¶ 59. DAVID T. PROSSER, J. (dissenting).

Wisconsin law has become unintelligible in explaining what rights and remedies are available to persons who have been injured by state or local government. The purpose of this dissent is to provide an overview of this dilemma and to show how it has led to a serious injustice in the present case.

I

¶ 60. In 1962, this court abrogated the principle of governmental immunity from tort claims. Holytz v. City of Milwaukee, 17 Wis.2d 26, 115 N.W.2d 618 (1962). Our court declared that few tenets of American jurisprudence had been so unanimously berated as the governmental immunity doctrine. 17 Wis.2d at 33. We found that governmental — immunity had its origin in judicial decisions and concluded that the time had come to abolish the immunity, even though the legislature had not acted. Id. at 37.

¶ 61. The court then addressed the scope of abrogation, announcing that, henceforward, "so far as governmental responsibility for torts is concerned, the rule is liability — the exception is immunity." Id. at 39. Further:

Our decision does not broaden the government's obligation so as to make it responsible for all harms to others; it is only as to those harms which are torts that governmental bodies are to be liable by reason of this decision.

This decision is not to be interpreted as imposing liability on a governmental body in the exercise of its legislative or judicial or quasi-legislative or quasi-judicial functions.

Id. at 39-40 (citing Hargrove v. Cocoa Beach, 96 So.2d 130, 133 (Fla 1957)).

¶ 62. The court acknowledged that the legislature had the last word and was thus free to reinstate immunity, impose damage caps, and establish "administrative requirements . . . preliminary to the commencement of judicial proceedings for an alleged tort." Id. at 40.

¶ 63. In 1963, the legislature responded to the Holytz decision by enacting Chapter 198, Laws of 1963, effective July 27, 1963. Chapter 198 created Wis. Stat. § 331.43, which in time became Wis. Stat. § 895.43 (1975-76) and is now Wis. Stat. § 893.80, the section that applies to this case. The legislature has amended this provision several times.

¶ 64. To understand the current statute, we must look backward. Subsection (1) of the 1963 law directed that: "No action founded on tort, except as provided in s. 345.05, shall be maintained" against a local government entity, including a volunteer fire company, or "officer, official, agent or employe" of such entity, without first filing a timely notice of claim.

¶ 65. Subsection (2) imposed a damage cap of $25,000 "in any action founded on tort" against local governments, and it precluded punitive damages in any such action.

¶ 66. Subsection (3) stated:

No suit shall be brought against any political corporation, governmental subdivision or any agency thereof for the intentional torts of its officers, officials, agents or employes nor shall any suit be brought against such fire company, corporation, subdivision or agency or against its officers, officials, agents or employes for acts done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions.

The latter half of subsection (3) tracked the language in Holytz, explicitly maintaining the immunity in tort for certain discretionary governmental functions.

¶ 67. Subsection (4) provided that "the provisions and limitations of this section shall be exclusive and shall apply to all actions in tort" against the enumerated entities. The subsection also said:

Nothing in this section shall bar an action or impose limitations in any action against any such officer, official, agent or employe individually for intentional torts. When rights or remedies are provided by any other statute against any political corporation, governmental subdivision or agency or any officer, official, agent or employe thereof for injury, damage or death, such statute shall apply and the limitations in sub. (2) shall be inapplicable.

¶ 68. In 1978, the legislature repealed and recreated Wis. Stat. § 895.43 as part of a larger bill "relating to a uniform procedure for claims brought against local governments." Chapter 285, Laws of 1977. The legislature changed the title of the section from "Tort actions against political corporations, governmental subdivisions or agencies and officers, agents or employes; notice of claim; limitation of damages and suits" to "Claims against political corporations, governmental subdivisions or agencies and officers, agents or employes; notice of injury; limitation of damages and suits." It dropped the phrase "action founded on tort" from subsection (1) and inserted instead the phrase "a claim or cause of action." It renumbered subsection (3) to subsection (4). It also renumbered subsection (4) to subsection (5) and changed the language in the subsection from "the provisions and limitations of this section shall be exclusive and shall apply to all actions in tort" to "the provisions and limitations of this section shall be exclusive and shall apply to all claims." It also dropped from renumbered subsection (5) the sentence: "Nothing in this section shall bar an action or impose limitations in any action against any such officer, official, agent or employe individually for intentional torts."

¶ 69. The Prefatory Note to the revised section explained that the Wisconsin Statutes "contain a variety of procedural steps to follow when bringing a claim" against a local government. The Note then stated:

This bill consolidates these procedures [SECTIONS 1 to 10 and 12] and makes them uniform by repealing and recreating s. 895.43, Wis. stats., [SECTION 11] to include the following procedures when prosecuting a claim against any volunteer fire company organized under ch. 213, political corporation, governmental subdivision or agency thereof or against any officer, official, agent or employe of such corporation, subdivision or agency or volunteer fire company for acts done in their official capacity or in the course of their agency or employment:

a) A 120 — day period for filing written notice of injury. However, the failure to give the required notice will not bar an action if the appropriate body had actual notice and failure to provide written notice was not prejudicial to the defendant.

b) No time limit for filing a claim.

c) A time limit of 120 days for disallowing a claim; the failure of an appropriate body to act on a claim within 120 days is treated as a disallowance.

d) Notice of disallowance of a claim which shall include a statement of the date of disallowance and the time during which a claimant may commence a court action.

e) A requirement that suits be commenced within 6 months of the date of service of notice of disallowance.

Ch. 285, Laws of 1977, p. 1233.

¶ 70. The Prefatory Note to the 1978 legislation describedprocedures. It did not explain or even mention the elimination of several references to tort. The new legislation tied eight then — existing statutes, namely, Wis. Stat. §§ 59.76, 59.77(1), 60.36, 62.25(1), 81.15, 118.26, 119.68, and 345.05(3) (1975-76), to the procedures in Wis. Stat. § 895.43. These eight statutes authorized causes of actions or claims against counties, towns, cities, school districts, and against the state for motor vehicle accidents. The objective of all this was to establish uniform procedures to be followed for claims against local governments.

¶ 71. In 1979, the legislature renumbered Wis. Stat. § 895.43 as § 893.80. Section 893.80 has been amended several other times, but the language in subsection (4) exempting local governments and local officials from suits "for acts done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions" has always remained intact.

¶ 72. This information serves as background for the review of two cases that have had a decisive influence on the present litigation. The first case is DNR v. City of Waukesha, 184 Wis.2d 178, 515 N.W.2d 888 (1994), which posed this question: "Does sec. 893.80(1), Stats., the notice of claim statute, apply in all actions or only in tort actions?" Id. at 182. The court concluded that § 893.80(1) applies in all actions. Id. at 183. It pointed to the "plain language" of the statute. Id. at 190. It also quoted from Figgs v. City of Milwaukee, 121 Wis.2d 44, 52, 357 N.W.2d 548 (1984), in which this court said:

[I]t is apparent that sec. 893.80(1)(b), Stats., requires a list, item by item, of the kinds of relief sought. One kind of relief sought might be, as here, money damages. In another case, it might be a demand for relief by specific performance or by injunction. It should be noted that sec. 893.80 is not a statute only applicable to tort claims or claims for negligence. The opening sentence of sec. 893.80 recites its applicability to any cause of action. Sec. 893.80, when initially enacted by the legislature, applied only to tort claims, but by ch. 285, Laws of 1977, the procedures were made generally applicable to any claims against the listed governments. Accordingly, the statute provides for a method of securing relief against a city that may be different from, or in addition to, damages (emphasis added).

