This post was authored by Matthew Loeser, Esq.
Golden Sands Dairy, LLC owned, or was under contract to purchase, approximated 6,388 acres in and around the Town of Saratoga on which it sought to operate a farm. After Golden Sands filed its building permit application, Saratoga enacted its zoning ordinance to prohibit agricultural uses such as those proposed by Golden Sands. Under its proposed modification of the Building Permit Rule, Golden Sands would have a vested right to use all of the Property for agricultural purposes. Saratoga contended that Golden Sands’ building permit was limited to vesting its right to build the seven structures identified in the building permit. The Wood County Circuit Court held that the Building Permit Rule extended to all land identified in the building permit application, and consequently granted Golden Sands’ motion for summary judgment. The Court of Appeals reversed, holding that the Building Permit Rule applied only to building structures, and not to use of land.
At the outset, the court noted that Wisconsin was among the minority of United States jurisdictions that adhered to the Building Permit Rule: a brightline rule vesting the right to use property consistent with current zoning at the time a building permit application that strictly conforms to all applicable zoning regulations is filed. Patricia E. Salkin, American Law of Zoning § 32:3, at 32-13—32-14 (2017). Here, while the parties agreed that Golden Sands possesses a vested right to build the seven structures as described in its building permit application, the parties disputed whether the Building Permit Rule also granted Golden Sands the right to use the farmland specifically identified in the building permit application for agricultural purposes.
The court found that the Building Permit Rule should be applied to all land specifically identified in the building permit application. The court reasoned that the “piecemealing” advanced by the Court of Appeals and Saratoga would require extensive litigation over how much land specifically identified in the building permit application was necessary, and this would run counter to one of the primary reasons the court adhered to the Building Permit Rule: to avoiding lengthy, fact-intensive litigation. Here, the map attached to the original application provided an objective means to determine the specific land Golden Sands intended to use in order to build structures as well as to cultivate seed, fertilize, harvest, and otherwise maintain the land it will use for agricultural purposes. Since the map provided an objective means to determine the contours of the Property and was attached to a building permit application that strictly conformed to all applicable zoning regulations, the court held that Golden Sands possessed a vested right to use the Property for agricultural purposes. Accordingly, the decision of the Court of Appeals was reversed.
Golden Sands Dairy, LLC v Town of Saratoga, 2018 WL 2710392 (WI 6/5/2018)
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