M & I Marshall & Ilsley Bank v. Town of Somers

• Decision Date: 04 November 1987
• Docket Number: No. 85-1594,85-1594
• Citation: 141 Wis.2d 271,414 N.W.2d 824
• Parties: M & I MARSHALL & ILSLEY BANK, Trustee of the Alfred L. Easterday Family Trust, Plaintiff-Appellant, v. TOWN OF SOMERS, A Wisconsin Municipal Corporation, Defendant and Third Party Plaintiff-Respondent, County of Kenosha, Third Party Defendant. Max R. BAUM, Sylvia C. Morrow and Rose Marie Schmidt, Plaintiffs-Appellants, v. TOWN OF SOMERS, A Wisconsin Municipal Corporation, Defendant and Third Party Plaintiff-Respondent, County of Kenosha, Third Party Defendant. John P. CSEPELLA, Plaintiff-Appellant, v. TOWN OF SOMERS, A Wisconsin Municipal Corporation, Defendant and Third Party Plaintiff-Respondent, County of Kenosha, Third Party Defendant. BOTHE ASSOCIATES, INC., A Wisconsin Corporation, Plaintiff-Appellant, v. TOWN OF SOMERS, A Wisconsin Municipal Corporation, Defendant and Third Party Plaintiff-Respondent, County of Kenosha, Third Party Defendant.
• Court: Wisconsin Supreme Court

Page 824

414 N.W.2d 824

141 Wis.2d 271

M & I MARSHALL & ILSLEY BANK, Trustee of the Alfred L.

Easterday Family Trust, Plaintiff-Appellant, v. TOWN OF SOMERS, A Wisconsin Municipal Corporation, Defendant and Third Party Plaintiff-Respondent, County of Kenosha, Third Party Defendant.

Max R. BAUM, Sylvia C. Morrow and Rose Marie Schmidt, Plaintiffs-Appellants, v. TOWN OF SOMERS, A Wisconsin Municipal Corporation, Defendant and Third Party Plaintiff-Respondent, County of Kenosha, Third Party Defendant.

John P. CSEPELLA, Plaintiff-Appellant, v. TOWN OF SOMERS, A Wisconsin Municipal Corporation, Defendant and Third Party Plaintiff-Respondent, County of Kenosha, Third Party Defendant.

BOTHE ASSOCIATES, INC., A Wisconsin Corporation, Plaintiff-Appellant, v. TOWN OF SOMERS, A Wisconsin Municipal Corporation, Defendant and Third Party Plaintiff-Respondent, County of Kenosha, Third Party Defendant.

No. 85-1594.

Supreme Court of Wisconsin.

Argued Sept. 8, 1987.

Decided Nov. 4, 1987.

Morton J. Schmidt and John A. Zodrow, Milwaukee (argued), for the plaintiffs-appellants; and Schmidt & Zodrow, Ltd., on brief.

Charles Richards, Kenosha (argued), for defendant-respondent; Donald E. Mayew and Phillips, Richards, Lepp, Mayew and Kluka, S.C., on brief.

Maryann Sumi, Asst. Atty. Gen., with whom on brief was Donald J. Hanaway, Atty. Gen.; Richard A. Lehmann, Lawton & Cates, and Steven M. Schur, of counsel, and The Wisconsin Chapter of the American Planning Ass'n, The Southeastern Wisconsin Regional Planning Com'n and The Wisconsin Council of Regional Planning Organizations, Carlyle H. Whipple, Whipple Law Offices, S.C. and The Sierra Club, John Muir Chapter, Citizens for a Better Environment and the Audubon Society, William Davis and The Environmental Decade, Kathleen M. Falk and Wisconsin Public Intervenor, Madison, Frank Volpintesta, Kenosha, amicus curiae.

CALLOW, Justice.

This is an appeal from an order of the circuit court for Kenosha county, Judge David M. Bastian, granting summary judgment to the Town of Somers. This appeal is before us on certification by the court of appeals.

The court of appeals certified to this court the following two issues:

"(1) Is a town which has adopted a county-wide comprehensive revised zoning ordinance pursuant to section 59.97(5)(d), Stats., liable in an inverse condemnation action based upon wetland conservancy restrictions on the use of the plaintiff's land which allegedly caused over a 90% reduction in value of the land? Or, is the appropriate defendant the county which has enacted the comprehensive ordinance and retains the control over enforcement and amendment of the challenged ordinance?

"(2) Assuming the town is the proper party, did the trial court erroneously rely upon Just v. Marinette County as dispositive of this case?" (Footnote omitted).

Because we find that Kenosha county controls the zoning ordinance challenged in this action, we hold that Kenosha county is the proper party in this action. Because Kenosha county is not a party to this action, we conclude that this action should be dismissed. Accordingly, we affirm the order of the circuit court.

The facts, as set out in the pleadings and supporting papers, are as follows: On May 3, 1983, the Kenosha County Board of Supervisors repealed its existing General Zoning and Shoreland/Floodplain Zoning Ordinance, which had been approved by the Town of Somers, and adopted a new, revised General Zoning and Shoreland/Floodplain Zoning Ordinance, effective May 7, 1983. The Town of Somers (Town) subsequently approved the comprehensive revision on or about July 13, 1983. Under the provisions of section 59.97(5)(d), Stats., ¹ and the Kenosha County Zoning Ordinance, ² had the Town not approved the revision within one year after its enactment by Kenosha county (County), the Town, by operation of law, would have been left without a zoning ordinance effective May 7, 1984.