¶ 73. In the Waukesha case, the court discussed three court of appeals decisions after 1978 that had ruled that Wis. Stat. § 893.80(1) applied only to actions for money damages: Kaiser v. City of Mauston, 99 Wis.2d 345, 356, 299 N.W.2d 259 (Ct.App. 1980); Harkness v. Palmyra-Eagle Sch. Dist., 157 Wis.2d 567, 579, 460 N.W.2d 769 (Ct.App. 1990); and Nicolet v. Village of Fox Point, 177 Wis.2d 80, 86, 501 N.W.2d 842 (Ct.App. 1993). 184 Wis.2d at 191. The Waukesha court then said:

[W]e now hold that sec. 893.80 applies to all causes of action, not just those in tort and not just those for money damages. We therefore overrule Kaiser, Harkness and Nicolet to the extent that those opinions hold that sec. 893.80(1) applies only to tort claims and claims for money damages.

Id.

¶ 74. In Waukesha, the Department of Natural Resources (DNR) had sought an injunction against the City of Waukesha as well as forfeitures under one statute and penalties under another. Ultimately, the court reversed the decision of the circuit court to dismiss the DNR complaint. As a result, this court permitted the DNR to seek injunctive relief against the City.

¶ 75. The second case is Johnson v. City of Edgerton, 207 Wis.2d 343, 558 N.W.2d 653 (Ct.App. 1996), decided two years afterWaukesha. In Johnson, the court focused on a different subsection of Wis. Stat. § 893.80. The principal issue was "whether the immunity granted by § 893.80(4), STATS., is limited to actions in tort, or whether it extends to equitable actions seeking injunctive relief." Id. at 345. The court concluded that "the official immunity provisions of § 893.80(4), STATS., like the notice and claim provisions of § 893.80(1), are not limited to tort or money — damage actions, but are equally applicable to actions which . . . seek injunctive relief against the governmental subdivision or employee." Id. at 352. In reaching this conclusion, the court relied heavily on the language and analysis of the Waukesha case.

¶ 76. The majority opinion today consecrates the Johnson decision as controlling Wisconsin law, declaring that:

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, . . . [t]he 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.

Majority op. at ¶ 31.

¶ 77. In my view, some of the language used in Figgs andWaukesha was overly broad. Some of the analysis in Waukesha was too sweeping. When the court of appeals followed that analysis in lock step for its decision in Johnson, it marched directly into a bed of quicksand. Close scrutiny of the statute and of theWaukesha opinion demonstrate why Johnson was incorrectly decided.

II

¶ 78. The legislation passed in 1963 was a direct response to the Holytz decision. It was intended to deal with tort claims against local governments, create a procedure for handling these tort claims, solidify the tort immunity that the court had recognized for certain discretionary governmental acts, prohibit suits against local governments for intentional torts of employees, preclude punitive damages against local governments in tort actions, and establish damage caps in government tort cases.

¶ 79. Subsection (3) of Wis. Stat. § 331.43 (1963-64) read:

No suit shall be brought against any political corporation, governmental subdivision or agency thereof for the intentional torts of its officers, officials, agents or employes nor shall any suit be brought against such fire company, corporation, subdivision or agency or against its officers, officials, agents or employes for acts done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions.

¶ 80. In subsection (3), the phrase "nor shall any suit be brought" refers to any suit in tort. It is inconceivable that the legislature intentionally precluded a vast array of suits not founded in tort in this tort claims statute, did so in the middle of a sentence, and did so without ever revealing that that was its intention. Certainly, the subsection was not interpreted to extend beyond tort suits until the Johnson case in 1996.

¶ 81. Renumbered subsection (4) of Wis. Stat. § 893.80 now reads:

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.

The legislature made no substantive changes in present subsection (4) over a 35 — year period. No critical language was added, and no critical language was deleted. It is improbable that the legislature, in passing a bill prepared by the highly regarded Legislative Council, intended in subsection (4) to wipe out remedies long available to litigants without changing statutory language and without alerting anyone of its objective.

¶ 82. The history of subsection (1) of Wis. Stat. § 893.80 is quite different. In 1978, the legislature repealed and recreated Wis. Stat. § 895.43(1), dropping the phrase "action founded in tort." Whether the legislature actually intended its new phrase "a claim or cause of action" to apply to all claims beyond tort claims is debatable. Nevertheless, the legislature deleted critical language from the subsection, and the resulting provision appears on its face to be much broader in scope than it was before. In addition, there is a clear rationale for requiring that a notice of claim be filed before suit is commenced against a local government: A notice gives the local government an opportunity to investigate the claim and resolve the dispute before becoming enmeshed in costly litigation. The 1978 legislation had the announced purpose of making uniform the notice procedures affecting local governments. Hence, there was good reason for the Waukesha court to interpret Wis. Stat. § 893.80(1) as applying to more than tort claims, reserving the issue of preliminary relief.

¶ 83. Thereafter, however, the Johnson court substantially extended the Waukesha decision. The Johnsons had argued that theWaukesha case was "precedentially binding only as to Subsection (1)." 207 Wis.2d at 349. The court replied that, "Given the [Waukesha] court's analysis . . . we question whether the decision may be so limited." Id. The court of appeals then gave three reasons why the analysis in Waukesha led it to interpret subsection (4) of Wis. Stat. § 893.80 the same as subsection (1).

¶ 84. First, the court said, "the supreme court found significant, if not controlling, the absence of a specific limitation to tort claims in Wis. Stat. § 893.80(1)." Id. at 350-51. Thus the court of appeals declared:

The same may be said for the "immunity" provisions of subsection (4); they do not now contain — nor have they ever contained — any such limitation. The subsection states, simply and plainly, that acts done in the exercise of the subdivision's discretionary functions are immune from "any suit."

Id. at 351.

¶ 85. The absence of language in Wis. Stat. § 893.80(4) explicitly limiting the suits to which the subsection applies is discussed above in ¶ 80. The context and history of the subsection suggest that the phrase "nor shall any suit be brought" is implicitly limited to suits in tort.

¶ 86. What the court of appeals failed to recognize in Johnson is that when it jettisoned the implicit limitation in subsection (4) to suits in tort, it also jettisoned the limitation to immunity for tort. Read literally, the subsection creates immunity for any acts done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions. This arguably precludes claims in contract.

