State ex rel. Village of Newburg v. Town of Trenton
| Decision Date | 26 August 2009 |
| Docket Number | No. 2008AP2997.,2008AP2997. |
| Citation | 2009 WI App 139,773 N.W.2d 500 |
| Parties | STATE of Wisconsin ex rel. VILLAGE OF NEWBURG, Plaintiff-Appellant, v. TOWN OF TRENTON, Defendant-Respondent, Deerprint Enterprises, LLC, Intervening Defendant-Respondent. |
| Court | Wisconsin Court of Appeals |
On behalf of the defendant-respondent, the cause was submitted on the brief of Deborah S.R. Hoffmann of Houseman & Feind, LLP of Grafton.
On behalf of the intervening defendant-respondent, the cause was submitted on the brief of Phillip J. Eckert of Eckert Law Office of West Bend.
Before BROWN, C.J., ANDERSON and SNYDER, JJ.
The Wisconsin legislature generally requires an incorporated municipality to act within its own territorial boundaries. But our legislature has recognized that a municipality may need to act outside its boundaries to plan for its future expansion and physical development. So the legislature allows a municipality to temporarily enact a moratorium that prohibits unincorporated towns from changing the zoning of land next to the municipality's boundaries. The moratorium gives the municipality time to work with each unincorporated town affected to prepare and adopt a comprehensive plan on how the land in that unincorporated town should be used. This power is called extraterritorial zoning. See WIS. STAT. § 62.23(7a) (2007-08).1 The Village of Newburg had an extraterritorial zoning moratorium in place that prohibited zoning changes on land within one and one-half miles of its boundaries for two years from November 20, 2006. The Village brought this declaratory judgment action asserting that the Town of Trenton violated the moratorium by approving a development with land uses that the Town's zoning ordinances allegedly prohibit without rezoning. The circuit court agreed with the Town's conclusion that it properly followed its ordinances. But we hold that the Town engaged in a de facto rezoning of the land by approving uses its ordinances do not allow. We therefore reverse.
¶ 2 A parcel of land owned by Deerprint Enterprises, LLC lies within the Town in the one and one-half mile extraterritorial zoning moratorium. This parcel is zoned residential, CES-5 country estate. CES-5 country estate zoning allows "single-family residential development in a farmette, or estate-type setting, at densities not to exceed one (1) dwelling unit" per five acres. TOWN OF TRENTON, WIS., Zoning Code § 10-1-61 (2002). The Town's ordinances do not list commercial or industrial activities as permissible uses on a parcel zoned CES-5 country estate.2 Id.
¶ 3 In 2007, the Town board approved a six-unit condominium development on the Deerprint parcel. The development consisted of five residential units and one commercial/industrial unit. The plan was for the commercial/industrial unit to house an existing commercial business. Moreover, the condominium documents provided that "[a]dditional commercial units may be created ... by subdividing all or a portion of the space included within the original commercial/industrial unit to form one or more additional commercial units."
¶ 4 The Village argued that the Town's approval violated the Village's moratorium and the Town's zoning ordinances. It contended that since the Deerprint development included a nonconforming mixed use, and the Town's ordinances prohibit mixed uses, then the Town must approve a planned development overlay for the parcel. The Town's ordinances state that an overlay permits developments that mix compatible uses, allowing for a flexible development design that would otherwise violate the zoning requirements of the parcel. See TOWN OF TRENTON, WIS., Zoning Code § 10-1-59 (2002). As a condition of allowing nonconforming uses, an overlay requires the developer to work with the Town plan commission to ensure that the developer's plan is not contrary to the general welfare and economic prosperity of the community and does not burden public infrastructure. Id. The Village asserted that an overlay would be a change in zoning that violated the moratorium. So it requested a declaration that the Town's approval of the Deerprint parcel was invalid and that the Town cannot change the zoning of the land within the moratorium.
¶ 5 The Town answered the complaint and filed a motion to dismiss asserting that the Village did not have standing.3 The Town maintained that its approval relied on the condominium process, not zoning regulations and, therefore, it did not need to approve an overlay. But at the motion hearing the Town conceded that if its ordinances required an overlay, the approval would be a zoning change that would violate the Village's moratorium. Except for this concession, Deerprint agreed with the Town.
