Posted by: Patricia Salkin | August 9, 2014

WI Appeals Court Orders Permits for Seven Farm Buildings Finding Owner was Entitled to Vested Rights

The Town of Saratoga appealed a decision of the circuit court granting a writ of mandamus compelling the Town, via its building inspector, to issue a building permit to Golden Sands Dairy, LLC, for the construction of seven farm buildings. The Town argued that the circuit court erred in granting the writ for four reasons: (1) Golden Sands did not have a vested right in the building permit; (2) the building inspector did not have a positive and plain duty to issue the permit; (3) Golden Sands would not suffer substantial harm if the permit were denied; and (4) Golden Sands has an adequate alternative remedy to mandamus through a separate lawsuit pending between Golden Sands and the Town.

The Town first argued that Golden Sands does not have a vested right in the building permit because it failed to submit a complete building permit application prior to July 19th, the date the Town enacted the moratorium. Saratoga argued that the building permit application that Golden Sands submitted was incomplete because it lacked: (1) a complete “site plan”; (2) evidence showing compliance with state transportation laws regarding the driveway providing access to and from an adjoining state highway; and (3) the dimensions of setbacks for each of the proposed farm buildings. Despite this, the circuit court found, to the contrary, that “Golden Sands did provide an accurate plot plan that indicated the locations of the building[s].” Additionally, the circuit court found that, according to testimony of the building inspector, the plans that Golden Sands submitted to the Town provided sufficient information from which the building inspector could determine setbacks. The Town did not develop an argument that this finding was erroneous. Accordingly, the court found that the Town had failed to develop a persuasive argument that Golden Sands failed to submit sufficient documentation to comply with the requirements of the Town building code.

Second, the Town argued that even if Golden Sands submitted a complete building permit application, it did not have a vested right in the building permit because Golden Sands knew that the Town was in the process of adopting its own zoning ordinance and, thus, Golden Sands could not have reasonably relied on the Wood County zoning ordinance. However, at the time Golden Sands submitted its permit application, there was insufficient evidence on which Golden Sands could conclude that the Town would “soon prohibit” large agricultural uses. Therefore the exception to the general rule that property owners may rely on existing regulations did not apply here. The court therefore found that Golden Sands had a vested right in the issuance of the permit.

Finally, the Town argued that Golden Sands is not entitled to mandamus because the separate lawsuit that Golden Sands filed against the Town regarding the validity of the July 19 moratorium provides Golden Sands with “an adequate, specific legal remedy for the injury that Golden Sands claims it will suffer if a building permit is not compelled.” The court concluded, however, that the Town forfeited this argument when it failed to raise the argument before the circuit court. Accordingly the Court of Appeals affirmed the decision of the circuit court requiring the Town to issue a building permit to Golden Sands for the seven farm buildings.

Golden Sands Dairy, LLC v Fuehrer, 2014 WL 3630035 (WI App. 7/24/2014)

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