Willow Creek Ranch, L.L.C. v. Town of Shelby

2000 WI 56, 611 N.W.2d 693, 235 Wis. 2d 409, 2000 WL 782055

• Court: Wisconsin Supreme Court
• Decided: June 20, 2000
• Docket: 97-2075, 98-0138
• Status: Published

Opinions

ANN WALSH BRADLEY, J.

¶1. Willow Creek Ranch (Willow Creek) seeks review of a published decision of the court of appeals that in these consolidated cases affirmed summary judgments in favor of the Town of Shelby (Town), the County of La Crosse (County), and Wisconsin Municipal Mutual Insurance Company (WMMIC).¹ Willow Creek contends that the Wisconsin Department of Natural Resources (DNR) has the exclusive authority to regulate the operation of a game bird farm and that the actions of the Town and the County in regulating the zoning of Willow Creek's game bird farm were illegal and unconstitutional.

¶ 2. We conclude that the DNR's statutory authority does not preclude the authority of the Town and the County to regulate the zoning of Willow Creek's game bird farm. We further conclude that the Town's and the County's actions are immune from suit under Wis. Stat. § 893.80(4) (1995-96)² and that the actions are legal and constitutional. Finally, we determine that the Town and County are not equitably estopped from asserting immunity as a defense or preventing the operation of Willow Creek's game bird farm. Accordingly, we affirm the court of appeals.

¶ 3. Willow Creek owns 115 acres of land in the Town of Shelby, La Crosse County. Willow Creek's property is zoned as an "Exclusive Agricultural" district (Agricultural A) under La Crosse County Zoning Ordinance § 17.34. Agricultural A district uses are limited to specific agricultural activities, while Agricultural B district uses include activities that are more commercial in nature. The County has the authority to enact and enforce zoning ordinances while the Town has the power to veto a county zoning change.

¶ 4. In late 1993, Willow Creek contacted the Town to inquire whether a zoning change was required to operate a game bird farm on its property. The Town chairperson, Jeff Brudos, allegedly informed Willow Creek that no county rezoning was needed for Willow Creek's operation of a game bird farm.³ Shortly prior to the opening of the farm in late 1994, and after already having expended substantial sums of money, Willow Creek obtained a DNR license.⁴

¶ 5. In 1995, the County notified Willow Creek that because it was conducting a commercial hunting enterprise on property zoned exclusively for agricultural purposes, it needed to petition for rezoning. Subsequently, Willow Creek petitioned the County to rezone its property to Agricultural B. Willow Creek also met with the Town to discuss the possibility of obtaining a conditional use permit that would enable it to continue operation as Agricultural A property. The County and Brudos instructed Willow Creek to follow several conditions to guarantee the safe operation of the game bird farm. Willow Creek agreed to follow those conditions and took steps to ensure compliance.

¶ 6. The County informed Willow Creek in December 1995 that it should cease operation pending the resolution of the zoning issues. However, a month later, the County allowed Willow Creek temporarily to resume operation. Responding to citizen concerns about safety and noise from the operation of the game bird farm, the Town passed a resolution in February 1996 indicating that it would neither approve the rezoning of Willow Creek's property nor grant a conditional use permit.

¶ 7. Although the County granted Willow Creek's petition for rezoning in March, the Town vetoed the County's decision consistent with the Town's prior resolution against rezoning and a conditional use permit. Subsequently, the County issued Willow Creek a citation for violating the County's zoning ordinance by conducting commercial hunting activities on property zoned exclusively for agricultural purposes.

¶ 8. In May 1996, Willow Creek filed the first of two suits, seeking a declaratory judgment that the Town and County had acted in excess of their authority and had exercised their powers in an arbitrary and unconstitutional manner. In addition to the declaratory judgment, Willow Creek requested an injunction prohibiting the Town and County from taking further action in interference with the operation of its game bird farm. It also argued that the Town and County should be equitably estopped from preventing the operation of the game bird farm, because Willow Creek had relied to its detriment upon the misrepresentations of Town Chairperson, Jeff Brudos.

¶ 9. The Town and County moved for summary judgment asserting that they had acted according to their statutory authority in deciding to enforce the zoning ordinance and to veto Willow Creek's petition to rezone. They also argued that the DNR's authority to issue a license for the operation of a game bird farm did not preclude the County's authority to devise and enforce zoning ordinances.

¶ 10. Subsequently, Willow Creek filed a notice of claim with the Town and County pursuant to Wis. Stat. § 893.80(1), making a formal demand for money damages. Upon the disallowance of its claims, Willow Creek filed a second suit raising essentially the same issues as in its first suit but this time seeking money damages.