¶ 6 The circuit court concluded that the Town did not need to confer an overlay nor rezone the property to approve the condominiums. Like the Town and Deerprint, it focused on the approval as one for a condominium form of ownership, not for mixed uses or rezoning. It reasoned that the Town and Deerprint And since no zoning changes were needed, the circuit court concluded that the Village did not have standing. It thus granted summary judgment in favor of the Town on the basis of standing.
¶ 7 Before we reach the main issue in this case (standing) we will address the Town's assertion that this appeal is moot. The Town points out that the Village's moratorium expired in 2008, so the Village cannot enact another one until next year, 2010.4 And in the Town's opinion, now "Deerprint can re-zone and develop its property ... with no approval needed from [the Village.]" A case is moot when the decision sought by the parties cannot have any practical legal effect upon a then existing controversy. W.J.C. v. County of Vilas, 124 Wis.2d 238, 239, 369 N.W.2d 162 (Ct.App.1985).
¶ 8 The Town does not cite any authority for its contention that the sunset of a law wipes out violations of that law occurring before expiration, and we are unaware of any such authority. But the law is clear for the analogous situation where a statute is repealed before an action is concluded. See WIS. STAT. § 990.04. There, a person who violates a statute is subject to that statute's consequences, even if the legislature repeals the statute before the opposing party commences or completes its cause of action for the alleged offense. Id.; see also State v. Thums, 2006 WI App 173, ¶ 10, 295 Wis.2d 664, 721 N.W.2d 729.
¶ 9 We conclude that this principle applies here as well. Litigation is, unfortunately, often lengthy, sometimes calculated in terms of multiple months and even years. And if an extraterritorial zoning action were always moot when a violation occurred before sunset but litigation was still pending after, then miscreants could use the time lag often present in lawsuits as a means to avoid the sanctions which would normally occur by reason of malfeasance.5 We hold that since the Village had a legitimate right to review the Town's approval of the Deerprint development at the time the Town approved it, the Village has that right now.
¶ 10 The main issue on appeal is the Village's standing to seek declaratory relief. Whether a party has standing to seek declaratory relief presents a question of law we review de novo. Town of Eagle v. Christensen, 191 Wis.2d 301, 315, 529 N.W.2d 245 (Ct.App.1995). A party seeking declaratory relief must have a legally protected interest in the controversy, giving it a personal stake in its outcome. Id. at 315-16, 529 N.W.2d 245. We construe standing in declaratory judgment actions liberally, in favor of the complaining party, as it affords relief from an uncertain infringement of a party's rights. Id. at 316, 529 N.W.2d 245.
¶ 11 The Village's legally protected interest stemmed from its extraterritorial zoning authority. See WIS. STAT. § 62.23. Under that authority, the Village effectively "froze" any kind of zoning changes to the unincorporated Deerprint parcel. This freeze effectively blocked any rezoning. See City of Waukesha v. Town Bd., 198 Wis.2d 592, 598, 543 N.W.2d 515 (Ct.App. 1995). Section 62.23(8) authorizes a municipality to take action against any use or proposed use in violation of § 62.23. Therefore, when the Village commenced this declaratory action, it had a legally protected interest if the Town made any zoning changes to the Deerprint parcel while the moratorium was in effect.
¶ 12 The Town concedes that if it had to grant an overlay to Deerprint, then its approval would violate the Village's moratorium, thus providing the Village with standing. So, this issue depends on the interpretation of the Town's zoning ordinances. We review the interpretation of ordinances de novo and apply the same interpretation rules to ordinances as we do to statutes. City of Waukesha, 198 Wis.2d at 601, 543 N.W.2d 515.
¶ 13 The Town's argument on appeal mirrors its argument before the circuit court. It theorizes that all it did was approve a developer's condominium plan and that its action did not require rezoning, special zoning or approval of an overlay. We agree that the condominium form of ownership itself does not require any rezoning or an overlay. As WIS. STAT. § 703.27 states, "zoning or other land use ordinance[s] or regulations may not prohibit the condominium form of ownership or impose any requirements upon a condominium that it would not impose if the development were under a different form of ownership."
¶ 14 But the...
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