Agenda - Planning Commission - 06/01/2017

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Zoning Bulletin May 25, 2017 I Volume 11 I Issue 10 DECISION: Judgment of Court of Appeals affirmed. The Supreme Court of Wisconsin rejected McKee's arguments and declined McKee's invitation to approach vested rights cases with a case - by -case analysis. The court maintained that the bright -line building permit rule was the preferred analysis for vested rights cases because it "creates predict- ability for land owners, purchasers, developers, municipalities, and the courts." In contrast, the court found that the rule proposed by McKee, which would require a case -by -case analysis of expenditures would "cre- ate uncertainty at various stages of the development process." Here, the court concluded that McKee did not have a vested right in developing the Property under the PDD zoning classification because it did not apply for a building permit. Moreover, the court noted that even if it was to apply a substantial expenditure rule here, as proffered by Mc- Kee, McKee's claim "would fail because [McKee had] not introduced evidence supporting its claims of substantial expenditures." Additionally, the court determined that a PDD zoning classification does not, as McKee had argued, create contractual expectations upon which developers may rely. The court explained that there is "a very strong presumption that legislative enactments do not create contractual or vested rights." Further, said the court, "there must be a clear indication that a legislative body intends to bind itself contractually in order to overcome the presumption." Here, the court concluded that McKee had not overcome the presumption that the City did not intend to enter into a binding contract when it enacted the Ordinance approving the PDD zon- ing classification. See also: Lake Bluff Housing Partners a City of South Milwaukee, 197 Wis. 2d 157, 540 N.W.2d 189 (1995). See also: National R.R. Passenger Corp. v. Atchison Topeka and Santa Fe Ry. Co., 470 U.S. 451, 105 S. Ct. 1441, 84 L. Ed. 2d 432 (1985). Case Note: McKee had also claimed that the rezoning ordinance —which rezoned the Prop- erty from PDD to R-M—constituted a taking under the Fifth Amendment to the United States Constitution. The court did not consider that claim because Mc- Kee had conditioned its takings claim on its claim for vested rights, which the court had determined failed. Because McKee has no vested right in. a PDD zon- ing classification, it could not succeed on its asserted contingent takings claim, concluded the court. © 2017 Thomson Reuters 11