Olson v. Town of Cottage Grove, 2005AP2257.

• Decision Date: 30 May 2008
• Docket Number: No. 2005AP2257.,2005AP2257.
• Citation: 749 N.W.2d 211,2008 WI 51
• Parties: Walter J. OLSON, Plaintiff-Appellant, v. TOWN OF COTTAGE GROVE, Defendant-Respondent-Petitioner.
• Court: Wisconsin Supreme Court

749 N.W.2d 211

2008 WI 51

Walter J. OLSON, Plaintiff-Appellant, v. TOWN OF COTTAGE GROVE, Defendant-Respondent-Petitioner.

No. 2005AP2257.

Supreme Court of Wisconsin.

Argued November 6, 2007.

Decided May 30, 2008.

[749 N.W.2d 213]

For the defendant-respondent-petitioners there were briefs by Constance L. Anderson, Paul G. Kent, and Abigail C.S. Potts and Anderson & Kent, S.C., Madison, and oral argument was by Paul G. Kent.

For the plaintiff-appellant there was a brief by John A. Kassner III, Matthew D. Moeser and Murphy Desmond S.C., and oral argument by John A. Kassner III.

An amicus curiae brief was filed by Thomas D. Larson on behalf of Wisconsin REALTORS® Association.

¶ 1 DAVID T. PROSSER, J

This is a review of an unpublished decision of the court of appeals,¹ reversing a summary judgment issued by the Dane County Circuit Court, Angela B. Bartell, Judge. The circuit court dismissed a declaratory judgment action filed by plaintiff Walter Olson (Olson).

¶ 2 Olson is a real estate developer who owns 69.72 acres of land in the Town of Cottage Grove (Town) in Dane County (County). Olson brought a declaratory judgment action challenging the legality of the Town's Land Division and Planning Code § 15.15 (the ordinance or § 15.15). Olson sought to have the ordinance declared unconstitutional on various grounds, and he sought other relief, including approval of a final subdivision plat and compensation for the alleged taking of his property.

¶ 3 The circuit court granted the Town's motion for summary judgment on the basis that Olson's suit for declaratory judgment was not ripe, and therefore not justiciable. Olson appealed, and the court of appeals reversed. Olson v. Town of Cottage Grove, No.2005AP2257, 298 Wis.2d 548, 727 N.W.2d 373, unpublished slip. op., ¶ 25 (2006). We granted the Town's petition for review.

¶ 4 We are asked to address two questions: (1) What is the appropriate standard of review for a circuit court's decision granting summary judgment in a declaratory judgment suit on the basis that the suit is not ripe?; and (2) Is Olson's suit ripe for declaratory judgment, and therefore justiciable?

¶ 5 We determine that the appropriate standard of review in these circumstances is de novo review. Applying this standard of review to the record before us, we conclude that Olson's declaratory judgment suit is ripe for adjudication, and therefore justiciable. Accordingly, we affirm the court of appeals and remand for proceedings consistent with this opinion.

I. BACKGROUND

¶ 6 Since 1996 Olson has been the owner of a 69.72 acre parcel of land in the Town, commonly known as the Klosterman Farm (property). On December 27, 2001, Olson filed a zoning petition (No. 8357) with the County to rezone his property from A-1 EX Exclusive Agricultural to R-1 Residential in order to subdivide his property into 15 residential lots.

¶ 7 On June 7, 2002, Olson submitted a preliminary plat of his proposed subdivision development — Highlands Addition to American Heritage — to the Town pursuant to Wis. Stat. § 236.11(1)(a) (2001-02).²

¶ 8 On July 15, 2002, the Town amended its Land Division and Planning Code to include § 15.15, entitled "Transfer of Development Rights Program (TDR)." The ordinance's TDR program incorporates the Land Use Element of the Town's Smart Growth Comprehensive Plan — 2020. The TDR program was created to serve several purposes, including allowing owners of farmland to capture a reasonable development value for their land, preserving the farmland and rural characteristics of the area, and directing new residential development toward areas of existing development. Another purpose of the program is to "maintain community separation between the Village of Cottage Grove and the City of Madison."

¶ 9 Under the TDR program, some land use districts are designated as "sending areas" and others as "receiving areas." Sending areas include land designated as agricultural or open space/park districts. Receiving areas include residential districts, which are designated as a "Conservation Residential District," a "Medium Density Residential District," or a "High Density Residential District" to reflect their intended density and use. Using these classifications, the TDR program creates an additional step for receiving area landowners who seek to develop their property.

