2022 WI App 22

COURT OF APPEALS OF WISCONSIN

PUBLISHED OPINION

Case No.: 2021AP269

BRIDGET FASSETT,

 PLAINTIFF-RESPONDENT,

 V.

CITY OF BROOKFIELD,

 DEFENDANT-APPELLANT.

Opinion Filed: April 20, 2022

Submitted on Briefs: February 10, 2022

Oral Argument: 

JUDGES: Neubauer, Grogan and Kornblum, JJ.

Concurred:

Dissented:

Appellant

ATTORNEYS: On behalf of the defendant-appellant, the cause was submitted on the 

briefs of Jenna Merten of City of Brookfield, Brookfield. 

Respondent

ATTORNEYS: On behalf of the plaintiff-respondent, the cause was submitted on the 

brief of Lisa Lawless of Husch Blackwell LLP, Milwaukee. 

Nonparty

ATTORNEYS: A nonparty brief was filed by Thomas Larson of Wisconsin Realtors

Association, for Wisconsin Realtors Assoc., Wisconsin Builders

Association, and NAOIP-WI. 
2022 WI App 22

COURT OF APPEALS

DECISION

DATED AND FILED

April 20, 2022

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 and 

RULE 809.62. 

Appeal No. 2021AP269 Cir. Ct. No. 2020CV317

STATE OF WISCONSIN IN COURT OF APPEALS

BRIDGET FASSETT,

 PLAINTIFF-RESPONDENT,

 V.

CITY OF BROOKFIELD,

 DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Waukesha County: 

MICHAEL O. BOHREN, Judge. Affirmed. 

Before Neubauer, Grogan and Kornblum, JJ.

¶1 NEUBAUER, J. The City of Brookfield appeals from an order 

reversing the City’s denial of Bridget Fassett’s application to divide her property 

into three residential lots. The City conditioned approval upon its requirement that 
No. 2021AP269

2

Fassett dedicate part of her property for a new public through street and pay to 

construct it. The circuit court concluded that this exaction was an unconstitutional 

taking and ordered approval of Fassett’s proposed property division. The court also 

determined that Fassett’s appeal was timely. We affirm.

BACKGROUND

¶2 The following undisputed facts are taken from the parties’ summary 

judgment submissions. Fassett owns a rectangular 4.93-acre parcel of land (the 

Property) located between two subdivisions in the City of Brookfield. The two 

subdivisions each have a dead-end street named Choctaw Trail that terminates at

approximately the middle of the Property. The Choctaw Trail dead ends have 

existed for many decades, one since the 1950’s, and the City anticipated they would 

one day be connected to form a through road.

¶3 Under the City of Brookfield’s subdivision code, a property owner 

may ask for approval of a land division before submitting formal documentation. 

Approval would be subject to execution of the land division instruments, which 

typically consist of a plat or certified survey map (“CSM”), subdivider agreements, 

and other conditions.

¶4 On January 8, 2018, Fassett submitted a written request to split the 

Property into four pieces, three single-family home sites and one outlot with 

wetlands to be dedicated to the City. Fassett’s request included maps of three 

conceptual plans: (1) creating a cul-du-sac connected to the eastern portion of 

Choctaw Trail, but leaving the dead end on the western side; (2) connecting both 

Choctaw dead ends with a through street; and (3) using a shared driveway for the 

two proposed southern lots from the east, leaving the two Choctaw Trail dead ends 
No. 2021AP269

3

in the adjacent subdivisions. Fassett stated that she preferred the third option, the 

shared driveway.

¶5 Fassett received feedback from the City of Brookfield plan 

commission and City staff at a hearing on February 12, 2018, at which time it 

appeared that the plan commission was in favor of accepting the staff 

recommendation to require the extension of Choctaw Trail across the Property. 

Fassett followed up with a letter explaining the basis for her preference for the third 

option, a shared driveway, along with information that the neighbors opposed a 

through street across the Property and between the Choctaw Trail two dead ends in 

the adjacent subdivisions. 

¶6 Nonetheless, the plan commission approved and recommended that 

the City’s common council adopt the second concept, which required that Fassett 

install a public through street connecting the Choctaw Trail dead ends. On 

June 19, 2018, the common council adopted the plan commission’s 

recommendation. The approval was conditioned on Fassett satisfying several 

additional requirements, including submission of a CSM, dedication of the new 

through street, dedication of the wetlands outlot, and execution of a subdivision 

agreement.

