Thorp v. Town of Lebanon

Decision Date11 March 1999
Docket NumberNo. 98-2358,98-2358
Citation593 N.W.2d 878,225 Wis.2d 672
PartiesRoy S. THORP and Helene T. Thorp, Plaintiffs-Appellants, d v. TOWN OF LEBANON, and County of Dodge, Defendants-Respondents.
CourtWisconsin Court of Appeals

On behalf of the defendant-respondent, Dodge County, the cause was submitted on the brief of John M. Moore and W. Scott McAndrew of Bell, Gierhart & Moore, S.C. of Madison.



This dispute concerning the zoning of 225 acres owned by Roy and Helen Thorp in the Town of Lebanon, County of Dodge, is before us a second time on appeal. In our previous decision 1 we held that the notice of claim requirements of § 893.80(1), STATS., did not apply to the Thorps' claims of violations of rights secured by the United States Constitution. After remand to the trial court, that court granted summary judgment in favor of the Town of Lebanon on the ground that it had no liability as a matter of law because the town board voted in favor of the Thorps' request for a rezoning by 2-1. The court also granted summary judgment in favor of both the Town and the County on the ground that the Thorps would not be able to prevail on their federal constitutional claims and there were state law remedies available to them that they had not used. The Thorps appeal, contending the court erred in: (1) deciding the motions for summary judgment because they were untimely; (2) dismissing the federal constitutional claims; and (3) dismissing the Town because there are factual issues concerning its liability.

We conclude the trial court did not err in deciding the motions for summary judgment were timely. We also conclude the trial court properly dismissed the claims against the Town and the County for a deprivation of procedural and substantive due process, but erred in dismissing the equal protection claim against them.


Because the Town and County filed no evidentiary materials with their motions for summary judgment, we have only the allegations of the complaint before us, as we did on the prior appeal. The factual allegations relevant to the claims that were before the trial court after remand are as follows. The Thorps own 225 acres of real estate located in the Town of Lebanon, which had been zoned as rural development for twenty years prior to the zoning amendment they are contesting. In 1993, the Town and County entered into an agreement to work together on a revised master zoning map for the Town. On July 7, 1994, the town board of supervisors approved a comprehensive zoning map that changed the classification of the Thorps' property to agricultural and, at the Town's request, the County amended its official zoning map accordingly. The Thorps then filed a petition with the town plan commission seeking a rezoning of 155 acres from the new agricultural classification back to the original classification of rural development. The plan commission denied the petition but, on appeal to the town board of supervisors, that board approved the petition. The Thorps filed a petition with the Dodge County Planning and Development Department to seek confirmation of the reclassification back to rural development and that body, through the planning and survey committee, voted to grant the request on a 4-1 vote. However, the county board of supervisors denied the petition.

The Thorps' complaint seeks declaratory, injunctive and monetary relief. The complaint asserts that the classification of the Thorps' property as agricultural, prohibiting its use for rural development, is arbitrary, discriminatory and unreasonable, bearing no reasonable relationship to the public health, safety and welfare of the Town and County; is an unlawful exercise of police power; and a violation of equal protection and due process under the United States and Wisconsin Constitutions. In support of these assertions, the complaint alleges the following. The highest and best suited use of the Thorps' property is not agricultural but rather rural development because the land is hilly and rocky, there are certain deficiencies in the soil, and part is located in wetlands. Under the amended zoning ordinance, numerous "islands" were left zoned rural development without a logical basis, even though that land is more suitable for agricultural use than the Thorps' property, and for this reason the amendment is discriminatory. The survey conducted by the Town before the adoption of the amendment showed that the residents had no objection to residential development. The board of supervisors misinterpreted and misapplied the results of that survey when adopting the amendment and failed to comply with § 60.61(4), STATS., in that the board did not appoint a town zoning committee consisting of five members.

The complaint also asserts the Thorps were denied a fair and impartial hearing because of the following occurrences. The one negative vote on the 4-1 vote by the Dodge County Planning and Survey Committee on the Thorps' petition for a reclassification to residential development was by Betty Balian, the chair of the Town of Lebanon Board. However, when appearing before the county board of supervisors, the chair of the planning and survey committee represented to that board that the vote was 3-2, with himself, as well as Balian, voting against the petition. Before the county board of supervisors voted on the Thorps' petition, Balian made these misrepresentations to the board: she characterized the Thorps as real estate developers and as having the ulterior motive of seeking development of their real estate when no such development request had been made; she stated that the town residents favored general agricultural zoning and were antidevelopment; and she otherwise failed to correctly state the reasons in the petition for the Thorps' request.

