Town of Beloit v. County of Rock, 00-1231.

• Citation: 259 Wis.2d 37,657 N.W.2d 344,2003 WI 8
• Decision Date: 04 March 2003
• Docket Number: No. 00-1231.,00-1231.
• Parties: TOWN OF BELOIT, Petitioner-Third-Party Defendant-Appellant, v. COUNTY OF ROCK, Respondent-Respondent, v. Belle ZYLA, Marvin Prothero, and Green-Rock Audubon Society, Intervenors-Third-Party Plaintiffs-Respondents-Petitioners.
• Court: United States State Supreme Court of Wisconsin

259 Wis.2d 37

2003 WI 8

657 N.W.2d 344

TOWN OF BELOIT, Petitioner-Third-Party Defendant-Appellant, v. COUNTY OF ROCK, Respondent-Respondent, v. Belle ZYLA, Marvin Prothero, and Green-Rock Audubon Society, Intervenors-Third-Party Plaintiffs-Respondents-Petitioners.

No. 00-1231.

Supreme Court of Wisconsin.

Oral argument September 10, 2002.

Decided March 4, 2003.

For the intervenors-third-party plaintiffs-respondents-petitioners there were briefs by Joseph R. Cincotta and Schweitzer & Cincotta LLP, Milwaukee, and oral argument by Joseph R. Cincotta.

For the respondent-respondent there was a brief and oral argument by Eugene R. Dumas, deputy corporation counsel.

For the petitioner-third-party defendant-appellant, there was a brief by Kenneth W. Forbeck and Forbeck, Elliott, Monahan & Schomber, S.C., Beloit, and oral argument by Kenneth W. Forbeck.

An amicus curiae brief was filed by Claire Silverman, Madison, on behalf of the League of Wisconsin Municipalities. An amicus curiae brief was filed by Carol B. Nawrocki, Shawano, on behalf of the Wisconsin Towns Association.

¶ 1. N. PATRICK CROOKS, J

Belle Zyla, Marvin Prothero, and the Green-Rock Audubon Society (Intervenors) petitioned for review of a court of appeals decision, which reversed and remanded the decision of the Circuit Court for Rock County, William D. Johnston, Circuit Court Judge. The court of appeals held that the Town of Beloit (town)¹ has the statutory authority to spend public tax monies to develop and sell property in the Heron Bay subdivision, and that the town's goals in developing the subdivision constitute legitimate and valid public purposes.²

¶ 2. We affirm the court of appeals decision. In Libertarian Party of Wisconsin v. State, 199 Wis. 2d 790, 809, 546 N.W.2d 424 (1996), this court held that creating jobs and enhancing the tax base were legitimate and valid reasons, along with others, for finding a legislative public purpose in the expenditure of public funds to build the Milwaukee Brewers' Miller Park. Accordingly, we hold that the combination of the town's enunciated goals of creating jobs, promoting orderly growth, increasing the tax base, and preserving and conserving an environmentally sensitive area for the benefit of the citizens of the town is a legitimate and valid public purpose under Wisconsin statutes, case law, and the United States and Wisconsin Constitutions. Def. Appellant Br. at 20.³

¶ 3. In 1999 the Town of Beloit commenced this action in the circuit court when it filed a petition for a writ of certiorari complaining that the respondent, County of Rock, lacked authority to impose certain conditions on the town's proposed subdivision plat.⁴ While this certiorari action was pending in the circuit court, Belle Zyla, Marvin Prothero, and the Green-Rock Audubon Society (Intervenors) filed a motion to intervene and a complaint for declaratory judgment, on the basis that the town exceeded its authority in both preparing and approving the subdivision plat and in developing the subdivision without a public purpose.

¶ 4. The town then filed a motion for summary judgment. In its brief in support of the motion and an attached affidavit, the town asserted that, prior to hiring its own engineering firm to plat the property, it sought proposals from private builders. However, the town found all submitted proposals to be unacceptable. Accordingly, the town argued, it was proper for the town to develop its own land as a means of increasing the town's tax base and controlling orderly expansion of the area. Additionally, by creating and enforcing a 300-foot conservation easement along the Rock River, the town asserted it was acting to protect and preserve an environmentally sensitive area. Finally, the town alleged that it acted properly in reviewing its own subdivision proposal because it complied with all of the requirements of Wis. Stat. ch. 236 (1999-2000)⁵ by submitting its proposal to all appropriate political bodies.

¶ 5. The Intervenors, including Rock County, filed briefs in opposition to the town's motion. The circuit court denied the town's motion for summary judgment against the Intervenors and instead issued summary judgment in favor of the Intervenors.