¶7 In late 2019, Fassett submitted a preliminary survey map, a final 

CSM, and a subdivider agreement, requesting that the City adopt the CSM without 

the need for a through road connecting the two dead ends of Choctaw Trail. In 

addition to the site plan, Fassett submitted a master grading and erosion control plan, 

site utilities plan, and construction notes and details. Fassett also submitted a letter 

from legal counsel opining that the required dedicated through street was an 

unconstitutional taking known as an exaction. 
No. 2021AP269

4

¶8 The plan commission rejected Fassett’s application, setting forth 

specific findings of fact. On January 21, 2020, the common council adopted those 

findings of fact and the plan commission’s recommendation. The rationale for the 

condition requiring dedication of a through street was largely based on: the City’s 

conclusion that the previous platting of the streets of the subdivisions on each side 

of the Property was done in anticipation of the street being connected; City of 

Brookfield Municipal Code § 16.16.030.G, which provides that dead-end streets and 

cul-de-sacs are to be minimized except when necessary due to topographical or 

environmental features; public safety response time benefits and improved 

snowplow operations; shortened distances for transportation and pedestrians; and 

reduced travel demand on arterial streets and collector streets.

¶9 On February 19, 2020, Fassett brought this action seeking certiorari 

review of the City’s January 21, 2020 denial. Fassett moved for summary judgment, 

arguing that the City engaged in an unconstitutional taking when it refused to 

approve the preliminary survey map and the CSM and conditioned approval of the 

development on the dedication of property and construction of the through street for 

public use. The circuit court granted Fassett’s motion for summary judgment and 

ordered the City to approve Fassett’s application with the preliminary survey map, 

final CSM, and subdivider agreement depicting the land split using the shared 

driveway concept. The court also rejected the City’s contention that the appeal was 

untimely. The City appeals those determinations.

DISCUSSION

I. Fassett’s certiorari petition was timely filed.

¶10 The City argues as a threshold matter that Fassett’s petition for 

certiorari review was untimely. Whether a request for certiorari review is timely is 
No. 2021AP269

5

a question of law we review de novo. Awve v. Physicians Ins. Co. of Wis., 181 

Wis. 2d 815, 821, 512 N.W.2d 216 (Ct. App. 1994).

¶11 A person aggrieved by the denial or failure to approve a plat “may

appeal therefrom as provided in [WIS. STAT. §] 62.23(7)(e)10., 14. and 15., within 

30 days of notification of the rejection of the plat.” WIS. STAT. § 236.13(5) (2019-

20).1 It is undisputed that Fassett commenced certiorari review in the circuit court 

within thirty days of the City’s January 21, 2020 decision.

¶12 Nevertheless, the City contends Fassett’s failure to appeal the City’s 

June 19, 2018 approval of the through street concept in her earlier proposal renders 

this appeal untimely, depriving the circuit court of jurisdiction. We disagree.2

¶13 Our decision in O’Connor v. Buffalo County Board of Adjustment, 

2014 WI App 60, 354 Wis. 2d 231, 847 N.W.2d 881, provides guidance. In that 

case, a landowner applied for a conditional use permit (“CUP”), which was denied 

and not appealed. Id., ¶¶2-5. The landowner later filed a second CUP application, 

which the board granted. Id., ¶¶5, 9. Citizens filed for certiorari review, arguing 

that the board was precluded from considering the second CUP after the denial of 

the first, and as such, the applicant’s sole remedy was to file for certiorari review of 

the first. Id., ¶¶10, 12.

¶14 The court in O’Connor rejected this argument, first recognizing that 

if the CUP applicant had wished to challenge the board’s denial of its first CUP 

 

1

 All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise 

noted.

2

 Fassett complains that the City is raising new arguments and citing new cases regarding 

timeliness on appeal. Because the issue of timeliness and jurisdiction over the certiorari appeal 

based on the successive applications was raised by the City and decided by the circuit court, we 

will address the additional arguments identified by the City on appeal. See State v. Holland Plastics 

Co., 111 Wis. 2d 497, 505, 331 N.W.2d 320 (1983).
No. 2021AP269

6

application, it would have been required to seek certiorari review as prescribed in 

WIS. STAT. § 59.694(10). O’Connor, 354 Wis. 2d 231, ¶21. However, “nothing in 

§ 59.694(10) prevented [the CUP applicant] from instead filing a second CUP 

application.” Id. The court noted that a “municipality may enact a rule prohibiting 

a party whose application ... has been denied from filing a new application absent 

a substantial change in circumstances,” but in O’Connor the county had not done 

so. Id., ¶21 (citing Tateoka v. City of Waukesha Bd. of Zoning Appeals, 220 Wis.

