In Town of Trempealeau v. Klein, 2014AP2719, the Wisconsin Court of Appeals provided an instructive ordinance analysis in upholding a Scare Gun Ordinance.

Wendell Klein owned a farm in the Town of Trempealeau, Wisconsin. The farm was in close proximity to a United States Fish and Wildlife Refuge, and as a result, many blackbirds harmed Klein’s crops. To combat this problem, Klein used scare guns—devices that produce intermittent noises to frighten birds—at locations across his property. In 2013, the Town enacted a “Scare Gun Ordinance.” The Ordinance required anyone wanting to use a scare gun to obtain a permit. It also established the following limitations:

  • Scare guns may be used only between the hours of 6 a.m. and 8 p.m. and between July 1 and October 1 of a given year;
  • Scare guns may not be operated within 300 feet of any residence not owned or occupied by the permittee; and
  • Scare guns must be pointed at least 45 degrees away from neighboring property lines.

Klein obtained a permit to use a scare gun but was subsequently cited for violating the use limitations. Klein twice moved to dismiss the citations, but the trial court denied both motions. Though he was ultimately acquitted at trial, Klein nonetheless appealed, arguing the Ordinance was invalid and his motions to dismiss should have been granted because the Ordinance (a) violated his vested right to use scare guns, (b) violated Trempealeau County’s comprehensive zoning ordinance, (c) was preempted by Wisconsin’s Right to Farm Law, Wis. Stat. § 823.08, and (d) was arbitrary.

The Court of Appeals rejected all of Klein’s arguments. First, Klein argued that he had a vested right to use scare guns because he was using them before the Town enacted the Ordinance in 2013. But the court determined that the vested rights doctrine, as formulated in Des Jardin v. Town of Greenfield, applies only to zoning ordinances—not the Scare Gun Ordinance. In addition, the Ordinance did not effect a regulatory taking of Klein’s property. Second, the Town’s comprehensive zoning ordinance allowed for “general agricultural practices” without a land use permit in all agricultural districts. Klein argued that the use of scare guns was a “general agricultural practice” and that the Scare Gun Ordinance’s permit requirement violated the zoning ordinance. However, the court determined that a scare gun permit was not a “land use permit.” Therefore, the zoning ordinance did not restrict the Town’s ability to require permits for scare guns.

Third, Wisconsin’s Right to Farm Law, Wis. Stat. § 823.08, “sets forth a heightened standard for determining that an agricultural use or practice is a nuisance.” Klein argued in order to regulate an agricultural practice such as the use of scare guns, a municipality must first find the practice is a nuisance under the Right to Farm Law. The court rejected this argument, concluding the Right to Farm Law applies only to nuisance litigation and not municipal regulation. Further, the court ruled the Right to Farm Law did not preempt the Ordinance because (a) the Right to Farm Law did not “expressly withdraw the power of local governments to regulate agricultural practices[,]” (b) the Ordinance did not “logically conflict” with the Right to Farm Law, (c) the Ordinance did not “defeat the purpose” of the Right to Farm Law, and (d) the Ordinance was not “inconsistent with the spirit” of the Right to Farm Law. Finally, the court rejected Klein’s argument that the Ordinance was arbitrary, finding the Ordinance was a valid exercise of the Town’s police power and was “reasonably related to public safety, welfare, and convenience.”

While dealing with a somewhat unique type of ordinance, this case provides an interesting discussion of the various sorts of challenges municipalities continue to face from their own constituents.

Thank you to Joseph Diedrich for his assistance in drafting this post.

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