By Andrew Cook and Pat Osborne

The Wisconsin Supreme Court has issued a decision that is likely to negatively affect not just the aggregate industry, but other related industries. The Court’s decision broadens Wisconsin towns’ authority to regulate certain types of land uses under the guise of its police powers, rather than through a zoning ordinance, which requires county board approval.

The Town of Cooks Valley is located in Chippewa County, which has adopted countywide zoning. When a county adopts countywide zoning, the law is clear that a town may not adopt a zoning ordinance without county approval. In this case, the Town of Cooks Valley adopted an ordinance regulating non-metallic mining under its police powers. The issue in the case was whether the ordinance constituted a zoning ordinance, or a police power.

The lower court ruled that a town can adopt a zoning ordinance only if it is approved by the county board. Because the ordinance was not approved by Chippewa County, the lower court ruled that the Town of Cooks Valley did not have authority to implement the non-metallic mining ordinance.

In a 6-0 decision authored by Chief Justice Shirley Abrahamson (Justice David Prosser did not participate), the Court reversed the lower court’s ruling that the Town of Cooks Valley did not have the authority to regulate non-metallic mining unless the Chippewa County Board approved the regulation as a zoning ordinance.

The Supreme Court agreed with the lower court that if the town’s ordinance was considered a zoning ordinance the town would have exceeded its authority, and therefore the ordinance would have been invalid. However, the Supreme Court determined that the ordinance was not a zoning ordinance, but instead was a “non-zoning police power” ordinance.

In reaching its decision, the Court took pains not to create a “bright-line rule” governing what constitutes a zoning ordinance or “an all-encompassing definition of a zoning ordinance.” Instead, the Court applied a “functional approach” in determining whether the particular non-metallic mining ordinance in this case constituted a zoning ordinance. The Court listed characteristics of traditional zoning ordinances and then compared those characteristics with the Town of Cooks Valley’s non-metallic mining ordinance.

According to the Court, the six “non-exhaustive” characteristics of traditional zoning ordinances are:

1. Zoning ordinances “typically divide a geographic area into multiple zones or districts.”
2. “Within the established districts or zones, certain uses are typically allowed as of right and certain uses are prohibited…”
3. Zoning ordinances “are traditionally aimed at directly controlling where a use takes place, as opposed to how it takes place.” (Emphasis provided by Supreme Court).
4. Zoning ordinances “traditionally classify uses in general terms and attempt to comprehensively address all possible uses.”
5. Zoning ordinances “traditionally, though not always…make a fixed, forward-looking determination about what uses will be permitted, as opposed to case-by-case, ad hoc determinations of what individual landowners will be allowed to do.”
6. “Traditional zoning ordinances allow certain landowners whose land use was legal prior to the adoption of the zoning ordinance to maintain their land use despite its failure to conform to the zoning ordinance.”

When applying these above “traditional zoning characteristics” to the Town of Cooks Valley non-metallic zoning ordinance, the Court determined that although the ordinance “has similarities to a zoning ordinance,” many of the characteristics were absent and thus the ordinance was not a zoning ordinance. Instead, the town’s ordinance was a valid “non-zoning police power” which requires no county board approval.

By expanding a town’s authority to utilize its police powers to evade zoning requirements and procedures, numerous industries could be faced with a patchwork quilt of ordinances that may involve multiple layers of local government. Arguably, the decision in this case could undermine the very fabric of local comprehensive land use planning and zoning. Further, it could serve to create multi-level approval of virtually any type of land use activity.

Numerous industry groups filed amicus curiae (friend of the court) briefs urging the Supreme Court to uphold the lower court’s decision. In addition to the Aggregate Producers of Wisconsin and the Wisconsin Transportation Builders Association, other industries filing briefs were Wisconsin Realtors Association, Wisconsin Builders Association, and Preferred Sands of Minnesota, LLC.