City Pier vs. Private Pier: City 1, Private Pier 0.

Equal Protection Argument Does not Fly Against City of Lake Geneva.

In Johnson v. City of Lake Geneva, the Johnsons were ordered by the City to reduce the length of their pier to 100 feet or less, as required by a City ordinance. Although the Johnson’s made a number of arguments, most failed because back in 1998, and again in 2007, they had signed stipulations agreeing to limit the length of their pier to 100 feet or, if the ordinance ever increased the length, to that new length limit. But interestingly, the City had created an exception for municipal piers, and indeed the City’s pier exceeded 100 feet. The Johnson argued that they must be treated similarly to the City, essentially that it was unfair for the City to exempt itself. However, the Court easily found that the City’s pier was for a public purpose, while the Johnson’s pier was for a private purpose, and thus the two were not “similarly situation” and no violation of equal protection occurred. Although on the surface this may seem unfair, in fact the “public purpose” of government actions often allows government to act in ways that a private party could not.

County’s Interpretation of Its Own Ordinance is Presumptively Correct

In another case of “you can’t fight city hall,” the Feursteins wanted to move a shed closer to a lake shore, but the zoning ordinance setback did not permit it because it would be too close to the rear lot line. Feuerstein v. Sawyer County Board of Appeals.

Although this case had some confusing facts and a very odd shaped lot, in essence it came down to whether the County’s interpretation of what was a “rear lot line” or the Feuerstein’s interpretation would win out. In cases of interpretation of ordinances, the general rule is that a municipality’s reasonable interpretation of its own ordinance is presumptively correct. Of course, presumptions can be overcome, but they have to be overcome with sufficient reasons. Simply pointing out that there might be another way to interpret an ordinance will probably not win you a court case if the municipality’s interpretation is reasonable. In this case, looking at the map of the property, the County’s interpretation certainly is plausible on its face, and the Court upheld the County’s decision. Click on the link above to read the case and see a map of the somewhat goofy lot lines.

Zwiefelhofer v. Town of Cooks Valley – Towns May Regulate Frac Sand Mining

In a closely watched case, the Wisconsin Supreme Court held that the Town of Cooks Valley (with village powers) had the power, under its police power, to adopt a non-zoning ordinance licensing and regulating non-metallic (for example, frac sand) mining. Arguing that the ordinance at issue was really a disguised zoning ordinance, the plaintiff asked the court to uphold the decision of the circuit court which struck down the ordinance. In declining to adopt the plaintiff’s position, the court recognized that while zoning ordinances and pure police power regulations are closely related, they are not the same. As a result, so long as towns do not cross the line separating zoning ordinances and police power regulations (meant to protect the health, safety and welfare of residents), towns have the authority to adopt regulatory and licensing ordinances. Importantly, this authority extends to the regulation of activities involving land use, such as non-metallic mining.

This decision is extraordinarily important for towns in west-central Wisconsin which are attempting to deal with the explosion of frac sand mines in the area. This decision provides towns with clear authority to adopt ordinances requiring a license to operate a frac sand mine (and related activities). It appears that this regulation may be accomplished either directly through the provisions contained in the ordinance or by placing conditions on the issuance of the license (similar to a conditional use permit). Many towns in west-central Wisconsin have either adopted, or have begun the process of considering the adoption of, these types of non-metallic licensing ordinances. The court’s decision in this case ends the debate as to whether towns with village powers have the authority required to adopt and enforce these kinds of ordinances.

If you are a town board member in a west-central Wisconsin town, we encourage you to consider whether non-metallic mining should be regulated in your town. If your board believes it should be, this case provides a clear process for enacting those regulations.

  • First, your town should adopt village powers (if it has not already done this).
  • Second, if you are not located in a county with a moratorium currently in place, you should consider adopting a short moratorium on non-metallic mining.
  • Third, use the breathing room provided by the moratorium to study, prepare, debate and possibly enact a licensing and regulatory ordinance.

To be clear, the goal cannot be to completely prohibit frac sand mining in your town. Instead, the goal of your ordinance should be to provide reasonable regulations to protect the health, safety and welfare of your residents. There are a number of factors to consider when adopting such ordinances, and no town is exactly like another. However, at a minimum, most towns believe it is important to accomplish the following: (i) protection of roads, air quality and water; (ii) mitigation of noise, dust and debris; (iii) prevention of high intensity lights at night; (iv) eliminate unsightliness (and associated property price decreases for neighbors); (v) regulate hours and method of blasting; and (vi) financial security.

