St. Croix Scenic Coalition, Inc. v. Village of Osceola

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
November 5, 2024
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2024AP823 Cir. Ct. No. 2023CV207

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

ST. CROIX SCENIC COALITION, INC., TYLER NORENBERG,
ELIZABETH KREMSER, EARL WISEMAN, DEBORAH BOREK,
THOMAS CARAVELLI, PETER PAIDAR, VICTORIA NELSON AND
THOMAS KILLILEA,

PETITIONERS-RESPONDENTS,

V.

VILLAGE OF OSCEOLA AND VILLAGE OF OSCEOLA BOARD OF
TRUSTEES,

RESPONDENTS-APPELLANTS.

APPEAL from an order of the circuit court for Polk County:
DANIEL J. TOLAN, Judge. Reversed and cause remanded with directions.

Before Stark P.J., Hruz and Gill, JJ.
No. 2024AP823

¶1 GILL, J.1 The Village of Osceola and its Board of Trustees
(collectively, the “Village”) appeal a decision of the circuit court granting in part
St. Croix Scenic Coalition, Inc.’s petition for certiorari review of the Village’s
decision to approve final site plans for a particular residential development and
remanding the matter to the Village for further proceedings.2

¶2 On appeal, the Village asserts that the Coalition failed to plead
sufficient facts demonstrating that it has standing under WIS. STAT. § 781.10 to
seek certiorari review of the Village’s decision. Specifically, the parties dispute
whether the Coalition sufficiently demonstrated that the individual members
sustained “actual damages or will imminently sustain actual damages that are
personal to the person and distinct from damages that impact the public generally”
“as a result of” the Village’s decision. See § 781.10(2)(c)3.

¶3 We conclude that the Coalition failed to allege sufficient facts to
meet the standing requirement in WIS. STAT. § 781.10(2)(c)3. Specifically, the
Coalition alleged its members merely faced the possibility of future harm of a type
that would affect the public generally rather than the required then-existing
individual injury or reasonably certain future individual injury resulting from the
local governing body’s decision to approve the application. We therefore reverse
and remand for the circuit court to dismiss the certiorari petition.

1
This opinion has been issued within ninety days after the Village of Osceola’s reply
brief was filed. See WIS. STAT. RULE 809.108(1), (4) (2021-22). All references to the Wisconsin
Statutes are to the 2021-22 version unless otherwise noted.
2
St. Croix Scenic Coalition, Inc., which is a non-profit charitable organization
“dedicated to protecting the scenic character of the St. Croix Valley landscape,” filed the present
action along with eight individual members of the Coalition: Tyler Norenberg, Elizabeth
Kremser, Earl Wiseman, Deborah Borek, Thomas Caravelli, Peter Paidar, Victoria Nelson, and
Thomas Killilea. We refer to the Coalition and these members collectively as the “Coalition.”

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No. 2024AP823

BACKGROUND

¶4 The Osceola Bluffs development project (“project” or
“development”) is a proposal to build a mixed-use commercial and residential
property on the bank of the St. Croix River in the location of an abandoned
hospital. If completed, the property would be three stories tall and include
ninety-nine apartment units, two commercial spaces, and 177 parking spaces. In
July 2023, the Village approved the developer’s final site plans for the project.

¶5 The Coalition filed an amended petition for certiorari review under
WIS. STAT. § 781.10 challenging the validity of the Village’s approval for the
project. The Coalition argued that the Village acted arbitrarily, oppressively,
unreasonably, and unlawfully in several respects related to its decision.
Accordingly, the Coalition requested that the circuit court reverse the Village’s
decision. The Coalition also moved for a temporary restraining order preventing
the project from moving forward during the pendency of the action.

¶6 The Village responded to the request for a temporary restraining
order by arguing, among other things, that the Coalition lacked standing to bring
the certiorari action because it failed to meet any of the requirements in WIS.
STAT. § 781.10(2)(c). At a hearing on the motion, the circuit court concluded that
the Coalition had standing. The court also granted the Coalition’s motion for a
temporary restraining order.

