Golden Sands Dairy LLC v. Town of Saratoga

2018 WI 61

SUPREME COURT OF WISCONSIN
CASE NO.: 2015AP1258
COMPLETE TITLE: Golden Sands Dairy LLC,
Plaintiff-Respondent-Petitioner,
Ellis Industries Saratoga, LLC,
Plaintiff,
v.
Town of Saratoga, Terry A. Rickaby, Douglas
Passineau, Patty Heeg, John Frank and Dan
Forbes,
Defendants-Appellants,
Rural Mutual Insurance Company,
Intervenor.

REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 375 Wis. 2d 797, 899 N.W.2d 737
(2017 – unpublished)

OPINION FILED: June 5, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: January 11, 2018

SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Wood
JUDGE: Thomas B. Eagon

JUSTICES:
CONCURRED:
DISSENTED: ABRAHAMSON, J. joined by BRADLEY, A. W., J.
dissent (Opinion filed).
NOT PARTICIPATING:

ATTORNEYS:

For the plaintiff-respondent-petitioner, there were briefs
filed by Jordan J. Hemaidan, Daniel A. O'Callaghan, Joseph D.
Brydges, and Michael Best & Friedrich LLP, Madison, with whom on
the briefs were Brian G. Formella and Anderson, O'Brien, Bertz,
Skrenes & Golla, Stevens Point. There was an oral argument by
Jordan J. Hemaidan.
For the defendants-appellants, there was a brief filed by
Remzy D. Bitar and Arenz, Molter, Macy, Rifle & Larson SC,
Waukesha, with whom on the brief was Paul G. Kent and Stafford
Rosenbaum LLP, Madison. There was an oral argument by Remzy D.
Bitar.

An amicus curiae brief was filed on behalf of the State of
Wisconsin by Sopen B. Shah, deputy solicitor general, with whom
on the brief were Brad D. Schimel, attorney general, and Ryan J.
Walsh, chief deputy solicitor general. There was an oral
argument by Sopen B. Shah.

An amicus curiae brief was filed on behalf of Agriculture
Coalition by H. Dale Peterson, John J. Laubmeier, and Stroud,
Willink & Howard, LLC, Madison.

An amicus curiae brief was filed on behalf of Wisconsin
Counties Association by Andrew T. Phillips, Rebecca J. Roeker,
and Von Briesen & Roper, S.C., Milwaukee.

An amicus curiae brief was filed on behalf of Wisconsin
Towns Association by Richard Manthe and Wisconsin Towns
Association, Shawano.

An amicus curiae brief was filed on behalf of Wisconsin
Municipalities by Daniel M. Olson and League of Wisconsin
Municipalities, Madison.

An amicus curiae brief was filed on behalf of Local
Business Amici by Christa O. Westerberg, Leslie A. Freehill, and
Pines Bach LLP, Madison.

An amicus curiae brief was filed on behalf of Wisconsin
Realtors Association, Wisconsin Builders Association, Wisconsin
2
Manufacturers and Commerce, and NAIOP-WI by Thomas D. Larson and
Wisconsin REALTORS Association, Wisconsin Builders Association,
Wisconsin Manufacturers and Commerce and NAIOP-WI, Madison.

3
2018 WI 61
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2015AP1258
(L.C. No. 2012CV389)

STATE OF WISCONSIN : IN SUPREME COURT

Golden Sands Dairy LLC,

Plaintiff-Respondent-Petitioner,

Ellis Industries Saratoga, LLC,

Plaintiff,
FILED
v.
JUN 5, 2018
Town of Saratoga, Terry A. Rickaby, Douglas
Passineau, Patty Heeg, John Frank and Dan Sheila T. Reiff
Forbes, Clerk of Supreme Court

Defendants-Appellants,

Rural Mutual Insurance Company,

Intervenor.

REVIEW of a decision of the Court of Appeals. Reversed.

¶1 MICHAEL J. GABLEMAN, J. Wisconsin has long provided

a vested right to build a structure upon the filing of a

building permit application that strictly conforms to all

applicable zoning regulations (the "Building Permit Rule")——a
doctrine we reaffirmed last term in McKee Family I, LLC v. City
No. 2015AP1258

of Fitchburg, 2017 WI 34, 374 Wis. 2d 487, 893 N.W.2d 12.

Golden Sands Dairy, LLC ("Golden Sands"), either owns outright

(or is under contract to purchase) what collectively amounts to

6,388 acres in and around the Town of Saratoga ("Saratoga")1 on

which it seeks to operate a farm using the "farming full circle"

model.2 Golden Sands obtained a building permit for seven farm

structures. Its building permit application identified the

building site as 100 acres and the total farm as 6,388 acres.

Further, Golden Sands included a map with its original building

permit application that identified the precise land it would use

for its farm and the location of the seven structures.

