Category: Wisconsin courts

Declaratory judgment not appropriate avenue to appeal rezoning decision. Landowner gets second bite at appeal anyway.

Gary Taylor 1 Comment

By Gary Taylor

Dyersville Ready Mix, Inc., dba BARD Materials v. Iowa County (WI) Board of Supervisors and Iowa County Planning and Zoning Committee

Wisconsin Court of Appeals, October 20, 2022

In October 2019, BARD submitted an application to the Iowa County Planning and Zoning Committee, seeking to rezone its property from A-1 Agricultural to AB-1 Agri-Business to allow BARD to apply for a conditional use permit to convert its property from preserved agricultural land to a quarry.  The Town Board voted to oppose BARD’s rezoning application because it was inconsistent with its comprehensive plan. The Iowa County Planning and Zoning Committee then voted to recommend denial of the application for the same reason. The Iowa County Board ultimately voted to deny BARD’s application. [Note: this sequence of events doesn’t make sense to me, but I’m just repeating what I read].  BARD then commenced this action challenging the denial of its application. BARD labelled its action, and specifically sought, a declaratory judgment, arguing that, as a matter of law, it was entitled to the rezoning because it satisfied all of the criteria for rezoning its property. The Town moved for judgment on the pleadings, and the County moved to dismiss for failure to state a claim, arguing that declaratory judgment was not the appropriate remedy. They argued, among other things, that BARD’s exclusive remedy to challenge the denial of its rezoning application was by certiorari. The circuit court denied both motions. The parties then filed competing motions for summary judgment.  The circuit court granted summary judgment to BARD and issued a declaratory judgment that Bard is entitled to rezoning of its property as a matter of law. The Town and the County appealed.

The Town and County contended that certiorari is the exclusive remedy for review of a rezoning decision because rezoning is a legislative act and, according to the 2018 Wisconsin Supreme Court case of Voters with Facts v. City of Eau Claire, declaratory judgment is not a proper method for reviewing municipal legislative decisions.  BARD countered that “[t]ime and again, courts have entertained challenges to rezon[ing] decisions pleaded as claims for declaratory judgment” and provided a list of cases that it asserted adjudicated a rezoning decision through an action for declaratory judgment.  BARD also asserted that “general principles concerning review of legislative actions apply with ‘considerably lesser force’ to rezoning denials.” 

The Court of Appeals, however, was not persuaded.  “[BARD] does not explain why any of [the cases listed by BARD] control over the specific holding in Voters with Facts that certiorari review, rather than declaratory judgment, is the proper means to seek review of a municipal legislative determination. That is, BARD does not contend that any of the cases it cites addressed the legal question which was squarely addressed and answered in Voters with Facts.”  The Court noted with approval the observation in Voters with Facts that “declaratory relief is disfavored if there is a speedy, effective and adequate alternative remedy.” In this case, certiorari is available and therefore, is the exclusive method of review.

BARD argued alternatively that its complaint did, in fact, state a claim for certiorari review because it raised the questions, appropriate for such review, of whether the county’s actions were arbitrary or unreasonable.  The Court of Appeals did bite on this theory, concluding that BARD’s claims fit within the scope of, and therefore could be construed as a request for certiorari review.  The Court of Appeals remanded the case to circuit court because it was tried as a declaratory judgment action, and the record was therefore insufficient to enable certiorari review. 

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What to Make of Murr v. Wisconsin

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by Eric Christianson

Suppose a landowner owns two adjacent parcels, which she purchased at two different points in time.  One parcel is 20 acres that consists almost entirely of wetlands. The second parcel, immediately to the west, is 50 acres of rolling, developable land.

Years after she purchased both parcels the state enacts a law that effectively prohibits filling, dredging, developing, or otherwise modifying wetlands. The landowner sues the state, claiming a taking of “all viable use” of her property.

What is her “property”?  The landowner will claim that her property for purposes of her takings claim is only the parcel made up of the 20 acres of now-unbuildable wetlands. The state will argue that her property is both parcels taken together, which means the landowner continues to have “viable use” 50 of her 70 total acres.

Who is right?  Courts have long struggled with developing rules for determining the appropriate “denominator parcel” for analyzing taking claims. In Murr v Wisconsin (see the full case brief from last week below) the Supreme Court dealt with precisely this question. And while not offering any clear rules, the court does seem to give local governments the benefit of the doubt in this determination.

