Voss v. City of Middleton, No. 89-1519

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtSTEINMETZ; HEFFERNAN
PartiesRobert C. VOSS, Trustee, Plaintiff, City of Madison, a municipal corporation, Plaintiff-Appellant, v. CITY OF MIDDLETON, a municipal corporation, Defendant-Respondent-Petitioner.
Decision Date19 June 1991
Docket NumberNo. 89-1519

Page 625

470 N.W.2d 625
162 Wis.2d 737
Robert C. VOSS, Trustee, Plaintiff,
City of Madison, a municipal corporation, Plaintiff-Appellant,
v.
CITY OF MIDDLETON, a municipal corporation,
Defendant-Respondent-Petitioner.
No. 89-1519.
Supreme Court of Wisconsin.
Argued March 26, 1991.
Decided June 19, 1991.

Page 626

[162 Wis.2d 742] Lawrence E. Bechler, argued and Jenswold, Studt, Hanson, Clark & Kaufmann, Madison, for defendant-respondent-petitioner.

James M. Voss, Asst. City Atty., argued, with whom on the brief was Henry A. Gempeler, City Atty., for plaintiff-appellant.

STEINMETZ, Justice.

The dispositive issue in this case is whether the city of Madison (Madison) or Robert C. Voss (Voss) is an "abutting" owner of land in relation to a portion of a street proposed to be discontinued by the city of Middleton (Middleton) within the meaning of [162 Wis.2d 743] sec. 66.296(2)(c), Stats. 1 If and

Page 627

only if so, then one or the other can veto the vacation. 2

The circuit court for Dane county, Judge James C. Boll, determined that the dispositive issue was whether the plaintiffs were "abutting" landowners in relation to a street under sec. 66.296(2)(c), Stats. The trial court considered "abutting" to be unclear and ambiguous in this context. After analyzing the statute, the court determined that "abutting" requires having present access to a street or a reasonable expectation thereof. Finding that Madison and Voss had neither, the trial court granted summary judgment in favor of Middleton. Madison appealed.

The court of appeals 3 agreed that the dispositive issue was whether the plaintiffs were owners of property "abutting" a street within the meaning of sec. 66.296(2)(c), Stats. However, the court of appeals determined that the statute was clear and unambiguous and, relying upon Royal Transit, Inc. v. West Milwaukee, 266 Wis. 271, 63 N.W.2d 62 (1954), proceeded to conclude [162 Wis.2d 744] that Madison and Voss, either or both of them, were "abutting" owners insofar as their land touched Middleton Street. Reversing the trial court, the court of appeals held that as "abutting" owners the plaintiffs had a right to veto Middleton's vacation of the end of Middleton Street in Middleton. Middleton, pursuant to sec. 808.10, appealed to this court.

This case arises out of claims by Madison and Voss, who, as owners of property located entirely in Madison, assert that according to sec. 66.296(2)(c), Stats., they can veto Middleton's vacation of a portion of Middleton Street, which lies in a residential area entirely within Middleton. The portion of Middleton Street in issue comes to a dead-end at the east-west line defining the border between Madison and Middleton. Some yards west of this area is the east edge of Stricker's Pond, part of a Middleton nature conservancy considered by some to constitute a very fragile ecosystem. Middleton erected and continuously maintained a barricade at the dead-end since 1970, when it constructed the portion of Middleton Street in question. The land on the Madison side of the border was unimproved and dedicated to agricultural uses until recent years.

Prior to 1983, Voss, as trustee for the owners of much of the land within the plat, submitted a number of preliminary plats of the land for Madison's approval pursuant to sec. 236.11(1)(a), Stats. 4 These plats showed [162 Wis.2d 745] various street layouts connecting Gammon Road in Madison to the end of Middleton Street at the border. Although the municipalities had not formally agreed to a system of information sharing as to proposed developments near their common border, this apparently took place in a context in which an informal system was established between the parties and used by them.

In 1983, Voss submitted another preliminary plat for the same lands showing Middleton Street terminating in a cul-de-sac, only the "bulb" of which was located south of the border. This layout was furnished to Middleton by Madison and was acceptable to Middleton. However, Madison never formally approved the plat, and the area remained undeveloped.

