Legal Action Case Status Report
The following update overviews the cases in which the Legal Action Committee has authorized involvement from late 2011 through March 2015. The Legal Action Program becomes involved in litigation, primarily as amicus curiae, with regard to issues that are of importance to the WRA membership, the Wisconsin real estate industry and private property owners in our state.
1. Vested Rights in PUD Zoning
McKee Family I LLC v. City of Fitchburg (No. 2014AP19149, Ct. App. 2015)
Decision: purchase contract to purchase two lots in a planned unit development district (PUD) to build 128 apartment units and submission of a proposed “specific implementation plan” (SIP) did not sufficiently vest the developer’s rights so as to prevent downzoning of the property to allow only 48 units.
The developer sued the city, maintaining he had vested rights in the zoning that existed at the time the SIP was filed and that city’s downzoning was unconstitutional. The circuit court upheld the city’s rezoning, reasoning that a property owner does not establish vested rights in zoning until the property owner applies for a building permit. The developer appealed to the Court of Appeals, which affirmed. The decision came, in part, because the developer made arguments not raised before the circuit court which the Court of Appeals, in its discretion, declined to consider.
2. Scope of Easement
American Transmission Co. v. Ricardo Garza (No. 2014AP2278, Ct. App. 2015)
The Garzas owned property subject to a 1969 power line easement. American Transmission Company LLC (ATC) was seeking to trim or remove three lines of trees on the easement’s border and on the Garza property. The recorded easement allowed the power company to build an electrical transmission line with wooden poles, maintain the area within 40 feet on each side of the center line of the transmission line, and trim trees beyond 40 feet of the transmission line. In 1995, new lines with steel poles and multiple circuits were installed to provide high voltage transmission service. Garza filed suit against ATC arguing the easement was no longer valid because the changes were beyond the scope of the easement and that a new easement was needed for the new high voltage lines. The circuit court held that the easement was valid and permitted changing out the old lines to implement technological advances. Garza appealed, and the Court of Appeals reversed, finding the easement only allowed transmission lines with wooden pole structures.
3. Bad Faith Commission Case
Bushman Farms v. Dairyland Real Estate LLC (awaiting decision)
Dairyland Real Estate LLC entered into a one-party farm listing contract with a provision stating commission would be paid only upon a successful closing to one of the two buyers listed. The accepted offer engineered by the parties’ attorneys stated the buyer could assign his rights to an LLC. At closing, the property was deeded to the LLC, not the individual buyer. Commission of $82,950 was paid. Seven months later, the seller sued for the return of the commission because the property was not sold to one of the buyers named in the WB-2 Farm Listing Contract. The circuit court held that the sellers breached the implied duty of good faith since they allowed the buyer to assign the offer to his LLC, would not adhere to “form over substance” and dismissed the seller’s claim. The seller appealed to the Wisconsin Court of Appeals.
4. Commission When No Closing
Ash Park, LLC v. Alexander & Bishop, Ltd., 2015 WI 65
Decision: commission decision in favor of broker.
When the buyer defaulted under the $6.3 million WB-13 Vacant Land Offer to Purchase, the seller sued, ultimately resulting in the Wisconsin Supreme Court holding in Ash Park LLC v. Alexander & Bishop, Ltd., 2010 WI 44 (see online: click here), that the seller was entitled to specific performance as stated in the offer. When the seller was unable to compel the buyer to purchase the property, the parties settled for $1.5 million. The listing broker claimed its commission under the listing contract terms, asserting that the parties’ offer was an enforceable contract. The circuit court disagreed and held that no commission was due because there was no closing. The Wisconsin Court of Appeals reversed, holding that the broker is entitled to commission because the parties’ offer was an “enforceable contract” where an individual can compel observance of the contract by seeking a remedy for a breach. The seller appealed to the Wisconsin Supreme Court, which affirmed the Court of Appeals, finding the offer was an enforceable contract within the meaning of the listing contract.
5. Wind Siting Regulations
Wisconsin REALTORS® Association v. PSC, 2015 WI 63
Decision: decision against property owners in that housing impact report is not required for promulgation of wind energy rules.
