Zoning Ordinance – Constitutionality

Listen to this article

Civil

7^th Circuit Court Appeals

Officials: WOOD, Chief Judge, and BAUER and RIPPLE, Circuit Judges

Zoning Ordinance – Constitutionality

No. 14-2473 Green Valley Investment LLC v. Winnebago County, Wisconsin

District court erred in failing to relinquish jurisdiction over state supplemental claims in case involving 2006 ordinance held to partially violate federal constitution.

“The ability of a court to do more than excise the unconstitutional portions of the ordinance does not appear to us to be settled in Wisconsin. The parties have not, for example, pointed to a Wisconsin case that explicitly establishes a rule allowing or disallowing such a maneuver. Moreover, in our view the questions of state law that remain to be decided “substantially predominate[ ] over the claim or claims over which the district court has original jurisdiction.” 28 U.S.C. § 1367(c)(2). Whether the alcohol and setback parts of the County’s zoning ordinance can be severed and function on their own is squarely within the scope of state law. It is also not clear that Wisconsin would regard a use that did not conform to a law that was later found to have constitutional problems as something that can be grandfathered. The answers to these questions are not obvious. They touch on both the fundamental rules of land-use control and the way in which the state enforces the separation of powers between its legislature and judiciary. Furthermore, the resolution of these issues is hamstrung by a shallow record. The record sheds no light, for example, on the question whether there is such a thing in Winnebago County as a “B-3 Highway Business District,” despite the fact that the ordinance requires adult uses to locate within such districts. And as the parties confirmed at oral argument, neither the district court nor we have a zoning map of Winnebago County to assist us. If this part of the case is returned to the Wisconsin courts, they will be able to address it within the broader context of Wisconsin’s land-use law, and they will be able to develop an appropriate record.”

Reversed and Remanded

Full Text

Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.