2008 WI 51
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Supreme Court of |
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Case No.: |
2005AP2257 |
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Complete Title: |
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Walter J. Olson, Plaintiff-Appellant, v. Town of Defendant-Respondent-Petitioner. |
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REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at: 298 (Ct. App. 2007-Unpublished) |
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Opinion Filed: |
May 30, 2008 |
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Submitted on Briefs: |
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Oral Argument: |
November 6, 2007
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Source of Appeal: |
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Court: |
Circuit |
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County: |
Dane |
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Judge: |
Angela B. Bartell
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Justices: |
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Concurred: |
ABRAHAMSON, C.J., concurs (opinion filed). BRADLEY, J., joins concurrence. |
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Dissented: |
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Not Participating: |
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Attorneys: |
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For the defendant-respondent-petitioners there were briefs by Constance L. Anderson, Paul G. Kent, and Abigail C.S. Potts and Anderson & Kent, S.C., Madison, and oral argument was by Paul G. Kent.
For the plaintiff-appellant there was a brief by John A. Kassner III, Matthew D. Moeser and Murphy Desmond S.C., and oral argument by John A. Kassner III.
An amicus curiae brief was filed by Thomas D. Larson on behalf of Wisconsin REALTORS® Association.
2008 WI 51
notice
This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports.
REVIEW of a decision of the Court of Appeals. Affirmed and cause remanded.
¶1 DAVID T. PROSSER, J. This is a review of an
unpublished decision of the court of appeals,[1]
reversing a summary judgment issued by the
¶2 Olson is a real estate developer who owns 69.72 acres of land in
the Town of
¶3 The
circuit court granted the Town's motion for summary judgment on the basis that
Olson's suit for declaratory judgment was not ripe, and therefore not
justiciable. Olson appealed, and the
court of appeals reversed. Olson
v. Town of
¶4 We
are asked to address two questions: (1) What is the appropriate standard of
review for a circuit court's decision granting summary judgment in a
declaratory judgment suit on the basis that the suit is not ripe?; and (2) Is
Olson's suit ripe for declaratory judgment, and therefore justiciable?
¶5 We
determine that the appropriate standard of review in these circumstances is de
novo review. Applying this standard of
review to the record before us, we conclude that Olson's declaratory judgment
suit is ripe for adjudication, and therefore justiciable. Accordingly, we affirm the court of appeals
and remand for proceedings consistent with this opinion.
I. BACKGROUND
¶6 Since 1996 Olson has been the owner of a 69.72 acre parcel of land in the Town, commonly known as the Klosterman Farm (property). On December 27, 2001, Olson filed a zoning petition (No. 8357) with the County to rezone his property from A-1 EX Exclusive Agricultural to R-1 Residential in order to subdivide his property into 15 residential lots.
¶7 On June 7, 2002, Olson submitted a preliminary plat of his proposed subdivision development——Highlands Addition to American Heritage——to the Town pursuant to Wis. Stat. § 236.11(1)(a) (2001-02).[2]
¶8 On July 15, 2002, the Town amended its Land Division and Planning
Code to include § 15.15,
entitled "Transfer of Development Rights Program (TDR)." The ordinance's TDR program incorporates the
Land Use Element of the Town's Smart Growth Comprehensive Plan——2020. The TDR program was created to serve several
purposes, including allowing owners of farmland to capture a reasonable
development value for their land, preserving the farmland and rural
characteristics of the area, and directing new residential development toward
areas of existing development. Another
purpose of the program is to "maintain community separation between the
¶9 Under the TDR program, some land use districts are designated as "sending areas" and others as "receiving areas." Sending areas include land designated as agricultural or open space/park districts. Receiving areas include residential districts, which are designated as a "Conservation Residential District," a "Medium Density Residential District," or a "High Density Residential District" to reflect their intended density and use. Using these classifications, the TDR program creates an additional step for receiving area landowners who seek to develop their property.
¶10 Persons hoping to develop property in a receiving area must acquire a requisite number of transfer development rights (TDRs), which amount to ownership interests in sending area property. Under the TDR program, owners of land in sending areas may sell their TDRs to owners of land in receiving areas. A TDR easement is then established by a deed entered into among the developer, the Town, and the County. Through these easements, land interests from sending areas are "sent" to receiving areas to make up for the subsequent increase in density due to residential development in receiving areas. Hence, the ordinance sets forth procedures to assure that rezoning and division of land in a receiving area is not approved without first obtaining the requisite number of TDRs and recording a TDR easement.
¶11 Under the TDR program enacted by the Town in July 2002, Olson's property falls within a Medium Density Residential District receiving area and is zoned A-1 EX Exclusive Agricultural, which precludes residential development.
¶12 On October 28, 2002, Olson filed a second, separate zoning petition (No. 8598) with the County and requested to increase the number of proposed lots from 15 to 58 while still seeking to rezone the property from A-1 EX Exclusive Agricultural to R-1 Residential.
¶13 On January 14, 2003, the
¶14 On September 19, 2003, Olson submitted a final plat application for the Highlands Addition to American Heritage. The Town conditionally approved this final plat at a Town Board meeting on November 3, 2003. The Town's approval of the plat was subject to the requirement that Olson acquire 10 TDRs and transfer them to the Town and County to comply with § 15.15.
