Old Tuckaway Associates Ltd. Partnership v. City of Greenfield
| Decision Date | 16 November 1993 |
| Docket Number | No. 92-1162,92-1162 |
| Citation | 509 N.W.2d 323,180 Wis.2d 254 |
| Parties | OLD TUCKAWAY ASSOCIATES LIMITED PARTNERSHIP and Affiliated Capital Corp., Plaintiffs-Appellants, v. The CITY OF GREENFIELD, Wisconsin, Defendant-Respondent. OLD TUCKAWAY ASSOCIATES LIMITED PARTNERSHIP and Affiliated Capital Corp., Plaintiffs-Appellants, v. CITY OF GREENFIELD BOARD OF APPEALS, Defendant-Respondent. |
| Court | Wisconsin Court of Appeals |
Before WEDEMEYER, P.J., and SULLIVAN and SCHUDSON, JJ.
Old Tuckaway Associates, a limited partnership, and Affiliated Capital Corp. (collectively, Tuckaway), appeal from a final judgment entered in favor of the City of Greenfield (City) and the City of Greenfield Board of Zoning Appeals.
Tuckaway presents the following issues for review: (1) whether the trial court, in its court-trial decision, erred in denying Tuckaway's claims that the City's actions, overall, deprived Tuckaway of property and liberty without due process of law; (2) whether the trial court, following a certiorari review, erred in concluding that the Board of Zoning Appeals properly denied Tuckaway's appeal from the City's rejection of a petition for an amended Planned Unit Development (PUD); and (3) whether the trial court, in its summary judgment determinations, erred in granting judgment in favor of the City on Tuckaway's claims for inverse condemnation, breach of contract and tortious interference with a contract. We affirm.
This action arises out of a land use regulation dispute. In 1967, the management of the Tuckaway Country Club golf course decided to relocate the golf course from Greenfield to Franklin. In an effort to defray the costs of the new facility in Franklin, the Country Club sold the newly vacant land in Greenfield to a group of investors known as Tuckaway Club Enterprises. Shortly thereafter, Tuckaway Club Enterprises and the City of Greenfield executed a Declaration of Restrictions (Declaration) pursuant to which various zoning, density and use limitations were placed on the property. The Declaration effectively established a Planned Unit Development (PUD) 1 that permitted the flexible development of the former golf course land.
Over the years, Tuckaway Club Enterprises selectively developed portions of the land that had once been the golf course. By 1987, only thirty-two acres of the property remained undeveloped. Tuckaway, the plaintiffs in the present action, expressed interest in purchasing these thirty-two acres from Tuckaway Club Enterprises for development purposes. Land use restrictions applying to portions of the thirty-two-acre tract by virtue of the 1967 Declaration, however, made development unattractive. 2 Thus, Tuckaway's eventual agreement to purchase the property was contingent on the ability of Tuckaway Club Enterprises to persuade the City to amend the Declaration to a more amenable classification, i.e., a classification that allowed a reasonable density of units per acre throughout the entire tract of land.
On November 6, 1987, following discussions with surrounding neighbors concerning the flow of vehicular traffic, Tuckaway agreed to construct a new road on the property in an attempt to alleviate residents' concerns. Following this offer, the City executed an Amendment to the Declaration of Restrictions (Amendment). The Amendment provided, in part, that the thirty-two-acre parcel would be zoned PUD with residential uses and that the density of dwelling units on the property could not exceed seventeen units per acre. The Amendment further provided that it "is complimentary to the Planned Development Ordinance of the City and that the development hereinabove described is subject to the ordinance." After the Amendment was recorded, Tuckaway completed the purchase of the thirty-two-acre tract from Tuckaway Club Enterprises.
In 1989, Tuckaway decided to sell approximately five acres of the property rather than develop it themselves. Consequently, on July 12, 1989, Tuckaway executed an Offer to Purchase with David Morgenson, a private developer, for approximately five acres of the thirty-two-acre tract. Morgenson intended to develop the five-acre tract with residential dwellings. The Offer to Purchase was subject to the following condition:
This Offer is contingent upon the Buyer obtaining the necessary zoning and building permits from the City of Greenfield and the State of Wisconsin and all other governmental regulatory agencies having jurisdiction to permit the construction of at least 83 residential rental units acceptable to Buyer in at least 2-3 separate residential buildings with separate tax bills on these parcels within 90 days from August 15, 1989 or this Offer will be deemed null and void.