¶ 11. In July 1997, the circuit court granted the Town's and the County's motions for summary judgment and dismissed Willow Creek's first suit. Subsequently, the Town, the County, and its insurer, WMMIC, moved for summary judgment on the second suit, arguing that claim preclusion barred Willow Creek's second suit and that the Town and County were immune from liability under Wis. Stat. § 893.80(4) because their actions represented discretionary acts. In December 1997, the circuit court dismissed Willow Creek's second suit and granted the motions for summary judgment. Willow Creek appealed both summary judgments, and the appeals were consolidated.

¶ 12. The court of appeals determined that although the DNR has the statutory authority to regulate game farms, its licensing authority does not preclude the Town and County from creating and enforcing zoning ordinances. In addition, the court concluded that the Town and County did not act arbitrarily or in excess of their statutory authority by issuing Willow Creek a citation for operating its game bird farm on property zoned exclusively for agricultural purposes. The court also concluded that the Town and County are immune from liability under Wis. Stat. § 893.80(4).

¶ 13. When we review motions for summary judgment, we follow the same methodology as does the circuit court. Grams v. Boss, 97 Wis. 2d 332, 337-39, 294 N.W.2d 473 (1980). If there is no genuine issue of material fact and a party is entitled to judgment as a matter of law, the resolution of the action is appropriate for summary judgment. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987).

¶ 14. Our initial inquiry of whether the DNR's authority to regulate the operation of game farms prevents the Town and County from regulating the zoning of Willow Creek's game bird farm involves a matter of statutory interpretation and presents a question of law. Jungbluth v. Hometown, Inc., 201 Wis. 2d 320, , 548 N.W.2d 519 (1996). Likewise, our subsequent inquiries of immunity and equitable estoppel present questions of law. Kimps v. Hill, 200 Wis. 2d 1, 8, 546 N.W.2d 151 (1996); Harms v. Harms, 174 Wis. 2d 780, 784, 498 N.W.2d 229 (1993). This court reviews questions of law independently of the determinations of the circuit court and the court of appeals, while benefiting from their analyses. Miller v. Thomack, 210 Wis. 2d 650, 658, 563 N.W.2d 891 (1997).

Licensing v. Zoning Authority

¶ 15. We address first whether the DNR's authority to regulate the operation of game farms under Wis. Stat. § 29.574 and Wis. Admin. Code NR § 16.02 prevents the Town and County from regulating the zoning of Willow Creek's game bird farm.⁵ If we decide that the DNR's authority to license precludes the zoning authority of the Town and the County, we need not address the remaining issues raised by Willow Creek on this appeal.

¶ 16. Willow Creek maintains that because the regulation of game farms lies within the exclusive province of the DNR, the Town and County had no authority to restrict the operation of Willow Creek's farm through the enforcement of the County zoning ordinance and the veto of Willow Creek's rezoning petition. We disagree. The location of game bird farms remains subject to local zoning rules, notwithstanding a DNR license granting an owner the right to establish such a farm.

¶ 17. Municipal bodies have only such powers as are expressly conferred upon them by the legislature or are necessarily implied from the powers conferred. First Wis. Nat'l Bank of Milwaukee v. Town of Catawba, 183 Wis. 220, 224, 197 N.W. 1013 (1924). Wisconsin Stat. § 29.574 provides for the licensing of "game bird and animal" farms and gives the DNR the right to establish such farms. Nothing in the text of the statute explicitly allows local regulation of game bird farms.

¶ 18. In comparison, Wis. Stat. § 29.425(3)(c) grants municipal bodies the power to prohibit the sale of "live game animals."⁶ Chapter 29, however, demonstrates the legislature's conscious attempt to distinguish between "game birds" and "game animals," for they are defined separately under Wis. Stat. .⁷ While § 29.425 evinces the intent to grant local control of the sale of game animals, the same is not true of game birds. Thus, we cannot conclude that there is explicit local authority under Chapter 29 to regulate the operation of game bird farms. See Ball v. Dist. No. 4, Area Bd., 117 Wis. 2d 529, 539, 345 N.W.2d 389 (1984) (legislature presumed to have known the words it has chosen).

¶ 19. However, lack of such explicit authority under Chapter 29 is not fatal. County boards are granted broad zoning authority under Wis. Stat. § 59.69(4) to effectuate the purpose of promoting public health, safety, convenience, and general welfare as provided in § 59.69(1). Specifically, § 59.69(4) states in relevant part:

For the purpose of promoting the public health, safety and general welfare the board may by ordinance effective within the areas within such county outside the limits of incorporated villages and cities establish districts of such number, shape and area, and adopt such regulations for each such district as the board considers best suited to carry out the purposes of this section. The powers granted by this section shall be exercised through an ordinance which may, subject to sub. (4e), determine, establish, regulate and restrict:

(a) The areas within which agriculture, forestry, industry, mining, trades, business and recreation may be conducted (emphasis added).