¶2 After Golden Sands filed its building permit

application, Saratoga enacted its zoning ordinance that sought

to prohibit agricultural uses such as those proposed by Golden

1
The record reveals that some of the 6,388 acres may be
located outside Saratoga's zoning jurisdiction. The dispute
before us concerns only that portion of Golden Sands' land
within Saratoga's zoning jurisdiction. Accordingly, our
decision is limited to those portions of the 6,388 acres that
are subject to Saratoga's zoning jurisdiction. For simplicity's
sake, we use "the Property" to describe those portions of the
6,388 acres that are: (1) specifically identified in the map
attached to the original building permit application; and (2)
within Saratoga's zoning jurisdiction.
2
Golden Sands' planned farm has two components. First, a
dairy operation will raise cattle for milk production. Second,
a cropland operation will grow feed for the dairy cattle and
food for human consumption. The cropland will be fertilized
with manure from the dairy operation. Hence, the "full circle"
occurs when crops are fed to the cattle and manure from the
cattle is used to fertilize crops that will again become (in
part) cattle feed.

2
No. 2015AP1258

Sands. Golden Sands argues that the Building Permit Rule

extends to all land specifically identified in a building permit

application. 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 disagrees,

arguing that Golden Sands' building permit is limited to vesting

its right to build the seven structures identified in the

building permit.

¶3 The issue in this case is one of first impression in

Wisconsin: does the Building Permit Rule extend to land

identified in the building permit application as part of the

project upon which no actual construction was planned? The Wood

County Circuit Court3 concluded that the Building Permit Rule

does extend to all land identified in the building permit

application, and consequently granted Golden Sands' motion for

summary judgment. The court of appeals, however, reversed,

holding that the Building Permit Rule applies only to building

structures, and not to use of land. Golden Sands Dairy, LLC v.
Town of Saratoga, No. 2015AP1258, unpublished slip op. (Wis. Ct.

App. April 13, 2017) (Golden Sands II).4

3
The Honorable Thomas B. Eagon presiding.
4
We refer to the court of appeals' decision in this case as
Golden Sands II because the court of appeals decided, in a prior
case, whether Golden Sands' building permit application was
sufficient such that Golden Sands was entitled to a writ of
mandamus ordering Saratoga to issue the building permit. See
infra ¶10.

3
No. 2015AP1258

¶4 We hold that the Building Permit Rule extends to all

land specifically identified5 in a building permit application.

Consequently, Golden Sands has a vested right to use all of the

Property for agricultural purposes.6 Therefore, we reverse the

decision of the court of appeals.

I. FACTS AND PROCEDURAL POSTURE

A. Golden Sands' Building Permit Application

¶5 Golden Sands filed its original building permit

application with Saratoga on June 6, 2012. The application

sought a permit to build seven structures on 92 acres. Attached

to the application was a map that shaded the parcels to be used

5
By "specifically identified," we mean that the building
permit application, including attachments, must include a means
to objectively determine the exact parcels of land at issue. A
legal description is preferable, but a map that objectively
identifies the parcels at issue will also suffice.
6
To be (perhaps painfully) clear, our holding that Golden
Sands possesses a vested right to use the Property for
agricultural purposes is grounded upon its building permit
dispute with Saratoga and therefore does not (and cannot) grant
Golden Sands a vested right to use the Property for agricultural
purposes if Golden Sands is unable to obtain an ownership
interest in any piece of the Property.

4
No. 2015AP1258

for the dairy structures in yellow and the parcels to be used as

farmland in blue.7

¶6 Golden Sands included with the Application copies of

applications for various state permits required to operate the

farm. Golden Sands was not required to provide copies of the

state permit applications to receive a building permit from

Saratoga, but rather did so as a "courtesy." These state permit

applications provided even greater detail as to Golden Sands'

plans for its farming operation.

B. Applicable Zoning Regulations

¶7 At the time Golden Sands filed its initial building

permit application (June 6, 2012), Saratoga did not have any

zoning ordinances. The only land use restriction in place was

Wood County's zoning ordinance, which zoned the land as

"unrestricted," meaning the land at issue could be used for any

lawful purpose.

¶8 Saratoga started the process to regulate land use

within its borders in 2007, when it began to assemble a
comprehensive plan pursuant to Wis. Stat. § 66.1001(2) (2011-

7
Golden Sands filed an amended application on July 17,
2012. This amended application identified the "Area Involved"
as "100 acres of site and 6,388 acres total." Attached to the
amended application was a legal description of the 100 acres
(which the circuit court subsequently found in actuality added
up to 92 acres). The parties treat the amended application as
supplementing the original application rather than superseding
it, and so do we. We therefore refer to all application
materials——the original application, the amended application,
and all attachments thereto——collectively as "the Application."

