In Olson v. City of La Crosse, No. 2015AP127 (Wis. Ct. App. July 16, 2015) (publication recommended), the Wisconsin Court of Appeals, District IV, held that a city ordinance requiring landlords to notify tenants of city inspections under the city’s inspection and registration program was preempted by Wis. Stat. § 66.0104(2)(d)1.a.
The City of La Crosse passed an ordinance requiring landlords to notify tenants of City inspections under the City’s inspection and registration program. See La Crosse, Wis., Municipal Code, § 8.06(E). Landlords in the City challenged this ordinance claiming that it was preempted by state law. The circuit court rejected the landlords’ challenge on summary judgment and ordered their action dismissed with prejudice. The landlords appealed.
The appellate court reversed. The court concluded that Wis. Stat. § 66.0104(2)(d)1.a. preempted the notice provision in the City’s ordinance. A state statute preempts a local ordinance when the legislature has expressly withdrawn the power of the municipality to act. Section 66.0104(2)(d)1.a. provides: “No city, village, town, or county may enact an ordinance that requires a landlord to communicate to tenants any information that is not required to be communicated to tenants under federal or state law.” Because this provision expressly withdraws the City’s power to act, it preempts the inspection notice provision in the absence of a federal or state law that requires landlords to communicate this information.
The City argued that § 704.07(2) requires landlords to notify a tenant about City inspections. Section 704.07(2)(a)5 states that landlords must “comply with any local housing code applicable to the premises.” The inspection notice provision is in the City’s housing code. As a result, the City argued that the preemption statute, Wis. Stat. § 66.0104(2)(d)1.a., conflicted with the general requirement that landlords comply with local housing codes, § 704.07(2)(a)5. The court harmonized the two statutes. It interpreted them to mean that, although landlords must “comply with any local housing code,” local governments may not include in local housing codes any provision that “requires a landlord to communicate to tenants any information that is not required to be communicated to tenants” under any other federal or state law. In essence, the government—not landlords—bears the responsibility for communicating to tenants about City housing code programs and inspections.
In addition, the court concluded that the inspection notice provision was severable. In other words, even though the specific notice provision was struck down, the remainder of the City’s inspection and registration ordinance still stands. This is so because the enacting ordinance contained a valid severability clause: “If any provision of this ordinance, or portion thereof, is adjudged . . . invalid by a court of competent jurisdiction, the remainder of this ordinance shall not be affected thereby.” Since the City—instead of the landlords—could notify tenants of a City inspection, the purpose of the ordinance outlining inspection and registration program could still be carried out even with the landlord notice provision stricken.