If your town is considering adopting such an ordinance, yesterday’s Supreme Court decision is good news. However, it is important to remember that unless you go through the procedure of adopting a zoning ordinance (which generally requires county approval), you must still be careful not to cross the line between zoning and pure police power regulations.

Written by guest author Adam Jarchow, Attorney at Law, Bakke Norman, S.C.

You Can’t Fight City Hall or Certiorari is a Tough Nut to Crack

There’s an old saying – “you can’t fight city hall” which partly stems from the doctrine of sovereign immunity (there’s another old saying – “the king can do no wrong”). While this is not strictly true, it is certainly the case that challenging a municipality’s decision on a matter of local concern will be an uphill battle. The recent case of Mohs v. City of Madison involving the proposed redevelopment of the Edgewater Hotel in Madison is a case in point. As the court noted before beginning its analysis of the arguments, “Wisconsin courts have repeatedly stated that on certiorari review, there is a presumption of correctness and validity to a municipality’s decision.” (quoting Ottman v. Town of Primrose – see previous blog entry for info on the Ottman case).

Nearby landowners, Frederic Mohs and Eugene Devitt, and two limited liability entities, Wisconsin Ave. House LLC and 122 East Gilman LLP (collectively the appellants), challenged the Madison Common Council’s decision to grant a Certificate of Appropriateness, which was required by the Edgewater developers because the Edgewater is in a historical district. However, at the end of the day, the Court noted that the challengers’ main arguments were that the Council shouldn’t have decided it the way it did, and shouldn’t have accepted the credibility of testimony that it found credible. The Court made clear that courts “do not second guess credibility determinations” made by local government intities and courts “are not empowered to question the wisdom” of decisions concerning local issues “like the one made by the (City) Council…”

New Wind Turbine Bill Introduced (here we go again)

As has been noted in the past on this blog and in many other places, the current law in Wisconsin regarding wind turbines has been unsettled, to say the least. On May 20, 2011, Senator Frank Lasee from Senate District 1 (east of Green Bay) has introduced a bill that would modify the statute, changing the setback requirements and making other significant changes. The legislative analysis can be found at the following link: SB98.

Among other things, the bill proposes a minimum setback of a half mile from the nearest property line, unless all property owners agree to a lesser setback. The bill also requires a minimum setback of 1.1 times the height of the turbine (including the tallest extension of a blade). The bill also requires the PSC rules to provide reasonable protection from any health effects associated with wind energy systems, including health effects from noise and shadow flicker. Finally, the bill requires a study of the effect on property values.

No legislative schedule has been set for the bill as of this writing.

Nonconforming Use – use it or lose it!

In an unpublished case, Wilderness Waters & Woods Preserve, LLC v Oneida County Board of Adjustments, the courts reviewed a decision by Onieda County to deny a resort permission to convert to condominiums.

A resort had operated as a nonconforming use for some time. However, in the early 2000s, business had apparently tapered off, and the resort was used less and less. In 2006 the resort saw very little, possibly no use as a resort, and in December of 2006 the owner sold the resort to Wilderness Waters. Wilderness cleaned up and restored the property and applied to Oneida County for permission to convert the resort to condominiums. The Oneida County Board of Adjustment denied the application, finding that the nonconforming use as a resort had been abandoned for a period of longer than one year, thus the legal nonconforming status was lost.

Wilderness sought certiorari review in court, and presented some evidence that the resort had been used during that one year period, but there was substantial evidence that it had not been used, including a 2006 tax return which showed zero income for the resort (apparently proving there had been no paid guests). The Circuit Court and the Appeals Court upheld the Board decision, noting that in these types of reviews of board decisions, courts do not weigh the evidence and retry the case, but review for abuse. If the board decision can reasonably be supported, it must be upheld, even if a court might have come to a different decision. Here there was solid evidence to support the Board’s position, and thus the courts refused to overturn the County Board’s decision.

“The Board of Review for the Town of Pacific got it right.”