5
No. 2015AP1258

12).8 After completing a comprehensive plan, the next step for

Saratoga was enacting a zoning ordinance. However, towns do not

possess zoning powers by default under Wisconsin law. See Wis.

Stat. §§ 60.22, 61.34(1). Instead, a town must receive village

powers from its electors9 pursuant to Wis. Stat. § 60.22(3)

before it may exercise zoning powers. Saratoga's electors

granted it village powers on September 24, 2012.

¶9 On July 19, 2012, during the time Saratoga was in the

process of obtaining village powers, it passed a moratorium on

issuing any building permit that was inconsistent with then-

existing land use. This was two days after Golden Sands filed

its amended building permit application.

¶10 Upon receiving village powers, Saratoga passed a

permanent zoning ordinance on October 17, 2012, which the Wood

County Board ratified on November 13, 2012, and the Saratoga

Town Board ratified the next day. Under the permanent zoning

ordinance, only two percent of the town——and none of Golden

Sands' land——is zoned for agricultural use. Therefore, Golden

8
All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated. We cite to the
2011-12 version of the statutes because the events underlying
this case occurred in 2012. The 2007-08 and 2011-12 versions of
Wis. Stat. § 66.1001(2) are substantively identical. Compare
§ 66.1001(2) (2007-08) with § 66.1001(2) (2011-12).
9
Electors are "[e]very U.S. citizen age 18 or older who has
resided in an election district or ward for 28 consecutive days
before any election where the citizen offers to vote." Wis.
Stat. § 6.02(1).

6
No. 2015AP1258

Sands' planned operation does not conform to the zoning scheme

enacted by Saratoga.

C. The Mandamus Action

¶11 Saratoga provided two reasons for its refusal to issue

the building permit requested by Golden Sands: (1) the

moratorium on building permits enacted on July 19, 2012,

prohibited issuance of the permit; and (2) Saratoga deemed the

Application incomplete. Golden Sands then filed a mandamus

action to compel Saratoga to issue the building permit. The

circuit court concluded that the Application was complete and

complied with all zoning regulations in place at the time it was

filed, and thus granted the writ of mandamus. In response,

Saratoga issued the building permit to Golden Sands. The court

of appeals affirmed. Golden Sands Dairy, LLC v. Fuehrer, No.

2013AP1468, unpublished slip op. (Wis. Ct. App. July 24, 2014)

(Golden Sands I). Saratoga did not file a petition for review

from Golden Sands I, and thus the mandamus action is not subject

to our review.
D. The Present Action

¶12 Two weeks after filing the mandamus action, Golden

Sands filed the present declaratory judgment action, asking the

circuit court to declare that Golden Sands may use all the land

specifically identified in the Application for agricultural

purposes. The circuit court found that Golden Sands

sufficiently identified the parcels that it intended to use for

farming in the Application. Thus, the circuit court concluded
that Golden Sands had a vested right to use the land
7
No. 2015AP1258

specifically identified in the Application for agricultural

purposes and granted Golden Sands' motion for summary judgment.

The circuit court added that Golden Sands' vested right to use

the land for agricultural purposes expires at the same time the

building permit expires.

¶13 The court of appeals reversed. Golden Sands II,

unpublished slip op., ¶2. The court of appeals distinguished

between the right to build a structure and the right to use

land. Id., ¶14. It determined that the right to build a

structure vests with the filing of a building permit application

that strictly conforms to all applicable zoning regulations, but

the right to use land vests with open and obvious use under the

nonconforming use doctrine. Id. Based on this distinction, the

court of appeals concluded that Golden Sands' building permit

vested its right to build the structures, but not to use the

other land identified in the building permit application for

agricultural purposes. The court of appeals concluded that

because Golden Sands had not established a nonconforming use
before Saratoga's zoning ordinance took effect, it could not use

any of its land for agricultural purposes. Id., ¶27.

¶14 The court of appeals articulated a series of concerns

with Golden Sands' proposed modification of the Building Permit

Rule. It did so in a series of questions:

 "[H]ow many of the identified 6[,]388 acres are

needed?"

8
No. 2015AP1258

 "Why should all 6[,]388 acres obtain nonconforming

use status simply because that amount of land was

noted in the application?"

 "What if a factual inquiry would show that Golden

Sands needs substantially fewer than 6[,]388 acres to

fully utilize its proposed farm buildings?"

Id., ¶24.

¶15 Golden Sands petitioned this court for review, which

we granted on September 12, 2017.

II. STANDARD OF REVIEW

¶16 We review decisions granting summary judgment de novo.

McKee, 374 Wis. 2d 487, ¶27. Summary judgment is proper where

there are no genuine issues of material fact and the movant is

entitled to judgment as a matter of law. Id.