Furthermore, towns have the authority to disapprove or veto particular zoning amendments recommended by county boards. Wis. Stat. § 59.69(5)(e)6.

¶ 20. Willow Creek argues that the County zoning ordinance is invalid because a municipality may not pass ordinances that infringe upon the spirit of a state law or are repugnant to the general policy of the state. County of Dane v. Norman, 174 Wis. 2d 683, 689, 497 N.W.2d 714 (1993). Furthermore, when the state has manifested an intent to regulate a specific field or subject, conflicting municipal ordinances on the same subject are invalid to the extent of the conflict. DeRosso Landfill Co. v. City of Oak Creek, 200 Wis. 2d 642, 651, 547 N.W.2d 770 (1996).

¶ 21. We are not persuaded by the authority Willow Creek offers for its proposition that the County's zoning ordinance conflicts with the state's exclusive control over hunting and with the DNR's exclusive right to grant licenses to conduct such hunting activities on game farms under Wis. Stat. § 29.574. See, e.g., DeRosso Landfill Co., 200 Wis. 2d at 664 (local ordinance conflicting with state policy exempting clean fill facilities from local approval); Wisconsin's Envtl. Decade, Inc. v. DNR, 85 Wis. 2d 518, 271 N.W.2d 69 (1978) (city resolution repudiating chemical treatment of city lakes inconsistent with state statutes); Krenz v. Nichols, 197 Wis. 394, 222 N.W. 300 (1928) (state's broad authority to regulate hunting and disposition of fish and game).

¶ 22. These cases do not address the interaction of zoning ordinances and state-regulated activity. Rather they involve local ordinances that attempt to regulate the identical activity as the state and that are "diametrically opposed" to the state's policy. Wisconsin's Envtl. Decade, 85 Wis. 2d at 535. While we agree that the DNR has the exclusive right to license the operation of game bird farms, this right does not preclude the Town and County from regulating the zoning of such farms. Zoning and licensing powers represent distinct powers that do not conflict with each other.

¶ 23. In this case, the purpose of the County zoning ordinance involves demarcating the appropriate areas or location where a game bird farm may operate. It does not directly regulate the operation of the game bird farm. Because the power to zone does not conflict with the right to issue a license for a specific activity, the DNR's authority to grant licenses to establish game bird farms does not prevent the Town and County from regulating the zoning of these farms by enforcing ordinances and vetoing specific zoning changes.

Immunity

¶ 24. Having determined that the DNR's authority to license the operation of game farms does not preclude the authority of the Town and the County to regulate zoning, we examine next whether Wis. Stat. § 893.80(4) grants immunity to their actions in preventing the operation of Willow Creek's game bird farm. Willow Creek maintains that the actions of the Town and the County do not represent discretionary acts, but rather ministerial acts for which they are not immune.

¶ 25. Under Wis. Stat. § 893.80(4), a municipality is immune from "any suit" for "acts done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions."⁸ These functions are synonymous with discretionary acts. Lifer v. Raymond, 80 Wis. 2d 503, 511-12, 259 N.W.2d 537 (1977). A discretionary act involves the exercise of judgment in the application of a rule to specific facts. Id. at 512.

¶ 26. This court has recognized four exceptions to governmental immunity under Wis. Stat. § 893.80(4). In Kierstyn v. Racine Unified Sch. Dist., 228 Wis. 2d 81, 90-97, 596 N.W.2d 417 (1999), we noted that immunity does not apply to the performance of: (1) ministerial duties; (2) duties to address a "known danger;" (3) actions involving medical discretion (the Scarpaci rule); and (4) actions that are "malicious, willful, and intentional." The only exception advanced by Willow Creek in the present case is the performance of a ministerial duty, and therefore we need not address the remaining three exceptions to immunity under Wis. Stat. § 893.80(4).

¶ 27. A ministerial act, in contrast to an immune discretionary act, involves a duty that "is absolute, certain and imperative, involving merely the performance of a specific task when the law imposes, prescribes and defines the time, mode and occasion for its performance with such certainty that nothing remains for judgment or discretion." C.L. v. Olson, 143 Wis. 2d 701, 711-12, 422 N.W.2d 614 (1988) (quoting Lister v. Board of Regents, 72 Wis. 2d 282, 301, 240 N.W.2d 610 (1976)).

