Lakeland Area Property Owners Association, U.A. v. Oneida County ( 2021 )

2021 WI App 19COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION
Case No.: 2020AP858
†Petition for Review filed
Complete Title of Case:
LAKELAND AREA PROPERTY OWNERS ASSOCIATION, U.A.,
†PLAINTIFF-APPELLANT,
V.
ONEIDA COUNTY AND COUNTY MATERIALS CORPORATION,
DEFENDANTS-RESPONDENTS.
Opinion Filed: February 23, 2021
Submitted on Briefs: January 19, 2021
Oral Argument:
JUDGES: Stark, P.J., Hruz and Seidl, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYS: On behalf of the plaintiff-appellant, the cause was submitted on the
briefs of Joseph R. Cincotta of Joseph R. Cincotta, LLC, Milwaukee.
Respondent
ATTORNEYS: On behalf of the defendant-respondent, Oneida County, the cause was
submitted on the brief of Ronald S. Stadler and Jonathan E. Sacks of
Jackson Lewis, P.C., Milwaukee.
On behalf of the defendant-respondent, County Materials Corporation,
the cause was submitted on the brief of Shane J. VanderWaal and
Arthur M. Scheller III of Dietrich VanderWaal, S.C., Wausau.
2021 WI App 19COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
February 23, 2021
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.
Appeal No. 2020AP858 Cir. Ct. No. 2019CV16
STATE OF WISCONSIN IN COURT OF APPEALS
LAKELAND AREA PROPERTY OWNERS ASSOCIATION, U.A.,
PLAINTIFF-APPELLANT,
V.
ONEIDA COUNTY AND COUNTY MATERIALS CORPORATION,
DEFENDANTS-RESPONDENTS.
APPEAL from orders of the circuit court for Oneida County:
MICHAEL H. BLOOM, Judge. Affirmed.
Before Stark, P.J., Hruz and Seidl, JJ.
¶1 STARK, P.J. This appeal arises from Oneida County’s decision to
rezone property owned by County Materials Corporation (“CMC”).1 CMC
petitioned the County for the rezoning so that it could operate a gravel mine on the
1
The parties refer to County Materials Corporation as “CMC,” and we follow their lead.
property. Lakeland Area Property Owners Association, U.A., (“Lakeland”)
opposed the rezoning and ultimately filed the instant lawsuit against the County and
CMC, asserting various claims. The circuit court dismissed each of Lakeland’s
claims and subsequently denied Lakeland’s motion for reconsideration.
¶2 Lakeland now appeals both the order dismissing its claims and the
order denying its reconsideration motion. Lakeland first argues that the County’s
decision to rezone the property violated WIS. STAT. § 66.1001(3) (2017-18),2
because the rezoning was inconsistent with the applicable comprehensive plan. We
conclude the rezoning was consistent with the Town of Hazelhurst’s 2018
comprehensive plan and, as such, did not violate § 66.1001(3). We therefore affirm
the circuit court’s decision to dismiss Lakeland’s claim seeking a declaration that
the rezoning violated that statute.
¶3 Lakeland also contends that the circuit court erred by dismissing its
claim seeking a declaration that it owns the subsurface mineral rights for the
property at issue in this case. Lakeland argues the court erroneously determined
that its interest in the mineral rights had lapsed under WIS. STAT. § 706.057(3).
Lakeland also argues that the court’s interpretation of § 706.057(3) is
unconstitutional as applied to Lakeland because it results in a taking of Lakeland’s
property without just compensation.
¶4 We conclude the circuit court properly interpreted WIS. STAT.
§ 706.057(3). Under the plain language of that statute, Lakeland’s interest in the
mineral rights lapsed because, although Lakeland’s predecessors in interest initially
recorded their claims for the mineral rights in 1987, they subsequently failed to
2
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.
2
“use” the mineral rights at any point during the following twenty-year period. We
further conclude that under the United States Supreme Court’s decision in Texaco
v. Short, 454 U.S. 516 (1982), our interpretation of § 706.057(3) does not result in
an unconstitutional taking. We therefore affirm the court’s dismissal of Lakeland’s
mineral rights claim.
BACKGROUND
¶5 In July 2014, Nationwide Limited Partnership (“Nationwide”)
purchased a ten-acre parcel of property (“the Property”) located in the Town of
Hazelhurst in Oneida County. Nationwide intended that CMC, its affiliate, would
operate a gravel mine on the Property. CMC already owned and operated a gravel
mine on a parcel of land adjacent to the Property.
¶6 On December 26, 2017, CMC petitioned the County to rezone the
Property from “Business” to “Manufacturing & Industrial.” The rezoning was
necessary for CMC to seek a conditional use permit (“CUP”) to conduct nonmetallic
mining on the Property. The County referred the rezoning petition to the Town of
Hazelhurst Plan Commission for review. On April 10, 2018, the Town Board
unanimously recommended that the County approve the petition. On July 11, 2018,
the County’s Planning and Development Committee also recommended approval of
the petition. The County Board subsequently approved the petition and rezoned the
Property to “Manufacturing & Industrial” on August 21, 2018. The County later
granted CMC a CUP allowing it to conduct nonmetallic mining on the Property.
The decision to grant the CUP, however, is not at issue in this appeal.
¶7 Lakeland filed suit against the County in January 2019, and it later
filed a second amended complaint naming CMC as an additional defendant.
Lakeland sought a declaratory judgment that the rezoning of the
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Property: (1) constituted illegal spot zoning; (2) violated WIS. STAT. § 66.1001(3)
because it was inconsistent with the applicable comprehensive plan; and (3) would
give rise to an illegal nonconforming use of CMC’s adjacent parcel.
¶8 With respect to CMC, Lakeland also sought a declaration of interest
in mineral rights. It alleged that three of its members owned the subsurface mineral
rights for the Property and had recorded a statement of their claims with the Oneida
County Register of Deeds on January 12, 1987. Lakeland therefore asked the circuit
court to declare that those members—not CMC—owned the subsurface mineral
rights. The three members in question subsequently assigned their interests in the
mineral rights to Lakeland.
