In Village of Slinger v. Polk Properties, LLC (2017AP2244), the Court of Appeals District II held that agricultural use of a residentially zoned property was not a legal nonconforming use, so the village was entitled to recover daily forfeitures and the value of residential taxes on the land. The case arises from the same underlying facts addressed in the 2018 Supreme Court decision Thoma v. Village of Slinger.

Polk purchased farmland to develop into a residential neighborhood. Polk then successfully petitioned the Village of Slinger to rezone the agricultural land to residential and signed a declaration related to its proposed residential development requiring residential use of the land. Polk later had trouble selling the lots and in the meantime continued agricultural use of the land. The village commenced this action enjoining Polk’s agricultural use.

The court of appeals addressed several issues in this case. First, the court determined that Polk’s agricultural activities on the property were not a legal nonconforming use of the residentially zoned property. Polk had already committed to agricultural use by 1) seeking the rezoning from village, 2) entering into a development agreement wherein the property was zoned residential, and 3) signing the declaration requiring residential use. There was no exception in the declaration allowing agricultural use. Additionally, Wis. Stat. § 236.293, related to restrictive covenants, prevented Polk from amending the declaration without a waiver from the village.

Because the agricultural activity was not a legal nonconforming use, the court held Polk violated the residential zoning code. As damages, the court awarded the village the difference between the amount Polk had paid at the lower agricultural tax rate and what it should have paid at the residential rate. The court rejected Polk’s argument that the award of lost property taxes was an unlawful reassessment outside of the court’s jurisdiction.