¶ 28. Decisions to enforce a zoning ordinance and to veto zoning changes represent legislative acts. Quinn v. Town of Dodgeville, 122 Wis. 2d 570, 578, 364 N.W.2d 149 (1985). Thus, they are discretionary decisions subject to the immunity provisions. Beres v. City of New Berlin, 34 Wis. 2d 229, 232, 148 N.W.2d 653 (1967). Although Willow Creek concedes that the decision to enact a zoning ordinance represents a discretionary act, it maintains that the Town and County had a ministerial duty to defer to the state's exclusive authority to license and regulate game farms. According to Willow Creek, the Town and County breached their ministerial duty by exercising the discretion to enforce the zoning ordinance and to veto Willow Creek's rezoning petition in opposition to the state's exclusive authority.

¶ 29. However, we have already determined that the DNR's authority to license game farms does not preclude the Town and County from regulating zoning by enforcing zoning ordinances and vetoing zoning changes. Thus, Willow Creek has failed to demonstrate an absolute and certain ministerial duty to defer to the state. In fact, when considering the zoning of the Willow Creek property, the Town and County have no duty whatsoever to defer to the state.

¶ 30. Rather, the decisions to veto Willow Creek's rezoning petition and to enforce the County zoning ordinance by issuing a citation represent purely discretionary acts.⁹ Without Willow Creek's articulation of a specific ministerial duty and its subsequent breach, we conclude that the immunity provisions apply to the Town and County against Willow Creek's claim for money damages.

¶ 31. Not only does immunity under Wis. Stat. § 893.80(4) bar Willow Creek's suit against the Town and County for money damages, it also precludes suit in this instance for injunctive relief. Johnson v. City of Edgerton, 207 Wis. 2d 343, 352, 558 N.W.2d 653 (Ct. App. 1996). In Johnson, the plaintiff property owners sued the city for injunctive relief and damages for the city's refusal to open the unimproved "stub-end" of a city street so that the plaintiffs could gain access to their property. Id. at 345. The court held that the official immunity provisions of Wis. Stat. § 893.80(4) are not limited to money damages or tort actions, but apply as well to actions seeking injunctive relief against municipalities and their employees. Id. at 352.¹⁰

¶ 32. The dissent attempts to establish that Johnson represents precedent with a dubious legal foundation that should be overruled, not "consecrated," by this court. Reasoning that the reach of Johnson is indiscriminately broad, the dissent asserts that immunity under Wis. Stat. § 893.80(4) was never intended to extend to injunctive relief based in tort, but rather was to be limited to money damages in tort.

¶ 33. The "any suit" language contained in the immunity statute, however, does not limit suits to money damages in tort but also encompasses injunc-tive relief based in tort. This interpretation furthers the policy rationales underlying tort immunity that officials not be "unduly hampered or intimidated in the discharge of their functions by threat of lawsuit or personal liability." Scarpaci v. Milwaukee County, 96 Wis. 2d 663, 682, 292 N.W.2d 816 (1980) (citing Lister v. Board of Regents, 72 Wis. 2d 282, 299, 240 N.W.2d 610 (1976)). The concerns over the expenditure of both time and resources apply with equal force to actions seeking injunctive relief as they do to actions for money damages. We recognize, however, that the suits must be based in tort to garner the protection of immunity consistent with the statute.

¶ 34. We agree with the dissent that the language in Johnson may have been overly expansive, reaching beyond actions based in tort to encompass contract and other actions as well. However, we note that the actual narrow issue presented before the Johnson court was whether the plaintiffs were permitted to seek injunctive relief based on their claim of negligence against the city. Thus, the Johnson court essentially addressed the applicability of Wis. Stat. (4) to injunctive relief based in tort, concluding that the municipality's assertion of immunity barred such relief. To the extent that the language in Johnson suggests otherwise by expanding immunity too broadly, we limit that language.

¶ 35. In this respect, our rationale is consistent with Energy Complexes v. Eau Claire County, 152 Wis. 2d 453, 466, 449 N.W.2d 35 (1989), which held that Wis. Stat. § 893.80(4) does not grant immunity to actions based in contract.¹¹ Here, as in Johnson, Willow Creek's claim for injunctive relief is based in tort. Thus, the Town and the County are afforded immunity against Willow Creek's request for an injunction.