¶9 The County moved for summary judgment on all three of Lakeland’s
claims against it. CMC filed a motion to dismiss Lakeland’s illegal nonconforming
use claim, and it later moved for summary judgment on all four of Lakeland’s
claims. In March 2020, the circuit court entered a written order granting both
defendants’ summary judgment motions and CMC’s motion to dismiss. As relevant
to this appeal, the court concluded that: (1) the rezoning did not violate WIS. STAT.
§ 66.1001(3) because it was consistent with the Town of Hazelhurst’s 2018
comprehensive plan, which the County’s comprehensive plan incorporated; (2)
Lakeland’s interest in the mineral rights for the Property had lapsed under WIS.
STAT. § 706.057(3), and the lapse had not been cured; and (3) CMC lawfully
claimed an interest in the mineral rights under § 706.057(6)(a).
¶10 Lakeland subsequently filed a motion for reconsideration of the circuit
court’s order dismissing its claims. Lakeland argued the court had considered the
wrong version of the Town’s comprehensive plan in its analysis of Lakeland’s claim
that the rezoning violated WIS. STAT. § 66.1001(3). Lakeland also argued that the
4
court’s interpretation of WIS. STAT. § 706.057(3) rendered that statute
unconstitutional as applied to Lakeland. The court denied Lakeland’s
reconsideration motion.
¶11 Lakeland now appeals, raising three issues. First, Lakeland argues the
circuit court erred by granting the County and CMC summary judgment on
Lakeland’s claim that the rezoning violated WIS. STAT. § 66.1001(3). Second,
Lakeland argues the court erred by concluding that its interest in the mineral rights
for the Property had lapsed under WIS. STAT. § 706.057(3). Third, Lakeland renews
its contention that the court’s interpretation of § 706.057(3) renders that statute
unconstitutional as applied to Lakeland. We address these arguments in turn,
including additional facts where necessary.
DISCUSSION
I. Standards of review
¶12 We independently review a grant of summary judgment, using the
same methodology as the circuit court. Hardy v. Hoefferle, 2007 WI App 264, ¶6,
306 Wis. 2d 513, 743 N.W.2d 843. Summary judgment is appropriate where “the
pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of law.” WIS. STAT.
§ 802.08(2). Here, the circuit court’s summary judgment rulings turned on
questions of statutory interpretation, which we also review independently. See
McNeil v. Hansen, 2007 WI 56, ¶7, 300 Wis. 2d 358, 731 N.W.2d 273.
¶13 In addition, this appeal requires us to determine whether the circuit
court’s interpretation of WIS. STAT. § 706.057(3) renders that statute
5
unconstitutional as applied to Lakeland. “Any attack on the constitutionality of a
statute presents a question of law subject to de novo review.” Dane Cnty. v.
McGrew, 2005 WI 130, ¶8, 285 Wis. 2d 519, 699 N.W.2d 890.
¶14 Finally, in addition to appealing the order dismissing its claims,
Lakeland also appeals the circuit court’s order denying its motion for
reconsideration. “To prevail on a motion for reconsideration, the movant must
present either newly discovered evidence or establish a manifest error of law or
fact.” Koepsell’s Olde Popcorn Wagons, Inc. v. Koepsell’s Festival Popcorn
Wagons, Ltd., 2004 WI App 129, ¶44, 275 Wis. 2d 397, 685 N.W.2d 853. We
review a circuit court’s decision on a motion for reconsideration using the erroneous
exercise of discretion standard of review. Id., ¶6. Under that standard, we will
affirm a discretionary decision as long as the court examined the relevant facts,
applied a proper standard of law, and used a demonstrated rational process to reach
a reasonable conclusion. Franke v. Franke, 2004 WI 8, ¶54, 268 Wis. 2d 360, 674
N.W.2d 832.
II. Lakeland’s claim asserting a violation of WIS. STAT. § 66.1001(3)
¶15 Lakeland first argues that the circuit court erred by granting
the County and CMC summary judgment on Lakeland’s claim that the rezoning
violated WIS. STAT. § 66.1001(3). Specifically, Lakeland asserts that the rezoning
violated § 66.1001(3)(j), which states that a County zoning ordinance enacted under
WIS. STAT. § 59.69 “shall be consistent with [the County’s] comprehensive plan.”
In response, the County argues that we need not address the merits of Lakeland’s
argument regarding § 66.1001(3) because that statute does not give rise to a private
right of action, and Lakeland’s claim therefore fails as a matter of law.
6
¶16 We decline to address the County’s argument that WIS. STAT.
§ 66.1001(3) does not give rise to a private right of action. In support of that
argument, the County relies heavily on our decision in DSG Evergreen Family Ltd.
Partnership v. Town of Perry, No. 2017AP2352, unpublished slip op. (WI App
Dec. 20, 2018) (DSG I). The County does not acknowledge, however, that our
decision in DSG I was reversed by the supreme court in February 2020—more than
eight months before the County filed its brief in this appeal. See DSG Evergreen
Fam. Ltd. P’ship v. Town of Perry, 2020 WI 23, 390 Wis. 2d 533, 939 N.W.2d 564(DSG II). The County does not address how the supreme court’s decision in DSG
II affects our analysis of whether a private right of action exists under the
circumstances of this case. Moreover, in its reply brief, Lakeland completely fails
to respond to the County’s argument that § 66.1001(3) does not give rise to a private
right of action. We therefore lack the benefit of developed briefing from either
the County or Lakeland regarding this issue.
¶17 We will not abandon our neutrality to develop arguments for the
parties. Industrial Risk Insurers v. American Eng’g Testing, Inc., 2009 WI App
62, ¶25, 318 Wis. 2d 148, 769 N.W.2d 82. Here, addressing the County’s claim that
WIS. STAT. § 66.1001(3) does not give rise to a private right of action would require
us to do just that, given the parties’ inadequate briefing on the issue. In any event,
we need not address all arguments raised by the parties if one of those arguments is
dispositive. Turner v. Taylor, 2003 WI App 256, ¶1 n.1, 268 Wis. 2d 628, 673
N.W.2d 716. We therefore choose to assume, without deciding, that § 66.1001(3)
gives rise to a private right of action. We also assume, without deciding, that
Lakeland’s appeal of the circuit court’s decision dismissing its claim under that
statute is not moot. Nevertheless, we conclude the court properly dismissed
7
Lakeland’s claim on summary judgment because the undisputed facts establish that
the County’s rezoning of the Property did not violate § 66.1001(3).