¶ 87. If a literal reading of the subsection were correct, how could a person challenge in court a decision made by a local school board to name a public school after Richard Speck or Jeffrey Dahmer? Isn't the naming of a public school a legislative function? How could a person challenge in court a decision by the school board to non-renew all teachers who were left handed or had red hair? Isn't non-renewal a discretionary decision? How could a person challenge the legality of an ordinance passed by a city council, a questionable expenditure by a county board, or the arbitrary refusal of a local government body to grant a permit? Passing ordinances, spending public money, and granting or denying permits represent classic legislative or judicial functions. How could a person go to court to stop a continuing injury from the negligence or even intentional misconduct of a local government? One cannot read "No . . . suit may be brought" literally without stripping citizens of fundamental protections and inviting misconduct by local governments. One cannot read the language literally without producing absurd results never intended by the legislature in the 1978 law.

¶ 88. The Johnson court gave a second reason for interpreting subsection (4) as broadly as subsection (1). The court argued that "the immunity from any suit language of § 893.80(4), STATS., significant in itself, becomes even more so when considered in context." 207 Wis.2d at 351. The court contrasted the reference to intentional torts with the subsequent prohibition of "any suit" in the same sentence:

Not only is there, as we have just noted, no limiting language here, but in the preceding clause of the same subsection, the legislature made a specific reference to actions for intentional torts. . . . When the legislature uses different terms in a statute — particularly in the same section — we presume it intended the terms to have distinct meanings. We do not believe it would be reasonable to read a "torts-only" limitation into the "any suit" language of § 893.80(4).

Id.

¶ 89. There are several responses to this argument. At the time the subsection was enacted in 1963, a faithful construction of the subsection would have recognized a "torts-only" limitation to the "any suit" language because the language was part of a tort claims statute. The language was construed that way for more than 30 years. To construe the language differently in 1996 required the court to read the "torts-only" limitation out of the subsection, in effect overruling countless court decisions. This was contrary to the principle set forth in Cook v. Cook, 208 Wis.2d 166, 185-190, 560 N.W.2d 246 (1997), that the court of appeals may not overrule, modify or withdraw language from a previously published decision of the court of appeals. Johnson would have had to be decided differently if it had followed rather than preceded the Cook decision.

¶ 90. The three court of appeals decisions partially overruled in Waukesha serve to illustrate the point. In Kaiser v. City of Mauston, 99 Wis.2d 345, 299 N.W.2d 259 (Ct.App. 1980), the court of appeals affirmed a permanent injunction against the City of Mauston and its Lake Improvement District. The defendants were enjoined from giving effect to a lake rehabilitation plan created in part by the city council. The defendants contended that the suit was barred by a failure to comply with the notice provision of Wis. Stat. § 62.25(1), which was tied to then Wis. Stat. § 895.43(1). The court of appeals disagreed, and it upheld the injunction. Although this court overruled Kaiser on the notice of claim issue in Waukesha, it did not say that a circuit court could not issue an injunction against a city. The Johnson decision implies that the remedy employed in Kaiser has been eliminated.

¶ 91. In Harkness v. Palmyra-Eagle Sch. Dist., 157 Wis.2d 567, 460 N.W.2d 769 (Ct.App. 1990), a probationary teacher was not renewed by the school board. She sued for reinstatement and money damages, claiming that the school board had violated certain procedures established by statute. The court rejected her claim for money damages on grounds that the school district had immunity for discretionary acts, but the court ruled that Wis. Stat. § 893.80 did not bar her claim for reinstatement — non-monetary injunctive relief in the form of an order to reinstate her to her former teaching position. The court of appeals stated: "We conclude . . . that sec. 893.80(4), Stats., does not bar Harkness's claim for reinstatement." 157 Wis.2d at 580. This court never overruled that portion of theHarkness decision in Waukesha, but the Johnson decision appears to eliminate the remedy of a suit for reinstatement.

¶ 92. Nicolet v. Village of Fox Point, 177 Wis.2d 80, 501 N.W.2d 842 (Ct.App. 1993), was an action for declaratory judgment seeking confirmation that the plaintiffs owned certain land, and for injunctive relief. The suit was dismissed by the circuit court on grounds that the plaintiffs had failed to comply with the notice of claims statute. The court of appeals reversed, maintaining that some of the supreme court's pronouncements inWaukesha were dicta. The court said that "any holding to the contrary would render meaningless most attempts to gain timely, effective injunctive relief against governmental units." 177 Wis.2d at 89-90. The ruling permitted the lawsuit to go forward. Although the Waukesha case overruled the Nicolet holding on notice of claim, the Waukesha court never precluded injunctive relief against a municipality. Rather, the Waukesha case itself gave a green light to injunctive relief against a municipality. Thus, when the Johnson case held that injunctive relief may not be sought against a municipality, it effectively overruled both Nicolet and Waukesha.

¶ 93. The argument might be made that the court of appeals intended to prohibit injunctive relief against local governmenttorts but not against other local government action. But that would require a court to read into the statute a "torts-only" limitation on acts while reading out of the statute a "torts-only" limitation on suits.

¶ 94. The fallout from Johnson appeared almost immediately inSchmeling v. Phelps, 212 Wis.2d 898, 569 N.W.2d 784 (Ct.App. 1997). One of the questions in Schmeling was whether Wis. Stat. § 893.80(4) barred a declaratory judgment action against a county executive on an allegedly illegal veto. The court concluded that "a declaratory judgment action is not a 'suit . . . brought against' [Richard] Phelps or Dane County within the meaning of § 893.80(4), STATS. [The] action seeks neither money nor injunctive relief from Phelps or the county; they are named as parties only so that they can be heard on the question presented." 212 Wis.2d at 914-15.

¶ 95. The Schmeling court's conclusion that a declaratory judgment action is not barred by subsection (4) was correct; but the court was forced to dance around the Johnson court's interpretation of Wis. Stat. § 893.80(4) in a valiant effort to preserve declaratory judgment actions against local government. The court left open the question of what would have happened if a plaintiff had requested an injunction to block enforcement of an ordinance that a court had declared unlawful, or if a taxpayer had tried to stop a public expenditure that a court had ruled illegal. In Schmeling, the court was forced to identify specific statutes authorizing suit. It said these specific statutes took precedence over Wis. Stat. § 893.80(4). Suppose there had been no specific government — focused statutes authorizing suit — only general statutes describing procedural remedies? Would that mean that those remedies would not be available in a suit against a local government?

¶ 96. As it examined context, the Johnson court neglected to take account of the following language in Figgs:

[I]t is apparent that sec. 893.80(1)(b), Stats., requires a list, item by item, of the kinds of relief sought. One kind of relief sought might be, as here, money damages. In another case it might be a demand for relief by specific performance or by injunction. . . . [T]he statute provides for a method of securing relief against a city that may be different from or in addition to, damages (emphasis added).

121 Wis.2d at 52. Wouldn't it be pointless to require a party to file a notice that it intended to seek injunctive relief if it were never entitled to seek injunctive relief?

¶ 97. Two years before Johnson, the court of appeals relied on the Figgs case as authority to estop a school district from asserting a defense. Fritsch v. St. Croix Cent. Sch. Dist., 183 Wis.2d 336, 343, 515 N.W.2d 328 (Ct.App. 1994). The court said:

The purpose of § 893.80, STATS., is to afford the government an opportunity to compromise and settle the claim without litigation. Figgs v. Milwaukee, 121 Wis.2d 44, 53, 357 N.W.2d 548, 553 (1984). There is nothing in 893.80 to suggest that the legislature intended any different or additional purpose for this statute. Figgs, 121 Wis.2d at 53-54, 357 N.W.2d at 553.

