Tag: Preemption

Local ordinance requiring conditional use permit for business selling alcohol not preempted by state liquor licensing law

Gary Taylor

by Gary Taylor

Lime Lounge, LLC v. City of Des Moines

Iowa Court of Appeals, February 8, 2023

Lime Lounge owns and operates a bar in the East Village of Des Moines. To sell alcoholic beverages in Iowa an establishment must obtain a liquor control license from the state Alcoholic Beverages Division (ABD). Among other requirements, the applicant for the license must first file the application with the local authority – in this case the city of Des Moines – for its approval. If the local authority disapproves of the application, the applicant has the ability to appeal the decision to the administrator of the ABD.

To sell alcoholic beverages in Des Moines an establishment must, among other things, be granted a conditional use permit (CUP), which places different requirements on establishments than the liquor control license. Depending on the type of business it is engaged in, a business is required to meet standards related to noise, litter, hours of operation, and others. The city will not consider a liquor control license application until the CUP is approved.

Lime Lounge obtained a CUP from the Des Moines Zoning Board of Adjustment (ZBA) and had their liquor control license approved in 2011. In 2015, the ZBA amended Lime Lounge’s CUP after multiple noise complaints. The ZBA revoked Lime Lounge’s CUP in March 2016. Lime Lounge challenged the revocation, but the revocation was upheld on appeal. On May 14, 2019, Des Moines filed a complaint with the ABD to revoke Lime Lounge’s state liquor license on the basis of the establishment’s failure to comply with local ordinances. Lime Lounge resisted the city’s complaint by filing a temporary injunction, but the district court dismissed Lime Lounge’s suit. Lime Lounge appealed.

Preemption. Lime Lounge’s first argument was that the Des Moines zoning code requirement of a CUP for an establishment selling liquor was preempted by the state alcoholic beverage control law found in chapter 123 of the Iowa Code because the zoning code requires an additional permit and fees in order to obtain a state liquor license. Lime Lounge asserted that the doctrine of express preemption, which “applies where the legislature has specifically prohibited local action in a given area,” rendered the Des Moines ordinance illegal.

Courts will look to the “specific language used by the legislature” to determine whether express preemption applies. Although Iowa Code section 123.37(1) provides, “The power to establish licenses and permits and levy taxes as imposed in this chapter is vested exclusively with the state. Unless specifically provided, a local authority shall not require the obtaining of a special license or permit for the sale of alcoholic beverages at any establishment….” the Court of Appeals determined that this did not apply to the city’s CUP permitting scheme because the zoning provisions related to the use of land. It agreed with the conclusion of the district court that “[t]he ordinance does not require a permit for the sale of alcohol, it requires a permit to use certain premises for the sale of alcohol. It’s a land-use regulation, not a regulation on the sale of alcohol. Thus, the requirement to obtain a CUP is not a permit requirement ‘for the sale of alcoholic beverages'” as contemplated by chapter 123. The Court of Appeals further observed that chapter 123 provides:

Local authorities may adopt ordinances or regulations for the location of the premises of liquor control licensed and retail wine or beer permitted establishments and local authorities may adopt ordinances, not in conflict with this chapter and that do not diminish the hours during which alcoholic beverages may be sold or consumed at retail, governing any other activities or matters which may affect the retail sale and consumption of alcoholic beverages and the health, welfare and morals of the community involved.

Iowa Code 123.39(2)

Equal Protection. Lime Lounge also asserted the the Des Moines zoning ordinance violates the Equal Protection clause of the Iowa and United State Constitutions, which has been interpreted by courts to direct that “all persons similarly situated should be treated alike.” Whether this ideal has been met in the context of economic legislation is determined through a “rational basis” test. If the regulation is “rationally related to a legitimate governmental purpose” then the regulation will be deemed valid.

Lime Lounge alleged the varied requirements—particularly the necessity of obtaining a CUP and the fees necessary to do so—imposed on different establishments such as restaurants, bars, and retail establishments are arbitrary, and that the municipal ordinance allows the ZBA to “impose virtually any condition which it can contemplate—and, more onerously—on an individualized basis.”