¶18 In 2013, the County adopted a comprehensive plan that incorporated
by reference the comprehensive plans for each town located in the County. As noted
above, the Property at issue in this appeal is located in the Town of Hazelhurst. The
Town adopted a comprehensive plan in 1999. CMC filed its petition asking the
County to rezone the Property in December 2017. The Town began taking steps to
amend its comprehensive plan in December 2017, and it adopted an amended plan
in January 2018.
¶19 The circuit court concluded that, for purposes of WIS. STAT.
§ 66.1001(3), it needed to determine whether the County’s rezoning of the Property
was consistent with the Town’s 2018 comprehensive plan. Lakeland argues the
court erred in that regard and should have instead applied the Town’s 1999
comprehensive plan. In support of its argument, Lakeland cites WIS. STAT.
§ 66.10015(2)(a), which states that a political subdivision “shall approve, deny, or
conditionally approve” a zoning application “based on existing requirements, unless
the applicant and the political subdivision agree otherwise.” Because the Town’s
1999 comprehensive plan was in effect when CMC filed its rezoning application,
Lakeland argues the 1999 plan set forth the “existing requirements” for approval of
that application under § 66.10015(2)(a).3
3
The County contends Lakeland has “no standing or other ability” to argue that the County
or the circuit court violated WIS. STAT. § 66.10015(2)(a) by applying the wrong comprehensive
plan. In support of this argument, the County asserts that § 66.10015(2) “essentially codified”
Wisconsin’s common law building permit rule. The County then contends that “[t]he building
permit rule, and now … § 66.10015(2), do not inure to the benefit of third parties.”
8
¶20 The circuit court concluded the Town’s 2018 comprehensive plan
applied to CMC’s rezoning application because the only reasonable inference, based
on the undisputed facts, was that the County and CMC had agreed to apply the 2018
plan. See WIS. STAT. § 66.10015(2)(a). We agree with the court’s analysis. It is
undisputed that in May 2014, the Town rejected a rezoning application filed by
CMC, which was nearly identical to the application at issue in this case, on the
grounds that the proposed rezoning would be inconsistent with the Town’s 1999
comprehensive plan. CMC later submitted essentially the same application in
December 2017, and the Town adopted its amended comprehensive plan in January
2018. Given that both the Town and the County subsequently approved CMC’s
December 2017 application, and given that CMC’s prior application had already
been deemed inconsistent with the 1999 comprehensive plan, the only reasonable
inference is that the Town and the County evaluated the December 2017 application
under the 2018 comprehensive plan.
¶21 Moreover, the only reasonable inference from the record is that CMC
agreed that the County could apply the 2018 comprehensive plan when considering
CMC’s December 2017 rezoning application. As the circuit court aptly explained
in its decision denying reconsideration:
[Lakeland’s] argument that CMC, rather than have the Town
and County consider its application in light of the more
favorable land use plan adopted [in January 2018], preferred
to have its application determined based on the 1999 plan
that the Town had previously and explicitly used to deny a
The County, however, does not cite any legal authority supporting its assertion that WIS.
STAT. § 66.10015(2)(a) was intended to codify the common law building permit rule. Nor does the
County cite any legal authority supporting its claim that neither the building permit rule nor
§ 66.10015(2)(a) inure to the benefit of third parties. We need not consider arguments that are
unsupported by references to legal authority. State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d
633 (Ct. App. 1992). We therefore decline to consider the County’s argument that Lakeland lacks
standing to assert a violation of § 66.10015(2)(a).
9
more or less identical application is counterintuitive to the
point of being unreasonable.
In addition, the record clearly indicates that the Town Plan
Commission, the Town Board, the County Planning and
Development Committee, and the County Board all looked
favorably on CMC’s rezoning application. The Town’s
position had clearly changed since 2014, whether as a result
of its updated land use plan or for some other reason or
reasons. For whatever reason, as of 2018, CMC, the Town
Plan Commission, the Town Board, the County Planning and
Development Committee, and the County Board all wanted
to see the rezoning occur. Why would any of these entities,
in the face of a recently enacted land use plan that was
relatively favorable to it, want a proposed rezoning of which
they all approved assessed pursuant to a two-decade old plan
that had previously served as a basis to preclude it? To infer
as much would be, in the court’s judgment, unreasonable.
¶22 Lakeland argues the circuit court erred by concluding that CMC and
the County agreed to use the 2018 comprehensive plan because, in Lakeland’s view,
an agreement under WIS. STAT. § 66.10015(2)(a) must be “a formal reviewable
agreement, and [must] at least [be] memorialized in meeting minutes.” The court
rejected this argument in its decision denying reconsideration, and, again, we agree
with its analysis. Section 66.10015(2)(a) merely states that when an applicant
submits a zoning application, the existing requirements apply “unless the applicant
and the political subdivision agree otherwise.” Nothing in the statute’s text indicates
that such agreement must be formal, in writing, or memorialized in meeting minutes.
As the circuit court correctly noted, “The statutory language does not dictate how or
when the parties must agree, only that they agree.”