2d 656, 661, 672, 583 N.W.2d 871 (Ct. App. 1998)). Thus, there was no identified

statute, ordinance, or case that precluded the board from considering the second

CUP application.

¶15 The same is true here. Fassett was not required to seek certiorari 

review of the City’s 2018 decision on her three conceptual plans. The City fails to 

identify any statute, ordinance, or case that prevents an applicant who first sought a 

determination of a proposed conceptual land split from submitting a second revised 

application for approval with a CSM and other supporting documents, such as the 

subdivider agreement. As such, we reject the City’s unsupported contentions that 

Fassett was precluded from submitting the second application in 2019, or that the 

City was prevented from considering the second application, and more to the point, 

that Fassett was precluded from appealing the denial of her subsequent application 

seeking approval of the shared driveway concept.3

 

3

 Given our decision that Fassett’s appeal was timely, we need not consider Fassett’s 

contention that the City waived the timeliness challenge. See Sweet v. Berge, 113 Wis. 2d 61, 67, 

334 N.W.2d 559 (Ct. App. 1983) (when one issue is dispositive of an appeal, we need not reach 

other issues).
No. 2021AP269

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II. The City’s proposed exaction is an unconstitutional taking.

A. Applicable Certiorari Review Principles and Standards of Review

¶16 On appeal, we review the municipal body’s decision, not that of the 

circuit court. Oneida Seven Generations Corp. v. City of Green Bay, 2015 WI 50, 

¶42, 362 Wis. 2d 290, 865 N.W.2d 162. Our certiorari review is limited to whether: 

(1) the governing body acted within its jurisdiction; (2) the governing body 

proceeded according to law; (3) the governing body acted in an arbitrary, 

oppressive, or unreasonable manner that represented its will and not its judgment; 

and (4) the order or determination was reasonable as based on the evidence. Id., 

¶41.4 Under the statute authorizing certiorari review of municipal platting decisions, 

if the circuit court finds that the action of the approving authority in denying a plat 

was arbitrary, unreasonable, or discriminatory, the circuit court “shall direct that the 

plat be approved.” WIS. STAT. § 236.13(5).

¶17 Here, the City required Fassett to install public improvements as a 

condition for approval of her proposed subdivision. A municipality may “require 

that the subdivider make and install any public improvements reasonably necessary 

or that the subdivider provide security to ensure that the subdivider will make those 

improvements within a reasonable time.” See WIS. STAT. § 236.13(2)(am)1.a. The 

parties disagree whether the City acted according to law—namely, whether the City 

unconstitutionally required land dedication and construction of the street connection 

as conditions for approval of Fassett’s proposed land split in violation of the takings 

clauses of the United States and Wisconsin Constitutions. 

 

4

 The circuit court noted that the parties did not request any additional fact finding by the 

court.
No. 2021AP269

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¶18 “[W]e must give deference to the City’s factual reasons for 

conditionally approving the plat.” Hoepker v. City of Madison Plan Comm’n, 209 

Wis. 2d 633, 644, 563 N.W.2d 145 (1997). However, we owe no deference to the 

City’s decision when determining if an approving authority exceeded its 

constitutional authority, which is a question of law. Id.

B. General Takings/Exaction Principles

¶19 Both the Fifth Amendment to the United States Constitution and 

article I, section 13 of the Wisconsin Constitution prohibit the taking of private 

property for public use without compensation.5 These prohibitions do not ban the 

taking of private property for public use, “but instead place a condition on the 

exercise of that power ... to secure compensation” for the taking. Somers USA, LLC 

v. DOT, 2015 WI App 33, ¶9, 361 Wis. 2d 807, 864 N.W.2d 114 (citation omitted).

¶20 The issue presented is whether the City’s conditional approval of 

Fassett’s proposed land-split development, requiring land dedication and the street 

connection, is a constitutionally permitted exaction, a category of regulatory 

takings. An “exaction” is defined as “conditioning approval of development on the 

dedication of property to public use.” City of Monterey v. Del Monte Dunes at 

Monterey, Ltd., 526 U.S. 687, 702 (1999).6 Exactions also can include conditioning 

 

5

 The United States Constitution provides: “No person shall ... be deprived of life, liberty, 

or property, without due process of law; nor shall private property be taken for public use, without 

just compensation.” U.S.CONST. amend. V. Article I, § 13 of the Wisconsin Constitution provides: 

“The property of no person shall be taken for public use without just compensation therefor.”