On May 8, 2013, the Wisconsin Circuit Court – Brown County granted summary judgment in favor of the Public Service Commission (PSC), ruling, among other things, that the PSC was not required to perform a housing impact statement because the wind siting rules did not “directly or substantially affect the development, construction, cost or availability of housing in this state.” Wis. Stat. § 227.115(2). The wind siting rules represent an attempt by a state agency to (1) ignore the specific statutory requirements related to administrative rulemaking, and (2) reduce the amount of land a wind developer must purchase to create adequate setbacks from neighboring property owners, which could negatively impact the property values of homeowners and future residential and commercial development. The Wisconsin Towns Association, Wisconsin Builders Association, and numerous property owners in Brown County are also parties to this litigation and may contribute to the cost of the appeals. The Court of Appeals found in favor of the PSC, as did the Wisconsin Supreme Court.
6. Vested Rights
Oneida Seven Generations Corp. v. City of Green Bay, 2015 WI 50
Decision: rescission of CUP was not supported by evidence.
In this case, the plaintiffs, Oneida Seven Generations, applied for and received a conditional use permit (CUP) to create a waste-to-energy facility that converts municipal solid waste and other waste materials to a synthetic fuel gas, known as “syngas.” The CUP contained numerous conditions, including the condition that the facility comply with all state and federal environmental regulations. Some residents complained to the city council, who ordered the plan commission to hold a hearing to determine whether the plaintiffs provided accurate information about the facility. The plan commission found no misrepresentation, but 18 months after granting the CUP, the city council rescinded the CUP based on plaintiffs’ alleged misrepresentations made during the CUP application process. The plaintiffs sued, but the circuit court affirmed the city's rescission. The Court of Appeals determined that the city’s decision that the permit was obtained through misrepresentation was not supported by substantial evidence and reversed. The Wisconsin Supreme Court agreed that the city's decision to rescind the CUP was not based on substantial evidence.
7. Right of First Refusal
MS Real Estate Holdings LLC v. Donald P. Fox Family Trust, 2015 WI 49
Decision: right of first refusal duration can be determined by a triggering event.
In 1998, Jean and Donald Fox granted to MS Real Estate Holdings LLC (Tidy-View) a right of first of refusal (ROFR) on 450 acres of crop land. While litigation regarding a lease dispute between the parties was pending, Jean Fox notified Tidy-View that she was terminating the ROFR, claiming it was unenforceable for vagueness as to its term. The parties resolved their other issues, leaving the court to determine whether a ROFR without a specified termination date was unenforceable due to indefiniteness. The circuit court held that the ROFR did not sufficiently delineate its term and was contrary to public policy. The Court of Appeals observed that the entire ROFR terminated upon the sale or transfer to a third party, thus creating a sufficiently definite end to the ROFR. The Wisconsin Supreme Court agreed and held a ROFR contract is definite as to duration when it specifies an event that triggers the right and requires the right holder to either exercise or waive the right within a specified period of time thereafter, even if the triggering event is not certain to occur. The ROFR in the case continues until there is a sale of the property, either to Tidy-View or to a third party in the event that Tidy-View declines to exercise its right of first refusal to purchase, thereby waiving its right.
8. Enforcement of Arbitration Award
First Weber Group, Inc. v. Synergy Real Estate Group, LLC, 2015 WI 34
Decision: in favor of NAR arbitration process.
When Synergy refused to pay the arbitration award, First Weber filed a Petition to Confirm Arbitration Award in circuit court seeking judicial enforcement of the award and requesting reimbursement of legal fees. On December 5, 2011, the court issued an Order Confirming Arbitration Award & Denying Request for Costs & Fees. Synergy paid the award but refused to pay First Weber’s costs of enforcement despite the agreement to do so in the Agreement to Arbitrate. First Weber filed arbitration with regard to payment of the costs, but Synergy refused to attend. First Weber filed a Petition to Compel Arbitration, which directs the court to determine whether a party has failed or refused to perform under a written arbitration agreement. The circuit court found the arbitration was time-barred under the 180-day rule. First Weber contended that such a timeliness issue was for the arbitrators to decide. First Weber appealed to the Wisconsin Court of Appeals, alleging the circuit court overstepped the bounds of Wis. Stat. § 788.03 in dismissing the action based upon timeliness. That court agreed with the circuit court, and First Weber petitioned the Wisconsin Supreme Court to hear the case. The Wisconsin Supreme Court found that under the arbitration agreement, timeliness and other defenses against arbitration are procedural arbitrability issues to be determined during the arbitration process, rather than by a court. Thus First Weber’s petition to compel arbitration was granted.
