Submitted on Briefs: oral argument: January 11, 2 018
OF DECISION OF THE COURT OF APPEALS Reported at 375 Wis.2d
797, 899 N.W.2d 737
Circuit Court Wood County (L.C. No. 2012CV389) Thomas B.
the plaintiff-respondent-petitioner, there were briefs filed
by Jordan J. Hemaidan, Daniel A. 0'Callaghan, Joseph D.
Brydges, and Michael Best & Friedrich LLP, Madison, with
whom on the briefs were Brian G. Formella and Anderson, .
0'Brien, Bertz, Skrenes & Golla, Stevens Point. There
was an oral argument by Jordan J. Hemaidan.
the defendants-appellants, there was a brief filed by Remzy
D. Bitar and Arenz, Molter, Macy, Rifle & Larson SC,
Waukesha, with whom on the brief was Paul G. Kent and
Stafford Rosenbaum LLP, Madison. There was an oral argument
by Remzy D. Bitar.
amicus curiae brief was filed on behalf of the State of
Wisconsin by Sopen B. Shah, deputy solicitor general, with
whom on the brief were Brad D. Schimel, attorney general, and
Ryan J. Walsh, chief deputy solicitor general. There was an
oral argument by Sopen B. Shah.
amicus curiae brief was filed on behalf of Agriculture
Coalition by H. Dale Peterson, John J. Laubmeier, and Stroud,
Willink & Howard, LLC, Madison.
amicus curiae brief was filed on behalf of Wisconsin Counties
Association by Andrew T. Phillips, Rebecca J. Roeker, and Von
Briesen & Roper, S.C., Milwaukee.
amicus curiae brief was filed on behalf of Wisconsin Towns
Association by Richard Manthe and Wisconsin Towns
amicus curiae brief was filed on behalf of Wisconsin
Municipalities by Daniel M. Olson and League of Wisconsin
amicus curiae brief was filed on behalf of Local Business
Amici by Christa 0. Westerberg, Leslie A. Freehill, and Pines
Bach LLP, Madison.
amicus curiae brief was filed on behalf of Wisconsin Realtors
Association, Wisconsin Builders Association, Wisconsin
Manufacturers and Commerce, and NAIOP-WI by Thomas D. Larson
and Wisconsin REALTORS Association, Wisconsin Builders
Association, Wisconsin Manufacturers and Commerce and
MICHAEL J. GABLEMAN, J.
Wisconsin has long provided a vested right to build a
structure upon the filing of a building permit application
that strictly conforms to all applicable zoning regulations
(the "Building Permit Rule")-a doctrine we
reaffirmed last term in McKee Family I, LLC v. City
of Fitchburg, 2017 WI 34, 374 Wis.2d 487, 893 N.W.2d
12. Golden Sands Dairy, LLC ("Golden Sands"),
either owns outright (or is under contract to purchase) what
collectively amounts to 6, 388 acres in and around the Town
of Saratoga ("Saratoga" on which it seeks to operate
a farm using the "farming full circle"
model. Golden Sands obtained a building permit
for seven farm structures. Its building permit application
identified the building site as 100 acres and the total farm
as 6, 388 acres. Further, Golden Sands included a map with
its original building permit application that identified the
precise land it would use for its farm and the location of
the seven structures.
After Golden Sands filed its building permit application,
Saratoga enacted its zoning ordinance that sought to prohibit
agricultural uses such as those proposed by Golden Sands.
Golden Sands argues that the Building Permit Rule extends to
all land specifically identified in a building permit
application. Under its proposed modification of the Building
Permit Rule, Golden Sands would have a vested right to use
all of the Property for agricultural purposes. Saratoga
disagrees, arguing that Golden Sands' building permit is
limited to vesting its right to build the seven structures
identified in the building permit.
The issue in this case is one of first impression in
Wisconsin: does the Building Permit Rule extend to land
identified in the building permit application as part of the
project upon which no actual construction was planned? The
Wood County Circuit Court concluded that the Building Permit Rule
does extend to all land identified in the building permit
application, and consequently granted Golden Sands'
motion for summary judgment. The court of appeals, however,
reversed, holding that the Building Permit Rule applies only
to building structures, and not to use of land. Golden
Sands Dairy, LLC v. Town of Saratoga, No. 2015AP1258,
unpublished slip op. (Wis. Ct. App. April 13, 2017)
(Golden Sands II).
We hold that the Building Permit Rule extends to all land
specifically identified in a building permit application.
Consequently, Golden Sands has a vested right to use all of
the Property for agricultural purposes. Therefore, we
reverse the decision of the court of appeals.
