Village of Slinger v. Polk Properties, LLC

2021 WI 29
SUPREME COURT OF WISCONSIN
CASE NO.: 2017AP2244
COMPLETE TITLE: Village of Slinger,
Plaintiff-Respondent,
v.
Polk Properties, LLC and Donald J. Thoma,
Defendants-Third-Party
Plaintiffs-Appellants-Petitioners,
v.
Russell Brandt, Rick Gundrum, Jeff Behrend, Lee
Fredericks, John Dukelow, Richard Kohl, Dean
Otte, Jessi Balcom and ABC Insurance Company,
Third-Party Defendants.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 388 Wis. 2d 475,934 N.W. 2d 475
(2019 – unpublished)
OPINION FILED: April 1, 2021
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: November 10, 2020
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Washington
JUDGE: Sandy A. Williams
JUSTICES:
REBECCA GRASSL BRADLEY, J., delivered the majority opinion of
the Court, in which ROGGENSACK, C.J., ANN WALSH BRADLEY, DALLET,
and KAROFSKY, JJ., joined. ZIEGLER, J., filed a concurring
opinion.
NOT PARTICIPATING:
HAGEDORN, J., did not participate.
ATTORNEYS:
For the defendants-third-party-plaintiffs-appellants-
petitioners, there were briefs filed by Colleen W. Jones, Terry
J. Booth, and Rogahn Jones LLC, Waukesha. There was an oral
argument by Terry J. Booth.
For the plaintiff-respondent, there was a brief filed by H.
Stanley Riffle and Municipal Law & Litigation Group, S.C.,
Waukesha. There was an oral argument by H. Stanley Riffle.
2
2021 WI 29
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2017AP2244
(L.C. No. 2011CV1224)
STATE OF WISCONSIN : IN SUPREME COURT
Village of Slinger,
Plaintiff-Respondent,
v.
Polk Properties, LLC and Donald J. Thoma, FILED
Defendants-Third-Party
Plaintiffs-Appellants-Petitioners, APR 1, 2021
v. Sheila T. Reiff
Clerk of Supreme Court
Russell Brandt, Rick Gundrum, Jeff Behrend, Lee
Fredericks, John Dukelow, Richard Kohl, Dean
Otte, Jessi Balcom and ABC Insurance Company,
Third-Party Defendants.
REBECCA GRASSL BRADLEY, J., delivered the majority opinion of
the Court, in which ROGGENSACK, C.J., ANN WALSH BRADLEY, DALLET,
and KAROFSKY, JJ., joined. ZIEGLER, J., filed a concurring
opinion.
BRIAN HAGEDORN, J., did not participate.
REVIEW of a decision of the Court of Appeals. Reversed and
cause remanded to the circuit court.
No. 2017AP2244
¶1 REBECCA GRASSL BRADLEY, J. Polk Properties, LLC and
its sole member, Donald J. Thoma (collectively, "Polk"1), seek
review of the court of appeals decision, which affirmed the
circuit court's order requiring Polk to pay forfeitures for
zoning violations, damages for the Village of Slinger's lost
property tax revenue, and attorney's fees.2 Whether these
forfeitures, damages, and fees can be sustained depends upon
whether Polk abandoned the legal nonconforming use of the
property after its zoning classification was changed from
agricultural to residential. Applying Wisconsin's two-part test
for abandonment of a nonconforming use set forth in State ex
rel. Schaetz v. Manders and State ex rel. Morehouse v. Hunt,3 we
conclude that Polk did not abandon the lawful nonconforming use
because it continued to use the property in the same manner in
which it had been used before the zoning change. It is
undisputed that the farmer who farmed the land before Polk
acquired it continued to cut and remove vegetation on the
property after Polk purchased it and after the rezoning.
Because the agricultural use continued without cessation, Polk
1 We refer to Polk Properties and Thoma collectively as
"Polk" except when necessary to refer to them separately.
2 The court of appeals affirmed the summary judgment granted
by the Honorable Sandy A. Williams, Washington County Circuit
Court. See Village of Slinger v. Polk Props., LLC, No.
2017AP2244, unpublished slip op., (Wis. Ct. App. July 10, 2019).
3 State ex rel. Schaetz v. Manders, 206 Wis. 121, 238 N.W.
835 (1931); State ex rel. Morehouse v. Hunt, 235 Wis. 358, 291
N.W. 745 (1940).
2
No. 2017AP2244
remained in compliance with the applicable zoning code
provisions and Polk's use of the property constituted a lawful
nonconforming use for which it cannot be penalized.
Accordingly, we reverse the decision of the court of appeals and
vacate the circuit court's order imposing forfeitures, its
monetary judgment for real estate taxes, its order authorizing
special assessments, special charges, and fees to be levied
against Polk, and its order enjoining Polk from using the
property for agricultural purposes. We remand to the circuit
court for further proceedings consistent with this decision.
I
¶2 This case arises out of a long-term legal conflict
between the Village of Slinger and Polk, including an earlier
appearance in this court. See Thoma v. Village of Slinger, 2018
WI 45, 381 Wis. 2d 311, 912 N.W.2d 56.4 We recite only the
background necessary in order to resolve the legal issue
presented.
¶3 Polk's property comprises 82 acres of rural land
located in the Village of Slinger, which the Melius family
4 Thoma v. Village of Slinger, 2018 WI 45, 381 Wis. 2d 311,
912 N.W.2d 56, involved the consolidation of two cases,
resulting in a decision of this court that Polk had failed to
present enough evidence to the Village of Slinger Board of
Review sufficient to overturn the 2014 tax assessment, which had
been based on a change in the classification of the property
from "agricultural use" to "residential use." Id., ¶¶2, 7.
3
 No. 2017AP2244
operated as a farm before Polk purchased the parcel in 2004.5
Polk worked with the Village of Slinger on his proposed plan to
convert the farmland to a residential subdivision known as
Pleasant Farm Estates, which would consist of three phases of
development over the course of several years. In February 2007,
the Village of Slinger approved Polk's planned residential
subdivision development. Installation of the infrastructure for
the development began in June 2007 and was completed in August
2008. Two of the lots in phase one of the project were sold and
residential homes were constructed on those lots. Sales of
additional lots stalled, however, due to the 2008 economic
recession and the collapse of the real estate market.
