Busse v. Dane County Regional Planning Com'n

• Citation: 181 Wis.2d 527,511 N.W.2d 356
• Decision Date: 30 December 1993
• Docket Number: No. 92-2125,92-2125
• Parties: Edward BUSSE, and Hovde Development Corp., a general partnership known as River Ridge Joint Venture, Plaintiffs-Appellants, v. DANE COUNTY REGIONAL PLANNING COMMISSION, a regional planning commission, Defendant-Respondent.
• Court: Wisconsin Court of Appeals

Page 356

511 N.W.2d 356

181 Wis.2d 527

Edward BUSSE, and Hovde Development Corp., a general partnership known as River Ridge Joint Venture Plaintiffs-Appellants, v. DANE COUNTY REGIONAL PLANNING COMMISSION, a regional planning commission, Defendant-Respondent.

No. 92-2125.

Court of Appeals of Wisconsin.

Submitted on Briefs May 6, 1993.

Opinion Released Dec. 30, 1993.

Opinion Filed Dec. 30, 1993.

Before EICH, C.J., GARTZKE, P.J., and SUNDBY, J.

EICH, Chief Judge.

Edward Busse and Hovde Development Corporation (together as River Ridge Joint Venture) appeal from an order dismissing their complaint against the Dane County Regional Planning Commission for failure to state a claim upon which relief may be granted. River Ridge sued the commission, seeking compensatory damages, costs, and attorney fees, alleging that it was injured by certain actions taken by the commission in connection with a proposed real estate development.

The issues are whether the trial court erred when it ruled River Ridge's complaint insufficient to state a claim that the commission: (1) intentionally interfered with River Ridge's contract with the Madison Metropolitan Sewerage District; (2) participated in a civil conspiracy against River Ridge; and (3) deprived River Ridge of the proposed use of its property and thus "took" its property for public use without compensation in violation of the state and federal constitutions.

We conclude that River Ridge's first two claims are barred under the doctrine of sovereign immunity. We also believe the trial court properly dismissed the "taking" claim. We therefore affirm the order.

River Ridge is a general partnership seeking to develop a plat consisting of 101 single-family residential lots in the Town of Westport in Dane County. River Ridge's predecessor in title contracted with the Madison Metropolitan Sewerage District, granting the district an easement to lay, operate, and maintain a sanitary sewer interceptor and main across River Ridge's land. The easement was conditioned upon, among other things, the developer's (now River Ridge's) right to connect its lots to the sewer system.

Because provision of service to the development would require the extension of the district's sewer lines, "technically adequate" plans were to be provided to the district by the developer, together with letters of approval from the governing bodies of any municipalities in which the proposed extension was to be located. In addition, the project had to be certified as "consistent with adopted plans" of any regional planning commission established in the area to be served. Section 66.24(1)(b), Stats. Regional planning commissions are advisory bodies created under sec. 66.945, Stats., to "make plans for the physical, social and economic development of the region" and to adopt a master plan in order to secure development of the area in a manner best suited to promote "public health, safety, morals, order, convenience, prosperity or the general welfare," as well as "efficiency and economy in the process of development." Section 66.945(8) and (10). They are created by the governor, upon the petition of local governing bodies in the region, sec. 66.945(2), and the reports and recommendations they may be required to make to local governments and agencies, such as metropolitan sewerage districts, are, by law, "solely advisory." Section 66.945(8).

Pursuant to this statutory scheme, the sewerage district sought the commission's report as to whether the proposed extension to serve the River Ridge development was consistent with the Dane County regional plan. Responding to the request, the commission issued a letter indicating that the proposed extension was inconsistent with regional plans. ¹ Based on that advice, the sewerage district refused to approve the extension and deferred action on River Ridge's plans until such time as they could be certified as consistent with the regional plan.

River Ridge asked the Department of Natural Resources to issue a memorandum to the district stating that the extension would be consistent with the Dane County Water Quality Management Plan. The DNR did so, at least with respect to extending service to the initial twenty-nine lots in the development. Despite the DNR memorandum, the district continued in its refusal to approve the extension until such time as the planning commission was able to certify its compliance with the regional plan.

River Ridge then brought this action and, as indicated, the trial court granted the commission's motion to dismiss. As to River Ridge's claim that the commission intentionally interfered with its contract with the district, the trial court ruled that the commission was required by statute to inform the district of its conclusions, and that River Ridge had alleged no facts to establish that the commission "used improper means of inducement" to prevent performance of any contract between River Ridge and the district. As to the conspiracy claim, the court ruled that the complaint was insufficient because it failed to allege facts showing either the formation or operation of a conspiracy, any wrongful acts on the part of any of the alleged conspirators, or any intentional participation in a conspiracy by the commission.