9. Short-term Rentals
Heef Realty and Investments LLP v. City of Cedarburg Board of Appeals, 2015 WI App 23
Decision: in favor of property owners and short-term rentals.
Several property owners purchased single-family homes intending to rent them on a short-term basis. Before buying the homes, the owners met with city officials, who informed them that the city’s zoning ordinance did not prohibit short-term rentals. After spending tens of thousands of dollars to refurbish the homes, the property owners received notice from the city zoning board indicating that short-term rentals violated the city’s zoning ordinance, which limited use to “single-family dwellings.” The property owners challenged this interpretation in circuit court, and the city board appealed the case to the Wisconsin Court of Appeals after the circuit court concluded that the zoning ordinance did not clearly prohibit the use of the homes as short-term rentals. The Court of Appeals agreed with the homeowners that as written, the ordinances permit short-term rental of homes in a single-family residential district.
10. Liability Insurance
Anderson v. Aul, 2015 WI 19
Decision: insurance claims must be filed within policy period for claims-made insurance policies. In this case, the Andersons sued an attorney for malpractice. The attorney, Aul, gave notice outside the policy period for his malpractice insurance policy. Wisconsin Lawyers Mutual Insurance Company (WILMIC) insured Aul and asserted that it did not provide coverage for the Andersons’ claims. The circuit court granted WILMC’s motion for summary judgment, holding that Aul had ample opportunity to provide WILMC with notice of the Anderson’s claims within the policy period. On appeal, the Court of Appeals determined the circuit court erred in not addressing prejudice and that the late notice did not void coverage because the insurer had to show prejudice and that it was not able to properly investigate the claim. The Wisconsin Supreme Court concluded that Wisconsin's notice-prejudice statutes do not supersede the reporting requirement specific to claims-made-and-reported policies and that requiring an insurance company to provide coverage for a claim reported after the end of a claims-made and-reported policy period is per se prejudicial to the insurance company. The WRA shared costs in this case with the Wisconsin Bankers Association.
11. Wetlands Regulation Reform
The WRA hired outside legal counsel to help streamline the wetlands general permit process, seek favorable modifications to the wetland banking and wetland mitigation rules, develop restrictions on high capacity wells, controlling phosphorus runoff, requiring the DNR to consider the impact on property values when adjusting water levels, additional wetland regulation reform, allowing property owners to rely on ordinary high watermark determinations made by surveyors when establishing setbacks, and limiting the scope of special interest waters that affect activities eligible for a general permit or permit exemptions. The WRA split costs with the Wisconsin Builders Association. Ongoing funding for wetlands/water issues expert consultant.
12. Adverse Possession and Subjective Intent
Wilcox v. Estate of Hines, 2014 WI 60
Decision: in favor of consideration of subjective intent in adverse possession.
The Wilcoxes claimed title to a strip of land separating their property from Lake Delton based on adverse possession and the conduct of the Somas, the prior owners of the Wilcox property. The Somas expressly disclaimed ownership of the strip and sought permission to use it from the Wisconsin Ducks tours, the entity the Somas mistakenly believed owned the strip. The Wilcoxes argued that the intent of the Somas was irrelevant so long as their use of the property was sufficient to put the true owner on notice of occupation. The Wisconsin Supreme Court held that a possessor's subjective intent may be relevant to rebut the presumption of hostility that arises when all other elements of adverse possession are satisfied. The Somas asking for permission showed they did not intend their actions to be hostile to any ownership interest.
13. Commercial Sublease
Anthony Gagliano & Co., Inc. v. Openfirst, LLC, 2014 WI 65
Decision: in favor of commercial subtenant.
This case addressed a commercial leasing dispute between a corporate landlord and various corporate tenants involving whether the landlord properly gave notice to extend the lease terms and whether Quad Graphics Inc. was a party to a commercial lease assignment or a sublease. The circuit court granted summary judgment in favor of Quad Graphics, which argued that it was a subtenant and could not be liable for breaches of the original lease. The Court of Appeals, however, found that Quad Graphics took an assignment and was liable for unpaid rent. The Wisconsin Supreme Court reversed, clearly distinguishing between a sublease and an assignment in holding that Quad Graphics was a subtenant and not liable for further rent.
