Quinn v. Town of Dodgeville

• Citation: 120 Wis.2d 304,354 N.W.2d 747
• Decision Date: 19 July 1984
• Docket Number: No. 82-1932,82-1932
• Parties: Donald J. QUINN, Plaintiff-Appellant, v. The TOWN OF DODGEVILLE, a Wisconsin municipality, Timothy F. Blotz, Robert Meudt and Norman Olson, as members of Town Board of the Town of Dodgeville, Iowa County, Wisconsin, Claire Olson, as County Clerk of Iowa County, Wisconsin, Kenneth Palzkill, Iowa County Zoning Administrator, and The Iowa County Zoning and Planning Committee, Defendants-Respondents. *
• Court: Court of Appeals of Wisconsin

Page 747

354 N.W.2d 747

120 Wis.2d 304

Donald J. QUINN, Plaintiff-Appellant, v. The TOWN OF DODGEVILLE, a Wisconsin municipality, Timothy F Blotz, Robert Meudt and Norman Olson, as members of Town Board of the Town of Dodgeville, Iowa County, Wisconsin Claire Olson, as County Clerk of Iowa County, Wisconsin Kenneth Palzkill, Iowa County Zoning Administrator, and The Iowa County Zoning and Planning Committee Defendants-Respondents. ^*

No. 82-1932.

Court of Appeals of Wisconsin.

Argued Dec. 15, 1983.

Opinion Released July 19, 1984.

Opinion Filed July 19, 1984.

Robert D. Sundby, Madison, argued, for plaintiff-appellant; DeWitt, Sundby, Huggett & Schumacher, S.C., Madison, on brief.

Roger J. Mueller, Dodgeville, and Paula K. Doyle, Middleton, argued, for defendants -respondents; Hamilton & Mueller, S.C., Dodgeville, and Paula K. Doyle, Middleton, on brief.

Before GARTZKE, P.J., and DYKMAN and FOLEY, JJ.

GARTZKE, Presiding Judge.

Plaintiff Donald Quinn appeals the summary judgment dismissing his complaint. Quinn sought a judgment declaring unconstitutional sec. 59.97(5)(e)6., Stats., which allows a town board to veto a county zoning ordinance amendment under the circumstances present. Quinn petitioned the appropriate county committee to rezone 5.6 acres of his agricultural property in the Town of Dodgeville to allow him to operate a commercial business and restaurant. The property is opposite Governor Dodge State Park. The town board disapproved an amendatory county ordinance which would have rezoned Quinn's property. This lawsuit resulted. The issues are whether the town veto power violates various state and federal constitutional provisions, interferes with a county development plan, and affects plaintiff's rights without according him procedural due process. We resolve the issues against Quinn and affirm.

We preface more exact statements of the issues with a sketch of the statutory background. A county board may create a planning and zoning committee or commission, designated the county zoning agency. Sec. 59.97(2), Stats. That agency prepares a county development plan for the unincorporated areas of the county and for those incorporated areas agreeing to be covered by the plan. Sec. 59.97(3)(a). After holding a public hearing and approving the plan, the zoning agency submits it to the county board for approval and adoption. The adopted plan is then certified to affected cities, towns and villages. Sec. 59.97(3)(d).

A county may adopt zoning ordinances for areas outside incorporated villages and cities, establishing districts and adopting regulations for each such district. Sec. 59.97(4), Stats. A county zoning ordinance is not effective in a town until it has been approved by the town board. Sec. 59.97(5)(c). An amendment to a county zoning ordinance is subject to a veto by the town or towns affected. If the amendatory ordinance relates to zoning district boundaries, the town board of the town affected may prevent the ordinance from becoming effective by disapproving the petition for amendment or disapproving the amendatory ordinance. All other amendatory ordinances may similarly be vetoed by a majority of the town boards of the towns affected. Sec. 59.97(5)(e)6.

We need not decide whether plaintiff's petition to rezone and the amendatory ordinance relate to zoning district boundaries. It is undisputed that the Town of Dodgeville is the only town affected and that its disapproval was timely.

The issues were brought to the trial court on motions by both sides for summary judgment. Summary judgment methodology is the same for an appellate court as it is for a trial court. Board of Regents v. Mussallem, 94 Wis.2d 657, 674, 289 N.W.2d 801, 809 (1980). We will not repeat that methodology. We have reached the stage where the material facts are undisputed and only issues of law remain for resolution. We review questions of law de novo, without being bound by the decision of the trial court. First Nat. Leasing Corp. v. Madison, 81 Wis.2d 205, 208, 260 N.W.2d 251, 253 (1977).