¶15 Olson did not then own, and claimed that he was unable to acquire, the 10 TDRs necessary to satisfy the ordinance. Olson claimed that to acquire 10 TDRs would require the purchase of 350 acres of farmland in a sending area at a cost of approximately $750,000. Olson also claimed that to finish his redevelopment project would require the total acquisition of 700 acres of farmland.
¶16 On January 20, 2004, the
¶17 On February 5, 2004, the
MOTIONS FROM PREVIOUS
MEETINGS
The question before the Board was Supervisor Wiganowsky's motion at the last County Board meeting to rescind action on Zoning Petition 8832——Town of Sun Prairie. Motion carried. Moved by Supervisor Wiganowsky, seconded by Supervisor Wendt, to refer Petition 8832 to the Zoning & Natural Resources Committee. Motion carried.
The question before the Board was Supervisor Hulsey's motion at the last County Board meeting to rescind action on Zoning Petition 8598——Town of Cottage Grove. Motion carried. Moved by Supervisor Hulsey, seconded by Supervisor O'Loughlin, to extend for one year the delayed effective date. Motion carried. (Emphasis added.)[3]
¶18 On September 13, 2004, Olson filed the instant declaratory judgment action against the Town to challenge the validity of § 15.15. Olson's complaint alleged that § 15.15 was enacted without statutory authority, violated several provisions of the Wisconsin Statutes, was applied to his property ex post facto, and constituted an uncompensated taking under the Fifth and Fourteenth Amendments to the United States Constitution and Article 1, Section 13 of the Wisconsin Constitution.[4] Olson's complaint sought the following relief: (1) a declaration that § 15.15 is void and of no effect; (2) an order directing the Town to immediately approve Olson's plat of the Highlands Addition to American Heritage; and (3) supplemental relief in the form of just compensation for the temporary taking of Olson's land.
¶19 On April 11, 2005, the Town filed a motion for summary judgment, asking that Olson's case be dismissed with prejudice for lack of justiciability. The Town's motion argued that Olson could not pursue declaratory relief with regard to the ordinance because his case was not ripe for adjudication, and therefore not justiciable.
¶20 On July 21, 2005, the circuit court granted the Town's motion for summary judgment. In a 16-page decision, the court determined that Olson's declaratory judgment action was not ripe for adjudication, and therefore not justiciable. The court held that "[b]ecause there are no material facts in dispute and the Town has provided a defense that defeats Olson's claim as a matter of law, summary judgment is granted to the Town."
¶21 The circuit court granted summary judgment because it determined
that the controversy between Olson and the Town was not justiciable. Therefore, the court had no jurisdiction over
Olson's claim for declaratory relief.
The court cited Loy v. Bunderson, 107
(1) A controversy in which a claim of right is asserted against one who has an interest in contesting it. (2) The controversy must be between persons whose interests are adverse. (3) The party seeking declaratory relief must have a legal interest in the controversy——that is to say, a legally protectible interest. (4) The issue involved in the controversy must be ripe for judicial determination.
Only the fourth factor, ripeness, was disputed by the parties; therefore, the court found no need to address the first three factors.
¶22 The circuit court held that the Town had demonstrated, and Olson failed to rebut, a prima facie showing that Olson's action for declaratory judgment was not ripe based on the fact that "the County's conditional rezoning approval had been rescinded at the time Olson filed" his declaratory judgment suit on September 30, 2004. The ordinance itself was "of no consequence" because Olson had not submitted a new petition for rezoning with the County after the delayed effective date for conditional approval of zoning petition No. 8598 had expired. The circuit court stated:
At the time Olson filed the current action, he had lost
the conditional zoning approval on his petition for rezoning. Thus, Olson stands in no different position
than any other owner of land zoned A-1 EX Exclusive Agricultural in the Town of
The circuit court added:
Thus, this court's ruling on the validity of § 15.15 would not "affect legal relations" between Olson and the Town. . . . The court would essentially be saying, "If Olson gets approval from the County to rezone his land from agricultural to residential, then § 15.15 should/should not bar the Town's approval of his plat." Since there is no guarantee that the [County] Board will authorize the rezoning of Olson's land in the future and Olson does not have a vested or inherent right [to] have his property rezoned, this court's opinion as to the validity of § 15.15 is immature.
. . . .
Because Olson has failed to secure the necessary approvals to rezone his land, a declaration of the validity of § 15.15 will not have an immediate impact on Olson, and its future impact is too contingent to satisfy the ripeness element of justiciability.
Finally, the court concluded that Olson "ha[d] not demonstrated . . . any genuine issues of material fact that entitle[d] him to a trial." Therefore, the circuit court granted summary judgment to the Town.
¶23 Olson appealed, and the court of appeals reversed. Olson, No. 2005AP2257, unpublished slip. op., ¶25.
¶24 The court of appeals addressed the standard of review. It said the standard to review the circuit
court's decision was de novo because the circuit court's decision hinged upon a
question of law, namely ripeness. Id.,
¶8 (citing Commercial
Union Midwest Ins. Co. v. Vorbeck, 2004 WI App 11, ¶7, 269 Wis. 2d 204, 674 N.W.2d 665). The court of appeals acknowledged that
"[a] circuit court's decision to grant or deny declaratory relief is
within its discretion." Id.