The Johnson court reached a mistaken conclusion, in part, because it disregarded many years of precedent from its own court.

¶ 98. The Johnson court offered a third argument for its literal interpretation of Wis. Stat. § 893.80(4), namely that immunity provisions derive from public policy considerations. 207 Wis.2d at 352. It listed these considerations as follows: Public officers should not be unduly hampered or intimidated in the discharge of their functions by threat of lawsuit or personal liability. Courts should not pass judgment on the policy decisions of coordinate branches of government. The valuable time of public officials should not be drained by lawsuits. The sum total of these policy considerations comes close to the proposition that we should eliminate all court remedies against local governments because it is just too burdensome to hold governments accountable to the people.

¶ 99. In some ways, the Johnson case puts ordinary citizens in a worse position than they were before Holytz. There is no evidence the Wisconsin legislature intended that result. TheJohnson case was wrongly decided and under no circumstances should it be sanctified by this court as controlling law. It should be overruled.

III

¶ 100. This brings us to the facts of this case. They are restated here to report events and details that have been omitted from the majority opinion and to show why the County is a named defendant.

¶ 101. On May 16, 1996, Willow Creek Ranch filed a complaint against the Town of Shelby and La Crosse County. In Claim I of the complaint, Willow Creek sought a declaratory judgment, alleging that the Town of Shelby and La Crosse County had represented to Willow Creek that Willow Creek had the proper zoning for the operation of a game bird farm and that Willow Creek "relied on the Defendants' representation to its detriment." In Claim II, Willow Creek asked for an injunction to enjoin the Defendants from interfering in the operation of the game bird farm and from prosecuting Willow Creek for the operation of the farm. Early in the litigation, Willow Creek moved unsuccessfully for a temporary restraining order and then a temporary injunction.

¶ 102. The County and Town each answered the complaint, and both moved to dismiss. Willow Creek filed supporting affidavits and exhibits, and the County and Town also filed affidavits and exhibits. The filing of the supporting documents converted the motion to dismiss into a motion for summary judgment. In any event, La Crosse County explicitly moved for summary judgment on September 9, 1996, and the Town followed with its own motion on October 25, 1996. The Circuit Court of La Crosse County, Dennis G. Montabon, Judge, granted the motions for summary judgment and motions to dismiss on April 16, 1997.

¶ 103. Wisconsin Stat. § 802.08(2), provides that summary judgment "shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Summary judgment is a drastic remedy. It deprives the losing party of the opportunity for a trial or even an evidentiary hearing. Consequently, a motion for summary judgment initiates a search of the existing record, including the pleadings, to determine whether a claim has been stated. In ruling on a summary judgment motion, the court may consider all allegations contained in the pleadings plus the affidavits and other materials filed, in search of a claim.

¶ 104. Willow Creek made the following allegations in its pleadings and other materials. On a motion for summary judgment, in the absence of extraordinary circumstances, the court must accept all these allegations as true.

¶ 105. In October 1993, Willow Creek's vice president, Kevin Churchill, telephoned the La Crosse County Zoning and Land Information Office and asked whether Willow Creek could operate a game bird farm, with hunting activities, on its 115 — acre property in the Town of Shelby. An official at the La Crosse County Zoning Office told Churchill that La Crosse County would not object to a game bird operation and advised him to contact Jeffrey L. Brudos, chairman of the Town of Shelby, to see if the Town had any objections. The official said that if the Town had no objections, Willow Creek could operate a game bird farm. Churchill and Mary McLoone, president of Willow Creek, then telephoned Brudos and asked him whether a zoning change was required to operate a game bird farm, including hunting. Brudos told McLoone and Churchill that no zoning change was required.

¶ 106. Relying on these assurances, Willow Creek began work to obtain a license for a game bird farm from the DNR and to develop its property for the farm. Over the next 11 months, Willow Creek made building improvements, constructed pens, repaired wells, did electrical work, purchased birds, purchased and trained dogs, transferred land, conducted a survey, and paid accounting and legal fees to prepare for a September 1994 opening. It also obtained the DNR license. Willow Creek expended more than $340,000 on payroll and operating expenses and on capital investments before it opened the game bird farm.

¶ 107. On September 30, 1994, McLoone and Churchill met at the farm with Harlan Ruskell, retiring assessor for the Town of Shelby, and Drew Heiden, Ruskell's successor. Ruskell and Heiden evaluated the improvements to the property for tax purposes. After looking at the property, Heiden upgraded the classification of the land and "hiked the land value." A few days later, Willow Creek hosted an open house to show neighbors the new game bird farm.

¶ 108. The Willow Creek officers were optimistic about their initial success. In December 1994, Mary McLoone and Susan McLoone, another Willow Creek employee, contacted La Crosse County official Mike Weibel to discuss the possibility of building an office to handle the overflow of customers at Willow Creek Ranch.

¶ 109. Between October 1993 and June 1995, Willow Creek officers had several communications with the County and Town. At no point during this time did local officials inform Willow Creek that it needed a zoning change to operate a game bird farm.

¶ 110. On June 21, 1995, 20 months after the initial contact with the County and Town, a County official, Dan McDonald, called Mary McLoone to suggest that at some point Willow Creek should change its zoning from Exclusive Agricultural to Agricultural B. McDonald told McLoone that the County had been aware of the game bird farm for some time, but the County had not done anything because Willow Creek officials had been in contact with the County Zoning Office. McDonald said McLoone should speak again to Shelby Town Chairman Jeffrey Brudos. When McLoone made the call, Brudos stated that he did not think it was necessary for Willow Creek to change its zoning because it was his impression that Willow Creek's zoning was appropriate for what it was doing. Brudos said he would check into it and get back to McLoone.

¶ 111. Brudos did not get back to McLoone. In July and August, McLoone made seven telephone calls attempting to reach the Town Chairman. On the seventh call, Brudos told her that a zoning change would be necessary. McLoone promptly met with Dan McDonald, who told her that La Crosse County did not have a problem with rezoning the property.

¶ 112. In October 1995, Willow Creek hired a surveyor to secure a legal description of the property and set up a buffer zone between the hunting area and the nearest neighbors. It also invited members of the Town Board to visit the ranch. No one came. On November 6, 1995, Mary and Susan McLoone attended a Town Board meeting to inquire about rezoning procedure. Chairman Brudos told the McLoones to contact La Crosse County, and he informed them it would not be necessary to attend another Town Board meeting.

¶ 113. In November 1995, Willow Creek petitioned La Crosse County to rezone the property from Exclusive Agricultural to Agricultural B. Members of the La Crosse County Zoning Committee visited the game bird farm. The Zoning Committee then scheduled a meeting for December 4. On that day, Mary McLoone attended a session of the Town Board. Jeffrey Brudos informed her that she did not have to attend the meeting with the County Zoning Committee. The Town Clerk, Ted Ernst, corrected Brudos and advised McLoone that she should attend the meeting. She did, and no objectors appeared when Willow Creek's proposed zoning change was discussed. Four days later, however, La Crosse County, through Mike Weibel, informed McLoone that Willow Creek would have to cease its business until the zoning issue was resolved.