¶4 Throughout the entire development project, Ronald
Melius continued to farm the property by cutting and removing
5The date of purchase is unclear from the record. There
are references to Polk having purchased the Melius farm in 2004
or 2005. The court of appeals said "Polk purchased the property
in 2006 in order to develop the farmland into a residential
subdivision." Village of Slinger v. Polk Props., LLC, No.
2017AP2244, unpublished slip op., ¶2 (Wis. Ct. App. July 10,
2019). On November 16, 2005, Polk petitioned the Village of
Slinger to rezone the property from an A-1 Agricultural zone to
an R-2 Residential zone, and the Village granted the request on
December 19, 2005. The exact date of Polk's purchase of the
Melius farm is immaterial to our resolution of the legal issue
presented.
4
No. 2017AP2244
vegetation from the land.6 This continuous farming formed the
basis for the Village of Slinger's lawsuit against Polk, in
which the Village of Slinger sought an injunction from the
circuit court ordering Polk to stop the agricultural use of the
property. Melius' continued farming of the property is the
particular conduct that led the circuit court to conclude Polk
violated the residential zoning ordinance as well as the circuit
court's order, for which that court found Polk in contempt.
After many motions and multiple hearings, the circuit court
granted summary judgment in favor of the Village of Slinger and
ordered Polk to pay the Village of Slinger "daily forfeitures"
because it "used or permitted use of the subject property for
agricultural purposes continuously from before October 7, 2009,
through August 21, 2017." Ultimately, the circuit court ordered
Polk Properties, LLC to pay to the Village of Slinger $28,760,
representing daily zoning violation forfeitures, as well as
$48,953.26 in additional real estate taxes covering tax years
2009 to 2013. The circuit court additionally ordered Thoma to
6 A precise definition of "farming" is not required for us
to resolve the legal issue presented. Polk contends that
Melius' farming consisted of cutting and removing the grasses
that were growing on the property. The Village of Slinger
contends that the "cutting and removing" constituted improper
agricultural use of the property in violation of the residential
zoning code. No one disputes that the property was being used
for such farming continuously——both before Polk purchased the
property and after the property's zoning classification was
changed from agricultural to residential. It is therefore not
necessary for this court to specifically define "farming," or
"agricultural use" in the context of zoning classification
versus "agricultural use" for tax assessment purposes.
5
No. 2017AP2244
pay to the Village of Slinger $28,760, representing daily zoning
violation forfeitures as well as $12,017 for additional real
estate taxes covering tax years 2009 to 2013.
¶5 Polk appealed the circuit court's orders and the court
of appeals affirmed. Relying on an opinion from the Rhode
Island Supreme Court, Duffy v. Milder, 896 A.2d 27 (R.I. 2006),
the court of appeals decided that Polk had abandoned its legal
nonconforming use. Village of Slinger v. Polk Props., LLC, No.
2017AP2244, unpublished slip op., ¶20 (Wis. Ct. App. July 10,
2019) (citing Duffy, 896 A.2d at 38-39). Polk petitioned this
court for review, which we granted.
II
¶6 We review the grant of summary judgment against Polk
de novo. CED Props., LLC v. City of Oshkosh, 2018 WI 24, ¶17,
380 Wis. 2d 399, 909 N.W.2d 136 ("We independently review a
grant of summary judgment using the same methodology of the
circuit court and the court of appeals." (quoted source
omitted)). Resolution of this dispute requires us to interpret
and apply the Village of Slinger's ordinances, an issue of law
we review de novo. Town of Rhine v. Bizzell, 2008 WI 76, ¶13,
311 Wis. 2d 1, 751 N.W.2d 780 ("The interpretation and
application of an ordinance to an undisputed set of facts is a
question of law, which this court decides de novo.") (quoted
source omitted).
III
¶7 The issue in this case is whether Polk abandoned the
nonconforming use of its property after the zoning
6
No. 2017AP2244
classification was changed from agricultural to residential use.
Polk maintains that the cutting and removing of the vegetation
on the property was not abandoned after purchase, but in fact
occurred continuously as part of the maintenance of the
property. The Village of Slinger agrees that the farming
occurred continuously, but argues that specific actions Polk
took to convert the property into a residential subdivision
constituted abandonment. Specifically, the Village of Slinger
pinpoints Polk's request for the zoning change, the Subdivision
Development Agreement for Pleasant Farm Estates ("the
Development Agreement"), which limited the property to
residential use,7 and the Declaration of Covenants, Conditions
and Restrictions of Pleasant Farm Estates ("the Declaration")
with residential restrictions executed and recorded by Polk.8
It is undisputed that the Development
7 Agreement was
entered into to develop the property into a residential
subdivision. A specific residential limitation does not exist
in the portion of the 2007 Development Agreement in the record.
The 2008 Amended Development Agreement, however, does
specifically state that Polk's subdivision "was zoned for only
single-family use."
Article V of the Declaration of Covenants, Conditions and
8
Restrictions of Pleasant Farm Estates ("the Declaration")
executed and recorded by Polk states, in relevant part, that
"[e]ach Lot shall be occupied and used only for single family
residential purposes and for no other purpose. No business,
commercial or individual activity (except as allowed under
applicable zoning codes) shall be conducted on any lot . . . ."
However, Article X of the Declaration reserves the right of Polk
Properties, LLC to "use the Outlots, and any unsold Lots in any
manner as may facilitate the sale of Lots including, but not
limited to, maintaining a sales and/or rental office or offices,
models and signs and/or showing the Lots."
