusive and apply against shall to all in actions tort" the enumer- ated entities. The subsection also said:

2 Milwaukee, Coffey 526, 532, See Wis. 2d N.W.2d in an Nothing impose this section shall bar action or any officer, against any limitations action such official, agent employe individually or inten- rights torts. or remedies provided tional When are by any any other against political corpora- statute tion, governmental agency any subdivision or or officer, official, agent employe injury, or thereof for death, such damage apply or statute shall and the (2) inapplicable. limitations sub. shall be legislature repealed and recre- part larger "relating ated Wis. Stat. 895.43 as aof bill procedure brought against to a uniform for claims local governments." legisla- Chapter 285, Laws of 1977. The changed ture the title of the section from "Tort actions against political corporations, governmental subdivi- agencies agents employes; officers, sions or or damages claim; notice of limitation of and suits" to against political corporations, governmental "Claims agencies agents officers, subdivisions or employes; injury; damages and notice of limitation of dropped phrase suits." It "action founded on tort" (1) phrase "a from subsection and inserted instead the (3) claim or cause of action." It renumbered subsection (4) It also subsection to subsection renumbered (5) changed language in subsection the subsec- provisions tion from "the and limitations of this section apply in shall be exclusive and shall to all actions tort" provisions and limitations of this section shall to "the apply to all claims." It also be exclusive and shall (5) dropped from renumbered subsection the sentence: impose "Nothing in an action or this section shall bar any any against officer, action such offi- limitations individually agent employe cial, for intentional or torts." Prefatory Note revised section

explained that the Wisconsin Statutes "contain a vari- ety bringing procedural steps to follow when claim" against government. a local The Note then stated: procedures [SECTIONS

This bill consolidates these by repeal- 12] to 10 and and makes them uniform stats., ing recreating 895.43, [SECTION s. Wis. following procedures prose-

11] to include the when cuting against any company a claim volunteer fire 213, organized gov- under ch. political corporation, against ernmental or agency subdivision or thereof officer, official, any agent employe corpo- or of such ration, agency subdivision or or fire volunteer company capacity for acts done their official or in agency employment: the course of their a) 120-day filing A period for written notice of However,

injury. give the failure to required notice will not bar an action if the appropriate body had actual notice and fail- ure provide written notice was not prejudicial to the defendant.

b) No time limit filing for a claim.

c) A time limit days disallowing of 120

claim; body the failure of an appropriate days on act a claim within 120 is treated as a disallowance.

d) Notice of disallowance of a claim which shall

include a statement of the date of disallow- ance and the time during which a claimant may commence a court action.

e). A requirement suits be commenced

within 6 months of the date of service of notice of disallowance. p.

Ch. Laws of

442 legislation Prefatory ¶ Note the 1978 70. The explain procedures. or even men- It did not described to tort. The of several references tion the elimination then-existing eight legislation statutes, tied new 62.25(1), 59.77(1), namely, §§ 60.36, 59.76, Wis. Stat. 345.05(3) (1975-76), to the 118.26, 119.68, and

81.15, eight procedures § These statutes in Stat. 895.43. Wis. against counties, causes of actions or claims

authorized against districts, the state for towns, cities, school objective of all this was to motor vehicle accidents. The procedures claims to be followed for establish uniform against governments.3 local legislature 1979, In renumbered Wis. § § Section 893.80 has been

Stat. 895.43 as 893.80. language in sub- times, but the amended several other (4) exempting governments and local local section in the exercise of from suits "for acts done officials judicial quasi-judicial legislative, quasi-legislative, always intact. functions" has remained background information serves as 72. This influ- that have had decisive

the review of two cases litigation. present first case is DNR v. ence on the City 178, 888 Waukesha, 184 2d 515 N.W.2d Wis. 893.80(1), (1994), question: posed "Does sec. which this apply in all actions or statute, of claim Stats., the notice only concluded at 182. The court in tort actions?" Id. 893.80(1) applies It all actions. Id. at 183. "plain language"

pointed at the statute. Id. City Figgs quoted Milwaukee, 121 v. It also from it and the "confusion" among the old statutes Disparity Milwaukee, 43 Wis. 2d created is discussed Schwartz River, (1969), Eagle and Harte v. Wis. 168 N.W.2d (1970). Schwartz, 513, 518-19, 173 this court N.W.2d 683 2d change the law. legislature invited 44, 52, 2d (1984),

Wis. 357 N.W.2d 548 in which this court said: 893.80(l)(b), apparent Stats.,

[I]t is that sec. list, item, requires by a item of the kinds of relief be, sought. sought here, One kind of relief might as money damages. case, In another might it be a by demand for relief specific performance by injunction. It should be noted that sec. 893.80 is not only a statute applicable to tort claims or claims for negligence. opening sentence of sec. 893.80 applicability any recites its cause of action. Sec.

893.80, initially by legislature, when enacted applied claims, to tort only but ch. Laws of 1977, the procedures generally were made applica- any against governments. ble claims the listed Accordingly, the statute provides for method of securing against relief city may be different added). from, to, or in damages (emphasis addition In the case, Waukesha the court discussed three court of appeals decisions after 1978 that had 893.80(1) ruled that Wis. Stat. applied only actions for money Kaiser v. damages: City of Mauston, Wis. (Ct. 345, 356,

2d 299 N.W.2d 1980); App. Harkness Dist., v. Palmyra-Eagle Sch. 157 Wis. 2d 579, 460 (Ct. N.W.2d 769 App. 1990); and Nicolet Village of (Ct. Point, 80, 86, Fox 501 N.W.2d 842 App.

1993). 184 Wis. 2d at 191. The Waukesha court then said:

[W]e now hold that sec. applies 893.80 to all causes action, just just not those in tort and not those for money damages. Kaiser, We therefore overrule Harkness and Nicolet to the extent opin- that those 893.80(1) ions hold that applies only sec. to tort money claims claims for damages.

Id4 Department Waukesha, the of Natural (DNR) sought injunction against an had

Resources City stat- forfeitures under one Waukesha as well as Ultimately, penalties the court another. ute and under dismiss the of the circuit court to reversed the decision permitted complaint.5 result, As a this court DNR City. injunctive against the relief DNR to seek City Johnson v. 75. The second case is of (Ct. 1996), Edgerton, App. 343, 558 653 207 Wis. 2d N.W.2d years Johnson, In after Waukesha. decided two of Wis. Stat. focused on a different subsection court principal the immu § issue was "whether 893.80. The 893.80(4), nity granted § STATS., limited to is equitable it tort, or whether extends actions seeking injunctive The court relief." Id. at 345. actions immunity provisions of that "the official concluded 893.80(4), provi § and claim STATS., like the notice 893.80(1), money- § are not limited to tort of sions equally applicable damage to actions actions, are but governmen against injunctive . .seek relief which. reaching employee." 352. In Id. at subdivision or

tal 4 briefly decision, 10 of the court wrestled In footnote its relief, saying: "Such immediate preliminary problem with the follow the required claimant is possible not if the relief is ,[T]his require the notice procedures.. . issue—whether notice 893.80(1) plaintiff seeks where the apply in cases ments of sec. not and we need not before the court

preliminary relief—is it." 184 Wis. 2d at address 343, 349, 2d City of Edgerton, 207 Wis. In Johnson (Ct. mistakenly 1996), appeals court of App. N.W.2d 653 court's dismissal upheld court] the trial [supreme "The stated: .applied action, statute.. holding that 'the notice of claim theof actions, just in tort actions.'" in all not heavily conclusion,

this guage the court relied on the lan- analysis of the Waukesha case. majority opinion today ¶ 76. The consecrates the controlling Johnson decision as law, Wisconsin declar- ing that: only

Not does immunity under Wis. Stat. 893.80(4) bar Willow against § Creek's suit Town and money damages, for pre- it also cludes suit in this instance injunctive for relief. City Edgerton, 343, 352,

Johnson v. (Ct. 1996). App. Johnson,.. N.W.2d 653 In .[t]he court held that immunity the official provisions of 893.80(4) Wis. Stat. are money not limited to dam- ages actions, or tort but apply as well to actions seeking injunctive against relief municipalities and employees. their

Majority op. ¶at 31. my language view, some of the used in Figgs overly and Waukesha was broad. Some of the analysis sweeping. in Waukesha was too When the appeals analysis step court of followed that in lock directly its Johnson, decision in it marched into a bed quicksand. scrutiny Close of the statute and of the opinion why Waukesha demonstrate Johnson was incorrectly decided.