¶7 Ultimately, the circuit court granted relief with respect to the
Coalition’s petition for certiorari in part and reversed the Village’s July 2023
decision. Specifically, the court concluded that the Village’s decision was
unreasonable because it violated a Village of Osceola ordinance and Wisconsin
administrative code regulations. The court remanded the case back to the Village

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No. 2024AP823

to “further review compliance with the requirements of” those provisions.3 The
Village now appeals.

DISCUSSION

¶8 As discussed, the Coalition sought certiorari review of the Village’s
decision pursuant to WIS. STAT. § 781.10. On certiorari review, our inquiry is
limited to:

(1) whether the municipality kept within its jurisdiction;
(2) whether it proceeded on a correct theory of law;
(3) whether its action was arbitrary, oppressive, or
unreasonable and represented its will and not its judgment;
and (4) whether the evidence was such that it might
reasonably make the order or determination in question.

Oneida Seven Generations Corp. v. City of Green Bay, 2015 WI 50, ¶41, 362
Wis. 2d 290, 865 N.W.2d 162 (citation omitted).

¶9 First, however, we must determine whether the Coalition has met the
specific requirements for standing under WIS. STAT. § 781.10(2)(c). “Standing
presents a question of law for our de novo review.” Metropolitan Builders Assoc.
of Greater Milwaukee v. Village of Germantown, 2005 WI App 103, ¶12, 282
Wis. 2d 458, 698 N.W.2d 301. To resolve the standing issue in this case, we must
interpret and apply statutory provisions, which also present questions of law.
See Clean Wis., Inc. v. DNR, 2021 WI 71, ¶15, 398 Wis. 2d 386, 961 N.W.2d
346. “[T]he purpose of statutory interpretation is to determine what the statute
means so that it may be given its full, proper, and intended effect.” State ex rel.

3
The circuit court also ordered that the injunction remain in place to allow the parties to
appeal its decision.

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No. 2024AP823

Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶44, 271 Wis. 2d 633, 681
N.W.2d 110. “Statutory language is given its common, ordinary, and accepted
meaning, except that technical or specially-defined words or phrases are given
their technical or special definitional meaning.” Id., ¶45. Because we conclude
that the Coalition lacks standing pursuant to the relevant statutory provisions, we
need not reach the remaining issues addressed by the circuit court.

A. Forfeiture of the Village’s standing argument

¶10 The Coalition argues that we need not address the standing issue
because the Village forfeited its challenge to the Coalition’s standing. The
Coalition asserts that the Village was required to bring a motion to dismiss for lack
of standing or, alternatively, to argue standing in its brief in opposition to the
certiorari petition. “As a general rule, issues not raised in the circuit court will not
be considered for the first time on appeal.” Town of Mentor v. State, 2021 WI
App 85, ¶46, 400 Wis. 2d 138, 968 N.W.2d 716 (citation omitted). The forfeiture
rule prevents a circuit court from being “blindside[d]” with reversal based on a
theory which it was not presented with. Id., ¶51 (citation omitted). It also enables
a “circuit court to avoid or correct any error as it comes up” and “gives the parties
and the circuit court notice of an issue and a fair opportunity to address the
objection.” Id., ¶46 (citation omitted).

¶11 In this case, the Village raised the issue of standing in its response
brief to the Coalition’s motion for temporary relief pending certiorari review. The
Village’s brief contained three pages in which it argued that the Coalition did not
meet the standing requirements in WIS. STAT. § 781.10(2)(c). Moreover, at the
hearing on that motion, the Village again argued that the Coalition must “have had
actual damages in order to establish the right to bring this claim. [The Coalition

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No. 2024AP823

has not] done it. And [the Coalition] had to have done it in the initial pleading.
That’s what’s required under [§] 781.10. On that basis alone, this entire claim
fails.” The circuit court then issued an oral ruling concluding that the Coalition
had standing to challenge the Village’s decision to approve the site plans for the
proposed project.

