Wisconsin Case Law

KRAMER v. JUDY CLARK, 2005AP2970 (Wis.Ct.App. 12-21-2006)
FRIENDS OF RICHLAND COUNTY, THOMAS SHIELDS AND DONALD
KRAMER, Plaintiffs-Appellants, v. RICHLAND COUNTY, STEVE
SCHMITZ, CINDY SCHMITZ, LEE CLARK AND JUDY CLARK,
Defendants-Respondents. No. 2005AP2970. Court of Appeals
of Wisconsin, District IV. Opinion Filed: December 21,
2006.

APPEAL from a judgment of the circuit court for Richland
County: EDWARD E. LEINEWEBER, Judge. Affirmed.

Before LUNDSTEN, P.J., DEININGER and HIGGINBOTHAM, JJ.

DEININGER, J.

¶ 1 Friends of Richland County is a non-profit
association of Richland County residents who seek “to
preserve the farmland, forest, wildlife and a[]quatic
resources of Richland County.” Friends and two of its
members, who are Richland County residents, property owners
and taxpayers, commenced this declaratory judgment action
challenging Richland County’s alleged pattern and practice
of illegally granting rezoning petitions for parcels in the
Agriculture-Forestry District. The plaintiffs later amended
their complaint to include a request that three recently
granted rezoning amendments be set aside.[fn1] The circuit
court dismissed Friends’ claims on summary judgment,
concluding both that Friends lacked standing to bring its
claims for certiorari and declaratory relief and, further,
that the claims lacked merit. We conclude Friends lacks
standing and affirm the appealed judgment on that basis.

ANALYSIS

¶ 2 Whether a party has standing to seek declaratory
relief is a question of law we decide de novo. See Village
of Slinger v. City of Hartford, 2002 WI App 187, ¶
8, 256 Wis. 2d 859, 650 N.W.2d 81. “In order to have
standing to bring an action for declaratory judgment, a
party must have a personal stake in the outcome and must be
directly affected by the issues in controversy.” Lake
Country Racquet & Athletic Club, Inc. v. Village of
Hartland, 2002 WI App 301, ¶ 15, 259 Wis. 2d 107,
655 N.W.2d 189.

¶ 3 As a “nonprofit association,” Friends has
standing if it satisfies the following requirement:

A nonprofit association may assert a claim in its name on
behalf of its members if one or more members of the
nonprofit association have standing to assert a claim in
their own right, the interests that the nonprofit
association seeks to protect are germane to its purposes,
and neither the claim asserted nor the relief requested
requires the participation of a member.

WIS. STAT. § 184.07(2) (2003-04).[fn2] Thus,
Friends’ standing to seek certiorari review and declaratory
relief turns on whether one or more of its members have
standing to seek these legal remedies based on the
allegations in Friends’ complaint.[fn3]

¶ 4 The Richland County Board accomplished the
challenged rezoning actions by amending the Richland County
Zoning Ordinance, and the individual amendments are
themselves board-enacted ordinances. WISCONSIN STAT.
§ 806.04(2) provides that “[a]ny person . . . whose
rights, status or other legal relations are affected by a .
. . municipal ordinance, . . . may have determined any
question of construction or validity arising under the . .
. ordinance . . . and obtain a declaration of rights,
status or other legal relations thereunder.” Although the
statutory language describing who may seek declaratory
relief regarding a municipal ordinance is quite broad,
(“any person . . . whose rights . . . are affected by [the]
ordinance”), case law confirms that relief under §
806.04 is not available to every citizen who disagrees with
the provisions of a municipal ordinance or with how
officials are executing their duties under it.

¶ 5 A justiciable controversy must exist in order
for a party to maintain a declaratory judgment action under
WIS. STAT. § 806.04. See Loy v. Bunderson, 107 Wis.
2d 400, 409-410, 320 N.W.2d 175 (1982). A controversy is
justiciable when the following factors are present:

(1) A controversy in which a claim of right is asserted
against one who has an interest in contesting it.

