How Will Wis. Stat. § 895.463 Affect Disputes Over the Validity of Zoning Regulations?
A new statutory provision adopted as part of 2015 Wisconsin Act 391 asserts that, in any dispute, “the court shall resolve an ambiguity in the meaning of a word or phrase in a zoning ordinance or shoreland zoning ordinance in favor of the free use of private property.” Wis. Stat. §895.463. On its face, this seems like an unremarkable affirmation of the longstanding rule that zoning ordinances are to be strictly construed in favor of the free use of private property. But it can also be read to reverse the principle that zoning ordinances are presumed valid and liberally construed in favor of the zoning authority.
Litigation testing the validity of zoning regulations has long pinballed between these two approaches. Lawyers and courts seeking to uphold a zoning restriction rely on the idea that, because “[z]oning is a matter of legislative discretion,” courts “must start with the premise that a zoning ordinance … is presumed valid and must be liberally construed in favor of the municipality.” Step Now Citizens Grp. v. Town of Utica Planning & Zoning Cmte., 2003 WI App 109, ¶ 26, 264 Wis. 2d 662, 663 N.W.2d 833 (internal citations omitted). This idea is rooted in the statute authorizing the exercise of municipal zoning authority, see Wis. Stat. §62.23(7)(am), and it echoes throughout Wisconsin case law, see, e.g., Town of Rhine v. Bizzell, 2008 WI 76, ¶ 18, 311 Wis. 2d 1, 751 N.W.2d 780 (quoting State ex rel. Am. Oil Co. v. Bessent, 27 Wis.2d 537, 546, 135 N.W.2d 317 (1965), to hold that, because “a comprehensive zoning ordinance was a justified exercise of the police power not only in the interest of public health, morals, and safety, but particularly for the promotion of public welfare, convenience and general prosperity,” it followed that such an ordinance “is presumed valid and must be liberally construed in favor of the municipality” (internal quotation marks and citations omitted)).
On the other hand, lawyers and courts seeking to strike down a zoning regulation lean on the idea that “zoning ordinances are in derogation of the common law and, hence, are to be construed in favor of the free use of private property.” Heef Realty & Invs., LLP v. City of Cedarburg Bd. of Appeals, 2015 WI App 23, ¶ 7, 361 Wis. 2d 185, 861 N.W.2d 797 (internal quotation marks omitted); accord, e.g., Schultz v. Vill. of Stoddard, 2006 WI App 78, ¶ 9, 292 Wis. 2d 486, 713 N.W.2d 192 (“When construing a zoning ordinance, we resolve ambiguity in the meaning of the ordinance in favor of the free use of private property.”); Missionaries of Our Lady of La Salette v. Vill. of Whitefish Bay, 267 Wis. 609, 614, 66 N.W.2d 627 (Wis. 1954). Under this approach, because “public policy favors the free and unrestricted use of property,” private property rights yield only to crystal-clear restrictions and any regulatory ambiguities are construed to the advantage of landowners. Crowley v. Knapp, 94 Wis. 2d 421, 434-35, 288 N.W.2d 815 (1980).
The Wisconsin Supreme Court has attempted to harmonize these two strands of case law, holding that “the power of the county to enact land use restrictions should be liberally construed” while “affirm[ing] the strict construction of terms in a zoning ordinance.” Cohen v. Dane Cty. Bd. of Adjustment, 74 Wis. 2d 87, 91, 246 N.W.2d 112 (1976). Yet both lawyers and courts have more often treated these strands not only as distinct, but also as diametrically opposed.
If the strands are seen as opposite assertions of law, then Wis. Stat. §895.463 resolves the conflict because the Legislature has placed its thumb on the scales, tipping the balance in favor of private property owners. However, because the two strands of thought are not really in opposition and the Wisconsin Supreme Court’s Cohen decision shows how they can coexist, Wis. Stat. §895.463 may not be as outcome-determinative as some may expect. Cohen is a roadmap showing how, even after Wis. Stat. §895.463, courts can continue to defer to appropriate local zoning regulations. The question is whether courts will choose to read that map.
Law clerk Olivia Pietrantoni assisted in researching and writing this post.