¶ 10 Persons hoping to develop property in a receiving area must acquire a requisite number of transfer development rights (TDRs), which amount to ownership interests in sending area property. Under the TDR program, owners of land in sending areas may sell their TDRs to owners of land in receiving areas. A TDR easement is then established by a deed entered into among the developer, the Town, and the County. Through these easements, land interests from sending areas are "sent" to receiving areas to make up for the subsequent increase in density due to residential development in receiving areas. Hence, the ordinance sets forth procedures to assure that rezoning and division of land in a receiving area is not approved without first obtaining the requisite number of TDRs and recording a TDR easement.

¶ 11 Under the TDR program enacted by the Town in July 2002, Olson's property falls within a Medium Density Residential District receiving area and is zoned A-1 EX Exclusive Agricultural, which precludes residential development.

¶ 12 On October 28, 2002, Olson filed a second, separate zoning petition (No. 8598) with the County and requested to increase the number of proposed lots from 15 to 58 while still seeking to rezone the property from A-1 EX Exclusive Agricultural to R-1 Residential.

¶ 13 On January 14, 2003, the Dane County Zoning and Natural Resources Committee (ZNR) reviewed Olson's second zoning petition and recommended approval. On January 23, 2003, the Dane County Board of Supervisors (County Board) adopted the ZNR's recommendation, granting Olson conditional rezoning effective February 14, 2003. The petition was granted subject to two conditions. Olson was required to: (1) withdraw zoning petition No. 8357; and (2) record a final plat in the office of the Dane County Register of Deeds within one year of rezoning approval by the County.

¶ 14 On September 19, 2003, Olson submitted a final plat application for the Highlands Addition to American Heritage. The Town conditionally approved this final plat at a Town Board meeting on November 3, 2003. The Town's approval of the plat was subject to the requirement that Olson acquire 10 TDRs and transfer them to the Town and County to comply with § 15.15.

¶ 15 Olson did not then own, and claimed that he was unable to acquire, the 10 TDRs necessary to satisfy the ordinance. Olson claimed that to acquire 10 TDRs would require the purchase of 350 acres of farmland in a sending area at a cost of approximately $750,000. Olson also claimed that to finish his redevelopment project would require the total acquisition of 700 acres of farmland.

¶ 16 On January 20, 2004, the Dane County Planning and Development Commission reminded Olson that zoning petition No. 8598 had a delayed effective date of February 14, 2004, provided that a plat was recorded in the office of the Dane County Register of Deeds no later than that date. Olson did not record a final plat before February 14, 2004.

¶ 17 On February 5, 2004, the County Board addressed zoning petition No. 8598 at a regular meeting. The record in the present case includes minutes of the Proceedings of the Dane County Board of Supervisors, Vol. 90, April 2003-2004, which read in part:

MOTIONS FROM PREVIOUS MEETINGS

The question before the Board was Supervisor Wiganowsky's motion at the last County Board meeting to rescind action on Zoning Petition 8832 — Town of Sun Prairie. Motion carried. Moved by Supervisor Wiganowsky, seconded by Supervisor Wendt, to refer Petition 8832 to the Zoning & Natural Resources Committee. Motion carried.

The question before the Board was Supervisor Hulsey's motion at the last County Board meeting to rescind action on Zoning Petition 8598 — Town of Cottage Grove. Motion carried. Moved by Supervisor Hulsey, seconded by Supervisor O'Loughlin, to extend for one year the delayed effective date. Motion carried. (Emphasis added.)³

¶ 18 On September 13, 2004, Olson filed the instant declaratory judgment action against the Town to challenge the validity of § 15.15. Olson's complaint alleged that § 15.15 was enacted without statutory authority, violated several provisions of the Wisconsin Statutes, was applied to his property ex post facto, and constituted an uncompensated taking under the Fifth and Fourteenth Amendments to the United States Constitution and Article 1, Section 13 of the Wisconsin Constitution.⁴ Olson's complaint sought the following relief: (1) a declaration that § 15.15 is void and of no effect; (2) an order directing the Town to immediately approve Olson's plat of the Highlands Addition to American Heritage; and (3) supplemental relief in the form of just compensation for the temporary taking of Olson's land.

¶ 19 On April 11, 2005, the Town filed a motion for summary judgment, asking that Olson's case be dismissed with prejudice for lack of justiciability. The Town's motion argued that Olson could not pursue declaratory relief with regard to the ordinance because his case was not ripe for adjudication, and therefore not justiciable.

¶ 20 On July 21, 2005, the circuit court granted the Town's motion for summary judgment. In a 16-page decision, the court determined that Olson's declaratory judgment action was not ripe for adjudication, and therefore not justiciable. The court held that "[b]ecause there are no material facts in dispute and the Town has provided a defense that defeats Olson's claim as a matter of law, summary judgment is granted to the Town."

¶ 21 The circuit court granted summary judgment because it determined that the controversy between Olson and the Town was not justiciable. Therefor...