Town of Rhine v. Brock O. Bizzell

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2008 WI 76 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2006AP450 Town of Rhine, Plaintiff-Appellant, v. Brock O. Bizzell, Matthew A. Schuette, Jonathon W. Thompson, Timothy J. Van der Vaart, Andrew S. Wiesz, Scott R. Wiesz, and Manitowoc Area Off Highway Vehicle Club, Inc., Defendants-Respondents. ON CERTIFICATION FROM THE COURT OF APPEALS OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: July 1, 2008 February 26, 2008 Circuit Sheboygan Gary Langhoff ABRAHAMSON, C.J., concurs (opinion filed). ATTORNEYS: For the plaintiff-appellant there were briefs by Joseph R. Cincotta and the Law Offices of Joseph R. Cincotta, Milwaukee, and by Paul Dirkse and O Neil, Cannon, Hollman, DeJong, S.C., Sheboygan, and oral argument by Joseph Cincotta. For the defendants-respondents there was a brief by Michael E. Lambert and Kummer, Lambert & Fox, LLP, Manitowoc, and oral argument by Michael E. Lambert. An amicus curiae brief was filed by Andrew T. Phillips, Gina M. Ozelie, and Stadler, Centofanti & Phillips, S.C., Mequon, on behalf of the Wisconsin Counties Association. An amicus curiae brief was filed by Lee Turonie, assistant legal counsel, Shawno, on behalf of the Wisconsin Towns Association. An amicus curiae brief was filed by Thomas D. Larson and Debra P. Conrad, Wisconsin REALTORS® Association, Madison, and John A. Kassner III and Murphy Desmond S.C., Madison, on behalf of the Wisconsin REALTORS® Association, and oral argument by John A. Kassner III. 2 2008 WI 76 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2006AP450 (L.C. No. 2004CV898) STATE OF WISCONSIN : IN SUPREME COURT Town of Rhine, Plaintiff-Appellant, FILED v. JUL 1, 2008 Brock O. Bizzell, Matthew A. Schuette, Jonathon W. Thompson, Timothy J. Van der Vaart, Andrew S. Wiesz, Scott R. Wiesz, and Manitowoc Area Off Highway Vehicle Club, Inc., David R. Schanker Clerk of Supreme Court Defendants-Respondents. APPEAL from an order of the Circuit Court for Sheboygan County, Gary Langhoff, Judge. Affirmed in part, reversed in part, and cause remanded to the circuit court. ¶1 ANNETTE KINGSLAND ZIEGLER, J. This case is before the court on certification by the court of appeals, pursuant to Wis. Stat. 1 § (Rule) 809.61 (2005-06).1 The circuit court All subsequent references to the Wisconsin Statutes are to the 2005-06 versions unless otherwise indicated. References to the Town of Rhine, Wis., Municipal Code are to the 2005 version unless otherwise indicated. No. 2006AP450 concluded that Town of Rhine, Wis., Municipal Code § 4.08(2)(a),2 "B-2 Commercial unconstitutional Manufacturing and that the or Processing," defendants' violations should be dismissed. nuisance is ordinance The court of appeals certified two issues to this court. ¶2 The first issue is whether Town of Rhine, Wis., Municipal Code § 4.08(2)(a) is unconstitutional on its face. We conclude is that unconstitutional § 4.08(2)(a), on its face the because B-2 it District, is arbitrary and unreasonable in that it precludes any use as of right in the B-2 District and such limitation bears no substantial relation to the public health, safety, morals or general welfare. ¶3 The second issue is whether the circuit court properly dismissed the defendants' nuisance ordinance violations. We conclude that the circuit court applied a common-law definition of "nuisance" rather than the definition of "public nuisance" articulated in Town of Rhine, Wis., Municipal Code § 2.02. result, we remand to the circuit court to apply the As a code's definition of "public nuisance." ¶4 Therefore, we affirm in part, reverse in part, and remand to the circuit court for a new hearing on the public nuisance claim. 2 Town of Rhine, Wis., Municipal Code § 4.08(2)(a) reads in part, "[t]here are no permitted uses in the B-2 District, except that those uses permitted in the Agricultural Land Districts A1, A-2 and A-3 may be authorized in conjunction with any conditional uses . . . . All uses are conditional and shall comply with the provisions of Section 4.09 of this ordinance." 2 No. 2006AP450 I. FACTS ¶5 Vehicle On October 1, 2003, the Manitowoc Area Off Highway Club, Inc., (hereinafter "the Club") purchased 77.2 acres of land in section twelve of the Town of Rhine, Sheboygan County. The zoning classification of this land has been "B-2 Commercial Manufacturing or Processing" for 20 years. Within this classification, "[t]here are no permitted uses in the B-2 District, except that those uses permitted in the Agricultural Land Districts A-1, A-2 and A-3 may be authorized in conjunction with any conditional uses . . . . All uses are conditional and shall comply with the provisions of Section 4.09 [Conditional Uses] of this ordinance." § 4.08(2)(a). Town of Rhine, Wis., Municipal Code Conditional uses in the "B-2 Commercial Manufacturing or Processing" district include: (1) fabrication of consumer or industrial commodities; (2) garbage, rubbish, offal, industrial waste and dead animal reduction or disposal; (3) quarrying; (4) mining and ore processing; (5) salvage yards for wood, metals, papers and clothing; and (6) stockyards.3 ¶6 Id. After purchasing the property in 2003, club members used the property for riding all-terrain vehicles (ATVs) and hunting. On January 6, 2004, pursuant to a request by the Town 3 On March 1, 2005, the Town of Rhine amended the conditional uses in the B-2 District to include off-road vehicle parks. The Club initially applied for a conditional use permit under the revised ordinance, but it subsequently requested that the application be held while the defendants sought to dismiss the nuisance ordinance violations. The conditional use permit would have allowed ATV activity on Wednesdays and Fridays from 10:00 a.m. until 6:00 p.m. but not on weekends or holidays. 3 No. 2006AP450 of Rhine, the Club's president appeared at a Town of Rhine board meeting.4 At the meeting, the Club president was asked what activities were occurring on the property. The Club president responded that members "are a group of families that live in the city limits recreation and such don't as own hunting, enough property horseback to riding, enjoy outdoor bicycling, ATV riding etc." ¶7 Chairman Sager asked if the Club members were aware that the land was zoned B-2 when they purchased the land. The Club president responded that the Club's attorney informed them that "because it was zoned business and not residential[,] the manner in which they are using the land should not be an issue." Chairman Sager then related that B-2 zones require a conditional use permit "for any use of the land." He further stated that "an application should be directed to the Plan Commission for either a CUP [conditional use permit] or rezoning." The Club president then asked whether he needed to apply for specific uses or different zoning. Chairman Sager answered that it would depend on how they intended to use the land. ¶8 On May 19, 2004, the Club applied for a conditional use permit. In the conditional use application, the Club stated that it wanted to use the property for recreational activities, such as hunting and riding ATVs. 4 The application stated, The record contains minutes from the January 6, 2004, meeting. The minutes are entitled: "Town of Rhine Board of Supervisors Regular Monthly Meeting." Chairman Don Sager conducted the meeting. 4 No. "[t]his IS NOT operation." 7, 2004.5 also a request for a commercial or 2006AP450 industrial The conditional use permit was denied on September Although the record is unclear as to when, the Club applied "Neighborhood for the B-2 Business" zone to district. be That rezoned rezoning to a B-1, request was also denied, but it is unclear from the record when it was denied. ¶9 On October 10, 2004, the Elkhart Lake Police Department issued citations to six club members for violating the Town of Rhine's Public Nuisance Ordinance. Wis., Municipal Code § 2.01. On December Town of Rhine, 14, consolidated trial was held for all six defendants. 2004, a The Elkhart Lake Municipal Court dismissed the ordinance violation due to insufficient evidence. Pursuant to Wis. Stat. § 800.14, the Town of Rhine appealed the municipal court's decision to the Sheboygan County Circuit Court. ¶10 On December 19, 2004, in Sheboygan County Circuit Court, the Town of Rhine filed a complaint that alleged two causes of action. In the first cause of action, regarding the public nuisance violations of the ordinance, the Town of Rhine asked for a de novo review of the dismissed citations. In the second cause of action, regarding the zoning violation, the Town of Rhine asked for a determination of whether the Club was violating the Town of Rhine's zoning code, and the Town of Rhine 5 Neither the minutes of this meeting nor any other source appears in the record that provides the board's reasoning. 5 No. 2006AP450 sought an order enjoining the Club from operating ATVs on the property. ¶11 On August 29, 2005, a trial to the court was held. On January 13, 2006, the circuit court issued a written decision. In that decision, the circuit court characterized the two issues as follows: (1) whether the Town of Rhine B-2 zone use restriction was constitutional; and (2) whether the Club's use of the property constituted a public nuisance. ¶12 The circuit court concluded "that a zoning ordinance which bars all uses within a district is unreasonable." It further stated that "a zoning ordinance which permits no uses within a district is confiscatory in nature and oppressive." Accordingly, the circuit court ordinance was unconstitutional. concluded that the zoning With respect to the nuisance claim, the circuit court determined that although the ordinance related to a public nuisance, the Town of Rhine's claim was an attempt to abate a private nuisance. to Milwaukee Metropolitan The circuit court, citing Sewerage District v. City of Milwaukee, 2005 WI 8, 277 Wis. 2d 635, 691 N.W.2d 658, stated that a nuisance is a public with the nuisance public if "the right or condition use of or activity interferes public space." The circuit court determined that the nuisance could not be a public nuisance because the property at issue was not a public place, and entire community. the Club's activities did not affect the As a result, it concluded that the Town of Rhine lacked standing to advance the claim. appealed the circuit court's decision. 