¶12 Accordingly, the circuit court and the parties were clearly given
notice of the standing issue; indeed, the parties argued the matter. The Coalition
cites no authority for the proposition that, given the foregoing facts, the Village
was required to again raise the standing issue in a motion to dismiss for lack of
standing or in its brief in opposition to the certiorari petition. See State v. Pettit,
171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992) (“Arguments unsupported
by references to legal authority will not be considered.”).

¶13 The Coalition also asserts that the Village was required, but failed, to
raise the standing issue a second time following the circuit court’s oral ruling
because the court stated, “for purposes of today, there is standing.” (Emphasis
added.) The Coalition overreads the import of this statement. We agree with the
Village that there would have been little reason to raise a second challenge to
standing after the court made a ruling applying the standard in WIS. STAT.
§ 781.10(2)(c). Regardless, forfeiture is a rule of judicial administration, and we
may disregard the rule and address the merits of an issue. See Town of Mentor,
400 Wis. 2d 138, ¶48. As noted above, the standing issue was fully briefed and
argued by both parties prior to the court’s ruling. However, even if the issue was
forfeited, we would address the merits of the Coalition’s standing.

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No. 2024AP823

B. Standing under WIS. STAT. § 781.10

¶14 In June 2023, the Wisconsin legislature established a new, exclusive
form of certiorari review for any final decision of a “political subdivision on an
application for” “a permit or authorization for building, zoning, driveway,
stormwater, or other activity related to residential development.” See 2023 Wis.
Act 16, § 20; WIS. STAT. § 781.10(1), (2)(a). “Political subdivision” “means a
city, village, town, or county or a board of appeals or board of adjustment,”
§ 781.10(1)(b), and “[r]esidential development” “means the development or
redevelopment of land or buildings for the primary purpose of providing housing,”
§ 781.10(1)(c).

¶15 WISCONSIN STAT. § 781.10 limits who may file an action for
certiorari, stating, in pertinent part, that an action “may be filed only by any of the
following”:

3. A person that, as a result of the final decision on the
application for an approval, sustains actual damages or will
imminently sustain actual damages that are personal to the
person and distinct from damages that impact the public
generally. A person under this subdivision may not seek
review under this section unless, prior to the final decision
on the approval, the person provided a statement in writing
on the approval to the political subdivision or agency of the
political subdivision or appeared and provided an oral
statement at a public proceeding held by the political
subdivision or agency of the political subdivision at which
the approval was considered.

4. A person, other than an individual, that satisfies all of the
following conditions:

a. The person has as a member, partner, or
stockholder at least one person described under
subd. … 3.

b. The person was not organized or incorporated in
response to the application.

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No. 2024AP823

Sec. 781.10(2)(c) (emphasis added). “The person seeking review under this
section shall file pleadings” which “shall specify facts demonstrating that the
person has standing under par. (c).” Sec. 781.10(2)(d)1.

¶16 Our standing analysis is therefore limited to whether the interests
asserted by the Coalition, in its pleadings, are “legally protectable” under WIS.
STAT. § 781.10(2)(c). See Foley-Ciccantelli v. Bishop’s Grove Condo. Ass’n,
2011 WI 36, ¶¶43, 54-56, 333 Wis. 2d 402, 797 N.W.2d 789 (stating that a legally
protectable interest “means interests protected by a statute or constitutional
provision” that governs standing); Friends of the Black River Forest v. Kohler
Co., 2022 WI 52, ¶¶28-30 & n.13, 402 Wis. 2d 587, 977 N.W.2d 342 (applying
the “legally protectable” test to a petitioner’s challenge under WIS. STAT. ch. 227).
We construe pleadings liberally “as to do substantial justice.” WIS. STAT.
§ 802.02(6).