FACTS AND PROCEDURAL POSTURE
Golden Sands' Building Permit Application
Golden Sands filed its original building permit application
with Saratoga on June 6, 2012. The application sought a
permit to build seven structures on 92 acres. Attached to the
application was a map that shaded the parcels to be used for
the dairy structures in yellow and the parcels to be used as
farmland in blue.
Golden Sands included with the Application copies of
applications for various state permits required to operate
the farm. Golden Sands was not required to provide copies of
the state permit applications to receive a building permit
from Saratoga, but rather did so as a "courtesy."
These state permit applications provided even greater detail
as to Golden Sands' plans for its farming operation.
Applicable Zoning Regulations
At the time Golden Sands filed its initial building permit
application (June 6, 2012), Saratoga did not have any zoning
ordinances. The only land use restriction in place was Wood
County's zoning ordinance, which zoned the land as
"unrestricted, " meaning the land at issue could be
used for any lawful purpose.
Saratoga started the process to regulate land use within its
borders in 2007, when it began to assemble a comprehensive
plan pursuant to Wis.Stat. § 66.1001(2) (2011- 12)
After completing a comprehensive plan, the next step for
Saratoga was enacting a zoning ordinance. However, towns do
not possess zoning powers by default under Wisconsin law.
See Wis.Stat. §§ 60.22, 61.34(1) .
Instead, a town must receive village powers from its
electors pursuant to Wis.Stat. § 60.22(3)
before it may exercise zoning powers. Saratoga's electors
granted it village powers on September 24, 2012.
On July 19, 2012, during the time Saratoga was in the process
of obtaining village powers, it passed a moratorium on
issuing any building permit that was inconsistent with
then-existing land use. This was two days after Golden Sands
filed its amended building permit application.
Upon receiving village powers, Saratoga passed a permanent
zoning ordinance on October 17, 2012, which the Wood County
Board ratified on November 13, 2012, and the Saratoga Town
Board ratified the next day. Under the permanent zoning
ordinance, only two percent of the town-and none of Golden
Sands' land-is zoned for agricultural use. Therefore,
Golden Sands' planned operation does not conform to the
zoning scheme enacted by Saratoga.
Saratoga provided two reasons for its refusal to issue the
building permit requested by Golden Sands: (1) the moratorium
on building permits enacted on July 19, 2012, prohibited
issuance of the permit; and (2) Saratoga deemed the
Application incomplete. Golden Sands then filed a mandamus
action to compel Saratoga to issue the building permit. The
circuit court concluded that the Application was complete and
complied with all zoning regulations in place at the time it
was filed, and thus granted the writ of mandamus. In
response, Saratoga issued the building permit to Golden
Sands. The court of appeals affirmed. Golden Sands Dairy,
LLC v. Fuehrer, No. 2013AP1468, unpublished slip op.
(Wis. Ct. App. July 24, 2014) (Golden Sands I) .
Saratoga did not file a petition for review from Golden
Sands I, and thus the mandamus action is not subject to
Two weeks after filing the mandamus action, Golden Sands
filed the present declaratory judgment action, asking the
circuit court to declare that Golden Sands may use all the
land specifically identified in the Application for
agricultural purposes. The circuit court found that Golden
Sands sufficiently identified the parcels that it intended to
use for farming in the Application. Thus, the circuit court
concluded that Golden Sands had a vested right to use the
land specifically identified in the Application for
agricultural purposes and granted Golden Sands' motion
for summary judgment. The circuit court added that Golden
Sands' vested right to use the land for agricultural
purposes expires at the same time the building permit
The court of appeals reversed. Golden Sands II,
unpublished slip op., ¶2. The court of appeals
distinguished between the right to build a structure and the
right to use land. Id., ¶14. It determined that
the right to build a structure vests with the filing of a
building permit application that strictly conforms to all
applicable zoning regulations, but the right to use land
vests with open and obvious use under the nonconforming use
doctrine. Id. Based on this distinction, the court
of appeals concluded that Golden Sands' building permit
vested its right to build the structures, but not to use the
other land identified in the building permit application for
agricultural purposes. The court of appeals concluded that
because Golden Sands had not established a nonconforming use
before Saratoga's zoning ordinance took effect, it could
not use any of its land for agricultural purposes.
The court of appeals articulated a series of concerns with
Golden Sands' proposed modification of the Building
Permit Rule. It did so in a series of questions:
• "[H]ow many of the identified 6[, ]388 acres are
• "Why should all 6[, ]388 acres obtain
nonconforming use status simply because that amount of land
was noted in the application?"
• "What if a factual inquiry would show that Golden
Sands needs substantially fewer than 6[, ]388 acres to fully
utilize its proposed farm buildings?"
Golden Sands petitioned this court for review, which we