III. ANALYSIS

¶17 Our analysis begins10 with a brief recitation of the

Building Permit Rule. We then consider whether the Building

10
We pause to clearly articulate the scope of our review.
Since the events underlying this dispute occurred, the
legislature enacted a statute that would govern the facts
underlying this case, Wis. Stat. § 66.10015 (2013-14). However,
because § 66.10015 (2013-14) applies prospectively, see 2013
Wis. Act. 74, § 2, it does not apply to this case——something the
parties do not dispute. Despite acknowledging that § 66.10015
(2013-14) does not apply to this case, the parties, and many
amici, nonetheless spend significant space in their briefs
arguing how this case would be decided under the statute. To be
clear, we do not interpret, apply, or analyze § 66.10015 (2013-
14) in this decision. Furthermore, our resolution of this case
under the common law should not be read to intimate how courts
should apply § 66.10015 (2013-14).

9
No. 2015AP1258

Permit Rule extends to land specifically identified in the

building permit application. Finally, we apply the Building

Permit Rule to the facts of this case. We conclude that the

policies underlying the Building Permit Rule extend to any land

specifically identified in the building permit application as

part of the project. Consequently, Golden Sands possesses a

vested right to use the Property for agricultural purposes,

consistent with the zoning regulations in place at the time

Golden Sands filed the Application.

A. The Building Permit Rule

¶18 Wisconsin is among the minority of United States

jurisdictions that adheres to the Building Permit Rule, a

bright-line 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).

¶19 In contrast, the rule adopted in the majority of
jurisdictions requires both a building permit and "substantial

construction and/or substantial expenditures before rights

vest." Id. at 32-6. This means that, under this rule, a

landowner's building permit can be revoked if the property is

rezoned——even if construction has already begun. Folsom

Invest., Inc. v. Scottsdale, 620 F. Supp. 1372, 1376 (D. Ariz.

1985). Courts applying the majority rule look for "substantial

money expenditures, considerable contractual commitments, and
extensive preparation[s]" to determine whether a landowner has
10
No. 2015AP1258

vested rights to complete construction. Id. This determination

requires extensive fact-intensive litigation. Cribbin v. City

of Chicago, 893 N.E.2d 1016, 1031 (Ill. App. 2008)

("substantiality is a necessarily fact-intensive

determination"). What constitutes "substantial" can vary from

case to case. See Prince George's Cty. v. Sunrise Dev. Ltd.

P'shp, 623 A.2d 1296, 1298, 1304-05 (Md. Ct. App. 1993) (finding

$2,000,000 in expenditures insufficient to vest rights in

current zoning where construction was limited to pouring a

footing).

¶20 In a unanimous opinion affirming the court of appeals

and agreeing with the circuit court, we reaffirmed our adherence

to the minority, bright-line Building Permit Rule last term in

McKee, 374 Wis. 2d 487, ¶40.

¶21 The Building Permit Rule is an exception to the

general policy that "[p]roperty owners obtain no vested rights

in a particular type of zoning solely through reliance on the

zoning." Zealy v. City of Waukesha, 201 Wis. 2d 365, 381, 548
N.W.2d 528 (1996). The court of appeals based its analysis, in

large part, on the nonconforming use doctrine. Golden Sands II,

unpublished slip op., ¶14. The nonconforming use doctrine is

implicated when lawful uses of land are made unlawful by a

change in zoning regulations. Des Jardin v. Greenfield, 262

Wis. 43, 47-48, 53 N.W.2d 784 (1952). However, under the

nonconforming use doctrine, the landowner is allowed to continue

using the land in the now-nonconforming fashion. Id. Neither

11
No. 2015AP1258

party has argued, nor do we conclude, that the nonconforming use

doctrine is implicated in the case at bar.11

¶22 The Building Permit Rule grants the right to add or

change a structure "when a property owner has applied for a

building permit conforming to the original zoning

classification." McKee, 374 Wis. 2d 487, ¶37 (citing Lake Bluff

Hous. Partners v. City of S. Milwaukee, 197 Wis. 2d 157, 182,

540 N.W.2d 189 (1995)). Wisconsin adheres to this bright-line

rule "because it creates predictability for land owners,

purchasers, developers, municipalities[,] and the courts" by

"balanc[ing] a municipality's need to regulate land use with a

land owner's interest in developing property under an existing

zoning classification." Id., ¶43.

¶23 The parties agree that the Building Permit Rule as

stated in McKee is and should remain the law of Wisconsin.

Accordingly, the parties also agree that Golden Sands possesses

a vested right to build the seven structures as described in its

building permit application. The parties dispute the full scope
of the rule; that is, whether the Building Permit Rule also

grants Golden Sands the right to use the farmland specifically

identified in the building permit application for agricultural

purposes. We turn next to consideration of this question.

