The League's League-EL
May 18, 2022
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Required Street Improvement Was Unconstitutional Taking
In Fassett v. City of Brookfield, 2021AP269, the Wisconsin Court of Appeals held that the city’s conditional approval of a proposed land subdivision was an unconstitutional taking. As a condition of approval, the city required the property owner to dedicate a portion of the land and construct a street to connect two dead-end streets in subdivisions on either side of the property. Upon review, the court held that the need to connect the streets was not a negative impact of the proposed subdivision. Rather, it was a need that existed prior to and separate from the proposed subdivision. Therefore, the city failed to meet both prongs of the Nollan/Dolan test, which requires an essential nexus and rough proportionality between the proposed subdivision and required street improvement.
City of Boston’s Flag Refusal Violated First Amendment
In Shurtleff v. City of Boston, 596 U.S. ____ (2022), the U.S. Supreme Court held that the City of Boston violated the First Amendment when it denied a group’s request to fly a Christian flag on a city flagpole after years of approving other groups’ requests to fly flags. The city’s practice of allowing groups to fly flags on the city pole was private speech, rather than government speech, because ultimately the city lacked a “meaningful involvement in the selection of flags or the crafting of their messages.” Additionally, the city’s refusal to fly the flag solely because it “promot[ed] a specific religion” constituted impermissible viewpoint discrimination. The Court acknowledged the city was concerned flying the flag would violate the Establishment Clause, because the city viewed the flag flying as government speech, but rejected that argument based on the conclusion it was private speech and not government speech.
On- and Off-Premises Sign Code Regulations Not Subject to Strict Scrutiny
In City of Austin v. Reagan National Advertising of Austin, LLC, 596 U.S. ____ (2022), the U.S. Supreme Court held that the City of Austin’s sign code provisions distinguishing between on- and off-premises signs was not content-based regulation of speech and, therefore, was not subject to strict scrutiny. More information coming soon! Sheboygan Assistant City Attorney Liz Majerus will be writing an article on this important case for the August issue of The Municipality.
Board’s Verbal Censure of Member Didn’t Violate First Amendment
In Houston Community College v. Wilson, the U.S. Supreme Court unanimously held that an elected board member did not have an actionable First Amendment claim arising from the board’s purely verbal censure of him. Due to the legal posture of the case, the Court focused solely on the verbal censure, and noted the narrow nature of its holding (“It involves a censure of one member of an elected body by other members of the same body. It does not involve expulsion, exclusion, or any other form of punishment. It entails only a First Amendment retaliation claim, not any other claim or any other source of law. The Board's censure spoke to the conduct of official business, and it was issued by individuals seeking to discharge their public duties.”) Houston Cmty. Coll. Sys. v. Wilson, 142 S. Ct. 1253, 1263–64 (2022).
In 2013, David Wilson was elected to a board governing a public entity that operates various community colleges. Wilson was frequently at odds with the board about the entity’s best interests and brought multiple lawsuits challenging the board’s actions. In 2016, these escalating disagreements led the board to reprimand Wilson publicly. Wilson accused the board, in the media as well as in additional state court actions, of violating its bylaws and ethical rules. He also arranged robocalls to the constituents of certain trustees to publicize his views and hired a private investigator to surveil another trustee, apparently seeking to prove she did not reside in the district that had elected her. At a 2018 meeting, the board adopted another public resolution “censuring” Mr. Wilson and stating that his conduct was “not consistent with the best interests” of the entity and “not only inappropriate, but reprehensible.” Wilson claimed the board’s action was in retaliation for his speech and violated the first amendment.
Noting, among other things, that “elected bodies in this country have long exercised the power to censure their members,” the Court concluded that the board resolution censuring Wilson for “inappropriate” and “reprehensible” conduct was not a materially “adverse action” giving rise to a First Amendment retaliation claim. Wilson was an elected official expected to shoulder some degree of criticism about his public service, the censure itself was a form of speech by other elected officials that concerned conduct of public office, and the censure did not prevent Wilson from doing his job, deny him any privilege of office, and was not alleged to be defamatory.
Minor Isolated Agricultural Uses Don’t Defeat Residential Classification for Property Tax Purposes
In State ex rel. Nudo Holdings, LLC v. Board of Review for City of Kenosha, the Wisconsin Supreme Court upheld a Kenosha Board of Review decision sustaining the city assessor’s determination that a vacant city lot the owner intended to develop into residential homes should be assessed as residential rather than agricultural use for property tax purposes. Sufficient evidence supported classifying the property as residential for property tax purposes, despite the owner’s argument that agricultural activities were the only uses the property was put to and that the property neither was nor imminently would be used for housing where: (1) the property in question was essentially vacant and raw, covered primarily in underbrush with several walnut and pine trees scattered throughout; (2) was in the neighborhood plan for future development in city; (3) the owner purchased the property to develop it into residential lots; and (4) any agricultural uses were minor and isolated. The board of review’s decision was affirmed by the circuit court and the court of appeals prior to being affirmed by the Wisconsin Supreme Court. The League submitted an amicus brief in the case. State ex rel. Nudo Holdings, LLC v. Board of Review for City of Kenosha, 2022 WI 17, 972 N.W.2d 544.
“Cost of Repairs” Under Municipal Raze Order Statute Limited by Building’s Intended Use
In U.S. Black Spruce Enter. Grp., Inc. v. City of Milwaukee, 2022 WI App 15, the Wisconsin Court of Appeals held that under the provision in the municipal raze order statute (§ 66.0413(1)(c)) presuming repairs unreasonable if the costs of repairs exceeds 50% of the building’s value, the “cost of repairs” must take into account the intended use of the building and are limited to those that are considered necessary to remove the public nuisance and protect the public interest.
In this case, where the buildings in question were part of a closed shopping mall and were vacant, unoccupied buildings from which the public was excluded, the “cost of repairs” could not include the cost to make the buildings safe for public use and bring them into compliance with code requirements for developed buildings open to the public.
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