The SCOW docket: Village of Slinger v. Polk Properties

Note: We are crunching Supreme Court of Wisconsin decisions down to size. The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The "upshot" and "background" sections do not count as part of the 10 paragraphs because of their summary and very necessary nature. We've also removed citations from the opinion for ease of reading, but have linked to important cases cited or information about them.  Italics indicate a WJI insertion.

The case: Village of Slinger v. Polk Properties

Majority: Justice Rebecca Grassl Bradley (22 pages), joined by Justices Ann Walsh Bradley, Rebecca Dallet, Jill Karofsky, and Patience Roggensack

Concurrence: Justice Annette Ziegler (10 pages)

Justice Brian Hagedorn did not participate

Grassl Bradley

The upshot

Polk Properties, LLC and its sole member, Donald J. Thoma (collectively, "Polk"), 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. 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.... 

It is undisputed that the farmer who farmed the land before Polk acquired it continued to 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.

Background

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. Polk worked with the Village of Slinger on his proposed plan to convert the farmland to a 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. 

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

Polk appealed the circuit court's orders and the court of appeals affirmed. Relying on an opinion from the Rhode Island Supreme Court, the court of appeals decided that Polk had abandoned its legal nonconforming use....

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

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. 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.... 

​For nearly a century, Wisconsin has required actual cessation of a legal nonconforming use together with an intent to stop it as prerequisites to abandonment. We have even rejected a "mere suspension" of the nonconforming use in considering whether the actual cessation element had been met. The law requires actual cessation in order to conclude that a property owner has abandoned the legal nonconforming use. The record in this case overwhelmingly demonstrates that Polk did not actually stop farming this property, despite the Village of Slinger's repeated and persistent attempts to end this use.... ​

The Village of Slinger has not presented nor have we located any case suggesting that merely reducing the nonconforming use constitutes actual cessation....

We conclude that Polk did not abandon the lawful nonconforming use of the property because farming occurred continuously on the property before, during, and after the rezoning. Polk never ceased cutting and removing vegetation on the property. Because this nonconforming use continued without cessation, 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.

Ziegler

Concurrence

While I agree with the majority's conclusion that Polk did not abandon its nonconforming use of the property, I write separately because the majority could be read to be unnecessarily breathing life back into a doctrine that the legislature abrogated over 80 years ago. 

In 1931, we originally adopted the two-part test for abandonment, which required intent to abandon and actual cessation of use....

However, the legislature later abandoned this approach....the legislature changed the statutory language regarding discontinuance to its current form: "[i]f such nonconforming use is discontinued for a period of 12 months, any future use of the building and premises shall conform to the ordinance...."

(T)he doctrine of voluntary abandonment is inapplicable to cases where either the statute or municipal ordinance contains a definite time limit. In the case at bar, both the statute and municipal ordinance contain the language "discontinued for a period of 12 months...." 

Applying the proper test here, it is clear that Polk never ceased agricultural use of the property for a 12-month period. As I described above, both the statute and the ordinance have a 12-month definite time period. Accordingly, to have lost the right to use the property for agricultural purposes, Polk must have ceased using the property for agricultural purposes for a period of 12 months. 

Polk never ceased its agricultural use for a period of 12 months. Indeed, Polk never ceased its agricultural use for a single day....

​While I agree with the majority that Polk did not abandon its nonconforming use, I would make clear that the voluntary abandonment doctrine is inapplicable here. I would rely on the objective test that the legislature set forth in the statute – whether the property owner actually ceased use for the legislatively definite time limit. Because Polk never ceased its agricultural use of the property for even a day, let alone the 12-month time limit, I conclude that Polk did not abandon its nonconforming, agricultural use. As a result, I do not join the majority opinion and instead respectfully concur.... 

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