14. Public Records Law
Wisconsin Professional Police Association, Inc. v. Wisconsin Counties Association, 2014 WI App 106
Decision: in favor of trade association confidentiality.
The issue in this lawsuit was whether the Wisconsin Counties Association (WCA) is a “quasi-governmental corporation” subject to the public records law if it, among other things, receives funding from membership dues comprised of taxpayer dollars. The circuit court held that the WCA was not a “quasi-governmental corporation” subject to the public records law, and an appeal was filed. The WRA joined a group of other associations to file an amicus brief. This suit indirectly impacted the WRA, which frequently works closely with the WCA and other organizations on various policy, legislative and advocacy issues, often discussing strategies and other confidential information not intended to be made public. The Court of Appeals affirmed the circuit court.
15. Menomonee Falls Vested Rights Case
A company offered to purchase a plant in the Village of Menomonee Falls, contingent on obtaining an occupancy permit and satisfactory environmental test results. The company received a satisfactory fire inspection and an occupancy permit from the village and closed. After closing, the village plan commission reconsidered the occupancy permit as a result of public pressure. The company filed a claim against the village in circuit court, asserting that the village’s reconsideration of the occupancy permit is illegal and violates the company’s vested rights. To determine whether the new Wis. Stat. § 66.10015 would protect property owners from the rescission of a municipal permit, a legal opinion from outside legal counsel was authorized regarding (a) whether the new law would prohibit the village from rescinding the occupancy permit, and (b) whether the rescission of the occupancy permit would constitute a “taking.” CARW used the legal opinion to educate the village and other communities about vested rights law and the constitutional provisions that protect property owners’ rights. The memo was beneficial.
16. Exceeding Uniform Dwelling Code Requirements Through Local Ordinances and Developer Agreements
Some Fox Valley communities are using local ordinances and developers’ agreements to place building requirements on new and existing single-family residential structures that exceed the Wisconsin’s Uniform Dwelling Code (UDC) standards for one- and two-unit dwellings. These local ordinances and agreements require either more expensive building materials or features that increase housing costs and the tax base, or new community improvements to address pre-existing service needs, such as another satellite fire station. To determine whether local communities have the authority to exceed the UDC requirements, an outside attorney specializing in construction law provided a white paper to help local boards and government affairs directors educate local communities about the law and encourage them to repeal any ordinances or policies that violate or end-around the UDC. If local communities continue to apply such ordinances and policies in violation of the UDC law, this white paper could serve as the foundation for possible legal action. The memo was beneficial.
17. Impermissible Coordination in Issue Advocacy
Eric O’Keefe and the Wisconsin Club for Growth Inc. v. John Chisholm, et al.
This case involves the John Doe investigation of campaign fundraising and spending in Wisconsin's recall elections. U.S. District Judge Rudolph T. Randa halted the investigation and issued a preliminary injunction. The prosecuting attorneys appealed to the U.S. Seventh Circuit Court of Appeals. The Government Accountability Board (GAB) was granted permission to file an amicus brief and will likely be advancing a theory regarding “impermissible coordination” that could undermine the ability of the WRA to engage in independent free speech including express and issue advocacy. Under the GAB’s theory, anytime the WRA or another organization is engaged in express or issue advocacy, the organization would be prohibited from talking to any political candidate or public official about any issue — not just those issues related to the issue advocacy — at any time. Because the WRA is actively involved in issue advocacy through the Wisconsin Homeowner’s Alliance and express advocacy, which is asking the public to “vote for” or “vote against” a particular candidate, the GAB’s position would have a chilling effect on the ability of the WRA to advocate for its members on both policy and political issues in violation of our constitutional rights to do so. The 7th Circuit declined to accept the amicus brief regarding coordination.
18. Proposed City of Madison Ordinance Relating to Disposition of Tenants’ Abandoned Property
The City of Madison Common Council introduced a proposal to “elect not to be governed by the current Wis. Stat. § 704.05(5).” The city cites its constitutional home rule authority under Article XI, section 3(1) of the Wisconsin Constitution as legal grounds for opting out of the new Wis. Stat. § 704.05(5) and instead imposing its own rules. The WRA, along with other groups representing landlords, is concerned that such an ordinance could establish bad precedent by allowing municipalities to choose which state laws they want to follow and which state laws they do not. The WRA has been authorized by the Legal Action Committee to take legal action to challenge any such ordinance enacted by the city. A municipality’s home rule authority extends only to local affairs and does not authorize municipalities to regulate matters that are of statewide concern. No action taken.