H—I I—i legislation passed ¶ 78. The in 1963 awas direct response Holytz decision. It was intended to deal against governments, with tort claims procedure local create a handling solidify for these claims, tort immunity recognized tort that the court had for certain discretionary governmental prohibit against acts, suits governments employees, local for intentional torts of governments against damages punitive preclude local govern- damage caps in establish actions, and in tort cases. ment tort (3) § 331.43 Stat. of Wis. Subsection

(1963-64)read: corpo- any political brought against shall be

No suit agency thereof ration, subdivision or governmental officials, officers, its torts of the intentional brought any suit be nor shall employes or agents subdivision corporation, company, fire against such officers, officials, or agents its against or agency or legislative, in the exercise for acts done employes quasi-judicial judicial quasi-legislative, functions. any (3), phrase shall "nor In subsection any brought" incon- in tort. It is to suit refers

suit be intentionally precluded legislature that the ceivable array in this tort claims in tort not founded of suits vast did so sentence, and of a in the middle statute, did so revealing Cer- its intention. that that was without ever interpreted tainly, to extend was not the subsection beyond case in 1996.6 the Johnson until tort suits County, instance, Complexes v. Eau Claire Energy in For (1989), court consid 453, 465, this 449 N.W.2d 35 2d 152 Wis. 893.80(4) Stat. § that Wis. by Eau Claire a defense ered lawsuit. This of contract county from a breach immunized court said: involving 893.80(4), Stats., apply a local to suits does not Section obligations. concedes body's The

government contractual 893.80(4) enacted, only applied tort originally it was when § that 893.80(4) however, made County argues, was actions. The actions, actions, including amend- contract applicable to all County’s argument 285, must The Chapter of 1977. Laws ments legislative history 1977 amendments. light behind the of the fail Chapter shows that Laws of prefatory note uni- merely and make legislature consolidate was intent of (4) ¶ 81. Renumbered subsection of Wis. Stat.

§ 893.80 now reads: may brought

No suit be against any volunteer fire company organized 213, political under ch. corpora- tion, governmental any agency subdivision or thereof for the officers, intentional torts of its offi- cials, agents or employes nor may any suit be brought against such corporation, subdivision or agency or volunteer company fire against or its officers, officials, agents employes for acts done in the exercise legislative, quasi-legislative, judicial or quasi-judicial functions. legislature changes pre- made no substantive (4) 35-year period.

sent subsection over a No critical language language added, was and no critical was improbable legislature, pass- deleted. It is that the ing prepared by highly regarded Legislative a bill (4) Council, intended in wipe subsection out reme- long litigants changing dies available to without statutory language alerting anyone and without of its objective. (1) history

¶ 82. The of subsection of Wis. Stat. quite § legislature 893.80 is different. In 1978, the repealed 895.43(1), dropping and recreated Wis. Stat. phrase legis- "action founded in tort." Whether the actually phrase

lature intended its new "a claim or apply beyond cause of action" to to all claims tort legislature claims is debatable. Nevertheless, language deleted critical from the subsection, and resulting provision appears on its face to be much statutory procedures

form commencing against claims local government entities. scope addition, there In than it was before.7 in broader requiring notice of claim that a for clear rationale is a gov- against a local commenced suit is filed before be government gives an the local A notice ernment: opportunity investigate resolve the claim and the costly litigation. becoming dispute enmeshed before purpose legislation of announced had the 1978 The making affecting procedures local the notice uniform good the governments. reason for Hence, there was 893.80(1) interpret § as Stat. Wis. court Waukesha applying reserving issue claims, tort to more than preliminary relief. of court however, the Johnson Thereafter,

substantially decision. The extended the Waukesha argued case was the Waukesha that had Johnsons (1)." only binding 207 "precedentially as to Subsection [Wau- replied that, "Given at 349. The court Wis. 2d analysis. question kesha] whether . .we court's appeals may The court of limited." Id. so decision be analysis why gave in Waukesha reasons three then (4) § 893.80 interpret Stat. of Wis. subsection led it to subsection the same as supreme court said, "the First, the court controlling, of a significant, the absence if not

found Stat. specific in Wis. tort claims limitation Bd., 2d Siting 216 Wis. Facility City Racine Waste of draft (1998), majority went 616, 624, 575 N.W.2d the court's support materials to additional ing files and found 893.80(1) causes of applied to all that Wis. Stat. § conclusion language, plain clear from the "It is The court said: action. legis history, that the legislative by the

especially as bolstered action, 893.80(l)(b) apply to 'all causes intended § lature damages'" money just not those in tort and just those not Waukesha, 2d 184 Wis. City (citing DNR v. (1994)). N.W.2d 888 893.80(1)." appeals Id. at 350-51. Thus the court of declared: may

The same be said for the "immunity" provisions (4); they subsection do not now contain —nor have they ever any such limitation. The sub- contained — states, section simply plainly, that acts done the exercise of the discretionary subdivision's func- tions are "any immune from suit."

Id. at 351.

¶ language 85. The absence of in Wis. Stat. 893.80(4) explicitly limiting § the suits to which the applies ¶ subsection is discussed above in 80. The con- history suggest text and of the subsection the phrase any brought" implicitly "nor shall suit be is limited to suits in tort. appeals recog- 86. What the court of failed to jettisoned implicit

nize in Johnson is that when it the (4) jet- limitation in subsection tort, suits in it also immunity tisoned the limitation to tort. Read for literally, immunity any the subsection creates acts legislative, quasi-legislative, done in the exercise of judicial quasi-judicial arguably pre- or functions. This cludes claims in contract.8 reading

¶ 87. If a literal of the subsection were person challenge correct, how could a in court a deci- by sion public made a local school board to name a Speck Jeffrey school after Richard or Dahmer? Isn't the naming public legislative of a school a function? How person challenge by could a in court a decision school board to all non-renew teachers who were left handed or had red hair? Isn't non-renewal a discretion- As noted in footnote this court unanimously rejected breach of immunity contract Energy Complexes v. Eau Claire County, 453, 449 (1989). 2dWis. N.W.2d 35 legality challenge person ary could a How decision? questionable by city passed council, a a an ordinance arbitrary county by expenditure refusal board, or the a Passing permit? body grant government a of a local granting money, spending public or ordinances, judicial legislative represent denying permits classic go stop person court to How could functions. negligence

continuing injury inten- or even from the government? One cannot a local misconduct of tional strip- brought" literally may without be read "No.. .suit ping inviting protections fundamental citizens of governments. by cannot read the One local misconduct literally producing language results absurd without legislature in 1978 law. intended never gave reason for court a second The Johnson (4) broadly interpreting as subsection as subsection any immunity argued from suit that "the The court 893.80(4), significant language itself, STATS., in context." 207 considered even more so when becomes the reference to court contrasted 2d at 351. The Wis. subsequent prohibition of intentional torts with "any in the same sentence: suit" noted, limiting there, no just as we have only

Not is of the here, in the clause preceding but language ref- subsection, specific made a legislature the same torts. . . .When actions for intentional erence to in a stat- different terms uses legislature presume in the same section—we particularly ute — it meanings. We have distinct intended the terms to a to read be reasonable not it would do believe language suit" "any into the "torts-only" limitation §893.80(4). Id. responses argu- 89. There are several to this

ment. At the time the subsection was 1963, enacted in a faithful construction of the subsection would have rec- ognized "torts-only" "any a limitation to the suit" language language part because the was of a tort language way claims statute. The was construed that years. language for more than 30 ferently To construe the dif- required in 1996 the court to read the "torts- only" limitation out of the subsection, in effect overrul- ing contrary countless court decisions. This was principle set forth in Cook v. Cook, 208 Wis. 2d (1997), 185-190, 560 N.W.2d 246 that the court of appeals may modify overrule, not or withdraw lan- guage previously published from a decision of the court appeals. Johnson would have had to be decided dif- ferently preceded if it had followed rather than Cook decision. appeals par 90. The three court of decisions

tially overruled in Waukesha serve to illustrate the point. City In Kaiser v. of Mauston, (Ct. 1980), App. appeals

N.W.2d 259 the court of permanent injunction against City affirmed a Improvement Mauston and Lake its District. enjoined giving defendants were from effect to a lake plan part by city rehabilitation created council.

