February 9, 2012Client Alert

Wisconsin Supreme Court Rules Nonmetallic Mining Ordinance is not a Zoning Ordinance

The Wisconsin Supreme Court released its decision February 8, 2012, in Zwiefelhofer v. Town of Cooks Valley, holding that a nonmetallic mining ordinance adopted by the town was not a zoning ordinance and therefore did not require county approval.


The distinction between zoning and non-zoning ordinances is important because town zoning ordinances are subject to county approval if the town is located within a county that has adopted countywide zoning. Towns are free to adopt non-zoning ordinances without county approval. According to the Wisconsin Towns Association, approximately 250 of the state's 1,259 towns currently have no zoning. 


In ruling that the Cooks Valley ordinance was an exercise of the town’s general police power, the Court declined to establish a clear test for future cases involving similar issues (“we do not create or apply a bright-line rule governing what constitutes a zoning ordinance and do not establish or apply an all-encompassing definition of a zoning ordinance”). Instead, the Court employed what it called a “functional approach” to determine whether the Cooks Valley ordinance should be classified as a zoning ordinance, comparing the characteristics and purposes of the Cooks Valley ordinance against the characteristics and purposes of traditional zoning ordinances.


Despite finding that the Cooks Valley ordinance had “some similarities” to a zoning ordinance, those similarities were not enough for the Court to find that the ordinance was a zoning ordinance. Instead, the Court overturned the circuit court, holding that the ordinance was an exercise of the town’s general police power. The Court’s decision expressed concern that an overly-broad interpretation would “bring within the classification of zoning many ordinances that have been considered non-zoning exercises of the police power.” 


The practical effect of the Court’s decision is that it affords towns greater flexibility when it comes to regulation of individual land uses through the police power. A footnote in the Court's decision references chapter 295 of the statutes (Nonmetallic mining reclamation) and notes that the legislature could, if it so chose, enact a more comprehensive statewide law regulating nonmetallic mines, which might preempt the type of regulations adopted by Cooks Valley.
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