(citing Milwaukee Dist. Council 48 v. Milwaukee County, 2001 WI 65, ¶36, 244 Wis. 2d 333, 627 N.W.2d 866). Nonetheless, the court of appeals concluded
that de novo review was appropriate because a circuit court's decision to grant
summary judgment is reviewed de novo.
¶25 The court of appeals next addressed whether Olson's declaratory
judgment action was ripe. In concluding
that Olson's claim was ripe for adjudication, and therefore justiciable, the
court of appeals held that "the possibility that the Town will apply the land
division ordinance to Olson" was "real, precise, and
immediate."
¶26 The Town petitioned this court for review, which we granted on April 17, 2007.
II. ANALYSIS
¶27 This case presents a complex standard of review issue and a
relatively simple substantive issue under
(1) Scope. Courts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect; and such declarations shall have the force and effect of a final judgment or decree. . . .
(2) Power to construe, etc. Any person interested . . . whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract or franchise and obtain a declaration of rights, status or other legal relations thereunder. No party shall be denied the right to have declared the validity of any statute or municipal ordinance by virtue of the fact that the party holds a license or permit under such statutes or ordinances.
. . . .
(6) Discretionary. The court may refuse to render or enter a declaratory judgment or decree where such judgment or decree, if rendered or entered, would not terminate the uncertainty or controversy giving rise to the proceeding.
(7) Review. All orders, judgments and decrees under this section may be reviewed as other orders, judgments and decrees.
. . . .
(12) Construction. This section is declared to be remedial; its purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights, status and other legal relations; and is to be liberally construed and administered.
¶28 A court must be presented with a justiciable controversy before it
may exercise its jurisdiction over a claim for declaratory judgment. This is so because the purpose of the Act is
to allow courts to anticipate and resolve identifiable, certain disputes
between adverse parties. Putnam,
255
¶29 The leading
(1) A controversy in which a claim of right is asserted against one who has an interest in contesting it.
(2) The controversy must be between persons whose interests are adverse.
(3) The party seeking declaratory relief must have a legal interest in the controversy——that is to say, a legally protectible interest.
(4) The issue involved in the controversy must be ripe for judicial determination.
¶30 Only factor (4), ripeness, is at issue here. The circuit court
determined that Olson's suit challenging the validity of § 15.15 was not ripe for
adjudication, and therefore not justiciable.
The court of appeals reversed, applying a de novo standard of review
because: (1) the circuit court's decision hinged on a question of law; and (2)
the procedural posture of the case was review of a grant of summary judgment by
the circuit court. Olson,
No. 2005AP2257, unpublished slip. op., ¶¶8-9.
¶31 Before we can evaluate the circuit court's decision to grant summary judgment to the Town, we must establish the appropriate standard to review a grant of summary judgment when declaratory relief is sought and the underlying claim is determined to be unripe, and therefore not justiciable.
A. Standard of Review
¶32 The standard of review issue in this case is complicated by the
fact that ripeness is a necessary prerequisite to reaching the merits of and
entertaining a declaratory judgment action.
See Putnam, 255
¶33 The language of the Act is instructive. The Act states that "[a]ll orders,
judgments and decrees under this section may be reviewed as other orders,
judgments and decrees."
¶34 In this appeal, we examine a circuit court's decision granting
summary judgment, which is subject to de novo review. Green Spring Farms, 136
¶35 Review of a declaratory judgment is different. We have stated the standard of review for a declaratory judgment as follows:
A decision to grant or deny declaratory relief falls within the discretion of the circuit court. The circuit court's decision to grant [or deny] declaratory relief will not be overturned unless the circuit court erroneously exercised its discretion. This court will uphold a discretionary act if the circuit court "examined the relevant facts, applied a proper standard of law, and, using a demonstrated rational process, reached a conclusion that a reasonable judge could reach."
Putnam, 255
¶36 The language of the Act indicates a discretionary standard to grant
or deny declaratory relief. Wisconsin
Stat. §806.04(6) reads:
"(6) Discretionary. The
court may refuse to render or enter a declaratory judgment or decree where such
judgment or decree, if rendered or entered, would not terminate the uncertainty
or controversy giving rise to the proceeding." (Emphasis added.)
¶37 A ripeness determination, on the other hand, is a legal conclusion and therefore reviewed as a question of law. The Town argues that the question we must ask regarding ripeness should be: "How ripe is ripe enough?" This question implies circuit court discretion to determine whether a case is timely based upon a continuum of ripe outcomes.[7] We disagree that this is the question courts must ask because ripeness should not be conceptualized as a sliding scale of possibilities. The proper question is simply: "Is the action ripe?" This question requires the circuit court to make a legal conclusion——"ripe" or "not ripe"——based upon the facts at hand and the standards set forth by the Act and our precedents.
¶38 We find support for our conclusion that de novo review is the
proper standard to review a ripeness determination in cases from other
jurisdictions. The Pennsylvania Supreme
Court, reviewing the dismissal of a declaratory judgment suit, recently stated:
"We regard the matter of whether a proceeding is ripe as a question of
law, as to which our standard of review is de novo, and our scope of review is
plenary." Twp. of Derry v.