The defendants contended that the suit was barred comply provision a failure to with the notice of Wis. 62.25(1), § Stat. which was tied to then Wis. Stat. 895.43(1). appeals disagreed, The court of and it upheld injunction. Although this court overruled Kaiser on the notice of claim issue in Waukesha, it did say injunction not circuit court could not issue an against city. implies The Johnson decision that the remedy employed in Kaiser has been eliminated. Palmyra-Eagle Dist.,

¶91. Sch. In Harkness v. (Ct. 1990), App. a 567, 460 N.W.2d 769 by probationary the was not renewed school teacher money dam- reinstatement and She sued for board. claiming

ages, had violated that the school board by procedures The court statute. certain established money damages grounds rejected that on her claim for discretionary immunity acts, had for the school district Stat. 893.80 did not bar the court ruled that Wis. but non-monetary injunctive her claim for reinstatement — her an order to reinstate her to relief in the form of appeals teaching position. The court of stated: former 893.80(4), Stats., does not bar .that sec. "We conclude.. 157 Wis. 2d at claim for reinstatement."

Harkness's portion that of the This court never overruled Waukesha, the Johnson deci- but Harkness decision remedy appears for of a suit to eliminate sion reinstatement. Village 2d Point, Fox 177 Wis. 92. Nicolet v. (Ct. 1993), App. an action was 501 N.W.2d

declaratory judgment seeking that confirmation injunctive plaintiffs relief. land, and for certain owned grounds court on dismissed the circuit The suit was comply plaintiffs notice with the had failed to that appeals reversed, main- The court of of claims statute. supreme

taining court's that some pronouncements The court were dicta. Waukesha holding contrary "any render would said timely, attempts gain meaningless effective most governmental injunctive against units." 177 Wis. relief go ruling permitted the lawsuit 2d at 89-90. Although case overruled the Waukesha

forward. holding claim, the court on notice of Waukesha Nicolet against municipal- injunctive precluded relief never ity. light gave green itself

Rather, the case Waukesha injunctive against municipality. relief a Thus, when injunctive may the Johnson case held that relief not be sought against municipality, effectively a it overruled both Nicolet and Waukesha. argument might

¶ 93. The be made that appeals prohibit injunctive court of against intended to relief government against

local torts but not other government require local action. But that would a "torts-only" court to read into the statute a limitation reading "torts-only" on acts while out of the statute a limitation on suits.9 appeared

¶ 94. The fallout from Johnson almost immediately Schmeling Phelps, in 898, Wis. 2d (Ct. 1997). App. questions 569 N.W.2d 784 One of the 893.80(4) Schmeling § was whether Wis. Stat. barred a declaratory judgment against county action executive allegedly illegal on an declaratory judgment veto. The court concluded that "a .brought

action is not a . 'suit. against' Phelps [Richard] or Dane within the meaning 893.80(4), § [The] of STATS. action seeks money injunctive Phelps neither nor relief from or the county; they parties only they are named as so that can question presented." be heard on 212 Wis. 2d at 914-15. Schmeling

¶ 95. The court's conclusion that a declaratory judgment action is not barred subsec- majority attempts holding Johnson, to limit the asserting in 33 that "suits garner must be based in tort to protection immunity consistent with the statute." This was not the intent of the decision, Johnson concurring opinion as the by Judge Vergeront in Willow Creek testifies. Willow Creek Ranch, Shelby, L.L.C. v. Town 286-87, (Ct. 1998). App. N.W.2d 15 See n.21 majority's below. The interpretation will against transform suits governments local disputes into about whether the suit is "based in tort." (4) was forced to dance correct; but the court tion was interpretation of Wis. Stat. court's around the Johnson 893.80(4) declaratory- preserve effort to in a valiant government. against judgment The court local actions happened open question if a would have what left injunction requested plaintiff enforce- an to block had had declared an that a court ment of ordinance stop public taxpayer had tried to unlawful, or if a illegal. expenditure In Schmel- that a court had ruled identify specific ing, statutes was forced to the court specific authorizing took statutes suit. It said these 893.80(4). Suppose precedence § there Stat. over Wis. specific government-focused statutes

had been no describing pro- authorizing only general statutes suit — those that mean that remedies? Would cedural against a in a suit available remedies would not be government? local context, the Johnson court it examined 96. As language following

neglected to take account of Figgs: Stats., 893.80(l)(b), that sec. apparent

[I]t is item, of relief list, by of the kinds a item requires be, here, sought might as kind of relief sought. One might be a it In another case money damages. by specific performance by

demand for relief method a provides [T]he statute injunction.... for city may that be securing against a different relief added). to, damages (emphasis or in addition from require pointless to it be 2d at 52. Wouldn't 121 Wis. injunctive

party to seek it intended file a notice that injunctive relief? to seek it never entitled relief if were years the court Johnson, before 97. Two authority estop Figgs appeals as case relied on asserting St. Fritsch v. a defense. from district school

455 Dist., 336, 343, Croix Cent. Sch. 183 Wis. 2d (Ct. 1994). App. N.W.2d 328 The court said: 893.80, STATS., The purpose of § is afford the government an opportunity to compromise and set- Milwaukee, tle the claim litigation. Figgs without 44, 53, 2d Wis. 357 N.W.2d nothing There is suggest legis- 893.80 to that the lature intended any or additional purpose different Figgs, 53-54, this statute. 121 Wis. 2d at N.W.2d at 553.

The Johnson court reached a mistaken conclusion, in part, disregarded many years precedent because it from its own court. argu-

¶ 98. The Johnson court offered a third interpretation ment for its literal of Wis. Stat. 893.80(4), namely immunity provisions derive public policy from considerations. 207 Wis. 2d at 352. It listed these considerations as follows: Public officers unduly hampered should not be or intimidated in the discharge per- of their functions threat of lawsuit or liability.10 pass judgment sonal Courts should not on policy govern- decisions of coordinate branches of public ment.11 The valuable time of officials should not by policy be drained lawsuits.12 The sum total of these proposition considerations comes close to that we the against gov- should eliminate all court remedies local 10 Scarpaci County, 663, 682, Milwaukee 96 Wis. 2d 292 (1980). N.W.2d 816 County, 11 Hillman v. Columbia 104 Wis. 2d 474 (Ct. 1991). App.

N.W.2d 913 Regents, 282, 299, 12 Lister v. Board 240 N.W.2d 610 just hold because it is too burdensome to ernments people.13 governments accountable ways, puts ¶ the Johnson case ordi- some they nary position than before citizens in a worse were legislature Holytz. evidence the Wisconsin There is no wrongly case intended that result. The Johnson was should it be sanc- decided and under no circumstances controlling court as law. It should be tified this overruled.

HH hH I—I brings ¶ 100. This us to the facts of this case.

