Eberle v. Dane County Bd. of Adjustment, 97-2869-CR

Citation227 Wis. 2d 609,595 N.W.2d 730
Decision Date07 July 1999
Docket NumberNo. 97-2869-CR,97-2869-CR
PartiesRichard A. EBERLE and Barbara J. Eberle, Plaintiffs-Appellants-Cross-Respondents-Petitioners, Burt Avedon and Silvana Avedon, Involuntary-Plaintiffs, v. DANE COUNTY BOARD OF ADJUSTMENT, Defendant-Respondent-Cross-Appellant, Sharon Clark-Gaskill, James E. Quackenbush, John A. Sayles, and Louise Klopp, Defendants-Respondents.
CourtUnited States State Supreme Court of Wisconsin

For the plaintiffs-appellants-cross respondents-petitioners there were briefs by John A. Kassner and Wendel Center, LLP, Madison and oral argument by John A. Kassner.

For the defendant-respondent-cross appellant and the defendants-respondents there were briefs and oral argument by Rodney F. Knight, Deputy Corporation Counsel, Madison.

Amicus curiae brief was filed by Mark M. Leitner and Kravit, Gass, Hovel Leitner, S.C., Milwaukee for the National Association of Home Builders and Wisconsin Builders Association.

Amicus curiae brief was filed by Michael J. Modl and Axley Brynelson, LLP., Madison for the Wisconsin Realtors Association.

¶1 N. PATRICK CROOKS, J

Petitioners Richard and Barbara Eberle (Eberles) sought review in this case of the court of appeals' decision to uphold the circuit court's dismissal of various claims they alleged in connection with the Dane County Board of Adjustment's (Board's) denial of a special exception permit. The Eberles contend that the effect of the permit denial was to deprive them of a legal means of access to their property. Following a certiorari review, the circuit court ordered the Board to issue the permit, a decision which the court of appeals affirmed and which has not been appealed to this court.

¶2 The issue before us is whether the circuit court properly dismissed the Eberles' claims that the Board's denial of the permit constituted an unconstitutional temporary regulatory taking under the federal constitution and Article I, § 13 of the Wisconsin Constitution. The circuit court initially declined to dismiss the art. I, § 13 claim and dismissed the federal claims as not ripe, in light of the availability of the art. I, § 13 remedy. Upon reconsideration, however, the circuit court dismissed the art. I, § 13 claim, based upon the rule of Reel Enterprises v. City of LaCrosse, 146 Wis.2d 662, 677, 431 N.W.2d 743 (Ct.App.1988), review denied, 147 Wis.2d 887, 436 N.W.2d 29 (1988). The court of appeals affirmed.

¶3 We hold that the Eberles have stated a valid temporary regulatory taking claim under Article I, § 13 of the Wisconsin Constitution. To the extent that Reel prohibits the Eberles' claim, we overrule that decision as contrary to the takings jurisprudence of this court and the United States Supreme Court. Given our decision that the Eberles may pursue their art. I, § 13 claim, we hold that the Eberles' federal claims under 42 U.S.C. § 1983 are not ripe for review. It follows that the Eberles are not entitled to attorney's fees under 42 U.S.C. § 1988 at this point in the lawsuit, although nothing forecloses them from seeking such attorney's fees at a later stage in this litigation. Consistent with these conclusions, we reverse the portion of the court of appeals' decision dismissing the Eberles' art. I, § 13 claim, affirm the rest of the court's decision, 1 and remand the matter to the circuit court.

I.

¶4 The Eberles are real estate developers and builders who own a tract of land in the Town of Verona (Town), Dane County (County). On January 11, 1994, after securing the approval of the County, the Eberles recorded a certified survey map dividing the land into two parcels, Lots 1 and 2. Effective with the recording of the certified survey map, the zoning of Lots 1 and 2 was changed to classifications which would permit residential uses.

¶5 Prior to this rezoning, Lots 1 and 2 could be accessed from either of two public roads, Coray Lane and Timber Lane. As a condition of the rezoning, however, the County, at the request of the Town, 2 imposed a requirement that access to Lot 1 occur from Timber Lane. This requirement eliminated the possibility of accessing Lot 1 (and, due to the layout of the parcels, Lot 2) from Coray Lane. By recording the certified survey map, the Eberles effectively agreed to this access restriction.

¶6 On February 17, 1995, the Eberles sold Lot 1 to Burt and Silvana Avedon (Avedons) and contracted to build a home on the lot for them. The deal required the Eberles to secure all necessary permits, including a special exception permit 3 allegedly required by a Dane County ordinance to build a driveway connecting Lots 1 and 2 to Timber Lane. 4 The Eberles had petitioned the Dane County Board of Adjustment (the Board) for the special exception permit on January 20, 1995. Following the sale, the Eberles began construction on the Avedons' home.

