Town of Rhine v. Bizzell
| Decision Date | 01 July 2008 |
| Docket Number | No. 2006AP450.,2006AP450. |
| Parties | TOWN OF RHINE, Plaintiff-Appellant, v. Brock O. BIZZELL, Matthew A. Schuette, Jonathon W. Thompson, Timothy J. Van der Vaart, Andrew S. Wiesz, Scott R. Wiesz, and Manitowoc Area Off Highway Vehicle Club, Inc., Defendants-Respondents. |
| Court | Wisconsin Supreme Court |
An amicus curiae brief was filed by Lee Turonie, assistant legal counsel, Shawno, on behalf of the Wisconsin Towns Association.
An amicus curiae brief was filed by Thomas D. Larson and Debra P. Conrad, Wisconsin REALTORS® Association, Madison, and John A. Kassner III and Murphy Desmond S.C., Madison, on behalf of the Wisconsin REALTORS® Association, and oral argument by John A. Kassner III.
ON CERTIFICATION FROM THE COURT OF APPEALS
This case is before the court on certification by the court of appeals, pursuant to Wis. Stat. § (Rule) 809.61 (2005-06).1 The circuit court concluded that Town of Rhine, Wis., Municipal Code § 4.08(2)(a),2 "B-2 Commercial Manufacturing or Processing," is unconstitutional and that the defendants' nuisance ordinance violations should be dismissed. The court of appeals certified two issues to this court.
¶ 2 The first issue is whether Town of Rhine, Wis., Municipal Code § 4.08(2)(a) is unconstitutional on its face. We conclude that § 4.08(2)(a), the B-2 District, is unconstitutional on its face because it is arbitrary and unreasonable in that it precludes any use as of right in the B-2 District and such limitation bears no substantial relation to the public health, safety, morals or general welfare.
¶ 3 The second issue is whether the circuit court properly dismissed the defendants' nuisance ordinance violations. We conclude that the circuit court applied a common-law definition of "nuisance" rather than the definition of "public nuisance" articulated in Town of Rhine, Wis., Municipal Code § 2.02. As a result, we remand to the circuit court to apply the code's definition of "public nuisance."
¶ 4 Therefore, we affirm in part, reverse in part, and remand to the circuit court for a new hearing on the public nuisance claim.
¶ 5 On October 1, 2003, the Manitowoc Area Off Highway Vehicle Club, Inc., (hereinafter "the Club") purchased 77.2 acres of land in section twelve of the Town of Rhine, Sheboygan County. The zoning classification of this land has been "B-2 Commercial Manufacturing or Processing" for 20 years. Within this classification, Town of Rhine, Wis., Municipal Code § 4.08(2)(a). Conditional uses in the "B-2 Commercial Manufacturing or Processing" district include: (1) fabrication of consumer or industrial commodities; (2) garbage, rubbish, offal, industrial waste and dead animal reduction or disposal; (3) quarrying; (4) mining and ore processing; (5) salvage yards for wood, metals, papers and clothing; and (6) stockyards.3 Id.
¶ 6 After purchasing the property in 2003, club members used the property for riding all-terrain vehicles (ATVs) and hunting. On January 6, 2004, pursuant to a request by the Town of Rhine, the Club's president appeared at a Town of Rhine board meeting.4 At the meeting, the Club president was asked what activities were occurring on the property. The Club president responded that members "are a group of families that live in the city limits and don't own enough property to enjoy outdoor recreation such as hunting, horseback riding, bicycling, ATV riding etc."
¶ 7 Chairman Sager asked if the Club members were aware that the land was zoned B-2 when they purchased the land. The Club president responded that the Club's attorney informed them that "because it was zoned business and not residential[,] the manner in which they are using the land should not be an issue." Chairman Sager then related that B-2 zones require a conditional use permit "for any use of the land." He further stated that "an application should be directed to the Plan Commission for either a CUP [conditional use permit] or rezoning." The Club president then asked whether he needed to apply for specific uses or different zoning. Chairman Sager answered that it would depend on how they intended to use the land.