11
For a larger discussion of the nonconforming use
doctrine, see Patricia E. Salkin, American Law of Zoning ch. 12
(2017).

12
No. 2015AP1258

B. The Building Permit Rule Applies to All Land Specifically
Identified in the Building Permit Application.
¶24 In ascertaining the full scope of the Building Permit

Rule, we are guided by the policies underlying the rule. The

primary advantage of the bright-line Building Permit Rule is

"predictability for land owners, purchasers, developers,

municipalities[,] and the courts." McKee, 374 Wis. 2d 487, ¶43.

The rule adopted by a majority of American jurisdictions

requires "substantial construction and/or substantial

expenditures" even after receiving a building permit in order

for rights to vest. Salkin, American Law of Zoning § 32:3, at

32-6. We rejected the majority rule because the bright-line

Building Permit Rule allows all parties involved to know exactly

when rights vest: "[M]unicipalit[ies have] the flexibility to

regulate land use through zoning up until the point when a

developer obtains[12] a building permit. Once a building permit

has been obtained, a developer may make expenditures in reliance

on a zoning classification." McKee, 374 Wis. 2d 487, ¶43. The

12
Though McKee sometimes speaks in terms of "obtaining" a
building permit, submitting a building permit application that
strictly conforms to all applicable zoning regulations is all
that is necessary to trigger the Building Permit Rule. McKee,
374 Wis. 2d 487, ¶37 (emphasis added) ("The [Building Permit
Rule] arises when a property owner has applied for a building
permit conforming to the original zoning classification.");
Lake Bluff Hous. Partners v. City of S. Milwaukee, 197
Wis. 2d 157, 182, 540 N.W.2d 189 (1995) (emphasis added) ("Lake
Bluff obtained no vested rights[] because it never submitted an
application for a building permit conforming to the zoning and
building code requirements in effect at the time of the
application.").

13
No. 2015AP1258

bright-line Building Permit Rule is simple for parties to

interpret and courts to apply. Conversely, the majority rule

requires fact-intensive litigation and "create[s] uncertainty at

various stages of the development process." Id., ¶¶44-45.

¶25 The court of appeals and Saratoga would disassociate

the right to build structures under the Building Permit Rule

from the right to use the land associated with the permit. We

respond to this by noting that over 30 years ago, the court of

appeals aptly described the problem with parsing out parts of a

business for land use purposes:

Such 'piecemealing' of [the defendant's] activities is
unrealistic in that it overlooks the true nature of
the services he was providing. In fact, [the
defendant's] business consisted of various small
marina and resort related activities which, in
combination, assisted the business's survival and gave
the enterprise its true resort and marina flavor.
This synergistic action of [the defendant's] business
activities vested his interest in their continuance.
Waukesha Cty. v. Seitz, 140 Wis. 2d 111, 116, 409 N.W.2d 403

(Ct. App. 1987). While Seitz involved the nonconforming use

exception, the principle it articulates is equally applicable to
the Building Permit Rule because both achieve the same end——

protecting vested rights based on reasonable expectations. See

McKee, 374 Wis. 2d 487, ¶42; Des Jardin, 262 Wis. at 47-48.

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No. 2015AP1258

¶26 We conclude that the primary policy13 underlying the

bright-line Building Permit Rule——predictability——is best

advanced by applying the rule to all land specifically

identified in the building permit application. Such a rule

ensures that all parties know when rights vest in what land:

the time a building permit application that strictly complies

with all applicable zoning regulations is filed. This rule

promotes judicial economy and ensures that "developer[s] may

make expenditures in reliance on a zoning classification."

McKee, 374 Wis. 2d 487, ¶43.

¶27 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

is necessary, which neutralizes one of the primary reasons we

adhere to the Building Permit Rule: avoiding lengthy, fact-

intensive litigation. See id., ¶44. Further, for any business

that requires land in addition to structures for its operations,

a building permit is nearly worthless if the rights vested by
virtue of obtaining a conforming building permit do not extend

to the land necessary to put the structures to their proper use.

13
Considerations of policy are entirely appropriate when
developing common-law doctrines. Progressive N. Ins. Co. v.
Romanshek, 2005 WI 67, ¶63, 281 Wis. 2d 300, 697 N.W.2d 417
("[T]his court may mold and develop common-law doctrines to best
effectuate the purpose for which they were designed . . . .");
Scarpaci v. Milwaukee Cty., 96 Wis. 2d 663, 682, 292 N.W.2d 816
(1980) ("The doctrine of immunity of municipal officers from
civil liability also evolved in the common law of this state.
[It] was developed on grounds of public policy . . . .").