¶ 36. Although immunity serves as a bar to both money damages and injunctive relief based in tort, municipalities do not benefit from the shield of immunity in actions seeking declaratory relief. Schmeling v. Phelps, 212 Wis. 2d 898, 915, 569 N.W.2d 784 (Ct. App. 1997). The court in Schmeling noted that although public policy may require that local officials not be "unduly hamper[ed] or intimidate[d]" in the execution of their discretionary duties, public policy also requires that citizens be afforded the opportunity for a court to declare their rights. Id.¹²

¶ 37. In this case, Willow Creek seeks a declaration that it may operate its game bird farm in contravention of the County zoning ordinance because Willow Creek has acquired a DNR license. However, we have already determined that the Town and County have the authority to enforce the zoning ordinance and prevent the operation of Willow Creek's game bird farm, notwithstanding the DNR license granting Willow Creek the right to establish its farm. Therefore, Willow Creek cannot benefit from a declaratory judgment on this basis.

¶ 38. Willow Creek also seeks a declaration that the actions of the Town and the County as to Willow Creek's game bird farm were illegal and unconstitutional. Willow Creek contends that by preventing the operation of its farm, the Town and County unconstitutionally exercised their police powers and applied the zoning ordinance in an arbitrary manner.

¶ 39. In particular, Willow Creek maintains that its game bird farm did not violate the permitted activities under the Agricultural A district and that its farm operated similarly to other farms zoned within the same district. Willow Creek also maintains that the game bird farm did not pose a significant health or safety threat, drawing our attention to a range of safety measures Willow Creek implemented to ensure the safety of its neighbors. Since preventing the operation of the game bird farm will neither promote health nor protect neighboring property owners, Willow Creek argues that the Town's and the County's actions were arbitrary and unconstitutional.

¶ 40. A municipality's zoning decision represents a valid exercise of its police power. State ex rel. American Oil Co. v. Bessent, 27 Wis. 2d 537, 540, 135 N.W.2d 317 (1965); State ex rel. Carter v. Harper, 182 Wis. 148, 155, 196 N.W. 451 (1923). Since zoning ordinances are enacted for the benefit and welfare of the citizens of a municipality, this court generally affords great deference to zoning decisions. See Jelinski v. Eggers, 34 Wis. 2d 85, 93-94, 148 N.W.2d 750 (1967). However, we may declare a zoning ordinance or action unconstitutional when it serves no legitimate purpose and is arbitrary and unreasonable, having no substantial relation to public health or safety. Kmiec v. Town of Spider Lake, 60 Wis. 2d 640, 647, 211 N.W.2d 471 (1973). See also Cushman v. City of Racine, 39 Wis. 2d 303, 311, 159 N.W.2d 67 (1968).

¶ 41. Both the power to zone and the power to veto a zoning change represent legislative functions. Quinn, 122 Wis. 2d at 578. Judicial review of legislative functions is limited to cases in which the authority acted in excess of its power or under error of law. Buhler v. Racine County, 33 Wis. 2d 137, 146, 146 N.W.2d 403 (1966). Although this court may debate the wisdom or the desirability of a particular zoning decision, we are constrained from substituting our judgment for that of the zoning authority. Bessent, 27 Wis. 2d at 546. This rule applies not only to decisions as to the necessity of zoning but also to decisions as to the determination of whether a change in circumstances justifies rezoning. Buhler, 33 Wis. 2d at 147.

¶ 42. An Agricultural A district provides for a wide range of agricultural activities, including "[florest and game management." La Crosse Zoning Ordinance § 17.34(l)(c)(6). An Agricultural B district allows for "riding and shooting clubs" and other parks of a more commercial nature. La Crosse Zoning Ordinance § 17.37(1)(1). Arguably, Willow Creek's game bird farm may belong in either agricultural district. However, we may not substitute our judgment for that of the zoning authority if there is any "reasonable basis" for the action taken. Jefferson County v. Timmel, 261 Wis. 39, 62-63, 51 N.W.2d 518 (1952).

¶ 43. The County determined that the operation of Willow Creek's game bird farm was more consistent with the uses of an Agricultural B district. According to the County, it was crucial to preserve the exclusively agricultural character of the Agricultural A district by disallowing commercial activities within that district. Because there was a reasonable basis underlying the County's determination that Willow Creek's property was better suited for the Agricultural B district, we conclude that the County did not act in an arbitrary or unconstitutional manner.

¶ 44. Similarly, the Town and County did not act in excess of their power in preventing the operation of Willow Creek's game bird farm based on the reasoning that such action was necessary to protect the health and safety of the community. While it is true that Willow Creek implemented several safety measures to ensure the health and safety of its neighbors, we cannot conclude from the record that the Town and County acted arbitrarily in determining that the operation of the game bird farm would nevertheless pose a health and safety threat. Absent evidence of arbitrary action, which Willow Creek has failed to produce, we will not substitute our judgment for that of the Town or County. Buhler, 33 Wis. 2d at 146-47.