6 The Town of Rhine Pursuant to Wis. Stat. No. 2006AP450 § 809.61, the court of appeals certified this case to us for review and determination. We accepted the certification. II. STANDARD OF REVIEW ¶13 "The interpretation and application of an ordinance to an undisputed set of facts is a question of law, which this court decides de novo." Bruno v. Milwaukee County, 2003 WI 28, ¶6, 260 Wis. 2d 633, 660 N.W.2d 656. The constitutionality of an ordinance is also a question of law, which this court reviews Wilke v. City of Appleton, 197 Wis. 2d 717, 726, 541 de novo. N.W.2d 198 (Ct. App. 1995). III. ANALYSIS ¶14 B-2 The Club argues that Municipal Code § 4.08(2)(a), the District, violates due prohibited permit. is unconstitutional process unless in the that on any landowner its use face of obtains a because it the property is conditional use It further argues that there are no clear and objective standards for the landowner to obtain a conditional use permit. The Town of Rhine, on the other hand, argues that Municipal Code § 4.08(2)(a) is constitutional. It argues that the B-2 District does allow for certain uses of the property under a conditional use permit, and therefore, it is inaccurate to assert that B-2 zoning does not allow any use. The Town of Rhine also argues that Municipal Code § 4.01 sets forth adequate standards for obtaining a conditional use permit, and it asserts that a number of other municipalities have conditional use provisions similar to the Town of Rhine. We conclude unconstitutional on its face. 7 that § 4.08(2)(a) is No. 2006AP450 A. Zoning principles ¶15 Zoning ordinances and land use regulations have a useful, valid purpose, and the government has broad authority to enact such classifications for the purpose of promoting health, safety, morals or the general welfare of the community. State ex rel. American Oil Co. v. Bessent, 27 Wis. 2d 537, 544-46, 135 N.W.2d 317 (1965). ¶16 The Town of Rhine has adopted village powers pursuant to Wis. Stat. § 61.35, which states that the powers and duties conferred and imposed by Wis. Stat. § 62.23, "City Planning," applies to therefore, village officials. accomplished Zoning pursuant to of municipalities § 62.23(7) and is, its subsections. ¶17 "Zoning ordinances comprehensively assign compatible land uses to zoning districts throughout the community." Daniel R. Mandelker, Land Use Law § 1.04, at 1-4 (5th ed. 2003). The municipality is generally divided into different districts, such 8 No. as residential, commercial, and industrial.6 Id. 2006AP450 The use of comprehensive zoning arose in the early twentieth century, and the United States Department of Commerce encouraged the use of comprehensive act."7 zoning by publishing the model "state enabling 1 Kenneth H. Young, Anderson's American Law of Zoning § 1.14, at 21 (4th ed. 1996). Comprehensive zoning earned the approval of this court as early as 1923. State ex rel. Carter v. Harper, 182 Wis. 148, 196 N.W. 451 (1923); see also Village of Euclid, (upholding Ohio a v. Ambler Realty comprehensive zoning Co., 272 U.S. ordinance). 365 (1926) Wisconsin's enabling act is found in Chapter 62 of the Wisconsin Statutes. See Wis. Stat. § 62.23. 6 Alternatives to traditional zoning have arisen over the years, such as "form based zoning" or "mixed use zoning." S. Mark White, Classifying and Defining Uses and Building Forms: Land-Use Coding for Zoning Regulations, American Planning Association Zoning Practice, Sept. 2005, at 2-3; Sonia Hirt, The Devil is in the Definitions, 73 Journal of the American Planning Association, at 436 (Autumn 2007). "'[F]orm-based zoning' is the latest trend in the planning profession." White, supra, at 3. It is "based on the theory that design controls can resolve inconsistencies between land uses. Design controls for [formbased zoning] ordinances include building envelope standards, building frontage requirements, fenestration (window and entryway), facade coverage, and traditional façade modulation techniques." Id. at 2. In contrast, "mixed use zoning" mixes a number of different uses in respective zones rather than limiting mixed uses. Hirt, supra, at 436. Many urbanists believe that mixed use districts are the key to restoring vibrancy to American cities. Id. However, traditional "use districting remains the mainstay of most zoning ordinances" and "this is expected to continue for the foreseeable future." White, supra, at 3. 7 See generally 1 Kenneth H. Young, Anderson's American Law of Zoning § 2.21, at 67-69 (4th ed. 1996) (discussing the significance of the Standard State Zone Enabling Act). 9 No. ¶18 In American Oil Co., this court 2006AP450 stated that a comprehensive zoning ordinance was a justified "exercise of the police power not only in the interest of public health, morals, and safety, welfare, 544. but particularly convenience and for general the promotion prosperity." 27 of public Wis. 2d at A comprehensive zoning ordinance, enacted pursuant to Wis. Stat. § 62.23, is presumed valid and must be liberally construed in favor of the municipality. American Oil Co., 27 Wis. 2d at 546. ¶19 In general, zoning ordinances provide landowners with permitted uses, which allow a landowner to use his or her land, in said manner, as of right. Mandelker, supra, § 6.39, at 6-44. "Most ordinances impose a broad division of land uses, and, in addition, provide maintained in permit . . . ." that named specified districts, uses only may be pursuant established to 3 Young, supra, § 21.01, at 693-94. a or special "Uses are permitted in designated districts because they are thought to be compatible with other uses permitted in such district." 2 Young, supra, § 9.20, at 169. ¶20 provide In for addition to conditional permitted uses by 10 uses, virtue ordinances of a may special also use or No. conditional use permit.8 A conditional different than a permitted use. use, 2006AP450 however, is See S. Mark White, Classifying and Defining Uses and Building Forms: Land-Use Coding for Zoning Regulations, American Sept. 2005, at 8. Planning Association Zoning Practice, While a permitted use is as of right, a conditional use does not provide that certainty with respect to land use. See id. Conditional uses are for those particular uses that a community recognizes as desirable or necessary but which the community will sanction only in a controlled manner. State ex rel. Skelly Oil Co. v. Common Council, City of Delafield, 58 Wis. 2d 695, 701, 207 N.W.2d 585 (1973); 3 Young, supra, § 21.06 (discussing uses commonly subject to special permit requirements). ¶21 A conditional use permit allows a property owner "to put his property to a use which the ordinance expressly permits when certain conditions [or standards] have been met." Oil Co., 58 Wis. 2d at 701. Skelly The degree of specificity of these 8 In Anderson's American Law of Zoning, "the term 'special permit' and 'exception' are not terms of art. They will be used consistently [in Anderson's American Law of Zoning], but the ordinances employ in addition to these terms, 'conditional use,' 'special exception,' 'special use,' and a variety of other combinations of descriptive words." 2 Young, supra, § 9.17, at 162. See generally Daniel R. Mandelker, Land Use Law § 6.54 (5th ed. 2003) (discussing the role and function of conditional uses). 11 No. standards may vary from ordinance to ordinance.9 2006AP450 3 E.C. Yokley, Zoning Law and Practice § 21-1, at 21-4 (4th ed. 2002) (2002 revision by Douglas Scott MacGregor). ¶22 A zone that provides for use of property only when a landowner obtains a conditional use permit may face scrutiny. See Julian Conrad Juergensmeyer & Thomas E. Roberts, Land Use 9 Although general standards for determining whether a conditional use permit should be granted have been utilized by some municipalities, most ordinances provide standards that are more detailed. 3 E.C. Yokley, Zoning Law and Practice § 21-1, at 21-4 (4th ed. 2002) (2002 revision by Douglas Scott MacGregor). The more generalized standards, adopted by some municipalities, have simply stated that uses are allowed if they are in the "public interest," "general welfare," or "consistent with the 'purpose or intent' of the zoning ordinance." Mandelker, supra, § 6.03, at 6-6. However, standards must be sufficiently specific in order to allow for judicial review. See 3 Young, supra, § 21.09, at 709 (discussing the specificity of standards). "An ordinance fails to provide suitable standards where it confers on a board [] 'unlimited discretion to condition the issuance of the permit on the basis of such norms or standards as it may from time to time arbitrarily Anderson's American Law of Zoning determine.'" Id. at 711. provides an example of conditional use standards. See 5 Alan C. Weinstein, Anderson's American Law of Zoning § 34.23, at 574-75 (4th ed. 1997). While the example in Anderson's American Law of Zoning is still general in nature, it provides more guidance than, for example, simply allowing those uses that are in the "public interest" or "general welfare." "Cases that invalidate [general standards, such as in the 'public interest' or 'general welfare,'] emphasize the unlimited discretion they confer on zoning agencies." Mandelker, supra, § 6.03, at 6-6; see also 3 Young, supra, § 21.09. "Cases that uphold these standards emphasize the need for flexibility in zoning administration and the difficulty of drafting more precise criteria." Mandelker, supra, § 6.03, at 6-6. As noted in Anderson's American Law of Zoning, "a sampling of both approved and disapproved standards reveals an overlap which cannot be satisfactorily explained . . . ." 