¶ 114. Brudos accused Willow Creek of attempting to pull a fast one by attending the December 4 meeting with the County Zoning Committee after he said it was not necessary. In subsequent meetings, Brudos attempted to mislead Willow Creek and to stifle persons who wished to speak on Willow Creek's behalf.

¶ 115. The months of January, February, and March 1996 saw considerable maneuvering and negotiation among the parties. Eventually, on March 21, the La Crosse County Board voted to grant Willow Creek's petition for rezoning from Exclusive Agricultural to Agricultural B. This zoning change was vetoed by the Town of Shelby. Jeffrey Brudos voted to veto the zoning change, culminating several months of opposition to any zoning modification that would permit the game bird farm to operate.

¶ 116. In its affidavits, Willow Creek asserted that Gary Wickus, a neighbor and opponent of the game bird farm, spoke at a meeting of the La Crosse County Zoning Committee on January 29, 1996, and said that he had been calling La Crosse County since 1993 to complain about the proposed game farm, thereby confirming La Crosse County's longstanding knowledge of the Willow Creek project. Willow Creek also alleged that at a meeting of the La Crosse County Board on February 15, 1996, Jeff Bluske, Director of the La Crosse County Zoning and Land Information Office, admitted that Willow Creek had informed La Crosse County about Willow Creek's intention to open a game farm. Bluske explained that La Crosse County had given its approval because the County's definition of a game farm did not include hunting. Bluske's sworn affidavit does not disavow these representations.

¶ 117. In light of these allegations, the circuit court acknowledged that "there is a disputed fact as to whether officials of the County and Town governments told the plaintiff that it complied with current zoning law." The court denied summary judgment on that issue. Nonetheless, the court dismissed the suit, asserting that: (1) erroneous acts of municipal officers do not afford a basis to estop a municipality from enforcing a zoning ordinance enacted pursuant to the police power; and (2) Wis. Stat. § 893.80 "provides immunity to municipal governments for their 'discretionary' actions relating to all causes of action, including injunctive relief and estoppel claims." As authority for the second proposition, the court cited Johnson andWaukesha. Id. at 12. The court candidly acknowledged that it was asked to delay its decision until the opinion in Johnson was ordered published, so that the case could be cited as precedent.Id. at 3.

¶ 118. When the court of appeals affirmed the circuit court, it stated:

Willow Creek . . . asserts that the Town and County are not immune under § 893.80(4), STATS., from claims for equitable relief. We addressed the scope of § 893.80(4), as it relates to equitable relief in Johnson v. City of Edgerton. . . . We concluded that the public policy considerations underlying § 893.80(4) "apply just as earnestly to an equitable action seeking injunctive relief against the agency or the official as they do to one for the recovery of money." . . . [S]imilar to Johnson, this is a negligence claim in which the plaintiffs are seeking equitable relief. Therefore, we are satisfied that we can apply the holding in Johnson to this case. . . .

In sum, because we have concluded that governmental immunity shields the Town and County from suits for equitable relief, we need not address the merits of Willow Creek's estoppel argument regarding Budros [sic] alleged misrepresentation.

Willow Creek, 224 Wis.2d at 283-85.

¶ 119. There can be no doubt that Johnson played a pivotal role in the decisions of both the circuit court and the court of appeals. This court has held that a complaint fails to state a claim upon which relief can be granted if the defendant is immune from liability for the activity alleged in the complaint. C.L. v. Olson, 143 Wis.2d 701, 706-07, 422 N.W.2d 614 (1988); Energy Complexes v. Eau Claire County, 152 Wis.2d 453, 463, 449 N.W.2d 35 (1989). The mistaken law in Johnson must have influenced judicial thinking.

IV

¶ 120. The law on governmental immunity has become so muddled that it no longer provides reasonable guidance about when local governments may be sued, what remedies are available to persons claiming injury, and the circumstances in which local governments and their employees may be held liable. At the center of this confusion is Johnson v. City of Edgerton. Hence, as the first step to restore coherence to the law, the Johnson case should be overruled, and this court should assert unequivocally that Wis. Stat. § 893.80(4) applies only to tort suits for money damages.

¶ 121. Recent interpretations of Wis. Stat. § 893.80(1) illuminate the problems ahead for § 893.80(4). As noted above, § 893.80(1), the notice of claim statute, has been held to apply to all causes of action, not just those in tort and not just those for money damages. Waukesha, 184 Wis.2d at 191; City of Racine v. Waste Facility Siting Bd., 216 Wis.2d 616, 622, 575 N.W.2d 712 (1998). In the Racine case, the court held that the notice requirement even applies to the filing of a counterclaim or cross-claim seeking a declaratory judgment. Id. at 620. However, in Auchinleck v. Town of LaGrange, 200 Wis.2d 585, 597, 547 N.W.2d 587 (1996), the court held unanimously that actions seeking to enforce Wisconsin's open meetings and open records laws are exempt from § 893.80(1). Moreover, in Gillen v. City of Neenah, 219 Wis.2d 806, 580 N.W.2d 628 (1998), the court sided with plaintiffs who sued three defendants, including the City of Neenah, seeking declaratory and injunctive relief. The court held that the plaintiffs could bring a suit under Wis. Stat. § 30.294 to abate a nuisance, without first filing a notice of claim. The court said:

We conclude that there is an exception to Wis. Stat. § 893.80(1)(b) where the plaintiffs' claims are brought pursuant to the public trust doctrine under Wis. Stat. § 30.294, which provides injunctive relief as a specific enforcement remedy. It is irrelevant that the requested injunction in this case was not against the City of Neenah.

Id. at 826.

¶ 122. In a concurring opinion in Gillen, Chief Justice Abrahamson asserted that "the rationale of the . . . opinion . . . directly contradicts the Waukesha case." Id. at 836. "Waukesha made clear that unless preliminary injunctive relief is requested, a notice of claim must be filed with the defendant city. The Waukesha court held that Wis. Stat. § 893.80(1)(b) applies to an action against a city for injunctive relief." Id. at 838.

¶ 123. The inconsistent interpretation of Wis. Stat. § 893.80(1) is a reliable precursor of what lies ahead for § 893.80(4) because the analysis of subsection (1) in Waukesha was applied by the Johnson court to subsection (4). Looking forward, this court's literal reading of subsection (1) in Racine, making it apply to a counterclaim seeking a declaratory judgment, undermines the validity of Schmeling and raises questions about the application of subsection (4) when a party joins a prayer for injunctive relief with an action for declaratory judgment. On the other hand, the Gillen case recognizes once again that litigants may seek injunctions against local governments.

¶ 124. This court's ratification of Johnson in the present case is likely to open the floodgates of local government defenses. In the future, every remedy that a litigant seeks to utilize in a suit against a local government may be challenged to test the reach of the Johnson decision. By contrast, overrulingJohnson would confine subsection (4) to its original objective and put Willow Creek's claims in a new light.

