Town of Beloit v. County of Rock

SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE

¶ 50. (dissenting). I would affirm the order of the circuit court granting summary judgment to the inter-venors on the ground that the town's proposed expenditure for the development of the subdivision did not serve a public purpose.¹

¶ 51. An expenditure is for a public purpose if it provides a direct advantage or benefit to the public at large. It is not for a public purpose if the advantage to the public is indirect, remote, or uncertain.²

¶ 52. The constitutional public purpose test is satisfied when the purposes expressed by the legislative body or "conceived" by the court rationally justify the expenditure. In determining whether a public purpose exists the judiciary accords the legislative branch deference and thus plays a limited role. Nevertheless, the court does not merely rubber-stamp government expenditures. The state and federal constitutions demand that courts perform their independent function to assess the realistic operation of the law to protect the public. A court "is not bound by the legislature's enactment or declarations regarding its purpose, for it is the court's constitutional burden to examine the challenged legislation and assess its realistic operation."³

¶ 53. The combination of goals enunciated by the majority opinion as constituting a legitimate and valid public purpose for the Town of Beloit's expenditures properly includes a list of benefits that might conceivably, in some circumstances, provide a direct benefit to taxpayers and thereby satisfy the public purpose doctrine. An expenditure of funds that is legitimately designed to create jobs, promote orderly growth, increase the tax base, and preserve an environmentally sensitive area is made for a public purpose.

¶ 54. I dissent in this case, however, to express my conviction that some of the goals on which the majority opinion rests its conclusion are merely assertions unsupported by the facts of this case while others are admittedly hoped for but distant outcomes, not justifications. The public purpose doctrine becomes a charade if a town may justify expenditures by merely offering enough of the proper buzzwords, "job creation," "orderly growth," "increasing the tax base," and "environment concerns," without any facts to back up the assertions. Moreover, judicial review cannot begin and end simply with the recitation of those buzzwords, without any analysis.

¶ 55. I dissent because I conclude on the basis of this record that it is clear beyond a reasonable doubt that the taxpayers of the Town of Beloit will be paying taxes to support the sale of lots for the future construction of private housing from which any benefit to the taxpayers is indirect, remote, and uncertain.

¶ 56. I also write separately to object strenuously and vehemently to the continuing inclination of this court to reach-out-and-decide-issues-not-before-the-court, whether it does so off-handedly in footnotes or squarely in the opinion's text.

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¶ 57. This case is before the court on summary judgment and so our analysis is based upon stipulated facts and affidavits. The parties' stipulation regarding the public purpose states only that the development is based on a policy decision that the town will be able to sell the lots to private individuals, realize a profit, expand the town's tax base, and open up the northwest side of the town in an orderly planned manner. The affidavits do not discuss any particular public purpose except in passing and in conclusory terms. Indeed, analysis of the record exposes the town's asserted justifications and those conceived of by the majority of this court as nothing more than a recitation of buzzwords.

¶ 58. I begin by looking at the four justifications upon which the majority opinion rests its holding: job creation, expanding the tax base, promoting orderly growth, and environmental conservation.

¶ 59. The majority opinion lists job creation as an express goal of the town's expenditure in this case, despite the fact that the town did not articulate that benefit as a goal in its stipulation, brief, or oral argument. Indeed, there is no evidence in the record that the Town of Beloit ever intended the expenditure of monies to develop and sell property in the Heron Bay subdivision to create jobs, let alone that the expenditure would in fact create jobs.

¶ 60. The majority opinion' includes this noble public goal based solely upon a single affidavit from the town's attorney, asserting in broad terms, not necessarily related to this subdivision development, that "the Town of Beloit has a history of leading development for the benefit of its citizens. The purpose of development has been to develop jobs, a greater tax base for the community and places for citizens to live."

¶ 61. No evidence appears in the record of the types of jobs that would be created in this case, who would receive those jobs, or how long those jobs would last. The only jobs immediately on the horizon may be jobs related to development of the subdivision. If homes are constructed in the future, one-time construction jobs might be made available in the community. A public purpose cannot rest on conjecture alone.

¶ 62. The court's emphasis on the public purpose of preservation of an environmentally sensitive strip of land along the Rock River also amounts to reliance on buzzwords. This case began as a suit by the Town of Beloit challenging conditions that the County of Rock placed upon its approval for the development of the Heron Bay lands. One of the challenged conditions was that a 300-foot strip of land along the Rock River be dedicated as park and open space that would allow it to be open to the public. The Town of Beloit rejected this approach to environmental conservation, arguing that the town had a better plan: preserve this area by extending the lots all the way to the river and imposing restrictive covenants prohibiting development in this area without permission of the lot owners or the town.