3 Young, supra, § 21.09, at 715-16. 12 No. 2006AP450 Planning and Development Regulation Law 283-84 (2d ed. 2007).10 Conditional use permits, however, remain a widely accepted tool of municipal planning.11 ¶23 Allowing for Skelly Oil Co., 58 Wis. 2d at 700-01. conditional uses, in addition to permitted uses as of right, makes sense when one considers the 10 Professors Juergensmeyer and Roberts state: From the inception of zoning, special permit has grown. . . . the use of the A court will likely invalidate an ordinance that handles all uses by special permit. The court in Rockhill v. Township of Chesterfield faced a situation that almost went that far. The authorities zoned the entire township for agricultural and residential uses, and no other use was possible without issuance of a special permit. The court found the ordinance beyond the scope of the enabling statute since the zoning was neither uniform nor comprehensive. It placed too many uses subject to "local discretion without regard to districts, ruled by vague and elusive criteria, [and was] . . . the antithesis of zoning." The Rockhill court's objection may be overstated. If the standards are adequate and written into the ordinance, there is no reason to require control of land use by districting rather than a case by case regulatory scheme. Julian Conrad Juergensmeyer & Thomas E. Roberts, Land Use Planning and Development Regulation Law 283-84 (2d ed. 2007) (footnotes omitted). 11 However, zoning experts have differing opinions with respect to the value of special permit zoning, i.e., conditional use permits. 2 Young, supra, § 9.18, at 166. Some experts believe "that the trend toward more specially permitted uses is unfortunate in that it narrows the number of uses which a landowner can establish as of right." Id. "The special requirement [or conditional use permit] is thought by these critics to impose too heavy a burden upon landowners by requiring them to resort to administrative proceedings to vindicate their right to use their lands." Id. 13 No. 2006AP450 purpose of the conditional use permit. First, conditional uses are designed flexibility situations where devices, a "which particular are use, although to cope not with inherently inconsistent with the use classification of a particular zone, may well create special problems and hazards if allowed to develop and locate as a matter of right in [a] particular zone." Id. at 701; see also Gail Easley, Conditional Uses: Using Discretion, Hoping for Certainty, American Planning Association Zoning Practice, May 2006, at 2 (identifying conditional uses as flexibility devices). ¶24 Second, conditional use permits are appropriate for "certain uses, considered by the local legislative body to be essential or desirable for the welfare of the community . . . , but not at every or any location . . . or without conditions being imposed . . . ." (citation omitted). Mandelker, § 6.54, supra, at 6-61 Thus, those uses subject to a conditional use permit are necessary to the community, but because they often represent uses that may be problematic, their development is best governed more closely rather than as of right. ¶25 "Conditional "conditional use uses" however, permits" also should not referred be to confused "conditional-use district zoning"12 or "conditional zoning." 12 as with In "Conditional-Use District Zoning" is also known as "conditional-use zoning" or "special-use district zoning." David W. Owens, Legislative Zoning Decisions 93 (2d ed. 1999). For an example of a reference to conditional-use zoning, see Village Creek Property Owners' Association, Inc., v. The Town of Edenton, 520 S.E.2d 793, 796 (N.C. App. 1999). 14 No. "conditional-use district zoning," "a landowner 2006AP450 requests that some property be placed in a new zoning district that has no permitted uses, only special or conditional uses." David W. Owens, Legislative Zoning Decisions 93 (2d ed. 1999). In such zoning: [T]he ordinance text is amended to create a set of conditional-use districts. These conditional-use districts have no permitted uses as of right: no new use of land may be undertaken unless a special- or conditional-use permit is first secured. Often there is one conditional-use district to correspond with each regular or general zoning district. These conditional-use districts are "floating zones"; that is, they are not applied to any property until a petition to apply them is made by the landowner. . . . Id. (footnote hand, is rezoning acceptance applied omitted). of in "Conditional that additional the new is made "subject requirements zoning zoning," that district." on to the the otherwise Id. at 97; other owner's are see not also Mandelker, supra, § 6.62 (discussing "conditional zoning"). B. Constitutional principles ¶26 The role because zoning is County, 33 of courts in a legislative Wis. 2d 137, 146-47, zoning matters function. 146 is Buhler N.W.2d 403 limited v. Racine (1966). An ordinance is presumed valid and must be liberally construed in favor of the municipality. The party challenging bears a heavy burden. 3.14. the American Oil Co., 27 Wis. 2d at 546. constitutionality of an ordinance See generally 1 Young, supra, §§ 3.01, In Wisconsin, "an ordinance will be held constitutional unless the contrary is shown beyond a reasonable doubt[,] and 15 No. 2006AP450 the ordinance is entitled to every presumption in favor of its validity." Allis, 6 Highway 100 Auto Wreckers, Inc. v. City of West Wis. 2d 637, 646, 96 N.W.2d 85 (1959); see also 1 Young, supra, § 3.22 (discussing the beyond a reasonable doubt standard in Wisconsin).13 "Consequently, although a court may differ with the wisdom, or lack thereof, or the desirability of the zoning, the court, because of the fundamental nature of its power, cannot substitute its judgment for that of the zoning authority in the absence of statutory authorization." Buhler, 33 Wis. 2d at 146-47. ¶27 Nonetheless, a properly enacted ordinance must satisfy constitutional requirements. Pearson v. City of Grand Blanc, 961 F.2d 1211, 1223 (6th Cir. 1992) (stating that "the zoning power is not infinite and unchallengeable; it 'must be exercised within constitutional limits'"). Land use litigation generally arises out of the manner "in which zoning text and ordinance classify land into zoning districts." at 1-5. Mandelker, supra, § 1.04, Constitutional challenges may arise, for example, under the takings, due process, or equal protection clauses of the state and federal constitutions. see generally Framework." Mandelker, supra, Pearson, 961 F.2d at 1215-16; ch. 2, "The Constitutional Substantive due process claims with regard to land 13 Wisconsin is one of a minority of states that asserts a beyond a reasonable doubt standard to successfully challenge the constitutionality of a municipal ordinance. 1 Young, supra, § 3.22; see also § 3.20 3.21 (discussing the "fairly debatable issue" and "clear and convincing evidence" standards, which are applied in the majority of states. 16 No. 2006AP450 use regulation, as we see in this case, do not have high success rates. Id., § 2.39, at 2-46; but see 1 Yokley, supra, § 3A-1(c) (stating that "[s]ubstantive due process claims litigation are occurring with more frequency"). in land use Under the due process clause, courts generally require that "land use controls must advance legitimate governmental interests that serve the public health, safety, morals, and general welfare." Mandelker, supra, § 2.39, at 2-46 through 2-47. ¶28 "The Due Process Clause of the Fourteenth Amendment prohibits a state from depriving 'any person of life, liberty, or property without due process of law.'"14 Penterman v. Wisconsin Elec. Power Co., 211 Wis. 2d 458, 480, 565 N.W.2d 521 (1997) (citation omitted); see also Laughter v. Board of County Comm'rs for Sweetwater County, 110 P.3d 875, 887-88 (Wyo. 2005). "The substantive component of the Due Process Clause protects individuals from 'certain arbitrary, wrongful actions 'regardless of the fairness of the procedures used to implement them.''" Penterman, 211 Wis. 2d at 480 (citations omitted). "Substantive due process forbids a government from exercising 'power without any reasonable justification in the service of a legitimate governmental objective.'" 2000 WI 60, ¶45, 235 Wis. 2d 610, Thorp v. Town of Lebanon, 612 N.W.2d 59 (citation omitted). 14 The Fourteenth Amendment to the United States Constitution provides that "nor shall any State deprive any person of life, liberty, or property, without due process of law . . . ." 17 No. ¶29 The United States Supreme Court has 2006AP450 recognized a landowner's right to substantive due process in zoning cases. See Pearson, 961 F.2d at 1217, 1220 (citing to Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 263 (1977); Nectow v. City of Cambridge, 277 U.S. 183, 187 (1928); [Village of] Euclid[, Ohio] v. Ambler Realty Co., 272 U.S. 365, 373 (1926)). The Supreme Court has stated, "a zoning ordinance is unconstitutional when its 'provisions are clearly arbitrary and unreasonable having no substantial relation to the public health, safety, morals or general welfare.'" Thorp, 235 Wis. 2d 610, ¶45 (quoting Euclid, 272 U.S. at 395). ¶30 However, when evaluating a claim that a landowner's substantive due process rights have been violated, a plaintiff must show interest that that he is or she has been constitutionally deprived protected. of a property Thorp, 235 Wis. 2d 610, ¶46 (citing Penterman, 211 Wis. 2d at 480).15 "A property interest is constitutionally protected if 'state law recognizes and protects that interest.'" Thorp, 15 235 But see Thorp v. Town of Lebanon, 2000 WI 60, ¶60, 235 Wis. 2d 610, 612 N.W.2d 59 (Abrahamson, C.J., dissenting). Chief Justice Abrahamson, joined by Justices Bradley and Sykes, wrote: The majority [in Thorp] dismisses the plaintiffs' substantive due process claim based on the alleged violation of Wis. Stat. § 60.61(4) by noting that the statute does not secure plaintiffs with property rights in their land. [Thorp] Majority op. at ¶48. The opinion's language suggests that plaintiffs need a statutorily created right to have a property interest in their land. I disagree. 