With those words, in a unanimous decision, the Wisconsin Supreme Court overruled both the appeals court and the circuit court and held that the developers of declared but unbuilt condominium “units” should be assessed the property taxes on the unbuuilt units. In Saddle Ridge Corporation v. the Board of Review of the Town of Pacific, Saddle Ridge argued that unbuilt condominium “units” had “zero value” and didn’t really exist until something was built. The only thing of value was the land, which was, Saddle Ridge argued, a common element. The importance of this theory is that the property tax on the common elements is apportioned to the condo units which are built. Thus in a condominium development, if only a few condos are built, those few condo owners would be responsible for the entire property tax burden for all the unbuilt condo “units.” And, as the court pointed out, under Saddle Ridge’s argument, if no condo units were built, a declared but unbuilt condominium development would not pay any taxes at all.

This case hinged on the definition of a “unit.” The court noted that in order for a condominium to be declared, it must define the “units.” Thus the “units” exist upon the declaration, no matter when they are built. Once a unit is declared, it is given a parcel number. Saddle Ridge argued that a unit does not come into existence until it is built, thus there is nothing to tax.. The court noted that according to Saddle Ridge, through a “clever use of definitions in a condominium declaration a developer could avoid paying taxes on a share of the common elements, or that the developer could avoid taxes altogether by never constructing a unit…”

The Supreme Court said that Saddle Ridge could not have it both ways – a condominium cannot be declared without creating “units,” and those “units” are taxable to the developer. The Town got it right.

Wanting to do something and actually doing it are two different things!

Uebelacker v. Begler, decided August 18, 2010. Although not involving a municipality, this unpublished land use case demonstrates the need for careful attention to detail when amending covenants controlling land use. Uebelacher and Begler are neighboring property owners in the Upper Oconomowoc Lake Association, and as such are subject to a 1961 agreement concerning the building of boathouses. In 2003, a majority of the property owners voted to amend the agreement and require all boathouses be attached to the residence. Uebelacker built a detached boathouse, and Begler sued.

This case hinged on the proper procedure required for amending the 1961 agreement, which stated that amendments could only be made if “an instrument signed by a majority of the then owners of the lots has been recorded, agreeing to change said covenants in whole or in part.” Although a majority of the owners apparently approved of the amendment, only three members of the Architectural Control Committee signed the recorded document. Based on the undisputed fact that a majority of the members had not signed the recorded amendment, the circuit court held the amendment invalid and thus unenforceable. The appeals court upheld the circuit court decision, noting: “The simple answer is that wanting to amend the 1961 agreement and actually doing so are two different things.”

The important note here is that it is important to follow your own rules – this is an area where municipalities are often challenged – a failure to follow the procedures they have enacted.

Governor Doyle signs AB-260 effectively overruling Wood v. City of Madison.

On May 18th, Governor Doyle signed AB-260 (Wisconsin Act 399) effectively overruling Wood v. City of Madison, 2003 WI 24. In Wood, the court ruled that the City of Madison could reject a plat in the extraterritorial subdivision area based on the proposed use. The new law prohibits a municipality (city or village) from denying approval of a plat or certified survey map on the basis of the proposed use of the land in the extraterritorial area (unless there is a plan or regulation adopted under the extraterritorial zoning statute – 62.23(7a)(c)).

Plain Language Reigns – “certification” required, but there is substance beneath the plain language surface formality!

In a recent unpublished decision, Johnson v. Washburn County and Town of Spooner, the Johnsons had applied to the County to rezone a parcel they owned from forestry to PUD (planned unit development). The County forwarded the request to the Town and the Town sent back the form the County had provided with the word “denial” on it, but with no reasons stated for the denial. Although it was signed by the Town Chair, the two Town Supervisors and the Clerk, there was no showing that there had been a public board meeting or resolution passed. The County approved the rezone anyway, but only then did the Town pass a formal resolution disapproving the rezone and supposedly invalidating the County action. The County then told the Johnsons that the rezone was effectively invalidated by the Town. The Johnsons sued. The circuit court held that although the Town had not given the County a “certified” denial, that the substance of the form they had submitted was sufficient. The Appeals Court said no – a certified form was required. The reason that the certified form is required is to insure that the Town held a proper public meeting and passed a formal resolution. Reading between the lines, one might say the Appeals Court noted that open government is required in Wisconsin, and that the certified form was the way the public could be ensured that the local board acted in an open and impartial manner.