15
No. 2015AP1258

¶28 The court of appeals asked a number of questions

raising some concerns about the amount of land Golden Sands was

going to use. These concerns, for purposes of the Building

Permit Rule, are irrelevant to our analysis and provide a

showcase as to one way the purpose of avoiding fact-intensive

litigation is served by this bright-line rule. As personally

"curious" or "concerned" members of the court of appeals may be

as to how much land will actually be utilized by Golden Sands,

and for what purpose the utilization is to be had, there simply

is no legal relevance to their inquiry. Therefore, the purpose

of the bright-line rule is served when judges focus their

inquiry on that which is legally relevant, and avoid that which

is not. In the case at bar, the court of appeals' concerns are

particularly unfounded because the circuit court held that

Golden Sands' vested rights in the land expire when the building

permit expires. Thus, if Golden Sands overestimated the amount

of land it needs to operate the farm, the land not in use at the

time the building permit expires would not benefit from either
the Building Permit Rule or the nonconforming use doctrine, and

any future use would simply have to conform with Saratoga's

zoning ordinances.

¶29 The parties do not direct us to, nor did our research

reveal, any cases from other jurisdictions that have considered

this issue.14 However, we are able to utilize principles from
14
Saratoga cites two decisions from other jurisdictions for
the proposition that the rights vested by building permits do
not extend to associated lands, but both are distinguishable.
(continued)
16
No. 2015AP1258

other jurisdictions that adhere to the Building Permit Rule in

order to aid our analysis. Those jurisdictions emphasize that

the rights vested by a building permit application are to

develop the land, not merely build structures. For example, the

Building Permit Rule has been interpreted so that it "is well

settled that a landowner has a vested right to develop land

under the zoning ordinances in effect at the time the permit

application is submitted." Manna Funding, LLC v. Kittitas Cty.,

295 P.3d 1197, ¶28 (Wash. Ct. App. 2013) (emphasis added).

Other courts have underscored the idea that, in the building

permit context, use of the land follows use of the buildings.

For example, "Georgia courts have concluded that property rights

In Deer Creek Developers, LLC v. Spokane Cty., the
plaintiff obtained a site plan for a two-phase residential
development, but obtained building permits for only the first
phase. 236 P.3d 906, ¶6 (Wash. Ct. App. 2010). After
construction began on the first phase, the applicable zoning law
was changed such that residential uses were prohibited in the
area. The court, applying the Building Permit Rule, held that
the developer did not have vested rights to build the second
phase because no building permit application was filed for the
second phase. Id., ¶¶29-30. Conversely, in the present matter,
Golden Sands specifically identified the entire project acreage
in the Application.

In Huff v. Des Moines, the plaintiff obtained a building
permit to construct a trailer park, but never obtained the
necessary permit to operate a trailer park. 56 N.W.2d 54, 55-56
(Iowa 1952). The court held that the plaintiff did not possess
a vested right to operate the trailer park. Id. at 95. Huff is
inapposite because the issue here is not whether Golden Sands
possesses a vested right to permits necessary to operate its
farm. Rather, the issue before us is whether Golden Sands
possesses a vested right to use the Property for agricultural
purposes.

17
No. 2015AP1258

vest when a permit is actually issued for a particular land use

and that a later, new zoning ordinance prohibiting that land use

is not enforceable against the property owner." Crown Media,

LLC v. Gwinnett Cty., 380 F.3d 1317, 1325 (11th Cir. 2004)

(emphasis added); see also WMM Props., Inc. v. Cobb Cty., 339

S.E.2d 252, 254 (Ga. 1986) (emphasis added) ("Once a building

permit has issued, a landowner has a right to develop the

property pursuant to that permit . . . ."). These opinions

bolster our understanding that the proper scope of the Building

Permit Rule includes the land, not merely the structures.

C. Application of the Building Permit Rule to Golden Sands.

¶30 We first address a threshold issue, Golden Sands'

ownership of the land. "The vendee under a contract to purchase

land is the equitable owner and is the 'owner' for many

purposes. We think that the vendee is an owner for the purpose

of applying for a building permit . . . ." Sheer v. Weis, 13

Wis. 2d 406, 413, 108 N.W.2d 523 (1961) (footnote omitted).

Though we cited only a single case in support of the proposition
in Sheer, we have applied the doctrine in multiple

circumstances. Id. at 413 n.2 (citing Mueller v. Novelty Dye

Works, 273 Wis. 501, 78 N.W. 881 (1956) (holding that creditor

holding judgment against seller could not execute against

property titled in seller's name because land was subject to

valid contract to purchase)); Ritchie v. Green Bay, 215 Wis.