¶39 Whether we focus our analysis on the circuit court's ultimate decision——to grant summary judgment to the Town——or on the legal predicate for that decision——the determination that Olson's case was not ripe, and therefore not justiciable——our standard of review is the same, de novo. See Miller Brands-Milwaukee, 162 Wis.2d at 693-94. However, we find it more appropriate to base our holding on the circuit court's ripeness determination because it is the narrowest indicator of the circuit court's reasoning to grant summary judgment to the Town. Therefore, we review the circuit court's legal conclusion that Olson's cause of action was not ripe, and therefore not justiciable, de novo.
B. Ripeness
¶40 We now address whether the circuit court properly granted the Town's motion for summary judgment because it determined that Olson's suit for declaratory judgment was not ripe, and therefore not justiciable.
¶41 We agree with the court of appeals' assessment that "[t]he
nature of this controversy is precisely the type to be resolved by a
declaratory judgment." Olson,
No. 2005AP2257, unpublished slip. op., ¶15
(citing Weber v. Town of Lincoln, 159
Any person interested . . . whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract or franchise and obtain a declaration of rights, status or other legal relations thereunder.
Wis. Stat. § 806.04(2) (emphasis added).
¶42 The Act is to be liberally construed and administered to achieve a remedial
purpose.
¶43 We have previously commented on the legal question of ripeness in
the declaratory judgment context. By
definition, the ripeness required in declaratory judgment actions is different
from the ripeness required in other actions.
Putnam, 255
¶44 Olson brought this declaratory judgment action to determine the
validity of § 15.15,
which created the TDR provisions of the Town's Land Division and Planning
Code. He argues that the ordinance
impacts him and that his cause is ripe because he seeks to acquire rezoning of
his property, located in a "receiving area" under § 15.15, so that he can
subdivide and develop it. The County
conditioned rezoning approval upon Olson acquiring final plat approval from the
Town within one year of the County's conditional rezoning approval. The Town then conditioned final plat approval
upon Olson acquiring 10 TDRs and transferring them to the Town and County, to
comply with § 15.15. Olson alleges that compliance with the TDR
provisions of § 15.15
would come at an expense he cannot afford.
Olson advances several legal theories to challenge the validity of § 15.15.[9]
Specifically, Olson's complaint alleges that: (1) the ordinance imposes an
illegal exaction upon land division as a final condition of plat approval
without statutory authorization in Wis. Stat. ch. 236; (2) the ordinance
constitutes an unlawful impact fee under Wis. Stat. § 66.0617; (3) the Town
lacked the County's authorization or approval to adopt the ordinance pursuant
to Wis. Stat. § 60.62(3); (4) the Town's application of the ordinance
constituted an uncompensated taking in violation of the Fifth and Fourteenth
Amendments to the United States Constitution and Article 1, Section 13 of the
Wisconsin Constitution; (5) the Town's ex post facto application of the
ordinance to Olson's property violated his rights to substantive and procedural
due process pursuant to the Fifth and Fourteenth Amendments to the United
States Constitution and Article 1, Section 1 of the Wisconsin Constitution; and
(6) the ordinance amounts to a public taking of private property for a private
purpose, in violation of the Fifth and Fourteenth Amendments to the United
States Constitution and Article 1, Section 13 of the Wisconsin
Constitution. Olson asserts that these
allegations and the facts of his case meet the standard for ripeness under Wis.
Stat. § 806.04 and
the
¶45 The Town insists that Olson's suit is not ripe, and therefore not justiciable. It asserts that Olson's interests, if any, are too contingent and uncertain to be ripe. The Town contends that Olson's interest in rezoning is a "future contingent interest," which is not sufficient for purposes of the Act. The Town asserts that since the property in question has not yet been rezoned, Olson has no vested interest in developing his property because "the ordinance imposes no obligations on Olson unless and until the County changes the zoning from agricultural to residential." Furthermore, the Town contends, the conditional zoning change granted by the County has expired, so that Olson is now no different from any other landowner in the Town that may pursue development in the future. The Town notes that even if § 15.15 were applied to Olson, there is no factual evidence in the record that compliance with § 15.15 would come at any great expense to Olson.
¶46 The Town also argues, but cites no authority, that Olson's case is now moot because "development conditions in Dane County [are] changing" and because the Town's TDR ordinance has been amended twice since 2002, most recently on May 7, 2007.
¶47 We agree with Olson and conclude that, under the facts of record, Olson's claim for declaratory relief is ripe, and therefore justiciable. In support of this conclusion, we must clear up a factual dispute in the record, which the court of appeals chose not to address.[10]
¶48 As noted above, the parties disagree over whether Olson's second
zoning petition was rescinded at a
The question before the Board was Supervisor Hulsey's motion at the last County Board meeting to rescind action on Zoning Petition 8598——Town of Cottage Grove. Motion carried. Moved by Supervisor Hulsey, seconded by Supervisor O'Loughlin, to extend for one year the delayed effective date. Motion carried.