A key element in arguing a regulatory takings claim successfully is that the owners show that they have been deprived of, “all or nearly all economically beneficial use of their land” by the offending regulation. This is often determined by comparing the value of the property before the law in question went into effect to its value under the effects of the new law.

Defining the property more narrowly usually gives the landowner the upper hand. Focusing only on the effected parcel makes the loss more severe relative to its value. However, when considered with the entirety of a property owner’s holdings, the deprivation may be less significant relative to the the full value of the land. This is often called the “denominator problem” in takings analysis. Courts need to determine which value to divide the loss by to see if a law has resulted in a loss of all economically viable use.

One complicating factor is the existence of merger provisions in state and local law which under certain circumstances automatically merge adjoining parcels held under common ownership. Such merger provisions have been features of local zoning ordinances for a long time. Towns began enacting them in the 1920s. They were very common by the 1960s, because local governments and state courts recognized that they represent an attractive middle ground between two unattractive extremes: (1) entirely prohibiting the development of substandard lots, which would be a hardship to their owners, and (2) allowing the development of all substandard lots, which would be a hardship to neighbors and restrict the ability of a community to pass regulations.

Whether the inclusion of a merger provision in local law is enough to determine the relevant parcel was one of the most important aspects of Murr v. Wisconson. In this case, the Supreme Court adopted a three-part test to help guide lower courts in making this determination. It also gives local governments some idea what the extent of their power is in setting land use regulations.

This new test directs courts to take into account: (1) state and local law, (2) the physical characteristics of the land, and (3) the prospective value of the land. This case does not give us any bright line rules, but it appears that merger clauses will determine the relevant parcel in most cases. Kennedy’s argument in adding physical characteristics and prospective value to the equation is his attempt to avoid “gamesmanship” by states to avoid paying for regulatory takings. States do not have total power to determine what property rights are.

In returning to our example above, while we do not have a clear answer as to how a court would rule, we do have some idea how a court should reason. (1) What does state and local law say about these two parcels? Are they entirely separate? Or, is there some provision in state law which treats them as merged? (2) How do these two parcels fit together? Are they simply touching along a short edge or do they form a cohesive whole? (3) Finally what is the financial impact of the regulation on the parcels? Are the 20 acres of wetland a total loss or can they serve some economic purpose? Perhaps the wetland is an attractive amenity raising the value of a future housing development on the other 50 acres. Clearly our simple example does not have enough detail for us to answer all these questions.

The second and third factors have to do with the inherent qualities of the land and the local property market, but local governments do have control over the first. In Murr the Court gave significant weight to the existence of a merger provision local law.

In the end, this decision preserves the right of local governments to set minimum lot sizes and avoid further subdivision even where lot lines may appear on a plat map. This is overall a win for local and state governments. However, Kennedy finishes up the opinion of the court by reflecting that much like the analysis of regulatory takings itself, determining the relevant parcel “cannot be solved by any simple test.” If recent takings fights have taught us anything, where there is ambiguity, there will be litigation. Stay tuned.

Federal courts, Property law, Takings, United States Supreme Court, Wisconsin courts
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The power of local governments preserved in Murr v. Wisconsin

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by Eric Christianson

Murr v. Wisconsin

United States Supreme Court, June 23, 2017

In the 1960s, the Murr family purchased two adjoining lots along the St. Croix River in Wisconsin. Lot F, was purchased in 1960 and used to build a vacation cabin. The other, Lot E, was purchased in 1963 and was primarily held as an investment. Originally the properties were held separately. Lot F was owned by the family plumbing company, and Lot E was owned by the family directly. In 1994 and 1995, the ownership of the two parcels was transferred from the parents, who purchased the lots, to their children. In 2004 the children began to attempt to sell Lot E to fund improvements to the cabin on Lot F; however, they were prevented from selling Lot E separately due to intervening changes in state and local land use laws. Both of these lots are now considered substandard as building sites, and a state law passed in 1976 considers adjoining substandard lots in common ownership to be effectively merged.

According to Wisconsin law in the area where these properties are located, a parcel must have at least one acre of buildable land to be developed or subdivided. Although both of these parcels are approximately 1.25 acres, the topography of the bluffs running through the lots as well as the steep river bank leaves only 0.98 acres of buildable land between the two. Wisconsin law does allow substandard lots to be developed through a grandfather clause, but does not allow them to be further subdivided. Despite the fact that they appear to be two separate lots on the plat map and have been taxed separately, they are effectively merged. The property owners are therefore barred by state and local law from “subdividing” the larger effective parcel and selling either lot independently.

