Does your municipality have zoning districts in which all uses are conditional uses?

Municipal Law Alert, July 2007

Wisconsin Supreme Court asked to rule on the constitutionality of “no permitted use” districts.

Municipalities which have zoning districts with no permitted uses may want to prepare to amend their zoning ordinances. The Wisconsin Court of Appeals recently requested that the Wisconsin Supreme Court rule on whether such ordinances are constitutional under Wisconsin law. The case originated in the Town of Rhine in Sheboygan County. The Town denied a rezoning petition and application for conditional use permit submitted by an off-highway vehicle club. After receiving citizen complaints about noise, the Town also cited several members of the club for violating the Town’s public nuisance ordinance. After the Municipal Court dismissed the nuisance citations, the Town appealed the dismissals to the Circuit Court of Sheboygan County and further sought an order restraining the defendants from operating motorized vehicles on the property.

In its decision, the Circuit Court held that the Town’s zoning ordinance was unconstitutional and void, because it prohibited all uses within the use-district classification. The Court stated that “[a] zoning ordinance which bars all uses within a district is unreasonable….confiscatory in nature and oppressive.” The Court further labeled the Town’s ordinance “unduly restrictive.” (Town of Rhine v. Bizzell, et al, Case

No. 04 CV 898, Sheboygan County Circuit Court, Jan. 13, 2006.)

The Town appealed the Circuit Court’s decision to the Wisconsin Court of Appeals. The Court of Appeals certified the case to the Wisconsin

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