7
No. 2017AP2244
¶8 The court of appeals agreed that these specific acts
by Polk constituted legal abandonment regardless of any farming
still taking place on the property. Rather than relying on
Wisconsin law, however, the court of appeals rested its
determination on a single foreign case at odds with our own
jurisprudence. Wisconsin law requires two elements for
abandonment of a legal nonconforming use: (1) actual cessation
of the nonconforming use and (2) an intent to abandon the
nonconforming use. See Schaetz, 206 Wis. at 124; Morehouse, 235
Wis. at 369-70. Although Polk's specific acts may signify an
intent to abandon the nonconforming use, the undisputed fact
that Polk continued farming on the property confirms there was
no actual cessation of the nonconforming use. Wisconsin's two-
pronged abandonment test requires satisfaction of both factors;
accordingly, the court of appeals erred in concluding Polk
abandoned the nonconforming use, and we reverse its decision.9
9Relying on State ex rel. Peterson v. Burt, 42 Wis. 2d 284,
166 N.W.2d 207 (1969), Justice Annette Ziegler's concurrence
recasts this case as a statutory claim neither party raised nor
asked us to resolve. In Peterson, "[t]he sole issue presented"
was "as follows: Does sec. 28.05(3)(f) 1, Madison General
Ordinances, providing for relinquishment of nonconforming use if
such use is discontinued for a continuous period of one year,
eliminate the necessity of proving intent to abandon?" In this
case, there is no dispute that Polk continued the nonconforming
agricultural use of the property, which prompted the Village of
Slinger to (successfully) seek an injunction against Polk in
order to stop its agricultural use and for which the Village of
Slinger received an award of forfeitures and damages. Not
surprisingly, neither party in this case asked the court to
apply the 12-month time period for discontinuance set forth in
Wis. Stat. § 62.23(7) and in Village of Slinger Zoning Ordinance
§ 8.01 because both parties agree that Polk continued its
agricultural activity on the property, rendering the statutory
8
No. 2017AP2244
¶9 Generally, when the zoning restrictions applicable to
a property are changed, property owners may continue to use
their property in a manner that was allowed under the prior
zoning ordinance. See Wis. Stat. § 62.23(7)(h) (2017-18).10
Although prohibited under the newly applicable zoning ordinance,
the existing use becomes a lawful nonconforming use. "Land use
qualifies as 'nonconforming' if there is an active and actual
use of the land and buildings which existed prior to the
commencement of the zoning ordinance and which has continued in
the same or a related use until the present." Waukesha Cnty. v.
timeframe irrelevant.
The crux of the Village of Slinger's argument rested on its
contention that Polk's nonconforming use was not legal. Unlike
Peterson, in this case Slinger argued, and the court of appeals
agreed, that Polk abandoned its unlawful agricultural use not by
discontinuing it, but by seeking the zoning change to
residential; entering a Developer's Agreement to convert the
property to residential; and recording a Declaration restricting
the property to residential use only. Village of Slinger v.
Polk Props., LLC, No. 2017AP2244, unpublished slip op., ¶¶20-22
(Wis. Ct. App. July 10, 2019). This court was asked to
determine whether such actions constitute abandonment of the
nonconforming use, notwithstanding its uninterrupted
continuance. Justice Ziegler erroneously contends the two-part
test for abandonment of a nonconforming use was "abrogated" 80
years ago. Concurrence, ¶29. To the contrary, both Schaetz and
Morehouse, which set forth the test, remain good law and have
not been "abrogated," "set aside," or "abandoned." Because
farming undisputedly occurred continuously on Polk's property
before, during, and after the rezoning, the 12-month time period
for discontinuance set forth in Wis. Stat. § 62.23(7) and in
Village of Slinger Zoning Ordinance § 8.01 is simply irrelevant
to the analysis. Justice Ziegler's concurrence answers a
question the parties did not pose.
All subsequent references to the Wisconsin Statutes are
10
to the 2017-18 version unless otherwise indicated.
9
No. 2017AP2244
Seitz, 140 Wis. 2d 111, 115, 409 N.W.2d 403 (Ct. App. 1987)
(citation omitted). Section 62.23(7)(h) provides:
Nonconforming uses. The continued lawful use of a
building, premises, structure, or fixture existing at
the time of the adoption or amendment of a zoning
ordinance may not be prohibited although the use does
not conform with the provisions of the ordinance. The
nonconforming use may not be extended . . . .
(Emphasis added.) The Village of Slinger's Zoning Ordinance
adopts this general rule. Ordinance § 8.01 provides:
The lawful nonconforming use of a structure, land or
water, existing at the time of the adoption or
amendment of this ordinance may be continued, although
the use does not conform with the provisions of this
ordinance, however; A. Only that portion of the land
or water in actual use may be so continued and the
structure may not be extended, enlarged,
reconstructed, substituted, moved, or structurally
altered except when required to do so by law or order
or so as to comply with the provisions of this
ordinance.
(Emphasis added.) If the property owner abandons the lawful
nonconforming use after the property's zoning classification has
changed, then the property may be used only in a manner
consistent with its current zoning classification. Similarly,
if the property owner changes or enlarges the prior
nonconforming use, he is thereafter bound by the current zoning
restrictions. Waukesha Cnty. v. Pewaukee Marina, Inc., 187
Wis. 2d 18, 24, 522 N.W.2d 536 (Ct. App. 1994); Wis. Stat.
§ 62.23(7)(h) ("If the nonconforming use is discontinued for a
period of 12 months, any future use of the building, premises,
structure, or fixture shall conform to the ordinance.").
10
No. 2017AP2244
¶10 As set forth by this court almost a century ago,
Wisconsin applies a two-part test to determine whether a
property owner has abandoned the prior use: (1) actual
cessation of the nonconforming use, which requires more than
just a "mere suspension" of the use; and (2) an intent to
abandon the nonconforming use. See Schaetz, 206 Wis. at 124;
Morehouse, 235 Wis. at 373. In State ex rel. Schaetz v.
Manders, 206 Wis. 121, 238 N.W. 835 (1931), this court held
that, in the context of new zoning ordinances, "abandonment" of
a nonconforming use requires the owner to "voluntar[ily],
affirmative[ly], [and] complete[ly] act" to cease the
nonconforming use. 206 Wis. at 124.
¶11 In Schaetz, a dairy farm went into receivership
following a downturn in the economy and stopped conducting dairy
manufacturing on the premises. Id. at 122. Around this time,
the City of Green Bay passed a local ordinance prohibiting the
use of this land for dairy purposes, with the exception of legal
nonconforming uses. Id. at 123. Following the enactment of
this ordinance, a local buyer acquired the property and
attempted to restart dairy manufacturing on the land. Id. at
122-23. The Schaetz court held that the plaintiff could return
to using the property as a dairy, despite the local ordinance,
because the former owner only temporarily suspended the
nonconforming use and never fully ceased operating a dairy. Id.
at 124. As the court explained, "mere suspension" of a
nonconforming use does not constitute abandonment. See id.
