Meinholz, LLC v. Dane Town Bd. of Zoning Appeals & Adjustment

Decision Date05 May 2022
Docket Number2021AP346
PartiesMeinholz, LLC, Plaintiff-Appellant, v. Dane Town Board of Zoning Appeals and Adjustment and Town of Springfield, Defendants-Respondents.
CourtWisconsin Court of Appeals

Meinholz, LLC, Plaintiff-Appellant,
v.

Dane Town Board of Zoning Appeals and Adjustment and Town of Springfield, Defendants-Respondents.

No. 2021AP346

Court of Appeals of Wisconsin, District IV

May 5, 2022


Not recommended for publication in the official reports.

APPEAL from a judgment of the circuit court for Dane County No. 2019CV3564: FRANK D. REMINGTON, Judge.

Before Blanchard, P.J., Graham, and Nashold, JJ.

BLANCHARD, P.J.

¶1 Meinholz, LLC, owns three contiguous parcels of land in the Town of Springfield (the "Town"), which are all subject to a zoning classification that prohibits quarrying (i.e., nonmetallic mineral extraction).

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Thus, quarrying the parcels would ordinarily be a "nonconforming use" of this land. Meinholz wants to use the parcels for quarrying, and toward that end it asked the Town Board to recognize quarrying as a legal nonconforming use of the parcels. The board voted in favor of the recognition requested by Meinholz. However, just under six months later, the board revisited the legal nonconforming use issue, and referred the issue to the Town's zoning administrator so that the administrator could make a "formal ruling." The zoning administrator determined that Meinholz does not have a right to quarry the subject parcels as a legal nonconforming use, contrary to the earlier recognition by the Town Board. Meinholz appealed the zoning administrator's decision to the Dane Town Board of Zoning Appeals and Adjustment (the "Appeals Board"), which affirmed the decision of the zoning administrator.

¶2 Meinholz commenced this action in the circuit court, seeking common-law certiorari review of the Appeals Board decision to affirm the zoning administrator. Meinholz does not advance any argument that the Town Board's recognition of quarrying as a legal nonconforming use of the parcels was substantively correct. Instead, Meinholz argues that the Appeals Board was bound by the Town Board's recognition as a valid, final, and unchallenged decision. The circuit court granted summary judgment to the Appeals Board, dismissing this claim. We affirm the circuit court on this issue. We conclude that the Town Board's recognition did not preclude the Appeals Board from addressing whether quarrying is a legal nonconforming use for the parcels, because the Town Board withdrew the recognition by unambiguously referring the issue to the zoning administrator. We reject Meinholz's alternative arguments that the Town Board's referral to the zoning administrator did not constitute a proper withdrawal of the

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Town Board recognition, or that, if it did, the Appeals Board could not uphold the withdrawal because that would interfere with a vested right held by Meinholz.

¶3 As a separate claim in the circuit court, Meinholz sought a declaratory judgment that, due to the Town Board's recognition of a legal nonconforming right to quarry the subject parcels, the Town is equitably estopped from asserting that Meinholz cannot quarry the parcels. The circuit court granted summary judgment to the Town, dismissing this claim. Meinholz argues that this is the rare case in which a municipality may be estopped from enforcing a zoning rule. We disagree. Further, we separately conclude that the Town is not estopped because Meinholz fails to show that it reasonably relied on the Town Board recognition.

¶4 Accordingly, we affirm the circuit court's grant of summary judgment in favor of the Appeals Board and the Town.

BACKGROUND

¶5 To put the factual and procedural history of this case in context, we now briefly summarize the law that generally governs legal nonconforming uses of land and relevant historical legal developments regarding quarrying in Dane County, in which the Town is located, before turning to the facts of this case.

¶6 "Nonconforming land uses" are uses that violate a zoning rule that applies to the land. See Schroeder v. Dane Cnty. Bd. of Adjustment, 228 Wis.2d 324, 339, 596 N.W.2d 472 (Ct. App. 1999). The nonconforming use doctrine recognizes the unfairness that typically arises when a new zoning rule bars an established use that was previously permitted. Under the doctrine, an existing land use continues to be lawful, and cannot be prohibited by a zoning rule enacted after

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a use has been established, if the preexisting use was lawful before the enactment of the local zoning rule that rendered the use nonconforming. See WIS. STAT. §§ 59.69(10)(ab)-(am), 60.61(5)(ab)-(am) (2019-20).[1] The nonconforming use doctrine is rooted in underlying constitutional law, and it is also codified in statutes-such as in § 60.61(5), which applies to towns. See Town of Cross Plains v. Kitt's "Field of Dreams" Korner, Inc., 2009 WI.App. 142, ¶¶18-19, 30, 321 Wis.2d 671, 775 N.W.2d 283 ("statutory nonconforming use provisions arise out of the same [constitutional] concern for retroactive application of zoning laws and ordinances").

