Seventh Circuit Court of Appeals Concluded Takings Clause Claim Based on Rezoning Not Ripe

This post was authored by Jakor Riddick, Touro College Jacob D. Fuchsberg Law Center

 In 2011, Thomas and Julia Willan bought land in Dane County, Wisconsin. The land included a house and a dairy barn. They spent $75,000 restoring the barn into a space for their small business. After using the barn for their business for many years, they considered renting it out for group gatherings. In 2019, the Dane County Board of Supervisors changed the zoning ordinance restricting the Willan’s to only use their property for residential purposes. The Willan’s objected to the ordinance sending emails to the Planning and Development Department. The zoning administrator for the county responded that they needed a conditional-use permit and advised them of the process to obtain one. Instead of following those procedures, the Willan’s requested a construction permit to make the necessary repairs for hosting events. The Willans’ communication with officials amounted to a request to be in a business zone and a permit to repair the barn. The county officials denied both requests at the final meeting because the Willan’s did not follow proper procedures and apply for a conditional-use permit.          

The Willans sued Dane County, claiming the rezoning decisions interfered with their ability to use their barn for business in violation of their rights under the Takings Clause. They also included claims for due process and equal protection violations. The district court entered judgment on the pleadings in favor of the county. The court concluded the claim was not ripe for adjudication as state administrative decisions are not final and they never applied for a variance or a conditional use permit for the property. On appeal, the Seventh Circuit court reviewed the Supreme Courts’ jurisprudence in the context of the Takings Clause. The claim was not ripe until the plaintiff received a final decision regarding the application and sought compensation through state procedures. A property owner should at least resort to the procedure for obtaining variances and obtain a conclusive determination by the commission to ripen the takings claim.

The county advised the Willans multiple times of the proper procedures required to obtain a conditional use permit. The communications and meetings with the Planning and Development Department officials were not the same as an application for a variance or conditional use. Although the officials denied their request at the meeting, the Willans should have applied for the conditional use permit as instructed. The Willans tried to amend their claim, but the court stated it would not survive dismissal again as the claim can only ripen when the appropriate procedures are complete.

Willan v Dane County, 2021 WL 4269922 (7th Cir. CA 9/20/2021)