“No Permitted Use” Zoning District Successfully Challenged

Municipal Law Alert, September 2008

On July 7, 2008, the Wisconsin Supreme Court released its decision in the Town of Rhine v. Bizzel, 2008 WI 76 (Case No. 2006AP450). This case is likely to have a significant impact on many Wisconsin municipalities. The Court held the Town of Rhine’s ordinance establishing a B-2 zoning district unconstitutional. The Court struck down the ordinance because the district had no permitted uses “as of right”, only conditional uses and because the restriction on permitted uses was not “substantially related” to the public health, safety, morals or general welfare.

The Court noted that the 14th Amendment to the U.S. Constitution prohibits a state from depriving anyone of life, liberty or property without the due process of law. Taking away all uses “as of right” from someone’s property violates substantive due process rights. The Court called the Town of Rhine’s B-2 zoning ordinance arbitrary and unreasonable, because there was no showing that the restrictions had any relationship to the public health, safety, morals or general welfare.

The Court was careful to point out that it was only invalidating the Town of Rhine’s ordinance. It did not invalidate all “no permitted use zones”. For example, the Court favorably cited a New York case, Dur-Bar Realty Co. v. City of Utica, which involved a zoning district with no permitted uses. The zone was in a floodplain and subject to frequent flooding. The New York Court found the “no permitted use” zone reasonable because it bore a “substantial relationship” to the public health, safety and welfare.

Although it restricted its holding to the Town of Rhine’s ordinance, the Court made the broad statement that “the more common, acceptable practice is to provide for permitted uses as of right” and in addition, provide for conditional uses where reasonable.

To sum up, municipalities should scrutinize any zoning districts that have no permitted uses “as of right.” While not forbidden by the Town of Rhine decision, an ordinance creating a no permitted use district must have a strong public health, safety, moral or general welfare basis. At a minimum, the Court’s decision opens the door for challenges to any zoning district that has no permitted uses.

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Do You Know Who Your Supervisors Are?

Municipal Law Alert, September 2008

Which municipal employees are supervisors? This is a question not often considered by many local governments. However, the answer to the question determines which employees belong to the bargaining unit of a union. For a municipality to protect its management rights, it is very important that the municipality has clearly identified the duties of employees in supervisory positions.

Wisconsin led the nation in the development of public sector unions. The public sector unions initially thrived in the more populous cities, villages and counties. In recent years, the unions have been making inroads into smaller governmental entities.

In a recent dispute in western Wisconsin, a union contended that the director of public works was a lead worker. The union took this position because a lead worker is included in the bargaining unit. The municipal officials were concerned that, without a supervisor over the public works department, the municipality would have ongoing management problems with the department. The union only conceded two supervisory positions existed in the municipality. One position was the police chief and the other the municipal clerk.

The Wisconsin Employment Relations Committee (WERC) ordered a hearing on the matter. Testimony was taken from the union, the director of public works, the mayor and an alderman. The WERC held that the director of public works was a supervisor and, therefore, could not be a member of the union. The municipal officials were relieved, knowing that the municipality would continue to exert effective management control over the public works department.

This dispute is an example of the importance of maintaining municipal records. The key factor in the municipality’s favor was the existence of clear job descriptions and documentation establishing the level of supervisory authority delegated to the position over the years. Developing a municipal record system, especially for employee records, is important for the general operation of any municipality.

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Open Meetings and Open Records Laws Apply to Development Corporation

Municipal Law Alert, September 2008

On July 11, 2008, the Wisconsin Supreme Court released its decision in the State of Wisconsin v. Beaver Dam Area Development Corporation, 2008 WI 90 (Case No. 2006AP662). This case may have a significant impact on many Wisconsin municipalities.

The question posed to the Supreme Court was whether the Beaver Dam Area Development Corporation (“Development Corporation”) was subject to Wisconsin’s open meetings and public records law. The Court held that the Development Corporation was a “quasi governmental corporation” and thus was subject to the open meetings[1] and public records laws.[2]

Background: The Development Corporation was a private, non-profit corporation created to promote economic development in and near the City of Beaver Dam. It was funded exclusively by the City. The mayor and another City official sat on the board of directors. The members of the corporation were private citizens appointed by the Development Corporation. Its offices were in City Hall, and it used the city’s clerical staff and equipment and supplies.

The Development Corporation’s position was that it was a private entity, not a “quasi governmental corporation”. It was not formed by the City council, and it operated outside of the control of the City. The Development Corporation further argued that its mission of economic development required flexibility and confidentiality, which would be severely hindered or possibly thwarted if its activities were subject to the same standards of openness required of municipalities.


[1] The open meetings law provides that meetings of a “governmental body” must be preceded by public notice and held in open session. Wis. Stat. § 19.83. The term “governmental body” is defined to include several specific types of governmental bodies, and also “a governmental or quasi-governmental corporation….” Wis. Stat. § 19.82(1).

[2] The public records law provides that “[e]xcept as otherwise provided by law, any requester has a right to inspect any record.” Wis. Stat. § 19.35(1). A “record” is defined to include certain kinds of material created or kept by “an authority.” Wis. Stat. § 19.32(2). The term “authority” is defined to include several specific types of governmental officials and bodies, and also “a governmental or quasi-governmental corporation….” Wis. Stat. § 19.32(1).

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Local Municipalities Retain Sign Control

Municipal Law Alert, September 2008

A recent Court of Appeals decision determined that local municipalities’ right to regulate signs visible from highways is not completely preempted by state law. Donaldson v. Town of Spring Valley, 2008 WI App 61, 750 N.W.2d 506 (petition for review denied). Donaldson desired to place a directional sign advertising an attraction in Iowa County on his agricultural zoned property. The sign was located in Rock County along State Highway 11, a federal-aid highway.

The Town of Spring Valley passed an ordinance that prohibited off-site directional signs except in areas zoned business or industrial. Thus, the ordinance banned Donaldson’s proposed sign on his property zoned agricultural.

Donaldson challenged the ordinance and sought a declaratory judgment. He argued that the state law governing directional signs visible from federal aid highways preempted the Town’s zoning ordinance. Accordingly, he contended he could put up a sign, so long as the sign complied with the state law: Wisconsin Statute § 84.30(3)(a).

The state law was passed in response to a federal law, 23 U.S.C. § 131, which encouraged states to regulate signs viewable from federal-aid highways. Congress secured compliance by cutting federal highway aid to states that failed to comply. Wisconsin’s sign regulations appear in Wis. Stat. § 84.30. The relevant section here, Wis. Stat. § 84.30(3)(a), bans directional signs to attractions except signs that are “required or authorized by law” and comply with rules to be written by the Wisconsin Department of Transportation (“DOT”). The DOT rules govern sign lighting, size, number and other requirements, and cannot be “inconsistent with” or “more restrictive than” the federal rules.

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