Proceedings of the Dane
¶49 The circuit court reasoned that the underlined portion of this
excerpt indicates that Olson's second zoning petition, No. 8598, was rescinded
by the
¶50 In this case, the circuit court correctly ascertained that Olson's
second zoning petition was rescinded by the
¶51 The history of Olson's second petition is clear. The minutes of the
PETITION 8598——ZONING CHANGE IN THE TOWN OF COTTAGE GROVE——ZONING ORD. AMDT. 8598
Petition 8598 by Walter J.
Olson to change the zoning from A-1 EX Exclusive Agricultural district to the
R-1 Residential district on property located north, east, and south of 4500 and
4506 Kennedy Road in part of the SW 1/4 SE 1/4, Section 3, and NW 1/4 NE 1/4,
Section 10——Town of Cottage
Grove.
The Zoning & Natural Resources Committee recommends that
Petition 8598 be granted as modified, including the [c]ondition below, and
includes the condition that an approved plat be recorded within one year, and
Zoning Ord. Amdt. 8598 be adopted.
Motion carried.
Condition:
1. That the applicant
withdraw petition 8357 as a condition of approval of petition 8598.
¶52 On
January 20, 2004, Norbert Scribner of the Land Division Review Department of
the
¶53 On
January 22, 2004, Supervisor Hulsey moved to "rescind action on Zoning
Petition 8598-Town of
¶54 On
February 5, 2004, the
¶55 The
County Board's action implies that it voted to give Olson an additional year to
record the plat. Such an action would
have been consistent with the helpful reminder from the
¶56 The
legislative jargon at play is contained in the Dane County Board Rules for the
2002-2004 term. Rule 7.65 reads, in its
entirety:
7.65 COUNTY BOARD MEETINGS; RECONSIDERATION AND RESCISSION.
(1) The motion to reconsider any action may be made only by a supervisor who voted with the prevailing side, and it must be seconded.
(2) A motion to reconsider shall be made on the day the action to be reconsidered took place and the clerk shall record the motion in the minutes.
(3) The motion to reconsider shall then become an item of business on the calendar of the next meeting of the board under the heading "Motions to reconsider," unless the motion is acted on, on the day made, by suspension of the rules.
(4) A member shall not be allowed to speak more than once on a motion for reconsideration, for not more than 5 minutes.
(5) The rule that a motion to reconsider shall become an item of business at the next meeting of the board shall not apply to a motion to reconsider action taken on an amendment to a measure pending before the board at that time, only to the main measure an amendment is supposed to amend.
(6) If the matter to be reconsidered is of such a nature that it requires final immediate action, the motion to reconsider shall be taken up immediately.
(7) A motion to rescind an action may be made by any member at any time but such motion requires the support of the majority of all supervisors elected, provided, however, that such rescission will not be inconsistent with actions that have been commenced because of the action to be rescinded and will not result in consequences inimical to the interests of the public or the county.
¶57 Rule
7.65 provides for reconsiderations and rescissions. "A motion to reconsider shall be made on
the day the action to be reconsidered took place and the clerk shall record
the motion in the minutes."
(Emphasis added.) "The
motion to reconsider shall then become an item of business on the calendar of
the next meeting of the board." By
contrast, motions to rescind an "action" may be made "at any
time" with certain conditions. In
other words, a motion to rescind is effectively a motion to reconsider an
"action," but it is a motion to "reconsider" made on a day
sometime after the day when the "action" to be reconsidered took
place. Repealing or amending an ordinance
is not a matter covered by this rule.
¶58 Under
the Dane County Board Rules, rescinding an "action" on, say, a
petition, reopens consideration of that petition. It does not kill the petition. A follow-up motion is likely to show a new
disposition of the "action" on the petition. Thus, on February 5, 2004, we see immediately
above Supervisor Hulsey's motion the following:
The question before the Board was Supervisor Wiganowsky's motion at the last County Board meeting to rescind action on Zoning Petition 8832——Town of Sun Prairie. Motion carried. Moved by Supervisor Wiganowsky, seconded by Supervisor Wendt, to refer Petition 8832 to the Zoning & Natural Resources Committee. Motion carried.
Proceedings of the Dane
¶59 Clearly, Supervisor Wiganowsky's second motion effects a different disposition of a petition than Supervisor Hulsey's second motion did.
¶60 In State ex rel. La Follette v. Stitt, 114 Wis. 2d 358, 338
N.W.2d 684 (1983), this court considered an original action for a declaratory
judgment that "the State of Wisconsin Operating Notes of 1983 when issued,
sold and delivered in the manner provided by the Authorizing Resolution issued
by the State Building Commission . . . will be valid
enforceable contractual obligations of the State of Wisconsin."
¶61 The same principle applies in this case. Here, the circuit court concluded, in
essence, that the
¶62 The circuit court simply misinterpreted the
¶63 This
fact is important because it demonstrates that Olson, possessing conditional
rezoning approval from the County, was subject to compliance with § 15.15
when he filed his suit on September 30, 2004.
This is so because Olson was required to file a final plat with the Town
to receive ultimate rezoning approval from the County, and the Town required
Olson to first comply with § 15.15 by acquiring 10 TDRs before it would
allow him to file his final plat.