The court disagreed with both allegations. The city has a legitimate purpose in ensuring the health, welfare, and safety of the community. The distinctions drawn in the ordinance between bars, restaurants and other retail establishments is rationally related to that purpose because each has different characteristics of operation. For example, bars tend to operate later in the evening than restaurants, create more noise from music and patrons, and have increased law enforcement requirements. Requiring additional permitting for these and other businesses that are more likely to exhibit greater nuisance behaviors is rationally related to protecting the community.

The court also disagreed that the ordinance allows the ZBA “unfettered discretion” in imposing permitting restrictions. The ZBA is in fact constrained by criteria found in the ordinance for imposing conditions related to public health and safety, noise, traffic congestion, and nuisance prevention. The East Village of Des Moines is a mixed-use neighborhood, containing both commercial and residential buildings. Tailoring certain zoning restrictions related to noise, congestion, and other nuisance behavior to the specific circumstances of the area is rationally related to promoting the community’s welfare.

Spot zoning. Finally Lime Lounge asserted that the code section amounted to illegal spot zoning, but the court dismissed that assertion by noting the similarities between the city’s treatment of Lime Lounge and those of several of its East Village contemporaries. Furthermore, the noise restrictions and other directives limiting nuisance behavior fall squarely within the city’s police power.

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North Dakota county fights for zoning control over oil and gas development

Gary Taylor

Dunn County will ask the North Dakota Supreme Court to uphold its authority to apply zoning to oil and gas development.

The county decided to appeal a district court judge’s decision that the North Dakota Industrial Commission (NDIC) has sole jurisdiction over an oil waste treatment facility in the county.

The dispute started in 2013, when Environmental Driven Solutions sued the county for denying zoning for storage tanks on property adjacent to the treatment facility. EDS said state law gives NDIC authority that preempts local zoning. In this case, the NDIC had issued a permit for the treatment plant.  The district court agreed, saying that state law gives the commission control over drilling, all operations for oil and gas production, and, since 2013, the disposal of saltwater and oilfield wastes.

The North Dakota Attorney General filed in support of EDS’s case.

The full story is here, courtesy of the Bismark Tribune.

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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.

 

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Wisconsin statute regulating parking signs preempts local ordinance limiting “off premises” signs

Gary Taylor

by Andrea Vaage

City of Eagle River v. Slusarczyk
Wisconsin Court of Appeals, July 7, 2015

Mark Slusarczyk, owner of Traveler’s Inn, posted a sign in his parking lot which forbid customers of the neighboring Synergy Salon and Spa from using the lot. The sign read:

PRIVATE PROPERTY NO TRESPASSING!
TRAVELERS INN GUESTS
PARKING ONLY
DO NOT BLOCK DRIVEWAY ANY TIME
NO! SYNERGY OR THEIR RUDE GUESTS
PROHIBITED THANK YOU

Slusarczyk was cited for violating section §106-683 of the Eagle River Zoning Ordinance, which allows off-premises signs after procuring a conditional use permit. The City contended that Slusarczyk’s sign promoted another business, and therefore was an off-premises sign, defined under the Eagle River Ordinance as “a sign which directs attention to a business, product, service, or entertainment not conducted, sold or offered upon the property where such sign is located.” A trial was held on November 5, 2014 where the trial court determined that the sign directed attention to the Synergy Salon and Spa and therefore constituted and off-premise sign. Slusarczyk appealed to the Wisconsin Court of Appeals.

The primary question before the Court was whether the City’s ordinance conflicts with a preemptive state statute. Preemption occurs when a local ordinance comes into conflict with a state statute purporting to regulate the same matter. Both the legal interpretation of the town’s ordinance and the state statute were reviewed de novo.

Wisconsin state law provides for traffic regulations, including a section that authorizes signs permitting or prohibiting parking.  Wis. Stat. § 346.55(4) provides that “Owners or lessees of public or private property may permit parking by certain persons and limit, restrict or prohibit parking as to other persons if the owner or lessee posts a sign on the property indicating for whom parking is permitted, limited, restricted or prohibited.”