11
 No. 2017AP2244
¶12 In State ex rel. Morehouse v. Hunt, 235 Wis. 358, 291
N.W. 745 (1940), this court reiterated its holding in Schaetz.
Specifically, the Morehouse court stated that "mere cessation of
a non-conforming use under the terms of a zoning ordinance does
not destroy the right to continue it or prevent resumption of
it." Id. at 369-70. The first element of abandonment is clear:
in order to abandon a nonconforming use, the property owner must
actually cease engaging in the nonconforming use, and a "mere
suspension" of that use does not signify abandonment. The
Morehouse court also established a second element of
abandonment: the property owner must actually intend to abandon
the nonconforming use.
¶13 In Morehouse, a property owner used his home as a
fraternity house and continued to do so as a lawful
nonconforming use after a zoning ordinance prohibited it. Id.
at 361. After the owner sold the property, the new owner began
renting rooms on the property for residential purposes——in
compliance with the zoning ordinance. Id. at 362. This was the
only commercially viable use for the property at the time.
Because demand for leasing the property as a fraternity house
collapsed during the Great Depression, "there was no present
prospect of sale for use as a fraternity house, and no
opportunity or prospect of opportunity to lease it for that
purpose." Id. at 363-64. However, the owner "constantly
contemplated eventual disposition to a fraternity if opportunity
offered." Id. at 364.
12
 No. 2017AP2244
¶14 When the owner eventually received an offer to
purchase from a college fraternity, it was conditioned on
procurement of permission for this particular use under the
zoning ordinance. Id. The issue before the Board of Zoning
Appeals and eventually the Morehouse court was whether or not
the owner had abandoned the nonconforming use when he leased the
property to a family for one year. Id. at 370. The Morehouse
court upheld the Board's and the lower court's conclusion that
the owner "did not intend to abandon the right of use of
. . . [the] fraternity house" and that the "use of it for a
residence was intended to be only temporary until opportunity
should arise to sell it for that purpose [as a fraternity
house]." Id. at 367 (emphasis added). Because the owner never
intended to abandon using the property as a fraternity house, he
was entitled to engage in the nonconforming use despite a zoning
ordinance prohibiting that use. Id. at 370.11
¶15 Instead of simply applying Wisconsin law, the court of
appeals relied entirely on the Duffy v. Milder case from Rhode
This two-factor analysis——an actual cessation of the
11
nonconforming use coupled with an intent to do so——prevails in
jurisdictions around the country. The Indiana Supreme Court has
held that "[a]bandonment requires the concurrence of an intent
to abandon and a voluntary act or failure to act signifying
abandonment." Stuckman v. Kosciusko Cnty. Bd. of Zoning
Appeals, 506 N.E.2d 1079, 1082 (Ind. 1987). Likewise, the
Massachusetts Supreme Court held that "abandonment" requires
"'the concurrence of two factors: (1) the intent to abandon and
(2) voluntary conduct, whether affirmative or negative, which
carries the implication of abandonment.'" Derby Ref. Co. v.
City of Chelsea, 555 N.E.2d 534, 538 (Mass. 1990) (quoted source
omitted).
13
No. 2017AP2244
Island. 896 A.2d 27 (R.I. 2006). In that case, the property
was originally a horse farm before being sold to developers, the
Malms, who intended to convert it into residential condominiums.
Id. at 29-30. The Malms petitioned the town to rezone the
property from farming to residential. Id. at 29. Their
rezoning request was granted, but the town required an easement
area over a 2.7 acre portion of the land, to remain in
conservation and for recreational use by the condominium owners.
Id. After the condominium project was completed, the Malms sold
a single-family residence to the Milders, who were given
assurances they could "keep horses" on the property. Id. at 30.
The Malms secured a zoning certificate, which stated "the
keeping of horses on this lot is currently considered a lawfully
nonconforming and permitted use and shall be allowed to continue
until such time as an overt action for discontinuation is
conducted by the property owner." Id. Thereafter, the Milders
asked the town for "permission to install an internal grazing
management system as well as a riding area, but the Town Council
unanimously denied their request." Id. at 30-31. Despite this
denial, the Milders "grazed approximately sixteen animals,
including llamas, alpacas, goats, and horses" and "erected
internal fences across the open space easement area." Id. at
31. The Milders' actions led to complaints from neighbors as
well as the condominium association, which sought a court order
to enjoin the Milders from using horses on the property and from
interfering with others' "access to the open space easement
area." Id. at 32. The neighbors also alleged that "the
14
No. 2017AP2244
Milders' conduct violated the express language of the open space
easement" and "constituted a nuisance." Id. at 31-32.
¶16 Although the Rhode Island Supreme Court recognized
that the Malms were entitled to use the property as a horse farm
when they purchased it, that court concluded that "the Malms
abandoned this privilege when they chose to develop their
property." Id. at 38. Applying the applicable ordinance
language defining abandonment of a non-conforming use as "either
an owners' (or legal tenant if applicable) overt act or a
failure to act which demonstrates that there is neither a claim
nor any interest in continuing the nonconforming use" the court
concluded that a successful "petition to rezone a lot to which a
nonconforming use is attached is clearly such an overt act."
Id. The Duffy court explained that "[t]his overt act manifested
their intent to abandon the use of their property as a horse
farm." Id. at 39. As a result, the Duffy court decided that
the Milders "did not acquire any nonconforming use to keep
horses on the property because any such rights had been
extinguished before the property was conveyed to them." Id.
¶17 Although Duffy also involved a zoning change requested
by a property owner to develop a former farm into a condominium
project, the governing ordinance in Duffy differs substantially
from the Village of Slinger's nonconforming use ordinance, as
well as Wisconsin law. While an intent to abandon may suffice
to establish abandonment under Rhode Island law (or at least
under the ordinances of the Town of East Greenwich), Wisconsin
15
No. 2017AP2244
law requires something more: the actual cessation of the
nonconforming use, rendering Duffy unpersuasive and inapposite.