1. Wisconsin Const. Art. IV, Sec. 22

Wisconsin Const. art. IV., sec. 22, provides: "The legislature may confer upon the boards of supervisors of the several counties of the state such powers of a local, legislative and administrative character as they shall from time to time prescribe." Plaintiff argues that the town veto power conferred by sec. 59.97(5)(e)6., Stats., violates this provision. He contends that the constitution allows delegation of local power only to county boards, and a veto power, therefore, cannot be delegated to town boards, relying on Marshall v. Dane County Board of Supervisors, 236 Wis. 57, 294 N.W. 496 (1940), and Meade v. Dane County, 155 Wis. 632, 145 N.W. 239 (1914). We disagree.

The Meade court struck down a statute providing for a referendum vote on any county ordinance. The Meade court held that Wis. Const. art. IV, sec. 22, prohibits delegating to the electors the powers which sec. 22 requires be delegated to a county board. 155 Wis. at 644, 145 N.W. at 243. Applying Meade, the Marshall court struck down a statute specifically providing that when presented with a petition signed by fifteen percent of the voters, the county board must establish a civil service system and pension system or submit the question to a referendum. 236 Wis. at 59, 294 N.W. at 497.

Because zoning is a legislative function, Buhler v. Racine County, 33 Wis.2d 137, 146, 146 N.W.2d 403, 408 (1966), the power to zone is delegable to a county board under Wis. Const. art. IV, sec. 22. The delegability of legislative powers to the county boards does not, however, prevent delegation of the same powers to town boards. Noting that Wis. Const. art. IV, sec. 23, authorizes the establishment of towns, and that towns could not function without local, legislative and administrative powers, the supreme court of this state has held:

Since the delegation by the legislature of local, legislative and administrative power is not prohibited by the constitution, the legislature may properly invest local units, including towns, with power to legislate in respect to matters of local character.

Milwaukee v. Sewerage Comm., 268 Wis. 342, 354, 67 N.W.2d 624, 631 (1954).

The power to prevent a change in the permitted uses to which land can be put is the power to preserve an existing zoning. The town's power to veto a county zoning ordinance amendment is as legislative as the power to zone. It is comparable in effect to a zoning authority's refusal to amend the ordinance, which, according to 4 Anderson, American Law of Zoning sec. 25.08, at 214 (2d ed.1977), most courts regard as a legislative act.

Consequently, art. IV, sec. 22, of this state's constitution does not prevent the legislature from authorizing a town to veto a county zoning ordinance.

2. Shared Power

The plaintiff attacks sec. 59.97(5)(e)6., Stats., as conferring on two local governments the power to act simultaneously in the same area, zoning. Shared powers are permissible at our highest level of state government. The constitutional doctrine requiring separation of powers between the legislative, executive and judicial branches of state government is not violated if a power is shared. J. F. Ahern Co. v. Building Commission, 114 Wis.2d 69, 103, 336 N.W.2d 679, 695 (Ct.App.1983). We conclude that the delegated power shared by the town and the county has not been shown to violate the constitution.

3. One Person, One Vote Requirement

Plaintiff contends that allowing a town board to disapprove a county zoning ordinance disenfranchises the other citizens in the county. He argues that the town board's veto power therefore violates the "one-person, one-vote" requirement of the fourteenth amendment to the United States Constitution and art. I, sec. 1, of the Wisconsin Constitution. State ex rel. Sonneborn v. Sylvester, 26 Wis.2d 43, 132 N.W.2d 249 (1965), held that these constitutional provisions prohibit weighting a person's vote on the basis of where the person lives. The Sonneborn court mandated election of county board supervisors based on population rather than on the basis of political subdivisions such as municipalities and townships.

Sonneborn is not in point. A town has an interest in county zoning ordinances affecting it. The town board has veto power only over amendments to those ordinances affecting the town. It was conceded at oral argument that the action of the town board in this case does not affect land outside its boundaries. Town board members are elected either at large or by districts apportioned by population. Sec. 60.19, Stats.

The persons most directly affected by the ordinance, the town inhabitants, are equally represented in the town board's decision to approve or disapprove a change in a zoning ordinance. It is true that inhabitants throughout the county--indeed throughout the state--are affected by the town board's decision. The inhabitants of the town, however, are most directly and immediately affected. It is reasonable to weight their votes more heavily than those of other county--or state--inhabitants.

4. Compatibility of Town Veto with Art. IV, Secs. 22, 23 and 23a

Plaintiff argues that the town board veto conflicts with the following sections in Wis. Const. art. IV. Section 22 provides that the legislature may confer on the county boards of supervisors powers of a local, legislative and administrative character. Section 23 provides that the legislature may provide for the election at large of a chief executive officer in any county with powers of an administrative character, and shall establish one or more systems of county government. Section 23a provides that every resolution or ordinance passed by a county board shall be presented to the chief executive officer, grants that officer a veto power, and provides that the veto may be overcome by a two-thirds vote of the members-elect of the county board.

First, plaintiff contends that...