(2) The controversy must be between persons whose
interests are adverse.

(3) The party seeking declaratory relief must have a
legal interest in the controversy — that is to say,
a legally protectible interest.

(4) The issue involved in the controversy must be ripe
for judicial determination.

Lake Country, 259 Wis. 2d 107, ¶ 15. The dispositive
issue in this case centers on the third element of
justiciability, which is often referred to as a plaintiff’s
“standing” to seek declaratory relief. See City of Madison
v. Town of Fitchburg, 112 Wis. 2d 224, 228, 332 N.W.2d 782
(1983).

¶ 6 To meet the third requirement for
justiciability, and thus to have standing to bring a
declaratory judgment action, a plaintiff must “have a
personal stake in the outcome and must be directly affected
by the issues in controversy.” Lake Country, 259 Wis. 2d
107, ¶ 15 (citing Village of Slinger, 256 Wis. 2d
859, ¶ 9). We concluded in Lake Country that a
plaintiff’s mere status as a resident, property owner, and
taxpayer of the municipality whose action was being
challenged was insufficient to confer standing. Rather, we
deemed it necessary for the plaintiff to have sustained, or
to be likely to sustain in the future, “some pecuniary loss
or otherwise . . . substantial injury to his or her
interests.” Lake Country, 259 Wis. 2d 107, ¶ 17.

¶ 7 We conclude that, as in Lake Country where the
plaintiff argued that “its status as a village taxpayer and
property owner confers standing,” id., ¶ 16,
Friends’ assertion in its complaint that the two
co-plaintiff members of the association are Richland County
residents, property owners and taxpayers is not sufficient,
in and of itself, to give Friends standing to seek a
declaratory judgment regarding Richland County’s re-zoning
ordinances. Friends’ Second Amended Complaint alleges the
County committed numerous violations of state statutes, and
of state and local planning standards, as well as
transgressions against good public policy. The complaint
also includes some general assertions that these alleged
violations are “to the detriment of Richland County’s . . .
citizens and taxpayers”; that the County Board’s actions are
“not in the public interest”; and that the actions are
“harmful to county land resources and its citizens and
taxpayers.” Nowhere, however, does Friends allege that any
member of the association has suffered any direct pecuniary
loss or any other substantial injury to his or her legally
protectible interests. See Village of Slinger, 256 Wis. 2d
859, ¶¶ 7-12 (rejecting claim of “legally
protectible interest in the rezoning of adjoining property
that impairs the quality of residential life” and
concluding that plaintiffs lacked standing for failure to
allege “some pecuniary loss” or other “substantial injury to
their interests”).

¶ 8 Friends argues, however, that its members “have
been personally affected by [the County]’s rezoning[]
decisions” because their “lives are inextricably tied to
the Richland County landscape. Their taxes subsidize
efforts to preserve farmland, and they bear the costs that
result from poor zoning decisions.” The only legal authority
they cite in support of their claim that these things are
sufficient to confer standing is Weber v. Town of Lincoln,
159 Wis. 2d 144, 463 N.W.2d 869 (Ct.App. 1990). The
plaintiffs in Weber were town residents who sought a
declaratory judgment invalidating the town’s repeal of its
zoning ordinance. Id. at 146. We concluded that the
residents had standing to challenge the repeal because the
rights of all residents of the town were affected by the
complete repeal of the zoning ordinance. Id. at 147-49. In
essence, the repeal of the existing zoning ordinance had
the effect of “rezoning” every parcel of land in the town.
We specifically noted that “the lack of a zoning ordinance
affects all town residents,” and that all property owners
were statutorily empowered to enforce the repealed zoning
ordinance, a right the town extinguished by repealing the
ordinance. See id. at 148-49.

