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Golden Sands Dairy LLC v. Town of Saratoga

Supreme Court of Wisconsin

June 5, 2018

Golden Sands Dairy LLC, Plaintiff-Respondent-Petitioner,
v.
Town of Saratoga, Terry A. Rickaby, Douglas Passineau, Patty Heeg, John Frank and Dan Forbes, Defendants-Appellants, Ellis Industries Saratoga, LLC, Plaintiff, Rural Mutual Insurance Company, Intervenor.

          Submitted on Briefs: oral argument: January 11, 2 018

         REVIEW 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. Eagon Justices

          For 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.

          For 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.

          An 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.

          An amicus curiae brief was filed on behalf of Agriculture Coalition by H. Dale Peterson, John J. Laubmeier, and Stroud, Willink & Howard, LLC, Madison.

          An 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.

          An amicus curiae brief was filed on behalf of Wisconsin Towns Association by Richard Manthe and Wisconsin Towns Association, Shawano.

          An amicus curiae brief was filed on behalf of Wisconsin Municipalities by Daniel M. Olson and League of Wisconsin Municipalities, Madison.

          An amicus curiae brief was filed on behalf of Local Business Amici by Christa 0. Westerberg, Leslie A. Freehill, and Pines Bach LLP, Madison.

          An 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 NALOP-WL, Madison.

          MICHAEL J. GABLEMAN, J.

         ¶1 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"[1] on which it seeks to operate a farm using the "farming full circle" model.[2] 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.

         ¶2 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.

         ¶3 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[3] 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).[4]

         ¶4 We hold that the Building Permit Rule extends to all land specifically identified[5] in a building permit application. Consequently, Golden Sands has a vested right to use all of the Property for agricultural purposes.[6] Therefore, we reverse the decision of the court of appeals.

         I. FACTS AND PROCEDURAL POSTURE

         A. Golden Sands' Building Permit Application

         ¶5 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.[7]

         ¶6 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.

         B. Applicable Zoning Regulations

         ¶7 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.

         ¶8 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) .[8] 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[9] pursuant to Wis.Stat. § 60.22(3) before it may exercise zoning powers. Saratoga's electors granted it village powers on September 24, 2012.

         ¶9 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.

         ¶10 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.

         C. The Mandamus Action

         ¶11 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 our review.

         D. The Present Action

         ¶12 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 expires.

         ¶13 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. Id., ¶27.

         ¶14 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 needed?"
• "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?"

Id., ¶24.

         ¶15 Golden Sands petitioned this court for review, which we ...


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