Posted by: Patricia Salkin | September 22, 2010

WI Town Fails to Follow State Code and Loses Ability to Veto County Amendatory Ordinance Affecting Town Zoning

Plaintiffs wished to have their land rezoned and sent an application to the County. The County forwarded the application to the Town.  If the Town had any objections, under the Wisconsin Code, they were to send a recommendation to the County in the form of a certified copy of a town resolution adopted to that effect. The Town made no such resolution, but only wrote “denial” on the form provided by the County, providing no explanation. Soon thereafter, the County approved the plaintiffs’ application and amended the zoning code to rezone the affected land. The Town then responded by adopting a resolution vetoing the County’s zoning amendment.

Both the circuit court and the appellate court determined that the form the Town sent to the County did not constitute a certified copy of a resolution and thus did not satisfy the requirements of the statute. Never the less, the circuit court permitted the Town’s later amendatory ordinance to stand since it was signed and dated by the clerk. The appellate court disagreed that that action was sufficient to grant summary judgment in favor of the defendants as the proper procedure in the Code was not followed. The Town contended that they, under the Code, are to be a political check on the actions of counties. The appellate court agreed with the Town’s sentiment, but could not find in favor of the Town because they did not follow the procedure which ensures public participation. A resolution, in a timely manner, is required by statute because it ensures the political check is properly used, as a there would be a public hearing and notice. The court determined the later resolution and the form sent, under the statute, were not a valid disapproval.

The appellate court then addressed the relevancy of the Town’s resolution that vetoed the County’s amendment, as the County’s amendment it had already become effective. The appellate court stated that an amendatory ordinance is effective if it “makes only the change sought in the petition and if the petition is not disapproved by the” Town. The appellate court found the initial form from the Town was not a disapproval. The circuit court, on remand, is to determine if the amendatory ordinance only made the change sought in the petition. If the circuit court determines that it did, the circuit court is to find the amendatory ordinance was effective at passage, that the Town’s resolution was irrelevant, and grant summary judgment for the plaintiffs.

Johnson v. Washburn County, 324 Wis. 2d. 366, 781 NW2d 706 (Wis. Ct. App. 2/17/2010)

The opinion can be accessed here


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