¶17 On appeal, the Coalition asserts that it sufficiently pled allegations
that satisfied the requirements of both WIS. STAT. § 781.10(2)(c)3. and 4.4 The
parties focus their arguments on whether the Coalition sufficiently pled allegations
to meet the first clause in § 781.10(2)(c)3.—namely, “A person that, as a result of
the final decision on the application for an approval, sustains actual damages or

4
The Village concedes that the Coalition was not organized or incorporated in response
to the application and that, prior to the final decision, the Coalition’s members all submitted
written statements to the Village on the approval and/or appeared and provided an oral statement
at a Village public proceeding at which the approval was considered.

The Coalition improperly cites an unpublished per curiam opinion as authority in
violation of WIS. STAT. RULE 809.23(3). Under RULE 809.23(3)(a), “[a]n unpublished opinion
may not be cited in any court of this state as precedent or authority … except as provided in
par. (b),” which pertains to authored opinions. RULE 809.23(3)(a), (b). A per curiam opinion is
not an authored opinion. We admonish counsel that future violations of the Rules of Appellate
Procedure may result in sanctions. See WIS. STAT. RULE 809.83(2).

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No. 2024AP823

will imminently sustain actual damages that are personal to the person and distinct
from damages that impact the public generally.”

¶18 “[A]ctual damages” and “imminently sustain actual damages” are
not defined by statute. Using the common and accepted meanings, however, it is
clear that a petitioner under WIS. STAT. § 781.10(2)(c)3. must experience a real,
then-existing, injury or must reasonably be facing such injury in the near future as
a result of the local governing body’s decision to approve an application. See
Kalal, 271 Wis. 2d 633, ¶53; Actual, MERRIAM-WEBSTER DICTIONARY,
https://www.merriam-webster.com/dictionary/actual (last visited Oct. 30, 2024);
Imminent, MERRIAM-WEBSTER DICTIONARY, https://www.merriam-
webster.com/dictionary/imminent (last visited Oct. 30, 2024).

¶19 This conclusion is supported by our state supreme court’s analysis in
the context of statutes of limitations for torts. The court has held that “[i]n the
context of deciding when a claim accrues for purposes of the statute of
limitations, … a tort claim is not capable of present enforcement (and therefore
does not accrue) unless the plaintiff has suffered actual damage.” Tietsworth v.
Harley-Davidson, Inc., 2004 WI 32, ¶17, 270 Wis. 2d 146, 677 N.W.2d 233
(emphasis added). Actual damage in this context is defined as “harm that has
already occurred or is ‘reasonably certain’ to occur in the future. Actual damage
is not the mere possibility of future harm.” Id. (citation omitted). Reasonably
certain means “reasonably probable,” not “merely possible.” Hennekens v. Hoerl,
160 Wis. 2d 144, 166, 465 N.W.2d 812 (1991) (emphasis omitted; citation
omitted). “Probable” is synonymous with “imminent.” Probable,
MERRIAM-WEBSTER THESAURUS, https://www.merriam-
webster.com/thesaurus/probable (last visited Oct. 30, 2024).

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No. 2024AP823

¶20 “Monetary loss is not the only form of actual damage. One form of
actual damage is injury to a legal interest or loss of a legal right.” Hennekens,
160 Wis. 2d at 153-54. In addition, “allegations of injury to aesthetic,
conservational, recreational, health and safety interests will confer standing so
long as the injury is caused by a change in the physical environment.”
See Milwaukee Brewers Baseball Club v. DHSS, 130 Wis. 2d 56, 64-65, 387
N.W.2d 245 (1986) (determining whether a petitioner had standing under WIS.
STAT. ch. 227).5 However, for purposes of WIS. STAT. § 781.10(2)(c)3. (as
opposed to standing in general), the actual or imminent actual damages must be
“personal to the person and distinct from damages that impact the public
generally.” See WIS. STAT. § 781.10(2)(c)3.

