By Richard Lehmann
WAPA Legal Counsel
Boardman, Suhr, Curry and Field
"Garden Variety" Zoning Case Produces Interesting Ruling On Immunity
A property owner received a license from the Wisconsin DNR to operate a game bird farm. The farm was opened in 1994 after $340,000 had been invested by the property owner.
In 1995, LaCrosse County told the property owner that the game bird farm operation was not legal under exclusive agricultural zoning. The county had a non-exclusive agricultural district that allowed "fur and animal farms." Eventually, the county board rezoned the property to the more permissive district, but the town board vetoed the rezoning.
The county then issued a citation, and the property owner filed suit asking the court to enjoin enforcement and filed a second suit for damages. Both suits were thrown out. The property owner then appealed both cases to the Court of Appeals.
The Court of Appeals ruled (with little analysis) that counties can regulate game bird farms under zoning powers concurrently with DNR licensing.
The property owner argued that the county had discriminated against their game bird farm in comparison to a rifle range that was granted a rezoning and in light of the fact that the game bird farm was well buffered. The court deferred to the judgment of the county in selecting which operations to approve and reasons for regulating.
The county also asserted immunity from liability for both the damages lawsuit and the declaratory judgment/injunction lawsuit.
The Court of Appeals agreed. State law grants immunity for suits challenging governmental decisions that are discretionary. Wis. Stats. §893.80(4). That immunity was extended in 1996 to suits seeking injunctive relief. Johnson v. Edgerton, 207 Wis.2d 343, 558 N.W.2d 653 (Ct. App. 1996), which was based, in turn, on DNR v. City of Waukesha, 184 Wis.2d 178, 515 N.W.2d 888 (1994) dealing with requirements of notice of claim before suits can be filed against a municipality.
A 1997 case challenging the Dane County Executive's veto of a rezoning, Schmelling v. Phelps, 212 Wis.2d 898, 569 N.W.2d 784 (Ct. App. 1997) exempted pure declaratory judgment actions from the governmental immunity defense. (In Schmelling, the property owner asked the court to invalidate the veto and declare the rezone adoption vote of the County Board to be the final action on the petition.) The second game bird farm case was a declaratory judgment case that sought to enforce the requested ruling by injunctive relief. As such, immunity applies.
There is a hint in the decision that the declaratory judgment exception may apply only in county zoning cases, based on Wis. Stats. §59.69(14), cited in Schmelling, although that statute had no applicability to Schmelling.
Willow Creek Ranch L.L.C. v. Town of Shelby, Case No. 97-2075 decided December 10, 1998 (Ct. App.) (unpublished).
Federal Court Finds Group Homes Requirements in Conflict with Federal Law
Several Wisconsin cases have found that refusals by Wisconsin municipalities to grant exceptions to the 2,500-foot spacing rule for qualifying CBRFs were violations of the Federal Fair Housing Act under the individual circumstances of those cases. "K" Care, Inc. v. Town of Lac du Flambeau, 181 Wis.2d 59, 510 N.W.2d 697 (Wisconsin Court of Appeals 1993); Tellurian U.C.A.N., Inc. v. Goodrich, 178 Wis.2d 205, 504 N.W.2d 342 (Court of Appeals 1993); and United States v. Village of Marshall, 787 F.Supp. 872 (W.D. Wis. 1991).
In a recent case from the eastern district Federal Court in Wisconsin, the court holds that the 2,500-foot spacing statute is preempted by both the Federal Fair Housing Act and the Americans With Disabilities Act. This is a lower federal court and some upper-level federal courts have rejected across-the-board attacks on spacing rules.
The court went on to determine that the refusal of two Milwaukee suburbs to grant exceptions for group homes were also illegal, as a denial of "reasonable accommodation." The court finds that the municipal reasons for denying a waiver to the spacing rule addressed operational issues that are "not property zoning concern(s)." The track record of this operation at sites elsewhere was discounted by the courts. The court was more interested in how similar group homes operated in these communities, with respect to traffic and traditional land use matters.
Oconomowoc Residential Programs, Inc. v. City of Greenfield, 23 F.2d 941 (E.D. Wis. 1998).
Significant Changes Made in WisDOT Rules for Land Divisions Abutting State Highways
As of February 1, 1999, the Wisconsin Department of Transportation has substantially rewritten and expanded the scope of Administrative Rule Chapter TRANS 233. Administrative Rule TRANS 233 is the renumbered version of the rule historically known as HY33 under which the Wisconsin Department of Transportation contributed its component to the state plat review process. The new version of TRANS 233 makes the following significant changes:
1. DOT will now review all land divisions involving lands directly abutting state highways or urban connecting streets that are part of the state trunk highway system. "Abutting" has been extended to include lands that are separated from the state trunk highway or connecting highway by a service road, or by unplatted roads owned by the subdivider. The rule also applies to land divisions abutting highways that intersect with a state trunk highway or connecting highway.
2. DOT review and approval extends to all manner of land divisions, full state subdivision plats, "county subdivision plats," minor subdivisions done by certified survey map, land divisions done by "metes and bounds," conveyances, etc. The underlying authority for the expanded state review is Wis. Stats. §236.13(1)e, and also Wis. Stats. §86.07(2), the statute giving state control over connections to state highways.
3. All such divisions are required to have advance approval of WisDOT. Applications must be submitted with a $110 review fee, and the Department has 20 calendar days to complete its review.
4. The application must show all peripheral state and state-related highways as well as all public and private roads or driveways within the land division that intersect with the peripheral state road.
5. Setback rules are modified to allow some reduction in standard state setbacks pursuant to local ordinances, but the variations allowable by local ordinance are relatively minor. (Local ordinances can reduce the setback from 110 feet from the centerline to 100 feet, for example.)
6. The rules are more restrictive with respect to what can occur within the setbacks. For example, signs, parking lots, driveways, septic systems, and drainage facilities are prohibited within the setbacks. Public utilities may install or maintain utility facilities within setbacks.
7. The Department will analyze whether the area being subdivided has noise levels warranting noise barriers under Administrative Rule TRANS 405. If so, the land developer will be responsible for noise barriers and a notation must be placed on the plat or CSM warning owners of the noise levels.
8. Authorizations are provided for the Department to require easements for vision corners.
9. A minimum distance of 1,000 feet is required between connections of roads or driveways with state highways "to the extent practicable."
10. Storm drainage standards are now articulated in the code. The pertinent standard is that anticipated discharge of storm waters shall be "less than or equal to the discharge preceding the development . . . (and the discharges) must . . . not endanger or harm the traveling public, downstream properties, or transportation facilities."
11. The Department continues to have power to grant variances. However, if the Department later acquires land, the Department is not required to pay compensation for structures or improvements that are authorized by variance.