Slusarczyk contended his sign clearly fell within the scope of the state statute.  The City argued, on the other hand, that “Wis. Stat. § 346.55(4) permits the sort of sign Mark Slusarczyk put up in this matter[, and] City of Eagle River Ordinance § 106-683 also permits the sort of sign Mark Slusarczyk put up in this matter, as long as a conditional use permit is first granted for the sign.”  Citing the 2008 Wisconsin Supreme Court case of Town of Rhine v. Bizzell, the Court found, that “[e]ven though conditional uses may be authorized pursuant to the ordinance, that does not render them uses as of right.” Because a preemptive state statute grants Slusarczyk the right to indicate for whom parking is restricted or prohibited on his property, the City of Eagle River cannot restrict that right by requiring Slusarczyk to first obtain a conditional grant. The Court found that the City of Eagle River ordinance conflicted with the state statute allowing for signs which specifically prohibited certain persons and was therefore preempted.  The City cannot restrict this right by requiring a CUP. The judgment of the trial court was reversed.

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News from Wisconsin: Wisconsin legislature moves to preempt Madison zoning of single state building

Gary Taylor

Another for the “state involved in local affairs” file.  The Republican-led budget committee of the Wisconsin House insert a provision in the budget bill to exempt the site of the Hill Farms state office building from the City of Madison’s zoning regulations.  The office building is slated for redevelopment, and the city and the state have been working to accommodate the new building in the city’s zoning code.  “It is of concern to us, not just in terms of this building but in terms of the future,” said Madison Mayor Paul Soglin.

The full story from the Wisconsin State Journal is here.
Another interesting story that reflects the tensions between the city of Madison and the state legislature: Another proposal tucked into the budget bill would require the state to  consider relocating its agencies to buildings outside of Dane and Milwaukee counties before renewing current leases.

And even more!  Another proposal in the budget bill would alter the Madison’s ability to use its lodging tax to support city services, the Mayor saying it could cost Madison’s general fund $1 million next year.

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Divided Ohio Supreme Court finds that state law preempts city ordinances regulating oil and gas drilling

Gary Taylor

by Gary Taylor

State ex rel. Morrison and the City of Munroe Falls v. Beck
Ohio Supreme Court, February 17, 2015

Beck Energy Corporation obtained a permit from the Ohio Department of Natural Resources to drill an oil and gas well on property within the corporate limits of the City of Munroe Falls. When Beck Energy began drilling, the City filed a complaint seeking injunctive relief and alleging that Beck Energy was violating several provisions of the Munroe Falls Codified Ordinances. These provisions included a zoning ordinance requirement for a zoning certificate for land disturbing activities within the city, and four ordinances directly relating to oil and gas wells and drilling. The trial court issued a permanent injunction prohibiting Beck Energy from drilling until it complied with all local ordinances. The Ohio Court of Appeals reversed the trial court, concluding that state law preempts local control over the permitting, location, and spacing of oil and gas wells and production operations within the state of Ohio.  Munroe Falls appealed to the Ohio Supreme Court.

In a 4-3 opinion, The Ohio Supreme Court affirmed, holding that the Home Rule Amendment does not grant the City the power to discriminate against, unfairly impede, or obstruct oil and gas activities and production operations that the State has permitted under chapter 1509.  Ohio R.C. 1509.02 gives state government “sole and exclusive authority” to regulate the permitting, location, and spacing of oil and gas wells and production operations within Ohio.  In 2004, the General Assembly amended Chapter 1509 to provide “uniform statewide regulation” of oil and gas production within Ohio and to repeal “all provisions of law that granted or alluded to the authority of local governments to adopt concurrent requirements with the state.” The majority of the Court found that the preemption clauses of R.C. 1509.02 clearly prevent local governments from imposing their own regulations on the oil and gas industry.

In his dissent, Justice Lanzinger countered that “the broad language of a preemption clause is not sufficient to create a conflict. We have never held that a preemption statement alone is sufficient to divest municipalities of their constitutional right to home rule. To the contrary, a declaration by the General Assembly of its intent to preempt a field of legislation ‘does not trump the constitutional authority of municipalities to enact legislation pursuant to the Home Rule Amendment, provided that the local legislation is not in conflict with general laws.'”  Justice Lanzinger pointed out that Chapter 1509 does not specifically preempt local zoning, and also argued that the local ordinances of Munroe Falls do not present specific conflicts with Chapter 1509.