Finally, the court dismissed River Ridge's "taking" claim under federal and state law, concluding that its allegations on the point were "mere conclusions of law" and that it had not alleged that the commission had imposed any legally enforceable restrictions on River Ridge's land.

Whether the facts alleged in a complaint are sufficient to state a claim for relief is a question of law which we review independently on appeal. Jensen v. Christensen & Lee Ins., Inc., 157 Wis.2d 758, 762, 460 N.W.2d 441, 443 (Ct.App.1990). For purposes of a motion to dismiss, facts properly pled are taken as admitted, Evans v. Cameron, 121 Wis.2d 421, 426, 360 N.W.2d 25, 28 (1985), and the motion will be granted only when it is quite clear that under no conditions could the plaintiff recover. Jensen, 157 Wis.2d at 763-64, 460 N.W.2d at 443.

I. Sovereign Immunity

We consider first whether, with regard to the state law claims of intentional interference with contract and civil conspiracy, the commission is immune from suit. We believe that it is.

The doctrine of sovereign immunity originates in article IV, section 27 of the Wisconsin Constitution, which states: "The legislature shall direct by law in what manner and in what courts suits may be brought against the state." Under the rule, the state may only be sued upon its express consent; consent to suit may not be implied. State v. P.G. Miron Constr. Co., 175 Wis.2d 476, 480, 498 N.W.2d 889, 891 (Ct.App.1993), review granted 505 N.W.2d 137 (Wis.1993).

Generally, the state's immunity from suit extends to its arms or agencies. Kegonsa Joint Sanitary Dist. v. City of Stoughton, 87 Wis.2d 131, 143, 274 N.W.2d 598, 604 (1979). The legislature may, however, "create an agency with independent proprietary powers or functions and sufficiently independent of the state to be sued as such," and when it does so, it "waives its sovereign immunity in that respect." Kegonsa, 87 Wis.2d at 143-44, 274 N.W.2d at 604.

In Kegonsa, the Dane County Regional Planning Commission conducted studies regarding the provision of sewage treatment facilities in the Kegonsa Joint Sanitary District and the City of Stoughton. The commission recommended that wastewater from the Kegonsa district and Stoughton be treated at a single plant, and Stoughton received approval to construct the plant. The district then applied for a loan and for financial assistance from the DNR to finance its connection to the Stoughton plant. Both applications were denied.

The district sued several defendants, including the planning commission and the City of Stoughton, claiming that: (1) the city had improperly exerted influence on the commission to recommend the joint facility; (2) the commission's recommendation effectively denied the district the right to construct a separate sewer system; and (3) the commission's actions induced the district into entering into the joint venture with Stoughton. Id. at 153, 274 N.W.2d at 608.

The supreme court affirmed the trial court's dismissal of the district's complaint as to the commission, noting that the commission is "an agency of the state" and concluding that "the actions of the Planning Commission[ ] are covered by the principle--well-established in Wisconsin--that in the absence of express legislative authorization the state may not be subjected to suit." Kegonsa, 87 Wis.2d at 144, 153, 274 N.W.2d at 604, 608. ²

River Ridge argues, however, that whether the planning commission is an "agency of the state" is not dispositive of the sovereign immunity issue because even the Kegonsa court recognized that an agency is not entitled to assert sovereign immunity if (1) it is an agency with "proprietary powers or functions" and (2) it is "sufficiently independent of the state to be sued as such." Id. at 143-44, 274 N.W.2d at 604. River Ridge claims that, despite what we consider the rather plain language to the contrary in the Kegonsa decision, the commission meets both tests and thus may not partake of the sovereign's immunity.

River Ridge bases its argument on three cases: Townsend v. Wisconsin Desert Horse Ass'n, 42 Wis.2d 414, 167 N.W.2d 425 (1969); Majerus v. Milwaukee County, 39 Wis.2d 311, 159 N.W.2d 86 (1968); and Sullivan v. Board of Regents of Normal Schools, 209 Wis. 242, 244 N.W. 563 (1932).

In Townsend, the supreme court held that the Wisconsin Exposition Department was protected by sovereign immunity. Townsend, 42 Wis.2d at 424, 167 N.W.2d at 430. According to River Ridge, the Townsend court's rationale was that while the exposition department had "proprietary powers," it was not sufficiently independent of the state to be sued as such because the "obligations [of] the department [were...