Vill. of Slinger v. Polk Props., LLC, No. 2017AP2244

• Court: United States State Supreme Court of Wisconsin
• Writing for the Court: REBECCA GRASSL BRADLEY, J.
• Citation: 2021 WI 29,957 N.W.2d 229,396 Wis.2d 342
• Decision Date: 01 April 2021
• Docket Number: No. 2017AP2244
• Parties: VILLAGE OF SLINGER, Plaintiff-Respondent, v. POLK PROPERTIES, LLC and Donald J. Thoma, Defendants-Third-Party Plaintiffs-Appellants-Petitioners, v. Russell Brandt, Rick Gundrum, Jeff Behrend, Lee Fredericks, John Dukelow, Richard Kohl, Dean Otte, Jessi Balcom and ABC Insurance Company, Third-Party Defendants.

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957 N.W.2d 229
2021 WI 29

VILLAGE OF SLINGER, Plaintiff-Respondent,
v.
POLK PROPERTIES, LLC and Donald J. Thoma, Defendants-Third-Party Plaintiffs-Appellants-Petitioners,
v.
Russell Brandt, Rick Gundrum, Jeff Behrend, Lee Fredericks, John Dukelow, Richard Kohl, Dean Otte, Jessi Balcom and ABC Insurance Company, Third-Party Defendants.

No. 2017AP2244

Supreme Court of Wisconsin.

Oral Argument: November 10, 2020
Opinion Filed: April 1, 2021

For the defendants-third-party-plaintiffs-appellants-petitioners, there were briefs filed by Colleen W. Jones, Terry J. Booth, and Rogahn Jones LLC, Waukesha. There was an oral argument by Terry J. Booth.

For the plaintiff-respondent, there was a brief filed by H. Stanley Riffle and Municipal Law & Litigation Group, S.C., Waukesha. There was an oral argument by H. Stanley Riffle.

REBECCA GRASSL BRADLEY, J., delivered the majority opinion of the Court, in which ROGGENSACK, C.J., ANN WALSH BRADLEY, DALLET, and KAROFSKY, JJ., joined. ZIEGLER, J., filed a concurring opinion.

REBECCA GRASSL BRADLEY, J.

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¶1 Polk Properties, LLC and its sole member, Donald J. Thoma (collectively, "Polk"¹ ), seek review of the court of appeals decision, which affirmed the circuit court's order requiring Polk to pay forfeitures for zoning violations, damages for the Village of Slinger's lost property tax revenue, and attorney's fees.² Whether these forfeitures, damages, and fees can be sustained depends upon whether Polk abandoned the legal nonconforming use of the property after its zoning classification was changed from agricultural to residential. Applying Wisconsin's two-part test for abandonment of a nonconforming use set forth in State ex rel. Schaetz v. Manders and State ex rel. Morehouse v. Hunt,³ we conclude that Polk did not abandon the lawful nonconforming use because it continued

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to use the property in the same manner in which it had been used before the zoning change. It is undisputed that the farmer who farmed the land before Polk acquired it continued to

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cut and remove vegetation on the property after Polk purchased it and after the rezoning. Because the agricultural use continued without cessation, Polk remained in compliance with the applicable zoning code provisions and Polk's use of the property constituted a lawful nonconforming use for which it cannot be penalized. Accordingly, we reverse the decision of the court of appeals and vacate the circuit court's order imposing forfeitures, its monetary judgment for real estate taxes, its order authorizing special assessments, special charges, and fees to be levied against Polk, and its order enjoining Polk from using the property for agricultural purposes. We remand to the circuit court for further proceedings consistent with this decision.

I

¶2 This case arises out of a long-term legal conflict between the Village of Slinger and Polk, including an earlier appearance in this court. See Thoma v. Village of Slinger, 2018 WI 45, 381 Wis. 2d 311, 912 N.W.2d 56.⁴ We recite only the background necessary in order to resolve the legal issue presented.

¶3 Polk's property comprises 82 acres of rural land located in the Village of Slinger, which the Melius family operated as a farm before Polk purchased the parcel in 2004.⁵ Polk worked with the Village of Slinger on his proposed plan to convert the farmland to a

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residential subdivision known as Pleasant Farm Estates, which would consist of three phases of development over the course of several years. In February 2007, the Village of Slinger approved Polk's planned residential subdivision development. Installation of the infrastructure for the development began in June 2007 and was completed in August 2008. Two of the lots in phase one of the project were sold and residential homes were constructed on those lots. Sales of additional lots stalled, however, due to the 2008 economic recession and the collapse of the real estate market.