18 No. Wis. 2d 610, ¶46. 2006AP450 "[I]t is well settled that the rights of ownership and use of property have long been recognized by this state." Penterman, 211 Wis. 2d at 480. Additionally, Wis. Stat. § 62.23(7)(b) provides that "[a]ll such regulations shall be uniform . . . for the use of land throughout each district, but the regulations in one district may differ from those in other districts." C. Town of Rhine's B-2 District and conditional use ordinance ¶31 governs The the Town of permitted Rhine's uses Municipal of the Code property § 4.08(2)(a) at issue provides: (2) B-2 COMMERCIAL MANUFACTURING OR PROCESSING. There are no permitted uses (a) Permitted Uses. in the B-2 District, except that those uses permitted in the Agricultural Land Districts A-1, A-2 and A-3 may be authorized in conjunction with any conditional uses by express reference in the issued conditional use permit and upon such terms as the Plan Commission may recommend and the Town Board shall determine. All uses are conditional and shall comply with the provisions of Section 4.09 of this ordinance. (b) Conditional Uses. The following conditional uses may be authorized in the B-2 District pursuant to the provisions of Section 4.09 of this ordinance: 1. Fabrication commodities. of consumer or industrial 2. Garbage, rubbish, offal, industrial waste and dead animal reduction or disposal. 3. Quarrying: Gravel, sand, rock, removal and processing. (Rev. 11/04/03) 4. Mining and ore processing. 19 and soil and No. 5. Salvage clothing. yards for wood, metals, papers 2006AP450 and 6. Stockyards. ¶32 Section 4.09 of the Town of Rhine's Municipal Code governs conditional uses, and it outlines the process to obtain a conditional use permit. "Determination of Plan Commission," § 4.09(4) provides: The Plan Commission shall make such written findings and determinations as it deems appropriate based upon the information submitted to it and presented at the public hearing, and shall make a written recommendation to the Town Board with regard to such conditional use application. . . . In making its determinations and recommendations, the Commission shall be guided by the purposes, goals and intent set forth in or necessarily implied from Section 4.01 [Interpretation and Purpose] and any other applicable sections of this ordinance. (Emphasis added.) ¶33 Section 4.01(1), "Purpose," in relevant part outlines that "[t]he purpose of this ordinance is to promote the health, safety, morals and general welfare of the Town regulating and restricting" the use of land. of Rhine Section 4.01(2), "Intent," states: It is the general intent of this ordinance to: (a) Stabilize and protect property values and the tax base. (b) Recognize the needs of agriculture, forestry, industry and business in future growth. (c) Further the appropriate conservation of natural resources. 20 use by of land and No. 2006AP450 (d) Encourage the wise use, conservation, development and protection of the Town's water, soil, wetland, woodland and wildlife resources. (e) Preserve natural growth and cover and promote the natural beauty of the township. (f) Prevent overcrowding and avoid population concentration and urban sprawls. undue (g) Facilitate the adequate provision of public facilities and utilities. (h) Lessen congestion and promote the safety and efficiency of streets, highways and other transportation systems. (i) Provide adequate drainage and open space. light, air, (j) Regulate the use of structures, waters outside of shoreland areas. sanitation, lands and (k) Regulate lot coverage, population density and distribution and the location and size of structures. (L) Prohibit uses or structures incompatible with the natural characteristics, existing development or intended development within or adjacent to a zoning district. (m) Implement those municipal, county, watershed or regional plans or their components adopted by the township. D. Constitutionality of the Town of Rhine, Wis., Municipal Code § 4.08(2)(a), "B-2 Commercial Manufacturing or Processing" ¶34 District, We conclude that Municipal Code § 4.08(2)(a), the B-2 is unconstitutional on its face because it is arbitrary and unreasonable in that it precludes any use as of right in the B-2 District and such limitation bears no substantial relation to the public health, safety, morals or general welfare. 21 No. ¶35 A facial substantive due process 2006AP450 challenge, as the landowners have made in this case, is only one of many ways in which a landowner can challenge a limitation on the use of his or her land. substantive See Pearson, 961 F.2d at 1215-16. due process challenges Mandelker, supra, § 2.39, at 2-46. are However, facial rarely successful. The seminal zoning case, which involved a facial substantive due process challenge, is Euclid.16 See Mandelker, supra, § 2.06 (discussing Euclid). the Euclid, court upheld the constitutionality of In a comprehensive zoning ordinance against a facial substantive due process challenge. Id. at 2-9 and 2-10. The Village of Euclid adopted a comprehensive zoning ordinance that zoned the area in question so as to allow only residential use. U.S. at 379-84. uses. Id. industrial "neither In so doing, it excluded all non-residential The use See Euclid, 272 Supreme included offensive nor Court even noted those dangerous." that the industrial Id. at exclusion uses 388. that The of are Court concluded that "[i]t cannot be said that the ordinance in this respect 'passes the bounds of reason and assumes the character of a merely arbitrary fiat.'" Id. at 389 (citation omitted). The Court stated: If it be a proper exercise of the police power to relegate industrial establishments to localities separated from residential sections, it is not easy to find a sufficient reason for denying the power because the effect of its exercise is to divert an industrial 16 Village of Euclid, Ohio v. Ambler Realty Co, 272 U.S. 365 (1926). 22 No. 2006AP450 flow from the course which it would follow, to the injury of the residential public, if left alone, to another course where such injury will be obviated. It is not meant by this, however, to exclude the possibility of cases where the general public interest would so far outweigh the interest of the municipality that the municipality would not be allowed to stand in the way. Id. at 389-90. ¶36 clarify In the the challenges wake of discussion to zoning. Euclid, other regarding See, cases have substantive e.g., Moore v. helped due to process City of East Cleveland, Ohio, 431 U.S. 494, 498 n.6 (1977); Pearson, 961 F.2d 1211. Even so, the line between a valid or invalid exercise of police power remains less than clear. As the Court noted in Euclid, "[t]he line which in this field separates the legitimate from the illegitimate assumption precise delimitation. conditions. A regulatory power varies It of with zoning is not capable circumstances ordinance, which would of and be clearly valid as applied to the great cities, might be clearly invalid as applied to rural communities." Euclid, 272 U.S. at 387. ¶37 While the line between permissible and impermissible zoning may not always be readily ascertainable, the requisite standard that must be applied for a substantive due process challenge is clear: we must determine whether the ordinance is clearly arbitrary and unreasonable in the restricted sense that it has no substantial relation to the public health, safety, 23 No. morals or general welfare.17 2006AP450 Euclid, 272 U.S. at 395; Pearson, 961 F.2d at 1223. ¶38 Certainly, municipalities may regulate where and under what circumstances certain less desirable uses, such as salvage yards and stockyards, may be developed. However, here no justification exists for precluding all uses in the B-2 District and only providing the landowner obtaining a conditional use permit. with the possibility of Ordinances can be drafted so the acceptable uses as of right do not conflict with the conditional uses. Municipalities have the power to zone property and restrict where particular undesirable uses may be 17 Recently, in Action Apartment Association, Inc. v. Santa Monica Rent Control Board, the Ninth Circuit discussed this standard when the plaintiff brought a facial substantive due process challenge to a rent control ordinance. 509 F.3d 1020, 1022 (9th Cir. 2007). The Court stated: The Landlords do not assert that the government has taken their property within the meaning of the Fifth Amendment. They do, however, assert that the provisions of the rent control ordinance neither serve nor are rationally related to any legitimate government purpose, and therefore unconstitutionally violate their right to use their property as they see fit. Specifically, they argue that the provisions are arbitrary, unreasonable, and unrelated to the general welfare because there is no legitimate interest in subsidizing non-housing uses of rental properties nor in providing new rights and affirmative defenses for illegal occupants, particularly where California law does not recognize illegal occupants as tenants. [A] regulation that fails to serve any legitimate governmental objective may be so arbitrary or irrational that it runs afoul of the Due Process Clause. . . . Id. at 1026 (quotations and citations omitted). 