Zoning

Willow Creek Ranch, LLC v Town of Shelby, County of LaCrosse, 611 NW 2d 693 (Wis 2000).

Facts: Willow Creek Ranch (Willow Creek) owned 115 acres of land in the Town of Shelby (the Town). The property was located in an "exclusive agricultural" district. In 1993, Willow Creek wanted to operate a game bird farm and contacted the Town to see if it could operate a farm on its property without a petition for rezoning. The Town chairperson informed Willow Creek that it could operate a game bird farm without the need for rezoning the property. Subsequently, Willow Creek obtained a license from the state Department of Natural Resources and invested approximately $340,000 in preparation of the farm.

In 1995, the County of LaCrosse (the County) notified Willow Creek that the County was surveying agricultural land for commercial purposes and thus Willow Creek would need a petition for rezoning. In addition, the County gave Willow Creek several instructions to follow to ensure the safety of the game bird farm. Willow Creek complied with the County's instruction. However, at the end of the year, the County instructed Willow Creek to cease operation pending the resolution of the rezoning issues. A month later, the County allowed Willow Creek to temporarily resume operation. When a citizen expressed concern about the safety and noise, the Town passed a resolution stating that it would not approve the rezoning of Willow Creek's property nor would it grant a conditional use permit.

The County granted Willow Creek's petition for rezoning but the Town vetoed the decision with its prior declaration against rezoning and a conditional use permit. The County then issued Willow Creek a citation for violating the County's zoning ordinances by operating commercial activities on exclusively agricultural land.

In May 1996, Willow Creek filed suit seeking a declaratory judgment that the Town and County had exceeded their authority and had exercised their powers in an arbitrary and unconstitutional manner. Willow Creek sought an injunction prohibiting the Town and County from interfering with its operation of the game bird farm. The Town and County moved for summary judgment arguing that the state's Department of Natural Resources authority to issue a license for the operation of a game bird farm. The circuit court granted the Town's and County's motions for summary judgment and dismissed Willow Creek's suit. In December 1997, Willow Creek filed a second suit seeking money damages. The Town and County again filed motions for summary judgment. The circuit court dismissed the second suit and granted both motions for summary judgment.

Holding: Affirmed. First, the Department of Natural Resource's statutory authority does not preclude the Town and County's authority to regulate the zoning of Willow Creek's farm. In addition, the Town and County's actions were not arbitrary or unconstitutional. Third, the Town and County are immune from suit under Wisconsin Statute § 893.80(4). Finally, the Town and County are not equitably estopped from asserting immunity or enforcing its zoning authority.

Wisconsin Statute § 29.574 gives the Department of Natural Resources the authority to establish game bird and animal farms. The County does not have explicit authority over game birds and animals but § 59.69 (4) gives the County zoning authority to promote public health, safety, convenience, and general welfare. Moreover, § 59.69(5)(e)(6) gives the Town the authority to disapprove or veto zoning amendments recommended by the County. The Town and County's authority is over the zoning of the game bird farm, not its operation. Thus, the Department of Natural Resource's authority to grant licenses to operate game bird farms does not bar the Town and County from regulating the zoning of such farms.

Zoning ordinances are unconstitutional when they serve no legitimate purpose and are arbitrary, unreasonable, and have no substantial relationship to public health or safety. Here, the court concluded that that the County's desire to preserve "exclusively agricultural" land and prevent its commercial development serves a legitimate purpose. Furthermore, the Town and County acted within their powers. The Town and County prevented the operation of the farm to protect public health and safety. There was no evidence presented that the Town and County acted arbitrarily in prohibiting the operation of the farm or that powers were exercised under error of the law.