¶18 There is no dispute that the farming on Polk's
property was a lawful use of the property under the agricultural
zoning in place before the property was rezoned to residential
use. To determine whether that legal nonconforming use was
abandoned by Polk, rendering any farming of the property in
violation of the zoning ordinance, requires the application of
Wisconsin's two-part abandonment test. We therefore consider
whether there was an actual cessation of the farming activity on
Polk's property, and if so, whether Polk demonstrated an intent
to abandon farming on the property.
¶19 In order to establish a zoning violation, the property
owner must have actually stopped the nonconforming use of the
property. See Schaetz, 206 Wis. at 124 (the owner must
voluntarily, affirmatively, and completely stop the
nonconforming use). In this case, complete cessation never
happened, at least until the circuit court imposed sanctions
against Polk following the hearing on September 5, 2017. No one
disputes that Melius continuously farmed the property before the
rezoning, during the entire time Polk attempted to develop this
property, and after the rezoning (until September 2017). The
Village of Slinger has repeatedly complained about Polk's
ongoing agricultural use of the property, taking successive
legal steps in an attempt to force Polk to stop all farming
activities on the property.
16
No. 2017AP2244
¶20 The Village of Slinger concedes that Polk did not
actually stop farming, but contends that complete cessation of
farming activity was not required to satisfy the cessation
element of the abandonment test. The Village of Slinger
believes that Polk abandoned the nonconforming use because Polk
sought and obtained the rezoning, entered into the Development
Agreement restricting the property to residential use, and
recorded the Declaration, which explicitly stated that Polk
"intends to develop a subdivision for residences." The Village
of Slinger further argues that installing residential
infrastructure and building a couple of homes on the property
constituted a cessation of agricultural use even if farming
continued on the remaining parts of the property. We disagree.
While each of these actions may evidence Polk's intent to stop
farming the property, none of them establish actual cessation of
farming.
¶21 Requesting a zoning change from agricultural to
residential in order to convert farmland into a residential
subdivision undoubtedly demonstrates the property owner's intent
to stop farming the property. Entering into the Development
Agreement and recording the Declaration for a residential
subdivision also expressed Polk's intent to stop farming the
property. Further, installing roads and infrastructure for
utilities, and platting the prior farmland into individual lots
to be sold to people who want to build their individual
residences upon them, all manifest an intent to stop farming the
property. The record irrefutably conveys Polk's intent to
17
No. 2017AP2244
convert the land from agricultural use into a residential
subdivision. These acts, however, do not equate to actual
cessation of the lawful nonconforming use.
¶22 For nearly a century, Wisconsin has required actual
cessation of a legal nonconforming use together with an intent
to stop it as prerequisites to abandonment. We have even
rejected a "mere suspension" of the nonconforming use in
considering whether the actual cessation element had been met.
See Schaetz, 206 Wis. at 124. The law requires actual cessation
in order to conclude that a property owner has abandoned the
legal nonconforming use. The record in this case overwhelmingly
demonstrates that Polk did not actually stop farming this
property, despite the Village of Slinger's repeated and
persistent attempts to end this use.
¶23 The Village of Slinger suggests that cessation of
farming on part of the property constitutes legal cessation of
that use on the entire property. A portion of Polk's property
is no longer being farmed because homes have been constructed on
the few lots that were sold, and farming has in fact ceased on
the land that now consists of roadways. The Village of Slinger
points to this partial cessation as proof that Polk "modified,
extended and enlarged" its use, thereby satisfying the
abandonment test. The Village of Slinger relies on Waukesha
County v. Pewaukee Marina, Inc., 187 Wis. 2d 18, 23-24, 522
N.W.2d 536 (Ct. App. 1994) to support its argument. Pewaukee
Marina, however, is inapposite. That case involved a change and
expansion of the nonconforming use. The Pewaukee Marina
18
No. 2017AP2244
property had been used "as a lake resort providing cottage
rentals, boat livery, fuel and bait and minor motor repair"
before a zoning change converted the property to "residential
and rendering [the property owner's] use nonconforming." Seitz,
140 Wis. 2d at 114. The business continued to operate as a
marina because zoning law protected the original nonconforming
use. Id. Seven years later, the marina changed and enlarged
the nonconforming use when it "added a retail store and a place
for lounging and entertainment" and began selling "boats, boat
lifts and piers." Pewaukee Marina, 187 Wis. 2d at 20. A jury
found these activities to be a change in the nonconforming use
and therefore in violation of the zoning ordinance. Id. at 27.
¶24 In contrast, the changes on the Polk property did not
alter or expand the nonconforming use of farming; instead, the
changes initiated the development of the property into
residential conforming use. The sale of lots, building of
homes, and installation of roads and infrastructure actually
reduced the nonconforming farming use on the property rather
than enlarging it. The Village of Slinger has not presented nor
have we located any case suggesting that merely reducing the
nonconforming use constitutes actual cessation. To the
contrary, courts in other jurisdictions have rejected the
argument that decreasing the nonconforming use is tantamount to
abandonment. See Feldman v. Zoning Hearing Bd. of City of
Pittsburgh, 492 A.2d 468, 470 (Pa. 1985) ("The mere fact that
Appellant proposes to reduce the space on the property devoted
to the nonconforming use and add to it a conforming use does not
19
No. 2017AP2244
constitute an abandonment."); Ernst v. Johnson Cnty., 522
N.W.2d 599, 603 (Iowa 1994) ("A decrease in business does not
amount to a per se abandonment of a nonconforming use.
Discontinuance of one or more, but not all operations of the
quarry did not amount to a voluntary discontinuance of the
use.") (citation omitted); Rhine v. City of Portland, 852 P.2d
874, 877 n.1 (Or. Ct. App. 1993) ("[A] nonconforming use can
exist or continue at some level that is less than an exhaustive
use of the affected property, as long as the ongoing use is of
the same nature as and within the scope of the original one or
of any altered or expanded use that has been lawfully
allowed.").
¶25 Reducing the nonconforming farming use progresses the
property into compliance with the residential zoning ordinance.
