Quinn v. Town of Dodgeville

• Decision Date: 27 February 1985
• Docket Number: No. 82-1932,82-1932
• Citation: 122 Wis.2d 570,364 N.W.2d 149
• Parties: Donald J. QUINN, Plaintiff-Appellant-Petitioner, 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: Wisconsin Supreme Court

Page 149

364 N.W.2d 149

122 Wis.2d 570

Donald J. QUINN, Plaintiff-Appellant-Petitioner, 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.

Supreme Court of Wisconsin.

Argued Jan. 30, 1985.

Decided Feb. 27, 1985.

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

Roger J. Mueller (argued), Dodgeville, for defendants-respondents; Hamilton & Mueller, S.C., Dodgeville, and Paula K. Doyle, Middleton, on brief (in court of appeals).

STEINMETZ, Justice.

Donald J. Quinn, a property owner, sought judgment declaring unconstitutional sec. 59.97(5)(e)6, Stats., which grants town boards the power to veto county zoning ordinance amendments. The circuit court for Iowa county, James P. Fiedler, Judge, dismissed the complaint pursuant to defendants' motion for summary judgment. Quinn appealed to the court of appeals and after the court of appeals affirmed the trial court, ¹ he petitioned this court for review which was accepted.

Plaintiff Quinn presents this court with six issues:

(1) Does sec. 59.97(5)(e)6, Stats., ² empowering a town board to approve or disapprove a zoning ordinance enacted by the county board, violate Wisconsin Constitution Article IV, sec. 22, ³ authorizing the legislature to confer upon county boards powers of a local, legislative and administrative character?

The trial court and court of appeals held that Wisconsin Constitution Article IV, sec. 22, does not prevent the legislature from simultaneously delegating to a county board and a town board the shared power of zoning.

(2) Does the town board's right under sec. 59.97(5)(e)6, Stats., to approve or disapprove a zoning ordinance amendment adopted by a county board violate the one-person, one-vote requirement of the Fourteenth Amendment to the United States Constitution ⁴ and Article I of the Wisconsin Constitution? ⁵

The trial court and court of appeals held that because the zoning amendment directly and immediately affected the inhabitants of the town of Dodgeville, it was reasonable to weigh their votes more heavily than those of the county or state inhabitants.

(3) Does the delegation of power to approve or disapprove a county zoning amendment to a town board violate the legislature's delegation of power to a county board under Article IV, secs. 22, 23 and 23a, Wisconsin Constitution, the creation of a county executive and the executive's veto power?

The court of appeals rejected this contention relying on its interpretation that nothing in the state constitution indicates an intention to prohibit the power of the legislature to invest towns with the power to legislate on local matters.

(4) Does the town board's exercise of power under sec. 59.97(5)(e)6, Stats., to approve or disapprove a zoning ordinance amendment adopted by a county board violate the comprehensiveness of the existing county zoning ordinance and therefore render it unconstitutional?

The trial court held it must be presumed that the actions of the town board and county board are consistent with the overall comprehensive plan. The court of appeals held that the authorities do not support the proposition that to be constitutional, zoning must be accomplished in accordance with a comprehensive plan.

(5) Did the town board's exercise of power under sec. 59.97(5)(e)6, Stats., deprive plaintiff of his rights to procedural due process and equal protection required by the Fourteenth Amendment to the United States Constitution?

The trial court dismissed this claim noting that Quinn attended all meetings material to the issues raised in his complaint. The court of appeals held that the rezoning of a specific or small parcel is not an administrative or judicial act, but is a legislative act and having so concluded, the court felt there was no need to determine whether the plaintiff was denied due process of law or whether the veto power is constitutionally infirm for lack of standards.

(6) If sec. 59.97(5)(e)6, Stats., empowering a town board to approve or disapprove a zoning ordinance amendment adopted by a county board is unconstitutional, is that portion severable from the remainder of sec. 59.97?

Because the court of appeals sustained the statute and the town board's action against constitutional attack, it was not necessary for the court to decide this issue.

Quinn is the owner of a 5.6 acre parcel of land which is the subject of this dispute. It is located on state Highway 23 in Iowa county in the town of Dodgeville and opposite Governor Dodge State Park. Under sec. 3 of the present Iowa county zoning ordinance, Quinn's land is zoned Agricultural District. Such classification under sec. 3.3 of that ordinance permits Quinn's land to be used only for agriculture and related activities.