6

 Because the Takings Clause of the Fifth Amendment to the United States Constitution,

made applicable to the states through the Fourteenth Amendment, is substantially similar to the text 

of the takings provision of the Wisconsin Constitution, our supreme court “long has sought 
No. 2021AP269

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a development approval (a permit, subdivision plat, etc.) upon the developer making 

some financial commitment, such as here requiring Fassett to construct a public 

street. See Koontz v. St. Johns River Water Mgmt. Dist., 570 U.S. 595, 612 (2013) 

(monetary exactions must be constitutional takings); Jordan v. Village of 

Menomonee Falls, 28 Wis. 2d 608, 137 N.W.2d 442 (1965) (upholding ordinance 

requiring subdivision developer to pay fee in lieu of dedication of land as condition 

of subdivision approval where dedication not feasible); see also Brian W. Blaesser 

& Christine M. Kentopp, Impact Fees: The “Second Generation,” 38 WASH. U. J.

URB. & CONTEMP. L. 55, 63-64 (1990).

¶21 The analysis of whether a government exaction is constitutional has 

been set forth by the United States Supreme Court in a two-part test. First, the 

government must establish that an “essential nexus” exists between a legitimate 

government interest and the exaction. Nollan v. California Coastal Comm’n, 483 

U.S. 825, 837 (1987). Second, if an exaction satisfies the essential nexus 

requirement, the government must demonstrate “rough proportionality” between the 

exaction and the impact caused by the development. Dolan v. City of Tigard, 512 

U.S. 374, 391 (1994). This two-prong test is referred to as the Nollan/Dolan test. 

See Koontz, 570 U.S. at 605-606.

¶22 The government has the burden of proving both prongs of the 

Nollan/Dolan test. See Dolan, 512 U.S. at 391 & n.8. On certiorari review, those 

 

guidance in decisions based on the federal Takings Clause or on analogues in the constitutions of 

other states.” See City of Milwaukee Post No. 2874 Veterans of Foreign Wars v. Redevelopment 

Auth., 2009 WI 84, ¶35, 319 Wis. 2d 553, 768 N.W.2d 749; see also E-L Enters., Inc. v. 

Milwaukee Metro. Sewerage Dist., 2010 WI 58, ¶¶21, 30, 326 Wis. 2d 82, 785 N.W.2d 409.
No. 2021AP269

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prongs must be proven by substantial evidence. Oneida Seven Generations, 362 

Wis. 2d 290, ¶41.

C. The City has failed to show property dedication and street-connection 

conditions are required to mitigate any impacts caused by the proposed lotsplit development.

¶23 The heart of the issue is who pays for the land dedication and new 

public street the City wants—the developer through exaction or, potentially, the 

taxpayers through eminent domain. The Nollan/Dolan test is designed to determine 

whether a landowner can be required to bear the costs to mitigate anticipated 

negative impacts of a development, such that the exaction roughly offsets the costs 

of the development (financial or otherwise) to the municipality. Here, as explained 

below, the City has failed to meet its burden of proof to show that the property 

dedication and street-connection conditions are required to mitigate negative 

impacts caused by the proposed lot-split development.

¶24 As the Supreme Court explained in Koontz, under the Nollan/Dolan

test, the government “may not condition the approval of a land-use permit on the 

owner’s relinquishment of a portion of his [or her] property unless there is a ‘nexus’ 

and ‘rough proportionality’ between the government’s demand and the effects of 

the proposed land use.” Koontz, 570 U.S. at 599; see also 5 Dwight H. Merriam & 

Sara C. Bronin, RATHKOPF’S THE LAW OF ZONING AND PLANNING § 90:44 (4th ed. 

2021) (observing that Supreme Court case law requires that “development 

conditions, exactions or impact fees be reasonably related in their nature and extent 

to some specific problem or need generated by a particular development proposal”

(footnotes omitted)).