The narrow issue before us on the prior appeal was whether these claims are state law claims, in which case the requirements of § 893.80(1), STATS., apply, or claims of deprivation of federal constitutional rights asserted under 42 U.S.C. § 1983, in which case § 893.80(1) does not apply. 2 See Felder v. Casey, 487 U.S. 131, 147, 108 S.Ct. 2302, 101 L.Ed.2d 123 (1988). We concluded that the allegations concerning the invalidity of the amended ordinance adequately asserted either a substantive due process or an equal protection claim or both such that § 893.80(1) did not apply. We also concluded that the allegations concerning the hearing before the county board on the Thorps' petition for rezoning were sufficient to allege a claim for a violation of their right to procedural due process under the Fourteenth Amendment. 3

Upon remand, the trial court entered a scheduling order setting dates for discovery deadlines, a deadline for pretrial motions of July 7, 1998, and a trial date of July 22, 1998. The scheduling order did not specifically refer to either "summary judgment" motions or "dispositive" motions. On June 4, 1998, the County moved for summary judgment on the ground that the Thorps have no claims for relief under the federal constitution because there were adequate state remedies and, alternatively, the allegations of the complaint do not state a claim for relief for a denial of either equal protection or due process. On June 12, 1998, the Town filed a motion for summary judgment on the same grounds and also on the ground that the actions of the town board were not a cause of any constitutional deprivation or damage to the Thorps. The only evidentiary submission accompanying either motion was counsel's affidavit attaching our prior decision.

The trial court agreed with the argument of the Town and County and granted both motions for summary judgment.


The Thorps argue that the trial court should have denied the motions for summary judgment as untimely because they were not brought as required by § 802.08(1), STATS., "within 8 months of the filing of a summons and complaint or within the time set in a scheduling order." The trial court considered this objection and explained its reasons for deciding the motions. It noted that if anyone were at fault for the timing of the filing of the motions, it was the court, because the court did not include a separate deadline for summary judgment motions in its scheduling order. The court considered the respondents' interpretation of the order--that, in the absence of a specific reference, summary judgment motions were to be treated as pretrial motions--to be a reasonable one. Finally, the court explained that if it did not decide the issues raised in the motions now, it would have to do so in the form of a motion for dismissal at the close of the Thorps' case or for a directed verdict. Should the motions have merit, the court reasoned, deciding them before trial would save the expense of trial for all parties, avoid wasting the court's resources, and avoid inconveniencing the witnesses and jurors.

We defer to a trial court's interpretation of its own ambiguous order as long as it is a reasonable interpretation. See Schultz v. Schultz, 194 Wis.2d 799, 802, 535 N.W.2d 116, 117 (Ct.App.1995). We conclude the scheduling order was ambiguous concerning whether a motion for summary judgment was governed by the deadline for pretrial motions, and the trial court's decision that the summary judgment motions were governed by that deadline is reasonable. Moreover, even if a motion is untimely, the trial court has the discretion to enlarge the time period if the failure to file timely was the result of...

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6 cases
  • Thorp v. Town of Lebanon
    • United States
    • Wisconsin Supreme Court
    • June 21, 2000 dismiss the Thorps' claims of deprivation of substantive and procedural due process. Thorp v. Town of Lebanon and County of Dodge, 225 Wis. 2d 672, 689, 697, 593 N.W.2d 878 (Ct. App. 1999). However, it concluded that the Thorps'" complaint does state a claim for relief under the equal pr......
  • Miller v. Zoning Bd. of Appeals of Vill. of Lyndon Station
    • United States
    • Wisconsin Court of Appeals
    • August 25, 2022
    ... ... 2018 WI 63, ¶25, 382 Wis.2d 1, 913 N.W.2d 131; ... Ottman v. Town of Primrose , 2011 WI 18, ¶34, ... 332 Wis.2d 3, 796 N.W.2d 411. When conducting certiorari ... property by way of certiorari. See Thorp v. Town of ... Lebanon , 225 Wis.2d 672, 688, 593 N.W.2d 878 (Ct. App ... 1999), ... ...
  • Niemi v. Hying
    • United States
    • Wisconsin Court of Appeals
    • March 30, 2021
    ...rule is well settled that we normally defer to a circuit court's interpretation of its own orders. See Thorp v. Town of Lebanon , 225 Wis. 2d 672, 683, 593 N.W.2d 878 (Ct. App. 1999), aff'd , 2000 WI 60, 235 Wis. 2d 610, 612 N.W.2d 59. Hying fails to cite any legal authority demonstrating t......
  • State v. Hubbard
    • United States
    • Wisconsin Court of Appeals
    • August 21, 2018 a circuit court’s interpretation of that court’s own rulings if the interpretation is reasonable. See Thorp v. Town of Lebanon , 225 Wis. 2d 672, 683, 593 N.W.2d 878 (Ct. App. 1999), aff'd , 2000 WI 60, 235 Wis. 2d 610, 612 N.W.2d 59. The circuit court’s interpretation of its sentencing ......
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