Prior to May 13, 1981, Quinn petitioned the Iowa county planning and zoning committee under sec. 2.3 of the ordinance and sec. 59.97(5), Stats., requesting his property be rezoned B-2 or Business/Highway District. Such classification would permit Quinn to operate an ice cream parlor, restaurant, craft shop and health food store. On May 13, 1981, the Iowa county zoning and planning committee held a public hearing on Quinn's rezoning petition. As was the customary practice, the town board met in a joint session with the county board. Following that joint hearing, the county zoning and planning committee recommended to the Iowa county board of supervisors that it deny Quinn's petition to rezone his property. It appears that the town board at the same meeting voted against Quinn's requested zoning change.

On May 19, 1981, the county board rejected the recommendation of the zoning and planning committee and returned Quinn's petition with instructions that an amendment to the county zoning ordinance be prepared to effect the proposed change. Quinn attended that meeting and addressed the county board. The zoning and planning committee complied and on June 23, 1981, the amendment rezoning Quinn's property was adopted by the county board. On July 14, 1981, after public notice, the town board met in special session and by a vote of 2 to 1 adopted a resolution vetoing and disapproving the action of the county board rezoning the Quinn property. Quinn attended that meeting as well. One week later, the county board accepted the resolution adopted by the town board as a veto of its decision of June 23, 1981, and took no further action.

The issues were brought to the trial court on motions for summary judgment by both sides. The material facts are undisputed and only issues of law remain for resolution. It is well settled that we review questions of law de novo without being bound by the decision of the trial court or the court of appeals.

Plaintiff contends the action taken by the town board pursuant to its statutorily conferred power was unconstitutional and asserts several arguments predicated on the alleged unconstitutionality of particular legislative enactments. It is well settled that the law in this state presumes all legislative acts are constitutional, and the petitioner in order to prevail must prove the opposite by a standard beyond a reasonable doubt. State ex rel. McCormack v. Foley, 18 Wis.2d 274, 279, 118 N.W.2d 211 (1962). It is insufficient to merely establish doubt as to an act's constitutionality nor is it sufficient to establish the act is probably unconstitutional. This court indulges every presumption and will sustain the law if at all possible. If any doubt exists as to a law's unconstitutionality, it will be resolved in favor of its validity. State ex rel. Hammermill Paper Co. v. La Plante, 58 Wis.2d 32, 46, 205 N.W.2d 784 (1973); and, "If there is any reasonable basis for the exercise of the legislative power, we are obliged to uphold the enactment." Watchmaking Examining Bd. v. Husar, 49 Wis.2d 526, 531, 182 N.W.2d 257 (1971). We are not concerned with the merits of the legislation under attack nor are we concerned with the wisdom of what the legislature has done. Gottlieb v. Milwaukee, 33 Wis.2d 408, 415, 147 N.W.2d 633 (1967), see also Chicago & N.W. R. Co. v. La Follette, 27 Wis.2d 505, 521, 135 N.W.2d 269 (1965).

Legislative Character

We held in Buhler v. Racine County, 33 Wis.2d 137, 146, 146 N.W.2d 403 (1966), that zoning is a legislative function. The power to zone is delegable to a county board under Wisconsin Constitution Article IV, sec. 22. The delegability of legislative powers to the county boards does not prevent the simultaneous delegation of the same power to town boards. Wisconsin Constitution Article IV, sec. 23 authorizes the establishment of towns and in Milwaukee v. Sewerage Comm., 268 Wis. 342, 354, 67 N.W.2d 624 (1954), we held that towns could not function without local, legislative and administrative powers. In Milwaukee v. Sewerage Comm. we stated:

"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.

"It is a well-settled rule, supported with practical unanimity by the authorities, that the general doctrine prohibiting the delegation of legislative authority has no application to the vesting in political subdivisions of power of government matters which are local in scope."

We endorse the statement of the court of appeals in Quinn v. Town of Dodgeville, 120 Wis.2d 304, 309, 354 N.W.2d 747 (Ct.App.1984), that:

"The power to prevent a change in the permitted uses to which land can be put is the power to preserve an...