The Murr family sought a variance from the St Croix County Board of adjustment to allow for separate sale of the lots. The Board denied the request, and the family appealed, alleging that the land use regulations deprived them of all economically beneficial use of Lot E. As the case moved through the Wisconsin court system, the argument for regulatory takings hinged largely on the “denominator problem.” This meant that the courts had do determine whether the parcels should be considered as a whole or if the takings analysis should be applied to Lot E alone. In this case, this decision would be determinative as the loss to Lot E is fairly significant, more than 90% of its value, while the loss to the two parcels taken together is fairly minor, less than 10% of the total value.

In a 5-3 decision written by Justice Kennedy (Justice Gorsuch took no part in this case) the court upheld the rulings of the lower courts that the two lots had been effectively merged and that the law as applied did not constitute a regulatory taking. In doing so, the court adopts a new multi factor test to determine the relevant parcel for a takings claim.

The Court continues to rely on the “Penn Central Test” in determining if government action goes too far and constitutes a regulatory taking. Unless regulations deprive property owners of all economically beneficial use of land, there are no hard and fast rules. Instead, courts are asked to reconcile the individual’s right to private property ownership and the government’s power to adjust rights for the public good. Courts have generally relied on a three-part test first established in Penn Central (1) the economic impact of the regulation (2) the extent to which the regulation has interfered with distinct investment-backed expectations, and (3) the character of the governmental action.

In this case as in Penn Central itself, before applying the three pronged “Penn Central Test”, the court must establish the relevant parcel. Because the test relies on the value of the property before and after application of a regulation, defining the parcel itself can be key to the the ultimate decision. In this case the state of Wisconsin and the local governments asked the court to defer to state law in determining the relevant parcel. The state argued that the court should take the state at its word that the two parcels are now one. The Murr family disagreed and preferred the lot lines as drawn on the plat maps.

The Court has never been entirely clear about how to determine the parcel to be used for analysis, but there are some principles to be drawn from previous decisions. Historically the court has not allowed petitioners to segment the most effected part of their property to allow them to claim a total loss of value in that particular segment. On the other hand, although property law has its foundations in state law, states have not been granted complete authority to define property rights.

This decision does not offer us a simple answer of how to determine the parcel in question for a takings claim. Instead, Kennedy offers up yet another multi-factor test considering: (1) state and local law, (2) the physical characteristics of the land, and (3) the prospective value of the land.

Under this new test, Lots E and F are considered effectively merged. (1) State law considers adjoining parcels to be merged if held in common ownership. The Murr family brought these two parcels into common ownership in 1995 well after the local law that merged them went into effect in 1976. (2) The physical characteristics of these lots support their treatment as a single parcel. The lots are contiguous along their longest edge and their rough terrain makes it reasonable to expect their use may be limited. (3) Even if Lot E cannot be sold independently it still contributes value to the parcel as a whole. A new larger cabin could be built anywhere on the two lots and the property has more privacy and recreational space than other substandard lots.

Chief Justice Roberts dissented joined by Thomas and Alito; however, they did not dispute the outcome, only the reasoning. Roberts would have preferred a much clearer ruling which takes state law as determinative of the relevant parcel in “all but the most exceptional circumstances.” Justice Thomas also filed a separate dissent stating his desire to “take a fresh look at our regulatory takings jurisprudence” in a way that could be better grounded in the original meaning of the constitution.

Later this week we will upload another post with more analysis of the implications of this decision for practitioners.

Fourteenth Amendment, Property law, Takings, United States Supreme Court, Wisconsin courts
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Town properly used its police powers to build roads and levy special assessments after developer failed obligations

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First State Bank v Town of Omro
Wisconsin Court of Appeals, November 11, 2015

Barony subdivision is a 74 lot subdivision that received plat approval in 2004. Only 9 lots were developed over the course of the next 5 years, and in 2009 First State Bank took control of the remaining 65 lots in lieu of foreclosure. At the time of foreclosure, sections of the roads in the subdivision were not paved. In 2013 Omro authorized the roads to be finished and specially assessed all the lots within the subdivision for the cost of completing the roads, which was $219,641.60. The Bank challenged Omro’s authority to levy the special assessments.  The issue on appeal was whether a municipality may use its police powers to build roads and levy special assessments against the land after a developer fails their obligation to build the roads.

