Wisconsin Supreme Court Digest

The Wisconsin Supreme Court released one new opinion last week – Zwiefelhofer v. Town of Cooks Valley, authored by Chief Justice Abrahamson.

In Zwiefelhofer, the court was tasked with determining whether a particular ordinance was a zoning or non-zoning ordinance.  If it was a zoning ordinance, it would have been struck down because the Town had failed to get county approval.  However, the court unanimously (sans Justice Prosser), concluded that the ordinance was not a zoning ordinance and therefore did not need county approval.

The ordinance at issue created a lengthy and detailed permit application process for operating nonmetallic mines, including an application, approval by the plan commission, public input, approval by the town board, and the ability of the board to impose conditions on the mine.

The court acknowledged a lack of clarity in past case law about how to determine whether an ordinance is a zoning ordinance or not, and adopted a complex multi-factor test.  The court noted that none of the factors were conclusive and the factors cannot just be added up and compared pro and con.  The factors the court considered were:

  • Whether the ordinance divides land into districts
  • Whether the ordinance provides for permitted and/or conditional uses of land
  • Whether the ordinance controls the “where” of an activity rather than the “how” of an activity
  • Whether the ordinance comprehensively addresses all possible uses of an area
  • Whether the ordinance provides a fixed and forward-looking application rather than a case-by-case determination
  • Whether the ordinance protects non-conforming uses.

The court also considered whether the ordinance advanced the purpose of zoning.  The court looked at several possible purposes of zoning from prior case law, concluding that “promot[ing] the welfare of the community as a whole” and “regulat[ing] the growth and development of the city in an orderly manner” were too broad too be helpful.  The court settled on more specific purposes such as “confin[ing] certain classes of buildings and uses to certain localities” and “separating incompatible land uses.”

The court concluded the mining ordinance was not a zoning ordinance.  It first applied the factor test, noting that the ordinance: (1) applied universally, rather than dividing land into districts; (2) neither permitted anything of right nor flat-out prohibited anything; (3) regulated activity rather than location; and (4) addressed a particular activity in any location, rather than all activities in one location.  The court discounted the fact that it contained conditional use language and a grandfathering rule, concluding that the former was not determinative and the latter was frequently used in non-zoning ordinances.

The court also concluded that the ordinance did not meet the purposes of zoning.  It did not confine mining to particular locations or separate incompatible land uses.  Although the town board could choose not to permit a mine in a residential area, the ordinance itself made no geographic distinctions.

In adopting this multi-factor test, the court rejected several bright-line tests.  First, it rejected Zwiefelhofer’s argument that the ordinance’s use of conditional use language proved it to be a zoning ordinance.  Second, it rejected the Town’s opposing argument that the ordinance’s claim to be enacted under the town’s “general police power” proved it not to be a zoning ordinance.

Finally, the court puzzlingly rejected what had at least appeared to have been the pertinent standard prior to this case, i.e.,   – whether the zoning ordinance “pervasively regulated land use.”  The court discarded this formulation, stating that “the phrases ‘pervasive regulation’ of the use of land or ‘substantial interference’ with the use of land are not effective bright-line rules to guide local governments or courts.”

Yet, the court criticized the vagueness of “pervasive regulation” and “substantial interference” while at the same time adopting a totality-of-the-circumstances, seven-factor, flexible-weighting test.  The result of this case is unremarkable, but this new test may provide less guidance than the Court intended.

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