24 No. developed within the municipality. However, 2006AP450 zoning that restricts the land such that the landowner has no permitted use as of right must bear a substantial relation to the health, safety, morals or general welfare of the public in order to withstand constitutional scrutiny. use of In this case, the restricted the relation B-2 District land does to the public health, not safety, bear a morals substantial or general welfare. ¶39 We note that rather than precluding all uses as of right in a particular zone, the more common, acceptable practice is to provide addition to for permitted permitted conditional uses. uses, uses as of right, the ordinance may and then provide in for Case law, treatises, zoning journals, and the Town of Rhine's ordinance support this conclusion. Moreover, at least one treatise comments that a zone that only provides for use by virtue of a conditional use permit may face scrutiny. See Juergensmeyer & Roberts, supra, § 5.24, at 283-84 (stating that "[a] court will likely invalidate an ordinance that handles all uses by special permit" or conditional use permit). 1. Case law ¶40 Cases from Wisconsin and other jurisdictions support the conclusion that the common, accepted practice is to first outline permitted uses and then, in addition to permitted uses, the ordinance may provide for conditional uses. A number of cases illustrate this point, but they do not address the merits 25 No. 2006AP450 of a "no permitted uses zone."18 However, in Sheerr v. Township of of Evesham, the Superior Court New Jersey evaluated and applied the substantive due process standard to a parcel that provided no permitted uses and allowed use landowner obtained a conditional use permit. (N.J. Super. Ct. Law Div. 1982). that the ordinance plaintiff's property. ¶41 In Sheerr, was only when the 445 A.2d 46, 60-65 The Sheerr court concluded unconstitutional as-applied to the Id. the plaintiff's property was the only property zoned EP-1, and any use in the EP-1 zone was subject to a conditional use permit. Id. at 62. based on environmental protection. The EP-1 designation was Id. at 60. According to the ordinance, the property within the zone was of "unique character by virtue of the presence of a beech and maple hardwood forest with many holly trees thereon, the function of the area as a natural replenishing of ground water and the function of the 18 See, e.g., Just v. Marinette County, 56 Wis. 2d 7, 12-13, 201 N.W.2d 761 (1972); Brief of Murdock at App. 133-153 (Wisconsin Law Library, Vol. 3227, Appendices and Briefs, 70 Wis. 2d 562-566), Town of Richmond v. Murdock, 70 Wis. 2d 642, 651-52, 235 N.W.2d 497 (1975); Petersen v. Dane County, 136 Wis. 2d 501, 509, 402 N.W.2d 376 (Ct. App. 1987); Groch v. City of Berkeley, 173 Cal. Rptr. 534, 537-38 (Cal. App. 3d 1981); Laughter v. Board of County Comm'rs for Sweetwater County, 110 P.3d 875, 878 (Wyo. 2005). We, however, acknowledge that exceptions to the common, accepted practice exist. See, e.g., Town of Smithfield v. Fanning, 602 A.2d 939, 940 (R.I. 1992) (identifying a no permitted use zone but the merits of such a zone were not at issue); Owen Dev. Group, Inc., v. City of Gearhart, 826 P.2d 1016, 1017 (Or. App. 1992) (identifying a no permitted use zone but the merits of such a zone were not at issue). 26 No. 2006AP450 area as a natural habitat for birds and other wildlife." However, the affecting justifications the for plaintiff's "the severe premises were Id. restrictions demolished by plaintiff's expert witnesses and the admissions of the township officials." ¶42 Id. The Sheerr court stated that an examination of the "conditional arbitrary uses" led it legislation. to Id. conclude at 63. that For it represented example, possible conditional uses there included private recreational areas such as camps, golf courses, and athletic fields, but "[a]ll of these uses require the removal of a substantial number of frustrating a central purpose of the EP-1 designation." 64. The ordinance also conditionally permitted commercial uses but only on a five acre lot. a Id. trees, Id. at number of The court concluded that a commercial use represented the "only realistic possibility for the use of the plaintiff's property." 65. Id. at In so finding, the court considered the twelve significant requirements that a landowner would have to meet in order to get a conditional use permit, and as a result, the court characterized the likelihood of being able to use the property for any purpose as "very remote." Id. at 64-65. Accordingly, the court concluded that the legislation was arbitrary and the 27 No. 2006AP450 as-applied substantive due process challenge was successful.19 Id. at 63-65. ¶43 Here, we conclude that the B-2 District can be appropriately described as a "no permitted uses" zone, and we conclude that the no permitted uses B-2 District is arbitrary and unreasonable because it bears no substantial relation to public health, safety, morals or general welfare. However, we do recognize that there may be limited circumstances in which a "no permitted uses" zone is a valid exercise of power because the restriction bears substantial relation to the public health, safety, morals or general welfare. For example, in Dur-Bar Realty Co. v. City of Utica, 394 N.Y.S.2d 913, 918 (N.Y.A.D. 1977), the New York Supreme Court, Appellate Division, concluded that a "no permitted uses" zone was constitutional as the parcel at issue was in a "Land Conservation District and represented a zone located in the flood plain." Id. at 915-16, 918. The "Land Conservation District" "aimed to regulate the use" of land in a "flood prone area." Id. at 918. The ordinance at issue today does not include a similar purpose as in Dur-Bar Realty. 19 While the Sheerr court determined that a "conditional use by permit only zone" also referred by the Sheerr court as a "no permitted uses zone" was arbitrary as applied to this property owner, the court noted that the relevant zoning statutes authorized a "conditional use by permit only zone." The Sheerr court determined that the zoning statutes authorized "conditional use by permit only zones" so long as there were "definite specifications and standards" in place. Id. at 6264. In the case at issue today, the standards are generalized and not "definite," so no certainty exists as to a conditional use permit. 28 No. ¶44 2006AP450 The court in Dur-Bar Realty identified several policy objectives for restricting use in a flood plain: (1) the protection of individuals who might choose, despite the flood dangers, to develop or occupy land on a flood plain; (2) the protection of other landowners from damages resulting from the development of a flood plain and the consequent obstruction of the flood flow; (3) the protection of the entire community from individual choices of land use which require subsequent public expenditures for public works and disaster relief. The court concluded, "[i]t is beyond question that these Id. objectives, which correspond closely to the stated purposes of the present ordinance, may be exercise of the police power." that, "'Land Conservation the subject Id. of a legitimate The court further stated District' provisions do bear a substantial relation to legitimate governmental purpose and a reasonable relation to the goal of flood safety." Id. Thus, since the limitations related to flood safety, the restriction satisfied the relationship to the public health, safety, morals or general welfare. ¶45 In its analysis, the Dur-Bar Realty court contrasted the "flood plain" ordinance in that case with the ordinance at issue in Marshall v. Village of Wappingers Falls, 279 N.Y.S.2d 654 (N.Y.A.D. 1967). In Wappingers Falls, there were no permitted uses as of right in the "Planned Residential District" but twelve uses were available through a special permit. 655-56. The court in Wappingers Falls concluded Id. at that the "Planned Residential District was ultra vires because it was not zoning in accordance with a comprehensive plan." 29 Id. The court No. 2006AP450 in Dur-Bar Realty stated that the Planned Residential District in Wappingers Falls did not appear "in any way unusual in topography or location so as to justify the subjection of all use proposals to case by case decision." N.Y.S.2d at concluded 916. that In the contrast, flood the plain Dur-Bar Realty, 394 court ordinance in Dur-Bar was "a Realty product of assessment of the character of the land in light of the public health and safety interests in being protected against flooding and other hazards that would result from building in an area unsuitable for intensive development." ¶46 State ex rel. Nagawicka Id. Island Corp. v. City of Delafield, supports our conclusion that precluding any use is unreasonable. 117 Wis. 2d 23, 343 N.W.2d 816 (Ct. App. 1983). In Nagawicka Island, the landowner was prohibited from building because the island was only two acres and zoned prevented building on lots of less than three acres. 25. The court of appeals concluded that A-1, which Id. at 24- "when zoning classifications restrict the enjoyment of property to such an extent that it cannot be used for any reasonable purpose, a taking without due process occurs." Id. at 27. While we do not rely on our takings clause jurisprudence today, as the court of appeals did in Nagawicka Island, the rationale employed supports our conclusion that providing no use is an unreasonable restriction. ¶47 In the case at hand, we conclude that the ordinance governing the B-2 District is arbitrary and unreasonable, in that it precludes any use as of right in the B-2 District and 30 No. such limitation bears no substantial relation health, safety, morals or general welfare. to 2006AP450 the public Unlike in Dur-Bar Realty where restricting uses in a flood plain was directly tied to the health, safety, morals or general welfare of the public, no justification exists for precluding all uses as of right in the B-2 District. 