The Bank claimed that the assessment was improper because: (1)the development agreement required the developer to pay for the roads; (2) the Ordinance prohibited the road work because 70% of the subdivision was not developed; (3) at the time the special assessments were imposed the subdivision’s roads were privately owned; (4) three lots were not specially benefited because they do not abut Omro’s roads; and (5) the wording of the preliminary and final resolutions did not conform with § 66.0703. The circuit court provided summary judgment to Omro.

The first two arguments asked whether Omro acted outside of their authority granted by the legislature. The Bank argued that the Ordinance says that the money for paving roads “will come directly from the developer, from a special assessment on the development, or another method approved by the Town Board” and that “the development agreement will dictate the method of payment for the paving.” The Bank argues that the developer is the only recourse for payment based on this language in the Ordinance and in the developer agreement. However, the language in these documents does not limit Omro’s power to levy special assessments. Just because the agreed upon payment did not work out does not mean alternatives are not allowed as long as Omro follows the appropriate procedures in state law permitting special assessments.

The Bank argued that because 70% of the subdivision was not developed the special assessment could not be levied.  The court pointed out, however, that there is language in the Ordinance that allows for a different schedule if Town Engineer and the Town Board recommend a different action, which they did.

The last three arguments asked whether Omro failed to follow the requirements of Wis. Stat. §66.0703.  The Bank argued that because the lots were privately owned, the special assessment was not for public improvement.  This argument missed the point that the roads within the subdivision were public property.  State law provides that all roads or streets shown on a final plat are dedicated to the public unless clearly marked as private, which these were not.  Therefore, the assessments were clearly for a public improvement.

Next, the Bank argued that three of the lots do not receive “special benefits” from the project because they do not abut the newly paved roads and should not be specially assessed because of this. The Bank demonstrated a genuine issue of fact. The circuit court erred in granting summary judgment on this issue.

The court affirmed the decision ratifying the special assessment of the lots that benefit from the road project, but reverse the decision that found that the lots that do not abut the roads received special benefits and remanded that issue to the lower court.

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No need to make specific finding that building qualified as accessory building when granting special exception

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by Hannah Dankbar

Hasanoglu v Town of Mukwonago and Town of Mukwonago Plan Commission
Wisconsin Court of Appeals, October 14, 2015

The Hasanoglus appealed a circuit court decision upholding a decision of the Town of Mukwonago Plan Commission to grant a special exemption to the Hollerns to build an accessory building on their property. The Hasanoglus argue that the Plan Commission does not have jurisdiction to grant this exception and that the exception was arbitrary and unreasonable.

The Hollerns applied for a zoning permit to build a riding arena on their property in rural Mukwonago. Mukwonago determined that the arena would be in “substantial compliance” with the town ordinances, except for the height and square footage of the building. The Plan Commission met and approved the proposal by granting a exception to the zoning ordinance. Their neighbors, the Hasanoglus, filed a certiorari action which sustained the decision.

On appeal, the Hasanoglus argued that according to the Town of Mukwonago Municipal Code §82-25(a)(2)(b)(2) the Town Board could grant this exception, but the Plan Commission does not have jurisdiction to do so in this case. While it is true that this section of the code gives this power to the Town Board, a different part of the code gives the same power to the Plan Commission (Town of Mukwonago Municipal Code §82-25(b)(3)). The court determined that §82-25(b)(3) is the appropriate subsection because there was no finding of a rural accessory building on the Hollerns’ property as is required by §82-25(a)(2)(b)(2).

Next, the Hasanoglus argued that: (1) the Hollerns did not follow the correct procedure to apply for the special exception; (2) that the Plan Commission agenda was not specific enough to give notice of the Hollerns’ request; and (3) the Plan Commission did not conduct a sufficient inquiry into whether the proposed riding arena qualified as an accessory building.

First, the question of whether the Hollerns followed the correct procedure was not raised in circuit court and the section of the municipal code that the Hasanoglus cite is only for property owners seeking exceptions for setbacks. This argument was not considered on appeal.

Second, the Plan Commission’s agenda states, “ACCESSORY BUILDING HEIGHT AND SIZE INCREASE FOR S64W27645 RIVER ROAD, MICHAEL AND LAURA HOLLERN PROPERTY OWNER.” The minutes show approval of the request. The Plan Commission is not obligated to be any more specific than that.