¶ 45. Willow Creek also maintains that by denying its petition to rezone to an Agricultural B district, while granting a similar petition to the La Crosse Rifle Club, the Town and the County acted arbitrarily and in excess of their authority. In our determination of whether the denial of Willow Creek's petition constituted an arbitrary and unreasonable action by the Town and the County, we are guided by the analysis in Schmeling v. Phelps, 212 Wis. 2d 898, 569 N.W.2d 784 (Ct. App. 1997).

¶ 46. The landowner in Schmeling sought a declaratory judgment invalidating the veto of his petition to rezone. Id. at 903. In particular, the landowner argued that the county executive had acted arbitrarily because he had failed to veto similar rezoning petitions. Id. at 904. The court in Schmeling concluded that, even assuming the seven approved petitions were of a similar nature, the landowner had nevertheless failed to satisfy his burden to show that the denial of his rezoning petition constituted an arbitrary and unreasonable action. Id. at 917.

¶ 47. Here, Willow Creek refers only to a single petition that was approved subsequent to the denial of its own similar petition. Willow Creek offers no further evidence to show that the actions of the Town and the County were arbitrary. Without further evidence, Willow Creek has failed to satisfy its burden of demonstrating that the Town and County acted in an arbitrary and unconstitutional manner.

¶ 48. In sum, we conclude that although Wis. Stat. § 893.80(4) affords immunity to the Town and County for actions involving both money damages and injunctive relief based in tort, there is no immunity under § 893.80(4) for declaratory actions. However, because the actions of the Town and the County were neither illegal nor unconstitutional, declaratory relief is unavailable in this case.

Equitable Estoppel

¶ 49. Finally, Willow Creek contends that the Town and County should be equitably estopped from asserting immunity as a defense and from preventing the operation of Willow Creek's game bird farm due to the negligent misrepresentations of Town Chairperson, Jeff Brudos. Although municipalities are not wholly immune from the doctrine of equitable estop-pel,¹³ it is well established that erroneous acts or representations of municipal officers do not afford a basis to estop a municipality from enforcing zoning ordinances enacted pursuant to the police power. Town of Richmond v. Murdock, 70 Wis. 2d 642, 654, 235 N.W.2d 497 (1975); City of Milwaukee v. Leavitt, 31 Wis. 2d 72, 76-77, 142 N.W.2d 169 (1966). See also Snyder v. Waukesha County Zoning Bd., 74 Wis. 2d 468, 476-77, 247 N.W.2d 98 (1976); State ex rel. Westbrook v. City of New Berlin, 120 Wis. 2d 256, 262, 354 N.W.2d 206 (Ct. App. 1984).¹⁴

¶ 50. Binding municipalities to every representation made by subordinate employees would produce severe results for the municipalities. Endless litigation would ensue over the words of those employees, and important municipal decisions would be delayed pending resolution of those suits. Consistent with the above-cited, well-established law, we determine that the misrepresentations of Jeff Brudos may not serve as a basis for estopping the Town and County from enforcing the County zoning ordinance and vetoing Willow Creek's rezoning petition.

¶ 51. Similarly, we conclude that the Town and County are not estopped from asserting immunity as a defense. The cases Willow Creek offers in support of its argument do not involve the application of the doctrine of equitable estoppel to the enforcement of zoning ordinances enacted pursuant to a municipality's police power. See Anderson v. City of Milwaukee, 208 Wis. 2d 18, 34, 559 N.W.2d 563 (1997) (waiver of discretionary immunity defense by omission); Fritsch v. St. Croix Cent. Sch. Dist., 183 Wis. 2d 336, 344, 515 N.W.2d 328 (Ct. App. 1994)(estoppel of notice of claim defense).

¶ 52. Willow Creek refers to Russell Dairy Stores v. Chippewa Falls, 272 Wis. 138, 74 N.W.2d 759 (1956), to buttress its position that equitable estoppel may lie against a municipality so as to prevent the enforcement of its zoning ordinance. However, Russell Dairy Stores is distinguishable from the facts of the present case.

¶ 53. In Russell Dairy Stores, the entire city council of Chippewa Falls had already granted the plaintiff a permit to construct a driveway. In reliance on the city's permit, the plaintiff then invested a significant amount of money in the construction of the driveway. A few months later, the city council voted to revoke the plaintiffs permit. This court, determining that the issuance of the permit did not violate any law or the city's contract with the state, applied the doctrine of equitable estoppel to prevent the city of Chippewa Falls from revoking a permit it had already granted to the owner of the driveway. The court noted that the plaintiff had gained a vested right in the permit issued by the city, which could not then be arbitrarily revoked. Russell Dairy Stores, 272 Wis. at 145-46.