Wisconsin Statute § 893.80(4) provides that a municipality is immune from any suit for acts done in the exercise of its legislative functions, or discretionary acts. A discretionary act is the exercise of judgment in the application of a rule to a specific set of facts. However, the court recognizes that a municipality will not be immune if it is performing a ministerial act, an absolute duty involving the performance of a task that is imposed by the law. The law prescribes the time, mode, and occasion for the municipality's performance of the task with such certainty that the municipality does not have any judgment or discretion in its performance of the duty. Willow Creek argued that the Town and County were not immune because they had a ministerial duty to defer to the state Department of Natural Resources' authority to license and regulate game bird farms. However, as aforementioned, the Town and County's zoning authority is separate from that of the Department of Natural Resources. Furthermore, the court cannot conclude that the Town and County breached a ministerial duty when the neither the Town or County have no duty to defer to the state. Thus, the Town and County are immune pursuant to § 893.80(4).

Wisconsin Statute § 893.80(4) also provides that the Town and County are immune from suits for monetary damages, including injunctive relief. The statute provides immunity for actions based on torts but not contracts. Since Willow Creek's action is tort-based, the Town and County falls within the immunity provided by § 893.80(4).

Erroneous acts or representations of municipal officers do not afford a basis to estop a municipality from enforcing zoning ordinances pursuant to its powers. The court reasoned that if municipalities were bound to every representation made by its employees, municipalities would be subject to excessive litigation. Thus, the misrepresentations made by the Town chairperson are not a basis for estopping the Town and County from enforcing the zoning ordinance and vetoing Willow Creek's petition. Moreover, since a subordinate officer and not the municipality made the misrepresentation itself, the Town is not estopped from asserting immunity as a defense. Absent evidence that the Town and County violated a law by enforcing the ordinance and vetoing the petition, neither the Town nor the County are equitably estopped from raising immunity as a defense in this suit.

EDITOR'S NOTE: Under Illinois law, zoning is a matter of legislative judgment and the courts give deference to the municipality's zoning authority. Bolger v Village of Mount Prospect, 10 Ill 2d 596, 599, 602, 141 NE 2d 22 (Ill 1957). Courts will only intervene when the classifications are arbitrary, capricious, or unrelated to the legitimate objectives set forth. Id at 602; First Nat'l Bank of Lake Forest v Lake County, 7 Ill 2d 213, 226, 130 NE 2d 267 (Ill 1956). Zoning classifications are valid if they bear a real and substantial relationship to public health, safety, comfort, morals, or general welfare. First Nat'l Bank, 7 Ill 2d 213, 226. Some factors that help determine if a substantial relationship to general welfare exists are: the character of the neighborhood; zoning classifications and the use of nearby properties; extent to which property values are diminished by particular restrictions; and gain to the public as compared to hardship imposed on an individual property owner. Gordon v City of Wheaton, 12 Ill 2d 284, 287, 146 NE 2d 374 (Ill 1958).

Although a municipality has the authority to exercise its powers, it must not execute its powers in a way that clearly interferes with state policies and legislature. Scadron v City of Des Plaines, 153 Ill 2d 164, 178-84, 606 NE 2d 1154, 180 Ill Dec 77 (Ill 1992). A court must find that a state Act or statute clearly preempts a municipality's powers or excludes the municipality from discretion in a specific area. Id.

The Local Governmental and Governmental Employees Tort Immunity Act provides that any defense or immunity available to a private individual will be available to local governments and their employees. 745 ILCS § 10/1-101.1(b). The Act only provides immunity for discretionary acts. Discretionary acts are those acts requiring "personal deliberation, decision, and judgment." Bonnell v Regional Bd of School Trustees of Madison County, 258 Ill App 3d 485, 489, 630 NE 2d 547, 196 Ill Dec 612 (5th D 1994). The Act will not provide immunity when a local government or its employees negligently perform a ministerial act. Id. A ministerial task is a task that calls for the performance of task in a prescribed manner and there is no decision-making discretion on the part of the performer. Id.

Since zoning requires judgment and discretion, a municipality is immune from tort actions, such as the one brought by Willow Creek. Unless the municipality is guilty of negligence or capricious and arbitrary enforcement of zoning ordinances, the court will give deference to the municipality's authority. A municipality may raise any defense or immunity allowable at common law or statutory law, available to a private person. The Act does not state that a misrepresentation by an employee will estop a municipality from raising immunity or other defenses available under the Act.

© ATG atgc0106vol25

Print this page