V

¶ 125. Overruling Johnson is only part of the work necessary to clarify the law of governmental immunity. This court should reexamine the circumstances in which local governments and local officials may be liable in tort.

¶ 126. Governmental immunity was abrogated in Holytz. It was not restored in the 1963 legislation or in subsequent legislation. Wisconsin Stat. § 893.80(3) proves this point. Subsection (3) limits the amount recoverable "for any damages, injuries or death in any action founded on tort" against local governments or their officers, agents or employes "for acts done in their official capacity or in the course of their agency or employment" (emphasis added). The plain implication of subsection (3) is that local governments and local officials may be sued in tort for acts done in their official capacity or in the course of their employment or agency.

¶ 127. Subsection (4) takes away part of what is granted in subsection (3). It provides that local governments may not be sued directly for the intentional torts of their officers, officials, agents, or employees, "nor may any suit be brought against [these potential defendants] for acts done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions."

¶ 128. In summary, local governments may be sued for non-intentional torts committed outside "the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions," even if the acts amounting to torts are done in an official capacity. The breach of a ministerial duty resulting in damages is one of the torts for which local governments and local government officials may be sued.

¶ 129. In tort cases, a line must separate actions taken in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions and are immune from actions taken in an official capacity or in the course of government employment or agency that are not immune. How do we find and identify this line? As early as 1867, this court stated: "It is sometimes difficult to draw the exact line of distinction between ministerial and discretionary or judicial authority. The same officer may act sometimes in one capacity, and sometimes in the other." Druecker v. Saloman, 21 Wis. 628, 637 (1867).

¶ 130. The majority opinion outlines four "exceptions" to government immunity under Wis. Stat. § 893.80(4). Majority op. at ¶ 26. The word "exception" is curious with respect to "ministerial duties" because there is an assumption that discretionary actions of the sort immunized in § 893.80(4) and ministerial duties do not overlap. Ministerial duties, which are essentially non-discretionary, fall logically on one side of the line; discretionary acts of a legislative or judicial character fall on the other.

¶ 131. In contrast, actions that are "malicious, willful, and intentional" and actions or inactions concerning a "known danger"may fall on either side of the line. As a result, these actions may truly be court — created "exceptions" to the immunity recognized in Wis. Stat. § 893.80(4) when they entail discretion.

¶ 132. What is not clear is whether the four "exceptions" that have been created under Wis. Stat. § 893.80(4) to authorize money damages for torts are the only exceptions that will ever be recognized by Wisconsin courts and whether these exceptions should be treated the same when the relief sought does not involve money damages.

MINISTERIAL DUTIES

¶ 133. Assuming that ministerial duties are separate from discretionary functions, nothing in Wis. Stat. § 893.80(4) stands as an obstacle to a suit demanding relief for breach of a ministerial duty unless the breach is intentional. A local government may have defenses against a suit for negligent breach of a ministerial duty, but these defenses are not found in subsection (4). They must be grounded in some other source of law.

¶ 134. In this case, Willow Creek contends that the Town of Shelby and La Crosse County represented to Willow Creek that Willow Creek had the proper zoning for a game bird farm and that Willow Creek relied on these representations to its detriment. The initial question is whether this alleged conduct by local officials breached a ministerial duty.

¶ 135. The frequently cited test for ministerial duty is derived from Lister v. Board of Regents, 72 Wis.2d 282, 300-301, 240 N.W.2d 610 (1976):

The most generally recognized exception to the rule of immunity is that an officer is liable for damages resulting from his negligent performance of a purely ministerial duty. A public officer's duty is ministerial only when it 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.

¶ 136. The Lister language comes from Meyer v. Carman, 271 Wis. 329, 332, 73 N.W.2d 514 (1955), in which the court quoted from 18 McQuillin, Municipal Corporations (3d ed.), § 53.33:

Official action . . . is ministerial when it is absolute, certain, and imperative, involving merely the execution of a set task, and when the law which imposes it prescribes and defines the time, mode, and occasion for its performance with such certainty that nothing remains for judgment or discretion.

It must be noted that McQuillin's commentary has been updated. The revised third edition drops § 53.33 and comments in new § 53.04.10 that:

Stating the reasons for the discretionary — ministerial distinction is much easier than stating the rule. . . . [T]he difference between "discretionary" and "ministerial" is artificial. An act is said to be discretionary when the officer must exercise some judgment in determining whether and how to perform an act. The problem is that "[i]t would be difficult to conceive of any official act, no matter how directly ministerial, that did not admit of some discretion in the manner of its performance, even if it involved only the driving of a nail." (quoted source omitted)

¶ 137. The court last dealt with ministerial duty in Kierstyn v. Racine Unified Sch. Dist., 228 Wis.2d 81, 596 N.W.2d 417 (1999). The case involved a "benefits specialist" for the Racine School District who allegedly gave John and Judith Kierstyn incorrect information about state disability benefits for Mrs. Kierstyn, costing Mr. Kierstyn hundreds of dollars per month in survivor benefits. This court upheld the circuit court's summary judgment against the plaintiff on grounds of public officer immunity.

¶ 138. The court noted that the benefits specialist provided general information about employment benefits, including union benefits. "He was not, however, an agent of the [Wisconsin Retirement System] and could not authoritatively represent to District employees what WRS benefits they were entitled to receive." Id. at 85.

¶ 139. Discussing ministerial duty, the court quoted the test from Lister, then concluded that the benefits specialist "was under no duty that was 'absolute, certain and imperative' which 'impose[d], prescribe[d] and define[d] the time, mode and occasion for its performance.'" Id. at 91. It said that Kierstyn had pointed to no statutory obligation to advise school district employees of their state disability benefits. Id.

¶ 140. Kierstyn argued that the disability benefits statute was unambiguous. The court replied:

We cannot accept Kierstyn's argument that an unambiguous statute creates a ministerial duty. As noted above, a public officer's duty must arise from some obligation created by law. The District was under no legal obligation to hire a benefits specialist. In like fashion, [the benefits specialist] was under no legal obligation to offer advice about WRS benefits to employees of the District.

Id. at 92.

¶ 141. Kierstyn also argued that even if the benefits specialist were under no ministerial duty to provide the disability information, his choosing to do so created a ministerial duty to provide correct information. Id. at 92-93. The court acknowledged several cases that held that once public officers choose in their discretion to act, they are bound by a ministerial duty to act in a certain manner. The court thereafter distinguished these cases from the Kierstyn facts.

¶ 142. The present case is different from Kierstyn. Accepting Willow Creek's allegations of fact as true, Willow Creek telephoned the La Crosse County Zoning and Land Information Office to ask specifically whether it could operate a game bird farm in the Town of Shelby. The Zoning Office is the most authoritative source of information about zoning in La Crosse County. There is no higher authority. The office exists to administer the county zoning ordinance on a daily basis. It has a duty to answer questions about and make determinations under the zoning ordinance. It does much more than offer advice. The office gave its approval to Willow Creek to operate a game bird farm.

