Petersen v. Dane County

• Decision Date: 27 January 1987
• Docket Number: No. 85-1340,85-1340
• Parties: Thomas N. PETERSEN, Plaintiff-Appellant, v. DANE COUNTY and Town of Christiana, Defendants-Respondents.
• Court: Wisconsin Court of Appeals

Page 376

402 N.W.2d 376

136 Wis.2d 501

Thomas N. PETERSEN, Plaintiff-Appellant, v. DANE COUNTY and Town of Christiana, Defendants-Respondents.

No. 85-1340.

Court of Appeals of Wisconsin.

Submitted on Briefs Sept. 4, 1986.

Opinion Released Jan. 27, 1987.

Opinion Filed Jan. 27, 1987.

[136 Wis.2d 503] Francis J. Eustice and Aulik, Brill & Eustice, S.C., Sun Prairie, for plaintiff-appellant.

Judith H. Toole, Asst. Corp. Counsel, for defendant-respondent, Dane County.

Michael D. Rumpf and Rumpf Law Offices of Cambridge, for defendant-respondent, Town of Christiana.

Before GARTZKE, P.J., and EICH and SUNDBY, JJ.

SUNDBY, Judge.

Thomas Petersen appeals from a judgment declaring that: (1) the Town of Christiana did not act capriciously, unreasonably or arbitrarily in disapproving his petition for rezoning under the Dane County zoning ordinance; (2) he is not entitled to damages through inverse condemnation; and (3) he is not entitled to the relief he seeks. The principal issues on appeal are the constitutionality of the A-1 Agriculture (Exclusive) classification as applied to Petersen's land, whether his land was "taken" by the zoning restriction so as to entitle him to just compensation, and whether the town board acted arbitrarily, capriciously, unreasonably and contrary to the ordinance and the town's land use plan in disapproving his petition. We affirm.

Petersen owns a two-acre parcel of land in the Town of Christiana, Dane County, which is zoned A-1 Agriculture (Exclusive). His parcel was created by an illegal division of a ten-acre parcel by his predecessor in title. Petersen sought to have the parcel rezoned to permit residential uses.

RIGHT TO APPLY FOR REZONING

The trial court held that Petersen is estopped from seeking the requested rezoning because his predecessor in title failed to obtain an approved certified survey map for the parcel sought to be rezoned and the town board cannot act without the map. The doctrine of estoppel does not apply because an element essential to the doctrine--reliance--is missing. See City of Milwaukee v. Milwaukee County, 27 Wis.2d 53, 66, 133 N.W.2d 393, 400 (1965). Petersen and his predecessors have not taken action on which the town and county relied to their detriment. We consider the question to be whether the county and the town may entertain a rezoning request if the applicant does not present an approved certified survey map.

We agree with Petersen that the town board cannot disapprove a petition to rezone because an approved certified survey map is not presented. No such requirement is imposed by statute or ordinance. Norbert Scribner, Dane County plat review officer, testified that an undersized lot must be rezoned to a classification to which the lot size conforms before a certified survey map may be presented for approval. Dane County agrees that Petersen is entitled to apply to the county to rezone his property even though he cannot present an approved certified survey map. The trial court's error in this respect does not require reversal or modification of the judgment. We have the power to affirm a judgment, though errors be found, if the judgment is right on the pleadings and the evidence. State v. Alles, 106 Wis.2d 368, 391, 316 N.W.2d 378, 388 (1982).

INVERSE CONDEMNATION

Petersen asserts that the degree of taking here is almost identical to that which occurred in State ex rel. Nagawicka Is. Corp. v. Delafield, 117 Wis.2d 23, 343 N.W.2d 816 (Ct.App.1983). He describes his two-acre parcel as "very similarly situated" to the Nagawicka Is. property. He asks that we award him damages for the "taking" of his lot. We conclude Petersen may not claim monetary damages for a regulatory taking because his hardship is self-created and his claim is premature.

Self-Created Hardship

In Nagawicka Is., 117 Wis.2d at 28, 343 N.W.2d at 819, the court held that the zoning classification restricted the enjoyment of the owner's property to such an extent that a taking without due process occurred. In Nagawicka Is. the parcel was an island of approximately two acres. The owner had done nothing to decrease the size of the lot. Petersen's two-acre lot, however, was created by an illegal split-off from a parcel of approximately ten acres which was used for agricultural purposes and was subject to the A-1 Agriculture (Exclusive) zoning. Because his hardship is self-created, Petersen may not base a "taking" claim on the effect of the zoning restriction on the small lot created by the illegal division.

