WI Supreme Court Holds Property Owner Did Not Abandon Its Lawful Nonconforming Use

 This post was authored by Matthew Loescher, Esq.

Polk Properties worked with the Village of Slinger on his proposed plan to convert its 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 2007, the Village of Slinger approved Polk’s planned residential subdivision development. Installation of the infrastructure for the development was completed in August 2008. During the development project, Ronald Melius continued to farm the property by cutting and removing vegetation from the land. As a result, the Village of Slinger sought an injunction from the circuit court ordering Polk to stop the agricultural use of the property. In this case, Polk Properties, LLC and its sole member, Donald J. Thoma, sought 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.

 The Village of Slinger argued that cessation of farming on part of the property constituted legal cessation of that use on the entire property. It was undisputed that a portion of Polk’s property was no longer being farmed because homes had been constructed on the few lots that were sold. The court found that 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. Furthermore, the Village of Slinger failed to present any case law suggesting that merely reducing the nonconforming use constitutes actual cessation. As such, the court reversed the decision of the court of appeals and vacated 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.

 Village of Slinger v Polk Properties, LLC, 2021 WL 1216687 (WI 4/1/2021)