¶23 In its motion for reconsideration, Lakeland also argued that a
document denominated “Exhibit 117” showed that CMC and the County did not
agree to use the 2018 plan. Lakeland contends that Exhibit 117 is a “memorandum”
authored by “CMC’s representative James Small.” The document states that it was
10
prepared on July 3, 2018, in preparation for a July 11, 2018 hearing—presumably
the meeting of the County’s Planning and Development Committee that occurred
on that date. Lakeland notes that Exhibit 117 references the Town’s 1999 plan,
rather than the 2018 plan, when addressing whether the rezoning would be
consistent with the applicable comprehensive plan.4
¶24 As the circuit court correctly concluded in its decision denying
reconsideration, Lakeland’s reliance on Exhibit 117 is misplaced. That document
does not show that the County and CMC agreed to use the 1999 comprehensive
plan, nor does it call into question the reasonable inference raised by other evidence
in the record that they agreed to use the 2018 plan. Exhibit 117 merely observes
that the Town adopted a comprehensive plan in 1999 and discusses some of the
provisions of that plan. We agree with the circuit court that these mere references
to the 1999 plan in a single document do not give rise to a reasonable inference that
CMC agreed the County should assess the proposed rezoning under that plan.
¶25 Moreover, as the County notes, the County Board’s vote to rezone the
Property did not take place until August 21, 2018. We agree with the County that
what matters—for purposes of determining the applicable comprehensive plan
under WIS. STAT. § 66.10015(2)(a)—is whether the County and CMC had agreed
to proceed under the 2018 comprehensive plan as of the date of the County Board’s
4
The County argues we should not consider Exhibit 117 because it is inadmissible.
Specifically, the County argues that Lakeland failed to properly authenticate or provide an adequate
foundation for Exhibit 117. The circuit court never made any determination as to whether Exhibit
117 was admissible. Instead, the court considered Exhibit 117 and determined it did not support
Lakeland’s argument that CMC and the County did not agree to use the 2018 comprehensive plan.
As noted above, we need not address all arguments raised by the parties when one of those
arguments is dispositive. Turner v. Taylor, 2003 WI App 256, ¶1 n.1, 268 Wis. 2d 628, 673
N.W.2d 716. Here, like the circuit court, we conclude Exhibit 117 does not support Lakeland’s
argument that that CMC and the County did not agree to use the 2018 comprehensive plan.
Accordingly, we need not address the County’s argument that Exhibit 117 is inadmissible.
11
vote. As such, the fact that a CMC representative referred to the 1999 plan in a July
2018 memo does not show that the County and CMC ultimately agreed to use the
1999 plan, or failed to reach an agreement to use the 2018 plan. Again, the only
reasonable inference, based on the evidence discussed above, is that the County and
CMC agreed to use the 2018 plan.
¶26 For these reasons, we reject Lakeland’s argument that the circuit court
erred in its summary judgment analysis by applying the Town’s 2018
comprehensive plan, rather than its 1999 plan. We further conclude that the court
did not erroneously exercise its discretion by denying Lakeland’s reconsideration
motion on that basis, as Lakeland did not present any newly discovered evidence in
support of its motion or show that the court made a manifest error of law or fact by
applying the 2018 comprehensive plan. See Koepsell’s Olde Popcorn Wagons, 275
Wis. 2d 397, ¶44.
¶27 Lakeland next argues that even if the circuit court correctly
determined that the County and CMC agreed to use the 2018 comprehensive plan,
the court erred by concluding the rezoning was consistent with that plan. For
purposes of WIS. STAT. § 66.1001, the term “consistent with” means “furthers or
does not contradict the objectives, goals, and policies contained in the
comprehensive plan.” Sec. 66.1001(1)(am).
¶28 Applying this definition, we conclude the circuit court properly
determined, as a matter of law, that the rezoning was consistent with the 2018
comprehensive plan. The 2018 plan includes a “Future Land Use” map. The plan
states that the “Future Land Use” map “illustrates the anticipated future pattern of
land uses” and “includes ten land use classifications to guide where new
development should be encouraged to locate.” The map designates the future use
12
of the Property as “Industrial.” The County’s rezoning of the Property from
“Business” to “Manufacturing & Industrial” was consistent with that designation.
¶29 Lakeland argues we may not consider the “Future Land Use” map
when determining whether the rezoning was consistent with the
2018 comprehensive plan. Instead, Lakeland argues we may consider only the
“narrative” portion of the plan in our consistency analysis. However, Lakeland cites
no legal authority in support of this proposition. Furthermore, nothing in the plain
language of WIS. STAT. § 66.1001 indicates that we may not consider a map
included in a comprehensive plan when determining whether a rezoning is
consistent with that plan. In fact, § 66.1001(2)(h) expressly requires a
comprehensive plan to include a land-use element, which must include “[a]
compilation of objectives, policies, goals, maps and programs to guide the future
development and redevelopment of public and private property.” (Emphasis
added.) Given that the statute requires a comprehensive plan to include land use
maps, it would be unreasonable to conclude that a decision maker may not consider
those maps when determining whether a proposed change is consistent with the
plan.
¶30 Lakeland also argues that regardless of what the “Future Land Use”
map in the 2018 comprehensive plan shows, the rezoning at issue here is
inconsistent with the narrative portion of the plan, which states that “[a]dditional
industrial development will be welcomed in the Town in places away from
[U.S. Highway] 51.” Because the Property directly abuts U.S. Highway 51,
Lakeland argues rezoning the Property to allow industrial use is inconsistent with
this language.
13
¶31 We disagree. The problem with Lakeland’s interpretation is that it
fails to read the language quoted above in context with the remainder of the 2018
comprehensive plan, including the “Future Land Use” map. As noted above, the
map clearly designates the intended future use of the Property as “Industrial.” Given
that designation, the only reasonable interpretation of the plan’s statement that the
Town welcomes “additional” industrial development away from U.S. Highway 51
is that it refers to industrial development beyond that which already exists or has
already been contemplated by the Town on the “Future Land Use” map. As such,
the County’s rezoning of the Property to permit industrial use is not inconsistent
with the narrative portion of the 2018 comprehensive plan.
¶32 Finally, Lakeland notes that the circuit court found there was no
evidence that either the Town or the County had performed a consistency analysis
before approving the rezoning. Lakeland then asserts that the court “was not the
proper forum to conduct the consistency analysis in the first instance.”