Lastly, The Plan Commission is not required to record a specific discussion and determination in its minutes that a building qualifies as an accessory structure.  The Plan Commission placed multiple conditions on the approval of the exception (an example being that there can be no commercial use) which demonstrated that it considered the issue and exercised its judgment.

These arguments failed, so the decision was upheld.

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“Providing” fire services means creating and operating a fire district, not making a fire call

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by Hannah Dankbar

Town of Hoard v Clark County
Wisconsin Court of Appeals, November 12, 2015

The Town of Hoard is located in Clark County. The County operates a medical center within the town. The issue in this case is whether an ordinance that imposes an annual charge on property owners to cover the cost of fire protection is legal (Town of Hoard Ordinance No. 091113). In 2014 Hoard charged Clark County $3,327.68 for fire protection of the medical center. The County did not pay the charge. Hoard sued the County for not paying and was granted summary judgment. The County appealed.

Under the 2013 ordinance Hoard uses a formula to determine the annual charge for fire protection. The charge is based on the property’s use and square footage to calculate the “domestic user equivalent” (DUE). The medical center was assigned 1.5 DUE units per 1,000 square feet. Hoard divides its annual contribution to the fire district that they share with other communities by the number of DUE units to determine a dollar amount per DUE unit. This dollar amount determines the charge for each property owner.

Hoard argued that Wis. Stat. §60.55(2)(b) allows them to set “a fee on property owners in the Town for the cost of fire protection, as set according to a written schedule that was adopted by the town board.” The pre-1988 version of the statute allowed a town to charge for the cost of “fire calls made to the property”, but the new statute broadened the ability of a town to charge for fire protection to all properties who are protected.

The County argued: (1) the charge to the County under the ordinance is a tax, not a fee, which the County is exempt from under state law, or alternatively (2) if the charge is a fee, the ordinance is not valid under state law because the statute only allows fees for fire protection services that are actually provided. Because the medical center did not receive any services (i.e., no fire calls) they should not have to pay the fee.

There is a distinct difference between a fee and a tax. A tax is to gather revenue for the government. A fee is to cover the expense of providing a service, regulation or supervision. In this case, the charge is to cover the expense of providing fire protection, so it is a fee.

Regarding the second argument, the Court determined that “providing” fire protection services includes joining with other municipalities to create and operate the fire district.  The court determined that the medical center was “provided” fire protection from the Town.

The judgment of the lower court was affirmed.

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Wisconsin’s bright line “building permit rule” precludes takings claim

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by Hannah Dankbar

McKee Family, LLC and JD McCormick Company, LLC v City of Fitchburg
Wisconsin Court of Appeals, November 5, 2015

The City of Fitchburg rezoned property owned by McKee before McKee was able to apply for a building permit. The rezoning reclassified the property from Planned Development District (PDD), which allows high-density and mixed-use development, to Residential-Medium (R-M) district, which permits lower-density development. McKee argued that McKee had a vested right in the preexisting zoning designation and that the rezoning constituted a taking. The lower court concluded that McKee did not have a vested right in the preexisting zoning classification, and McKee appealed.

In Fitchburg, before a property owner can develop land under a PDD classification they have to go through multiple steps including: submitting a proposed general implementation plan to be approved by the City’s Plan Commission and the Fitchburg Common Council; if approved the property owner submits a specific implementation plan before applying for a building permit.  Fitchburg approved the lots in question in 1994 when the McKee’s predecessor owned the lots. In 2008 JD McCormick, working with McKee, submitted the specific implementation plan while two Fitchburg alders petitioned the City to rezone the property. After public hearings, and before reviewing the specific implementation plan, the Council rezoned the property. THe rezoning took effect before any commission review of the specific implementation plan.  The Council concluded that the rezoning was “in the best interest of maintaining a stable surrounding neighborhood to reduce the lots.”  The primary issue was whether McKee had obtained a vested right in the preexisting zoning designation, despite not being eligible for and not applying for a building permit.

The court concluded that there is no vested right based on Wisconsin’s bright-line “building permit rule.”  Wisconsin focuses on building permits and applications for permits to define the point at which a property owner develops a vested interest in the property. Neither McCormick nor McKee ever applied for or received a building permit. McKee argued that Wis. Stat. § 62.23(7) creates private contractual rights for developers, but the Court did not interpret the statute that way. There is nothing in the statute that obligates a municipality to maintain a specified zoning designation. To the contrary the statute authorizes municipalities to amend or repeal zoning designations as long as they follow specific procedures (§62.23(7)(d)(2) and (3)).  McKee argued that they made multiple investments in the property without applying for the permit and these investments demonstrate a vested right and a contract with the City. The court rejected this argument in a prior Wisconsin Supreme Court case, and likewise rejected it here.  The trial court determination was upheld.