Subsequently, Morgenson and his associate in development, Joseph Gallina, prepared plans for the construction of eight ten-unit buildings (the "Project"). On October 10, 1989, Gallina petitioned the Planning Commission for approval of the Project. Concerned citizens at the meeting expressed objections to the Project, particularly because of the density of the Project and the developer's intention to rent a portion of the units. The meeting was adjourned without Project approval.
Over the next four months, Gallina appeared before the Planning Commission on several occasions. At each of these meetings, the issue of density and/or rentals was of great concern to the neighbors surrounding the proposed development. In response to the issue of density, the City obtained two legal opinions which concluded that the proposed density did not violate any City ordinances. The City also received an opinion from its attorney that once the Project was completed, the City would have no legal authority to prevent the owners from renting the units.
On January 30, 1990, the Planning Commission considered Gallina's petition for an amendment to the Declaration. After listening to the legal opinions concerning density, and following some discussion by Alderman Snyder regarding a discrepancy in the way the "mean density" figure was calculated, the Planning Commission, on a motion by Alderman Waite, recommended that the Common Council reject Gallina's petition for an amendment. The motion carried by a four-to-one vote.
On February 13, 1990, the Planning Commission voted to reconsider its January 30 action. Alderman Waite noted that his motion of January 30 was improperly based upon density and mean number. He further stated that his true intent was that the amendment should be denied based on the fact that it was a major change to the existing PUD. Alderman Waite then presented a motion that the Common Council deny "the request to amend the Tuckaway Plan Unit Development Agreement for the Oaks of Tuckaway ... on the grounds that this is a major change to the Plan Unit Development and as a major change to a PUD would require a public hearing." On a roll call vote, the motion carried unanimously. 3
The Project was again the subject of debate at a March 27, 1990, Planning Commission meeting. During this meeting, the city engineer brought up nine points that, because of the intense consideration of the density and rental issues, had not been adequately addressed. Principal among these points was the need to present revised plans that would bring the proposed buildings into conformity with the City's height requirements. The Commission asked the developers to submit a formal response to the city engineer's points.
Ten months later, on January 29, 1991, Tuckaway submitted plans addressing the nine technical concerns raised by the city engineer. On February 12, 1991, the Commission voted to forward the petition to the Common Council with no recommendation--other than a recommendation to conduct a public hearing.
The Common Council held public hearings on April 3 and April 8, 1991. At the April 8 meeting, the Council voted unanimously to reject the project on grounds of aesthetic compatibility and economic feasibility.
Tuckaway appealed the adverse decision of the Common Council to the City's Board of Zoning Appeals. On June 27, 1991, after oral and written submissions by both Tuckaway and the City, the Board unanimously upheld the determinations of the Common Council.
From this procedural history arose two separate causes of action. First, in August of 1990, Tuckaway filed a lawsuit against the City alleging that, rather than reject the Project on grounds that would not stand up to judicial scrutiny, the City was trying to thwart the Project by evading any decision at all. Consequently, Tuckaway's complaint alleged that the City's delay in rendering a decision violated its rights to due process. Second, following the Board of Zoning Appeals' decision to uphold the ruling of the Common Council denying approval of the Project, Tuckaway sought certiorari review of the decision. The trial court consolidated the two cases. The due process claim was tried to the court on November 13 and 14, 1991. The trial court ruled that Tuckaway had not met its burden on the due process claim. The trial court also concluded that the Board of Zoning Appeals had acted within its discretion in denying approval for the Project. Tuckaway now appeals.
Tuckaway first argues that the trial court erred in concluding that the City did not deprive Tuckaway of property and liberty without due process of law. This claim is based on what Tuckaway characterizes as the City's deliberate refusal to timely and meaningfully consider the petition for approval of the Project.
Initially, the City moved for summary judgment on the due process issue. Following argument by counsel, the trial court stated:
The one thing that really has made me think and there really isn't a lot of case law on this but it is certainly going to justify Mr. Bowen to stay here for awhile and that is this constitutional...
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