19. Bankruptcy Discharge of Interference with Contract Judgment
First Weber Group, Inc. v. Jonathan Horsfall
Decision: decision by federal district court and 7th Circuit Court of Appeals that commission debt was dischargeable in bankruptcy.
First Weber sued Horsfall, its former agent, in circuit court for intentional interference with contract, conversion of commission money, breach of the independent contractor agreement, and unjust enrichment with regard to a protected buyer/commission dispute. The court granted judgment for First Weber for a $9,600 commission plus $1,378.91 in costs and fees. Horsfall filed for Chapter 7 bankruptcy, and First Weber filed an adversary proceeding to object to the discharge of its judgment. Federal bankruptcy law provides a debt will not be discharged if the objecting party sustained a willful and malicious injury caused by the debtor. The bankruptcy court found Horsfall’s conduct was not serious enough to meet the “willful and malicious injury” standard and discharged the commission debt. First Weber appealed to the Federal District Court for the Western District of Wisconsin, maintaining that a failure to overturn the bankruptcy court’s decision would leave a harmful precedent with regard to listing protection in federal court. That court also ruled the debt was dischargeable, and First Weber appealed to the United States Court of Appeals for the Seventh Circuit, asserting that the filing of an amicus brief would impress upon the court the seriousness of the agent’s behavior to prove that it was a “willful and malicious injury.” The 7th Circuit allows an amicus brief in very few cases, but the WRA brief was accepted. The 7th Circuit affirmed that the debt was dischargeable.
- United States Court of Appeals, 7th Circuit (No. 13–1026, December 20, 2013): click here.
- United States District Court for the Western District of Wisconsin (Case No. 11-CV-506, December 17, 2012): click here.
20. Authority of Towns to Enact Shoreland Zoning Regulations
Hegwood v. Town of Eagle, 2013 WI App 118
Hegwood built an outdoor fireplace and a pergola on his waterfront property and then applied for variances from the 20-foot setback requirement in the county’s shoreland zoning ordinance. The fireplace and pergola were, respectively, fourteen and eight feet from the lot line. The county granted both variances, but the town denied a variance from the town’s general zoning ordinance that also included a 20-foot setback. The circuit court agreed with Hegwood that only the county has the authority to regulate shorelands, and the court reversed the decision of the town. On appeal, the Wisconsin Court of Appeals cited Wis. Stat. § 59.692(2)(b) in determining that a town has the authority to regulate shorelands only if the town’s ordinance was in effect prior to the time the county enacts a shoreland zoning ordinance and is more restrictive than the county’s ordinance. The town appealed this decision to the Wisconsin Supreme Court, but the town’s petition for review was denied, leaving the well-reasoned Court of Appeals decision to stand as the final word.
21. DNR Duty to Maintain Water Levels
Rock-Koshkonong Lake District v. DNR, 2013 WI 74
Decision: in favor of lakefront property owners.
In a dispute over the DNR’s reduction of the water level of Lake Koshkonong, the Wisconsin Supreme Court held that the Public Trust Doctrine does not give the DNR authority to regulate non-navigable wetlands or other lands above the Ordinary High Water Mark. The court also ruled that the DNR’s exclusion of most economic evidence was inconsistent with its acceptance of competing economic evidence that helped sustain its water level decision. Water level determinations should protect life, health and property and consider the economic impacts on waterfront property owners and businesses.
22. Broker Can Carefully Wear Two Hats: Lender and Listing Broker
Williamson v. Mills (No. 2012AP2349, Ct. App. 2013)
Decision: in favor of broker.
A party defaulted on a $300,000 loan given by a broker-owner of a real estate brokerage (broker-owner) through an IRA, and the broker-owner foreclosed on one of the two properties securing the loan. The party listed the property with a real estate brokerage (brokerage) partially owned by the broker-owner. The broker-owner as second lienholder did not consent to a short sale, the property never sold and the broker-owner did not foreclose. The first mortgage holder foreclosed, and the broker-owner and the party received nothing. The lawsuit was against the brokerage and the broker-owner in his corporate and personal capacities and included claims for breach of brokerage duty. The circuit court judge found in favor of the broker-owner, and the Brokerage appealed to the Wisconsin Court of Appeals, which affirmed.