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Wisconsin intergovernmental agreement statutes allow for “major” boundary changes

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by Hannah Dankbar

City of Kaukauna v. Village of Harrison
Wisconsin Court of Appeals, August 26, 2015

In 2013 the Village of Harrison was created within the Town of Harrison. The two communities created an intergovernmental cooperation agreement to share services and provide more land to the Village. The Cities of Kaukauna and Menasha, the Village of Sherwood along with individual property owners (referred to as the Challengers) argue that the agreement involved a “major” boundary change that exceeds the scope allowed by statute, and that the Town and Village did not strictly comply with statutory notice requirements.

In February 2013 voters in the Town of Harrison approved incorporating a 4.6-square-mile area as the Village of Harrison.  The Town and the Village published a notice about a hearing to discuss an Intergovernmental Cooperation Agreement concerning the provision of municipal services and the apportionment of costs, assets and liabilities, and the boundary line that would form the village limits. In addition to the published notice there was also a notice sent via certified mail to 1910 property owners. As a result of the boundary change 1,736 parcels that had been in the Town were assigned to the Village, which had an initial population of 9,597. This left the Town with 1,316 residents in “growth areas” with intermunicipal agreements with the cities of Appleton and Menasha. Prior to creation of the Village the Town of Harrison had about 10,700 residents.

The Challengers argue that WIS. STAT. § 66.0301 allows only “modest boundary changes incidental to” the sharing of services between governments and requires a prehearing notice to property owners of the effects of the intergovernmental agreement on the boundary lines. The Challengers conceded that the statute is silent on the scope of the boundary changes permitted via intergovernmental agreements, but they argue that the statute should be read to allow only “modest” boundary changes necessary to accomplish the statute’s “primary goal of sharing services between municipalities.” The Court of Appeals, however, believed that this would require it to read beyond the plain language of a statute, which the court determined it would not do.

The Challengers argue that allowing municipalities to achieve major boundary changes via intergovernmental agreements would lead to an “absurd” result and would take meaning away from other statutes related to intergovernmental agreements, and the agency and mandatory public referendum approval process required for other jurisdictional alterations. The court disagreed.  Just because there is a legislative process that the Challengers do not like does not mean it is “absurd”. Statutes can provide multiple methods for altering municipal boundaries.

The Challengers argue that even property owners who are not near the boundary are still affected by it and should be given notice. Wisconsin law provides for publication of “a class 1 notice” in a newspaper that is available to everybody in the area. The court found this to be sufficient notice to those property owners.

Both notices (direct mailed notice and newspaper notice) provided by Harrison made reference to “boundary line adjustments between the Town of Harrison and the Village of Harrison” as being part of the intergovernmental cooperation agreement. This complied with the minimal notice requirement of WIS. STAT. § 66.0301(6)(c)1 by informing property owners that the approval of the agreement would relocate many of them. The language of the statute does not specify what information is required to be in the notice.

The Court of Appeals found that Harrison fully complied with all statutory notice requirements.

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Scare gun ordinance validated; it is not zoning

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by Hannah Dankbar

Town of Trempealeau v. Wendell P. Klein
Wisconsin Court of Appeals, August 18, 2015

Klein owns and operates a farm in Trempealeau, WI. He uses scare guns (a propane cannon) to prevent blackbirds from damaging his crops. In 2013 Trempealeau passed an ordinance requiring anybody wanting to use a scare gun within town limits to obtain a permit. The ordinance places three conditions on permits regarding times of day and months of the year that the guns can be used, distance from other residence of where the gun can be used, and that all guns must be pointed at least forty-five degrees away from neighboring property lines. The town board can exempt a permittee from these conditions after they receive a written explanation of why the conditions plan an undue hardship on the permittee. Klein applied for and received a permit.

On August 10, 2013 Klein was cited for operating a scare gun at less than forty-five degrees from the neighboring property line. Klein pled not guilty and moved to dismiss. He argued that the ordinance was invalid for a number of reasons.