2. Zoning treatises and journals ¶48 Leading zoning treatises support the notion that standard zoning practices contemplate permitted uses as of right that can be expanded upon by the administrative zoning function. Professor Mandelker writes: The drafters of the Standard Zoning Act clearly contemplated a zoning process in which the uses designated by the zoning ordinance were permitted "as of right," but they also provided for an administrative zoning function. The Standard Act delegated this function to the board of adjustment. It authorized the board to grant variances from the zoning ordinance in cases of hardship, as defined in the Act, and to grant special exceptions authorized by provisions in the zoning ordinance. Many zoning ordinances use the term "special" or "conditional" use rather than "special exception. . . ." Mandelker, supra, § 6.39, at 6-44 (emphasis added). ¶49 In Anderson's American Law of Zoning, the observation is also made that "[m]ost ordinances impose a broad division of land uses," and, in addition, those ordinances then provide that "specified uses may be established or maintained" pursuant to a 31 No. special permit. of Municipal rely on 2006AP450 3 Young, supra, § 21.01, at 693-94.20 The Law Corporations the provides, conditional use "[z]oning mechanism ordinances retain the that usual residential, commercial and industrial zones specifying the uses permitted in each zone, and, in addition, establish conditional uses for each zone." 8 Eugene McQuillin, The Law of Municipal Corporations § 25.159 (3d ed. 2000). ¶50 that Current zoning the common, journals also support accepted zoning practice the conclusion is to provide permitted uses as of right and then, in addition to permitted uses, the ordinance may provide for conditional uses. For example, in an article of Zoning Practice, the author discusses the relationship between permitted and conditional uses. See Gail for Easley, Conditional Uses: Certainty, American Planning 2006. The author writes, Using Discretion, Association Zoning "[t]he fundamental Hoping Practice, May purpose of the zoning ordinance is to establish districts (zones) which have a common set of permissible uses and a common set of site design standards within each." Id. at 2. Permissible uses are "'by- right' uses," i.e., "the uses are named in the zoning ordinance 20 See, e.g., 5 Weinstein, supra, § 32.46, at 78-84 (providing both permitted, accessory, and conditional uses in a residential district); § 32.49, at 94-102 (providing both permitted and conditional uses in a commercial district); § 32.50, at 103-04 (providing both permitted and conditional uses in a general office district); § 32.51, at 104-09 (providing both permitted and conditional uses in highway commercial district); § 32.52, at 110-16 (providing permitted, accessory, and conditional uses in the industrial district). 32 No. 2006AP450 and a property owner has the right to establish the use so long as it conforms ordinance." ¶51 to the standards and criteria of the zoning Id. at 2-3. The author then contrasts permitted uses with conditional uses and notes that there are often uses that would be welcome within the zoning district if additional standards could prevent them from undermining the purpose and intent of the district. . . . Business and industrial districts also benefit from uses other than those permitted by right. For example, day care centers and restaurants are welcome near employment centers. Id. at 3. ¶52 exclusive An article of Zoning News21 cautions about heavy or reliance on conditional use permits. The author wrote: Some ordinances rely too much on special and/or conditional uses. Most land uses should be as-ofright, subject to compliance with clear and objective standards and criteria for that particular use category or zoning district. Discretionary approvals should be reserved for unique uses that defy regulations by objective standards. The routine employment of special uses, especially without (or with few) standards or criteria, opens up both individual zoning decisions and the zoning ordinance provision itself to constitutional challenges as being arbitrary and capricious. Even where such a challenge would not necessarily succeed, the uncertainty to landowners and citizens alike created by discretionary and/or standardless zoning review should be avoided. 21 Zoning News was a publication of the American Planning Association. It is now known as the Zoning Practice, which is also a publication of the American Planning Association. 33 No. 2006AP450 John B. Bredin, Common Problems with Zoning Ordinances, American Planning Association Zoning News, Nov. 2002, at 2. 3. The Town of Rhine's Ordinance ¶53 While the ordinance section at issue in this case does not provide for any use as of right, other sections of the Town of Rhine's zoning ordinance follows the more traditional practice of first outlining permitted uses and then, in addition to permitted uses, providing for conditional uses.22 For example, consider the permitted and conditional uses in the Town of Rhine Municipal Code for the following districts: (1) The Agricultural Land Districts. See Town of Rhine, Wis., Municipal Code § 4.05(2)(a) and (b) (providing such things as grazing, horticulture, and nature trails as permitted uses and providing such things as commercial stud housing and operation as a conditional use). (2) The Residential Districts. See Town of Rhine, Wis., Municipal Code §§ 4.06(1)(a) and (b), 4.06(2)(a) and (b) (providing such things as one or two-family dwellings as a permitted use and providing such things as home occupations, involving the conduct of business on the premises, as a conditional use). (3) Conservancy Districts. See Town of Rhine, Wis., Municipal Code §§ 4.07(1)(c) and (d), 4.07(2)(c) and (d) (providing such things as forestry and fur skin production as permitted use and providing all buildings or structures and any use of a residence for a home occupation as a conditional use). (4) Commercial Districts. See Town of Rhine, Wis., Municipal Code § 4.08(1)(b) and (c) (providing such things as food stores, clinics, and business 22 See Town of Rhine, Wis., Municipal Code ch. 4, available at http://www.co.sheboygan.wi.us/html/d_planning_zoning.htm (updated 04/05/06). Click on Rhine Zoning Ordinance. 34 No. 2006AP450 offices as permitted uses and providing such things as alcoholic beverages stores, automotive service, and bars as conditional uses). E. The Town of Rhine's remaining arguments ¶54 The Town of Rhine asserts that there are permitted uses in the B-2 District in that the landowners can use the property without a conditional use permit, e.g., "recreational uses have always been allowed as incidental to the rural nature of certain types of property, especially in relatively undeveloped areas as exist in the Town of Rhine." nowhere is that outlined in the ordinance at issue. However, It is only in the newly amended ordinance that these allowances are made.23 The version of the ordinance governing this case, however, 23 On April 5, 2006, the Town of Rhine amended its own B-2 District ordinance to provide for permitted uses in the B-2 District. See Town of Rhine, Wis., Municipal Code § 4.08(2)(b)1. and 2. Subsection (b) provides, "Permitted uses. The following are permitted uses in the B-2 District:" 1. Agriculture. Those uses permitted in the Agricultural Land Districts pursuant to Section 4.05(2)(a), except that no structures may be built without first obtaining a conditional use permit pursuant to Section 4.09. 2. Passive Outdoor Recreation. Passive, outdoor, recreational land uses such as arboretums, natural areas, wildlife areas, hiking trails, bicycle trails, cross-country ski trails, horse trails, picnic areas, gardens, fishing and hunting areas, and other similar land uses. 35 No. 2006AP450 states, "[t]here are no permitted uses in the B-2 District."24 Furthermore, at the January 6, 2004 meeting, Chairman Sager stated that B-2 zones require a conditional use permit "for any use of the land." Therefore, it is clear that a landowner must acquire a conditional use permit, solely at the discretion of the Town of Rhine, in order to use the property in any way. ¶55 The Town of Rhine argues, under the code before us today, that conditional uses are permitted uses because once the standards have been satisfied a landowner is "entitled" to the conditional use. We disagree. First, contrary to the Town of Rhine's position. we find authority See, e.g., S. Kemble Fischer Realty Trust v. Board of Appeals of Concord, 402 N.E.2d 100, 103 (Mass. App. 1980) (stating that "[n]o one, of course, has an absolute right to a special permit"); S. Mark White, Classifying and Defining Uses 24 and Building Forms: Land-Use While the ordinance at issue has been amended, other Wisconsin municipalities seemingly have similar ordinances in place. In general, constitutional challenges to repealed legislation are considered moot. See Kremens v. Bartley, 431 U.S. 119, 127-29 (1977). However, unlike state or federal legislation, municipal ordinance sections like the one at issue here may still exist in other municipalities within the state. At times, we may consider a "moot issue" if it is of "great public importance or arises frequently enough to warrant a definitive decision to guide the circuit courts." State ex rel. Riesch v. Schwarz, 2005 WI 11, ¶12, 278 Wis. 2d 24, 692 N.W.2d 219. Because other municipalities utilize similar ordinances and the Town of Rhine may easily revert to its previous version, we review and render a decision on the issues at hand. If other municipalities have such ordinances in place and, like here, there is no substantial relation to public health, safety, morals or general welfare, those ordinances could be subject to constitutional challenge. 