Therefore, Olson's efforts to rezone, subdivide, and develop his
property were directly impacted by application of the ordinance when he filed
his suit.
¶64 We
note that Olson's interest, and the impact of the ordinance on him
individually, differs from the interest of any receiving area landowner in the
Town who had not yet put the wheels in motion to secure conditional rezoning and
plat approval from the County and Town.
The Town characterizes Olson's interest in rezoning his property as a
"future contingent interest," but this label ignores the fact that
Olson received conditional rezoning approval from the County and conditional
plat approval from the Town, both of which distinguish him from a receiving
area landowner who had no interest in seeking to rezone his property for
purposes of development. As both the
Town and Olson recognized in their briefs, "ripeness is peculiarly a
question of timing." Reg'l Rail
Reorganization Act Cases, 419
¶65 We
disagree with the Town's assertion that Olson's declaratory judgment suit is
untimely because it is premised upon a "future" zoning change. It is undisputed that Olson has not yet been
granted final rezoning of his property.
Clearly, if final rezoning were granted, Olson's development project
would be subject to the ordinance, as his property lies in a "receiving
area." However, it is plain from
the record that the ultimate zoning change Olson desires will come only if he
first complies with § 15.15.
Adopting the Town's argument would place Olson in the unenviable
position of having no right to avail himself of the Act to challenge the
ordinance, which the Town demands he first comply with in order to avail
himself of the Act. The absurdity of this
circular reasoning is self-evident and emphasizes the catch-22 that the Town is
trying to perpetuate. Olson need not
suffer an injury, namely compliance with the ordinance by purchasing TDRs, in
order to bring a declaratory judgment action pursuant to the Act. See Putnam, 255
¶66 We
also find irrelevant the Town's assertion that Olson has not demonstrated that
compliance with § 15.15 will come at great expense to him. If Olson were to succeed on the merits of his
declaratory judgment suit, any and all expenses directly related to compliance
with § 15.15 would be unjust because the ordinance would be declared
invalid. The fact that Olson allegedly
does not possess the financial means to comply with an ordinance he asserts is
illegal is of no import to determining the ripeness of his claim.
¶67 Olson's
declaratory judgment suit is ripe, much like the suits of the plaintiffs in Putnam
and Milwaukee Dist. Council 48.
In Putnam, this court reviewed the declaratory judgment suit of a
group of cable television customers of Time Warner Cable of
¶68 In
Milwaukee Dist. Council 48, this court reviewed a declaratory judgment
suit brought by a labor union against
¶69 Olson's
case is similar to both Putnam and Milwaukee Dist. Council 48. In Putnam, we observed that 10 to 15
percent of customers would be impacted by the late-payment fee in
question. Putnam, 255
¶70 Olson's
case is also similar to Milwaukee Dist. Council 48 because the ordinance
validity issue here, like the procedural due process issue in that case, stands
as a "prelude" to the ultimate question of whether Olson can obtain
rezoning approval from the County. See
Milwaukee Dist. Council 48, 244
¶71 The
Town's final argument that Olson's claim is moot because § 15.15 has been
amended during the pendency of this litigation is not persuasive. The Town's statement that "[a]
declaratory judgment action on an ordinance that is now different will be of
limited, if any, value" misses the point.
Olson's suit seeks the right to challenge § 15.15 as it existed at
the time of his lawsuit to resolve the uncertainty regarding the validity of
the ordinance faced by him and other landowners concerning the future
development of their properties. The
Town's application of that version of § 15.15 to Olson is not
"contingent or uncertain." Putnam,
255
¶72 In sum, the circuit court's grant of summary judgment to the Town, premised upon the legal conclusion that Olson's suit was not ripe, and therefore not justiciable, was error. Under this court's standards for justiciability, Olson's action for declaratory relief is ripe, and therefore justiciable.
III. CONCLUSION
¶73 We conclude that the appropriate standard to review a circuit court's grant of summary judgment premised upon the legal conclusion that a declaratory judgment action is not ripe, and therefore not justiciable, is de novo review. Applying this standard to the record before us, we conclude that Olson's cause of action challenging Town of Cottage Grove, Wis., Land Division and Planning Code § 15.15 is ripe, and therefore justiciable. Accordingly, we affirm the court of appeals and remand for proceedings consistent with this opinion.
By the Court.—The decision of the court of appeals is affirmed and the cause is remanded to the circuit court for further proceedings consistent with this opinion.