¶ 143. The zoning ordinance was either ambiguous or unambiguous. If we assume the zoning ordinance was clear and unambiguous and that it did not permit a game bird farm to operate on land zoned Exclusive Agricultural, zoning officials had a ministerial duty to inform Willow Creek that it could not operate a game bird farm on its property without first obtaining a zoning change. Instead, the authoritative interpreters of the ordinance gave their approval for the game bird farm and watched the farm develop and operate, knowing that Willow Creek was relying on their representation of approval. Twenty months later they decided to enforce the ordinance.

¶ 144. If we assume the zoning ordinance was ambiguous, County officials should not have answered Willow Creek's zoning inquiries as they did. They could have asked that Willow Creek put its question in writing. They could have asked for more information or more time. They could have raised doubts and denied approval, or raised doubts and suggested a zoning change. Instead, they gave approval. When these County officials later learned of opposition to the farm, as confirmed by Gary Wickus, they could have taken a second look at the zoning issue and warned Willow Creek of a potential problem. Instead, they did nothing. For months and months, they did not take any steps to address the issue. Twenty months after being consulted, nine months after the game bird farm had opened, and six months after Willow Creek had come to the County again to discuss building an office, the zoning officials suggested that Willow Creek seek a zoning change. Although County zoning officials at first offered encouragement, they ultimately opposed the change.

¶ 145. One might argue that La Crosse County zoning officials had the discretion in 1993 to interpret the ordinance any way they wanted. Once they made their decision, however, the officials were not free to reverse their position and attempt to enforce an ordinance they had earlier informed Willow Creek was not a problem, particularly after waiting so long. The real world cannot function if citizens are not able to rely on the individualized decisions of authoritative government officials. If authoritative government officials are free to make decisions upon which individuals are expected to rely and then are permitted to disregard those individualized decisions, at any time, without consequence to themselves or their governments, there will be no confidence in our governmental institutions and no stability in our economy or the law.

¶ 146. Jeffrey Brudos was the elected chairman of the Town of Shelby. He was the person to whom the County referred Willow Creek for reaction. Told of Willow Creek's plans, Brudos presented no objections and said a zoning change was not necessary. Many months later he repeated that view. Subsequently, Brudos altered his position and worked to prevent any zoning change, including the adoption of reasonable conditions that would allow Willow Creek to operate.

¶ 147. Town of Shelby officials reassessed the Willow Creek property so that additional taxes could be collected, based upon improvements implicitly approved by Shelby's town chairman. The record does not reveal any building permits, but given the extent of construction, well repair, and electrical work, the town may have issued building permits to authorize the improvements it later assessed and taxed.

¶ 148. Chairman Brudos had the ability to deliver what he had promised. He not only failed to deliver but also failed to mitigate the harsh effect of his change in position. He waged a campaign to obstruct the zoning change he once asserted was not necessary. It would be difficult to argue that Brudos was not acting in an official capacity when he informed Willow Creek that a zoning change was not needed. But if he were acting outside his official capacity, he would not enjoy governmental immunity. The circuit court did not decide whether Chairman Brudos was acting in his official capacity when he spoke to Willow Creek.

¶ 149. In my view, Willow Creek's allegations state a claim that County zoning officials and the Shelby Town Chairman breached ministerial duties. A breach of ministerial duty is not immune from suit under Wis. Stat. § 893.80(4). Because Willow Creek presented a valid claim in tort, its suit should not have been dismissed.

SPECIAL RELATIONSHIP

¶ 150. There are several theories of municipal liability. McQuillin's The Law of Municipal Corporations (3rd ed. 1993), § 53.04.25, discusses the "public duty rule and the special relationship exception." McQuillin states:

The public duty rule provides that where a municipality has a duty to the general public, as opposed to a particular individual, breach of that duty does not result in tort liability. The rule protects municipalities from liability for failure to adequately enforce general laws and regulations, which were intended to benefit the community as a whole (emphasis added).

¶ 151. This court rejected the "public duty rule" in Coffey v. City of Milwaukee, 74 Wis.2d 526, 536-37, 247 N.W.2d 132 (1976), because it was too narrow. The court explained that when Holytz abrogated the immunity for local government torts, it effected a broad abrogation, not a narrow abrogation that applied only to persons with whom the local government was in privity.

¶ 152. Nonetheless, McQuillin's description of the special relationship exception to the public duty rule is useful because it is eerily descriptive of the factors at play in this case. McQuillin states:

The public duty rule does not protect a municipality where there was a "special relationship" between a public official and a particular individual that gave rise to a duty to that individual separate from the official's duty to the general public. . . . Special duties can be grounded in reliance, dependence, or the creation by the public entity of a known risk. Courts have identified a variety of criteria which help identify a special relationship. These criteria include the following: direct contact between municipal agents and the plaintiff; an assumption by the municipality, through promises or actions, of an affirmative duty to act on the plaintiff's behalf; knowledge by the municipal agent that inaction could lead to harm; the plaintiff's justifiable reliance on the municipal agent, occurrence of the

injury while the plaintiff is under the direct control of municipal agents, municipal action that increases the risk of harm, and the existence of a statute that imposes a duty to a narrow class of individuals rather than to the public at large.

Id. at 166.

¶ 153. In this case, there was a "special relationship" between Willow Creek and both the County zoning officials and the Shelby Town Chairman. Willow Creek went to these authorities to ask a specific question related to their core duties. They gave Willow Creek an answer. They knew that Willow Creek would rely on their representations and that reliance could lead to economic harm if their representations were wrong. Willow Creek's officers assert unequivocally that they would not have made the investment they did if they had not had official approval.

¶ 154. This court should adopt a "special relationship" rule for situations in which government actions or inactions do not constitute ministerial duties per se but the development of a "special relationship" has created a duty to perform in a specific manner.

ESTOPPEL

¶ 155. Willow Creek also had a claim in equitable estoppel.

¶ 156. Justice Bablitch dissented in the Kierstyn case, 228 Wis.2d at 100-105, asserting that "if a public officer or employee chooses, in his or her discretion, to undertake a task, he or she may have a ministerial duty to carry out that task in accord with given rules or statutes." Id. at 101. He cited Chart v. Dvorak, 57 Wis.2d 92, 100-01, 203 N.W.2d 673 (1973) (relying on Firkus v. Rombalski, 25 Wis.2d 352, 130 N.W.2d 835 (1964)).

¶ 157. In Firkus, an injured driver sued a municipality for failing to restore a stop sign at an intersection after the municipality learned that the sign had been removed by vandals. The circuit court ruled that the town "was charged with the duty of maintaining the stop signs so as to avoid a trap for motorists." 25 Wis.2d at 358. This court upheld the circuit court, observing that:

The town had no affirmative duty to erect the sign in the first instance, but having done so it was incumbent upon it to properly maintain the sign as a safety precaution to the traveling public which has a right to rely on its presence. . . .

The potentiality of a dangerous situation is greatly increased by the failure to maintain warnings upon which the public has come to rely. It is the creation of the right of reliance and its protection which is the basis of the duty. This is not unlike the doctrine of equitable estoppel in the field of contracts (emphasis added).

Id. at 358-59.