¶25 Under Nollan, “a substantial nexus must exist between the purpose 

for a development exaction or condition and some problem or need generated by the 
No. 2021AP269

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particular development in question.” Merriam & Bronin, § 90:45. Thus, the 

government must show that the proposed development created the need for the 

condition—such that the government has a legitimate interest in demanding 

mitigation of the impacts of a proposed development. Nollan, 483 U.S. at 838;

Koontz, 570 U.S. at 605-606 (government may insist that the developer internalize 

the “negative externalities” of the development proposal, so long as there is a 

“nexus” and “rough proportionality” between the exaction that the government 

demands and the full public costs of the applicant’s proposal (citation omitted)).

¶26 If an exaction satisfies the essential nexus requirement, the 

government also must demonstrate the exaction is “rough[ly] proportional[]” to the 

impact caused by the development. Dolan, 512 U.S. at 391. To do so, the 

government must make an “individualized determination that the required 

dedication is related both in nature and extent to the impact of the proposed 

development.” Id. at 391 & n.8. Thus, the nature and amount of the exaction must 

roughly relate to the public burden caused by the development. Koontz, 570 U.S. 

at 606 (“Under Nollan and Dolan the government may choose whether and how a 

permit applicant is required to mitigate the impacts of a proposed development, but 

it may not leverage its legitimate interest in mitigation to pursue governmental ends 

that lack an essential nexus and rough proportionality to those impacts.”); see also 

Jordan, 28 Wis. 2d at 618 (approving required dedication of part of subdivided 

lands to meet the increased demand for land for schools, parks, and playgrounds 

caused by the influx of people into the community to occupy the subdivided lots). 

Here, the City has not established an “essential nexus” between the exaction and a 

problem or need created by Fassett’s proposed land split. 

¶27 As the circuit court aptly concluded, the City’s condition seeks to 

mitigate, or improve, the impacts of the “status quo”—the existing dead-end streets. 
No. 2021AP269

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That condition was not created by Fassett’s subdivision proposal, but by the platting 

of the earlier subdivisions which the Property abuts. When denying Fassett’s 

application seeking the shared-driveway option, the City repeatedly pointed to the 

municipal code’s goal of minimizing dead-end streets. The City failed to identify 

any anticipated impacts caused by the proposed land split, much less impacts that 

would be roughly proportional to the costs of the exaction.

¶28 The City’s argument rests exclusively on its contention that the 

exaction advances public benefits. It identified public safety response time benefits 

and improved snowplow operations, as well as shortened distances for 

transportation and pedestrians. However, the City did not tie these considerations 

to any impact caused by the proposed land split. There is no evidence that the 

proposed development would increase congestion, decrease safety, or hinder the 

adequate provision of transportation. 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. See Nollan, 483 U.S. at 841 (government’s 

belief that exaction will serve public interest “does not establish that the [landowner] 

alone can be compelled to contribute to its realization”). The City ignores that it 

must identify anticipated impacts caused by Fassett’s proposed development. See

Nollan, 483 U.S. at 838. Moreover, to require that Fassett dedicate her land and 

build a street without compensation, the City must show that the conditions it 

imposed are roughly proportional to offset the costs of those impacts, which the 

municipality would otherwise bear. As explained above, the City has failed to show 

the land split will create or exacerbate these identified public problems or needs. 
No. 2021AP269

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The City does not cite to any evidence of a public financial impact caused by the 

proposed development that will be roughly offset with an exaction.7

¶29 Nollan illustrates the “essential nexus” analysis as applicable here. 

When the Nollans sought to build a larger house, the government conditioned the 

permits on a requirement that the Nollans dedicate an easement for public use across 

the beach portion of their property. Nollan, 483 U.S. at 827-28. While the 

government claimed the new house would interfere with the public’s visual access 

to the beach from the street, it failed to show that allowing the public to walk across 

the beach portion of the Nollans’ property would reduce viewing obstacles from the 

street created by the new house. Id. at 838-39. As a result, the Supreme Court 

concluded that no nexus existed between the easement condition and the anticipated 

public burden generated by the larger house: an obstructed view. Id. While the 

government sought a public benefit—to connect the two adjacent beaches across the 

Nollans’ beachfront property—the absence of the connection was not caused by the 

larger house. Id. Thus, the Supreme Court concluded, the government’s 

“regulatory authority was set completely adrift from its constitutional moorings” 

when it claimed a nexus existed between visual access to the ocean and the beach 

 

7 While the City, in its reply brief, contends that there will be an impact on traffic and 

pedestrian safety and snowplow services arising from the split among the three lots, there is no 

evidence in the record to support this contention. As to an impact on emergency services to the 

three lots, the local fire chief testified that from a residential standpoint his department “could deal 

with all three [driveway] options.” To the extent the City relies on the fire chief’s testimony that 

the dead ends may make it more difficult for first responders to know where to enter to reach the 

subdivisions, that too is an existing issue, not one created by the lot-split proposal. 