It would be illogical to hold that reducing the nonconforming
use somehow enlarges or expands the nonconforming use. If
farming occurred on the property before rezoning, it may
continue as a legal nonconforming use until the property owner
actually abandons that use by terminating the farming
altogether.
¶26 This property comprises 82 acres of farmland that Polk
intends to convert to a 100-lot residential subdivision. At the
time the circuit court granted summary judgment to the Village
of Slinger in 2012, only one lot had been sold for this purpose.
Because Melius continued to engage in the same cutting and
removal of vegetation that he carried out on this land before
the zoning classification changed from agricultural to
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No. 2017AP2244
residential, the agricultural activity has continued "in the
same or related use" and the farming remains a legal
nonconforming use of the property. See City of Lake Geneva v.
Smuda, 75 Wis. 2d 532, 536-37, 249 N.W.2d 783 (1977).
Residential use on some parts of the property does not negate
the continued farming on other portions of the land. When
farming continues on part of the property, there has not been
complete cessation of this nonconforming use. Partial
conforming use does not trump Wisconsin's two-factor test for
abandonment of nonconforming use. Determining whether
abandonment occurred depends upon application of the two-factor
test, not whether some use of the property conforms to the
current zoning classification.12
IV
¶27 We conclude that Polk did not abandon the lawful
nonconforming use of the property because farming occurred
continuously on the property before, during, and after the
rezoning. Polk never ceased cutting and removing vegetation on
the property. Because this nonconforming use continued without
cessation, Polk's use of the property constituted a lawful
nonconforming use for which it cannot be penalized.
Accordingly, we reverse the decision of the court of appeals and
Because we conclude that Polk never abandoned the
12
nonconforming use, it is not necessary for us to address any of
the additional arguments raised. We decide cases on the
narrowest possible grounds. See Water Well Sols. Serv. Grp.,
Inc. v. Consol. Ins. Co., 2016 WI 54, ¶33 n.18, 369 Wis. 2d 607,
881 N.W.2d 285.
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No. 2017AP2244
vacate the circuit court's order imposing forfeitures, its
monetary judgment for real estate taxes, its order authorizing
special assessments, special charges, and fees to be levied
against Polk, and its order enjoining Polk from using the
property for agricultural purposes. We remand to the circuit
court for further proceedings consistent with this decision.
By the Court.—The decision of the court of appeals is
reversed and the cause is remanded to the circuit court.
¶28 BRIAN HAGEDORN, J., did not participate.
22
No. 2017AP2244.akz
¶29 ANNETTE KINGSLAND ZIEGLER, J. (concurring). While I
agree with the majority's conclusion that Polk did not abandon
its nonconforming use of the property, I write separately
because the majority could be read to be unnecessarily breathing
life back into a doctrine that the legislature abrogated over 80
years ago. As I explain below, the voluntary abandonment
doctrine is inapplicable in cases where the parties rely upon a
nonconforming use statute or ordinance with a definite
legislative time limit. When the relied upon statute or
ordinance contains a definite time limit, the court must
determine whether the property owner actually ceased the
nonconforming use and discontinued that use for a period of more
than the time limit. Because Polk did not discontinue its
nonconforming, agricultural use of the property for more than
the statutorily definite limit of 12 months, Polk did not lose
its right to the nonconforming use. As a result, I do not join
the majority opinion and instead respectfully concur.
I. ANALYSIS
A. Nonconforming Uses Generally
¶30 Municipalities that seek to adopt zoning and land use
schemes do so pursuant to Wis. Stat. § 62.23(7) and its
subsections. Town of Rhine v. Bizzell, 2008 WI 76, ¶16, 311
Wis. 2d 1, 751 N.W.2d 780. As part of a comprehensive zoning
and land use scheme, "[a] municipality is generally divided into
different districts, such as residential, commercial, and
industrial." Id., ¶17 (footnote omitted). However, if a
1
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municipality adopts a new zoning and land use scheme, there may
be properties that, at the time the new scheme is adopted, are
being used for a purpose different than what the new scheme
allows or permits——known as nonconforming uses. Waukesha Cnty.
v. Seitz, 140 Wis. 2d 111, 114-15, 409 N.W.2d 403 (Ct. App.
1987) ("A nonconforming use is a use of land for a purpose not
permitted in the district in which the land is situated.").
"Land use qualifies as 'nonconforming' if there is an active and
actual use of the land and buildings which existed prior to the
commencement of the zoning ordinance and which has continued in
the same or a related use until the present." Id.
¶31 Just as zoning is a creature of statutes and
ordinances, nonconforming use is also based in the language of
statutes and ordinances. See, e.g., Wis. Stat. § 62.23(7)(h);
Village of Slinger Zoning Ord. Ch. XXXI, §§ 8.01, 8.02 (1999)
(hereinafter Slinger Zoning Ordinance)1; Bartkus v. Albers, 189
Wis. 539, 208 N.W. 260 (1926) (analyzing a city of Kenosha
nonconforming use ordinance); State ex rel. Schaetz v. Manders,
206 Wis. 121, 238 N.W. 835 (1931) (analyzing a city of Green Bay
nonconforming ordinance); State ex rel. Morehouse v. Hunt, 235
Wis. 358, 291 N.W. 745 (1940) (analyzing a city of Madison
nonconforming use ordinance enacted pursuant to statute).
The Village of Slinger amended its zoning ordinances on
1
March 20, 2017. The current version of the zoning ordinance
cited in this case is found in the Village of Slinger's Code at
Part III, Art. VIII, § 550-75 "Existing Legal Conforming Uses,"
found at https://ecode360.com/31143081; the current language is
substantially the same as that used in 1999.
2
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Accordingly, we must interpret the plain language of both the
statute and ordinance before we apply it to this case.
¶32 Statutory interpretation "begins with the language of
the statute." State ex rel. Kalal v. Circuit Court for Dane
Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110
(internal quotations omitted). If its meaning is plain, then
our inquiry ends. Id. We give statutory language "its common,
ordinary, and accepted meaning." Id. However, "[w]here a
statute has been authoritatively interpreted by this court, the
party challenging that interpretation must establish that our
prior interpretation was 'objectively wrong.'" Waupaca Cnty. v.