¶ 63. The validity of this environmental condition will apparently still be before the circuit court. The court of appeals noted that "because there seems to be a factual dispute whether the town will voluntarily create such an easement, we decline to consider whether the easement is an additional public purpose."⁴ The majority opinion apparently feels no such restraint.

¶ 64. In any event, it is unclear why any expenditure of funds for subdivision improvement is necessary for environmental protection of land the town owns along the river. The monies expended go to the development of the sites, not the creation or enforcement of any environmental easement or covenant. According to the parties' stipulation, the public can access these lands for recreation and enjoyment at the present time. To conclude that the town is justified in expending funds for sewer, water, roads, gas, electricity, storm sewer management and any other appurtenances necessary for development of the subdivision for sale for homes because the public would benefit from no development on a particular strip of town-owned land is doublespeak.

¶ 65. The two other goals in the combination of objectives the majority opinion says supports the expenditures for a public purpose are the promotion of orderly growth and increasing the tax base. The town, however, makes no showing of the relationship of the subdivision to orderly growth.. Orderly growth is accomplished by a master plan, zoning codes, and regulation of private land developers. The Town of Beloit has such a master plan in place. How the town is promoting orderly growth by development of the subdivision is therefore unclear. The majority opinion appears to have accepted the town's mere suggestion of promoting orderly growth. It certainly cannot base its conclusion on facts because the record is devoid of any such facts.

¶ 66. The final objective of the expenditures is to increase the tax base. The tax base will increase if the lots are sold and houses are constructed. Yet the stipulation states that the "Town has not sold any portion of the Heron Bay Lands as of this date [December 7, 1999]. The Town has no guarantee that anyone will purchase any of the future residential lots. ..."

¶ 67. The majority opinion's combination of goals justifying the expenditures in this case thus boils down to this: the expenditure serves an acceptable public purpose because the town's tax base might be enhanced. I disagree with this position. An enhanced tax base from the sale of land and the construction of homes is an indirect, remote, and uncertain benefit of the expenditure in the present case and is not a sufficient public purpose to justify the town's running a for-profit real estate development business and engaging in the nontraditional enterprise of building residential home sites.

¶ 68. Next we turn to the two additional goals the town asserted as justifications for the expenditure in this case that the majority opinion rightly ignores. Both of them are similarly indirect, remote, and too uncertain to constitute public purposes.

¶ 69. First, the town freely admits in the stipulation that it is acting with the hope of making a profit. The town has the power to sell property. The majority opinion goes to great length to explain this statutory authority. Even where a government entity acts pursuant to a valid law, however, it is still subject to the constitution and the public purpose doctrine. The issue in this case is whether the town may expend funds for subdivision development to make a bigger profit on the sale. No evidence was presented analyzing either the expected revenue or market demand for the lots. The justification of a hoped-for profit, pursued to its logical end, would justify the expenditure of public funds for any potentially profitable endeavor in which the town seeks to engage. That cannot be what the public purpose doctrine means.

¶ 70. Second, the affidavit from the town attorney asserts in broad terms, not necessarily related to this subdivision development, that development in the town is to provide places for citizens to live. Nothing in the record evidences a need for single-family residential housing or the lack of private capital to develop such housing.⁵ Several private ventures proposed development of the land, but the Town rejected the proposals. In Heimerl v. Ozaukee County, 256 Wis. 151, 40 N.W.2d 564 (1949), the court held that building private driveways was not "allied with a public purpose" and declared the expenditures unconstitutional. Similarly, the development of river front lots in and of itself is not allied with a public purpose.

¶ 71. The public purpose doctrine demands deference to the legislative branches of government. Nevertheless, the court must examine the operational facts concerning government expenditures in order to determine whether a direct benefit to the public results.⁶ No facts exist in the record in the present case or can be conceived by the court to support a public purpose. I therefore conclude, as did the circuit court, that the possibility of public benefit is too indirect, remote, and uncertain to sustain the expenditures.

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¶ 72. There is a growing tendency for this court to reach out and decide issues that are neither squarely presented nor adequately briefed and argued by the parties.⁷ In the present case, the majority opinion does exactly that in its discussion of the relationship between the public purpose doctrine and the public use doctrine under eminent domain. Specifically, the majority opinion declares that "[although the test under the public use clause, like the test under the public purpose doctrine, is deferential to the legislative determination, the analyses are not identical."⁸ Because I believe that this tendency is detrimental to the development of Wisconsin law, I dissent.