The City also expresses consternation that the proposed lot split with a shared driveway 

will result in permanent dead ends. While we need not, and do not, address the availability or 

feasibility of eminent domain in this situation, Fassett points out that the City seeks to leapfrog over 

the required constitutional exaction analysis in seeking to eliminate the dead ends, a public benefit, 

rather than providing just compensation through eminent domain. See Dolan, 512 U.S. at 396 (“A 

strong public desire to improve the public condition [will not] warrant achieving the desire by a 

shorter cut than the constitutional way of paying for the change.” (alteration in original; citation

omitted)).
No. 2021AP269

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easement requirement. See Dolan, 512 U.S. at 387. Here, there is not even an 

identified public burden generated by the lot split, and thus it follows that there can 

be no nexus between a legitimate government interest in mitigation and the throughstreet condition.

¶30 While we need not go on, one of the conditions at issue in Dolan also 

illustrates the lack of rough proportionality between the conditions imposed and the 

development at issue. Dolan sought a permit to expand the footprint of her store 

and pave a new parking lot next to it. Id. at 379. The city conditioned approval of 

the permit upon the dedication of a portion of Dolan’s property for a 

pedestrian/bicycle path. Dolan, 512 U.S. at 380. While there was a nexus between 

the bike path and reducing traffic congestion caused by the expansion, the city failed 

to establish that the bike path would roughly offset the traffic demands generated 

by the proposed expansion. Id. at 387-88, 395-96.

¶31 Again, here, there is not even an identified burden, i.e., increased 

traffic demands generated by the development that would necessitate connecting the 

two dead-end streets. It therefore follows that there can be no rough proportionality 

vis-à-vis the through-street condition. 

¶32 In short, the City has not met the “essential nexus” and rough 

proportionality requirements because there is no evidence that the identified impacts 

of the dead-end streets are caused by the proposed lot split of the Property. Rather, 

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. As the United States Supreme Court has made clear, while the 

Takings Clause does not bar the government from requiring a developer to deal with 

problems of the developer’s own making, it does “bar Government from forcing 
No. 2021AP269

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some people alone to bear public burdens which, in all fairness and justice, should 

be borne by the public as a whole.” Dolan, 512 U.S. at 384.

¶33 Thus, we affirm the circuit court order determining that the City did 

not act according to law and, as such, its decision was unreasonable. The application 

of the municipal code provision stating a preference to minimize dead ends was 

unreasonable because the proposed lot split did not cause the dead ends in this case. 

As explained herein, the exaction was unconstitutional under the Nollan/Dolan test, 

and thus, the circuit court appropriately ordered the City to approve Fassett’s 

application. See Hartland Sportsmen’s Club, Inc. v. City of Delafield, 2020 WI 

App 44, ¶20, 393 Wis. 2d 496, 947 N.W.2d 214 (reversal appropriate “where the 

factual evidence failed to support the municipality’s ... decision”; “[b]ecause the 

decision maker cannot supplement the record with new evidence or new grounds, 

the defect cannot be cured”).8

CONCLUSION

¶34 There is no evidence that the proposed development of Fassett’s 

property would cause any of the City’s identified impacts, which are caused by the 

existing dead ends. As application of the Nollan-Dolan test makes clear, 

elimination of pre-existing needs does not establish a constitutional basis to require 

 

8

 The Wisconsin Realtors Association, Wisconsin Builders Association and NAIOP-WI 

moved for leave to file an amicus curiae brief in support of Fassett. See WIS. STAT.

RULE 809.19(7). In an order dated August 5, 2021, we granted the motion. Because our decision 

that the City’s denial is an unconstitutional taking is dispositive, we decline to address an issue they 

alone raise—whether the City’s decision is precluded under the Impact Fee Law, WIS. STAT.

§ 66.0617, which authorizes and regulates use of exactions and impact fees. See Sweet, 113 

Wis. 2d at 67 (when one issue is dispositive of an appeal, we need not reach other issues).
No. 2021AP269

2

that Fassett bear the costs of putting into place a public through street to benefit the 

public at large.

By the Court.—Order affirmed.