They report here to events and details that are restated majority opinion and to have been omitted from the why a named defendant. show is May 16, 1996, Willow Creek Ranch 101. On Shelby against complaint and La filed a Town complaint, County.14 In Claim I of the Willow Crosse declaratory judgment, alleging sought Creek represented Shelby had and La Crosse Town of proper had the zon- Creek that Willow Creek to Willow ing game operation farm and that of a bird for the representa- the Defendants' Creek "relied on Willow II, asked In Claim Willow Creek tion to its detriment." enjoin injunction from inter- the Defendants for an fering operation and from bird farm in the operation prosecuting farm. for the of the Willow Creek "any language suit" majority argues in 33 that the The 893.80(4) money damages in applies to suits for in Wis. Stat. § repeats policy It "injunctive relief based tort." tort and analysis immunity. majority's underlying tort rationales apply policy do not in suits implies that these same rationales on some governments the suits are based against local when theory than tort. other Creek's second suit. does not discuss Willow This dissent

Early litigation, in the Willow Creek moved unsuccess- fully temporary restraining for a order and then a injunction. temporary

¶ 102. The and Town each answered complaint, and both moved to dismiss. Willow Creek supporting exhibits, filed affidavits and and the County and Town also filed affidavits and exhibits.

filing supporting of the documents converted the summary judg- motion to dismiss into a motion for any County explicitly event, ment.15 In La Crosse summary judgment September 9, 1996, moved for on and the Town followed with its own motion on October County, 25, 1996. The Circuit Court of La Crosse Den- Judge, granted Montabon, nis G. the motions for summary judgment April 16, and motions to dismiss on 802.08(2), provides § 103. Wisconsin Stat. summary judgment pleadings, "shall be rendered if the depositions, interrogatories, answers and admis- together file, sions on with the . affidavits. .show that genuine any there is no issue as to material fact and moving party judgment that is entitled to a as a Summary judgment matter of law." is a drastic rem- 802.06(2)(b) Stat. provides part: Wisconsin (a)6. asserting par. If on a motion defense described in to dis- pleading upon miss for failure of the to state a claim which relief granted.. pleadings presented can be .matters outside of the are court, by and not excluded the motion shall be treated one for as summary judgment disposed 802.08, provided ofas in s. and all parties given opportunity present shall be reasonable all mate- pertinent rial made to such a motion s. 802.08. Johnson, 574, 580,

See Johnson 508 N.W.2d 19 (Ct. 1993); Fritsch App. Dist., v. St. Croix Cent. Sch. 2dWis. (Ct. 1994).

336, 342, App. 515 N.W.2d 328 edy.16 deprives losing party opportunity It ofthe for evidentiary hearing. Consequently, a trial or even an a summary judgment motion for initiates a search of the existing including pleadings, record,17 to determine ruling whether a claim has stated. In been on a sum- mary judgment may motion, the court consider all allegations pleadings plus contained in the the affida- vits and filed, other materials search of a claim. following allega-

¶ 104. Willow Creek made the pleadings in its tions and other materials. On a motion summary judgment, extraordinary in the absence of accept allega- circumstances, the court must all these tions as true. pres- October Willow Creek's vice telephoned

ident, Churchill, Kevin the La Crosse County Zoning and Land Information Office and asked operate game farm, whether Willow Creek could a bird hunting property activities, with on its 115-acre in the Shelby. An Town of Zoning official at the La Crosse Office told Churchill that La Crosse object game operation would not to a bird and advised Jeffrey him Brudos, to contact L. chairman ofthe Town Shelby, any objections. if to see the Town had objections, official said that if the Town had no Willow operate game Creek could a farm. Churchill and bird Mary president McLoone, Creek, of Willow then tele- phoned Brudos and asked him whether a change required operate game farm, was bird including hunting. Brudos told McLoone and Churchill zoning change required. that no was Boston, 16 Lecus v.American Mut. Ins. Co.

189, 260 N.W.2d 241 Co., 17 Peoples Printing & Bank v. Standard Trust Sav. (1963) 27, 31, 119

Wis. 2d N.W.2d 378 Relying assurances, on these Willow game began bird work to obtain a license for Creek develop property and to its for the farm from the DNR months, made Over the next 11 Willow Creek farm. pens, repaired

building improvements, constructed purchased purchased work, birds, wells, did electrical survey, dogs, land, transferred conducted a and trained accounting legal prepare paid for a and September fees to opening. It also obtained the DNR expended $340,000 Creek more than license.18 Willow capital payroll operating expenses and on on opened farm. investments before it bird September ¶ 30, 1994, 107. On McLoone and Ruskell, Harlan retir- Churchill met at the farm with ing Shelby, Heiden, for the Town of and Drew assessor and Heiden evaluated the Ruskell's successor. Ruskell improvements property purposes. for tax After looking upgraded property, the classifi- at the Heiden A cation of the land and "hiked the land value."19 few days open later, hosted an house to Willow Creek show game neighbors the new bird farm. optimistic

¶ 108. The Willow Creek officers were Mary In about their initial success. December McLoone, McLoone and Susan another Willow Creek County employee, contacted La Crosse official Mike possibility building an Weibel to discuss officeto 18 Paragraph majority opinion attempt 4 and n.4 to by implying that Creek late discredit Willow Creek Willow was obtaining game my operate in a DNR license to a bird farm.

view, support the record does not an inference that Willow obtaining delinquent Creek was careless or a state license. September The record not clear who initiated the is meeting. meeting imply A initiated the town assessor would knowledge part developments on the of the Town of at the property.

handle the overflow of customers at Creek Willow Ranch. 109. Between October 1993 and June Creek

Willow officers had several communications County point during with the and Town. At no this time did local officials inform Willow Creek that it zoning change operate game needed a farm. bird 21, 1995, 110. On June 20 months after the Town, initial contact with the Mary sug- official, gest McDonald, Dan called McLoone to point change that at some Willow Creek should its zoning Agricultural Agricultural from Exclusive to County B.

McDonald told McLoone that had been time, aware of the County bird farm for some but the anything had not done because Willow Creek County Zoning officials had been contact with the speak again Office. McDonald said McLoone should Shelby Jeffrey Chairman Town Brudos. When call, McLoone made the Brudos stated that he did not necessary change think it was for Willow Creek to its zoning impression because it was his that Willow appropriate doing. Creek's was for what it was get he Brudos said would check into it and back McLoone. get

¶ 111. Brudos did not back to McLoone. In July August, telephone McLoone made seven calls attempting to reach the Town Chairman. On the sev- zoning change call, enth Brudos told her that a would necessary. promptly be McLoone met Dan with McDon- County ald, who told her that La did Crosse not have a problem rezoning property. with

¶ In October Willow Creek hired a surveyor legal description property to secure a of the up hunting and set a buffer zone between the area and neighbors. the nearest It also invited members of the one came. On to the ranch. No Town Board visit Mary attended Susan McLoone 6,1995, and November rezoning proce- meeting inquire about a Town Board contact told the McLoones to Brudos dure. Chairman County, it not he informed them would Crosse and La meeting. necessary Town Board to attend another be peti- ¶ 1995, Willow Creek In November property County from to rezone the tioned La Crosse Agricultural Agricultural B. Members of Exclusive Zoning visited the Committee the La Crosse Zoning Committee then scheduled bird farm. The day, Mary meeting McLoone 4. On that for December Jeffrey Brudos the Town Board. attended a session of to attend the meet- her that she did not have informed ing County Zoning Committee. The Town with the and Clerk, Ernst, corrected Brudos advised Ted meeting. did, She that she should attend the McLoone pro- objectors appeared when Willow Creek's and no days zoning change posed later, was discussed. Four County, through Weibel, Mike however, La Crosse Creek would have to McLoone that Willow informed resolved. until the issue was cease its business attempt- 114. Brudos accused Willow Creek by attending ing pull the December a fast one meeting County Zoning he Committee after with necessary. subsequent meetings, it not said was attempted Creek and to stifle Brudos persons to mislead Willow speak behalf.

