Town's planning moratorium upheld

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Towns may impose moratoria on development while developing a “smart growth” plan, despite concerns raised by two construction and realty groups.

The Wisconsin Court of Appeals’ Feb. 28 decision comes after the Supreme Court split the decision 3-3 and sent it back down to the appellate court. The decision, written by Judge Paul G. Lundsten affirmed the circuit court decision.

In September 2005, the Town of West Point adopted an ordinance establishing a townwide moratorium on the acceptance, review, and approval of any application for a land division or subdivision. The moratorium was enacted to freeze development pending approval of a comprehensive plan under sec. 66.1001, the “smart growth” statute.

The Wisconsin Realtors Association and the Wisconsin Builders Association (associations) sued the town, seeking an injunction against enforcement.

Summary Judgment

Columbia County Circuit Court Judge Andrew Bissonnette granted summary judgment in favor of the town, and the subsequent appeal was certified to the Wisconsin Supreme Court.

The statutory language at issue, in sec. 236.45(2), authorizes towns to “prohibit the division of land in areas where such prohibition will carry out the purposes [listed in 236.45(1)].”

The associations did not contest that the ordinance furthered the purposes listed in subsec. (1), but contended that subsec. (2) only authorizes towns to ban development “in areas” of the town, not the entire town.

The town contended that “in areas” may include an entire town if inclusion of the entire town will carry out the statutory purposes. The associations contended this reading renders the phrase “in areas” superfluous, because the statute would mean the same thing if it were not included at all.

The court agreed with the associations that the town’s reading renders “in areas” surplus, but agreed with the town nevertheless, reasoning, “our legislature sometimes uses more words than necessary without intending to add meaning.”

Court Rejects Argument

The court rejected the associations’ argument, concluding that its interpretation was unreasonable. A town could comply with the statute, as interpreted by the associations, merely by excluding a few parcels, but still effectively prohibit all land division.

The associations also argued that permitting townwide moratoriums would render sec. 62.23(7)(da) meaningless. That section authorizes cities (but not towns) to “enact an interim zoning ordinance to preserve existing uses while the comprehensive zoning plan is being prepared.”

The associations argued that, by expressly granting authority to cities to enact moratoria, but not to towns, the legislature did not intend that towns would be able to accomplish the same result via moratoria on land division.

However, the court concluded that sec. 236.45(2) is unambiguous, and therefore, sec. 62.23(7)(da) is not relevant.

In addition, the court noted that sec. 62.37(7)(da) relates to zoning, rather than land division.

Distinct Powers

The court acknowledged that, as a practical matter, a freeze on zoning also freezes land division, and vice versa. However zoning and land division may interact, though, the court found them distinct powers, so that a statutory limitation on one power does not limit the other.

Noting that zoning and planning are overlapping, but distinct, powers, the court concluded, “the legislative grant of city interim zoning power to ‘preserve existing uses’ under sec. 62.23(7)(da) does not defeat the Town’s argument that sec. 236.45(2) authorizes temporary town-wide prohibitions on land division.”

Case analysis

Zoning and planning are, as the court notes, overlapping but distinct.

However, by not even considering the relationship between sec. 62.32(7)(ad) and sec. 236.45(2), the court makes the two significantly more distinct, and less overlapping, than prior Wisconsin Supreme Court precedents have.

In Wood v. City of Madison, 260 Wis.2d 71, 659 N.W.2d 31, 37-39 (2003), the Wisconsin Supreme Court engaged in a lengthy harmonization of zoning and planning laws — how they complement each other, when one trumps the other, etc.

In the case at bar, the Court of Appeals merely cites Wood for the proposition that zoning and planning are distinct powers, despite the overlap, without any explanation why, in this particular case, the Wall of Jericho must be erected between the two.

In Lake City Corp. v. City of Mequon, 207 Wis.2d 155, 558 N.W.2d 100, 107 (1997), the court observed, “the legislature also has specified that its grant of zoning power to city councils ‘may not be deemed a limitation on any power granted elsewhere.’ (quoting sec. 62.23(7)(a).”

In the case at bar, the Court of Appeals goes further, effectively holding that even though the legislature has made an explicit grant of power to cities, but denied it to towns, that may not be deemed a limitation on the powers of a town to accomplish the same result through different means.

The Court of Appeals’ analysis could also be deemed a return to the “mutually exclusive view of zoning and platting” that it previously embraced in Gordie Boucher Lincoln-Mercury Madison, Inc., v. City of Madison Plan Comm’n, 178 Wis.2d 74, 503 N.W.2d 265 (Ct.App.1993).

However, that approach was rejected by the Supreme Court in Wood: “the holding in Gordie Boucher does not accurately reflect the law and must be overruled. Although Gordie Boucher correctly noted that zoning and subdivision plat approval authority are different types of land use controls which do not serve identical purposes, it incorrectly concluded that subdivision plat approval authority may not consider the appropriate use of land.” Wood, 659 N.W.2d at 38.

Whether or not the ultimate decision reached by the court is correct is beyond the scope of this analysis.

However, three of the six justices who reviewed this case agreed with the Associations’ interpretation. Had the full court heard the case, there would be two lengthy opinions similar to Wood, addressing both the distinctions, and the overlap, between zoning and planning.

As a result, any attorney representing a town and defending a moratorium on land division must be prepared to do the same; merely reciting that zoning and planning are overlapping, but distinct, only frames the question, without answering it.