Agenda - Planning Commission - 09/06/2007

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August 1, 2007 I Vol ume 1 I No. 15 The Wisconsin Realtors Association and Wisconsin Builders Associa- tion (collectively, the realtors) filed what was called a declaratory judg- ment action in court, asking the court to declare that the tow"TI did not have the authority to enact the ordinance. The lower court granted judg- ment without a trial in the town's favor and declared the ordinance valid. The realtors appealed. Decision: Referred to the state supreme court for review. On appeal, the realtors pointed out that municipalities in Wisconsin only have the authority "expressly conferred upon them by statute or nec- essarily implied from powers given," and that here, the town did not have statutory zoning authority because Columbia County had enacted its own zoning ordill.ance. Under state law, towns could enact zoning orclli"1.ances in the absence of a coumy zoning ordinance only. The realtors contended further that the town did not obtain the approval of the county and the town citizens--conditions set fonh by state statute for a town to exercise delegated zoning authority. The town argued that it was not exercising authority under the statutes cited by the realtors, bur rather a different statute authorizing a general police powers ro zoning boards. That statute provided that village boards, among other things, had the "power to act for the government and good order of the village, for its commercial benefit and for the health, safety, welfare and convenience of t.he public...by... regulation...and otherneces- sary or convenient means." The town also cited another statute that provided that any town with an established planniDg agency could "adopt ordin2J.lCes governing the subdi- vision or other ruvision of land" that were more restrictive than had been. previously established by the county as long as the more restrictive meac sures were taken to carry out a larger zoning purpose-such as conform- ing to a comprehensive plan. The tow"TI argued that the ability to adopt a temporary moratorium on subruvisions was an "ord.iDance governing the subdivision or other division of land" rather than a zorlli.lg ord.iDance, fur- thering several of the purposes of the smart growth statute, includ.iDg "fur- therance of the orderly layour and use of land, prevention of overcrowd.iDg on the land, and avoidance of undue population concentrations." The realtors countered that the town acted in COnfliCT with the statute upon which it relied, because a subsection of the statute contained a re- quirement for a town ro accept subdivision applications, review them, and either approve, conditionally approve, or object to proposed plats. It did not aurhorize refusing to act upon applications altogether. In add.ition, the realtors claimed that there was another statute in existence provirung cit- ies with interim zoning power allowing the preservation of the status quo while formulating a comprehensive plan-essentially the ability to impose moratoriums. The realtors argue that if the legislature had intended for tOUlnS to have the same aurhority as cities, it could have given it to them. The appeals court noted that the issue of whether a town could impose a moratorium on subdivision or other zoning actions while updating its comprehensive plan was "a question of significant statev'i'ide interest" that was likely to recur in light of the smart grOw-ill statute. Therefore, the ap- . 3 115