23. Unauthorized Use of MLS Data
Metropolitan Regional Information Systems, Inc. v. American Home Realty Network, Inc., 722 F.3d 591 (4th Cir. 2013)
Decision: in favor of MLS database copyright.
The Milwaukee Metro MLS requested the WRA’s participation in a federal lawsuit involving the unauthorized use of copyrighted MLS listing data and photographs by American Home Realty Network on its website. MRIS copyrighted its database compilation with the U.S. Copyright Office and files quarterly claims of copyright ownership in accordance with applicable standards for registering automated databases. The website contained listing information and photographs from the MRIS database without license or permission. MRIS sued in federal court for copyright infringement and related claims. The United States District Court for the District of Maryland, Southern Division, entered a preliminary injunction barring American from using the MRIS’s copyrighted information and the 4th Circuit Court of Appeals affirmed, holding that when subscribers clicked “yes” to MRIS’ terms of use agreement they transferred their copyright in photographs to MRIS. NAR and numerous MLSs from across the country contributed money to this effort.
24. City of La Crosse Moratorium on Conversion of Single-Family Homes into Rentals
The City of La Crosse enacted a six-month moratorium on the conversion of single-family homes into rentals in certain districts. Owners of single-family homes in these districts may convert homes to rentals, but first must register with the city 60 days in advance of the change to a rental use. The city enacted the moratorium in response to concerns raised by area homeowners regarding the growing number of neighboring homes being converted to rentals and the alleged effect on property values, noise and poor maintenance. Rather than address noise, parking or other issues, this moratorium ordinance attempts to prohibit the manner in which a property owner can transfer ownership of the property. NAR’s Land Use Initiative will be used so the WRA may receive a legal analysis of the La Crosse ordinance. If NAR’s analysis shows valid legal issues relating to the moratorium, a lawsuit will be filed challenging the moratorium. Legal research was performed, but a lawsuit was not filed due to research showing that outcome would likely be unfavorable.
25. Listing Protection When LLC Purchases During Extension Period
Cindy Gerke & Assoc. Inc. v. Marine Credit Union (La Crosse County Case Number 11-CV-332).
A brokerage listed a commercial property for a credit union in 2006 using the WB-5 Commercial Listing Contract. In 2007, the credit union accepted an offer from “Mr. A and/or his assigns” for $435,100, but the offer never closed. The listing expired July 31, 2007, and “Mr. A and/or his assigns” was a protected buyer. The credit union sold the property to PW LLC for $410,000 in February 2008. Mr. A is a 25 percent member of PW LLC, and PW LLC was formed during the original term of the listing contract but after Mr. A’s offer. The brokerage demanded it commission of $28,700. The credit union argued it did not owe commission because it did not sell to Mr. A and did not know that Mr. A was involved in PW LLC. The WRA motion for leave to file an amicus brief with the circuit court was declined by the circuit court judge on April 24, 2013. The decision was against enjoying the input of a trade association like the WRA.
26. Authority to Establish County Regional Planning Departments
A Dane County supervisor introduced an ordinance that would give the county authority to approve the inclusion of any land within a city or village master plan that is not currently within the municipal boundaries of that city or village. This overrides the “home rule” authority of cities and villages, and it is questionable whether the county has the legal authority to enact this measure. The REALTORS® Association of South Central Wisconsin (RASCW) requested funding to have outside legal counsel review the ordinance and provide a written legal opinion as to Dane County’s authority to enact the ordinance, and the legal implications that could result if the ordinance was adopted. The memo was successful.
27. Special Assessments
Hildebrand v. Town of Menasha, 2011 WI App 83
Decision: in favor of property owner unjustly assessed.
The Town of Menasha built an asphalt recreational path and imposed a special assessment on Hildebrand, the owner of adjacent commercial property, in the amount of $33,205. Hildebrand challenged the special assessment because the recreational path would be used by all area residents and did not provide any special benefit to his property. The Wisconsin Court of Appeals upheld the ruling of the trial court that the recreational path was a public improvement that will benefit the general community and does not provide any special benefit to the adjacent property owners.