Free consultation No fee unless we win*

A Waukesha County Judge ruled that the City of Brookfield’s demand that a property owner build a through-street in order to develop her property was an unconstitutional taking. In Fassett v. City of Brookfield, the Wisconsin Court of Appeals agreed.

Bridgett Fassett owned an approximately 5-acre parcel between two subdivisions in Brookfield. Both of the neighboring subdivisions had dead ends near the middle of the Fassett property. In 2018, Fassett sought to develop her property into its own subdivision and submitted three possible plans to the City. One of the three plans showed a through-street connecting the two dead ends. Although Fassett preferred a different option, the City council approved the through-street option, and conditioned approval on Fassett dedicating the through-street to the City.

Later, in 2019, Fassett submitted a separate plan to develop her property, which did not include the through-street. The City denied the plan and made findings specifying that a through-street would be required for Fassett to develop her property.

The Court of Appeals held that the City’s demand was an unconstitutional taking. The Court built off of two prior U.S. Supreme Court precedents stating that, to be constitutional, there must be an “essential nexus” between a government interest and the demanded exaction and a “rough proportionality” between the exaction and the effects of development.

The Court noted that the “problem” of the two dead ends streets was not caused by Fassett’s proposed development. Although the City’s goals to have through streets are legitimate interests (e.g., emergency response times, traffic patterns), the City did not tie any of these interests to the impact of the proposed development. In other words, there was no evidence that Fassett’s development would increase traffic or decrease safety.

The Court noted that the City’s “desire to improve current conditions for the public’s benefit, while laudable, is not sufficient to shift the cost of eliminating the dead ends to Fassett.” In short, the government cannot force a property owner to cure a negative situation created by prior bad government planning, when the new development will not, itself, create that negative situation. Certainly, if the City wanted to improve traffic patterns in the area, the City could acquire (or condemn) the needed land and build the road itself. It just could not force Fassett to do so without paying just compensation.

If you are attempting to develop property and are encountering unreasonable government demands on your development, please call our firm.