Vested Right.  Klein argued that he had a vested right to use scare guns because he, and his father before him, had used scare guns as part of their farming operations before zoning was put into place.  The Court of Appeals noted that the scare gun ordinance did not meet the test set forth in previous court cases to qualify the ordinance as a zoning ordinance.

Taking. Klein argues that the ordinance acts as a taking of his property because his crops “will literally be taken from him”. He argues the taking is a regulatory taking which is “a restriction that deprives an owner ‘of all, or substantially all, of the beneficial use of his property.’” The Court disagreed.  The ordinance did not deprive Kline of all or substantially all of the beneficial use of his property.  Because Klein retains the ability to practice agriculture on his land, this argument fails.  Moreover, the ordinance does not prohibit the use of scare guns; it merely regulates their use.  There was no evidence that using the scare guns in a manner consistent with the ordinance would still result in a devastating loss of crops.

Trempealeau County’s comprehensive zoning ordinance.  Trempealeau County’s comprehensive zoning ordinance § 4.03 states, ““General agricultural practices shall be allowed in all agricultural districts without issuance of a land use permit[.]” Klein argued that this section unambiguously prohibits the Town from requiring him to obtain a permit; however, the scare gun permit is not a land use permit because it does not license a “use.” Trempealeau County’s comprehensive zoning ordinance §4.03(1)(c) lists “barnyards, feedlots, and uses involving agricultural structures” as examples of “general agricultural practices.” The description of structures and locations reinforces the conclusion that the use of scare guns does not constitute a general agricultural practice.

Right to Farm.  Klein argued that the statute is preempted by the state’s Right to Farm Law. This law protects agriculture enterprises from nuisance claims. Klein and the Town agreed that the Right to Farm Law protects both agricultural uses and practices. They also agree that the statute sets forth a heightened standard for determining that an agricultural use or practice is a nuisance. Nothing in the statute, however, prevents local governments from regulating agricultural uses and practices without a finding that those uses or practices meet the heightened nuisance standard.

The district court’s judgment in favor of Trempealeau was affirmed.

 

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Notice provision for city inspection preempted by state statute

Gary Taylor

by Andrea Vaage

Olson et al. v. City of La Crosse
Wisconsin Court of Appeals, July 16, 2015

Landlords in La Crosse, Wisconsin challenged a City ordinance that would have required them to participate in an inspection and registration program. The circuit court rejected the challenge. The landlords appeal, arguing the part of the ordinance requiring the landlords to notify tenants of a city inspection was preempted by state statute.

The LaCrosse notice provision in question states:

“(3) The owner [of a rental property] shall arrange for access to the dwelling or dwelling unit and all portions of the property affected by the rental of the dwelling or dwelling unit and shall notify all tenants of the [City] inspection in accordance with Wisconsin law and the lease agreement between the owner and the tenant. Failure to provide access to the property and dwelling or dwelling unit on the agreed inspection date will subject the owner to the fees specified in Section 8.09 of this Code and denial of the registration certificate.

(4)  Except as otherwise provided by law …, inspections shall not be conducted:

….(c)  Without prior notice to the tenant by the owner as required by state law or the lease agreement.”

 

The relevant Wisconsin statute provides: “No city, village, town, or county may enact an ordinance that requires a landlord to communicate to tenants any information that is not required to be communicated to tenants under federal or state law.”

Despite the Wisconsin statute cited above, the City identified two state statues and an administrative code provision that they argued worked together to require a landlord to notify tenants of a city inspection. The Court found that the first of the state statutes, and the administrative code, applied to landlord inspections, not city inspections, and were inapplicable to the situation.

The other statute, Wis. Stat. 704.07(2), requires landlords to “comply with any local housing code.” The City argued that the notice provision was part of the local housing code, and therefore proper under Wis. Stat. 704.07(2). The Court interpreted these statutes in a manner that harmonized them. “We give each its full force and effect by interpreting them as requiring landlords to “comply with any local housing code” …while also prohibiting local governments from including in local housing codes any provision that “requires a landlord to communicate to tenants any information that is not required to be communicated to tenants” under any other federal or state law.” This interpretation, the court stated, would not substantially change the powers of the municipality. The City could still conduct inspections, but they would be responsible for notifying tenants of city inspections, not the landlords.

The Court reversed the circuit court decision to uphold the notice provision, while upholding the rest of the ordinance.

 

Notice, Preemption, Wisconsin courts ,
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