433, 437, 254 N.W. 113 (1934) (tax exemption); Menominee River

Lumber Co. v. Philbrook, 78 wis. 142, 146, 47 N.W. 188 (1890)
(ejectment action).
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No. 2015AP1258

¶31 Golden Sands specifically identified the Property in

the Application. The map attached to the original application

provides an objective means to determine the specific land

Golden Sands intends to use in order to build structures as well

as cultivate, seed, fertilize, harvest, and otherwise maintain

the land it will use for agricultural purposes. The map

highlights the Property in blue (agricultural land) and yellow

(land on which the structures are to be built). The map is

based on a U.S. Geological Survey topographical map that

contains details, such as county borders, roads, and latitude

and longitude, that allow a person to objectively determine the

borders of the shaded land. Because the map provides 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, Golden Sands

possesses a vested right to use the Property for agricultural

purposes.

¶32 Golden Sands' situation demonstrates how
predictability is best served by vesting rights to all land

specifically identified in a building permit application.

Agriculture is the starkest example of a business that requires

substantial land in addition to structures in order to operate.

If Golden Sands' building permit served only to guarantee Golden

Sands' right to build the structures for the dairy farm, the

permit would be worthless because Golden Sands needs the

agricultural land in order to make the farm work.

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No. 2015AP1258

¶33 To separate structures from their associated land

would be to allow zoning authorities to circumvent the Building

Permit Rule by enacting restrictive zoning regulations on land

that is necessary to give the buildings value. Saratoga argues

that Golden Sands is required to establish a nonconforming use

in order to continue using its land for agricultural purposes.

Under Saratoga's reasoning, Golden Sands could not be certain

that its dairy would be allowed to operate until sometime after

operations had actually commenced and sometime after Golden

Sands had actually invested significant sums of additional

money. This is so because the nonconforming use doctrine

applies only after the land use begins. This uncertain result

is exactly what the bright-line Building Permit Rule attempts to

avoid. McKee, 374 Wis. 2d 487, ¶43 ("Once a building permit has

been obtained, a developer may make expenditures in reliance on

a zoning classification."). Saratoga and the court of appeals

would ignore that the "synergistic action of [Golden Sands']

business activities vested [its] interest in their continuance."
Seitz, 140 Wis. 2d at 116.

IV. CONCLUSION

¶34 We hold that the Building Permit Rule extends to all

land specifically identified in a building permit application.

Consequently, Golden Sands has a vested right to use the

Property for agricultural purposes.

By the Court.—The decision of the court of appeals is

reversed.

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No. 2015AP1258.ssa

¶35 SHIRLEY S. ABRAHAMSON, J. (dissenting). Today, the

majority expands the Building Permit Rule to create vested

rights to particular uses of land so long as the land is

"specifically identified" in the building permit application.1

¶36 This ill-advised expansion of the Building Permit Rule

sacrifices the important public policies that the Building

Permit Rule was designed to encourage, namely, "predictability

for land owners, purchasers, developers, municipalities, and the

courts."2

¶37 The majority's expansion of the Building Permit Rule

transforms what was once an easy-to-apply, bright-line rule into

a rule requiring a case-by-case analysis of the applicant's

specificity regarding both the description of the property

included within the scope of the building permit application as

well as the property's proposed use.

¶38 Accordingly, I dissent.

¶39 In the majority of jurisdictions, a building permit
can be revoked if the property is rezoned after the permit is

issued even if construction has already begun.

¶40 In these jurisdictions, in addition to applying for

and obtaining the building permit, land owners and developers

must have incurred substantial expenditures or construction must

1
Majority op., ¶4.
2
McKee Family I, LLC v. City of Fitchburg, 2017 WI 34, ¶43,
374 Wis. 2d 487, 893 N.W.2d 12.

1
No. 2015AP1258.ssa

already be substantially underway in order for the land owners

or developers to acquire the right to construct the proposed

building despite the building's non-compliance with the new or

amended zoning ordinance.3

¶41 In contrast, Wisconsin is among the minority of

jurisdictions that recognize a vested right to construct a

building when the land owner submits a building permit

application that strictly conforms to all applicable zoning

ordinances in effect at the time the application is submitted.4

This doctrine is referred to as the Building Permit Rule.

¶42 Just last term, this court reaffirmed Wisconsin's

adherence to the Building Permit Rule and explained the

important policies that the rule promoted. The court stated:

Wisconsin applies the bright-line building permit rule
because it creates predictability for land owners,
purchasers, developers, municipalities and the courts.
See, e.g., Guertin v. Harbour Assurance Co. of
Bermuda, 141 Wis. 2d 622, 634-35, 415 N.W.2d 831
(1987) (explaining that bright line rules provide
predictability and protect all parties). It balances
a municipality's need to regulate land use with a land
owner's interest in developing property under an
existing zoning classification. A municipality has
the flexibility to regulate land use through zoning up
until the point when a developer obtains a building
permit. Once a building permit has been obtained, a
developer may make expenditures in reliance on a
zoning classification.