¶74 SHIRLEY S. ABRAHAMSON, C.J. (concurring). I concur in the court's mandate. I agree
with the majority opinion that Olson's rezoning petition was approved,
conditional upon his compliance with the ordinance that he challenges, when he
filed his action.[13] Olson's efforts to rezone his property were
therefore, as the majority opinion states, "directly impacted by application
of the ordinance when he filed his suit."[14] I conclude that the circuit court erroneously
exercised its discretion by resting its determination of ripeness on an
erroneous standard of law. The circuit
court's determination rested on its erroneous interpretation of the Dane
¶75 I write separately to protest the majority opinion's conclusion
that a circuit court's determination of ripeness is a legal conclusion and
therefore reviewed by this court independently of the circuit court as a
question of law.[16] The majority opinion disregards clear
¶76 I begin with Loy v. Bunderson, 107
¶77 In
support of its decision, the Loy court adduced Edwin Borchard, Declaratory
Judgments 61 (2d ed. 1941), the cited page of which explains that in
declaratory judgment actions, "[w]hether the facts are ripe enough
for determination is usually a matter confided to the discretion of the
court." We also characterized the
entire matter of justiciability (including ripeness)[19]
as "[t]he
ultimate fact to be found by a circuit court in the exercise of its
discretion."[20]
¶78 The
Loy court used the standard language to describe this court's review of
a circuit court's discretionary decision: "While, as in all discretionary
acts of a court, reasonable persons may sometimes differ in the outcome, all
that this court need find to sustain a discretionary act is that the trial
court examined the relevant facts, applied a proper standard of law, and, using
a demonstrated rational process, reached a conclusion that a reasonable judge
could reach."[21]
¶79 The
majority opinion pays full-voiced tribute to the Loy decision in the
body of the opinion yet renounces the decision in the whisper of a
footnote. In its main text, the majority
opinion properly identifies Loy as the leading
¶80 Further
on, the majority opinion silently overrules Loy's core holding that
whether an issue is ripe for judicial determination under the Declaratory
Judgments Act lies within the circuit court's discretion. The majority opinion now declares that the
standard of review of the circuit court's determination that Olson's case was
not ripe is the same as the standard of review of a decision to grant summary
judgment: de novo.[24]
¶81 Nor
is Loy the only decision silently overruled by the majority opinion in
the present case. There are more.
¶82 In Wisconsin Education Association Council v. Wisconsin State
Elections Board, 156
¶83 In Putnam v. Time Warner Cable of Southeastern
¶84 The issue presented for review in Putnam was whether "the circuit court erroneously exercise[d] its discretion when it concluded that the [plaintiff's] request for a declaration of rights and injunctive relief . . . was not justiciable because the [plaintiff] failed to allege a present harm."[29] In determining whether the circuit court had erroneously exercised its discretion in determining justiciabilty, the court applied the usual test for appellate review of a circuit court's exercise of discretion: "This court will uphold a discretionary act if the circuit court 'examined the relevant facts, applied a proper standard of law, and, using a demonstrated rational process, reached a conclusion that a reasonable judge could reach.'"[30]
¶85 In keeping with this standard for reviewing discretionary decisions of a circuit court, the Putnam court concluded that the circuit court had erroneously exercised its discretion because the circuit court had made an error of law: "Because the circuit court misapplied the governing law by dismissing the [plaintiff's] claims for declaratory relief on the basis that it did, we conclude that the circuit court erroneously exercised its discretion."[31]
¶86 Although not focused on the issue of ripeness, Wisconsin Education Association Council v. Wisconsin State Elections Board, 2000 WI App 89, 234 Wis. 2d 349, 610 N.W.2d 108 (hereinafter WEAC II), is also put in jeopardy by the majority opinion in the present case. In WEAC II, the court of appeals applied a discretionary standard when reviewing the circuit court's determination that an action for declaratory judgment presented a justiciable controversy. The court of appeals stated that "in a declaratory judgment action, if the trial court carefully examines all the facts of record in considering the four [components of the test for justiciability], and reasonably concludes that a controversy is justiciable, we must uphold that conclusion."[32]
¶87 Although the WEAC II court of appeals reversed the circuit court's judgment on the basis that the first two conditions of a justiciable controversy were unfulfilled as a matter of law,[33] the standard of review set forth by the court of appeals expressly applied to all four conditions of justiciability, including ripeness.
¶88 The
majority opinion finds support for its conclusion that de novo review is proper
in case law from other jurisdictions.[34] Case law from other states is merely of
persuasive weight. Prior
¶89 Applying the clear, binding precedent of this court and the court of appeals, I conclude that the question whether an issue is ripe for judicial determination under the Declaratory Judgments Act lies within the discretion of the circuit court and that this court should review the circuit court's decision to determine whether the circuit court erroneously exercised its discretion.
¶90 For the reasons set forth, I write separately.
¶91 I am authorized to state that Justice ANN WALSH BRADLEY joins this opinion.
[1] Olson v. Town of
Cottage Grove, No. 2005AP2257, unpublished slip. op. (
[2] All subsequent references to the Wisconsin Statutes are to the 2003-04 version unless otherwise indicated.
[3] The parties dispute the meaning of "rescind action on Zoning Petition 8598," and the circuit court premised its determination that Olson's case was not ripe on its interpretation of this language. We address this dispute below.
[4] The merits of these allegations are not before this court, and we offer no analysis regarding their validity.
[5] This court's decision
in Loy v. Bunderson, 107
Determining whether a suit is or is not ripe is a legal inquiry separate and distinct from determining whether to grant or deny declaratory relief on the merits. The circuit court here determined that Olson's suit was not ripe; as a result, it did not expressly deny declaratory relief, either on ripeness grounds or on the merits. Instead, it granted summary judgment to the Town as a matter of law because the suit was not ripe. Therefore, the appropriate standard of review here is de novo because the circuit court's decision turned upon a question of law. See Jones v. Secura Ins. Co., 2002 WI 11, ¶19, 249 Wis. 2d 623, 638 N.W.2d 575 (indicating that the circuit court's decision to grant declaratory relief turned upon the legal question of what damages an insured could recover in a bad faith action, which is reviewed de novo); Commercial Union Midwest Ins. Co. v. Vorbeck, 2004 WI App 11, ¶7, 269 Wis. 2d 204, 674 N.W.2d 665 (indicating that the circuit court's decision to grant declaratory relief turned upon the construction of an insurance contract, which is reviewed de novo).