¶33 Again, Lakeland fails to cite any legal authority in support of its
argument. WISCONSIN STAT. § 66.1001(3)(j) merely states that a county zoning
ordinance “shall be consistent with” the applicable comprehensive plan. It does not
expressly require the County to perform a consistency analysis before enacting a
zoning ordinance. Here, for the reasons explained above, we conclude as a matter
of law that the rezoning of the Property was consistent with the Town’s 2018
comprehensive plan. As such, the rezoning did not violate § 66.1001(3), and the
circuit court properly granted the County and CMC summary judgment on
Lakeland’s claim under that statute.
III. Lakeland’s mineral rights claim
A. Interpretation of WIS. STAT. § 706.057(3)
14
¶34 Lakeland also argues the circuit court erred by granting CMC
summary judgment on Lakeland’s claim that it owns the subsurface mineral rights
for the Property. Specifically, Lakeland asserts the court erred by concluding that
its interest in the mineral rights had lapsed under WIS. STAT. § 706.057(3). That
subsection states:
(3) LAPSE.
(a) Except as provided in par. (b) or (c), an interest in
minerals lapses if the interest in minerals was not used
during the previous 20 years.
(b) An interest in minerals which was not used during the
20-year period prior to July 1, 1984, does not lapse if the
interest in minerals is used within 3 years after July 1, 1984.
(c) An interest in minerals which was used during the period
from 17 to 20 years prior to July 1, 1984, does not lapse if
the interest in minerals is used within 3 years after July 1,
1984.
Section 706.057(2), in turn, provides that an interest in minerals is “used” if any of
the following occur:
(a) Any minerals are mined in exploitation of the interest in
minerals.
(b) A conveyance of mineral interests is recorded under this
chapter.
(c) Any other conveyance evidencing a transaction by which
the interest in minerals is created, aliened, reserved,
mortgaged or assigned is recorded under this chapter.
(d) Property taxes are paid on the interest in minerals by the
owner of the interest in minerals.
(e) The owner of the interest in minerals records a statement
of claim under sub. (4) or (5) concerning the interest in
minerals.
15
¶35 It is undisputed that Lakeland’s predecessors in interest did not “use”
their interest in the subsurface mineral rights for the Property at any time before July
1, 1984. It is further undisputed that Lakeland’s predecessors “used” their interest
in the mineral rights by recording a statement of their claims with the Oneida County
Register of Deeds on January 12, 1987. Lakeland argues these undisputed facts
establish that its interest in the mineral rights has not lapsed because, under WIS.
STAT. § 706.057(3)(b), an interest in mineral rights that was not used during the
twenty-year period before July 1, 1984, “does not lapse” if used within three years
after that date. In other words, Lakeland argues that because its predecessors used
their interest in the mineral rights by timely recording a statement of their claims
during the three-year period following July 1, 1984, that interest can never lapse,
regardless of whether it is ever used again.
¶36 We reject Lakeland’s interpretation of WIS. STAT. § 706.057(3)
because it is inconsistent with the statute’s plain language. When interpreting a
statute, our analysis begins with the statutory text. State ex rel. Kalal v. Circuit Ct.
for Dane Cnty., 2004 WI 58, ¶45, 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. In addition, statutory language must be interpreted “in
the context in which it is used; not in isolation but as part of a whole; in relation to
the language of surrounding or closely-related statutes; and reasonably, to avoid
absurd or unreasonable results.” Id., ¶46. “If this process of analysis yields a plain,
clear statutory meaning, then there is no ambiguity, and the statute is applied
according to this ascertainment of its meaning.” Id. (citation omitted).
¶37 WISCONSIN STAT. § 706.057(3)(a) clearly states that an interest in
minerals lapses if it “was not used during the previous 20 years.” Thus, the statute
16
sets forth a general rule that an interest in minerals must be used at least once every
twenty years to avoid lapsing. Section 706.057 went into effect on July 1, 1984.
See 1983 Wis. Act 455, § 7. As such, § 706.057(3)(a), standing alone, would cause
all mineral rights that were not used during the twenty-year period before the
statute’s effective date to lapse automatically on that date, without their owners
having the opportunity to prevent the lapse. To avoid this result, § 706.057(3)(b)
created a three-year grace period—lasting from July 1, 1984, to July 1, 1987—
during which such owners could use their rights and thereby prevent the automatic
lapse that would have otherwise occurred under § 706.057(3)(a).
¶38 Reading WIS. STAT. § 706.057(3)(b) in context with § 706.057(3)(a),
it is therefore clear that when subsec. (3)(b) states that an interest in minerals that
was not used during the twenty-year period before July 1, 1984, “does not lapse” if
used during the three-year period after that date, it does not mean that such an
interest will never lapse if used during the requisite three-year period. Rather,
subsec. (3)(b) clearly means that such use prevents the lapse that would have
otherwise occurred under subsec. (3)(a) due to the owner’s failure to use the interest
during the twenty-year period before July 1, 1984. We therefore agree with CMC
and the circuit court that the use of an interest in mineral rights during the three-year
period specified in subsec. (3)(b) does not permanently prevent that interest from
lapsing. Instead, once an interest has been used during the requisite three-year
period, it is again subject to subsec. (3)(a) and will therefore lapse if not used at least
once every twenty years.
¶39 To rule otherwise would create an absurd result. If we adopted
Lakeland’s interpretation of WIS. STAT. § 706.057(3)(b), all mineral rights owners
who did not use their interests during the twenty years before July 1, 1984, could
have permanently prevented their interests from lapsing simply by using them once
17
between July 1, 1984, and July 1, 1987. Conversely, all owners who acquired
mineral rights after July 1, 1984, would be required to use those rights at least once
every twenty years to avoid a lapse. We agree with CMC that there is no logical
basis for such disparate treatment of these similarly situated property owners.
Lakeland does not posit any reason why the legislature would have chosen to impose
different use requirements on different mineral rights owners based on when they
acquired their rights.
¶40 Lakeland argues that our interpretation of WIS. STAT. § 706.057(3)(b)
renders § 706.057(5) surplusage. Section 706.057(5) provides:
CURE OF LAPSE. The lapse of an interest in minerals under
sub. (3) is cured if the owner of the interest in minerals
records a statement of claim complying with all of the
requirements of sub. (4) before the surface owner records a
statement of claim under sub. (6)(a) or before a statement of
claim takes effect under sub. (6)(b)1., whichever is later.
