Posted by: Patricia Salkin | October 10, 2015

Fed. Dist. Court of Wisconsin Finds No Takings and No Procedural Due Process Violation After County Reversed its Initial Denial of Application

On May 25, 2015, Barry Donohoo filed a land use permit application and mitigation plan with the Douglas County Planning and Zoning office to construct a small addition to his home. Donohoo had intentionally limited his construction proposal in order to comply with the Douglas County shoreland zoning ordinances, which placed numerous restrictions on building and development located in the unincorporated shoreland areas of the County. After filing his permit application, Donohoo learned that a state law, 2011 Wisconsin Act 170, had been passed on April 17, 2012, restricting local authorities from enacting shoreland zoning ordinances for “nonconforming structures” that were more restrictive than those passed by the Wisconsin Department of Natural Resources (“WDNR”). Believing that the new state law applied to his home, Donohoo notified the County Zoning and Planning office that he was withdrawing his permit application and mitigation plan. He submitted a revised permit application in which he proposed to add a second story to the entire principal structure on his property, effectively increasing its area by 100%.

Local officials in Douglas County, Wisconsin, denied Donohoo’s permit request on the grounds that his proposal exceeded County zoning limitations on construction of shoreland property. Donohoo then appealed the denial of his permit to the County Board of Adjustment, and when the Board upheld the denial, he filed a petition for writ of certiorari in state circuit court. While his certiorari case was pending, however, the County amended its shoreland zoning ordinances and issued a land use permit to Donohoo. Regardless, he filed this federal lawsuit, contending that the initial denial of his permit request, as well as subsequent related actions taken by County officials, violated his constitutional rights.

Donohoo’s takings claim failed because he did not claim that the County actually took land from him, and a regulatory taking occurs only where the challenged government action deprives a landowner of all or substantially all practical uses of the property. Furthermore, even if Donohoo could show that a “taking” had occurred as a result of the denial of his initial permit request or the restrictions placed on the permit, he could not maintain a takings claim because he failed to he exhausts his remedies for obtaining a compensation award or equivalent relief from the County. Donohoo’s Equal Protection claim relied on the same facts as the takings claim, that defendants’ improper denial of his land use permit deprived him of the use and enjoyment of his property and caused him to incur monetary damage. This claim failed because not only did Donohoo fail to seek remedy in state court, but he also failed to identify a suitable comparator.

Finally, Donohoo’s procedural due process claim was denied since he could have appealed the state court decision dismissing the certiorari action and chose not to do so. Because there were numerous recourses available to him, he was deemed to have had sufficient due process. As to his substantive due process claim, Donohoo had not identified any substantive constitutional right that defendants violated. Even assuming that Rannenberg and the Board violated state law by rejecting his initial permit request, an error of state law is not a violation of due process. Accordingly, the court granted the defendants motion for summary judgment.

Donohoo v Hanson, 2015 WL 5177968 (WD WI 9/3/2015)

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