ZONING BOARD REVERSED,

BUT COURT DENIES SERIOUS SANCTIONS

The Dane County Board rezoned a property subject to a deed restriction that had been imposed through a conditional rezoning process. The deed restriction limited access to the property to one of two abutting roads. To connect a house to that road required a 3,000 foot driveway that crossed a creek and wetland. A special exception permit was needed from the Board of Adjustment. The Board of Adjustment turned down the special exception permit based on concerns about the bridge across the creek and the wetlands and intrusion on natural beauty. The Board suggested that access be gained through the other abutting road.

A certiorari appeal was brought. The circuit court overturned the denial of the special exception permit, and ordered issuance of the permit. The circuit court held that the Board had used ordinance sections that were inapplicable, had applied statements of purpose rather than substantive requirements and had based several of its findings on the communications from the Wisconsin DNR that had not been entered into the public hearing record and were, therefore, classified as ex parte communications. The court found the ex parte communications to be a violation of constitutional due process.

The Board of Adjustment appealed to the court of appeals. In a new unpublished decision, the court of appeals agrees with the circuit court’s ruling overturning the Board of Adjustment denial. The appellate court made one modification in the circuit court decision, that being that the ex parte communication, while illegal, did not rise to the level of constitutional violation.

People who had contracted to buy the lot in question backed out of the sale. The developer was forced to buy back the lot for $20,000 more than the purchase price.

The developer argued that the Board of Adjustment denial was a taking of their property and sought money damages against the Board and its members.

The Court of Appeals denies claims for damages under the doctrine of the Reel Enterprises v. City of La Crosse, 147 Wis. 2d 662, 431 N.W.2d 743 (Ct. App., 1988). That case held that a zoning denial that is subsequently overturned by a court never constitutes taking. Once the courts find the land use restriction to be illegal, that finding nullifies the denial, meaning that legally there was no denial. The developer asked the court to overturn the Reel Enterprises doctrine, but the court of appeals said it was powerless to overturn one of its earlier decisions.

The Wisconsin Supreme Court will hear this case on appeal in 1999.