¶7 Following several public hearings, 5 the Board voted 4 to 1 to deny the permit on July 27, 1995. The Board based the permit denial on its finding that the proposed driveway would cross a wetland and was not permitted by Dane County ordinances applicable to wetland zoning districts. The Board concluded as a matter of law that "[a]ccess to Coray Lane would not intrude into [wetland areas] and is preferred access to public road." Compl. Ex. I at 3.

¶8 The Eberles requested reconsideration, which the Board denied on August 24, 1995. The Eberles responded by seeking certiorari review of the denial in Dane County Circuit Court, pursuant to Wis. Stat. § 59.99(10)(1993-94). 6

¶9 Subsequently, the Avedons filed a separate lawsuit against the Eberles, seeking recission of the Lot 1 purchase contract and damages. The Avedons alleged that the Eberles' failure to obtain the special exception permit deprived them of the ability to use Lot 1 by preventing the legal construction of any driveway to the property. The Avedons' suit was dismissed by stipulation of the parties after the Eberles agreed to repurchase Lot 1 for $195,000 ($20,000 more than the price paid by the Avedons) and waive all claims for the work which had been completed on the home. 7

¶10 On March 13, 1996, the Eberles amended their complaint, adding as defendants the four individual Board members who had voted to deny the special exception permit. In the amended complaint, the Eberles reasserted their claim for certiorari review. They also alleged the following additional claims stemming from the denial of the special exception permit: (1) inverse condemnation in violation of Wis. Stat. ch. 32 (1995-96); 8 (2) a "taking" without just compensation, or a "temporary taking" if the court orders the issuance of the permit, in violation of Article I, section 13 of the Wisconsin Constitution; (3) 42 U.S.C. § 1983 claims for violations of the United States Constitution in the form of a "taking" or "temporary taking" without just compensation contrary to the Fifth and Fourteenth Amendments and violation of the Eberles' substantive and procedural due process rights contrary to the Fifth and Fourteenth Amendments. 9 The Eberles sought actual damages totaling $1 million, punitive damages of $2 million, costs and attorney's fees for all claims, and attorney's fees under 42 U.S.C. § 1988.

¶11 The Board and the individual defendants moved to dismiss all of the claims added by the amended complaint, contending that they failed to state claims upon which relief could be granted. On September 6, 1996, the circuit court, Judge Sarah B. O'Brien presiding, reversed the Board's denial of the permit and remanded the matter to the Board for a new hearing using the correct law and procedures comporting with due process. The court ruled that the Board improperly applied standards for wetland zoning districts to property of the Eberles which did not appear on any Wisconsin Wetland Inventory Map. The court also determined that the Board exceeded its jurisdiction and acted arbitrarily and unreasonably when it found that access from Coray Lane, which the County itself had prohibited, was preferable. 10 Finally, the court found that the Board denied the Eberles due process of law by relying on an ex parte letter and an ex parte site visit. In light of its decision to remand the case, the court deemed it unnecessary to consider the defendants' motion to dismiss the claims added by the amended complaint or other issues raised by the pleadings.

¶12 Both the Eberles and the defendants sought reconsideration. On November 8, 1996, Judge O'Brien determined that her September 6, 1996, decision to remand the matter was incorrect. Finding that the record in this case was complete, the court reversed the Board's decision and ordered the Board to issue the special exception permit to the Eberles.

¶13 This time, the circuit court went on to address the additional claims raised by the amended complaint. First, the court dismissed the Eberles' claim of inverse condemnation under Wis. Stat. ch. 32. The court reasoned that the Board was not "a person possessing the power of condemnation," as required by Wis. Stat. § 32.10. Further, even if the complaint were amended to add Dane County as the defendant, the court characterized the Eberles' claim as a "temporary taking" claim, which, under Zinn v. State, 112 Wis.2d 417, 433, 334 N.W.2d 67 (1983), cannot be remedied through ch. 32 but gives rise to a claim directly under Article I, § 13 of the Wisconsin Constitution. Pursuant to this reasoning, the court denied the defendants' motion to dismiss the Eberles' art. I, § 13 claim. 11

¶14 Finally, the court dismissed the Eberles' federal constitutional claims based on 42 U.S.C. § 1983, concluding that they were not ripe for adjudication. 12 Relying mainly on Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172, 194-95, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985), the court concluded that the Eberles must exhaust their state law remedies, which in this case consisted of their art. I, § 13 taking claim, before their § 1983 claims would be...

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