¶ 9 Friends and its members do not and cannot allege
a loss or injury in this action similar to that in Weber.
The rezoning of other parcels of land in Richland County
did not disturb the existing zoning of the members’
properties, and whatever statutory or other zoning
enforcement rights they might enjoy as property owners were
not affected by the rezoning of parcels belonging to
others. Although it is true that a Richland County property
owner may not now seek to have a rezoned parcel comply with
restrictions or regulations that no longer apply to the
parcel, we conclude that this fact does not represent a
pecuniary loss or other substantial injury to a property
owner’s interests sufficient to confer standing under WIS.
STAT. § 806.04. See Lake Country, 259 Wis. 2d 107,
¶17.[fn4]

¶ 10 Friends contends in its reply brief that its
members face “a likely pecuniary loss” because “[t]he
rezoning of particular properties originally zoned for
exclusive agricultural use under the Farmland Preservation
Act, WIS. STAT. ch. 91, may lead the Land Conservation
Board to revoke its certification of [Richland County’s]
exclusive agricultural zoning ordinance,” and “[t]he loss
of this certification would cause property owners, such as
the Plaintiffs, to lose tax credits” that they can
currently claim under chapter 71 of Wisconsin
Statutes.[fn5] Friends thus claims its members “face the
risk of considerable financial loss as a result of the
County’s current practice of rezoning farmland while
ignoring statutory criteria.”

¶ 11 We acknowledge that pecuniary loss or injury
need not actually have occurred in order for a plaintiff to
have standing to seek declaratory relief, but it must at
least appear likely that a plaintiff “will sustain some
pecuniary loss” if relief is not granted. See Village of
Slinger, 256 Wis. 2d 859, ¶ 12. Friends’ suggested
future pecuniary losses that its members may someday incur
due to lost tax credits is simply too remote and
speculative for this court to conclude that the present
plaintiffs will likely sustain some pecuniary loss on
account of Richland County’s allegedly improper rezoning
actions. In essence, what Friends asserts is that, if
Richland County continues doing what it is allegedly doing
(that is, rezoning actions. See Cushman, 39 Wis. 2d at 304,
310-11 (owners of “homes or lots . . . in close proximity
to the subject parcel” demonstrated that the market value
of their properties would be adversely affected); Step Now,
264 Wis. 2d 662, ¶¶ 2, 6 (members of
citizens’ group were “potentially affected” by negative
effects of constructing and operating an ethanol plant,
including odor emission, noise, increased traffic, and
increased demand for fire control and water supply
services). improperly or inadvisably granting petitions to
rezone parcels from agricultural to other uses), eventually
the pattern may prompt the Land Conservation Board to
decertify Richland County’s exclusively agricultural zoning
for purposes of property tax credit eligibility. Whatever
may be the plausibility of these events ever coming to
pass, Friends and its members cannot rely on events that
“may” someday happen to claim that they are “directly
affected by the issues in controversy.” See id., ¶ 9
(emphasis added).

¶ 12 Friends also argues that WIS. STAT. §
59.69(14) confers standing on it and its members to
challenge the rezoning ordinances at issue. The statute
provides as follows:

LIMITATION OF ACTIONS. A landowner, occupant or other
person who is affected by a county zoning ordinance or
amendment, who claims that the ordinance or amendment is
invalid because procedures prescribed by the statutes or
the ordinance were not followed, shall commence an
action within [180 days]. . . .

Section 59.69(14). Friends maintains that the statute
“provides a broad basis for legal action across a wide
spectrum,” including the present declaratory judgment
action brought on behalf of members who are allegedly
“affected by a county zoning ordinance or amendment.” We
reject Friends’ contention that WIS. STAT. §
59.69(14) grants it and its members standing to bring this
action.

