Thorp v. Town of Lebanon

• Decision Date: 21 June 2000
• Docket Number: No. 98-2358.,98-2358.
• Citation: 2000 WI 60,235 Wis.2d 610,612 N.W.2d 59
• Parties: Roy S. THORP and Helene T. Thorp, Plaintiffs-Appellants-Petitioners, v. TOWN OF LEBANON, and County of Dodge, Defendants-Respondents-Cross Petitioners.
• Court: Wisconsin Supreme Court

235 Wis.2d 610

2000 WI 60

612 N.W.2d 59

Roy S. THORP and Helene T. Thorp, Plaintiffs-Appellants-Petitioners, v. TOWN OF LEBANON, and County of Dodge, Defendants-Respondents-Cross Petitioners.

No. 98-2358.

Supreme Court of Wisconsin.

Oral argument January 6, 2000.

Decided June 21, 2000.

For the plaintiffs-appellants-petitioners, there were briefs by E. Joseph Kershek and Kershek Law Offices, Milwaukee, and oral argument by E. Joseph Kershek.

For the defendant-respondent-cross petitioner Town of Lebanon, there were briefs by Michael J. Cieslewicz, Patti J. Kurth and Kasdorf, Lewis & Swietlik, S.C., Milwaukee, and oral argument by Michael Cieslewicz.

For the defendant-respondent-cross petitioner Dodge County, there were briefs by John M. Moore, W. Scott McAndrew, Sheila M. Sullivan and Bell, Gierhart & Moore, S.C., Madison, and oral argument by W. Scott McAndrew.

¶ 1. N. PATRICK CROOKS, J

Petitioners, Roy S. Thorp and Helene T. Thorp, seek review of a published court of appeals decision,¹ which affirmed in part and reversed in part a Dodge County Circuit Court order granting summary judgment. The circuit court granted summary judgment to the Town of Lebanon ("the Town") and the County of Dodge ("the County") in an action brought by the Thorps when the Town and the County failed to rezone the Thorps' property back to a rural development zoning classification from a general agricultural classification. The Thorps brought three claims, alleging that 1) the rezoning of their property to general agricultural was invalid and violated their right to equal protection and due process, 2) the rezoning amounted to inverse condemnation and a taking without just compensation, and 3) they were denied a fair and impartial hearing before the County Board.

¶ 2. In an earlier unpublished decision, the court of appeals determined that the notice provisions in Wis. Stat. § 893.80(1)(1993-94)² did not apply to the Thorps' federal constitutional claims. Thorp v. Town of Lebanon, No. 96-2449, unpublished slip op. at 13 (Ct. App. May 15, 1997). On remand, the circuit court granted summary judgment to the Town and the County. The circuit court dismissed the Thorps' federal constitutional claims on summary judgment because the Thorps did not first avail themselves of any state law remedies.

¶ 3. The Thorps appealed. On the second appeal, the court of appeals affirmed the circuit court's decision to 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 protection clause." Id. at 691.

¶ 4. We affirm. We first hold that according to Felder v. Casey, 487 U.S. 131 (1988), the Thorps did not have to comply with the Wisconsin notice statute to bring their federal constitutional claims. Further, the Thorps complied with Wis. Stat. § 893.80(1)'s notice provisions. Second, the Thorps' complaint stated a valid claim for relief under the Equal Protection Clause, but not a claim for the denial of substantive due process. Third, the Thorps are barred at this time from bringing a procedural due process claim because certiorari was an adequate state law remedy available to them when they brought their initial action. Finally, the Town should not be dismissed from the suit. The Thorps would be entitled to relief from the Town if they would succeed in proving that the Town's actions in amending the ordinance violated their right to equal protection.

I.

¶ 5. The Thorps own approximately 255 acres in the Town of Lebanon, which is located in Dodge County. The property is a mix of open land, woods, and wetlands, with some of the land being within the flood-plain. Before July 7, 1994, the Thorps' land was zoned to a rural development classification. ¶ 6. The process of rezoning the Thorps' land began in 1993, when the Town of Lebanon Board of Supervisors conducted a survey to determine whether public opinion would favor rezoning Town land. On July 7, 1994, the Town Board of Supervisors approved a new rezoning map that extensively revised the zoning classification of most of the Town land from a rural development classification to a general agricultural classification. The Town Board also asked the Dodge County Board of Supervisors to adopt the same zoning map.