¶ 73. My dispute is not with the correctness of the legal analysis or conclusion the majority opinion reaches with regards to public purpose and public use.⁹ I do not know whether the majority opinion is correct. The majority opinion offers no authority for these statements of law. It cites cases from other jurisdictions relating to public use that do not bind this court, and I do not understand the parenthetical comments included or the purpose of citing these cases.

¶ 74. My gripe is with the very existence of the discussion in the present case. The majority opinion's discussion is pure, unadulterated dicta, and it has no place in the court's opinion. The intervenors' brief merely cautions that a broad definition of public purpose might result in a broad definition of public use in eminent domain law, but neither the opposing parties nor amici argued or briefed the issue.¹⁰

¶ 75. The dangers of this court's inclination to reach out either in the text or in a footnote and decide an issue not before it, without full inquiry and without full discussion, are graphically illustrated in State v. Petty, 201 Wis. 2d 337, 548 N.W.2d 817 (1996), and State v. Hansen, 2001 WI 53, 243 Wis. 2d 328, 347, 627 N.W.2d 195.

¶ 76. In footnote 10 of the Petty decision, the court stated that it need not and therefore would not address a particular issue. In footnote 13, however, the Petty court then proceeded, in a cursory and superficial manner, to address the issue it previously stated it would not address.

¶ 77. The very issue referred to in footnotes 10 and 13 in Petty then reached the court in State v. Hansen. The Hansen court, discussing the conflicting Petty footnotes and the Petty court's incomplete inquiry into the issue, refused to abide by Petty footnote 13, characterizing the footnote as "providing non-essential commentary." Hansen, 243 Wis. 2d 328, ¶ 32. This characterization, however, is problematic under Wisconsin law. Justice Wilcox, the author of the Petty opinion, and Justice Crooks, the author of the majority opinion in the present case, argued in their dissent in Hansen that it is the rule in Wisconsin that a discussion of issues not decisive of a controversy is a binding judicial act, not dicta. See Hansen, 243 Wis. 2d 328, ¶ 60 (Wilcox, J., dissenting) (citing State v. Kruse, 101 Wis. 2d 387, 392, 305 N.W.2d 85 (1981)).

¶ 78. The relationship between the public purpose doctrine and the public use doctrine under eminent domain will inevitably be raised in a case before this court. When that happens, some litigant will argue that the majority opinion is an obstacle to a thorough, thoughtful, and fully briefed consideration of the issue, asserting the rule of stare decisis and pointing out that the majority's discussion is binding precedent and not mere dicta.

¶ 79. The majority's discussion of the relationship between public purpose and public use under eminent domain, however, is mere dicta, and should the issue ever squarely present itself in this court, litigants and justices will be wise to abide by the other line of Wisconsin cases that assert the generally accepted doctrine that "a statement not addressed to the question before the court or necessary for its decision" is dictum, Am. Family Mut. Ins. Co. v. Shannon, 120 Wis. 2d 560, 565, 356 N.W.2d 175 (1984), and not binding on the court, Reiter v. Dyken, 95 Wis. 2d 461, 474, 290 N.W.2d 510 (1980).

¶ 80. For the reasons set forth, I dissent.

¶ 81. I am authorized to state that Justice ANN WALSH BRADLEY joins this dissent.

2 Libertarian Party of Wisconsin v. State, 199 Wis. 2d 790, 810, 546 N.W.2d 424 (1996) (citing State ex rel. Wisconsin Dev. Auth. v. Dammann, 228 Wis. 147, 277 N.W. 278 (1938)).

3 Hopper v. Madison, 79 Wis. 2d 120, 128, 256 N.W.2d 139 (1977).

4 Town of Beloit v. County of Rock, 2001 WI App 256, ¶ 26 n.6, 249 Wis. 2d 88, 637 N.W.2d 71.

5 Private developers were rejected by the town. The statutes reflect a pattern authorizing villages and towns with village powers to increase housing but only for certain segments of the population and subject to limitations and prescribed procedures. See, e.g., Wis. Stat. §§ 66.1203 (housing authority not for profit); 66.1213 (housing authorities for elderly persons); 66.1301 (urban development); 66.1335 (housing and community development authorities). One inference from these statutes is that a town does not have the power to provide housing for purposes not similar to those set forth in the statutes.

6 See, e.g., State ex rel. Hammermill Paper Co. v. La Plante, 58 Wis. 2d at 50-53; State ex rel. Bowman v. Barczak, 34 Wis. 2d 57, 70-71, 148 N.W.2d 683 (1967).

7 See majority op., ¶ 43 n.15.

8 Majority op., ¶ 44.

9 Majority op., ¶¶ 43-44.

10 See majority op., ¶ 43 n.15.