who wished to on Willow Creek's February, January, and 115. The months maneuvering negoti- March 1996 saw considerable Eventually, among parties.20 on March ation grant Board voted to Willow the La Crosse rezoning Agricul- petition Creek's from Exclusive studies, money spent additional for noise Willow Creek safety studies, experts. Agricultural zoning change

tural to B. This was vetoed Shelby. Jeffrey the Town of Brudos voted to veto the zoning change, culminating opposi- several months of any zoning permit tion to game modification that would operate. bird farm to affidavits, In its Willow Creek asserted Gary neighbor opponent Wickus,

that game a of the spoke meeting farm,

bird at a of the La Crosse County Zoning January 29, 1996, Committee on calling County said that he had been La Crosse since complain proposed game 1993 to farm, about thereby confirming County's longstanding La Crosse knowledge project. of the Willow Creek Willow Creek alleged meeting County also that at a of the La Crosse February 16, 1996, Board on Bluske, Jeff Director of County Zoning the La Crosse and Land Information Office, admitted County Willow Creek had informed La open Crosse about Willow Creek's intention to game explained a farm. Bluske that La Crosse given approval County's had its because the definition hunting. of a farm did not include Bluske's sworn representations. affidavit does not disavow these light allegations, of these the circuit acknowledged disputed court that "there is a fact as to governments whether officials of the and Town plaintiff complied zoning told the that it with current summary judgment law." The court denied on that Nonetheless, issue. the court suit, dismissed the (1) asserting municipal that: erroneous acts of officers estop municipality do not afford a basis to from enforcing pursuant ordinance enacted (2) police power; "provides and Wis. Stat. 893.80 immunity municipal governments for their 'discre- tionary' relating action, actions to all causes of including injunctive estoppel relief and claims." As proposition,

authority cited the court for the second candidly 12. The court and Id. at Johnson Waukesha. delay

acknowledged its decision that it was asked to published, opinion ordered so in Johnson was until the precedent. Id. at 3. cited as that the case could be appeals affirmed the the court of 118. When court, it stated: circuit Creek. . .asserts that the Town

Willow 893.80(4), STATS., from are not immune under § scope relief. We addressed the equitable claims for 893.80(4), relief in equitable as it relates of § City Edgerton. . . .We concluded Johnson v. underlying considerations public policy 893.80(4) earnestly equitable to an "apply just as agency seeking injunctive against relief action recovery of they the official as do to one for the Johnson, negligence this is a money.".. .[SJimilar to plaintiffs seeking equitable in which the are claim Therefore, apply that we can relief. we are satisfied to this case. . . . holding Johnson sum, govern- we have concluded that because immunity mental shields the Town relief, need not address equitable from suits for we argument estoppel the merits of Willow Creek's alleged misrepresentation. [sic] Budros regarding 224 2d at Creek, Willow Wis. 283-85.21 concurring opinion, Judge Vergeront insightful In an expressed concern Edgerton. City over the reach of our decision Johnson Johnson, injunctive may a citizen not obtain relief . . .Under municipality municipal equitable against even if a or a official prevent municipality estoppel lie to from would otherwise .[Tjhere may enforcing are situations in which it be an ordinance... enjoin equitable grounds municipality appropriate a from on See, Dairy City

enforcing e.g., Russell Stores v. an ordinance. ¶ 119. There can be no doubt that Johnson played pivotal role in the decisions of both the circuit appeals. court and the court of This court has held that complaint upon fails to state a claim which relief can granted liability be if the defendant is immune from activity alleged complaint. in the Olson, C.L. v. (1988); Energy 701, 706-07, Wis. 2d 422 N.W.2d 614 Complexes County, v. Eau Claire Wis. 2d 449 N.W.2d 35 The mistaken law in Johnson judicial thinking. must have influenced

IV governmental immunity ¶ 120. The law on has longer provides become so muddled that it no reasona guidance governments may ble about when local be persons claiming sued, what remedies are available to injury, govern and the in circumstances which local employees may ments and their be held liable. At the City of Edgerton. center of this confusion is Johnson v. step

Hence, as the first law, to restore coherence to the the Johnson case overruled, should be and this court 893.80(4) unequivocally § should assert that Wis. Stat.

applies only money damages. to tort suits for interpretations

¶ 121. Recent of Wis. Stat. 893.80(1) problems § illuminate the ahead for 893.80(4). 893.80(1), § § above, As noted the notice of apply statute, claim has been held to to all causes of just just action, not those in tort and not those for (1956). Falls, 138, Chippewa 148, 759, 272 Wis. 2d 74 N.W.2d may . . .The case before us not be one of those where a few cases municipality equitably estopped enforcing should be from an ordi- nance, were, municipality if it but even under Johnson the would seeking injunctive question be immune from suit I relief. whether legislature the intended such a result. Creek,

Willow 224 Wis. 2d at 286-87. City money damages. 191; at Waukesha, 184 Wis. 2d Facility Siting Bd., 216 Wis. 2d v. Waste Racine case, the In the Racine 622, 575 N.W.2d applies requirement even that the notice court held seeking filing cross-claim counterclaim or of a declaratory judgment. However, in Auchin Id. at 620. LaGrange, 585, 597, 547 200 Wis. 2d leck v. Town of unanimously (1996), that held the court N.W.2d 587 meetings open seeking to enforce Wisconsin's actions 893.80(1). exempt § open from laws are records City Moreover, of Neenah, Gillen (1998), plaintiffs sided with the court 580 N.W.2d including City ofNee- defendants, sued three who declaratory injunctive seeking relief. nah, bring plaintiffs a suit under that the could court held § nuisance, without first 30.294 to abate Wis. Stat.

filing claim. The court said: a notice of exception an to Wis. Stat. that there is

We conclude 893.80(l)(b) are plaintiffs' claims where § under brought pursuant public trust doctrine 30.294, injunctive relief provides which Wis. Stat. remedy. It is irrelevant specific

as a enforcement injunction in this case was not requested against City ofNeenah.

Id. at 826.22 concurring opinion Gillen, Chief In a that "the rationale of Abrahamson asserted

Justice .directly .opinion. contradicts the Waukesha the. . . made clear that unless Id. at 836. "Waukesha

case." preliminary injunctive requested, relief is a notice Casey, 487 U.S. 131 pointed also to Felder The court claim had (1988), that Wisconsin's notice of statute which held under 42 U.S.C. yield supremacy of actions authorized § city.

claim must be filed with the defendant The Wau- 893.80(l)(b) applies § kesha court held that Wis. Stat. against city injunctive

to an action a for relief." Id. at interpretation ¶ 123. The inconsistent of Wis. 893.80(1) precursor §

Stat. is a reliable of what lies 893.80(4) analysis § ahead for because the of subsec- (1) applied by tion in Waukesha was the Johnson court (4). Looking to reading forward, subsection this court's literal (1) making apply Racine, of subsection in it to a seeking declaratory judgment, counterclaim a under- validity Schmeling questions mines the and raises (4) application party about of subsection when a joins prayer injunctive relief with an action for declaratory judgment. hand, On the other the Gillen recognizes again litigants may case once that seek injunctions against governments. local

¶ 124. This court's ratification of in the Johnson present likely open floodgates case is of local government every remedy future, defenses. litigant against gov- seeks to utilize in a suit a local may challenged

ernment be to test the reach of the By overruling contrast, Johnson decision. Johnson (4) original objective would confine subsection to its put light. in Willow Creek's claims a new

V Overruling only part ¶ 125. Johnson is of the necessary clarify governmental work the law of immunity. court This should reexamine the circum- governments in stances which local and local officials may be liable in tort. immunity abrogated

¶ 126. Governmental was Holytz. legislation It not in was restored the 1963 893.80(3) subsequent legislation. Wisconsin Stat. (3) point. proves limits the amount this Subsection any injuries any damages, in or death recoverable "for governments against or tort" local action founded on agents employes done in their officers, or acts their "for agency capacity their or or in the course of official employment" added). plain implication (emphasis (3) governments local and local subsection is that may in in tort for acts done their offi- officials be sued employment capacity or in the course of their cial or agency.23 (4) away part

¶ what is 127. takes Subsection govern- granted provides that local in subsection It directly may for the intentional torts ments not be sued agents, employees, officers, officials, "nor of their or may brought against potential [these any suit be legislative, defendants] in the exercise of for acts done judicial quasi-judicial quasi-legislative, functions." or may summary, governments be In local "the torts committed outside sued for non-intentional judicial legislative, quasi-legislative, exercise of amounting quasi-judicial functions," if even the acts capacity.24 in an The breach of a torts are done official duty resulting damages is one of the ministerial govern- governments torts for which local and local may ment officials be sued. 893.80(5) recognizes rights or rem Wisconsin Stat. § injury may provided also be in some other statute.

edies formulation, statutory attempts This which to follow lan guage, is different from the formulation Lister Board of (1976), 282, 300, Regents, 72 Wis. 2d 240 N.W.2d 610 in which general public is the court said: "The rule is that a officer not injured performed personally liable to one as a result of an act authority scope of his official and in the line of his within duty." official separate cases, a line must tort actions legislative, quasi-legislative, in the exercise of

taken judicial quasi-judicial or functions and are immune capacity in from actions taken an official or government agency employment course of or that are identify immune. How do find and this line? As not we early "It is as this court stated: sometimes diffi- cult to draw the exact line of distinction between authority. discretionary judicial ministerial and or may capacity, same officer act sometimes in one Saloman, sometimes the other." Druecker v. Wis.

