Heitman v. City of Mauston Common Council

• Decision Date: 29 April 1999
• Docket Number: No. 98-3133,98-3133
• Citation: 595 N.W.2d 450,226 Wis.2d 542
• Parties: Mark HEITMAN, on behalf of himself and 196 other qualified electors of the City of Mauston who signed a Direct Legislation Petition, Plaintiff-Appellant, v. CITY OF MAUSTON COMMON COUNCIL, and City of Mauston, Defendants-Respondents.
• Court: Wisconsin Court of Appeals

Page 450

595 N.W.2d 450

226 Wis.2d 542

Mark HEITMAN, on behalf of himself and 196 other qualified electors of the City of Mauston who signed a Direct Legislation Petition, Plaintiff-Appellant, v. CITY OF MAUSTON COMMON COUNCIL, and City of Mauston Defendants-Respondents.

No. 98-3133.

Court of Appeals of Wisconsin.

Submitted on Briefs Feb. 26, 1999.

Opinion Released April 29, 1999.

Opinion Filed April 29, 1999.

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Matthew W. O'Neill and Jeremy P. Levinson of Friebert, Finerty & St. John, S.C. of Milwaukee.

On behalf of the defendants-respondents, the cause was submitted on the brief of John R. Orton of Curran, Hollenbeck & Orton, S.C. of Mauston.

Non-party briefs were filed by Curtis Witynski of League of Wisconsin Municipalities of Madison.

Before DYKMAN, P.J., VERGERONT and ROGGENSACK, JJ.

ROGGENSACK, J.

Mark Heitman appeals from a summary judgment dismissing the complaint which requested a writ of mandamus compelling the City of Mauston Common Council, pursuant to § 9.20, STATS., to either to adopt or to refer to a vote of the electorate, without alteration, a proposed initiative affecting the real property within Mauston and for an order, pursuant to § 781.02, STATS., restraining Mauston and its Common Council from entering into any contracts, spending or appropriating public monies on behalf of a secured treatment facility for sexually violent person commitments, as defined in ch. 980 of the Wisconsin Statutes. Because we conclude that the proposed initiative is either a zoning ordinance or an amendment to the zoning ordinances of Mauston and that zoning and amendments to zoning may be accomplished only in compliance with the procedures established in § 62.23, STATS., and not by initiative, which does not utilize those safeguards for individual landowners' rights established by the legislature, we affirm the judgment of the circuit court dismissing the action.

BACKGROUND

This case arose because of the contemplated construction of a secure treatment facility in Mauston, pursuant to ch. 980, STATS. Mark Heitman, and other signatories, who oppose the construction of the treatment facility in Mauston, commenced an initiative pursuant to § 9.20, STATS., ¹ and requested Mauston either to adopt the proposed initiative without alteration or to submit it to the electorate for a vote. The following is the initiative Heitman proposed:

Secured Treatment Facility Prohibition. The City of Mauston shall not approve or permit the location of a Secured Treatment Facility for Sexually Violent Person Commitments as defined in Chapter 980 of the Wisconsin Statutes on lands within the City of Mauston or on lands owned or annexed by the City of Mauston.

When Mauston refused to either adopt the proposed initiative as an ordinance or to submit it to the electorate, Heitman commenced an action for mandamus to require it to do so and for injunctive relief. Mauston answered, denying that Heitman had a right to the relief that he requested. It then moved for summary judgment, dismissing the lawsuit. The circuit court granted Mauston's motion and this appeal followed.

DISCUSSION

Standard of Review.

This court reviews summary judgment decisions de novo applying the same standards employed by the circuit court. Smith v. Dodgeville Mut. Ins. Co., 212 Wis.2d 226, 232, 568 N.W.2d 31, 34 (Ct.App.1997). We first examine the complaint to determine whether it states a claim, and then we review the answer to determine whether it joins a material issue of fact or law. Id. If we determine that the complaint and answer are sufficient, we proceed to examine the moving party's affidavits to determine whether they establish a prima facie case for summary judgment. Id. at 232-33, 568 N.W.2d at 34. If they do, we look to the opposing party's affidavits to determine whether there are any material facts in dispute which entitle the opposing party to a trial. Id. at 233, 568 N.W.2d at 34.

Here, the initiative that Heitman poses as an ordinance constitutes an undisputed set of facts. The application of § 9.20, STATS., to undisputed facts presents a question of law, which we decide independently of the circuit court's decision. Schaefer v. Potosi Village Bd., 177 Wis.2d 287, 289, 501 N.W.2d 901, 902 (Ct.App.1993).

Direct Voter Actions.

An initiative is a direct voter action to enact new law within a particular jurisdiction. Landt v. City of Wisconsin Dells, 30 Wis.2d 470, 480, 141 N.W.2d 245, 250 (1966). The right of initiative must be distinguished from another type of direct legislation, the right of referendum. In a referendum, voters review an enactment of a municipality's governing body. Id. at 475, 141 N.W.2d at 248. Referenda are generally employed in attempts to defeat municipal legislation, which the municipality had the power to enact. 5 EDWIN MCQUILLIN, MUN. CORP. §§ 16.52 and 16.53 (3rd Ed.1991).

