Ottman v. Town of Primrose

• Decision Date: 22 March 2011
• Docket Number: No. 2008AP3182.,2008AP3182.
• Citation: 2011 WI 18,332 Wis.2d 3,796 N.W.2d 411
• Parties: Steve OTTMAN and Sue Ottman, Plaintiffs–Appellants–Petitioners, †v.TOWN OF PRIMROSE, Defendant–Respondent.
• Court: Wisconsin Supreme Court

332 Wis.2d 3

796 N.W.2d 411

2011 WI 18

Steve OTTMAN and Sue Ottman, Plaintiffs–Appellants–Petitioners, †

v.TOWN OF PRIMROSE, Defendant–Respondent.

No. 2008AP3182.

Supreme Court of Wisconsin.

Argued Jan. 4, 2011.Decided March 22, 2011.

For the plaintiffs-appellants-petitioners there were briefs and oral argument by John D. Varda and DeWitt Ross and Stevens, SC, Madison.For the defendant-respondent there was a brief and oral argument by Glenn Reynolds and Reynolds and Associates, Madison.ANN WALSH BRADLEY, J.

The petitioners, Steve and Sue Ottman, seek review of an unpublished decision of the court of appeals that affirmed a circuit court order dismissing their petition for certiorari review of a decision of the Town of Primrose Board of Supervisors. The Board denied the Ottmans' application for a permit to build a residential driveway.¹

¶ 2 The Ottmans contend that our standards for certiorari review should be changed in two respects. First, they argue that we should overrule cases imposing limitations on the scope of statutory certiorari. Second, they argue that we should reexamine the presumption of correctness and deference afforded to a municipality's decision. The Ottmans assert that the Board interpreted the farm income requirement contained in the Town of Primrose Driveway Ordinance in a way that is contrary to the plain language of the Ordinance.

¶ 3 Because the Ottmans have failed to provide a persuasive rationale for upsetting our longstanding jurisprudence, we decline to alter the established scope of statutory certiorari. We further decline to graft the framework for reviewing administrative agency determinations onto our framework for reviewing municipal decisions. In situations where the language of a municipality's ordinance appears to be unique and does not parrot a state statute but rather was drafted by the municipality in an effort to address a local concern, we will defer to the municipality's interpretation if it is reasonable.

¶ 4 Under the circumstances presented here, we conclude that the Board's interpretation of the farm income requirement is entitled to a presumption of correctness, and we will accord it deference. The Ottmans have not met their burden of showing that the Board's interpretation is unreasonable. Applying its interpretation, the Board made a finding of fact that the farm income requirement was not met, and the Ottmans have failed to demonstrate that no reasonable view of the evidence supports that finding. Therefore, we conclude that the Ottmans have not overcome the presumption of correctness. Accordingly, we affirm the court of appeals.

I

¶ 5 The Town of Primrose operates under a Land Use Plan that was prepared for the Town by staff to the Dane County Regional Planning Commission.² In recognition that “unplanned development, particularly on a large scale, can occur in such a way that ... problems with agricultural uses may occur,” the Land Use Plan establishes “guidelines upon which development decisions can be based.”

¶ 6 It provides that the Town's policy is “[t]o actively use and improve land use control measures which will discourage and prevent non-farm development in agricultural preservation areas.” Section II.A of the Land Use Plan establishes the following objectives:

1. To preserve productive farmlands for continued agricultural use.

2. To discourage land uses which conflict with agriculture.

3. To maintain agriculture as the major economic activity and way of life within the Town.

4. To protect farm operations from incompatible land uses and activities which may adversely affect the capital investment in agricultural land, improvements and equipment.

¶ 7 In 2001, Steve and Sue Ottman became interested in purchasing a 47.7–acre parcel located in the Town of Primrose that had been zoned A–1 Exclusive Agricultural under Dane County zoning ordinances. Prior to purchasing the property, they asked the Town of Primrose Board of Supervisors to approve their request to build a field road. The Ottmans expressed their intention to develop the parcel into a Christmas tree farm, and they explained that they would need to have access to their trees and to the agricultural accessory building they planned to build on the property.