K.E.K., 2021 WI 9, ¶17, 395 Wis. 2d 460, 954 N.W.2d 366 (quoting
State v. Breitzman, 2017 WI 100, ¶5 n.4, 378 Wis. 2d 431, 904
N.W.2d 93).
¶33 Wisconsin Stat. § 62.23(7)(h) is the current iteration
of the nonconforming use statute. It provides:
The continued lawful use of a building, premises,
structure, or fixture existing at the time of the
adoption or amendment of a zoning ordinance may not be
prohibited although the use does not conform with the
provisions of the ordinance. . . . If the
nonconforming use is discontinued for a period of 12
months, any future use of the building, premises,
structure, or fixture shall conform to the ordinance.
The Village of Slinger adopted an ordinance with nearly
identical language:
The lawful nonconforming use of a structure, land or
water, existing at the time of the adoption or
amendment of this ordinance may be continued, although
the use does not conform with the provisions of this
ordinance . . . .
3
No. 2017AP2244.akz
If such nonconforming use is discontinued or
terminated for a period of twelve (12) months, any
future use of the structure, land, or water shall
conform to the provisions of this ordinance.
Slinger Zoning Ordinance.2 It is undisputed that Polk was
engaged in agricultural use prior to the Village of Slinger
rezoning Polk's property from an A-1 Agricultural zone to an R-2
Residential zone. As such, Polk possessed a legal nonconforming
use at the time of the rezoning.3 Consequently, the question
remaining in this case is whether Polk abandoned this
nonconforming use.
B. Abandoning a Nonconforming Use
2 The majority criticizes my concurrence for relying on the
language of the statute, asserting that I am "recast[ing] this
case as a statutory claim neither party raised nor asked us to
resolve." Majority op., ¶8 n.9. However, the majority then
points to both Wis. Stat. § 62.23(7)(h) and the Slinger Zoning
Ordinance as the legal bases by which a nonconforming use may
exist. Id., ¶9. The majority implicitly acknowledges that the
legislature is the one who establishes the bases for
abandonment, not this court. Id. (listing the statutorily
prescribed methods by which a landowner may abandon a
nonconforming use). Thus, I am not "recast[ing] this case as a
statutory claim"; I am interpreting the statutory bases for
abandonment, as we must.
3 The majority characterizes this assertion as ignoring the
question presented in this case, namely whether Polk abandoned
its nonconforming agricultural use. Majority op., ¶8 n.9. To
the contrary, I am acknowledging the historical record that at
the time of the zoning change, Polk engaged in a nonconforming
agricultural use——a fact that the majority itself recognizes.
Id., ¶18 ("There is no dispute that the farming on Polk's
property was a lawful use of the property under the agricultural
zoning in place before the property was rezoned to residential
use."). With this historical record in mind, I then turn to the
exact same question that the majority does: whether Polk
abandoned its nonconforming use. Id., ¶18.
4
No. 2017AP2244.akz
¶34 Even if a property owner possesses a lawful
nonconforming use, the property owner can lose that the right to
that use if it is abandoned. As the majority correctly
summarizes, "[i]f the property owner abandons the lawful
nonconforming use after the property's zoning classification has
changed, then the property may be used only in a manner
consistent with its current zoning classification." Majority
op., ¶9. While the majority and I agree that a nonconforming
use may be abandoned, we disagree which is the proper test to
determine whether a property owner has abandoned a nonconforming
use. The majority reinvigorates the two-part, intent-based
abandonment test that this court created nearly a century ago.
Id., ¶10. However, not long after we set forth this two-part
test, the legislature set aside the test in favor of an
objective, time-based test. As such, I would use the language
and test the legislature enacted instead of the judicially-
created two-part abandonment test.
¶35 In reaching this conclusion, it is important to note
the historical development of the two-part abandonment doctrine
upon which the majority relies. In 1931, we originally adopted
the two-part test for abandonment, which required intent to
abandon and actual cessation of use. See Schaetz, 206 Wis. at
124. In Schaetz, we analyzed an ordinance, which provided:
The lawful use of land existing at the time of
the adoption of this ordinance may be conducted,
although such use does not conform to the provisions
hereof, but if such nonconforming use is discontinued,
any future use of said premises shall be in conformity
with the provisions of this ordinance.
5
No. 2017AP2244.akz
Id. at 123. In that case, the owner of a nonconforming dairy
temporarily ceased operations with the intention of finding a
buyer to resume the nonconforming use. Id. at 123-24. We
applied the two-part abandonment test because it interpreted
"[t]he word 'discontinuance' as it is used in the ordinance [a]s
synonymous with abandonment." Id. at 124. We held that the
owner did not "discontinue" the nonconforming use because the
owner did not satisfy the intent prong of the test. Id.
¶36 We echoed this two-part abandonment test in a later
case, finding that cessation of a nonconforming use "as a mere
temporary matter and with intent that the nonconforming use be
resumed when opportunity therefor should arise, did not
constitute a 'discontinuance' of the nonconforming use[.]"
Morehouse, 235 Wis. at 370.
¶37 However, the legislature later abandoned this
approach. Shortly after the Morehouse decision, the legislature
changed the statutory language regarding discontinuance to its
current form: "[i]f such nonconforming use is discontinued for
a period of 12 months, any future use of the building and
premises shall conform to the ordinance." § 5, ch. 203, Laws of
1941; accord Wis. Stat. § 62.23(7)(h). After the enactment of
this statute, we interpreted the phrase "discontinued for a
period of 12 months" in the context of a municipal ordinance:
We construe these words to mean termination or
cessation of the nonconforming use for the twelve
months' period. The doctrine of voluntary abandonment
as applied in [Schaetz and Morehouse] is not to be
extended and applied to substituted nonconforming uses
in a county zoning ordinance limiting discontinuance
of such nonconforming uses to a definite time limit.