¶ 158. The majority concedes that municipalities are not wholly immune from the doctrine of equitable estoppel. Majority op. at ¶ 49, citing City of Milwaukee v. Milwaukee County, 27 Wis.2d 53, 66, 133 N.W.2d 393 (1965). Yet, the circuit court here ruled otherwise, saying that Wis. Stat. § 893.80(4) "provides immunity to municipal governments for their 'discretionary' actions relating to all causes of action, including . . . estoppel claims." The circuit court cited Johnson and Waukesha as authority. The court of appeals never addressed the estoppel issue.

¶ 159. This court cannot now assert that local governments are not wholly immune from estoppel claims without repudiating or at least explaining the Johnson case. The majority skips over this inconsistency, stating that 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." Majority op. at ¶ 49.

¶ 160. This statement has a history. In 1963, Justice George Currie wrote a concurring opinion in Schober v. Milwaukee, 18 Wis.2d 591, 598, 119 N.W.2d 316 (1963), in which he stated: "A municipality should not be precluded by the acts of any municipal officers from enforcing any ordinance enacted pursuant to the police power for the promotion of the general welfare." During the next term, Currie became the chief justice. In Milwaukee v. Milwaukee Amusement, Inc., 22 Wis.2d 240, 253, 125 N.W.2d 625 (1964), he wrote that, "Estoppel will not lie against a municipality so as to bar it from enforcing an ordinance enacted pursuant to the police power," citing his concurring opinion inSchober. Two years later in Milwaukee v. Leavitt, 31 Wis.2d 72, 76-77, 142 N.W.2d 169 (1966), he reiterated that:

While municipal and other government units are not wholly immune from application of the doctrine of equitable estoppel, this court is firmly committed to the principle that "estoppel will not lie against a municipality so as to bar it from enforcing an ordinance enacted pursuant to the police power."

The principal authorities cited were Justice Currie's opinion inMilwaukee Amusement and his concurrence in Schober.

¶ 161. In Town of Richmond v. Murdock, 70 Wis.2d 642, 653-54, 235 N.W.2d 497 (1975), the Currie language was quoted again in the text and in a footnote. But this citation came almost as an afterthought. The case involved the operation of a commercial enterprise known as Kentwood Farm on land zoned agricultural. The commercial enterprise was developed after a comprehensive zoning ordinance had been enacted. After an evidentiary hearing, the circuit court issued an injunction to stop the operation. It rejected an estoppel claim by the defendant that the defendant had been told by the town board that "nothing in the ordinance" prohibited the planned use of the land. The circuit court noted that there was nothing in the town board minutes to support the defendant's contention. The court specifically found that the evidence did not support the contention that such a statement was made by the town board. The defendant did not prove the facts necessary for estoppel. The circuit court decided the estoppel issue on the merits.

¶ 162. In Snyder v. Waukesha County Zoning Board, 74 Wis.2d 468, 247 N.W.2d 98 (1976), this court was asked to approve a use variance for a porch after the variance had been denied by the Waukesha County Zoning Board and the circuit court. Among his arguments, Snyder contended that he obtained a building permit for an addition to his house. A year later he decided to include a porch, which was not authorized by the permit. A building inspector told him to go ahead with construction and the inspector would take care of getting the permit. In a later discussion, the inspector had "an honest misunderstanding" as to how close the porch would be to the lot line, and so he again gave Snyder and his builder approval to go ahead. Snyder contended that he met the criteria for a variance because he did not himself create the hardship that prompted him to seek relief. He argued that the building inspector had created the hardship. The court replied that, "To allow this contention would constitute estoppel of the municipality from enforcing its zoning ordinance." Id. at 476.

The rule of law in this state is clear that no such estoppel may arise against a municipality for the unauthorized acts of its officers. Town of Richmond v. Murdock . . . Milwaukee v. Leavitt. . . . Even if the

inspector issued a building permit, such a permit would have been void as issued for the structure which is forbidden by the ordinance. . . . [T]he mere statements or assurances of the building inspector cannot confer such a right. The appellant is charged with knowledge of the zoning ordinance.

Id. at 476-77. Significantly, the court inserted the phrase "unauthorized acts" of its officers into its test. It also stated that Snyder was charged with knowledge of the zoning ordinance.

¶ 163. Here, the La Crosse County zoning officials were fully authorized to interpret the zoning ordinance. They made statements to Willow Creek, but they also must have had internal discussions as they learned of opposition to the game bird farm and as time passed. Still, they did nothing. Willow Creek cannot be expected to have had more knowledge of the ordinance than the experts who administered the ordinance.

¶ 164. Both the zoning officials and the town chairman may testify that they never said or did what is alleged, or that they had an honest misunderstanding of what Willow Creek had in mind. But that possibility is of no consequence on a motion for summary judgment where Willow Creek alleged that these officials understood what they were doing.

¶ 165. In my view, if Willow Creek is able to prove its allegations, it should be able to estop the County from enforcing the zoning ordinance. See Russell Dairy Stores v. Chippewa Falls, 272 Wis. 138, 74 N.W.2d 759 (1956).

¶ 166. An estoppel is a rule of substantive law that precludes a party from taking a particular legal position because of some impediment or bar recognized by the law. One example is equitable estoppel. Equitable estoppel requires action or nonaction by one party that induces reliance by another party to the other party's detriment. The reliance may play out in action or nonaction, and the reliance must be reasonable and justifiable.

¶ 167. Equitable estoppel is not as readily available against a governmental unit as it is against a private party. It is, though, available as a defense against the government "if the government's conduct would work a serious injustice and if the public's interest would not be unduly harmed by the imposition of estoppel." Hence, to secure equitable estoppel against the government, a person must show, by clear and convincing evidence, that three facts are present: (1) action or nonaction which has induced, (2) reliance by a person, and (3) to the person's detriment. Thereafter, the person must persuade the court to determine that the injustice that might be caused if the estoppel is not applied outweighs the public interests at stake if the estoppel is applied.

¶ 168. This discussion is academic if Willow Creek and others similarly situated may never bring a suit for equitable estoppel against a local government under Wis. Stat. § 893.80(4), as the circuit court determined. Because the circuit court decision was wrong, there must be fact finding so that the circuit court can attempt to strike the balance described in Department of Revenue v. Moebius Printing Co., 89 Wis.2d 610, 638, 279 N.W.2d 213 (1979). That would require a remand in this case.

¶ 169. In a future hearing, Willow Creek might try to estop a forfeiture action, using estoppel almost like an entrapment defense, or it might try to estop a county injunction on equitable grounds. See Forest County v. Goode, 219 Wis.2d 654, 579 N.W.2d 715 (1998). Willow Creek might also attempt to estop the local government from claiming statutory defenses in a traditional tort suit for damages.

¶ 170. This dissent does not seek to determine the ultimate outcome of this dispute. Local officials may win their case on the facts.

¶ 171. What local officials may not do is engage in a lengthy course of conduct that induces reasonable reliance and causes great detriment, and then expect to wash their hands and walk away without consequence. Because the majority believes otherwise, I dissent.

¶ 172. I am authorized to state that JUSTICE WILLIAM A. BABLITCH and JUSTICE N. PATRICK CROOKS join this dissenting opinion.