¶ 8 After extensive discussion at the August 21, 2001 Board meeting, the Board passed a resolution granting the Ottmans an access off Primrose Center Road to enhance agricultural use of the property.³ Throughout the meeting, the supervisors expressed concern that approval of a field road might later be misinterpreted as approval for a residential driveway. One supervisor explained:

I'm trying to steer away from anything that gets to be interpreted later as a driveway. You understand where I'm coming from? But at the same time, we don't want to limit your ability to put Christmas trees in there and derive profit from doing that.The same supervisor explained: “[Y]ou could come back here in several years and, maybe I'll be here, maybe I won't, and [you could] say, I want a driveway permit now, and [you] could get turned down.”

¶ 9 The Ottmans purchased the property. They erected an agricultural accessory building at the top of the hill and put in a 500–foot gravel field road linking that building to Primrose Center Road, which bordered the parcel. Over the course of the next several years, the Ottmans planted trees on 18 acres, and they also rented 29 acres to Al Hanna, a neighbor who grew field corn.

¶ 10 On September 3, 2004, the Ottmans filed a document entitled “Preliminary Application for Driveway Permit and Approval of Site Plan for Primary Farm Residence.” ⁴ The application asserted that “[u]pon establishment, estimated annual income of Applicants' farm will exceed $30,000 annually” and that the proposed residence would be “for farm owner/operator who will derive substantial income from the farm operation.”

¶ 11 The Ottmans' application contended that their Christmas tree farm could not be viable without a residence.⁵ It asserted that the Ottmans wanted to place the residence at the top of the hill because the soil was rockier and less productive. It identified a proposed site for the residence approximately 200 feet north of the existing agricultural accessory building.

¶ 12 The application was presented to the Town of Primrose Planning Commission on March 7, 2005. The Commission voted to recommend that the Board of Supervisors deny the application.

¶ 13 The following week, the application was presented at a meeting of the Board. During the meeting, supervisors expressed concern about the viability of the farm as a Christmas tree operation. They also expressed concern about whether the Ottmans' application met some of the requirements in the Town of Primrose Driveway Ordinance, including the farm income requirement contained in the Driveway Ordinance's “Agricultural Productivity” Clause.

¶ 14 The Agricultural Productivity Clause provides as follows:

No driveway shall be approved in the Town of Primrose if the Town Board finds that the driveway will adversely impact productive agricultural land, unless the Town Board finds that the driveway is necessary to enhance the agricultural productivity of an adjacent parcel or the person requesting the permit can show that the parcel to be served by the driveway is capable of producing at least $6000.00 of gross income per year. Under any circumstance, the Town Board shall approve a driveway with the least impact on agricultural land.

Town of Primrose Driveway Ordinance 1.10.⁶ One supervisor explained that the Board's historical interpretation of the farm income requirement was to require proof of actual income, not speculative income. ⁷

¶ 15 Ultimately, the Board voted unanimously to deny the application. All three supervisors indicated that, among other reasons, they denied the application based on the Ottmans' failure to meet the Agricultural Productivity Clause's farm income requirement.⁸ Shortly thereafter, the Ottmans filed a certiorari action in Dane County Circuit Court.

¶ 16 At a pretrial scheduling conference that took place while the action was pending in the circuit court, the parties agreed to send the matter back to the Town of Primrose for review under Wis. Stat. Ch. 68.⁹ The purpose of Chapter 68 is “to afford a constitutionally sufficient, fair and orderly administrative procedure and review” of municipal determinations that involve constitutionally protected rights. Wis. Stat. § 68.001. Based on the parties' stipulation, the circuit court remanded the matter to the Town Board for Chapter 68 review.¹⁰

¶ 17 On remand, the parties appear to have had difficulty deciding upon the procedures that should be used in conducting a review under Chapter 68. Ultimately, the parties reached a joint recommendation on procedures. They agreed upon a site visit and a special hearing in front of the Town Board. ¹¹

¶ 18 The special hearing was held on July 26, 2006. During the hearing, both sides presented exhibits, called witnesses, and presented direct examination and cross examination testimony.

Although the Board voted unanimously to deny the application and issued a proposed written decision at the January 16, 2007 meeting, it took several months, meetings, and redrafts before the decision was finalized. The Ottmans' attorney made a number of objections to the draft decision and asked the Board to reconsider or clarify several of its findings of fact and conclusions of law. The Board's written decision was ultimately signed on September 18, 2007.

¶ 20 In its written decision, the Board made a finding of fact that “[a]ll 47 acres of the Ottman farm are productive agricultural lands[.]” It provided two independent reasons for denying the application. The first reason was based on the Agricultural Productivity Clause's farm income requirement, and the second reason was based on the proposed site for the house.

¶ 21 The Board concluded that because the Ottmans “[c]...