Lakeland argues § 706.057(3)(b) cannot have been intended as a means for owners
to cure lapsed rights because subsec. (5) already provides a method for them to do
so.
¶41 We do not, however, interpret WIS. STAT. § 706.057(3)(b) as
providing mineral owners with a way to “cure” lapsed rights. Instead, we interpret
§ 706.057(3)(b) as preventing lapses that would have otherwise occurred
automatically under § 706.057(3)(a) for all mineral rights owners who did not use
their rights during the twenty-year period before July 1, 1984. Section 706.057(5)
serves a different purpose; namely, it provides a means for all mineral rights owners
to cure lapses in their rights, regardless of when those lapses occurred. As such, our
interpretation of § 706.057(3)(b) does not render § 706.057(5) surplusage.
18
¶42 Applying our interpretation of WIS. STAT. § 706.057(3) to the
undisputed facts of this case, we conclude the circuit court properly granted CMC
summary judgment on Lakeland’s mineral rights claim. It is undisputed that
Lakeland’s predecessors in interest did not use their mineral rights at any point
before July 1, 1984, but they subsequently used their mineral rights by recording a
statement of their claims on January 12, 1987. That use prevented the mineral rights
from lapsing at that time, pursuant to § 706.057(3)(b).
¶43 However, it is also undisputed that Lakeland’s predecessors in interest
did not use their mineral rights at any time during the twenty-year period following
January 12, 1987. As a result, their interests in the mineral rights lapsed on January
13, 2007. It is further undisputed that neither Lakeland nor its predecessors cured
that lapse pursuant to WIS. STAT. § 706.057(5) before Nationwide, CMC’s affiliate,
recorded statements of claim regarding the mineral rights in November 2019. Under
these circumstances, the circuit court correctly concluded that CMC/Nationwide
had lawfully claimed an interest in the mineral rights under § 706.057(6)(a).
Lakeland’s claim seeking a declaration that it owned the mineral rights therefore
failed as a matter of law.
B. Constitutionality of WIS. STAT. § 706.057(3)
¶44 Lakeland argues the circuit court’s interpretation of WIS. STAT.
§ 706.057(3), which we adopt on appeal, renders the statute unconstitutional as
applied to Lakeland. In response, CMC argues we should refuse to consider this
argument because it was raised for the first time in Lakeland’s motion for
reconsideration. CMC correctly observes that a motion for reconsideration “is not
a vehicle for making new arguments … after the court has decided a motion for
19
summary judgment.” Lynch v. Crossroads Counseling Ctr., Inc., 2004 WI App
114, ¶23, 275 Wis. 2d 171, 684 N.W.2d 141.
¶45 In this case, however, the circuit court chose to address Lakeland’s
constitutional argument on reconsideration, and both parties have briefed the issue
on appeal. Moreover, the constitutionality of WIS. STAT. § 706.057(3) presents a
question of law and is of sufficient public interest to merit a decision. Under these
circumstances, we exercise our discretion to address Lakeland’s constitutional
argument, despite Lakeland’s failure to properly preserve the issue for review. See
Green v. Smith & Nephew AHP, Inc., 2001 WI 109, ¶¶52-53, 245 Wis. 2d 772,
629 N.W.2d 727.
¶46 We presume that statutes are constitutional. Mayo v. Wisconsin
Injured Patients & Fams. Comp. Fund, 2018 WI 78, ¶25, 383 Wis. 2d 1, 914
N.W.2d 678. A party challenging the constitutionality of a statute bears a “very
heavy burden” in overcoming that presumption. Id., ¶27. Namely, the party must
prove that the statute is unconstitutional “beyond a reasonable doubt.” Id. (citation
omitted). Stated differently, “[i]f any doubt persists about whether a statute is
constitutional, we resolve [that] doubt in favor of concluding that the statute is
constitutional.” Id., ¶26.
¶47 Here, Lakeland argues the circuit court’s interpretation of WIS. STAT.
§ 706.057(3) renders the statute unconstitutional as applied because it results in a
taking of Lakeland’s property without just compensation. Article I, section 13 of
the Wisconsin Constitution states that no person’s property “shall be taken for
public use without just compensation therefor.” Similarly, the Takings Clause of
the Fifth Amendment to the United States Constitution, made applicable to the states
20
through the Fourteenth Amendment, provides that private property shall not “be
taken for public use, without just compensation.”
¶48 Lakeland’s argument regarding the constitutionality of WIS. STAT.
§ 706.057(3) is based entirely on the Wisconsin Supreme Court’s decision in
Chicago & North Western Transportation Co. v. Pedersen, 80 Wis. 2d 566, 259
N.W.2d 316 (1977). In that case, the supreme court held that § 706.057’s
predecessor statute—WIS. STAT. § 700.30 (1977-78)5—was unconstitutional. The
court summarized the relevant provisions of that statute as follows:
Sec[tion] 700.30, Stats. requires persons, other than surface
fee owners and lessees holding leases of less than ten years,
who claim title to mineral rights in land, to record their
claims and pay a recording fee. Non-exempt claimants are
also required to pay an annual registration fee of fifteen cents
for each acre of mineral rights claimed. Failure to record
claims of mineral rights or pay the annual registration fee
results in reversion of the mineral rights to the surface fee
owner.
Chicago & N.W., 80 Wis. 2d at 570.
¶49 The supreme court concluded WIS. STAT. § 700.30 was
unconstitutional because its enforcement provisions “den[ied] procedural and
substantive due process.” Chicago & N.W., 80 Wis. 2d at 570-71. With respect to
procedural due process, the court noted that mineral rights are an interest in land,
and “[b]efore a person may be deprived of property, that person has a right to a
hearing.” Id. at 571. The court then concluded that because § 700.30 caused the
plaintiffs’ mineral rights to “revert to the surface owner if they are not registered or
taxes are not paid on them,” at the very least, the plaintiffs were entitled to “a hearing
where they can question the determination of the register of deeds that the
5
All references to WIS. STAT. § 700.30 are to the 1977-78 version.
