Daily Development for Thursday, September 25, 2002

By: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu

Note that there are three items here discussing three aspects of the same case:

ZONING AND LAND USE; PROCEDURE; ROLE OF PRIVATE COVENANTS: Zoning authorities may not consider impact of private land use restrictions in their public land use determinations.

Sills v. Walworth County Land Management Committee, 648 N.W. 2d 878 (Wisc. App. 2002)

Black Point estate is a historic, Queen Anne Style residence built on Lake Geneva in 1888. The estate houses a valuable collection of period furnishings and art and is listed on the National Register of Historic Places and the Wisconsin State Register. The current owner and great- grandson of the original owner entered into an agreement to allow the State of Wisconsin to acquire the property and Black Point Historic Preserve, Inc. ("Preserve") to operate it as a museum.

As part of the plan, the owner, the State and Preserve sought a conditional use permit. A group of neighbors opposed the application, in part, on grounds that a restrictive covenant limited the use Black Point to "first class residence property." A County zoning agency granted the permit and the neighbors sought certiorari review. They contended, inter alia, that the agency erred as a matter of law in failing to consider the restrictive covenants. The circuit court upheld the decision and the neighbors appealed.

The neighbors argued that the private restrictive covenant barred the committee from granting a conditional use permit. They claimed that granting the permit for any use other than as "first class residence" would effectively repeal or abrogate the private covenant. They contended that this would contravene the express intent of the ordinance not to impair or interfere with existing easements, covenants, deed restrictions, and agreements. The agency concluded, however, that it was not allowed as a matter of law to consider the private covenant as part of its review.

Noting that the impact of private covenants on the administration of county zoning ordinances was an issue of first impression in Wisconsin, the court cited general authorities elsewhere to the effect that the operation of private covenants has no relevance to zoning administration.

It quoted a 1955 Pennsylvania Supreme Court case as an example of the view of courts outside of Pennsylvania on the question:

""[I]t has been uniformly held that any consideration of building restrictions placed upon the property by private contract has no place in proceedings under the zoning oaws for a building permit or a variance."

The court concluded that the ordinance confirmed that the granting of a conditional use permit would not affect the validity of the private covenant, both as a matter of state law and state and federal Constitutional law under the "Contracts Clause." Because the granting of a conditional use permit could not impair the private covenant, the neighbors were free to pursue private remedies for any breach of the covenant.

Moreover, the court noted, to consider the impact of private land use restrictions as a factor in denying a conditional use permit would be to impermissibly dlegate to public parties the police power of the state.

Note: The case also comments on two other noteworthy zoning issues. First, it holds that an agency in making zoning decisions may consider historic preservation as part of the "general welfare" objective stated in a planning ordinance, even when the ordinance does not specifically identify historic preservation as a concern. Second, the case concludes that zoning authorities are not prohibited from having ex parte contacts with advocates of particular proposals. In context, this conclusion precluded the opponents from deposing a lobbyist for the historical preservation cause to ascertain the extent of his contacts with the planning board.

Comment 1: Veteran readers will recall that some time ago the editor ventured the notion that zoning agencies do take restrictive covenants into account in rendering decisions as to the overall impact of a particular application on the public interest, and was roundly excoriated by the DIRT membership for many of the reasons stated by the instant court.

The editor nevertheless believes that the position stated by the court here overstates things a bit. It is one thing to say that the agency has no duty to enforce private restrictions. It is quite another to say that the existence of such restrictions is irrelevant.

If the agency is interested in assessing the impact of a particular zoning determination on the public interest, the editor believes that the agency should take into account the presence of a restrictive scheme that would either render the determination pointless or lead to a condition far out of balance with conditions existing elsewhere in the neighborhood. This does not mean that the agency has a duty to enforce the restrictive scheme or even to assume that it will remain in effect. But to ignore it entirely also seems wrong.

ZONING AND LAND USE; POWER TO ZONE; HISTORIC PRESERVATION: Stated goal in zoning ordinance that agency should pursue the "general welfare" in making zoning decisions is adequate authority for a zoning agency to pursue goal of historic preservation, even though ordinance does not mention such a goals specifically. Sills v. Walworth County Land Management Committee,

648 N.W. 2d 878 (Wisc. App. 2002)

ZONING AND LAND USE; PROCEDURE; FAIR PROCESS; "EX PARTE" COMMUNICATIONS: Although zoning agency has duty to provide a fair and impartial tribunal, mere allegation that members of agency have had ex parte communications with an advocate of a particular position in a zoning dispute does not rise to the statement of a prima facie case of bias.

Sills v. Walworth County Land Management Committee, 648 N.W. 2d 878 (Wisc. App. 2002), also discussed under the heading: "Zoning and Land Use; Procedure; Role of Private Covenants."

Parties attacking the agency decision on certiorari sought to expand the record to include deposition of a proponent of the challenged decision in order to ascertain whether there was evidence that he had biased the decision making panel. The only evidence that they propounded was the assertion that the proposed deponent had had some ex parte communications with members of the panel. The court ruled that while it might be permissible to expand the record in a certiorari proceeding to investigate allegations that an agency decision or proceeding was biased, the simply fact of an ex parte communication does not make the necessary prima facie case to justify such expansion.

Comment: Others commenting on the case have characterized the attempted expansion of the record as a "fishing expedition."

Readers are urged to respond, comment, and argue with the daily development or the editor's comments about it.

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last six years, these Reports have been collated, updated, indexed and bound into an Annual Survey of Developments in Real Estate Law, volumes 1‑6, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Maria Tabor at the ABA. (312) 988 5590 or mtabor@staff.abanet.org

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