¶ 6. The court of appeals reversed the decision that granted summary judgment in favor of the Intervenors, and instead granted summary judgment against the Intervenors, and remanded the case for further proceedings. The court of appeals held that the town had statutory authority to develop and plat the Heron Bay Subdivision, and that the town's goals in developing Heron Bay constituted a public purpose.

¶ 7. The Intervenors sought review of the court of appeal's decision, regarding the public purpose doctrine. On January 29, 2002, this court accepted review.

¶ 8. The following are stipulated facts. The town currently owns a 20.4 acre parcel of land located in the Town of Beloit, Rock County, along the Rock River. The parcel is known as the "Heron Bay Lands." The Heron Bay Subdivision is a 20.4-acre parcel of property located in the SE 1/4 of the SW 1/4, Section 2, Town of Beloit, Rock County, and located between the Rock River and Walters Road (R. 29). The Heron Bay Lands have been open to and used by members of the public for recreation. ¶ 9. The history of this property prior to 1995 is incomplete. However, according to the record, early owners of this land used it for farming for 30-40 years (R. 39). The land was then purchased by the town and held, off and on, since the mid 1960s (R. 39).

¶ 10. The Caterpillar Company (Caterpillar) purchased the land owned by the town, along with additional parcels from individual property owners, for possible industrial development (R. 23). After encountering some economic problems, Caterpillar decided not to develop the property (R. 39). Thereafter, the town exercised its right to buy back the property and purchased approximately 210 acres from Caterpillar, including the lands originally owned by the town and additional private lands (R. 23). This property became known as the "Prairie Property." Fifty-five acres of the property were designated the "Heron Bay Lands," a portion of which is at issue in this case (R. 29).

¶ 11. In the 1980s, the town's attempt to sell the land to a Beloit businessman, who proposed developing fourteen lots on the then 55-acre parcel, failed (R. 39). Subsequent attempts to develop the land in 1990s were also unsuccessful (R. 39). From 1989 to 1995, the town worked with the Wisconsin Department of Natural Resources (DNR) after it had expressed an interest in purchasing a portion of this property (R. 23, 39). In order to grant the DNR's request to purchase the land, the town divided the property into two parcels (R. 23). The 37-acre parcel was zoned as a Conservancy District while the other 20.4-acre parcel was retained by the Town of Beloit (R. 29).⁶ The parcel that the town retained, which eventually became the Heron Bay Subdivision, was zoned as a Single Family Residential District in 1995 (R. 29). In October 1995, the 37-acre parcel was sold to the Department of Natural Resources for the preservation of rare species and to be maintained for public use (R. 23, 29). The town made it clear to the DNR and other interested parties that the 20.4-acre parcel was retained specifically for residential development. In fact, as part of the purchase agreement, the DNR agreed not to pursue purchase of the Heron Bay Subdivision and agreed not to oppose residential development (R. 24).

¶ 12. In 1997, after years of attempted development by private individuals, the town decided to develop the land known as the Heron Bay Subdivision. Initially, the town sought approval for its master plan by the Town Board of the Town of Beloit (Board). After several meetings, the town adopted the Master Plan. The town developed and distributed a Request for Proposal (RFP) to area builders as well as other builders, but did not garner significant interest or acceptable results (R. 24). The town reviewed the various proposals sought and submitted to develop the Heron Bay Subdivision (R. 24). The proposals were rejected because they either had not responded to the request, or the proposals were apparently unacceptable for various reasons (R. 24). As a result of this lack of interest and the inadequacy of the proposals, the town decided that the town would develop the site, agreeing that the town would benefit from the development (R. 24).

¶ 13. At a 1997 Town of Beloit Board of Supervisor's meeting, the town approved a "Master Plan" for the Heron Bay Lands, zoning it for single-family residential housing. At a subsequent meeting in December 1998, the town authorized and approved the expenditure of town tax revenues for planning and platting services to develop the land. The town authorized an engineering firm to produce a plan to develop the Heron Bay Lands into a thirty-six-lot, single-family residential subdivision and to submit the plan to the State of Wisconsin. The town also authorized the bidding of contracts necessary for engineering and construction of the infrastructure. It is the development by the town and sale of the remaining 20.4-acre parcel, known as the Heron Bay Subdivision, which is at issue in this case.

¶ 14. The town considered and approved a preliminary plat for the subdivision. The preliminary plat was forwarded to Rock County for its review and approval. After Rock County's initial review, the subdivision was reduced from thirty-six lots to twenty-four lots. Rock County then conditionally approved the twenty-four-lot preliminary plat subject to various conditions, including the 300-foot-wide environmental easement commencing on the bank of the Rock River and extending the entire eastern border of the property.⁷ ¶ 15. The town's Planning Commission then reviewed the preliminary plat. In December 1998, the town authorized its engineers to provide planning and platting services to create...