February 7, 2022 at 11:38 a.m.
When local control isn't
When local control isn't
We thought it was absurd to close down town halls and make people drive to Wausau to attend routine government meetings. We still believe that.
And yet, that doesn't mean local governments are without their flaws, or that they don't sometimes try to violate constitutional rights. Unfortunately, that's just what many towns and counties are trying to do these days, especially when it comes to property rights - and all under the mantra of local control.
Singing local control, county boards have agitated for the right to apply more restrictive zoning than the state in shoreland zones, when in fact counties are administrative arms of the state, statutorily created to carry out state policy and enforce state laws.
Singing local control, too, town boards are creating mythical powers for themselves to pretty much do as they please. For example, until this newspaper called attention to it, and the county zoning department put a stop to it, Oneida County towns were attaching all sorts of irrelevant, invalid, and sometimes discriminatory conditions to conditional use permits and administrative review permits.
Minocqua was a particularly good example of the aforementioned behavior.
Then, too, over the past decade, towns across the state have become enamored with the idea of creating moratoria for all sorts of activities, from livestock facilities to wind farms to frac sand mining and more. We believe many of these moratoria are - or should be - illegal.
Minocqua is also a particularly good example of this trend, having implemented a moratorium on the placement of shipping containers in the town, except in certain temporary situations.
We believe the moratorium is illegal on its face, and unenforceable.
For one thing, the town board established the moratorium by resolution rather than by ordinance, thereby robbing residents of proper notice. As such, the moratorium is not a creation of local control but an example of five town supervisors thumbing their noses at local control.
For his part, town chairman Mark Hartzheim believes the moratorium can be enforced by suing violators, but on what grounds?
Zoning director Karl Jennrich has confirmed that the county - at least until it enacts its own shipping container ordinance - will issue permits for containers in the town that meet applicable county standards despite the moratorium. So what Hartzheim is saying is that the town intends to haul anyone who violates the moratorium into court, even though they may have a valid county permit and, on top of that, will have violated no town or county ordinance.
Good luck with that.
The truth is, as we report today, state statutes grant towns very little explicit authority to enact moratoria. And in every instance in which that authority is conferred, the statutes require towns to do so by ordinance.
Clearly, that is the Legislature's intent, and for years that was the advice given to towns by the Wisconsin Towns Association (WTA). The WTA has abandoned that but other land use experts have not, and for good reason: It is a needed control on the proliferation of moratoria that conflict with state policy and that step on property rights.
As mentioned, state statutes give towns explicit authority to enact moratoria in only a few situations, and every one of those instances involves the division or subdivision of land, not the use of land. Even then, the language of the statutes places strict limits on those moratoria, indicating that the Legislature's intent is to control moratoria, not unleash them as towns have begun to do.
They have done so by creating out of almost thin air the power to do virtually anything by use of the general policing powers of cities, villages, and towns with village powers, by which municipalities can enact ordinances to protect the health, safety, and welfare of the community and to provide for the orderly and compatible use of land, among other things.
There is nothing wrong with such powers per se. These general powers allow communities to fashion their own local solutions - the authentic use of local control - while still adhering to state law and policy.
The problem is when these powers are misused to conflict with state law and policy. Many towns today are in fact abusing those powers to enact all sorts of moratoria and land use regulations for which they have no specific enabling authority, and that is exactly what is happening in Minocqua with the shipping container moratorium.
There is the fact that it was enacted by resolution, for one thing, but beyond that the prohibition - both in the moratoria and in any permanent ordinance that might follow - is essentially a zoning regulation that the town has no authority to impose.
That's because the county has ceded zoning authority to the county. It has no power to enact any zoning regulation unless it follows proper procedures to do so, including county board and town elector approval.
The town will say the moratorium and any subsequent ordinance is not zoning at all but merely a use of its non-zoning general policing powers, but if an ordinance - or a moratorium - walks and talks like a zoning regulation, it's a zoning regulation.
To wit, right now in the county, it is the county zoning ordinance that controls shipping container use. As observed, right now Jennrich would issue a zoning permit for a shipping container used in Minocqua as a boathouse. How can the use of that container be a zoning regulation for county purposes but not for town purposes?
Minocqua is not alone. All across the state, towns are using - or misusing, as the case may be - their general policing powers to get around other statutory constructions.
To be sure, as our story demonstrates, the courts have aided and abetted the unfettered expansion of the scope and authority of towns to regulate land uses under the guise of police powers. In particular, Zwiefelhofer v. Cooks Valley opened the floodgates when it ruled that the town's non-metallic mining ordinance was not a zoning ordinance but a legitimate use of the town's policing powers.
Again, what's problematic about all this is that it allows the town to enact what should be zoning regulations without the checks and balances of zoning, including public hearings and county board approval.
We acknowledge that a legislative fix is required. This takes on more urgency because towns are now clamoring to use these expanded police powers to regulate land use within shoreland zones more restrictively than the state does, which the Legislature prohibits zoning regulations to do.
Indeed, Hartzheim says the moratorium and any following ordinance would apply to the shoreland zone. So, the town is prohibiting what the state says must be allowable. It's in effect a work-around to evade the statutory intention - just like the Biden administration wanted to work around the U.S. constitution with its vaccine mandates.
The shoreland topic will be explored next week. But citizens need to contact their legislators and urge the Legislature to stop towns from their ongoing misuse of general policing powers, and residents in Minocqua should contact their supervisors to demand that they follow proper procedures, including public hearings and county board approval.
We must make sure that the government closest to the people is really serving the people, and that can only happen if we demand that the town board actually involve the people in its decisions.
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