¶21 The Coalition’s amended petition for certiorari included statements
regarding each of the eight members who joined in this action. The petition
alleged that each of the eight members owns property near the project’s proposed
development site. According to the petition, seven of the members “believe” that
the proposed development will decrease their property values if completed, and
many expressed concerns that the project will negatively impact their enjoyment
of their properties. Some of the members also expressed their beliefs that the
project will increase traffic and parking issues near their residences and
“impact … the utilities infrastructure.” The petition stated that Thomas Killilea

5
WISCONSIN STAT. § 781.10(2)(c)3. does not confer standing upon a party using the
same language as WIS. STAT. §§ 227.52 and 227.53. The latter statutes permit judicial review of
“[a]dministrative decisions which adversely affect the substantial interests of any person” if that
person is “aggrieved by” such a decision. See §§ 227.52 and 227.53(1). Nonetheless, we find
Milwaukee Brewers Baseball Club v. DHSS, 130 Wis. 2d 56, 64-65, 387 N.W.2d 245 (1986),
persuasive, and we conclude injuries to aesthetic, conservational, recreational, health and safety
interests can constitute actual or imminent damages.

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No. 2024AP823

has “concerns” that he will have issues accessing one of his two residences near
the proposed development. The petition alleged that most of the members believe
the project will negatively impact the natural and scenic qualities of the St. Croix
River that they enjoy, and some expressed concern that the finished development
will be visible from the river. Moreover, some members expressed concern that
their taxes may increase, and one member stated he was concerned about
pollution.

¶22 The amended petition also stated that Tyler Norenberg, specifically,
owns property “beneath the location” of the proposed development. In an
affidavit, submitted after the amended petition was filed, Norenberg stated that he
listed his property for sale because he “was fearful of the impact of a
large … apartment building including a bar and restaurant with balconies looking
down on [his] property and associated noise and light pollution coming down the
hill.”6 Further, Norenberg stated that “[t]wo potential buyers withdrew their
full-price interest in [his property] after” the proposed development “became
public.” Norenberg commented that he received one “bona fide offer” for his
property, which was $200,000 lower than his desired listing price. In addition,
Norenberg stated that he is “concerned about the retention ponds that will be built
above [his] property.” He expressed concern that “overflow from,” “or a failure
of,” the larger of the retention ponds “would damage or destroy” his property
“with a potential landslide.” Norenberg cited “reliable information and belief by

6
The parties disagree over whether Norenberg’s affidavit is a “pleading[]” as that term is
used in WIS. STAT. § 781.10(2)(d)1. The Village argues that the affidavit is not a pleading
because it was not filed with the amended petition for certiorari. We will assume, without
deciding, that the affidavit is reviewable for purposes of the standing analysis in this case.

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No. 2024AP823

the DNR” that the “proposed retention ponds constructed right up to the bluff line
have increased chance of failure.”

¶23 We begin our analysis with the amended petition. We first note that
many of the concerns raised in the petition relate to issues that are not “personal”
or “distinct from damages that impact the public generally.” See WIS. STAT.
§ 781.10(2)(c)3. These include members’ concerns with: the negative impact of
the finished development on the natural and scenic qualities of the St. Croix River,
including questions about whether the development will be visible from the water;
the impact on general enjoyment of the St. Croix River; and the possible pollution
of the river. Contrary to the Coalition’s assertion, the fact that the members may
frequent the river “more than a random member of the public” does not render the
alleged damage “personal” to them. See id. Similarly, the members’ concerns
about public parking issues and increased traffic are alleged damages that would
“impact the public generally.” See id. The same is true regarding concerns
surrounding taxation and infrastructure.

¶24 In addition, the members’ allegations regarding increased congestion
with respect to parking and traffic, increased property taxes, infrastructure
concerns, and diminished property values appear from the pleadings to be based
entirely on their generalized “belief.” The members cite no evidence in their
pleadings supporting any of the above claims. These unsupported allegations are
insufficient to meet the statutory standard; actual sustained damage is not the mere
possibility of future harm. See Tietsworth, 270 Wis. 2d 146, ¶17. Nor is the
belief that the completed development may cause any of the above issues an
“imminent” consequence—rather, it is a possibility. See id.