628, 637 majority opinion "excep- ¶ 130. The outlines four government immunity under tions" to Wis. Stat. 893.80(4). Majority "exception" op.

§ ¶at 26. The word respect is curious to "ministerial duties" with because assumption discretionary there is an that actions of the 893.80(4) § immunized in and ministerial duties sort overlap. duties, do not tially non-discretionary, Ministerial which are essen- logically side

fall on one discretionary legislative judicial char- line; acts of a fall the other. acter on

¶ contrast, "malicious, 131. actions that are willful, or inactions con- and intentional" and actions cerning danger" may a "known fall on either side of the may truly result, As a these actions be court-cre- line. immunity recognized "exceptions" in Wis.

ated 893.80(4) they § entail discretion. Stat. when ¶ the four 132. What is not clear is whether "exceptions" created under Wis. Stat. that have been 893.80(4) money damages § are authorize for torts recognized by only exceptions Wis- that will ever be exceptions should be courts and whether these consin sought does not the same when the relief treated money damages. involve DUTIES

MINISTERIAL Assuming sep- ministerial duties are that discretionary nothing in functions, Wis. arate from 893.80(4) an to a suit Stat. demanding stands as obstacle duty of a ministerial

relief for breach government intentional. A local unless the breach is may negligent against have defenses a suit for breach duty, these defenses are not found of a ministerial but (4). They grounded must in some other in subsection be of law. source case, In this Willow Creek contends County represented Shelby

the Town of and La Crosse proper that Willow Creek had the zon- Willow Creek ing relied for a bird farm and that Willow Creek representations on these question to its detriment. The initial alleged

is whether this conduct local offi- duty. cials breached a ministerial frequently cited test for ministerial 135. The duty Regents, is from v. Board 72 Wis. derived Lister (1976): 282, 300-301,

2d N.W.2d generally recognized exception

The most to the rule immunity damages is that an officer is liable for resulting negligent performance from his duty. public duty A officer's is purely ministerial absolute, only ministerial when it is certain and merely the of a imperative, involving performance imposes, prescribes task the law specific when time, perform- defines the mode and occasion for its certainty nothing ance with such that remains for judgment or discretion. language Meyer

¶ 136. The Lister comes from (1955), 332, Carman, 271 Wis. 73 N.W.2d 514 in quoted Municipal McQuillin, the court from 18 which (3d ed.), Corporations § 53.33: absolute, action. . .is ministerial when it is

Official certain, involving merely the exe- imperative, task, and when the law which cution of set time, mode, it and defines the imposes prescribes such performance and occasion for its with cer- tainty nothing judgment that remains discretion. commentary McQuillin's

It must be noted that has updated. drops § been The revised third edition 53.33 in new that: and comments 53.04.10

Stating discretionary-ministe- the reasons for the stating rial distinction is much easier than the rule. "discretionary" and .[T]he . . difference between An said to discre- "ministerial" is artificial. act is be exercise some tionary when officer must judgment determining per- in whether and how to would problem "[i]t form an act. The is be act, no matter any difficult to conceive of official ministerial, directly how that did not admit of some even if performance, discretion the manner of its only driving (quoted it involved of a nail." source omitted) duty

¶ 137. The court last dealt with ministerial Kierstyn 2d Dist., v. Racine Sch. 228 Wis. Unified (1999). The case a "benefits 596 N.W.2d 417 involved allegedly specialist" for the Racine School District who Kierstyn gave incorrect information John and Judith disability Kierstyn, Mrs. cost- about state benefits for Kierstyn per ing hundreds of dollars month Mr. upheld court's This court the circuit

survivor benefits. summary judgment against plaintiff grounds on the immunity. public officer special- the benefits 138. The court noted that general employment provided about

ist information including benefits, not, union "He was how- benefits. agent System] [Wisconsin Retirement

ever, an authoritatively represent to District and could not they employees what WRS benefits were entitled to receive." Id. at 85. duty, Discussing

¶ 139. ministerial the court quoted Lister, test from then concluded duty specialist "was under no that was 'abso- benefits imperative' 'impose[d], lute, certain and which defined] prescribed] time, mode and occasion Kierstyn performance.'" at for its Id. 91. It said that statutory obligation pointed to advise had to no school disability employees district of their state benefits. Id. Kierstyn argued disability ¶ 140. that the bene- unambiguous. replied: fits statute was The court accept Kierstyn's argument We cannot that an unambiguous duty. statute creates a ministerial As above, duty public noted officer's must arise from obligation by law. some created The District was legal obligation special- under no to hire a benefits fashion, specialist] [the ist. like benefits was legal obligation under no to offer advice about WRS employees benefits to of the District.

Id. at 92. Kierstyn argued

¶ 141. also that even if the bene- specialist duty provide fits were under no ministerial disability choosing information, his sodo created duty provide a ministerial correct information. Id. at acknowledged 92-93. The court several that held cases public that once officers choose their discretion to they duty act, are bound a ministerial to act in a distinguished certain manner. The court thereafter Kierstyn these cases from the facts. present

¶ 142. The case is different from Kier- styn. Accepting allegations Creek's of fact Willow as County telephoned the La Crosse true, Willow Creek specifically Zoning Land Information Office ask and operate game a bird farm in Town whether it could Zoning Shelby. is the most authoritative Office zoning in La Crosse about source of information authority. County. higher exists no The office There is daily county zoning ordinance on a to administer duty questions has a to answer about basis. It zoning It under the ordinance. make determinations gave its than advice. The office does much more offer game operate approval farm. Creek to a bird to Willow ambigu- zoning ordinance was either 143. The zoning unambiguous. If assume the ous or we unambiguous and that it did was clear and ordinance game operate permit zoned a bird farm to on land not zoning Agricultural, had a ministe- officials Exclusive duty it could not inform Willow Creek rial property operate game first its without a bird farm on zoning change. obtaining Instead, a the authoritative gave approval interpreters their of the ordinance develop farm farm and watched the bird relying operate, knowing on Creek was that Willow Twenty representation approyal. later months their they enforce the ordinance. decided to zoning ordinance was If assume the we

ambiguous, answered officials should not have they They zoning inquiries could as did. Willow Creek's put question in writ- Creek its asked that Willow have They ing. or more information could have asked for They denied have raised doubts and time. could more suggested approval, raised doubts and they gave approval. change. these When Instead, opposition farm, officials later learned they by Gary Wickus, could have taken as confirmed zoning issue and warned Willow look at the second they potential problem. nothing. Instead, Creek of a did they any steps months, For months and did not take to Twenty being address the issue. months after con- sulted, nine months after the bird farm had opened, and six months after Willow Creek had come to County again building office, the ing to discuss an the zon- suggested zoning

officials that Willow Creek seek a change. Although County zoning officials at first they ultimately encouragement, opposed offered change. might argue

¶ 145. One that La Crosse interpret officials had the discretion in 1993 to any way they they the ordinance wanted. Once made decision, however, their the officials were not free to position attempt their reverse and to enforce an ordi- they nance had earlier informed Willow Creek was not problem, particularly waiting long. after so The real rely if world cannot function citizens are not able to on govern- the individualized decisions of authoritative government ment If officials. authoritative officials are upon free to make decisions which individuals are expected rely permitted disregard and then are any decisions, time, those individualized at without consequence governments, to themselves or their there governmental will be no confidence stability our institutions economy and no in our or the law. Jeffrey