¶7 It is undisputed that Dane County zoning rules applied in the Town in 1968. See Schroeder, 228 Wis.2d at 326. In that year, the county adopted an ordinance providing that, if an identified parcel of land was registered with and approved by county zoning authorities as a quarrying site, then quarrying would be deemed a legal nonconforming use for that site. See id. at 326-27, 339-340. We refer to the list of parcels that resulted from this process as "the Dane County registration."

¶8 For purposes of this case, the Dane County registration interacts with a separate, court-created doctrine called the "diminishing assets rule." See id. at 331. The diminishing assets rule is designed to address the fact that a single quarrying operation (sometimes referred to as a nonmetallic mineral extraction, or mining, operation) is often planned for a larger area than the limited area in which initial extraction occurs. See id. at 331-32. Wisconsin courts adopted the

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diminishing asset rule beginning in 1987 to address some circumstances in which extraction operations are planned for land that is contiguous to land that had previously been lawfully and actively quarried, including land that qualifies for legal nonconforming extraction. See Smart v. Dane Cnty. Bd. of Adjustments, 177 Wis.2d 445, 453-54, 501 N.W.2d 782 (1993) (discussing rule's adoption in Sturgis v. Winnebago Cnty. Bd. of Adjustments, 141 Wis.2d 149, 413 N.W.2d 642 (Ct. App. 1987)). Under the diminishing asset rule, "when a single owner has contiguous parcels on which an excavation operation is in existence, all land which constitutes an integral part of the operation is deemed [to be] 'in use'" as a legally nonconforming quarry, despite "the fact that a particular portion [of the land] may not yet be under actual excavation." See Sturgis, 141 Wis.2d at 154.

¶9 As would be expected, adoption of the diminishing asset rule had an effect on some parcels that were contiguous to other parcels which qualified as legal nonconforming uses based on the Dane County registration. As this court has explained, the effect was to expand the land available for legally nonconforming mineral extraction beyond the boundaries of the parcels included in the Dane County registration-allowing quarrying as a legally nonconforming use on some unregistered parcels. See Schroeder, 228 Wis.2d at 340-41.

¶10 However, as we further explained in Schroeder, the diminishing asset rule "is not an unlimited definition and does not automatically permit expansion of a mineral extraction operation to every portion of every contiguous parcel owned by the operator." Id. at 341. Specifically, the rule applies only to land that is deemed to be "an integral part of the operation," which is defined to be land that is owned in common with, and contiguous to, other parcels where quarrying is lawful, so long as the then-owner intended, as of the commencement

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of the zoning prohibition on quarrying, to expand quarry operations to include the land. See id.; Sturgis, 141 Wis.2d at 153-54.

¶11 We turn now to the land at issue here. Meinholz owns land located within the boundaries of the Town consisting of multiple contiguous parcels, among them the three subject parcels. There is no dispute that, at all pertinent times, the subject parcels have been zoned in a way that prohibits as-of-right quarrying.

¶12 With all of that as background, the question at the heart of the pertinent decisions made by the Town Board, the zoning administrator, and the Appeals Board was the following: Do the subject parcels qualify for the legally nonconforming use of quarrying through the application of the diminishing asset rule to nearby parcels, given that those other parcels have been actively quarried, are covered by the Dane County registration, or both?

¶13 Returning to the factual background, an operating company separate from Meinholz has quarried portions of the larger whole of land owned by Meinholz, or at least has registered some of it for quarrying use under the Dane County registration rule.[2] Pertinent here, this quarrying activity or registration did

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not include the subject parcels. That is, the subject parcels were not included in the Dane County registration, nor have they been the site of active quarrying at least since 2009. From 2009 to 2017, the subject parcels did not belong to Meinholz, and thus, during that period, were not commonly owned with the portions of Meinholz's land that was actively quarried or registered for that use during that period.[3] Further, according to the Appeals Board's findings, which Meinholz does not argue lacked substantial evidentiary support, this separate entity intended for a time to develop the subject parcels for residential dwellings, although the planned development did not go forward. Meinholz bought the subject parcels in 2017, placing them once again in common ownership with the contiguous land used for or registered for quarrying.

¶14 In December 2018, Meinholz...

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