St. Croix Scenic Coal. v. Vill. of Osceola

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St. Croix Scenic Coalition, Inc., Tyler Norenberg, Elizabeth Kremser, Earl Wiseman, Deborah Borek, Thomas Caravelli, Peter Paidar, Victoria Nelson and Thomas Killilea, Petitioners-Respondents, v. Village of Osceola and Village of Osceola Board of Trustees, Respondents-Appellants.

No. 2024AP823

Court of Appeals of Wisconsin, District III

November 5, 2024

APPEAL from an order of the circuit court for Polk County: No 2023CV207 DANIEL J. TOLAN, Judge.

Before Stark P.J., Hruz and Gill, JJ.

GILL J. ^[1]

¶1 The Village of Osceola and its Board of Trustees (collectively, the "Village") appeal a decision of the circuit court granting in part St. Croix Scenic Coalition, Inc.'s petition for certiorari review of the Village's decision to approve final site plans for a particular residential development and remanding the matter to the Village for further proceedings.^[2]

¶2 On appeal, the Village asserts that the Coalition failed to plead sufficient facts demonstrating that it has standing under WIS. STAT. § 781.10 to seek certiorari review of the Village's decision. Specifically, the parties dispute whether the Coalition sufficiently demonstrated that the individual members sustained "actual damages or will imminently sustain actual damages that are personal to the person and distinct from damages that impact the public generally" "as a result of the Village's decision. See § 781.10(2)(c)3.

¶3 We conclude that the Coalition failed to allege sufficient facts to meet the standing requirement in WIS. STAT. § 781.10(2)(c)3. Specifically, the Coalition alleged its members merely faced the possibility of future harm of a type that would affect the public generally rather than the required then-existing individual injury or reasonably certain future individual injury resulting from the local governing body's decision to approve the application. We therefore reverse and remand for the circuit court to dismiss the certiorari petition.

BACKGROUND

¶4 The Osceola Bluffs development project ("project" or "development") is a proposal to build a mixed-use commercial and residential property on the bank of the St. Croix River in the location of an abandoned hospital. If completed, the property would be three stories tall and include ninety-nine apartment units, two commercial spaces and 177 parking spaces. In July 2023, the Village approved the developer's final site plans for the project.

¶5 The Coalition filed an amended petition for certiorari review under WIS. Stat. § 781.10 challenging the validity of the Village's approval for the project. The Coalition argued that the Village acted arbitrarily, oppressively unreasonably, and unlawfully in several respects related to its decision. Accordingly, the Coalition requested that the circuit court reverse the Village's decision. The Coalition also moved for a temporary restraining order preventing the project from moving forward during the pendency of the action.

¶6 The Village responded to the request for a temporary restraining order by arguing, among other things, that the Coalition lacked standing to bring the certiorari action because it failed to meet any of the requirements in WIS STAT. § 781.10(2)(c). At a hearing on the motion, the circuit court concluded that the Coalition had standing. The court also granted the Coalition's motion for a temporary restraining order.

¶7 Ultimately, the circuit court granted relief with respect to the Coalition's petition for certiorari in part and reversed the Village's July 2023 decision. Specifically, the court concluded that the Village's decision was unreasonable because it violated a Village of Osceola ordinance and Wisconsin administrative code regulations. The court remanded the case back to the Village to "further review compliance with the requirements of those provisions.^[3] The Village now appeals.

DISCUSSION

¶8 As discussed, the Coalition sought certiorari review of the Village's decision pursuant to WIS. STAT. § 781.10. On certiorari review, our inquiry is limited to:

(1) whether the municipality kept within its jurisdiction;

(2) whether it proceeded on a correct theory of law;

(3) whether its action was arbitrary, oppressive, or unreasonable and represented its will and not its judgment and (4) whether the evidence was such that it might reasonably make the order or determination in question.

Oneida Seven Generations Corp. v. City of Green Bay, 2015 WI 50, ¶41, 362 Wis.2d 290, 865 N.W.2d 162 (citation omitted).

