A group of Osceola citizens and river advocates have filed an appeal to the Wisconsin Supreme Court over a four-story apartment building proposed on the river bluff. Last month, the state Court of Appeals overturned a local court decision that halted the project, and the plaintiffs are now asking the state’s highest court to review it.

There are no guarantees the Supreme Court will consider the case, as it has the option to decline hearing it and letting the appeals court decision stand. If taken up by the state’s highest court, it could be an early test of on a new law that limits who can sue to stop housing development projects in Wisconsin.

The plaintiffs seeking to stop the proposed apartment building include several neighbors, as well as the nonprofit St. Croix Scenic Coalition. In their appeal filing, they noted their challenge could set precedent for how the new law will be interpreted.

“The heart of this case is the interpretation and application of a new law,” they wrote. “This is a novel issue – the law has not yet been addressed by this Court and this case gives the Court an opportunity to do so.”

The request for an appeal hinges on a couple key issues the plaintiffs called out in the Court of Appeals decision. A big one is whether the new state law that limits who can sue to stop such projects was truly intended to prevent people with such specific concerns from seeking legal review.

Legislation limited lawsuits

“Legal standing” is the technical term for whether a person or organization is qualified to file a lawsuit against someone or something else — like a group of citizens and a local government, respectively.

In May 2023, in the middle of the Osceola Bluffs review by the village board, as some local citizens were organizing to oppose the project, the state legislature passed the bill that has now called into question the citizens’ legal standing. Assembly Bill 266 was part of a package of bills passed that spring and summer, promoted as clearing hurdles for new housing in the state, which has a shortage of affordable units.

Reducing legal challenges was seen as one way to expand affordable housing, which often receives the most opposition from neighbors. The legislation was primarily supported by the real estate and development industries, while also being praised by some affordable housing advocates.

The Wisconsin Court of Appeals said the new rules about who can sue meant the plaintiffs in Osceola were disqualified. Any merit to their concerns about how the development proposal was considered and approved by the village board and other commissions thus can’t be considered.

Reversing river protections

The plaintiffs say the Court of Appeals’ interpretation would effectively render toothless a previous act of the legislature, N.R. 118, the law created in 1980 to put state protections in place along the Wild and Scenic St. Croix River.

“The requirements of N.R. 118 exist for good reason and the violation of the requirements is undeniable harm,” the plaintiffs argue. “While this harm has not happened yet because the building has not yet been built, there is no doubt that it will happen. The harm is imminent. The Court of Appeals interpretation of [legislation limiting standing] is too narrow and renders N.R. 118 unenforceable.”

The issue has statewide significance, project opponents say. If the Court of Appeals’ interpretation of the new law is allowed to stand, it would effectively remove all regulation of community impacts of development projects across Wisconsin.

“[The] Court of Appeals interprets the statute so narrowly that development projects are effectively insulated from review,” their filing reads. “No neighbor could ever have standing to challenge the project because harm to their property is deemed merely a possibility until after the building has been built, at which point it is too late.”

The plaintiffs filed their notice of appeal on Dec. 5, with no information available yet about the timeline for response and consideration by the Supreme Court.