¶ 7. In October 1994, the Dodge County Board of Supervisors amended its "official zoning map" to incorporate the Town's zoning reclassifications. The Thorps' land was one of the properties reclassified from rural development to general agricultural. According to the Thorps, the change in zoning substantially interfered with the use of their property and had a material adverse effect on its value. The Thorps' attorney sent a letter to both the Town and the County on November 21, 1994, notifying them that the rezoning was handled improperly and requesting that the property be rezoned to a rural development classification.

¶ 8. On November 28, 1994, the Thorps filed a petition with the Town of Lebanon Plan Commission to rezone the non-wetland and floodplain areas of their property, which constituted approximately 155-165 acres. The Town Plan Commission denied their petition in February 1995, and they appealed to the Town Board of Supervisors. The Town Board of Supervisors voted to grant the Thorps' request and authorized approximately 165 acres to be rezoned to its original classification.

¶ 9. The Thorps then petitioned the Dodge County Planning and Development Department to confirm the Town Board of Supervisors' vote. They also brought a petition before the Dodge County Planning and Surveyor Committee in March 1995. The County Planning and Surveyor Committee voted to confirm the Town Board of Supervisors' vote. However, a few days later the County Board of Supervisors voted against the Thorps' proposed rezoning. The Thorps' entire property therefore retained its general agricultural classification.

¶ 10. On May 23, 1995, the Thorps filed a summons and complaint stating three claims against the Town and the County and seeking declaratory, injunctive, and monetary relief. First, the Thorps alleged that the Town and the County's zoning ordinance was invalid and violated their due process and equal protection rights.³ In support of their claim, they alleged that the Town Zoning Committee did not consist of five members, as required by Wis. Stat. § 60.61(4). The Thorps also stated that their property is best suited for rural development because it has poor soil for agriculture. Moreover, "the Town and [the] County left numerous `islands' throughout the Town that have not been rezoned and have been left with a rural development classification without any logical explanation." (R. at 1:4.) Finally, they alleged that a survey conducted before the zoning change showed the Town residents did not object to residential development and that the Town misread another soil survey map. (R. at 1:4-5.)

¶ 11. Second, the Thorps claimed that the rezoning amounted to an inverse condemnation and taking of their land, for which they were not justly compensated. They alleged that the rezoning resulted in a substantial decrease in the property's value per acre, as well as a permanent and substantial interference with the use and enjoyment of the land. (R. at 1:5.)

¶ 12. Third, the Thorps claimed that they were denied a fair and impartial hearing. The complaint stated that the Dodge County Planning and Surveyor Committee voted 4-1 to grant the Thorps' rezoning request and that Betty Balian, the Town Board Chairman, cast the only negative vote. The complaint further alleged that chair of the County Planning and Surveyor Committee informed the County Board of Supervisors that the vote was 3-2, and that he cast one of the negative votes. According to the complaint, Balian also made numerous misrepresentations to the Board of Supervisors relating to the Thorps' motives for requesting the zoning change, and yet failed to recuse herself from voting on the issue. (R. at 1:5-6.)

¶ 13. In response, the Town and the County moved to dismiss the Thorps' complaint for failure to comply with the notice requirements contained in Wis. Stat. § 893.80(1)(a)-(b). The circuit court, the Honorable Daniel W. Klossner presiding, agreed and granted the motion to dismiss on that basis. Citing Felder, 487 U.S. 131, the court concluded that a "simple allegation of constitutional violations does not render Sec. 893.80, Stats., inoperative." (R. at 20:9.)

¶ 14. The Thorps appealed. In an unpublished decision, the court of appeals affirmed in part and reversed in part the circuit court. The court of appeals affirmed the decision of the circuit court to dismiss the Thorps' takings claim. The court held that the Thorps' complaint failed to state a claim for a taking under either federal or state law. Thorp, No. 96-2449, unpublished slip op. at 11. The Thorps' complaint was flawed, the court determined, because it did "not provide a basis for concluding that the rezoning deprived the Thorps of all or substantially all practical uses of the property." Id.

¶ 15. Recognizing that the claims were brought under 42 U.S.C. § 1983, the court of appeals reversed the circuit court's dismissal of the Thorps' federal constitutional claims. Thorp, slip op. at 5-6, 13. Since the claims were grounded in the federal constitution, the court concluded that they were not subject to the notice requirements in Wis. Stat. § 893.80(1). Id. at 7. The court remanded the case to the circuit court to reinstate the Thorps' deprivation of due process and equal protection claims. Id. at 13.

¶ 16. The Town and the County then filed motions for summary judgment. The County argued that because adequate state post-deprivation remedies existed, the Thorps could not assert their federal constitutional claims. The Town additionally argued...