¶ 146. Brudos was the elected chairman Shelby. person of the Town of He was the to whom the County referred Willow Creek for reaction. Told Wil- plans, presented objections low Creek's Brudos no zoning change necessary. Many said a was not months repeated Subsequently, later he that view. Brudos position prevent any zoning altered his and worked to change, including adoption of reasonable condi- operate. tions that would allow Willow Creek to Shelby reassessed officials 147. Town property taxes could be so that additional Willow Creek implicitly improvements upon collected, based Shelby's approved The record does town chairman. given building permits, any the extent but reveal

not repair, work, the town electrical construction, well building permits may to authorize have issued improvements and taxed. it later assessed ability to had the Brudos 148. Chairman only promised. not failed to He he had deliver what mitigate his the harsh effect of also failed deliver but change waged campaign position. to obstruct He necessary. zoning change not asserted was he once argue Brudos was not act- difficult to It would be capacity ing he informed Willow when in an official zoning change But if he not needed. was Creek that a capacity, acting he would not outside his official were immunity. enjoy governmental did The circuit court acting in his Brudos was Chairman whether not decide spoke capacity Creek. to Willow when he official allegations my ¶ view, Creek's Willow County zoning and the officials a claim that state A Shelby duties. ministerial breached Town Chairman duty immune from suit is not ministerial breach of 893.80(4). § Because Creek Willow Stat. under Wis. not have

presented tort, its suit should claim in a valid dismissed. been RELATIONSHIP

SPECIAL municipal of ¶ are several theories 150. There Municipal Corpora- liability. Law McQuillin's The of (3rd 1993), "public 53.04.25, discusses ed. tions exception." relationship special duty rule and the McQuillin states: public duty

The rule provides that where a munici- pality duty general has a to the public, opposed as individual, particular duty breach that does not in liability. result tort protects The rule municipali- ties from liability for failure to adequately enforce general regulations, laws and which were intended to benefit the community (emphasis as a whole added). 151. This court rejected rule" "public duty Milwaukee, Coffey City 526, 536-37, (1976),

247 N.W.2d 132 because it was too narrow. The court that when explained Holytz abrogated immu- nity government torts, local it effected a broad abrogation, not a narrow abrogation applied only to persons with whom the local government was in privity. 152. Nonetheless, McQuillin's description

the special to the relationship exception public duty rule is useful because it eerily is descriptive of the factors at in this play McQuillin case. states: public duty protect rule does not a municipality

where there a "special was relationship" between public official and a particular gave individual that duty rise to a to that separate individual from the duty general official's public. . . .Special duties can grounded reliance, be dependence, or the creation public entity of a known risk.

Courts have variety identified a of criteria which help identify a special relationship. These criteria following: include the direct contact between munic- ipal agents and plaintiff; the an assumption by the municipality, through promises actions, or of an duty affirmative to act on plaintiffs behalf; knowledge by municipal agent that inaction harm; could lead to the plaintiffs justifiable reli- ance on the municipal agent, occurrence of the plaintiff injury control the direct is under whilethe municipal agents, municipal that action harm, existence of a and the the risk of increases duty imposes a narrow class a to that statute large. public at to rather than individuals 166. Id. at "special relation- a

¶ case, there was In this 153. ship" and both Creek Willow between Shelby Wil- Chairman. Town and the officials specific to ask a to these authorities Creek went low gave They Willow question their core duties. related to They Creek would that Willow knew an answer. Creek rely representations could that reliance their on representations were if their harm lead to economic wrong. unequivocally officers assert Creek's Willow they they did have made the investment not that would approval. they had official if had not adopt "special rela-

¶ This court should government tionship" in which for situations rule duties ministerial do not constitute or inactions actions relationship" "special development per of a se but specific duty perform manner. in a created a has ESTOPPEL equitable had a claim Creek also 155. Willow estoppel. Kierstyn in the dissented Justice Bablitch public asserting "if a 100-105,

case, 2d at 228 Wis. employee discretion, in his or her chooses, officer may a ministerial have he or she task, undertake given carry rules or duty with in accord that task out Dvorak, 57 Wis. v. cited Chart at 101. He Id. statutes." (1973) (relying on 100-01, 203 N.W.2d 2d 352, 130 N.W.2d 2d Rombalski, 25 Wis. Firkus (1964)). injured In Firkus, an driver sued a munic- 157..

ipality failing stop sign for restore at an municipality intersection after the learned that sign by had been removed vandals. The circuit court charged duty ruled that the town "was with the of maintaining stop signs trap so as to avoid a for upheld motorists." 25 Wis. 2d at 358. This court observing court, circuit that:

The town had no duty affirmative to erect the sign instance, in the first having but done so it was upon incumbent it to properly maintain the sign as a safety precaution to the traveling public which right rely has a presence.... on its

The potentiality of a dangerous greatly situation is increased the failure to maintain warnings upon public which the rely. has come to It is the creation right ofthe reliance protection and its which is the basis of duty. This is not unlike the doctrine of equitable estoppel in the (emphasis contracts field of added).

Id. at 358-59. majority municipalities 158. The concedes that wholly equitable

are not immune from the doctrine of estoppel. Majority op. citing City ¶ 49, at Milwaukee County, v. Milwaukee 53, 66, Wis. 2d 133 N.W.2d (1965).25 Yet, the circuit court here ruled other- 25 City Milwaukeev. County, 53, Milwaukee 27 Wis. 2d 66, (1965), 133 N.W.2d 393 the court said: "In Wisconsin a municipal body is not application immune from the of the doc estoppel trine of and it makes no difference whether the governmental. activities are proprietary." . .or The court relied Lang v. Cumberland, on 18Wis. 2d 118 N.W.2d 114 (1962); Bldg. Corp. Park Comm'n, v. Industrial (1960); N.W.2d 571 County Badger Milwaukee Chair & Fur- 893.80(4) "provides saying wise, Stat. Wis. municipal governments immunity their 'discre- tionary' relating action, to all causes of actions .estoppel including. circuit court cited . claims."26 The authority. The as court of and Waukesha Johnson appeals estoppel issue.27 never addressed the assert that local This court cannot now estoppel wholly governments immune from are not repudiating explaining the or at claims least without skips majority this inconsis- case. over Johnson tency, stating that that it is well established representations municipal officers "erroneous acts or of estop municipality from not a a

do enforcing afford basis pursuant ordinances enacted Majority

police power." op. ¶at 49. history. 1963, has In This statement a concurring opinion George a Currie wrote Justice 598, 119 591, 2d N.W.2d Milwaukee, Schober v. 18 Wis. (1963), municipality "A should in which he stated:

316 precluded by any municipal acts of officers not be Co., Eau Dells 118, (1936); niture Claire 659 223 Wis. 269 N.W. Claire, 240, 179 (1920); Co. v. Eau

Improvement 172 Wis. N.W.2 (1911). Webster, 270, St. Croix v. 111 Wis. 87 N.W. 302 336, 515 St. Sch. See also Fritsch v. Croix Cent. Dist. 183 Wis. 2d (Ct. City Bay, State v. Green 96 Wis. 1994); App. N.W.2d 328 of (1980); Village McFarland 195, 200-202, 2d 291 N.W.2d 508 of Dunn, Granis 469, 263 (1978); Town 167 v. 82 Wis. 2d N.W.2d .Dist., 78 569, Jt. 2d 254 N.W.2d v. Melrose-Mindoro Sch Wis. River, 45 513, Eagle v. 2d 173 N.W.2d Harte (1977); Wis. 730 (1954); Noe, 7,Wis. v. 62 N.W.2d 703 Galewski (1970); 266 683 Taxation, Libby Department 260 Wis.