¶ 13 We agree instead with the County and the
circuit court that WIS. STAT. § 59.69(14) is a
statute of limitation. It specifies the time period within
which an action challenging a zoning ordinance or amendment
on procedural grounds must be commenced. Thus, if a
plaintiff seeks by way of a declaratory judgment action
under WIS. STAT. § 806.04 to undo a rezoning
ordinance on the grounds that a county failed to follow
procedures prescribed by statute or ordinance, he or she
must commence the action within one hundred eighty days of
the adoption of the zoning ordinance amendment. See WIS.
STAT. § 893.73(1). Simply put, nothing in §
59.69(14) evinces a legislative intent to create a
separate, alternative cause of action for challenging zoning
ordinances or amendments. See, e.g., Grube v. Daun, 210
Wis. 2d 681, 689, 563 N.W.2d 523 (1997) (noting that a
statute will be deemed to create a private right of action
only where “there is a clear indication of the
legislature’s intent to create such a right”). Thus,
§ 59.69(14) does not provide a means of
circumventing the rules of standing for obtaining
declaratory relief.

¶ 14 Friends’ last claim of standing rests on the
Wisconsin Public Trust Doctrine. Friends acknowledges that
the doctrine “typically applies to the preservation of
navigable waters,” but argues that the doctrine should be
deemed to extend to all citizen “interests in the public
natural resources,” including “waterways, wildlife, and
agriculture and forest resources.” Friends would have us
conclude that, because there is a “public property interest
in state natural resources[,] . . . [t]his . . . provides
standing for citizens to challenge the actions of their
government when detrimental to their interests in the
public natural resources.”

¶ 15 We do not quarrel with Friends’ contention that
the use to which land in a given watershed is put affects
the quality of the waters that lie within it. We also
acknowledge that among the factors a zoning authority
should consider when acting on a request to rezone property
lying within an exclusive agricultural district is whether
the proposed use will “result in undue water or air
pollution, cause unreasonable soil erosion or have an
unreasonably adverse effect on rare or irreplaceable
natural areas.” See WIS. STAT. § 91.77(1)(c). Neither
of these facts, however, translates into a conclusion that
the Public Trust Doctrine confers on every citizen the
right to challenge in court any governmental action that
arguably impacts any natural resource in Wisconsin.

¶ 16 Quite simply, Friends cites no instance where
the Public Trust Doctrine has been applied in Wisconsin in
a context beyond the direct infringement of the public’s
rights in navigable waters. See, e.g., State v. Waushara
County Bd. of Adjustment, 2004 WI 56, ¶ 41 n. 1, 271
Wis. 2d 547, 679 N.W.2d 514 (Bradley, J., dissenting)
(“Although the public trust doctrine originally existed to
protect commercial navigation, it has been expansively
interpreted to safeguard the public’s use of navigable
waters for other purposes.”); Muench v. PSC, 261 Wis. 492,
515-l, 53 N.W.2d 514 (1952) (“The trust doctrine has become
. . . thoroughly embodied in the jurisprudence of this state
. . . as it applies to rights of recreational enjoyment of
our public waters. . . .”). We are thus not persuaded that
the Public Trust Doctrine provides standing to every
citizen to challenge any government action that affects
some aspect of the environment other than the public’s
rights in the navigable waters of our state. See
Wisconsin’s Envtl. Decade, Inc. v. PSC, 69 Wis. 2d 1, 15,
230 N.W.2d 243 (1975) (“We are unwilling to adopt a rule
that any allegation of harm to the environment raises, by
implication, an allegation of harm to navigable
waterways.”).[fn6]

¶ 17 Finally, we note that the circuit court
commented in its oral ruling on the County’s motion for
summary judgment that “the plaintiffs raise legitimate
public policy concerns with which reasonable people can
agree or disagree but these are issues for the public
debate.” We agree with the circuit court’s observation that
Friends’ complaints regarding the wisdom of the County
Board’s rezoning actions “are issues which are to be
resolved by the political process.” See, e.g., Lake
Country, 259 Wis. 2d 107, ¶ 23 (noting that the
plaintiff “is simply registering its disagreement with
legislative decisions of the Village,” which “is
insufficient to confer standing”); Schmeling v. Phelps, 212
Wis. 2d 898, 918, 569 N.W.2d 784 (Ct.App. 1997) (noting
that a disagreement over the “interpretation of the
county’s planning policies relating to rural residential
development . . . is a matter for the actors in the
legislative process, and possibly the political and
electoral processes; [but] it is not for the courts to
resolve”).

