“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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