3
4 Patricia E. Salkin, American Law of Zoning § 32:3, at
32-6 (5th ed. 2017).
4
McKee, 374 Wis. 2d 487, ¶37.

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No. 2015AP1258.ssa

McKee Family I, LLC v. City of Fitchburg, 2017 WI 34, ¶43, 374

Wis. 2d 487, 893 N.W.2d 12.5

¶43 Underlying the Building Permit Rule is the notion that

land owners and developers are proceeding on the basis of a

reasonable expectation.6 That is, submitting a building permit

application that conforms to the zoning or building code

requirements in effect at the time of the application gives rise

to the reasonable expectation that construction can proceed and

expenditures can be made in reliance on the then-applicable

zoning classification.7

¶44 In the instant case, the majority expands the Building

Permit Rule to create vested rights to particular uses of land

so long as the land is "specifically identified" in the building

permit application.

5
Although the quoted language from McKee speaks of
"obtaining" a building permit, the holding of McKee is that the
land owner's right to construct a proposed building vests when
the land owner "has submitted an application for a building
permit that conforms to the zoning or building code requirements
in effect at the time of application." McKee, 374 Wis. 2d 487,
¶4.
6
McKee, 374 Wis. 2d 487, ¶42.
7
At the time Golden Sands submitted its building permit
application, the land at issue was enrolled in the DNR's Managed
Forest Land program, which precluded agricultural uses, and
Golden Sands was aware of the Town's efforts to rezone the land.

One wonders how reasonable Golden Sands' expectations were
given what it knew at the time it submitted its building permit
application.

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No. 2015AP1258.ssa

¶45 The majority's expansion of the Building Permit Rule

creates uncertainty in a previously predictable process in at

least two ways.

¶46 First, the majority announces that a particular use of

land will be protected under the Building Permit Rule so long as

the land is "specifically identified" in the building permit

application. While acknowledging that "[a] legal description is

preferable," the majority says that a map may suffice as well.8

¶47 The majority explains why the map submitted with

Golden Sands' building permit application is sufficiently

detailed to objectively identify the relevant land.9 Even

accepting that proposition as true, the outcomes of future cases

remain uncertain. At what point will a map lack sufficient

detail to "specifically identify" the land at issue? Simply

asking this question indicates that the majority has injected

uncertainty into the application of the Building Permit Rule

where it did not previously exist.

¶48 In my view, requiring (as opposed to preferring) a
legal description of the lands included in the building permit

would eliminate this uncertainty, but it would also compel a

ruling against Golden Sands because Golden Sands submitted in

8
Majority op., ¶4 n.5. Golden Sands is fortunate that the
majority is satisfied with a map, because Golden Sands did not
provide a legal description of the total acreage it intended for
use for its farming operation. Instead, the only legal
description provided by Golden Sands was the legal description
of the land upon which the proposed buildings would be
constructed.
9
Majority op., ¶31.

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No. 2015AP1258.ssa

its building permit application a legal description of only the

land upon which the proposed buildings would be constructed.

¶49 Second, and perhaps more importantly, how specific

must the building permit application be with regard to the

proposed use of the land specifically identified in the

application?

¶50 In the instant case, Golden Sands' building permit

application did not include a great deal of detail about the

overall proposal outside of the building site, and Golden Sands

did not consult with the Town before filing its application.

¶51 The majority points out that the building permit

application included copies of applications for various state

permits required to operate the farm that described Golden

Sands' proposed farming operation in greater detail. However,

the majority acknowledges that "Golden Sands was not required to

provide copies of the state permit applications to receive a

building permit from [the Town], but rather did so as a

'courtesy.'"10
¶52 This acknowledgement raises an important but

unanswered question: Would Golden Sands' application be

sufficient under the majority's expanded Building Permit Rule

without the inclusion of the "courtesy" materials submitted to

the Town?

¶53 If the answer to this question is "no," that would

seem to contradict the majority's conclusion that the "courtesy"

10
Majority op., ¶6.

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No. 2015AP1258.ssa

materials were not required in order to vest in Golden Sands the

right to use the land as described in those "courtesy"

materials.11

¶54 If the answer to this question is "yes," that would

encourage land owners and developers to withhold from

municipalities the specific details about how they intend to use

the land. Creating an incentive to provide less rather than

more detail in the application process frustrates the paramount

policy goal advanced by the Building Permit Rule——providing

predictability to all parties.

III

¶55 The majority has erroneously expanded the Building

Permit Rule beyond its traditional scope. In doing so, it has

undermined the rule's primary purpose of ensuring predictability

in the development process for both developers and

municipalities.

¶56 Because the majority's expansion of the Building

Permit Rule undermines the rule's fundamental purpose, I
dissent.

¶57 I am authorized to state that Justice ANN WALSH

BRADLEY joins this dissent.

11
See majority op., ¶6.

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