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No. 2024AP823

¶25 With respect to property values, none of the statements in the
petition articulate with specificity why the finished development will decrease
property values, and the Coalition provides no appraisals in support of its position.
The pleadings are particularly deficient in this regard because the proposed
development site’s location is an abandoned and dilapidated hospital, which site
the Village notes “has seen constant vandalism, a variety of animals living in and
around the vacant facility, and [is] a haven for drug and alcohol use.” As the
Village argues, “[a]ny improvement to the site is … more likely to increase
property values in the area.”

¶26 The Coalition contends that any reference to a member’s concern
about his or her property diminishing in value is sufficient to confer standing
under the facts of this case. In support of this argument, the Coalition cites
Arneson v. Arneson, 120 Wis. 2d 236, 252, 355 N.W.2d 16 (Ct. App. 1984), in
which this court held that “an owner is competent to give opinion evidence as to
value of his [or her] own property.” Assuming without deciding that Arneson can
be appropriately applied to the case at hand, a member’s mere statement that his or
her property value may decline due to the proposed development, without more,
fails to demonstrate the member has standing. The amended petition failed to
include any evidence regarding the members’ property values or other evidence
showing that their property values faced imminent reduction as a result of the
proposed development.

¶27 Norenberg’s affidavit contains more detail than the pleadings
regarding his claim that the proposed development will reduce the value of his
property. However, we conclude that it too fails to satisfy the standing
requirements in WIS. STAT. § 781.10(2)(c)3. Notably, the affidavit lacks
specificity as to the details surrounding the “full-price interest” in Norenberg’s

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No. 2024AP823

property and the offer, including, but not limited to: whether the property’s
potential buyers were aware of the proposed development at the time they
demonstrated their “interest” or made an offer; whether the potential buyers who
demonstrated a full-price interest withdrew that interest because of the
development; the original listing price of the property; the fair market value of the
property; and any comparable sales in the area. In other words, the affidavit lacks
sufficient information to conclude that the property diminished in value or that it
was reasonably probable that the property value would diminish due to the
proposed development—i.e., that Norenberg sustained actual damages or was
likely to sustain such damages in the near future. We also note that “full-price
interest” in a property does not equate to an offer to purchase. Regarding the
retention ponds, the affidavit offers only speculative concerns that a “potential
landslide” could occur. This concern, too, is not “imminent”—it is a possibility.
See Tietsworth, 270 Wis. 2d 146, ¶17.

¶28 Lastly, the Coalition asserts that the allegations contained in its
pleadings are sufficient because “[n]othing in WIS. STAT. § 781.10 changes the
general pleading standard that a petition must only contain a short and plain
statement of the facts and is to be liberally construed so as to do substantial
justice.” See WIS. STAT. § 802.02(1)(a). The Coalition asserts that § 781.10 does
not require it to “prove actual damages in order to sufficiently allege standing.”
However, this argument ignores § 781.10’s dictate that the “pleadings shall
specify facts demonstrating that the person has standing under par. (c).”
Sec. 781.10(2)(d)1. (emphasis added). We have liberally interpreted the
Coalition’s pleadings as required under § 802.02(6) and, for the reasons already
explained, the pleadings fail to meet the standing requirements in § 781.10.

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No. 2024AP823

CONCLUSION

¶29 The legislature has defined who may bring a certiorari action
challenging a local governing body’s residential development decisions by
limiting standing to the situations set forth in WIS. STAT. § 781.10(2)(c). As is
relevant to this case, a petitioner must demonstrate that he or she sustained “actual
damages or will imminently sustain actual damages” “as a result of the final
decision on the application for approval.” Sec. 781.10(2)(c)3.

¶30 Here, the Coalition failed to plead sufficient facts to have standing as
it failed to allege real, then-existing, injuries to its individual members, or that the
individual members reasonably faced such injury in the near future as a result of
the Village’s decision to approve the residential development application. The
alleged mere possibility of future harm, and harm that is factually
indistinguishable from damages that impact the public generally, was insufficient
to meet this standard. Therefore, we reverse the circuit court’s decision and
remand for the court to dismiss the certiorari petition.

By the Court.—Order reversed and cause remanded with directions.

Recommended for publication in the official reports.

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