CONCLUSION

¶ 18 Because we conclude Friends lacks standing to
bring this action, we affirm the appealed judgment. We note
that the circuit court also ruled that, in addition to
lacking standing, Friends also failed to state a claim on
which relief could be granted. Because we agree with the
circuit court that Friends lacks standing, we do not address
the merits of its claims.

By the Court. — Judgment affirmed.

Not recommended for publication in the official reports.

[fn1] At a hearing in June 2004, counsel for Friends
informed the court that the rezoning of as many as thirteen
specific parcels might be at issue. Friends filed a Second
Amended Complaint in January 2005 identifying three parcels
whose rezoning Friends sought to set aside by way of a writ
of certiorari. Ultimately, however, Friends asked the
circuit court to remand the rezoning petitions for only two
parcels, which belonged to parties named Schmitz and Clark.
The two sets of owners remain as parties and are
respondents in this appeal. Both have informed us that they
join in the County’s responsive brief. We refer in this
opinion to all plaintiff-appellants as “Friends” and to all
defendant-respondents as “the County.”

[fn2] All references to the Wisconsin Statutes are to the
2003-04 version unless otherwise noted. “Nonprofit
association” is defined in WIS. STAT. § 184.01(2).

[fn3] The parties’ arguments on appeal focus exclusively on
the standing requirements for declaratory judgment actions.
That is, Friends does not argue that, even if it lacks
standing to seek declaratory relief under WIS. STAT.
§ 806.04, it has standing to seek certiorari review
of the rezoning actions relating to the two specific
parcels cited in its amended complaint. Because Friends
makes no separate argument regarding its standing to pursue
certiorari review, we, like the parties, discuss standing
only as it relates to obtaining declaratory relief.

[fn4]Friends points in its reply brief to Cushman v. City of
Racine, 39 Wis. 2d 303, 159 N.W.2d 67 (1968), and Step Now
Citizens Group v. Town of Utica, 2003 WI App 109, 264 Wis.
2d 662, 663 N.W.2d 833, as examples of rezoned parcels were
allowed to challenge the rezoning ordinances. We first note
that the question of the plaintiff’s standing is not
discussed in either case. Moreover, in both cases, the
plaintiffs were able to point to specific and direct harm
they would suffer as a result of the rezoning actions. See
Cushman, 39 Wis. 2d at 304, 310-11 (owners of “homes or
lots …in close proximity to the subject parcel”
demonstrated that the market value of their properties
would be adversely affected); Step Now, 264 Wis. 2d 662,
¶¶ 2, 6 (members of citizens’ group were
“potentially affected” by negative effects of constructing
and operating an ethanol plant, including odor emmission,
noise, increased traffic, and increased demand for fire
control and water supply services).

[fn5] Under WIS. STAT. ch. 71, subchapter IX, owners of
farmland that is subject to agricultural use restrictions
are eligible to claim credit against Wisconsin income or
franchise taxes if certain requirements are met. See WIS.
STAT. §§ 71.57-71.61.

[fn6] We note that, where the Public Trust Doctrine is
implicated, that is, in cases involving the infringement of
public rights in navigable waters, private enforcement
actions are recognized as having a statutory basis. See
Gillen v. City of Neenah, 219 Wis. 2d 806, 828-32, 580
N.W.2d 628 (1998) (concluding that, under WIS. STAT.
§ 30.294, a private citizen has standing to bring an
action to enjoin violations of the statutes that embody the
public trust doctrine). The Farmland Preservation Act, WIS.
STAT. ch. 91, contains no similar provision that authorizes
“any person” to bring an action to abate or enjoin a
failure to preserve agricultural land.