Streff v. Town of Delafield, No. 94-1416-FT

• Court: Court of Appeals of Wisconsin
• Writing for the Court: NETTESHEIM
• Citation: 526 N.W.2d 822,190 Wis.2d 348
• Docket Number: No. 94-1416-FT
• Decision Date: 21 December 1994
• Parties: Llewellyn F. STREFF, Plaintiff-Appellant, d v. TOWN OF DELAFIELD, Defendant-Respondent.

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526 N.W.2d 822 190 Wis.2d 348 Llewellyn F. STREFF, Plaintiff-Appellant, ^d
v.
TOWN OF DELAFIELD, Defendant-Respondent. No. 94-1416-FT. Court of Appeals of Wisconsin. Submitted on Briefs Oct. 20, 1994.
Opinion Released Dec. 21, 1994.
Opinion Filed Dec. 21, 1994.

[190 Wis.2d 350] On behalf of the plaintiff-appellant, the cause was submitted on the briefs of James E. Aschenbrener of Aschenbrener, Arnold & Artery, S.C. of Milwaukee.

On behalf of the defendant-respondent, the cause was submitted on the brief of E. Joseph Kershek of Kershek Law Offices of Milwaukee.

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Before ANDERSON, P.J., and BROWN and NETTESHEIM, JJ .

NETTESHEIM, Judge.

Llewellyn F. Streff brought suit against the Town of Delafield under 42 U.S.C. § 1983 alleging violations of his constitutional rights to equal protection, and procedural and substantive due process under the federal and state constitutions. Streff's claims arose out of the Town's failure to approve Streff's development proposals for certain real estate located in the Town. The trial court granted [190 Wis.2d 351] summary judgment to the Town, ruling that Streff's grievances were not yet ripe for judicial review. Streff appeals. We affirm.

FACTS

The controlling facts are not in dispute. On February 25, 1987, Streff conditionally acquired farmland through an accepted offer to purchase. The offer was contingent upon Streff obtaining rezoning and Town approval for the proposed development of the land as a residential subdivision.

The town ordinances permit and recommend that a developer first consult informally with the town plan commission before submitting a formal proposed development plan for approval. This is an informal, informational process whereby the Town becomes familiar with the developer's proposed plan, and the developer becomes familiar with the Town's comprehensive plan, regulations and procedures. ¹ This process can lead to the Town giving "conceptual approval" to the proposed development. However, this process is neither mandatory nor binding on either party.

[190 Wis.2d 352] The formal application process requires the developer to submit a residential development permit application and a $300 fee. The proposal is then rated according to various factors, including subdivision control regulations, ordinance compliance, road layout, and sewer and water drainage. Once approved, the developer obtains a full or partial lot allocation from the town board based on an annual lot allocation previously established by the Town.

During 1987 and 1988, Streff sought to obtain the Town's conceptual approval for his proposed development. To this end, Streff appeared at nearly all of the plan commission meetings at which he and the plan commission engaged in ongoing "give and take" bargaining regarding Streff's proposed development. During this process, Streff presented approximately fifty different site plan proposals to the plan commission. Some of these were the result of suggestions or objections registered by the Town; others were the product of Streff unilaterally changing his development plans. Despite the parties' lengthy discussions, Streff was unable to obtain the Town's conceptual approval. Nor did Streff ever file a formal residential development permit application or pay the $300 fee for any of his various proposals.

Eventually, the offer to purchase time limit for Streff obtaining Town approval expired and Streff lost his interest in the land. Later, another entity purchased the property and eventually obtained Town approval for developing the property.

Streff responded with this 42 U.S.C. § 1983 action, alleging a violation of his federal and state constitutional rights. The circuit court ruled that Streff's claims were not ripe for judicial review and granted summary judgment to the Town. Streff appeals. We [190 Wis.2d 353] will recite additional facts as we address the appellate issue.

STANDARD OF REVIEW

In reviewing a grant of a motion for summary judgment, we are required to apply the standards set forth in § 802.08(2), STATS. See Miller Brands-Milwaukee, Inc. v. Case,

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162 Wis.2d 684, 693, 470 N.W.2d 290, 294 (1991). We independently examine the record to determine whether any genuine issue of material fact exists and whether the moving party is entitled to judgment as a matter of law. Maynard v. Port Publications, Inc., 98 Wis.2d 555, 558, 297 N.W.2d 500, 502-03 (1980); § 802.08(2). DISCUSSION

Streff argues that his claims were ripe for judicial review, and thus the circuit court erred in dismissing his claims at summary judgment. ²

The decisions of the United States Supreme Court persuade us that Streff's claims were not ripe for judicial review. In Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985), a [190 Wis.2d 354] developer brought a 42 U.S.C. § 1983 action against a local planning commission alleging that the commission's rejection of a proposed development constituted two federal constitutional violations: (1) a taking of property without just compensation under the Fifth Amendment, and (2) an illegal exercise of the police power under the Due Process Clause of the Fourteenth Amendment. Williamson, 473 U.S. at 186, 197, 105 S.Ct. at 3116, 3122. The commission contended that the matter was not yet ripe for judicial review.

The Supreme Court stated the ripeness doctrine as follows:

A] claim that the application of government regulations effects a taking of a property interest is not ripe until the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue

Id. at 186, 105 S.Ct. at 3116.

The Court also stated the rationale for the ripeness doctrine:

Our reluctance to examine taking claims until such a final decision has been made is compelled by the very nature of the inquiry required by the Just Compensation Clause. Although "[t]he question of what constitutes a 'taking' for purposes of the Fifth Amendment has proved to be a problem of considerable difficulty," this Court...