Wisconsin Supreme Court Establishes Test to Distinguish Zoning Ordinances from Licensing Ordinances: Expect Widespread Regulation via Town Police Powers

February 15, 2012

The Wisconsin Supreme Court recently issued a decision in a critical case addressing the scope and authority of unzoned towns to regulate land uses through licensing ordinances under the guise of police powers. The Court’s decision was favorable to towns and appears to open the door for extensive land use regulation beyond the scope and limits of traditional zoning.

In Zwiefelhofer v. Cooks Valley, a group of landowners who own or lease land with quarry operations, challenged the Cooks Valley Non-Metallic Mining Ordinance. Cooks Valley is an unzoned town with village powers in Chippewa County, Wisconsin. The ordinance required a conditional use permit for any nonmetallic mining operation to be located in the town, and imposed use restrictions on permitted quarries. The town did not obtain county approval of the ordinance which is required for adoption of a zoning ordinance. The plaintiffs/landowners prevailed at the trial court by arguing that the ordinance constituted zoning, and absent county approval, it was invalid. Appeal was taken and certified directly to the Supreme Court.

The Court issued a unanimous decision reversing the trial court. The Court held that the Non-Metallic Mining Ordinance was a licensing / police power ordinance, and not a zoning ordinance.  As such, the ordinance did not require county approval or other procedural requirements attached to zoning. The ordinance was therefore valid and enforceable.

The Court did not create a bright-line rule as to what constitutes a zoning ordinance.  Instead, the Court endorsed a functional approach. The decision lists six characteristics of zoning ordinances and several purposes of zoning ordinances, and then analyzes the subject ordinance in relation to such characteristics and purposes.

With respect to characteristics of a zoning ordinance, the Court listed the following and concluded:

  1. Zoning divides an area into multiple zones. The subject ordinance did not create multiple zones.
  2. Within zones, some uses are permitted and some are prohibited. The subject ordinance did not spell out permitted uses.
  3. Zoning is targeted at controlling where a use occurs, as opposed to how it occurs. The subject ordinance regulated mining everywhere, and focused on regulating use of the land.
  4. Zoning ordinances typically classify uses in general terms and attempt to comprehensively address all possible uses in that area. The subject ordinance only addressed nonmetallic mining.
  5. Zoning ordinances traditionally make a fixed-forward looking determination about what uses will be permitted, rather than a case-by-case, ad hoc basis. The subject ordinance does not list permitted uses; and calls for review on a case by case basis.
  6. Zoning ordinances allow grandfathering of established uses despite failure to conform. The subject ordinance grandfathers existing operations.

Additionally, the Court discussed and analyzed the purposes of zoning, and the Court emphasized the following purposes as critical:

  1. The separation of incompatible land uses.
  2. To confine certain classes of buildings and uses to certain localities.
  3. To comprehensively assign compatible land uses to districts throughout the community.

Overall, an examination of the similarities and differences of the subject ordinance to a zoning ordinance weighed in favor of finding it was not a zoning ordinance. Moreover, with respect to purpose, the Court concluded that the ordinance does not attempt to separate incompatible uses. The town’s intent only appeared to regulate a single use.  Therefore, the Court concluded the purpose was not to act as zoning. The ordinance therefore was lawfully adopted as a licensing ordinance.

This decision paves the way for towns across the state to adopt police power licensing ordinances outside the scope of zoning, provided they follow the Court’s guidelines. The subject ordinance was enacted to address the widespread development pressure surrounding frac sand mining in Wisconsin. In the case on nonmetallic mining and other current or future land uses deemed objectionable by local communities, it appears that the Court has opened the door for unzoned towns to adopt licensing ordinances to regulate such uses on a case by case basis outside the established, traditional processes of zoning – e.g. public hearings and county board approval. A flood of such ordinances is likely, beginning with non-metallic mining ordinances.

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