¶ 54. There are several and significant differences between Russell Dairy Stores and the present case. First, Russell Dairy Stores was decided prior to the formulation of the present immunity statute, Wis. Stat. § 893.80(4). The concept of immunity as a defense was not implicated in the case.

¶ 55. Second, the basis for estoppel in Russell Dairy Stores involved the erroneous acts of the municipality, not its subordinate officers. In Willow Creek's case, neither the Town nor the County had approved Willow Creek's petition to rezone before Willow Creek invested money to prepare for the operation of a game bird farm. Willow Creek had not acquired a vested right in the operation of its farm on Agricultural B property.

¶ 56. Rather, Willow Creek was informally advised by the Town Chairperson that it would not need to seek rezoning. Although equitable estoppel may be invoked against municipalities in certain cases, the erroneous acts of subordinate officers, rather than those of the municipality, may not serve as the basis for estoppel against a municipality in the enforcement of a zoning ordinance. Leavitt, 31 Wis. 2d at 76-77.

¶ 57. Finally, the issuance of the permit in Russell Dairy Stores did not violate any law or the city's contract with the state. The court determined that in revoking a legal permit, the city of Chippewa Falls had acted arbitrarily. Russell Dairy Stores, 272 Wis. at 147-48. In Willow Creek's case, however, there is an asserted violation of the County zoning ordinance. Moreover, as we have already determined, the decision to prevent the operation of Willow Creek's game bird farm due to a violation of Agricultural A uses was not arbitrary. Thus, the Town and County are not equitably estopped from preventing the operation of Willow Creek's farm.

¶ 58. In summary, we conclude that although the DNR has statutory authority to license the establishment of game farms, its authority does not preclude the Town and the County from regulating the zoning of Willow Creek's game bird farm. We further conclude that the Town and County are immune from suit under Wis. Stat. § 893.80(4), and that their actions in preventing the operation of Willow Creek's game bird farm were neither unconstitutional nor illegal. Finally, we determine that the Town and County are not equitably estopped from asserting immunity as a defense or from enforcing the zoning ordinance and vetoing Willow Creek's petition to rezone its property. Accordingly, we affirm the court of appeals.

By the Court. — The decision of the court of appeals is affirmed.

1 Willow Creek Ranch, L.L.C. v. Town of Shelby, 224 Wis. 2d 269, 592 N.W.2d 15 (Ct. App. 1998) (consolidated appeal affirming orders of summary judgment by La Crosse County Circuit Court, Dennis G. Montabon, J. and Michael Mulroy, J.).

2 Unless otherwise indicated, all future references to the Wisconsin Statutes are to the 1995-96 volumes.

3 Although the Town and County dispute the sequence of events leading to the citation of Willow Creek's game bird farm, for the purposes of summary judgment they accept the facts as true.

4 The record is unclear as to exactly when the DNR issued Willow Creek a license to operate a game bird farm. One of the affidavits submitted by Willow Creek, as well as its complaint, alleges that the license was issued in June 1994, yet another affidavit alleges that the license was issued in October 1994. The record contains numerous copies of the October 1994 license, as well two subsequent ones, yet it is devoid of any June license.

Regardless of whether the DNR issued a license in June or October, Willow Creek expended substantial sums to establish its game bird farm after initially meeting with Brudos in late 1993, without even having received a DNR license authorizing the operation of the farm. The record indicates that the game bird farm opened either in late September or early October, after Willow Creek asserts that it invested $340,000 in preparation.

5 Wisconsin Stat. § 29.574 states in relevant part:

(1) The owner or lessee of any lands within the state suitable for the breeding and propagating of game, birds or animals as may be approved by the department shall have the right upon complying with this section, to establish, operate and maintain a game bird and animal farm for the purpose of breeding, propagating, killing and selling game birds and game animals on such lands....

Wisconsin Admin. Code NR § 16.02 contains essentially the same language as Wis. Stat. § 29.574 and states in relevant part:

(1) Application. This section applies to all game farms as provided in s. 29.867, Stats., including. . .shooting game farms. . . . The owner or lessee. . .shall have the right upon complying with this section to establish, operate and maintain a game bird and animal farm....

Chapter 29 of the Wisconsin Statutes was renumbered and revised by 1997 Wis. Act 248. The former § 29.574 has been renumbered as § 29.867. This change does not affect our analysis.

