by Allison Arends
Keith Johnson v. Washburn County and Town of Spooner
(Wisconsin Court of Appeals, February 17, 2010)
In Wisconsin, state law provides towns (townships) with a role in the county zoning process. Under WIS. STAT. § 59.69(5)(e)3. if a town affected by a proposed rezoning disapproves of the proposed amendment, the town board of the town may file a certified copy of the resolution adopted by the board disapproving of the petition with the [county zoning] agency before, at or within 10 days after the public hearing.
The Johnsons owned property in the Town of Spooner in Washburn County. In an attempt to rezone their property from forestry classification to planned unit development, the Johnsons filed a rezoning petition with Washburn County. The County zoning administrator sent a formal two page document to the town board requesting the town’s recommendation whether to approve or deny the petition (as required by Wisconsin law). If the recommendation was to deny the petition, such denial must be made via a “certified copy of a resolution adopted by the town board” as required by WIS. STAT. 59.69(5)(e)6. The document provided spaces for the board to submit (1) their decision to recommend approval or denial of the petition (2) an explanation of that decision and (3) the signatures of the town chairman, supervisors, and clerk. The completed document was returned with only the word “denial” in the space for the recommendation and the signatures of the town chairman and two town supervisors, and countersigned by the town clerk. Although there was no indication of when or where the hearing was held, the town clerk dated the document July 10, 2007.
On September 18, 2007 the County approved the Johnson’s petition by adopting an amendatory ordinance over the Town’s denial. The Town responded by passing a formal resolution vetoing the County’s amended ordinance. As a result the zoning administrator notified the Johnson’s that their property would remain zoned forestry because the Town’s action, “effectively invalidated the ordinance amendment.”
The district court found,” the written submission to the zoning committee proper documentation of a town resolution disapproving the requested zoning change…” The Johnson’s appealed arguing that the July 10th denial did not constitute a certified copy of a resolution adopted by the town board, and that the vetoing of the County’s amendatory ordinance was irrelevant under WIS STAT 50.69(5)(e)6.
The question presented to the Court of Appeals was whether the form upon which the Town submitted its July 10 recommendation to the County constituted a certified copy of a resolution adopted by the town board under WIS. STAT. § 59.69(5)(e)3. The Court of Appeals concluded that it did not. “If the Town wished to object to the Johnsons’ petition, it was required to do so by passing a formal resolution, as it later did when disapproving the County’s amendatory ordinance.” Although the legislature intended the town board “to serve as a political check on the otherwise unfettered discretion of the county board in wielding its legislative zoning power,” the town board performs its function as a political check only by certifying to the county that its denial was considered at a properly-noticed public meeting at which a resolution was introduced and carried. Nothing in the record assures this occurred.
The court went on to note, “An amendatory ordinance is effective on passage if it makes only the change sought in the petition and if the petition was not approved by the town board pursuant to WIS STAT 59.69.” Therefore because the court found the town’s denial to be an improper resolution, the court decided that on remand, the circuit court would have to determine whether the amendatory ordinance complied with the requirements pursuant to WIS. STAT.59.69(5)(e)6.