¶9 First, however, we must determine whether the Coalition has met the specific requirements for standing under WIS. STAT. § 781.10(2)(c). "Standing presents a question of law for our de novo review." Metropolitan Builders Assoc, of Greater Milwaukee v. Village of Germantown, 2005 WI.App. 103, ¶12, 282 Wis.2d 458, 698 N.W.2d 301. To resolve the standing issue in this case, we must interpret and apply statutory provisions, which also present questions of law. See Clean Wis., Inc. v. DNR, 2021 WI 71, ¶15, 398 Wis.2d 386, 961 N.W.2d 346. "[T]he purpose of statutory interpretation is to determine what the statute means so that it may be given its full, proper, and intended effect." State ex rel. Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶44, 271 Wis.2d 633, 681 N.W.2d 110. "Statutory language is given its common, ordinary, and accepted meaning, except that technical or specially-defined words or phrases are given their technical or special definitional meaning." Id., ¶45. Because we conclude that the Coalition lacks standing pursuant to the relevant statutory provisions, we need not reach the remaining issues addressed by the circuit court.

A. Forfeiture of the Village's standing argument

¶10 The Coalition argues that we need not address the standing issue because the Village forfeited its challenge to the Coalition's standing. The Coalition asserts that the Village was required to bring a motion to dismiss for lack of standing or, alternatively, to argue standing in its brief in opposition to the certiorari petition. "As a general rule, issues not raised in the circuit court will not be considered for the first time on appeal." Town of Mentor v. State, 2021 WI.App. 85, ¶46, 400 Wis.2d 138, 968 N.W.2d 716 (citation omitted). The forfeiture rule prevents a circuit court from being "blindside[d]" with reversal based on a theory which it was not presented with. Id., ¶51 (citation omitted). It also enables a "circuit court to avoid or correct any error as it comes up" and "gives the parties and the circuit court notice of an issue and a fair opportunity to address the objection." Id., ¶46 (citation omitted).

¶11 In this case, the Village raised the issue of standing in its response brief to the Coalition's motion for temporary relief pending certiorari review. The Village's brief contained three pages in which it argued that the Coalition did not meet the standing requirements in WIS. STAT. § 781.10(2)(c). Moreover, at the hearing on that motion, the Village again argued that the Coalition must "have had actual damages in order to establish the right to bring this claim. [The Coalition has not] done it. And [the Coalition] had to have done it in the initial pleading. That's what's required under [§] 781.10. On that basis alone, this entire claim fails." The circuit court then issued an oral ruling concluding that the Coalition had standing to challenge the Village's decision to approve the site plans for the proposed project.

¶12 Accordingly, the circuit court and the parties were clearly given notice of the standing issue; indeed, the parties argued the matter. The Coalition cites no authority for the proposition that, given the foregoing facts, the Village was required to again raise the standing issue in a motion to dismiss for lack of standing or in its brief in opposition to the certiorari petition. See State v. Pettit, 171 Wis.2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992) ("Arguments unsupported by references to legal authority will not be considered.").

¶13 The Coalition also asserts that the Village was required, but failed, to raise the standing issue a second time following the circuit court's oral ruling because the court stated, "for purposes of today, there is standing." (Emphasis added.) The Coalition overreads the import of this statement. We agree with the Village that there would have been little reason to raise a second challenge to standing after the court made a ruling applying the standard in WIS. STAT. § 781.10(2)(c). Regardless, forfeiture is a rule of judicial administration, and we may disregard the rule and address the merits of an issue. See Town of Mentor, 400 Wis.2d 138, ¶48. As noted above, the standing issue was fully briefed and argued by both parties prior to the court's ruling. However, even if the issue was forfeited, we would address the merits of the Coalition's standing.

B. Standing under WIS. STAT. § 781.10

¶14 In June 2023, the Wisconsin legislature established a new, exclusive form of certiorari review for any final decision of a "political subdivision on an application for" "a permit or authorization for building, zoning, driveway, stormwater, or other activity related to residential development." See 2023 Wis. Act 16, §20; WIS. STAT. §781.10(1), (2)(a). "Political subdivision" "means a city, village, town, or county or a board of appeals or board of adjustment," § 781.10(1)(b), and "[Residential development" "means the development or redevelopment of land or buildings for the primary purpose of providing housing," §781.10(1)(c).

¶15 WISCONSIN STAT. §781.10 limits who may file an action for certiorari, stating, in pertinent part, that an action "may be filed only by any of the following":

3.A person that, as a result of the final decision on the application for an

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