Agenda - Planning Commission - 05/03/2012

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Zoning Bulletin March 10, 2012 Volume 6 I No. 5 Here, the Town was located in a county that had enacted countywide zoning but the Town had not adopted the county's zoning ordinance. Therefore, under Wisconsin statutory law, Wis. Stat. § 60.62(3), the Town could only adopt a zoning ordinance with approval of the county board. The Town had adopted the Ordinance without county board approval. Finding there were no material issues of fact in dispute, and decid- ing the matter on the law alone, the circuit court issued summary judg- ment in favor of the Residents. The court agreed that the Ordinance was a zoning ordinance that required county approval. The court concluded that because the Town had not obtained county board approval of the Ordinance, the Ordinance was invalid. The Town appealed. DECISION: Reversed. The Supreme Court of Wisconsin held that the Ordinance was a non - zoning police power ordinance, not a zoning ordinance, and thus county board approval of the Ordinance was not required. The court explained that all ordinances enacted under a municipal- ity's police power are not zoning ordinances. In determining whether the challenged Ordinance was a zoning ordinance, the court said that there was no bright -line rule governing what constitutes a zoning ordinance. Rather, the court said it must determine whether the Ordinance is a zon- ing ordinance "using a functional approach." To determine whether the Ordinance should be classified as a zoning ordinance —and thus, here, needing county approval —the court said that it needed to: "compare the characteristics and purposes of the Ordinance to the characteristics and purposes of traditional zoning ordinances." Here, the court found that "many traditional characteristics of zon- ing ordinances [were] absent from the Ordinance." Specifically, the court noted that, here, the Ordinance: did not create multiple districts, but applied with equal force to any location in the Town; did not confine nonmetallic mining to any particular area in the Town; did not directly affect where an activity could take place, but rather governed how an ac- tivity must be conducted thus limiting where it could be conducted; did not automatically permit or prohibit any land use, but instead operated entirely on a case -by -case basis; and did not comprehensively address a wide range of potential classes of land use, but instead spoke only to a single, specific land use. Still the court found similarities of the Ordinance to a zoning ordi- nance: its features included conditional allowance of a land use and ex- emption of preexisting land uses; it clearly regulated the use of land "in a potentially dramatic way"; and it regulated nonmetallic mining in many respects and in great detail. However, the court also found that the Ordinance did not seem "even loosely similar to zoning" in its purpose: While the purpose of zoning © 2012 Thomson Reuters 3