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Casenotes

Wisconsin

Zoning

Town of Rhine v Bizzell, 751 NW2d 780 (Wis S Ct 2008).

Facts:In 2003, the Manitowoc Area Off Highway Vehicle Club, Inc. (the club) purchased 77.2 acres of land in section twelve of the Town of Rhine, Sheboygan County (town). The zoning classification of this land has been "B-2 Commercial Manufacturing or Processing" since 1983. The permitted use zoning ordinance states that there are no permitted uses in a B-2 district except certain conditional uses permitted in Agricultural Land Districts. Conditional uses require a permit obtained by application.

After purchasing the property, the club members used the property for riding all-terrain vehicles (ATVs) and hunting. This use is not included in the conditional uses in the town ordinances. The club applied for a conditional use permit and was denied. The club also applied for the B-2 zone to be rezoned to a B-1 "Neighborhood Business District." This was also denied.

A few months later, the Elkhart Lake Police Department issued six citations to members for violating the town's Public Nuisance Ordinance. A consolidated trial was held for all six defendants, and the Elkhart Lake Municipal Court dismissed the violations for lack of evidence. The town appealed the decision to the Sheboygan County Circuit Court.

In Sheboygan County, the town filed a complaint that asked for a de novo review of the dismissed citations regarding the public nuisance violations. The circuit court concluded that the zoning ordinance barred all uses within the district and was unconstitutional. The town appealed, and the court of appeals certified the case for the Wisconsin Supreme Court. The court accepted certification.

Holding:Affirmed. The court held that while conditional use permits are widely accepted tools of municipal planning, ordinances that provide for use of property only when a landowner obtains a permit may face scrutiny. The court stated that under the due process clause, courts generally require that the land use controls must advance a legitimate governmental interest that serve the public health, safety, morals, and general welfare. The court concluded that the B-2 District ordinance was unconstitutional on its face because it was arbitrary and unreasonable on its face. It precluded any use as of right in the district and such limitation bears no substantial relation to a legitimate governmental interest.

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