Mark Slusarczyk was cited for violating City of Eagle River, Wis., Zoning Ordinance § 106–683, which provides: “Off-premises signs are allowed by a conditional grant. One double-sided sign is allowed per business with a maximum size of 180 square feet per side.” The citation he received stated that Slusarczyk had an “off premise sign on property promoting other business activity.” The City of Eagle River, Wis., Zoning Ordinance § 106–631 defined an off-premises sign as “a sign which directs attention to a business, product, service, or entertainment not conducted, sold or offered upon the property where such sign is located.” Slusarczyk appealed a trial court judgment finding he violated a City of Eagle River sign ordinance. Slusarczyk argued the ordinance did not apply because his sign did not meet the definition of an off-premises sign, and that the City’s ordinance conflicted with a preemptive state statute, and that the ordinance, as applied, violated his constitutional rights.
The State of Wisconsin has preempted the field of traffic regulations, and our supreme court has stated that no local authority may enact any traffic regulation unless such regulation is not contrary to or inconsistent with the Wisconsin Motor Vehicle Code. Wisconsin Stat. § 346.55(4) provides, in part: “Owners or lessees of public or private property may permit parking by certain persons and limit, restrict or prohibit parking as to other persons if the owner or lessee posts a sign on the property indicating for whom parking is permitted, limited, restricted or prohibited.” Thus, the court found statute and ordinance are in conflict because Slusarcyzk’s sign specifically prohibiting Synergy and its customers from parking on his property is allowed under the state statute, but forbidden by the Eagle River ordinance.
While the City insisted that there was no conflict because “Wis. Stat. § 346.55(4) permitted the sort of sign Mark Slusarczyk put up in this matter, and City of Eagle River Ordinance § 106–683 also permits the sort of sign Mark Slusarczyk put up in this matter, as long as a conditional use permit is first granted for the sign.” The court disagreed, and found that because a preemptive state statute grants Slusarczyk the right to indicate for whom parking is restricted or prohibited on his property, the City of Eagle River cannot restrict that right by requiring Slusarczyk to first obtain a conditional grant. Accordingly, the court reversed and held that the Eagle River ordinance conflicted with a preemptive state statute and was thus unenforcable.
City of Eagle River v Slusarczyk, 2015 WL 4079137 (WI App. 7/7/2015)