Fassett v. City of Brookfield

402 Wis.2d 265

975 N.W.2d 300

2022 WI App 22

Bridget FASSETT, Plaintiff-Respondent,

v.CITY OF BROOKFIELD, Defendant-Appellant.

Appeal No. 2021AP269

Court of Appeals of Wisconsin.

Submitted on Briefs: February 10, 2022

Opinion Filed: April 20, 2022

On behalf of the defendant-appellant, the cause was submitted on the briefs of Jenna Merten of City of Brookfield, Brookfield.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Lisa Lawless of Husch Blackwell LLP, Milwaukee.

A nonparty brief was filed by Thomas Larson of Wisconsin Realtors Association, for Wisconsin Realtors Assoc., Wisconsin Builders Association, and NAOIP-WI.

Before Neubauer, Grogan and Kornblum, JJ.

NEUBAUER, J.

¶1 The City of Brookfield appeals from an order reversing the City's denial of Bridget Fassett's application to divide her property into three residential lots. The City conditioned approval upon its requirement that Fassett dedicate part of her property for a new public through street and pay to construct it. The circuit court concluded that this exaction was an unconstitutional taking and ordered approval of Fassett's proposed property division. The court also determined that Fassett's appeal was timely. We affirm.

BACKGROUND

¶2 The following undisputed facts are taken from the parties’ summary judgment submissions. Fassett owns a rectangular 4.93-acre parcel of land (the Property) located between two subdivisions in the City of Brookfield. The two subdivisions each have a dead-end street named Choctaw Trail that terminates at approximately the middle of the Property. The Choctaw Trail dead ends have existed for many decades, one since the 1950's, and the City anticipated they would one day be connected to form a through road.

¶3 Under the City of Brookfield's subdivision code, a property owner may ask for approval of a land division before submitting formal documentation. Approval would be subject to execution of the land division instruments, which typically consist of a plat or certified survey map ("CSM"), subdivider agreements, and other conditions.

¶4 On January 8, 2018, Fassett submitted a written request to split the Property into four pieces, three single-family home sites and one outlot with wetlands to be dedicated to the City. Fassett's request included maps of three conceptual plans: (1) creating a cul-du-sac connected to the eastern portion of Choctaw Trail, but leaving the dead end on the western side; (2) connecting both Choctaw dead ends with a through street; and (3) using a shared driveway for the two proposed southern lots from the east, leaving the two Choctaw Trail dead ends in the adjacent subdivisions. Fassett stated that she preferred the third option, the shared driveway.

¶5 Fassett received feedback from the City of Brookfield plan commission and City staff at a hearing on February 12, 2018, at which time it appeared that the plan commission was in favor of accepting the staff recommendation to require the extension of Choctaw Trail across the Property. Fassett followed up with a letter explaining the basis for her preference for the third option, a shared driveway, along with information that the neighbors opposed a through street across the Property and between the Choctaw Trail two dead ends in the adjacent subdivisions.

¶6 Nonetheless, the plan commission approved and recommended that the City's common council adopt the second concept, which required that Fassett install a public through street connecting the Choctaw Trail dead ends. On June 19, 2018, the common council adopted the plan commission's recommendation. The approval was conditioned on Fassett satisfying several additional requirements, including submission of a CSM, dedication of the new through street, dedication of the wetlands outlot, and execution of a subdivision agreement.

¶7 In late 2019, Fassett submitted a preliminary survey map, a final CSM, and a subdivider agreement, requesting that the City adopt the CSM without the need for a through road connecting the two dead ends of Choctaw Trail. In addition to the site plan, Fassett submitted a master grading and erosion control plan, site utilities plan, and construction notes and details. Fassett also submitted a letter from legal counsel opining that the required dedicated through street was an unconstitutional taking known as an exaction.

¶8 The plan commission rejected Fassett's application, setting forth specific findings of fact. On January 21, 2020, the common council adopted those findings of fact and the plan commission's recommendation. The rationale for the condition requiring dedication of a through street was largely based on: the City's conclusion that the previous platting of the streets of the subdivisions on each side of the Property was done in anticipation of the street being connected; City of Brookfield Municipal Code § 16.16.030.G, which provides that dead-end streets and cul-de-sacs are to be minimized except when necessary due to topographical or environmental features; public safety response time benefits and improved snowplow operations; shortened distances for transportation and pedestrians; and reduced travel demand on arterial streets and collector streets.