¶4 Throughout the entire development project, Ronald Melius continued to farm the property by cutting and removing vegetation from the land.⁶ This

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continuous

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farming formed the basis for the Village of Slinger's lawsuit against Polk, in which the Village of Slinger sought an injunction from the circuit court ordering Polk to stop the agricultural use of the property. Melius' continued farming of the property is the particular conduct that led the circuit court to conclude Polk violated the residential zoning ordinance as well as the circuit court's order, for which that court found Polk in contempt. After many motions and multiple hearings, the circuit court granted summary judgment in favor of the Village of Slinger and ordered Polk to pay the Village of Slinger "daily forfeitures" because it "used or permitted use of the subject property for agricultural purposes continuously from before October 7, 2009, through August 21, 2017." Ultimately, the circuit court ordered Polk Properties, LLC to pay to the Village of Slinger $28,760, representing daily zoning violation forfeitures, as well as $48,953.26 in additional real estate taxes covering tax years 2009 to 2013. The circuit court additionally ordered Thoma to pay to the Village of Slinger $28,760, representing daily zoning violation forfeitures as well as $12,017 for additional real estate taxes covering tax years 2009 to 2013.

¶5 Polk appealed the circuit court's orders and the court of appeals affirmed. Relying on an opinion from the Rhode Island Supreme Court, Duffy v. Milder, 896 A.2d 27 (R.I. 2006), the court of appeals decided that Polk had abandoned its legal nonconforming use. Village of Slinger v. Polk Props., LLC, No. 2017AP2244, unpublished slip op., ¶20, 2019 WL 2997993 (Wis. Ct. App. July 10, 2019) (citing Duffy, 896 A.2d at 38-39 ). Polk petitioned this court for review, which we granted.

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II

¶6 We review the grant of summary judgment against Polk de novo. CED Props., LLC v. City of Oshkosh, 2018 WI 24, ¶17, 380 Wis. 2d 399, 909 N.W.2d 136 ("We independently review a grant of summary judgment using the same methodology of the circuit court and the court of appeals." (quoted source omitted)). Resolution of this dispute requires us to interpret and apply the Village of Slinger's ordinances, an issue of law we review de novo. Town of Rhine v. Bizzell, 2008 WI 76, ¶13, 311 Wis. 2d 1, 751 N.W.2d 780 ("The interpretation and application of an ordinance to an undisputed set of facts is a question of law, which this court decides de novo.") (quoted source omitted).

III

¶7 The issue in this case is whether Polk abandoned the nonconforming use of its property after the zoning classification was changed from agricultural to residential use. Polk maintains that the cutting and removing of the vegetation on the property was not abandoned after purchase, but in fact occurred continuously as part of the maintenance of the property. The Village of Slinger agrees that the farming occurred continuously, but argues that specific actions Polk took to convert the property into a residential subdivision constituted abandonment. Specifically, the Village of Slinger pinpoints Polk's request for the zoning change, the Subdivision Development Agreement for Pleasant Farm Estates ("the Development Agreement"), which limited the property to residential use,⁷ and the

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Declaration of Covenants,

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Conditions and Restrictions of Pleasant Farm Estates ("the Declaration") with residential restrictions executed and recorded by Polk.⁸

¶8 The court of appeals agreed that these specific acts by Polk constituted legal abandonment regardless of any farming still taking place on the property. Rather than relying on Wisconsin law, however, the court of appeals rested its determination on a single foreign case at odds with our own jurisprudence. Wisconsin law requires two elements for abandonment of a legal nonconforming use: (1) actual cessation of the nonconforming use and (2) an intent to abandon the nonconforming use. See Schaetz, 206 Wis. at 124, 238 N.W. 835 ; Morehouse, 235 Wis. at 369-70, 291 N.W. 745. Although Polk's specific acts may signify an intent to abandon the nonconforming use, the undisputed fact that Polk continued farming on the property confirms there was no actual cessation of the nonconforming use. Wisconsin's two-pronged abandonment test requires satisfaction of both factors; accordingly, the court of appeals erred in

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concluding Polk abandoned the nonconforming use, and we reverse its decision.⁹

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