Wisconsin Supreme Court Takes on Zoning Issues

The Supreme Court issued just one opinion last week — Zwiefelhofer v. Town of Cooks Valley.

What was the court up to in that case? Well, the Town of Cooks Valley passed an ordinance that created a lengthy permitting process that anybody who wanted to start a nonmetallic mine (frac sand, perhaps?) had to go through. The legal issue was whether that ordinance was a zoning ordinance or not. If it was, it would have to be struck down because the town didn't get county approval for it.

The court concluded it was not a zoning ordinance, and upheld it.  The effect this case will have on the average Wisconsinite is practically nil, but if you want to get a glimpse at the court's reasoning, continue reading.

The court introduced a seven-factor test looking at characteristics that zoning ordinances typically have and whether the ordinance serves any of several potential purposes of zoning.  The court noted that no one factor is determinative or weighs more heavily than any other factor, although circumstances of each case might make some factors more important than others.

If that sounds like a test that doesn't really provide much guidance, you aren't alone. Personally, these kinds of tests always seem to me more like a way to let judges justify their gut feelings: create a whole lot of factors and let judges weight them however they want — sounds like a recipe to let judges look for the means to reach their preferred end.

Ironically, the court also rejected an alternative test from some earlier cases and attorney general opinions that asked whether the ordinance "pervasively regulated" or "substantially interfered with" the use of land.  Its reason for rejecting that test?  Those phrases were not "effective bright-line rules." 

True, "pervasive regulation" may be a vague description, but it's no worse than a seven-factor test like the one the court created here.