Libby, & McNeill v. Industrial Marathon 551, (1952); 796 51 N.W.2d Comm'n, 514, 437 225 Wis. 272 N.W. Croix Sch. to Fritsch v. St. Cent. directly contrary This is (Ct. 1994). Dist., 336, App. N.W.2d 328 183 Wis. 2d Shelby, Creek v. 2d at 285. Willow Town 224 Wis. enforcing any pursuant

from ordinance enacted to the police power promotion general for the of the welfare." During justice. term, the next Currie became the chief Amusement, Inc., Milwaukee v. Milwaukee 22 Wis. (1964), 240, 253, 2d 125 N.W.2d 625 he that, wrote "Estoppel against municipality not lie will so as to bar enforcing pursuant it from police power," citing an ordinance enacted concurring opinion

his in Schober. years Two later in Leavitt, Milwaukee v. (1966),

76-77, 142 N.W.2d 169 he reiterated that: municipal government While and other units are wholly not application immune from of the doctrine of equitable estoppel, court firmly this is committed principle "estoppel against will not lie so municipality enforcing as to bar it from an ordi- pursuant nance enacted police power." principal The authorities cited were Justice Currie's opinion in Milwaukee Amusement and his concurrence in Schober. In Town Murdock, Richmond v. 70 Wis. (1975),

2d 642, 653-54, 235 N.W.2d 497 the Currie language quoted again in was the text and a foot- afterthought. note. But this citation came almost as an operation The involved commercial case the of a enter- prise known as Kentwood Farm on land zoned agricultural. enterprise developed The commercial was comprehensive zoning after a had ordinance been evidentiary hearing, enacted. After an the circuit court injunction stop operation. rejected issued an the It by estoppel an claim the defendant that the defendant by "nothing

had been told the town board that in the prohibited planned ordinance" the use of the land. The nothing circuit court noted that there was in the town support board minutes to the defendant's contention. specifically did not found that the evidence court The support was the that such statement contention prove by not the The defendant did town board. made necessary estoppel. The court circuit the facts estoppel merits.28 the issue on the decided Zoning Snyder Waukesha (1976), court 468, 247 this Board, 74 Wis. 2d N.W.2d porch approve after a use for a asked variance was by the Waukesha the variance had been denied argu Among Zoning his Board and the circuit court. building Snyder

ments, that he obtained a contended year permit A later he for an to his house. addition porch, not to include a which was authorized decided go building inspector permit. ahead A told him to inspector care of and the would take construction with inspector getting permit. discussion, In a later misunderstanding" as to close the "an honest how had porch again gave so line, the lot he would be to Snyder approval go Snyder and his ahead. builder variance that he met the criteria for a contended hardship that he not himself create because did argued prompted him the build to seek relief. He that hardship. ing inspector The court had created the replied that, allow this contention would constitute "To municipality enforcing estoppel its from ordinance." Id. at 476. clear no such rule of in this state is law for the against municipality

estoppel may arise acts of its officers. Town Richmond unauthorized . . . if the v. Murdock. . .Milwaukee v. Leavitt. Even 28 County made The facts of the case show that Shawano operate Farm to with permit efforts Kentwood extensive Murdock The court found that permit. use circuit conditional violated the conditions.

481 inspector building issued a permit, such permit would have been void as issued for the structure by which is forbidden the .[T]he ordinance. . . mere statements or assurances of the building inspector cannot confer right. such a appellant The charged is with knowledge of zoning the ordinance. Significantly,

Id. at 476-77. the court inserted the phrase "unauthorized acts" of its officers into its test. It Snyder charged also knowledge stated that was with zoning ordinance. County zoning Here, the La Crosse offi- fully interpret zoning cials were authorized to They ordinance. made statements to Creek, Willow but they they also must have had internal discussions as opposition learned of passed. bird farm and as time they nothing. Still, did Willow Creek cannot be expected knowledge to have had more of the ordinance experts than the who administered the ordinance. zoning

¶ 164. Both the officials and the town may testify they chairman never said or did what alleged, they is or that had an honest misunderstand- ing of what Willow Creek had in mind. But that possibility consequence is of no on a motion for sum- mary judgment alleged where Willow Creek that these they doing.29 officials understood what were my ¶ view, if Willow Creek is able to prove allegations, estop its it should be able to enforcing from ordinance. See Rus- Dairy Chippewa sell Stores v. Falls, 272 Wis. (1956).30 N.W.2d

29Apparently majority court does not consider full knowledge of the Willow Creek situation local officials as a relevant estoppel. factor in majority attempts distinguish Dairy Russell Falls, Chippewa Stores (1956), 272 Wis. 74 N.W.2d 759 166. An is a rule of substantive law estoppel ¶ a from a precludes party taking particular legal that recognized because of some or bar position impediment the law.31 One is by example equitable estoppel. Equi- action or nonaction one requires by party table estoppel that induces reliance another to the other party in may play detriment.32 The reliance out party's nonaction,33 and the reliance must reason- action be and justifiable.35 able34 First, present majority argues

from the case. that the 1952 "prior present case decided to the formulation of the immu- was 893.80(4). statute, nity concept immunity as Wis. Stat. of § implicated Majority op. a defense not in the case." at 54. was rebutting premise this dissent The bulk of is devoted Second, argument. majority argues Dairy this Russell grounded Stores is on the distinction the erroneous between municipality municipal- acts ofthe and the erroneous acts ofthe Majority ity's op. officers. at 55-56. This ¶¶ subordinate unpersuasive present in the case. The local offi- distinction is operating cials here were the officials office and the acting capacity. Finally, the Town Chairman in his official Dairy majority argues permit that the in Russell Stores did not case, any Creek's "there is an asserted violate law but Willow County zoning Majority op. at 57. violation of the ordinance." date, of the To Willow Creek has not been found violation County zoning ordinance. al., Page Keeton et Prosser and Keeton on the Law 31 W. (5th 1984). 105,

Torts 733 ed. 32 Co., Plumbing Supply 82 2d Kohlenberg v.American Wis. 384, 396, (1978); Chicago & Northwestern 263 N.W.2d 496 Products, Inc., Transp. 71 Wis. 2d Co. v. Thoreson Food (1976). 69 238 N.W.2d 33 Kohlenberg, 82 Wis. 2d at 396. Northwestern, Chicago & at 168, 183 84, Estate, 75 Wis. 2d Matter Alexander's — N.W.2d 475 Equitable estoppel readily

¶ 167. is not as availa- against governmental against ble unit as it is private party.36 though, is, It as a available defense against government government's the "if the conduct injustice public's would awork serious and if the inter- unduly by imposition est would not be estoppel."37 harmed of equitable estoppel Hence, to secure against government, person a show, must clear convincing present: evidence, that three facts are (1) (2) action or nonaction which induced, has reliance (3) by person, person's a detriment. Thereaf- person persuade ter, the must the court to determine injustice might estoppel that the be caused if the is applied outweighs public not interests at stake if estoppel applied. is

¶ 168. This discussion is academic if Willow similarly may bring Creek and others situated never a equitable estoppel against government suit for a local 893.80(4), under Wis. Stat. as the circuit court deter- wrong, mined. Because the circuit court decision was finding there must be fact so that the circuit court can attempt Department to strike the balance described in Printing Co., Revenue v. Moebius 610, 89 Wis. 2d of (1979). require 638, 279 N.W.2d 213 That would a remand in this case. hearing,

¶ might In a future Willow Creek try estop using estoppel to action, forfeiture almost entrapment might try estop like an county injunction defense, or it equitable grounds.

on See Forest City Sturgeon Bay, Beane v. 609, 620, 112 Wis. 2d of (1983); Ryan N.W.2d 235 Department Revenue, v. 68 Wis. 2d (1975). 467, 470, 228 N.W.2d 357 37Beane, 112 (citing Department Wis. 2d at 620 Revenue Printing Co., 610, v. Moebius 89 Wis. 2d 279 N.W.2d 213 (1979)).

County Goode, 579 N.W.2d 715 might attempt estop Willow Creek also government claiming statutory from in a local defenses damages. suit for traditional tort dissent not 170. This does seek to determine dispute.

the ultimate outcome of this Local officials may their case on the facts. win may engage

¶ 171. What local officials not do is lengthy in a course conduct that induces reasonable great expect detriment, reliance and causes and then away consequence. their hands and walk without wash majority otherwise, Because the I dissent. believes I am authorized to state that JUSTICE WILLIAM A. BABLITCH and JUSTICE N. PATRICK join dissenting opinion. CROOKS this

Case Details

Case Name: Willow Creek Ranch, L.L.C. v. Town of Shelby

Court Name: Wisconsin Supreme Court

Date Published: Jun 20, 2000

Citation: 611 N.W.2d 693

Docket Number: 97-2075, 98-0138

Court Abbreviation: Wis.