Supreme Court considers municipality's zoning authority

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Can a municipality establish a zone in which every use requires a conditional use permit?

The Wisconsin Supreme Court will consider that question during oral arguments Tuesday.

The town of Rhine is hoping the Supreme Court will overturn a circuit court order invalidating a zoning ordinance, which did just that, according to court records. The town had created a Commercial Manufacturing or Processing zone with no permitted uses. Every use of the zone required a conditional use permit.

When an off-road vehicle group bought a gravel pit with that designation and neighbors complained about the noise from the all-terrain vehicles, the town told the group they needed a conditional use permit. When the club applied for a permit, the town denied their request.

Club members continued to use the property and the town started issuing citations for violations of the town’s public nuisance ordinance. The town also alleged that the club violate the zoning code for operating without a conditional use permit.

A circuit court judge determined the zoning ordinance unconstitutional because there were no permitted uses. The town appealed the decision and the Wisconsin Court of Appeals certified the case to the Supreme Court.

Justices will hear oral arguments in the case at 9:45 a.m. on Feb. 26 at the state Capitol. The case is Town of Rhine v. Bizzell, 2006AP450.

The Supreme Court will take up two other cases that day:

Below v. Norton, 2005AP2855, at 10:45 a.m.

Walgreen Co. v. City of Madison, 2006AP1859, at 1:30 p.m.

Below looks at whether the economic loss doctrine bars intentional misrepresentation claims arising from non-commercial real transactions. Walgreen addresses how cities calculate assessments of commercial properties.