Joining in Justice Lanzinger’s dissent, Justice O’Neill went on to write:
Let’s be clear here. The Ohio General Assembly has created a zookeeper to feed the elephant in the living room. What the drilling industry has bought and paid for in campaign contributions they shall receive. The oil and gas industry has gotten its way, and local control of drilling-location decisions has been unceremoniously taken away from the citizens of Ohio. Under this ruling, a drilling permit could be granted in the exquisite residential neighborhoods of Upper Arlington, Shaker Heights, or the Village of Indian Hill—local zoning dating back to 1920 be damned.

 

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Story County District Court invalidates Ames lap dance ordinance

Gary Taylor

by Gary Taylor

Relying on Mall Real Estate v. City of Hamburg (blogged here) Story County District Court recently ruled that the Ames “lap dance ordinance” is preempted by state law.

Rebekah Beth Williams and Alijah Blue Allison v City of Ames (PDF)
Story County District Court, November 14, 2014

Dangerous Curves serves alcohol and hires women to dance while wearing bikinis or underwear.  In October 2013 an Ames police officer conducted a bar check of Dangerous Curves and observed the defendants performing lap dances while having exposed buttocks.  Ames Municipal Code Section 17.31(1) prohibits this activity.  It provides

No person appearing as an entertainer on commercial premises subject to an Iowa liquor license or beer permit, or on premises of an ‘adult entertainment business’ … shall fondle, caress or sit on the lap of any customer on said premises if the entertainer presents a performance on the premises while nude or so attired as to leave exposed the entertainer’s ….buttocks….”

The defendants were each issued a citation for violation of Section 17.31. The defendants pled not guilty and filed a motion to dismiss, arguing (1) Iowa Code 728.11 preempts Section 17.31, and (2) Section 17.31 is unconstitutionally vague and overbroad. The motion to dismiss was denied, and the District Associate Judge found the defendants guilty of violating Section 17.31.  The defendants appealed to the Iowa District Court for Story County.

Preemption.  Iowa Code 728.11 provides

In order to provide for the uniform application of the provisions of this chapter relating to obscene material applicable to minors within this state, it is intended that the sole and only regulation of obscene material shall be under the provisions of this chapter, and no municipality, county or other governmental unit within this state shall make any law, ordinance or regulation relating to the availability of obscene materials.  All such laws, ordinances or regulations shall be or become void, unenforceable and of no effect on January 1, 1978.  Nothing in this section shall restrict the zoning authority of cities and counties.

Iowa Code 728.5 regulates public indecent exposure, and specifically provides
1.  An owner, manager, or person who exercises direct control over a place of business required to obtain a sales tax permit shall be guilty of a serious misdemeanor under any of the following circumstances:
…
b.  If such person allows or permits the exposure of the genitals or buttocks or female breast of any person who acts as a waiter or waitress.
The District Court noted that in Mall Real Estate v. City of Hamburg the Iowa Supreme Court concluded that the legislature intended to include live nude dancing within the meaning of ‘obscene materials,’ and the effect of Section 728.11, therefore, was to preempt Hamburg’s nude dancing regulations.  The defendants asserted that Mall Real Estate makes it clear that Section 17.31 is preempted by the Iowa Code.  The City argued, however, that Mall Real Estate only works to apply the Iowa Code to nude dancing performances, while Section 17.31 addresses physical contact. According to the City, “once the dancer touches a customer the dancing is no longer a performance fitting within the definition of ‘obscene material.'” The City then has a governmental interest in protecting the health and safety of its citizens.
The District court sided with the defendants, noting that the performances in question in Mall Real Estate included physical contact between the dancers and customers and, therefore, “the Supreme Court has already determined that a live nude dancing performance, including physical contact with customers, is obscene material under the Iowa Code.”  As a result, Section 17.31 regulates obscene material and is expressly preempted by state law.
Vague and overbroad ordinance.  Even though the ruling for the defendants on the preemption argument had the effect of ending the controversy, the District Court proceeded to the constitutional question “in the event that this decision is appealed and the Appellate Courts of Iowa take another look at the [Mall Real Estate] case, which was decided by a split court.”
The District Court made quick work of this argument.  It first cited a 1977 Iowa Supreme Court case that stated “we find it difficult to believe [the defendant] seriously contends people of common intelligence would not understand the meaning of nudity or would not be able to determine when the ordinance was violated by exposing to public view the breasts, buttocks, or genitals.”  Because the term ‘buttocks’ is not vague, requiring the entire buttocks to be covered is not overbroad.  “It would be easily discernible to observe whether or not the buttock was covered either partially or fully.”
Based on the preemption determination, the District Court reversed the defendants’ convictions.
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US Supreme Court declines to take Grain Processing Corporation nuisance case