21
registration has not been done or that the taxes have not been paid.” Chicago &
N.W., 80 Wis. 2d at 572. The court further concluded that the plaintiffs were
entitled to adequate notice of such a hearing, which the statute did not provide. Id.
at 572-73. As such, the court stated the statute “unconstitutionally allows for the
deprivation of property without [procedural] due process.” Id. at 573.
¶50 The supreme court also agreed with the plaintiffs that WIS. STAT.
§ 700.30 violated substantive due process “by an unreasonable use of the police
power because [the plaintiffs’] mineral rights revert to the surface owners if the
rights are not registered or taxes are not paid.” Chicago & N.W., 80 Wis. 2d at 574.
The court explained that such automatic reversion violated “the rule that the
legislature cannot take private property from one person for the private use of
another.” Id. The court rejected the attorney general’s assertion that the private use
was “so intimately connected with the public necessity of clearing up uncertainty
over mineral right[s] ownership that there [was] a quasi-public use so as to justify
the legislative taking of property for that purpose.” Id. The court stated it was
“questionable” whether clearing up uncertainty over mineral rights was “so
important that the reversion of mineral rights to the surface owner becomes a
quasi-public use.” Id. at 575. The court also noted that § 700.30 did not provide
any compensation for mineral rights owners whose rights reverted to surface
owners. Chicago & N.W., 80 Wis. 2d at 575.
¶51 Lakeland argues that because the supreme court concluded WIS.
STAT. § 700.30 was unconstitutional in Chicago & North Western, we must
similarly conclude that the circuit court’s interpretation of WIS. STAT. § 706.057(3)
renders that statute unconstitutional. There are at least three problems with this
argument.
22
¶52 First, Chicago & North Western interpreted a different statute from
the one at issue in this case. The Chicago & North Western court’s decision was
motivated by the fact that, under WIS. STAT. § 700.30, an owner’s mineral rights
automatically reverted to the surface owner if the mineral rights owner failed to
register those rights or pay the required taxes. WISCONSIN STAT. § 706.057(3), in
contrast, merely provides that an owner’s mineral rights lapse if the owner does not
use them for twenty years. Moreover, the statute provides a process by which an
owner may cure such a lapse. See § 706.057(5). In addition, the statute requires a
surface owner to record a statement of claim with respect to any lapsed mineral
rights, see § 706.057(6), and it sets forth a process by which the ownership of
mineral rights may be determined after a surface owner records a statement of claim,
see § 706.057(9). Thus, the automatic reversion of mineral rights to the surface
owner that occurred under § 700.30—and which motivated the supreme court’s
decision in Chicago & North Western—does not occur under § 706.057.
¶53 Second, Chicago & North Western addressed whether WIS. STAT.
§ 700.30 violated procedural and substantive due process. Here, Lakeland argues
WIS. STAT. § 706.057(3) is unconstitutional because it results in a taking of
Lakeland’s property without just compensation. Although the Chicago & North
Western court noted that § 700.30 did not provide compensation for mineral rights
owners whose rights reverted to surface owners, the court did not expressly analyze
whether that statute violated either the Takings Clause or article I, section 13 of the
Wisconsin Constitution. Lakeland does not explain why the court’s due process
analysis in Chicago & North Western is relevant to Lakeland’s argument that
§ 706.057(3) results in an unconstitutional taking.
¶54 Third, and perhaps most importantly, after the Wisconsin Supreme
Court decided Chicago & North Western, the United States Supreme Court issued
23
its decision in Texaco. Texaco involved an Indiana statute “providing that a severed
mineral interest that is not used for a period of 20 years automatically lapses and
reverts to the current surface owner of the property, unless the mineral owner files
a statement of claim in the local county recorder’s office.” Texaco, 454 U.S. at 518.
Similar to WIS. STAT. § 706.057(3), the Indiana statute contained a “2-year grace
period in which owners of mineral interests that were then unused and subject to
lapse could preserve those interests by filing a claim in the recorder’s office.”
Texaco, 454 U.S. at 518-19. The Indiana statute did not “require that any specific
notice be given to a mineral owner prior to a statutory lapse of a mineral estate,”
although it did set forth a procedure by which a surface owner could give notice that
a mineral interest had lapsed. Id. at 520.
¶55 The plaintiffs in Texaco—who were owners of lapsed mineral
rights—asserted that the Indiana statute was unconstitutional on several grounds.
The Supreme Court, however, rejected each of their arguments. First, the Court
determined that Indiana had “the power to provide that property rights of this
character shall be extinguished if their owners do not take the affirmative action
required by the State.” Id. at 525. The Court reasoned, “We have no doubt that,
just as a State may create a property interest that is entitled to constitutional
protection, the State has the power to condition the permanent retention of that
property right on the performance of reasonable conditions that indicate a present
intention to retain the interest.” Id. at 526.
¶56 The Court further concluded that Indiana had not exercised its power
“in an arbitrary manner” because the statute provided that a mineral owner’s rights
would not lapse if the owner did one of three things during a twenty-year period: (1)
engaged in actual production of minerals, or collected rent from another person who
produced minerals or proposed to do so; (2) paid taxes; or (3) filed a written
24
statement of claim in the county recorder’s office. Id. at 529. The Court concluded
each of those actions furthered a legitimate state interest—either encouraging
owners to develop their mineral interests or promoting the collection of property
taxes. Id. The Court stated Indiana “surely has the power to condition the
ownership of property on compliance with conditions that impose such a slight
burden on the owner while providing such clear benefits to the State.” Id. at 529-
30.
