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Appeals court finds Brookfield overstepped in requiring developer to pay for street connecting subdivisions

An appeals court on Thursday found the city of Brookfield improperly sought to compel a developer to pay for a public road through a planned subdivision in a closely watched land use case.

The decision from the Wisconsin’s District II Court of Appeals sided with developer Bridget Fassett, who argued the city of Brookfield wrongly demanded she pay to install a public street in exchange for approving a proposed subdivision on 5 acres of land off Gebhardt Road in the city.  The court’s ruling is recommended for publication, meaning it could set precedent for other land use cases in Wisconsin.

Interests that include the Wisconsin Builders Association, Wisconsin Realtors Association and NAOIP-Wisconsin intervened in the case. Rodney Carter, a partner at Husch Blackwell who represented Fassett, said development interests saw the case’s potential to shape how municipalities can compel builders to shoulder the cost of public infrastructure.

The court’s decision found Brookfield’s requirement that Fassett give up a portion of the 5-acre parcel for a public road, then pay to have it built amounted to an unconstitutional taking of private property. While cities have powers to dedicate land for public use, the decision shows developers must be compensated for giving up land for public projects, Carter said.

“I think communities are going to be more careful when they require that extraction without compensation,” he said. “If cities are going to require dedications of land, I think they’re going to look harder at that.” 

Brookfield city officials did not return a message seeking comment by press time Friday.

Fassett sued Brookfield in January 2020 after seeking to develop a five-home subdivision on a parcel of land that sits between two other housing developments in the city. On either side of the property, existing subdivisions contain dead-end roads — each named Choctaw Trail — that lead to Fassett’s property.

When Fassett submitted plans to develop the parcel, she proposed leaving the dead-end roads as they are. But Brookfield officials favored another plan for the site, connecting Choctaw Trail with a new road running through Fassett’s land. Brookfield’s plan commission further decided that Fassett should give property for the new street and pay for the project, at a cost of about $300,000.

The Brookfield Common Council in January 2020 ultimately approved Fassett’s development plans on the condition she dedicate land for the public road and construct the project. The city reasoned that the two dead-end roads were always meant to be connected and that a city ordinance required dead-end streets and cul-de-sacs to be minimized to make way for city services, such as fire and police.

Fassett filed suit over the arrangement a month after the council’s vote. The developer and her lawyers did not object to the city’s right to dedicate land for public use, but argued landowners should be compensated for giving up property, not compelled to contribute.

A circuit court judge ultimately sided with Fassett, ruling the city’s conditions unconstitutional and ordering the city to approve Fassett’s initial development plan. Brookfield appealed.

In Thursday’s appeal decision, the court affirmed the trial court’s ruling, relying on the Nollan/Dolan test, which requires governments to have a legitimate interest in acquiring property and to show taking of land and impact of a development are roughly proportional. The court found the city failed to show the street connection and property dedication were needed to offset the negative factors of the proposed subdivision development.

“It is apparent that the City would like to seize upon this opportunity to address the existing dead ends and assign the costs of providing a public benefit — a through street — to Fassett,” according to the decision authored by Court of Appeals Judge Lisa Neubauer.


About Nate Beck, nbeck@dailyreporter.com

Nate Beck is the construction staff writer for The Daily Reporter, a sister publication to the Wisconsin Law Journal. He can be reached at (414) 225-1814 (office) or 414-388-5635 (mobile).

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