Friday, May 30, 2008

'Olson v. Town of Cottage Grove' 2008 WI 51

The Wisconsin Supreme Court today issued its decision in this case (2005AP2257), affirming the Court of Appeals [unpublished decision].
Opinion by Justice Prosser, with Justices Crooks, Roggensack, Butler, and Ziegler
¶2 Olson is a real estate developer who owns 69.72 acres of land in the Town of Cottage Grove (Town) in Dane County (County). Olson brought a declaratory judgment action challenging the legality of the Town's Land Division and Planning Code § 15.15 (the ordinance or § 15.15). Olson sought to have the ordinance declared unconstitutional on various grounds, and he sought other relief, including approval of a final subdivision plat and compensation for the alleged taking of his property.

...

¶4 We are asked to address two questions: (1) What is the appropriate standard of review for a circuit court's decision granting summary judgment in a declaratory judgment suit on the basis that the suit is not ripe?; and (2) Is Olson's suit ripe for declaratory judgment, and therefore justiciable?

¶5 We determine that the appropriate standard of review in these circumstances is de novo review. Applying this standard of review to the record before us, we conclude that Olson's declaratory judgment suit is ripe for adjudication, and therefore justiciable.

Concurrence by Chief Justice Abrahamson, with Justice Bradley
¶80 ... the majority opinion silently overrules Loy's [Loy v. Bunderson, 107 Wis. 2d 400, 414, 320 N.W.2d 175 (1982)] core holding that whether an issue is ripe for judicial determination under the Declaratory Judgments Act [Wis. Stat. § 806.04] lies within the circuit court's discretion. The majority opinion now declares that the standard of review of the circuit court's determination that Olson's case was not ripe is the same as the standard of review of a decision to grant summary judgment: de novo.

Declaratory Judgment: Ripeness of Declaratory Judgment Suits - Standard of Review When Action Determined To Be Unripe on Summary Judgment, Supreme Court Digest, by Prof. Daniel D. Blinka and Prof. Thomas J. Hammer, Wisconsin Lawyer, July 2008