¶57 The Court next rejected the plaintiffs’ argument that the Indiana
statute resulted in the taking of private property without just compensation. The
Court explained:
In ruling that private property may be deemed to be
abandoned and to lapse upon the failure of its owner to take
reasonable actions imposed by law, this Court has never
required the State to compensate the owner for the
consequences of his own neglect. We have concluded that
the State may treat a mineral interest that has not been used
for 20 years and for which no statement of claim has been
filed as abandoned; it follows that, after abandonment, the
former owner retains no interest for which he may claim
compensation. It is the owner’s failure to make any use of
the property—and not the action of the State—that causes
the lapse of the property right; there is no “taking” that
requires compensation. The requirement that an owner of a
property interest that has not been used for 20 years must
come forward and file a current statement of claim is not
itself a “taking.”
Id. at 530.
¶58 The Court also rejected the plaintiffs’ claim that the Indiana statute
was unconstitutional because it “extinguished their property rights without adequate
notice.” Id. at 531. The Court reasoned that, generally, “a legislature need do
nothing more than enact and publish [a] law, and afford the citizenry a reasonable
opportunity to familiarize itself with its terms and to comply.” Id. at 532. The Court
25
noted that the two-year grace period in the Indiana statute “foreclose[d] any
argument that the statute [was] invalid because mineral owners may not have had
an opportunity to become familiar with its terms.” Id. The Court also observed that
property owners “are charged with knowledge of relevant statutory provisions
affecting the control or disposition of [their] property.” Id. In addition, the Court
held that the plaintiffs had no constitutional right “to be advised—presumably by
the surface owner—that their 20-year period of nonuse was about to expire.” Id. at
533.
¶59 The Indiana statute at issue in Texaco provided that a mineral rights
owner’s interest reverted to the surface owner if not used for twenty years.
Similarly, WIS. STAT. § 706.057(3) provides that a mineral rights owner’s interest
lapses if not used for twenty years. Moreover, both statutes set forth grace periods
following their effective dates in which owners who did not use their mineral rights
during the previous twenty years could take action to prevent those rights from
lapsing. The Supreme Court concluded that the statute at issue in Texaco did not
result in an unconstitutional taking of property without just compensation, and it
also concluded the statute was not unconstitutional based on any lack of notice to
mineral rights owners. The Court’s conclusions in Texaco compel a conclusion in
this case that § 706.057(3) does not result in an unconstitutional taking of
26
Lakeland’s property without just compensation, nor does the statute violate due
process for lack of notice.6
¶60 Lakeland argues, for two reasons, that we should follow Chicago &
North Western instead of Texaco. First, because Texaco did not expressly overrule
Chicago & North Western, Lakeland asserts the latter case continues to “provide
the standard for measuring the current statute.” We disagree. As noted above, even
absent the United States Supreme Court’s decision in Texaco, Lakeland’s reliance
on Chicago & North Western is misplaced because that case: (1) addressed a
statute that differed from WIS. STAT. § 706.057 in several important respects; and
(2) did not expressly address whether the prior statute was unconstitutional on the
grounds raised in this case—i.e., because it resulted in an unconstitutional taking of
property without just compensation. Chicago & North Western is therefore
materially distinguishable and, as such, does not control our analysis in this case.
¶61 Second, Lakeland contends we should follow Chicago & North
Western instead of Texaco because the United States Constitution is merely a
“floor,” and we should interpret the Wisconsin Constitution’s “analogous due
process rights” to “provide further protections.” Lakeland does not develop any
6
Notably, WIS. STAT. § 706.057 was enacted after the Supreme Court issued its decision
in Texaco v. Short, 454 U.S. 516 (1982). The drafting file for WIS. STAT. § 706.057 contains an
analysis by the Legislative Reference Bureau, which includes notes prepared by the Legislative
Council. Those notes acknowledge that WIS. STAT. § 700.30 had recently been found to be
unconstitutional in Chicago & North Western Transportation Co. v. Pedersen, 80 Wis. 2d 566,
259 N.W.2d 316 (1977). The notes also discuss the Supreme Court’s holding in Texaco and the
Indiana statute. The notes then state:
The legislative council mining committee concluded that the
U.S. supreme court thoroughly considered all relevant legal issues
raised by the Indiana statute, and resolved those issues on grounds
which should be acceptable to Wisconsin courts. Accordingly, the
mining committee is proposing a mineral registration statute for
Wisconsin based on the model provided by the Indiana statute.
27
argument, however, explaining why it believes we should interpret the Wisconsin
Constitution as providing greater protection than the federal constitution under the
circumstances of this case.
¶62 Although Wisconsin courts may conclude that the Wisconsin
Constitution provides greater protection than the federal constitution, we do so
“only in cases where either the state constitution or ‘the laws of this state require
that greater protection of the citizens’ liberties ... be afforded.’” State v. Agnello,
226 Wis. 2d 164, 180, 593 N.W.2d 427 (1999) (citation omitted). “Where … the
language of the provision in the state constitution is ‘virtually identical’ to that of
the federal provision or where no difference in intent is discernible, Wisconsin
courts have normally construed the state constitution consistent with the United
States Supreme Court’s construction of the federal constitution.” Id. (citation
omitted). Here, Lakeland has not developed any argument that the relevant
provisions in the state and federal constitutions are materially different, or that there
is any discernable difference in their intent. We therefore decline to interpret the
Wisconsin Constitution as providing greater protection for Lakeland than the United
States Constitution.7
¶63 Ultimately, Lakeland has failed to meet its heavy burden to prove,
beyond a reasonable doubt, that WIS. STAT. § 706.057(3) is unconstitutional as
applied. As such, Lakeland has not established that the circuit court made a manifest
7
In addition, we observe that the although the plaintiffs in Chicago & North Western
asserted claims under both the state and federal constitutions, the Wisconsin Supreme Court did
not separately analyze those claims. Instead, the court stated that the due process protections
provided by the state and federal constitutions are “substantially equivalent.” Chicago & N.W., 80
Wis. 2d at 571 n.1. That statement further undermines Lakeland’s argument that we should follow
Chicago & North Western, instead of Texaco, because the Wisconsin Constitution provides greater
protection than the United States Constitution.
28
error of law when interpreting that statute. We therefore conclude that the court did
not erroneously exercise its discretion by denying Lakeland’s motion for
reconsideration.
By the Court.—Orders affirmed.
29