¶9 On February 19, 2020, Fassett brought this action seeking certiorari review of the City's January 21, 2020 denial. Fassett moved for summary judgment, arguing that the City engaged in an unconstitutional taking when it refused to approve the preliminary survey map and the CSM and conditioned approval of the development on the dedication of property and construction of the through street for public use. The circuit court granted Fassett's motion for summary judgment and ordered the City to approve Fassett's application with the preliminary survey map, final CSM, and subdivider agreement depicting the land split using the shared driveway concept. The court also rejected the City's contention that the appeal was untimely. The City appeals those determinations.

DISCUSSION

I. Fassett's certiorari petition was timely filed.

¶10 The City argues as a threshold matter that Fassett's petition for certiorari review was untimely. Whether a request for certiorari review is timely is a question of law we review de novo. Awve v. Physicians Ins. Co. of Wis. , 181 Wis. 2d 815, 821, 512 N.W.2d 216 (Ct. App. 1994).

¶11 A person aggrieved by the denial or failure to approve a plat "may appeal therefrom as provided in [ WIS. STAT. §] 62.23(7)(e)10., 14. and 15., within 30 days of notification of the rejection of the plat." WIS. STAT. § 236.13(5) (2019-20).¹ It is undisputed that Fassett commenced certiorari review in the circuit court within thirty days of the City's January 21, 2020 decision.

¶12 Nevertheless, the City contends Fassett's failure to appeal the City's June 19, 2018 approval of the through street concept in her earlier proposal renders this appeal untimely, depriving the circuit court of jurisdiction. We disagree.²

¶13 Our decision in O'Connor v. Buffalo County Board of Adjustment , 2014 WI App 60, 354 Wis. 2d 231, 847 N.W.2d 881, provides guidance. In that case, a landowner applied for a conditional use permit ("CUP"), which was denied and not appealed. Id. , ¶¶2-5. The landowner later filed a second CUP application, which the board granted. Id. , ¶¶5, 9. Citizens filed for certiorari review, arguing that the board was precluded from considering the second CUP after the denial of the first, and as such, the applicant's sole remedy was to file for certiorari review of the first. Id. , ¶¶10, 12.

¶14 The court in O'Connor rejected this argument, first recognizing that if the CUP applicant had wished to challenge the board's denial of its first CUP application, it would have been required to seek certiorari review as prescribed in WIS. STAT. § 59.694(10). O'Connor , 354 Wis. 2d 231, ¶21, 847 N.W.2d 881. However, "nothing in § 59.694(10) prevented [the CUP applicant] from instead filing a second CUP application." Id. The court noted that a "municipality may enact a rule prohibiting a party whose application ... has been denied from filing a new application absent a substantial change in circumstances," but in O'Connor the county had not done so. Id. , ¶21 (citing Tateoka v. City of Waukesha Bd. of Zoning Appeals, 220 Wis. 2d 656, 661, 672, 583 N.W.2d 871 (Ct. App. 1998) ). Thus, there was no identified statute, ordinance, or case that precluded the board from considering the second CUP application.

¶15 The same is true here. Fassett was not required to seek certiorari review of the City's 2018 decision on her three conceptual plans. The City fails to identify any statute, ordinance, or case that prevents an applicant who first sought a determination of a proposed conceptual land split from submitting a second revised application for approval with a CSM and other supporting documents, such as the subdivider agreement. As such, we reject the City's unsupported contentions that Fassett was precluded from submitting the second application in 2019, or that the City was prevented from considering the second application, and more to the point, that Fassett was precluded from appealing the denial of her subsequent application seeking approval of the shared driveway concept.³

II. The City's proposed exaction is an unconstitutional taking.

A. Applicable Certiorari Review Principles and Standards of Review

¶16 On appeal, we review the municipal body's decision, not that of the circuit court. Oneida Seven Generations Corp. v. City of Green Bay , 2015 WI 50, ¶42, 362 Wis. 2d 290, 865 N.W.2d 162. Our certiorari review is limited to whether: (1) the governing body acted within its jurisdiction; (2) the governing body proceeded according to law; (3) the governing body acted in an arbitrary, oppressive, or unreasonable manner that represented its will and not its judgment; and (4) the order or determination was reasonable as based on the evidence. Id. , ¶41.⁴ Under the statute authorizing certiorari review of...