6 Wisconsin Stat. § 29.425(3)(c) states in relevant part:

The governing body of any county, city, village or town may, by ordinance, prohibit the sale of any live game animal or fur-bearing animal.

7 Wisconsin Stat. § 29.01(6) defines "[g]ame animals" as including "deer, moose, elk, bear, rabbits, squirrels, fox and raccoon."

Wisconsin Stat. § 29.01(7) defines "[g]ame birds" as including "[w]ild geese, brant, wild ducks. . .pheasants. . .quail, California quail, and wild turkey."

8 Wisconsin Stat. § 893.80(4) states in full:

(4) No suit may be brought against any volunteer fire company organized under ch. 213, political corporation, governmental subdivision or any agency thereof for the intentional torts of its officers, officials, agents or employes nor may any suit be brought against such corporation, subdivision or agency or volunteer fire company or against its officers, officials, agents or employes for acts done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions.

9 The dissent notes that the distinction between ministerial and discretionary functions is ill-defined and perhaps artificial. See Dissent at ¶ 129, ¶ 136 (quoting 18 McQuillin, Municipal Corporations (3d ed.) at § 53.04.10). The dissent also states that this court last addressed the distinction in Kierstyn v. Racine Unified Sch. Dist., 228 Wis. 2d 81, 596 N.W.2d 417 (1999). However, we refer the dissent to this court's recent decision in State ex rel. J.H. Findorff & Son v. Circuit Court for Milwaukee County, 2000 WI 30, 233 Wis. 2d 428, 608 N.W.2d 679, in which the majority of the court affirmed the vitality of the distinction between ministerial and discretionary acts by adopting it in the wholly separate context of judicial substitution.

10 The concurring opinion of the court of appeals' decision expresses concern over the broad reach of Johnson, particularly in its applicability to cases in which equitable estoppel may lie against a municipality so as to enjoin its enforcement of an ordinance. See Willow Creek, 224 Wis. 2d at 286-87. However, since we determine below that the actions of Town Chairperson, Jeff Brudos, do not afford a basis for equitable estoppel in this case, we leave resolution of the concurring opinion's concern for another day.

11 The dissent appears to recognize that the court of appeals in Johnson may very well have intended the interpretation we adopt. Dissent at ¶ 93. Yet, according to the dissent, this interpretation would have us read into the statute a "torts-only" limitation on government acts while reading out a "torts-only" limitation on suits. Id. We foresee no difficulty with such an interpretation in consideration of the purposes underlying the tort claims statute. Immunity for torts is premised on avoiding the unnecessary hindrance of public officials in performing their official duties. Scarpaci v. Milwaukee County, 96 Wis. 2d 663, 682, 292 N.W.2d 816 (1980); Lister v. Board of Regents, 72 Wis. 2d 282, 300, 240 N.W.2d 610 (1976). This purpose is served not only by limiting immunity to actions for money damages in tort but also applying immunity to claims for injunctive relief based in tort.

12 Setting forth numerous examples, the dissent argues that extending immunity to claims for injunctive relief based in tort will leave citizens without recourse or remedies for a range of illegal and unfair governmental activity. Dissent at ¶ 87. However, instituting an action for declaratory relief remains an avenue to challenge unfair and arbitrary governmental action. Furthermore, certiorari review under Wis. Stat. § 59.694(10) is available to check arbitrary municipal decisions. The fourth exception to immunity set forth in Kierstyn, addressing "malicious, willful and intentional" conduct, also remains to remedy gross municipal wrongdoing. 228 Wis. 2d at 90 n.8 (citations omitted). Finally, an appropriate means to address government gone awry lies with the replacement of government officials through ballot and removal procedures, not with endless litigation in court. See Lister, 72 Wis. 2d at 299.

13 City of Milwaukee v. Milwaukee County, 27 Wis. 2d 53, 66, 133 N.W.2d 393 (1965).

14 The dissent's extensive recitation of the facts to depict the perceived injustice to Willow Creek ignores that the law of estoppel in the zoning context is well-defined. Notwithstanding the unjust results of those acts, the erroneous acts of officers do not serve as a basis for estopping a municipality from enforcing an ordinance enacted pursuant to its police power.

Furthermore, although the dissent sets forth the actions of the County to demonstrate why it is a named defendant, we note once again that the County voted in favor of rezoning the game bird farm to allow Willow Creek to legally operate its commercial enterprise. The County's citation subsequent to the Town's veto of the rezoning petition is consistent with the representations made by the County that it did not foresee a problem with rezoning if the Town acquiesced. See Dissent at ¶ 105.