Jordan v. Village of Menomonee Falls
| Decision Date | 02 November 1965 |
| Citation | 137 N.W.2d 442,28 Wis.2d 608 |
| Parties | Martin A. JORDAN et al., Respondents, v. VILLAGE OF MENOMONEE FALLS, Appellant. |
| Court | Wisconsin Supreme Court |
Action by plaintiffs Martin A. Jordan and James F. McMicken and their wives against defendant village to recover $5,000 paid by plaintiffs as an equalization fee in lieu of dedicating land as required by defendant's ordinance governing the subdivision of lands within the village.
In October, 1959, Jordan and McMicken (hereinafter 'plaintiffs') commenced negotiations for the purchase of a 7.85 acre tract of land in defendant village for the purpose of subdividing it into lots and selling the lots. While negotiating, plaintiffs became aware that defendant had enacted an ordinance in March, 1959, which required subdividers to either dedicate a portion of their land or pay a fee in lieu thereof. Pertinent sections of the ordinance are:
'In order that adequate open spaces and sites for public uses may be properly located and preserved as the community develops; and in order that the cost of providing the public school, park, and recreation sites and facilities necessary to serve the additional families brought into the community by subdivision development may be most equitably apportioned on the basis of the additional need created by the individual subdivision development, the following provisions are established:
'8.01. Reservation of Potential Sites.
'(1) In the design of the plat, consideration shall be given to the adequate provision of and correlation with such public sites or open areas.
'(2) Where it is determined by the plan commission that a portion of the plat is required for such public sites or open spaces, the subdivider may be required to reserve such area for a period not to exceed three years, after which the Village shall either acquire the property or release the reservation.
'8.02. Dedication of Sites.
'(1) Within the corporate limits of the Village, where feasible and compatible with the comprehensive plan for development of the community, the subdivider shall provide and dedicate to the public adequate land to provide for the school, park and recreation needs of the subdivision.
'(2) The amount of land to be provided shall be determined on the basis of an amount equal in value to $200.00 per residential lot created by the subdivision. Such value shall be determined by the Village assessor on the basis of full and fair market value of the land. If the owner is not satisfied with such appraisal, he may appeal such determination, in which case an appraisal board consisting of one appraisor selected by the Village at its own expense, one selected by the property owner at his own expense and a third selected by the two other appraisers at Village expense, shall determine the value.
'8.03. Proportionate Payment in Lieu of Dedication.
'(1) Where such dedication is not feasible or compatible with the comprehensive plan, the subdivider shall in lieu thereof pay to the Village a fee equivalent to the value of the required dedication. Such fee shall be distributed as follows:
'A. $120.00 per residential lot created by the subdivision to be held in a non-lapsing fund for the benefit of the school district or districts in which the plat lies, on the basis of proper apportionment between districts where the plat is in more than one district, and to be made available to the appropriate district or districts upon their request.
'B. $80.00 per residential lot created by the subdivision to be placed in a non-lapsing fund to be used for park and recreation area development.
'(2) Such fees shall be used exclusively for immediate or future site acquisition or capital improvement. * * *
'8.05. Determination of Feasibility.
With full knowledge of the ordinance, plaintiffs purchased the property for $22,000. Plaintiff Jordan did once voice an informal objection to Gottlieb, village commissioner, stating that he thought the ordinance was unconstitutional. Because of the small area and the particular layout of the subdivision planned, it did not occur to plaintiffs to dedicate any land for school or park sites. They proceeded on the assumption that they would pay the $5,000 equalization fee in lieu of land dedication, which fee they paid by check September 12, 1960, and typed 'paid under protest' on the check. Plaintiffs then proceeded to complete the subdivision at a total cost of $73,896.98, including the $5,000 platting fee. All 25 lots were sold between September, 1961, and April, 1963, for a total sum of $100,000.
On October 26, 1962, plaintiffs served on defendant a formal demand and claim for return of the payment, which was denied by defendant.
Plaintiffs alleged that the payment was a tax which the village could not levy because (1) it did not have authorization from the legislature and (2) it was an unconstitutional taking of property without just compensation. Trial was to the court and judgment was entered February 12, 1965, for plaintiffs, requiring defendant to repay to plaintiffs the $5,000 plus interest from September 12, 1960.
Defendant has appealed.
Puls & Puls, Milwaukee, for appellant.
Lichtsinn, Dede, Anderson & Ryan, Milwaukee, for respondents.
The issue on this appeal is the constitutionality of the ordinance pursuant to which the $5,000 equalization fee was paid. Defendant asserts that the ordinance is a valid exercise of its police power in controlling subdivision development to assure its burgeoning population adequate parks and schools. Plaintiffs contend that section 8.03 of the ordinance levies a tax which is not authorized by the legislature and unconstitutional.
In 1955 the legislature made extensive revisions in ch. 236, Stats., governing the subdividing and platting of land. 1 Sec. 236.45 was revised so as to permit those localities which are feeling strong pressure of rapid urban growth and development, to legislate more intensively in the field of subdivision control than the legislature has provided for the state at large. 2 In order for a municipality to take advantage of sec. 236.45 it is necessary that it have created a planning agency. Defendant was so qualified inasmuch as it had created a Village Planning Commission in 1958. The pertinent parts of sec. 236.45 read as follows:
'Local Subdivision regulation. (1) Declaration of legislative intent. The purpose of this section is to promote the public health, safety and general welfare of the community and the regulations authorized to be made are designed to lessen congestion in the streets and highways; to further the orderly layout and use of land; to secure safety from fire, panic and other dangers; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population; to facilitate adequate provision for transportation, water, sewerage, schools, parks, playgrounds and other public requirements; to facilitate the further resubdivision of larger tracts into smaller parcels of land. The regulations provided for by this section shall be made with reasonable consideration, among other things, of the character of the municipality, town or county with a view of conserving the value of the buildings placed upon land, providing the best possible environment for human habitation, and for encouraging the most appropriate use of land throughout the municipality, town or county.
'(2) Delegation of Power. (a) To accomplish the purposes listed in sub. (1), any municipality, town or county which has established a planning agency may adopt ordinances governing the subdivision or other division of land which are more restrictive than the provisions of this chapter. Such ordinances may include provisions regulating divisions of land into parcels larger than 1 1/2 acres or divisions of land into less than 5 parcels, and may prohibit the division of land in areas where such prohibition will carry out the purposes of this section. Such ordinances may make applicable to such divisions any of the provisions of this chapter, or may provide other surveying, monumenting, mapping and approving requirements for such division. * * *
'(b) This section and any ordinance adopted pursuant thereto shall be liberally construed in favor of the municipality, town or county and shall not be deemed a limitation or repeal of any requirement or power granted or appearing in this chapter or elsewhere, relating to the subdivision of lands.' (Italics supplied.)
Preliminary to considering the constitutionality of the equalization fee provisions of the ordinance, we deem it advisable to pass on the requirement that the subdivider, where practicable, be required to dedicate a portion of the subdivision for sites for school, park and recreational needs of a value of $200 per residential lot. If this provision of the ordinance is unconstitutional, then of course the provision for payment of a cash fee in lieu of dedicating land for school, park and recreational sites would of necessity also be unconstitutional.
No claim has been asserted in this litigation that the $200 per lot value of land required to be dedicated by the subdivision owner is unreasonable in amount. Nelson, defendant's municipal planning expert, testified that the experience of municipal planners throughout the country has shown that for a good environment for human habitation, for each family in the area, there must be a minimum of 3,000 square feet of land devoted to park and school purposes. After some study of average land values in the village, the village planning commission and the village board determined that land valued at $200 would by and large provide the added park and school lands required for each...
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