Gary Taylor

The US Supreme Court has declined to hear Grain Processing Corporation’s appeal of the Iowa Supreme Court’s decision that neither the Federal Clean Air Act nor state emissions regulations preempt nuisance suits brought by neighbors complaining of the chemicals and particulate matter from the company’s facility in Muscatine. The original blogpost of the Iowa Supreme Court case is here.

A brief article from of all places, Fox News Montana.

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Clean Air Act, state emissions regulations do not preempt private nuisance or trespass claims

Gary Taylor

by Gary Taylor

Laurie Freeman, et al v. Grain Processing Corporation
(Iowa Supreme Court, June 13, 2014)

Grain Processing Corporation (GPC) conducts corn wet milling operations at its facility in Muscatine.  Laurie Freeman and seven other named plaintiffs – representing a class identified as “all Muscatine residents who have resided…within 1.5 miles of the perimeter of [GPC’s] facility” – allege that GPC’s operations create hazardous by-products and harmful chemicals which are released directly into the atmosphere.  The pollutants include sulfur dioxide, hydrochloric acid, particulate matter, and volatile organic compounds including acetaldehyde.  They assert that particulate matter is visible on nearby properties and that the emissions cause persistent irritations and discomforts and put them at risk for serious health effects.  They brought claims for nuisance, negligence and trespass against GPC.  GPC countered by filing for summary judgment, claiming that (1) the federal Clean Air Act (CAA) preempts the plaintiffs’ state law claims, (2) Iowa Code Chapter 455B – which regulates emissions – preempts the plaintiffs’ claims, and (3) a lawsuit impacting facility emissions lacks judicially discoverable standards for resolving the issues.  The district court sided with GPC and plaintiffs appealed.  The portions of the Iowa Supreme Court decision addressing (1) and (2) will be reviewed here.

Clean Air Act preemption. In a 63-page opinion that included a history lesson on the origins of present day environmental law, the Iowa Supreme Court acknowledged that “the Environmental Protection Agency has created a vast regulatory structure to control the emission of air pollutants, including technological standards, health standards, risk levels, and enforcement provisions, completely transforming what was once the province of state law.” The court also recognized, however, that there are differences between common law remedies such as nuisance and trespass, and regulatory regimes such as the CAA and chapter 455B.  While regulatory regimes focus on the prevention of pollution through emissions standards designed to protect the general public, “the common law focuses on special harms to property owners caused by pollution at a specific location.”  The Iowa Supreme Court noted that the United States Supreme Court is reluctant to find that a federal law preempts state law in areas where states have traditionally exercised their police power.  Congress has the power to preempt local law and can expressly do so, but did not in the CAA.  To suggest that Congress indirectly removed state law claims such as nuisance and trespass “seems…rather unlikely,” and the Iowa Supreme Court declined to interpret the CAA in that way.  “The purpose of state nuisance and common law actions is to protect the use and enjoyment of specific property, not to achieve a general regulatory purpose….We decline to conclude that the increased complexity of the CAA has categorically elbowed out a role for the state nuisance and common law claims presented here.”

Iowa Code Chapter 455B. The court began by noting that “the legislature is presumed to know the existing state of the law when a new statute is enacted.  In the absence of any express repeal, the new provision is presumed to accord with the legislative policy embodied in prior statutes.”  While there are no definitive Iowa cases addressing the question of whether nuisance claims may go forward in light of Chapter 455B, the court did find instructive cases that have found that a lawful business, properly conducted, may still constitute a nuisance, even if in compliance with state regulations.  “We do not see enforcement of nuisance and other common law torts as inconsistent with the regulatory framework of chapter 455B.”  Nuisance claims are based on specific harms to the use and enjoyment of real property, while air pollution regulations are enacted to protect the public interest.