36 No. Coding for Zoning Zoning Practice, Regulations, Sept. 2005, American at 8 Planning 2006AP450 Association (distinguishing permitted uses as of right and conditional uses). between Second, no authority cited by the Town of Rhine suggests that conditional uses are the same as permitted uses. To support its argument, the Town of Rhine relies on Delta Biological Resources, Inc. v. Board of Zoning Appeals of City of Milwaukee, 160 Wis. 2d 905, 910-11, 467 N.W.2d 164 (Ct. App. 1991). However, Delta simply does not support the Town of Rhine's contention that conditional uses are permitted uses. In the Delta, court of appeals, relying on Skelly Oil Co., stated: "A special or conditional use permit is one which the zoning code allows. A special use permit allows a property owner to put his or her property to a use expressly permitted by the zoning ordinance, but only if certain conditions are met." Delta, 160 Wis. 2d at 910 (footnote omitted) (citing Skelly Oil Co., 58 Wis. 2d at 70001). ¶56 The Town of Rhine's argument is without Permitted uses and conditional uses are different. merit. Even though conditional uses may be authorized pursuant to the ordinance, that does not render them uses as of right. Conditional Uses: Using Discretion, Hoping See Gail Easley, for Certainty, American Planning Association Zoning Practice, May 2006, at 8 (distinguishing between conditional uses). permitted uses as of right and Conditional uses may be expressly permitted by the ordinance so long as the conditions are met, id., but this does not render them "permitted uses." 37 No. ¶57 2006AP450 The Town of Rhine, citing to Primeco Communications v. City of Mequon, argues that an entitlement to a conditional use exists once the landowner submits the required information in reasonable compliance with conditional use ordinance. the requirements of a particular 242 F. Supp. 2d 567 (E.D. 2003). Primeco, however, does not support this argument. In Primeco, the district court stated: Under Wisconsin law, a conditional use is one that is not inherently incompatible with a particular area, but which might create problems if permitted to locate there as a matter of right. Zoning ordinances that rely on the conditional use mechanism retain the usual residential, commercial and industrial zones specifying the uses permitted in each zone, and, in addition, establish conditional uses for each zone, which are permitted within the zone only if approved by the local governmental body. In other words, a conditional use permit allows property to be put to a purpose that the zoning ordinance conditionally allows. Id. at 576 (citations omitted) (emphasis added). ¶58 Even if an entitlement could be created under a conditional use permit, the Town of Rhine's argument presumes that the standards here are clear and specific enough that once complied with, the conditional use permit shall be issued. However, while we do not decide the constitutionality of the conditional use permit section, i.e., Municipal Code § 4.09(4), that section does not provide certainty. For example, the following standards for obtaining a conditional use permit are subject to significant interpretation: (1) stabilize and protect property values and the tax base; (2) recognize the needs of 38 No. 2006AP450 agriculture, forestry, industry, and business in future growth; (3) preserve natural growth and cover and promote the natural beauty of the township. § 4.01(2). See Town of Rhine, Wis., Municipal Code How does a landowner, who applies for a conditional use permit, establish that a garbage dump or salvage yard will comply with these requirements, or others in § 4.01(2), so to "entitle" the landowner to a conditional use permit? These standards are simply not specific enough that one can reasonably say that any use as of right exists under the B-2 District, which has no permitted uses. ¶59 support In addition, the language of this ordinance does not the Town of Rhine's argument that the landowner entitled to a conditional use permit as of right. is No language exists in Municipal Codes § 4.08(2), B-2 District, or § 4.09, Conditional uses, that would conditional use permit. The create an ordinance entitlement does not to state a for example: If all requirements are met, the conditional use permit shall be granted. Furthermore, while discussing rules that generally govern conditional uses, Anderson's American Law of Zoning states, "[t]he designation of a use in a zoning district as a conditional use does not constitute an authorization or assurance that such use will be approved." Anderson's 1997). American While Law perhaps of not Zoning 5 Alan C. Weinstein, § 34.23, dispositive, at this 573 (4th assertion ed. casts doubt on the Town of Rhine's entitlement argument. ¶60 The development Town zoning of is Rhine the also argues functional 39 that equivalent planned to unit Municipal No. 2006AP450 Code § 4.08(2)(a), "B-2 Commercial Manufacturing or Processing." However, planned because unlike unit the development case before districts this are court, different planned unit development districts may only be established with the consent of the landowner. planned future bound unit the landowner. Wis. Stat. § 62.23(7)(b) developments). landowners by See in planned restricted This, The unit uses however, decision by the purchaser. Town of is an Rhine development entered (discussing into economic argues districts by the and in eliminate all precluded from conditional the B-2 permitted use any are previous quantifiable It is not that such land has no use, it is that such land has designated rights and obligations. landowners that District uses. did not Rather, make the use unless the Town of permit. While the landowner a choice landowners Rhine who The to are grants a chooses to purchase land in the B-2 District has notice of the excessive restriction in the B-2 District, this does not, as we see here, preclude a constitutional challenge to the ordinance. ¶61 properly The Town before of the Rhine court asserts because that the this Club through with seeking a conditional use permit. matter did not is not follow Therefore, the Town of Rhine argues that we cannot determine if the Club was denied a conditional use permit for unreasonable or arbitrary reasons. The Town of Rhine argues that if the Club was denied a conditional use permit for arbitrary or unreasonable reasons, the Club may have a regulatory taking, or as-applied challenge. We do not disagree that one of these claims may be available if 40 No. 2006AP450 the Club was improperly denied a conditional use permit, but the case at hand is a facial substantive due process challenge to the B-2 zoning conditional use ordinance; permit this section is of not the a challenge ordinance, and to it the is neither a takings challenge nor an as-applied challenge.25 25 Anderson's American Law of Zoning distinguishes between a taking and substantive due process challenge. It provides: It is important to understand the difference between taking claims and substantive due process claims. As discussed in the previous chapter, an ordinance will be struck down, despite the presumption of validity for legislative acts, if it is found to be unreasonable or arbitrary. In general, a zoning ordinance or other police power land use restriction must be reasonably related to serving the public health, safety, or general welfare. If a land use restriction is unreasonable or irrational, it may be found to violate the substantive component of the due process clause. However, irrationality is not the standard for evaluating a taking claim. The Supreme Court has added confusion to the matter by repeatedly stating in recent cases that a taking is established if an ordinance does not "substantially advance legitimate state interests . . . or denies an owner economically viable use of his land." The Court has never satisfactorily explained what the first part of the test means. However, writing for the majority in Nollan v. California Coastal Commission, Justice Scalia expressly stated that the taking test requires stricter review of government action than the "rational relationship" test applied to most due process and equal protection claims. An important difference under the Constitution is that "just compensation" must be paid to the landowner who has suffered a taking. A substantive due process violation does not trigger the compensation requirement. . . . 41 No. ¶62 2006AP450 To be clear, after today, municipalities still have ample authority to regulate land use and they should. Such regulation is an appropriate legislative function; it can serve to protect the health, safety and welfare of the public, and it encourages well reasoned growth. The issuance of conditional use permits also is an appropriate function for municipalities. Municipalities certainly have broad authority to restrict land use, but the district at issue today provides for no permitted use as of right, possibility reasonable of and the obtaining justification only a use is garnered conditional exists for such use through permit. excessive the No government control and restriction especially when that government control is set against land use rights, and the control bears no substantial relation to the public health, safety, morals or general welfare. ¶63 where The Town of Rhine argues that being able to restrict less methodology desirable of moreover, we do regulate where uses Euclidian not and seek under develop zoning." to limit what We is do the conditions "the not power land fundamental disagree, of may a town be and to used. However, the Town of Rhine, in this case, fails to acknowledge It is very common for a landowner to assert taking and substantive due process claims in the same action, and to leave it to the court to sort out the differences. 1 Young, supra, § 3A.04, at 216-17. 