8 McQuillin, The Law of Municipal Corporations, sec. 25.44, p. 113 (3rd Ed. 1983 rev. vol.), states: "Effect of hardship, loss or gain to owner.... It is important to note that the hardship to a property owner justifying invalidation of a zoning ordinance as it affects his premises is not a hardship which he has himself assumed or induced." McQuillin cites Podmers v. Village of Winfield, 39 Ill.App.3d 615, 350 N.E.2d 232 (1976) (reducing lot below minimum lot size self-created hardship); Gedmin v. City of Chicago, 88 Ill.App.2d 294, 232 N.E.2d 573 (1967) (development of proposal with knowledge it violated zoning restrictions self-created hardship). See also Contino v. Village of Hempstead, 27 N.Y.2d 701, 314 N.E.2d 15, 262 N.E.2d 221 (1970), adopting dissent, 33 A.D.2d 1043, 309 N.Y.S.2d 130 (1970) (landowner who subdivides so as to create a substandard lot creates his own hardship and cannot successfully attack zoning restrictions on constitutional grounds); Randolph Hills, Inc. v. Montgomery County Council, 264 Md. 78, 285 A.2d 620 (1972) (substandard lot created by subdivision self-created hardship); State ex rel. Markdale Corp. v. Bd. of Appeals, 27 Wis.2d 154, 133 N.W.2d 795 (1965) (self-created hardship does not justify the grant of a variance).

Petersen's predecessor in title split off the two-acre parcel without complying with the county subdivision ordinance requiring an approved certified survey map. Petersen purchased the lot knowing it did not comply with the ordinance. We conclude that Petersen may not base a claim his land has been taken by the application of the zoning ordinance to his lot when the condition which renders the lot valueless to him was created by his predecessor in title and was known to Petersen when he bought the lot.

Claim is Premature

Petersen's claim presents the question of whether a property owner may claim monetary damages for a regulatory taking or is limited to relief which frees his property from the regulation. In Zinn v. State, 112 Wis.2d 417, 428-29, 334 N.W.2d 67, 72 (1983), the court adopted the view expressed by Justice Brennan in his dissent in San Diego Gas & Electric Co. v. San Diego, 450 U.S. 621, 653-54, 657, 101 S.Ct. 1287, 1304-05, 1306, 67 L.Ed.2d 551 (1981), that once it is established that there has been a regulatory "taking," the Constitution demands payment of just compensation. Several litigants have tried unsuccessfully to have the United States Supreme Court finally adopt the Brennan view as the law. Williamson Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985); MacDonald, Sommer & Frates v. County of Yolo, 477 U.S. ----, 106 S.Ct. 2561, 91 L.Ed.2d 285 (1986). In each case the Court found the claim to be premature. It is essential to a claim that a regulatory action has "taken" property that a "final, definitive position" has been established by the regulatory agency as to how it will apply the regulations at issue to the land in question. MacDonald, 477 U.S. at ----, 106 S.Ct. at 2567, 91 L.Ed.2d at 296. In the Hamilton Bank case, the Court held that the developer's claim was premature where it had not sought a variance and had not availed itself of a "facially adequate" state procedure by which it might obtain "just compensation." See MacDonald, supra. Petersen does not allege he has applied to the county Board of Adjustment for a variance nor has he made an inverse condemnation claim under sec. 32.10, Stats. His claim is premature.

CONSTITUTIONALITY

By stipulation Petersen withdrew his general attack on the constitutionality of the A-1 Agriculture (Exclusive) classification. However, he argues that because the legislative body set the minimum lot size in the A-1 Agriculture (Exclusive) district at 35 acres, it follows that the zoning classification--exclusive agriculture--is inappropriate for anything less than thirty-five acres, including his parcel. His attack is an economic one--that parcels of less than 35 acres will not support farming and therefore the exclusive agricultural zoning classification applied to such parcels is without any reasonable basis and is unconstitutional. See Kmiec v. Town of Spider Lake, 60 Wis.2d 640, 211 N.W.2d 471 (1973). This attack is broader than his inverse condemnation claim in that it is directed at the legislative decision to set the minimum lot size at thirty-five acres. The reasons which foreclose Petersen from making his inverse condemnation claim do not preclude his general attack on the A-1 Agriculture (Exclusive) zoning classification.

Zoning is a legislative function. Buhler v. Racine County, 33 Wis.2d 137, 146, 146 N.W.2d 403, 408 (1966). All legislative acts are presumed to be constitutional, and one who attacks the constitutionality of a zoning ordinance must prove the unconstitutionality beyond a reasonable doubt. Quinn v. Town of Dodgeville, 122 Wis.2d 570, 577, 364 N.W.2d 149, 154 (1985). We are not concerned with the merits of the legislation under attack nor with the wisdom of what the legislative body has done. Id.

Petersen overlooks several facts. First, the permitted and conditional uses in the A-1 Agriculture (Exclusive) district are extensive and are not limited to "farming." Dane County, Wis., Code of Ordinances secs. 10.123(3) and (4) (1982). Secondly, a thirty-five-acre lot is required only to establish or maintain a "farm operation." Id., sec. 10.123(6)(a). Other permitted and conditional uses,...