In 1986, Voss submitted another preliminary plat for the same lands showing a street design directly connecting Gammon

Page 628

Road to the end of Middleton Street at the border. The land immediately to the east of the proposed connecting street, extending from the border southward into the proposed subdivision, was owned by Voss. Madison owned the land immediately to the west of the proposed street. The revised plat and street layout were never transmitted to Middleton officials. The plat was conditionally approved by Madison in July 1986. After Middleton officials learned of the changes to the plat and its preliminary approval, they attempted to participate in the final approval proceedings, but these attempts were rebuffed by Madison. For his part, Voss indicated that he was unwilling to modify the plat layout, and that he expected final plat approval in the form submitted. He also threatened to take legal action [162 Wis.2d 746] against Madison if the final plat was not approved as submitted.

Middleton Street in Middleton has long been a local street with very low traffic volumes. The Dane County Regional Planning Commission estimated the traffic on Middleton Street would increase up to twenty-fold from its previous level if connected to Madison's street. Middleton's staff estimated that its taxpayers would have to pay an estimated $50,000 to improve Middleton Street to handle the traffic that Madison traffic would generate if the streets were joined.

On March 31, 1987, Voss's plat still had not been finalized. On that same date, pursuant to sec. 66.296(2)(a), Stats., the Middleton common council introduced a resolution to vacate the southernmost ten feet of Middleton Street, replacing the dead-end at the border with a cul-de-sac entirely within Middleton. A date was set for a public hearing and final action on the resolution. Pursuant to the statute, notice of the hearing on the resolution was given to owners of all property touching the south portion of Middleton Street within Middleton. Informally, Madison, including its city attorney, and Voss were also furnished information on the proposal.

On April 6, 1987, Voss finalized his subdivision plat by recording it with the Dane County Register of Deeds. As perfected, the plat subdivided the lands within Madison and provided for a through street purporting to connect with Middleton Street at the border. At this time, no street of any kind was in existence in the subdivided area on the Madison side of the border.

Prior to the hearing on Middleton's proposal to vacate the southern tip of Middleton Street, Madison and Voss filed written objections to the proposal, purportedly pursuant to sec. 66.296(2)(c), Stats. The hearing[162 Wis.2d 747] took place on May 19, 1987. Following the hearing, the Middleton common council adopted the resolution vacating the street, and Middleton removed ten feet of pavement extending north into Middleton from the border, leaving in place the barricade itself.

Madison and Voss then commenced a declaratory judgment action challenging the vacation. Madison moved for summary judgment. At that time, the platted lands were still unimproved and no street directly relevant to this case yet existed south of the border. The street Madison intended to link Gammon Road in Madison with Middleton Street in Middleton was constructed a month or so later and designated "Middleton Street" in Madison. Today, the subdivision is for all intents and purposes fully developed.

During the pendency of the motion, affidavits were filed in support of Middleton's position by a number of residents of the developing subdivision in Madison platted by Voss. These Madison residents indicated 100 percent opposition to their city's insistence on pursuing connection of "Middleton Street" in Madison with Middleton Street in Middleton. The same is essentially the case for those landowners in Middleton who are "abutting" on Middleton Street.

There is a standard methodology which a trial court follows when faced with a motion for summary judgment. Green Spring Farms v. Kersten, 136 Wis.2d 304, 315, 401 N.W.2d 816 (1987), citing Grams v. Boss, 97 Wis.2d 332, 338, 294 N.W.2d 473 (1980). The first step of that methodology requires the court to examine the pleadings to determine whether a claim for relief has

Page 629

been stated and a material issue of fact presented. Id., 97 Wis.2d at 338, 294 N.W.2d 473. If a claim for relief has been stated, the inquiry then shifts to the moving party's affidavits or [162 Wis.2d 748] other proof to determine whether the moving party has made a prima facie case for summary judgment under sec. 802.08, Stats. Id. To make a prima facie case for summary judgment, a moving defendant must show a defense which would defeat the plaintiff. Id. If the moving party has made a prima facie case for summary judgment, the court must examine the affidavits and other proof of the opposing party to determine whether there exist disputed material facts or undisputed material facts from which reasonable alternative inferences may be drawn sufficient to entitle the opposing party to a trial. Id. Under sec. 802.08(2), summary judgment must be entered " 'if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.' " Kersten, 136 Wis.2d at 315, 401 N.W.2d 816.