42 No. 2006AP450 that it can both regulate where undesirable uses develop, and it can provide for permitted uses as of right. ¶64 Precluding any permitted use and then only providing generalized standards for obtaining a conditional use opens the door to favoritism and discrimination. permit Under this scenario, a town, pursuant to the ordinance, may arbitrarily preclude any activity on the land in question because (1) there are no permitted uses as a matter of right; and (2) if obtaining a conditional use permit is completely within the discretion of a town, judicial review of a denial is significantly limited because of the non-specific standards. As a acceptable, towns result, could nature if such preclude of an all the conditional ordinance uses at was will use deemed and in a manner that virtually precludes any meaningful judicial review. Such a determination could open the door to abuse. If permitted uses exist as of right, the impact of denying conditional uses is significantly decreased because the landowner has permitted uses as of right. ¶65 The sustained. facial, constitutional challenge here is This ordinance is not in balance with the rights of landowners. Because the landowners have demonstrated beyond a reasonable doubt that the ordinance at issue does not provide for any uses as of right, and this restriction in the B-2 District is arbitrary and unreasonable in the sense that it does not bear a substantial relation to public health, safety, morals or general welfare, we conclude 43 that Municipal Code No. 2006AP450 § 4.08(2)(a), the B-2 District, is unconstitutional on its face. Accordingly, the Club has met its burden. IV. NUISANCE ¶66 The circuit court concluded that the Town of Rhine's allegation that its public nuisance ordinance was violated was actually the nuisance. Town The of Rhine's circuit court attempt did applying the ordinance's language. not to abate reach its a private decision by Instead, the circuit court concluded that the violations were for a "public nuisance." The circuit court, cited to Milwaukee Metropolitan Sewerage District v. City of Milwaukee, 2005 WI 8, 277 Wis. 2d 635, 691 N.W.2d 658, and stated that a nuisance is a public nuisance if "the condition or activity interferes with the public right or use of public space." The circuit court then concluded that because the property at issue was not a public place, and the Club's activities did not affect the entire community, the nuisance could not be a public nuisance. ¶67 Here, the circuit court erred because it did not apply the definition of "public nuisance" as stated in the Town of Rhine's ordinance. Instead of applying the ordinance language, the circuit court applied a common-law definition of "nuisance." The Town of Rhine, Wis., Municipal Code § 2.02, "Public Nuisance," differs from the common-law definition and provides as follows: 2.02 DEFINITIONS. (1) PUBLIC NUISANCE. A public nuisance is a thing, act, occupation, condition or use of property which shall continue for such length of time as to (a) Substantially annoy, injure or endanger 44 No. 2006AP450 the comfort, health, repose or safety of the public; (b) In any way render the public insecure in life or in the use of property; (c) Greatly offend the public morals or decency; (d) Unlawfully and substantially interfere with, obstruct or tend to obstruct or render dangerous for passage any street, alley, highway, navigable body of water or other public way or the use of public property. ¶68 Accordingly, we reverse and remand to the circuit court for a new hearing on the nuisance action wherein the court will decide the issues based upon the Town of Rhine, Wis., Municipal Code. V. CONCLUSION ¶69 We conclude that the Town of Rhine, Wis., Municipal Code § 4.08(2)(a), the B-2 District, is unconstitutional on its face because it is arbitrary and unreasonable in that it precludes any use as of right in the B-2 District and such limitation bears no substantial relation to the public health, safety, morals or general welfare. circuit court applied a We further conclude that the common-law definition of "nuisance" rather than the definition of "public nuisance" articulated in Town of Rhine, Wis., Municipal Code § 2.02. As a result, we remand to the circuit court for a new hearing on the public nuisance claim. By the Court. The order of the circuit court is affirmed in part, reversed in part, and cause remanded to the circuit court. 45 No. ¶70 SHIRLEY S. ABRAHAMSON, majority opinion declares Majority op., ¶54 n.23. that C.J. the 2006AP450.ssa (concurring). instant case The is moot. Nevertheless the majority writes on, characterizing the issue of the constitutionality of a "permit use only zone" as one "of great public importance." Simultaneously the majority opinion acknowledges that it cannot, and does not, determine the constitutionality of any other ordinance creating a "permit use only zone" similar to that of the Town of Rhine. See majority op., ¶54 n.23. Each "permit use only zone" ordinance, according to the majority opinion, must be ordinance gauged individually has substantial a to determine relation to to the whether public the health, safety, morals or general welfare. ¶71 I write for three reasons: ¶72 First, I want to stress that the wisdom of a zoning ordinance is a decision for the in this municipality, not for this court.1 ¶73 Second, nothing opinion should be read to imply that the ordinance at issue is struck down because the majority opinion characterizes ordinance as uncommon.2 the Town of Rhine's zoning The majority opinion is mistaken that the Town of Rhine ordinance is very unusual.3 In any event, I do not read the majority opinion as stating or implying that only 1 See majority op., ¶26. 2 See, e.g., majority op., ¶¶39, 40, 50. 3 See Brief and Appendix of Wisconsin Counties Association at 5-8 (citing zoning ordinances similar to the Town of Rhine's from 11 municipalities and counties in Wisconsin). 1 No. ordinances adopted by a majority of 2006AP450.ssa municipalities can pass constitutional muster in this court. ¶74 Third, I want to emphasize the precepts to be gleaned from this lengthy opinion, many of which are basic, well-known principles of law that are applied in the present case. The teachings of the majority opinion may be summarized as follows: 1. A zoning ordinance, including a "permit use only zone," is "presumed valid and must be liberally construed in favor of the municipality." ordinance "will substantive due be held process] Majority op., ¶26. constitutional unless beyond a reasonable doubt." the [as a An matter contrary is of shown Majority op., ¶26. 2. The challenge to the ordinance at issue is a facial substantive due process challenge, not an as applied challenge, and not an eminent domain taking challenge.4 majority opinion applies, in keeping with The precedent, a 4 See, e.g., majority op. ¶¶34, 47, 61. Several cases upon which the majority opinion relies treat the challenge as an as applied or a takings challenge. See, e.g., majority op. ¶¶40, 47. It is very difficult to prevail upon a facial challenge to a statute or ordinance. With a facial challenge, the challenger must show that the ordinance cannot be enforced under any circumstances. See Olson v. Town of Cottage Grove, 2008 WI 51, ¶44 n.9, ___ Wis. 2d ___, 749 N.W.2d 211 ("'Facial challenge' is defined as: 'A claim that a statute . . . always operates unconstitutionally.'") (quoting Black's Law Dictionary 223 (7th ed. 1999). Although I question whether the defendants' challenge is properly considered a "facial" challenge, I accept the defendants' characterization of their challenge for purposes of this review. The majority opinion does not address any challenge to the "vagueness" of the standards for granting a conditional use. See, e.g., majority op. ¶58. 2 No. rational basis test to determine the 2006AP450.ssa validity of a law challenged on substantive due process grounds.5 3. An ordinance, including a "permit use only zone," will be invalidated as a matter of substantive due process under the rational basis test only if it is clearly arbitrary and unreasonable, having "no substantial relation to the public health, safety, moral or general welfare." Majority op., ¶2.6 In applying the rational basis test, the court looks for support for the law that is challenged.7 The support for the law need not be expressed on the face of the law. 4. A "permit use only zone" is constitutional, as a matter of substantive due process, if it bears a substantial relation to the public health, safety, moral or general welfare.8 unconstitutional as A a "permit matter of use only substantive zone" due is process when it is clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, moral or general welfare.9 5. The "permit use only zone" at issue in the instance case is unconstitutional because nothing in the record or 5 See, e.g., majority op., ¶¶28-29, 34, 37. 6 See, e.g., majority op., ¶¶26, 34-38, 65. 7 Ferdon v. Wis. Patients Comp. Fund, 2005 WI 125, ¶184, 284 Wis. 2d 573, 701 N.W.2d 440. 8 See, e.g., majority op., ¶¶43-45. 9 See, e.g., majority op., ¶¶40-42, 46. 3 No. 2006AP450.ssa in the Town's arguments describes a relation between the "permit use only zone" morals or general and the public welfare.10 The health, court safety, has not determine the independently found support for the ordinance. 6. The majority constitutionality of opinion does ordinances of not other communities similar to the Town of Rhine's ordinance at issue in the instant case. Each such ordinance has to be examined individually to determine whether it bears a substantial relation to the public health, safety, morals or general welfare. In other words, the validity of an ordinance similar to that of the Town of Rhine's shall be determined on case-by-case basis, with the ordinance liberally construed in favor of the municipality and entitled to a presumption in favor of its validity.11 ¶75 I concur in the court's mandate but write separately for the reasons set forth. 10 See, e.g., majority op. ¶¶2, 65. 11 See, e.g., majority op. ¶54 n.23. 4 No. 1 2006AP450.ssa

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