6
No. 2017AP2244.akz
State ex rel. Brill v. Mortenson, 6 Wis. 2d 325, 331c, 96
N.W.2d 603 (1959).4
¶38 We later clarified the effect of the 12-month
discontinuance rule. State ex rel. Peterson v. Burt, 42
Wis. 2d 284, 166 N.W.2d 207 (1969). We held that Brill
"supports the proposition that the subjective test of voluntary
abandonment is to be rejected in the face of a definite
legislative time limit." Id. at 288. Moreover, we specifically
addressed the impact Wis. Stat. § 62.23(7)(h) had on the Schaetz
and Morehouse decisions. Id. at 290. We held that the
enactment of the 12-month definite time period in § 62.23(7)(h)
"renders inapplicable the doctrine of 'voluntary abandonment' as
contained in the [Schaetz] and Morehouse [c]ases." Id.5
¶39 As this history demonstrates, the doctrine of
voluntary abandonment is inapplicable to cases where either the
4The original question presented in Brill was whether
Schaetz and Morehouse apply when a nonconforming use ends and a
different nonconforming use later begins. State ex rel. Brill
v. Mortenson, 6 Wis. 2d 325, 328-29, 94 N.W.2d 691 (1959). We
held that Schaetz and Morehouse were inapplicable because the
landowner did not intend to resume the same nonconforming use.
Id. at 329-30. On rehearing, we addressed whether intent to
abandon a nonconforming use should be considered in light of the
ordinance containing the 12-month discontinuance restriction.
Brill, 6 Wis. 2d at 331c. It was in this rehearing that we
interpreted the phrase "discontinued for a period of twelve
months." Id.
5This reflects the view expressed in Morehouse's dissenting
opinion: "The question is not one of intention to abandon a
nonconforming use, but whether the acts of the owner have
brought him within the provisions of the ordinance [or
statute]." State ex rel. Morehouse v. Hunt, 235 Wis. 358, 375,
291 N.W. 745 (1940) (Wickhem, J., dissenting).
7
No. 2017AP2244.akz
statute or municipal ordinance contains a definite time limit.6
In the case at bar, both the statute and municipal ordinance
contain the language "discontinued for a period of 12 months."
Consequently, we must decide whether this language constitutes a
definite time limit to render the voluntary abandonment doctrine
inapplicable. This court answered this question when it
interpreted identical 12-month period language. Compare Brill,
6 Wis. 2d at 331c ("discontinued for a period of [12] months");
Peterson, 42 Wis. 2d at 287 ("discontinued for a period of 12
months") with Wis. Stat. § 62.23(7)(h) ("discontinued for a
period of 12 months"); Slinger Zoning Ordinance ("discontinued
or terminated for a period of [12] months"). In both of the
previous cases, we concluded that the voluntary abandonment
doctrine does not apply. See Brill, 6 Wis. 2d at 331c;
Peterson, 42 Wis. 2d at 290. This is an authoritative
construction that we must continue to follow. See K.E.K., 395
Wis. 2d 460, ¶17.
¶40 Accordingly, when a nonconforming use statute or
ordinance refer to a definite time period, we do not apply the
voluntary abandonment test from Schaetz and Morehouse. Instead,
we must determine whether the property owner actually ceased use
6 Instead of addressing the historical changes to the words
of the statute or our own case law, the majority rejects this
conclusion without any analysis. Majority op., ¶8 n.9. The
majority fails to wrestle with this historical change to the
words of the statute and our case law saying that those changes
have meaning. See Richards v. Badger Mut. Ins. Co., 2008 WI 52,
¶22, 309 Wis. 2d 541, 749 N.W.2d 581 ("By analyzing the changes
the legislature has made over the course of several years, we
may be assisted in arriving at the meaning of a statute.").
8
No. 2017AP2244.akz
for the definite time period. Consequently, regardless of the
property owner's actions, including seeking the zoning change,
or agreeing to convert the property to a conforming use, the
property owner can abandon its nonconforming use only when the
property owner ceases the nonconforming use for the statutorily
defined time period.7
C. Application
¶41 Applying the proper test here, it is clear that Polk
never ceased agricultural use of the property for a 12-month
period. As I described above, both the statute and the
ordinance have a 12-month definite time period. See supra, ¶33.
Accordingly, to have lost the right to use the property for
agricultural purposes, Polk must have ceased using the property
for agricultural purposes for a period of 12 months.
¶42 Polk never ceased its agricultural use for a period of
12 months. Indeed, Polk never ceased its agricultural use for a
7 Contrary to the majority's assertions, State ex rel.
Peterson v. Burt, 42 Wis. 2d 284, 166 N.W.2d 207 (1969), goes to
the heart of Slinger's arguments. See majority op., ¶8 n.9.
Slinger argues that Polk's actions of "seeking the zoning change
to residential; entering a Developer's Agreement to convert the
property to residential; and recording a Declaration restricting
the property to residential use only" constitute abandonment of
the nonconforming use. See id., ¶8 n.9. Under Peterson, these
actions are irrelevant because these actions are not actual
cessation of use and go to intent. The only inquiry that
matters under the statute, ordinance, and our case law is
whether Polk ceased its agricultural use for the statutorily
defined period of 12 months.
9
No. 2017AP2244.akz
single day. As the majority noted, "complete cessation never
happened." Majority op., ¶19.8
¶43 As such, I conclude that Polk did not abandon its
nonconforming use and may continue its agricultural use of the
property.
II. CONCLUSION
¶44 While I agree with the majority that Polk did not
abandon its nonconforming use, I would make clear that the
voluntary abandonment doctrine is inapplicable here. I would
rely on the objective test that the legislature set forth in the
statute——whether the property owner actually ceased use for the
legislatively definite time limit. Because Polk never ceased
its agricultural use of the property for even a day, let alone
the 12-month time limit, I conclude that Polk did not abandon
its nonconforming, agricultural use. As a result, I do not join
the majority opinion and instead respectfully concur.
¶45 For the foregoing reasons, I respectfully concur.
8 The majority critiques my concurrence for addressing the
statute and ordinance because "both parties agree that Polk
continued its agricultural activity on the property, rendering
the statutory timeframe irrelevant." Majority op., ¶8 n.9. To
the contrary, this proves my point. The statutory period is the
only relevant inquiry, and the facts of the case show that Polk
never ceased its use for the statutorily defined 12-month
period. As the statute and our case law demand, the majority
should have stopped its inquiry after its conclusion that
"complete cessation never happened." Id., ¶19.
10
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1