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Municipalities – zoning — constitutionality

Wisconsin Court of Appeals


Municipalities – zoning — constitutionality

A municipal ordinance which allows the city council to prohibit new lots that are smaller than or not as wide as lots in existing subdivisions, or when the existing subdivision is more than twenty-five years old, is not unconstitutionally vague.

“Reading Humble Oil in conjunction with Lerner, Wadhams, and Smith, we conclude that ordinances may vest boards with some (and even significant) discretion without being unconstitutionally vague. What an ordinance may not do is blanket the board with unfettered discretion. The problem with the ordinance in Humble Oil was that it contained absolutely no criteria to consider when deciding whether granting or denying a permit for a filling station would benefit the general welfare. See Humble Oil, 25 Wis. 2d at 8-9. That is simply not the case here.”

“New Berlin Municipal Code § 235-26(G) has much more specific standards than the commonplace template that the Humble Oil court had in front of it. In fact, it is more specific than the ordinances upheld in Lerner and Smith. In both Lerner and Smith, the challenged ordinances contained application requirements that were construed as giving guidance to the decision-making bodies in those cases. See Lerner, 203 Wis. at 36; Smith, 272 Wis. at 5, 10. In this case, § 235-26(G) lays out more than just a guide, it states specific criteria to be considered by the Council—size of the proposed lot(s) versus the average size of existing lots, as well as age of the subdivision. In addition, NBMC § 235-1 outlines general welfare issues to be considered when deciding whether to approve lots that are subject to rejection under § 235-26(G). With all of those standards, § 235-26(G) is not unconstitutionally vague.”


Recommended for publication in the official reports.

2011AP663 Guse v. City of New Berlin

Dist. II, Waukesha County, Davis, J., Brown, J.

Attorneys: For Appellant: Blum, Mark G., Waukesha; Schmitzer, Thomas G., Waukesha; For Respondent: Schober, T. Michael, New Berlin

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