When reviewing the grant of a summary judgment motion, this court is required to apply the standards set forth in sec. 802.08, Stats., just as the trial court was to apply those standards. Id. When testing the sufficiency of a complaint, the court takes all facts pleaded by the plaintiff and all inferences which can reasonably be derived from those facts as true. Id. at 317, 401...

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128 practice notes
  • Trinity Evangelical v. Tower Ins. Co., No. 01-1201.
    • United States
    • United States State Supreme Court of Wisconsin
    • May 23, 2003
    ...the appellate court applies the same standards set forth in Wis. Stat. § 802.08 as the circuit court applies. Voss v. City of Middleton, 162 Wis. 2d 737, 748, 470 N.W.2d 625 ¶ 26. It is argued by Tower and by Trinity that when reviewing a circuit court's decision regarding a punitive damage......
  • City of Edgerton v. General Cas. Co. of Wisconsin, No. 91-1408
    • United States
    • United States State Supreme Court of Wisconsin
    • June 16, 1994
    ...motion by applying the standards set forth in sec. 802.08, Stats., just as the circuit court is to apply them. Voss v. City of Middleton, 162 Wis.2d 737, 748, 470 N.W.2d 625 (1991) (citing Green Spring Farms v. Kersten, 136 Wis.2d 304, 315, 401 N.W.2d 816 DUTY TO DEFEND Every insurance agre......
  • Columbus Park Housing v. Kenosha, No. 02-0699.
    • United States
    • United States State Supreme Court of Wisconsin
    • November 19, 2003
    ...Park. We review the grant of summary judgment de novo, applying the same standards as the circuit court. Voss v. City of Middleton, 162 Wis. 2d 737, 748, 470 N.W.2d 625 (1991). This court reverses a grant of summary judgment if it was based on an incorrect interpretation of a legal issue. S......
  • L.L.N. v. Clauder, No. 95-2084
    • United States
    • United States State Supreme Court of Wisconsin
    • May 23, 1997
    ...manner the circuit court applies them. See, e.g., Kafka v. Pope, 194 Wis.2d 234, 240, 533 N.W.2d 491 (1995); Voss v. City of Middleton, 162 Wis.2d 737, 748, 470 N.W.2d 625 (1991). Specifically, a court first examines the pleadings to determine whether a claim for relief is stated and whethe......
  • Request a trial to view additional results
128 cases
  • Trinity Evangelical v. Tower Ins. Co., No. 01-1201.
    • United States
    • United States State Supreme Court of Wisconsin
    • May 23, 2003
    ...the appellate court applies the same standards set forth in Wis. Stat. § 802.08 as the circuit court applies. Voss v. City of Middleton, 162 Wis. 2d 737, 748, 470 N.W.2d 625 ¶ 26. It is argued by Tower and by Trinity that when reviewing a circuit court's decision regarding a punitive damage......
  • City of Edgerton v. General Cas. Co. of Wisconsin, No. 91-1408
    • United States
    • United States State Supreme Court of Wisconsin
    • June 16, 1994
    ...motion by applying the standards set forth in sec. 802.08, Stats., just as the circuit court is to apply them. Voss v. City of Middleton, 162 Wis.2d 737, 748, 470 N.W.2d 625 (1991) (citing Green Spring Farms v. Kersten, 136 Wis.2d 304, 315, 401 N.W.2d 816 DUTY TO DEFEND Every insurance agre......
  • Columbus Park Housing v. Kenosha, No. 02-0699.
    • United States
    • United States State Supreme Court of Wisconsin
    • November 19, 2003
    ...Park. We review the grant of summary judgment de novo, applying the same standards as the circuit court. Voss v. City of Middleton, 162 Wis. 2d 737, 748, 470 N.W.2d 625 (1991). This court reverses a grant of summary judgment if it was based on an incorrect interpretation of a legal issue. S......
  • L.L.N. v. Clauder, No. 95-2084
    • United States
    • United States State Supreme Court of Wisconsin
    • May 23, 1997
    ...manner the circuit court applies them. See, e.g., Kafka v. Pope, 194 Wis.2d 234, 240, 533 N.W.2d 491 (1995); Voss v. City of Middleton, 162 Wis.2d 737, 748, 470 N.W.2d 625 (1991). Specifically, a court first examines the pleadings to determine whether a claim for relief is stated and whethe......
  • Request a trial to view additional results

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