Municipalities — preemption

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Wisconsin Court of Appeals

Civil

Municipalities — preemption

Where a town approves a county zoning ordinance that includes a billboard ordinance enacted pursuant to the procedures set out in sec. 59.69(5)(c), the town’s billboard ordinance adopted under the town billboard statute does not preempt a county’s authority to regulate billboards in that town.

“In this case, all the towns in Dane County, including the Town of Madison, approved the County’s zoning ordinance and therefore the County’s billboard ordinance is in effect in the Town of Madison.1[5] See WIS. STAT. § 59.69(5)(c). When we look to the text of WIS. STAT. § 60.23(29), we see nothing that explicitly precludes county regulation of billboards under a county’s zoning powers. Section 60.23(29) evinces the intent by the legislature to grant local control to towns over the maintenance and construction of billboards in specific locations in the town and the statute is silent on whether that power precludes a county from regulating billboards under either the general zoning statute or the county billboard statute.”

“The statutory scheme for local regulation of billboards does contain preemption language, but that language applies only to county billboard ordinances enacted under WIS. STAT. § 59.70(22). Under that statute, a county may regulate billboards, without town approval, on premises abutting a highway maintained by the county. However, such regulation shall not apply within cities, villages and towns which have enacted ordinances regulating the same subject matter. Section 59.70(22) (emphasis added). In contrast, neither WIS. STAT. § 59.69 nor WIS. STAT. § 60.23(29) contain preemption language.”

“Thus, there is nothing that precludes a county, pursuant to its zoning authority, from regulating billboards in a town that has approved the county’s pertinent zoning ordinance, even if the town has enacted its own billboard ordinance under the town billboard statute. Therefore, under the facts of this case, we conclude the Town’s billboard ordinance does not preempt the County’s billboard ordinance. For the same reasons, we also conclude that both the County and the Town share regulatory authority over billboards located on property that abuts the subject highway maintained by the Town.”

Reversed.

Recommended for publication in the official reports.

2010AP178 Adams Outdoor Advertising, L.P., v. County of Dane

Dist. IV, Dane County, Markson, J., Higginbotham, J.

Attorneys: For Appellant: Gault, David R., Madison; For Respondent: Hornig, Thomas S., Madison; Byron, Kraig A., Madison