[6] In Miller
Brands-Milwaukee, Inc. v. Case, 162
[7] The Borchard treatise also seems to espouse this view of the ripeness determination. See Edwin Borchard, Declaratory Judgments, at 61 (2d ed. 1941) ("Judicial Discretion. Whether the facts are ripe enough for determination is usually a matter confided to the discretion of the court. Opinions may differ on such questions.") (emphasis added).
[8] One commentator has noted that declaratory judgment actions must give property owners a means to determine "their legal rights before they subject[] themselves to damages and loss . . . ." 4 Kenneth H. Young, Anderson's American Law of Zoning § 30:1, at 740 (4th ed. 1996) (emphasis added).
[9] At
oral argument the parties addressed whether Olson's lawsuit was a facial or an
as-applied challenge to § 15.15. Black's
Law Dictionary defines "as-applied challenge" as: "A lawsuit
claiming that a law or governmental policy, though constitutional on its face,
is unconstitutional as applied, usually because of a discriminatory effect; a
claim that a statute is unconstitutional on the facts of a particular case or
to a particular party." Black's
Law Dictionary 223 (7th ed. 1999).
"Facial challenge" is defined as: "A claim that a statute
is unconstitutional on its face——that is, that it always operates
unconstitutionally."
If a court holds a statute unconstitutional on its face, the state may not enforce it under any circumstances, unless an appropriate court narrows its application; in contrast, when a court holds a statute unconstitutional as applied to particular facts, the state may enforce the statute in different circumstances.
Michael C. Dorf, Facial Challenges to State and Federal Statutes, 46 Stan. L. Rev. 235, 236 (1994).
In
reviewing Olson's complaint, we observe that Olson's declaratory judgment suit
encompasses both facial and as-applied challenges to § 15.15. Olson's complaint seeks to have § 15.15
declared universally invalid as it applies to all Town landowners because
the Town has exceeded its statutory authority in enacting the ordinance and
because the ordinance violates both the state and federal constitutions. Olson's complaint also alleges that the
ordinance has been applied to him in an unconstitutional manner because there
is no rational relationship between his desire to develop his land and the
Town's imposition of the TDR program's "exaction." Olson's complaint also states an as-applied
challenge that the ordinance has been applied to his property ex post facto
because it was enacted after he requested preliminary plat approval.
The
fact that Olson's suit includes both facial and as-applied challenges does not
substantially impact our analysis nor alter our conclusion that his suit is
ripe. As an as-applied challenge,
Olson's suit is ripe, in part, because the "government entity charged with
implementing the [ordinance] has reached a final decision regarding the
application of the [ordinance] to the property at issue."
[10] The court of appeals
noted that the parties "appear to dispute whether the extension of time
the
We disagree with the court of appeals' conclusion that this fact is unimportant.
[11] At oral argument, counsel for
Olson indicated that after he left the
[12] We acknowledge that the ordinance has been amended as recently as May 7, 2007. However, this does not impact whether Olson's September 30, 2004, lawsuit, challenging the ordinance as it existed then, was ripe upon filing. The ripeness of a future suit by Olson challenging the most recent version of the ordinance or its applicability to Olson's property is not at issue here, and we need not address this concern.
[13] Majority op., ¶62.
[14]
[15] See id., ¶¶48-62.
[16]
[17] Putnam v. Time Warner Cable of Se. Wis., 2002 WI 108, ¶41, 255 Wis. 2d 447, 649 N.W.2d 254.
[18] Loy v. Bunderson,
107
[19] As the majority opinion
states, majority op., ¶29, "ripeness" is the final factor in a list
of four required for the controversy underlying an action for declaratory
judgment to be justiciable. A controversy
is justiciable under the Declaratory Judgments Act when each of the following
conditions is met:
(1) a claim of right is asserted against one who has an interest in contesting it;
(2) the controversy is between persons whose interests are adverse;
(3) the party seeking declaratory relief has a legal interest in the controversy——that is to say, a legally protectible interest; and
(4) the issue involved in the controversy is ripe for judicial determination.
Majority op., ¶21.
[20] Loy, 107
[21]
[22] Majority op., ¶29.
[23]
[24]
[25]
[26]
[27]
[28] Putnam v. Time
Warner, 2002 WI 108, ¶7,
255
[29]
[30] Id., ¶40 (quoting Milwaukee
Dist. Council 48 v. Milwaukee County, 2001 WI 65, ¶36, 244
[31] Putnam, 255
[32] Wis. Educ. Ass'n Council v. Wis. State Elections Bd. (WEAC II), 2000 WI App 89, ¶9, 234 Wis. 2d 349, 610 N.W.2d 108 (internal quotation marks omitted).
[33]
[34] Majority op., ¶38.