¶ 8 On May 19, 2004, the Club applied for a conditional use permit. In the conditional use application, the Club stated that it wanted to use the property for recreational activities, such as hunting and riding ATVs. The application stated, "[t]his IS NOT a request for a commercial or industrial operation." The conditional use permit was denied on September 7, 2004.5 Although the record is unclear as to when, the Club also applied for the B-2 zone to be rezoned to a B-1, "Neighborhood Business" district. That rezoning request was also denied, but it is unclear from the record when it was denied.
¶ 9 On October 10, 2004, the Elkhart Lake Police Department issued citations to six club members for violating the Town of Rhine's Public Nuisance Ordinance. Town of Rhine, Wis., Municipal Code § 2.01. On December 14, 2004, a consolidated trial was held for all six defendants. The Elkhart Lake Municipal Court dismissed the ordinance violation due to insufficient evidence. Pursuant to Wis. Stat. § 800.14, the Town of Rhine appealed the municipal court's decision to the Sheboygan County Circuit Court.
¶ 10 On December 19, 2004, in Sheboygan County Circuit Court, the Town of Rhine filed a complaint that alleged two causes of action. In the first cause of action, regarding the public nuisance violations of the ordinance, the Town of Rhine asked for a de novo review of the dismissed citations. In the second cause of action, regarding the zoning violation, the Town of Rhine asked for a determination of whether the Club was violating the Town of Rhine's zoning code, and the Town of Rhine sought an order enjoining the Club from operating ATVs on the property.
¶ 11 On August 29, 2005, a trial to the court was held. On January 13, 2006, the circuit court issued a written decision. In that decision, the circuit court characterized the two issues as follows: (1) whether the Town of Rhine B-2 zone use restriction was constitutional; and (2) whether the Club's use of the property constituted a public nuisance.
¶ 12 The circuit court concluded "that a zoning ordinance which bars all uses within a district is unreasonable." It further stated that "a zoning ordinance which permits no uses within a district is confiscatory in nature and oppressive." Accordingly, the circuit court concluded that the zoning ordinance was unconstitutional. With respect to the nuisance claim, the circuit court determined that although the ordinance related to a public nuisance, the Town of Rhine's claim was an attempt to abate a private nuisance. The circuit court, citing to Milwaukee Metropolitan Sewerage District v. City of Milwaukee, 2005 WI 8, 277 Wis.2d 635, 691 N.W.2d 658, stated that a nuisance is a public nuisance if "the condition or activity interferes with the public right or use of public space." The circuit court determined that the nuisance could not be a public nuisance because the property at issue was not a public place, and the Club's activities did not affect the entire community. As a result, it concluded that the Town of Rhine lacked standing to advance the claim. The Town of Rhine appealed the circuit court's decision. Pursuant to Wis. Stat. § 809.61, the court of appeals certified this case to us for review and determination. We accepted the certification.
¶ 13 "The interpretation and application of an ordinance to an undisputed set of facts is a question of law, which this court decides de novo." Bruno v. Milwaukee County, 2003 WI 28, ¶ 6, 260 Wis.2d 633, 660 N.W.2d 656. The constitutionality of an ordinance is also a question of law, which this court reviews de novo. Wilke v. City of Appleton, 197 Wis.2d 717, 726, 541 N.W.2d 198 (Ct.App.1995).
¶ 14 The Club argues that Municipal Code § 4.08(2)(a), the B-2 District, is unconstitutional on its face because it violates due process in that any use of the property is prohibited unless the landowner obtains a conditional use permit. It further argues that there are no clear and objective standards for the landowner to obtain a conditional use permit. The Town of Rhine, on the other hand, argues that Municipal Code § 4.08(2)(a) is constitutional. It argues that the B-2 District does allow for certain uses of the property under a conditional use permit, and therefore, it is inaccurate to assert that B-2 zoning does not allow any use. The Town of Rhine also argues that Municipal Code § 4.01 sets forth adequate standards for obtaining a conditional use permit, and it asserts that a number of other municipalities have conditional use provisions similar to the Town of Rhine. We conclude that § 4.08(2)(a) is unconstitutional on its face.
¶ 15 Zoning ordinances and land use regulations have a useful, valid purpose, and the government has broad authority to enact such classifications for the purpose of promoting health, safety, morals or the...
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