Dairy Able to Build Barns, But What About Using Property For A Dairy?


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This post is not legal advice.  

I am taking a break from highlighting new articles available to discuss a recent court decision. In a recent Wisconsin decision, the court held that a dairy did not have a vested right to use the land for the planned dairy operation. In a prior decision, the court had found a vested right to build barns based on filing a building permit. Although this can create a conflict, ability to build the barns, but not utilize the land for the purpose, Maryland law allows for solutions that would protect landowners in these situations.

In Golden Sands Dairy LLC v. Town of Saratoga, Golden Sands was trying to develop a dairy within the city limits of Saratoga. The proposed dairy would utilize 6,388 acres within the city limits. The dairy had filed a building permit to develop seven dairy buildings on the land. After filing the permit application, the town enacted different zoning regulations that would have made the planned dairy operation a nonconforming use. In an early decision, the Court of Appeals of Wisconsin found that the dairy had a vested right to a building permit to develop seven dairy buildings on the land. In this recent decision, the dairy also argued to have a vested right to use the property as a nonconforming use by filing the building permit.

The only issue in this appeal was did the dairy have a vested right to use the 6,388 acres of land for the dairy operation based on the building permit application. The dairy argued that the vested right to a building permit allowing for the construction of the dairy buildings carried a vested right to use the land identified in the permit application. In other words, once the dairy received a vested right in building permit, the dairy also got a vested right to utilize the property identified in the permit application to use with the dairy. The town argued that the dairy had no right to use the land as a nonconforming use and the dairy is not allowed use property in conflict with the current zoning classification. In other words, the dairy could build the buildings but had not right to use the remaining property as a dairy.

In reviewing the case, the court determined that there is a difference between a vested right that comes with by submitting a building permit and a vested interest a nonconforming use that existed before the new zoning ordinance. A nonconforming use would be when a property owner lawful uses the property before the zoning ordinance change. According to the court, Wisconsin has never dealt with the issue of did a vested right from a building permit extend to the related property use. None of the cases cited by the dairy addressed the issue of did an application for a building permit extend vested rights to the land identified in the permit.

The court saw giving vested rights to land associated with a building permit application as creating issues not addressed in the permit application. The permit application did not require the dairy to state how much land the dairy needed out of the 6,388 acres. Did the dairy need all 6,388 acres? The other issue was the application did not address ownership of the property. Did the dairy own or lease all 6,388 acres?


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The dairy also pointed to a court decision where a property owner received substantially vested rights in use when the property owner had incurred substantial expenses in developing plans for an apartment complex. The expenses had been incurred before a zoning change, which prohibited the building of an apartment building. In that case, the court allowed the building to proceed based on the owner reasonably relying on the existing zoning ordinances when incurring expenses. The court rejected this argument because the dairy had not pursued this theory at trial, so it could not utilize it now.


The court reversed the lower court’s decision and ruled for the town. The dairy did not have a vested right to use the property for a nonconforming use.

Why should you care? I highlighted this case mainly to demonstrate how courts may see this issue. This case represents an odd result that can happen from time to time; you get the right to build the barn but not use the land for an agricultural purpose with the barn.  It’s important to understand how zoning and planning rules work in your state so you can best protect your ability to use farmland for your intended purpose.


Golden Sands Dairy LLC v. Town of Saratoga, No. 2015AP1258, 2017 WL 13722507 (Wis. Ct. App. April 13, 2017).

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