The Iowa Supreme Court reversed the district court’s summary judgment, allowing the case to proceed to trial.

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Village junk vehicle ordinance broader than state traffic regulations, but validity of ordinance could not be determined

by Kaitlin Heinen

Village of North Hudson v. Randy J. Krongard
(Wisconsin Court of Appeals, March 12, 2013)

In November of 2011, the Village of North Hudson issued 2 citations to Randy Krongard for having 2 junk vehicles in plain view on his property, which was contrary to North Hudson Village Ordinance §§ 90-41 and 90-44. The vehicles were considered junk vehicles because they had expired registrations. In December, Krongard pleaded not guilty in municipal court; however, he did not appear at the scheduled trial, so the court entered default judgment against him. In March of 2012, Krongard moved to vacate the municipal court’s judgment because “90-44 is void, unlawful, and invalid as preempted, contrary to, and inconsistent with” Wisconsin state law.  His motion was denied. Krongard appealed to the circuit court, which also denied his motion, and then to the Wisconsin Court of Appeals. The Village argued that Krongard’s appeal was an improper one because Krongard should be prohibited from appealing a default judgment. However, Krongard appealed the order denying his motion to vacate the default judgment. So Krongard’s appeal was properly before the circuit court and the Wisconsin Court of Appeals.

Before the court, Krongard argued that the circuit court wrongly denied his motion because the judgment against him was void, since the Village’s junk vehicle ordinance was invalid based on its conflict with state traffic regulations. An ordinance regarding traffic regulation “must be in strict conformity with state law,” otherwise it will be preempted. Krongard asserted the conflict stemmed from the ordinance’s defining unregistered vehicles as junk vehicles and regulating unregistered vehicles on private property. Wis. Stat. § 340.01(25j) does not include unregistered vehicles in its definition of a “junk vehicle.” Instead it defines a “junk vehicle” as a “vehicle which is incapable of operation or use upon a highway and which has no resale value except as a source of parts or scrap” and a “vehicle for which an insurance company has taken possession of or title to if the estimated cost of repairing the vehicle exceeds its fair market value.” Also, state traffic regulations allow for vehicles to be parked on private property with the owner’s consent and only permit municipalities to regulate unregistered vehicles on highways. So Krongard held that the Wisconsin Court of Appeals must conclude the ordinance is invalid, rendering his judgment void.

The Village counter-argued that the state traffic regulations are concerned “with the licensing, regulation of, outfitting and operation of vehicles” and its ordinance is “concerned with the upkeep of private property,” which are “two completely different issues.” The Village also contended that its junk vehicle ordinance is not inconsistent with or contrary to the state’s definition of a junk vehicle.  The Village argued that, under Wis. Stat. § 340.01(25j), a vehicle is junk if it is not capable of legal operation on the highway, and an unregistered vehicle is incapable of legal operation on the highway and therefore constitutes a junk vehicle.  Finally, the Village contended that parking motor vehicles is different than storing vehicles on private property.

The Wisconsin Court of Appeals concluded that nothing in the state traffic regulations provides that a municipality can regulate unregistered vehicles on private property and that Wis. Stat. § 340.01(25j) defines a junk vehicle as one that is inoperable, not legally inoperable.  Therefore, the Village’s definition was broader than the traffic regulation. The ordinance requires owners of junk vehicles to notify and return the vehicle’s certificate of title to the Department of Transportation, but requires owners of unlicensed vehicles to keep their vehicles out of the public’s view. As such, the Village’s argument regarding the purpose of the ordinance and the ordinance’s language itself suggest that the ordinance is not a traffic regulation and the Village did not enact it pursuant to the power granted under the state traffic regulations.  Instead, it appears the ordinance may have been enacted using a different power, such as its zoning authority. However, because it could not be determined from the record whether the ordinance in question was a traffic regulation or part of a different regulatory scheme, the Wisconsin Court of Appeals reversed and remanded the order to the circuit court to determine the validity of the Village’s ordinance.

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