As a result of the approval by the Town of the 1983 General Zoning and Shoreland/Floodplain Zoning Ordinance, approximately 31 acres of land owned by M & I Marshall & Ilsley Bank, Max Baum, Sylvia Morrow, Rose Schmidt, John Csepella, and Bothe Associates, Inc., were removed from an Industrial District classification and placed in a C-1 Lowland Resource Conservancy District. Under the Industrial District classification, permitted uses included, but were not limited to, manufacturing, wholesale business, printing and publishing. ³ Under the C-1 Lowland Resource Conservancy classification, principal uses were limited primarily to agriculture; fishing; grazing; hunting; preservation of scenic, historic, and scientific areas; public fish hatcheries; public parks; sustained yield forestry; stream, bank, and lakeshore protection; water retention and wildlife preserves. Conditional uses were prohibited except for sod farming and utility facilities. In addition, no structures except those accessory to a permitted use were allowed. ⁴

During June and July of 1984, M & I Marshall & Ilsley Bank (No. 84-CV-773) Max Baum, Sylvia Morrow, and Rose Schmidt (No. 84-CV-847), John Csepella (No. 84-CV-866), and Bothe Associates, Inc., (No. 84-CV-942) filed separate actions against the Town, seeking a declaration that the Town, by adopting the Kenosha County General Zoning and Shoreline/Floodplain Ordinance, had taken their property and requesting the initiation of inverse condemnation proceedings. Each of the complaints alleged that the reclassification of the properties as C-1 Lowland Resource Conservancy had, in effect, resulted in a taking of their property without just compensation. In each case, the Town filed a third party complaint against the County, contending that, if a taking had occurred, it was the action of the County.

Shortly after initiating these actions, each plaintiff brought a motion for summary judgment, requesting a declaration and finding of inverse condemnation. In support of the motions for summary judgment, each plaintiff filed an identical affidavit which included the pre-rezoning tax assessed value, the post-rezoning tax assessed value, and a post-rezoning appraised value. According to the affidavit, the tax assessed value on the four properties decreased after the rezoning from $29,700 to $6,300; $61,500 to $9,600; $23,400 to $2,400; and $25,000 to $3,600, respectively. The affidavit further alleged that "the restrictions that are placed on the use of the land has rendered each of the above parcels practically and substantially useless for all reasonable purposes, and the marketability of each parcel has been destroyed."

In response, the Town filed a brief in opposition to the motions for summary judgment, alleging that factual disputes existed. In particular, the Town alleged there were factual issues as to whether: (1) the ordinance was designed to prevent a public harm rather than create a public good, (2) the drop in value of the land was related to the land in its natural state, (3) the ordinance was designed to protect the water of this state from degradation, and (4) the ordinance applies to many landowners similarly situated.

The Town further filed a motion for summary judgment against the County on the ground that, if summary judgment was granted in favor of the plaintiffs, the County, as a matter of law, was obligated to indemnify the Town. In support of its motion for summary judgment, the Town filed an affidavit alleging: (1) that the property is unsuited for industrial development in its natural state and (2) that the severe decrease in market value was based not on the value of the land in its natural state but, instead, on the value of the land if it could be filled and developed for industrial purposes. The affidavit further stated that an on-site inspection by the Southeastern Wisconsin Regional Planning Commission revealed that the subject properties consisted of approximately 14 acres of wetland and that the majority of the properties were located in a primary environmental corridor.

Pursuant to the parties' requests, the actions brought by M & I Marshall & Ilsley Bank, Max Baum, Sylvia Morrow, Rose Schmidt, John Csepella, and Bothe Associates, Inc., (M & I) were consolidated on January 4, 1985.

Following a hearing and submission of briefs by all the parties, the trial court denied M & I's motions for summary judgment. Relying primarily upon Just v. Marinette County, 56 Wis.2d 7, 201 N.W.2d 761 (1972), the trial court held that, because the zoning ordinance was "designed to maintain the natural state of the property for the public benefit and not for public use," the ordinance did not constitute a taking of the plaintiffs' property. According to the court, the ordinance was a reasonable exercise of the police power, was not arbitrary or capricious as applied to the plaintiffs' property, and was therefore constitutional. Even though the Town failed to move for summary judgment, the trial court ordered, pursuant to section 802.08(6), Stats., that the Town be granted summary judgment against each plaintiff for dismissal of each complaint. In addition, the trial court, after inviting a motion for summary judgment by the County, granted summary judgment to the County.

M & I appealed the order of the trial court granting summary judgment to the Town. Prior to ruling on the appeal, the court of appeals granted permission to the County to file an amicus curiae brief. Thereafter, the court of appeals certified this case to us, and we accepted the certification on March 5, 1987. In addition, we granted the requests of the State of Wisconsin; Wisconsin Public Intervenor; Sierra Club, John Muir Chapter; Environmental Decade; Citizens for a Better Environment; Audubon Society; and three Wisconsin planning associations to file amicus curiae briefs.

Our first concern is whether it is the Town or the County which is liable for any "takings" claims arising from a town's approval of a county zoning ordinance which was the result of a...