Powers of direct legislation can arise by statute or through a reservation of rights to the people, in state constitutions. Section 9.20, STATS.; ARIZ. CONST. art. IV, pt. 1, § 1(8); CAL. CONST. art. IV, § 1; OHIO CONST. art. II, § 1. Where the reservation of rights is constitutionally based, procedural due process challenges usually do not succeed because the United States Supreme Court has held that voter actions based on rights reserved to the people in state constitutions satisfy the minimum procedural due process requirements of the Fourteenth Amendment of the United States Constitution. City of Eastlake v. Forest City Enterprises, Inc., 426 U.S. 668, 679, 96 S.Ct. 2358, 49 L.Ed.2d 132 (1976). ²

In Wisconsin, the right of initiative is not reserved to the people in the constitution. Rather, by the adoption of the state constitution, the people of Wisconsin delegated all rights of lawmaking to the Wisconsin Legislature. WIS. CONST. art. IV, § 1. Therefore, in Wisconsin, initiative is a creature of statute and its use must comport with the requirements established by the legislature, both for direct action legislation and for the specific area of legislation in which initiative is attempted. ³ Section 9.20, STATS.; see Landt, 30 Wis.2d at 478-79, 141 N.W.2d at 249-50.

Section 9.20, STATS., has been examined in many Wisconsin cases. The supreme court has opined that the direct legislative powers of the people established in § 9.20 should not be unduly restricted, as they are often exercised when the electorate believes that their elected representatives are not acting in response to the public's will. See State ex rel. Althouse v. City of Madison, 79 Wis.2d 97, 118-19, 255 N.W.2d 449, 459 (1977). However, the use of § 9.20 has some limitations. First, the ordinance which is sought to be passed must be legislative in character because direct legislation cannot extend executive or administrative actions of local legislative bodies. Id. at 107, 255 N.W.2d at 453 (citing Heider v. Common Council of Wauwatosa, 37 Wis.2d 466, 474, 155 N.W.2d 17, 21 (1967)). Second, direct legislation cannot be used to compel a city council to repeal an existing ordinance or resolution or to compel the passage of an ordinance which would be in clear conflict with one already in existence, such that it would act as a repealer of the existing ordinance. Althouse, 79 Wis.2d at 107, 255 N.W.2d at 453-54 (citing Landt, 30 Wis.2d 470, 141 N.W.2d 245). Third, citizens seeking to effect a § 9.20 initiative may exercise only those legislative powers that have been conferred upon a city's common council. ⁴ Althouse, 79 Wis.2d at 108, 255 N.W.2d at 454. Fourth, if Wisconsin statutes establish procedures and standards for the accomplishment of legislation in a certain area, a § 9.20 initiative may not effect legislation which would modify the statutorily prescribed directives that would bind a municipality if it were trying to legislate in the same area. Id. (citing Edwin Conrad, Direct City Legislation on Foreign Policy Matters, 51 Marq. L.Rev. 426 (1968); see also David L. Callies, et al., Ballot Box Zoning: Initiative, Referendum and the Law, 39 Wash. U.J. Urb. & Contemp. L. 53 (1991)).

Heitman's Initiative.

Mauston claims Heitman's initiative is an attempt to "administer" zoning ordinances. Heitman responds that Mauston is in reality claiming that the initiative is a zoning ordinance, or the repeal of a zoning ordinance. And while Heitman denies the initiative is a zoning ordinance, he does not argue that in Wisconsin one cannot zone by initiative. In order to decide the nature of Heitman's initiative, i.e., whether it is an attempt to zone or rezone, we first review the characteristics of zoning.

Zoning has been described as the division of a given jurisdiction's land into districts or "zones" and the establishment of regulations within those zones to control both the use to which property may be placed and the construction of structures. BLACK'S LAW DICTIONARY 1618 (6th ed.1990). Zoning is an element of a state's inherent police power insofar as in its exercise, it imposes use restrictions on property without the payment of compensation. See Berman v. Parker, 348 U.S. 26, 36, 75 S.Ct. 98, 99 L.Ed. 27 (1954). The power to zone and rezone can be delegated to municipal corporations. 8 EDWIN MCQUILLIN, MUN. CORP. § 5.214 (3rd Ed.1991). States that allow municipal zoning typically do so through state zoning enabling acts. See Nicolas M. Kublicki, Land Use By, For, and Of the People: Problems with the Application of Initiatives and Referenda to the Zoning Process, 19 Pepp. L.Rev. 99, 135-36 (1991).

Wisconsin's legislature has created a state zoning enabling act in § 62.23, STATS. This act establishes substantive and procedural rights for landowners by requiring a municipality to create its zoning ordinances under certain defined procedures and within certain limitations. For example, pursuant to § 62.23(1), a city may create a planning commission, which Mauston has done. The...