Town's planning moratorium upheld by Wisconsin Court of Appeals.

• Author: Ziemer, David

Byline: David Ziemer

Towns may impose moratoria on development while developing a smart growth plan, despite concerns raised by two construction and realty groups.

The Wisconsin Court of Appeals' Feb. 28 decision comes after the Supreme Court split the decision 3-3 and sent it back down to the appellate court. The decision, written by Judge Paul G. Lundsten affirmed the circuit court decision.

In September 2005, the Town of West Point adopted an ordinance establishing a townwide moratorium on the acceptance, review, and approval of any application for a land division or subdivision. The moratorium was enacted to freeze development pending approval of a comprehensive plan under sec. 66.1001, the smart growth statute.

The Wisconsin Realtors Association and the Wisconsin Builders Association (associations) sued the town, seeking an injunction against enforcement.

Summary Judgment

Columbia County Circuit Court Judge Andrew Bissonnette granted summary judgment in favor of the town, and the subsequent appeal was certified to the Wisconsin Supreme Court.

The statutory language at issue, in sec. 236.45(2), authorizes towns to prohibit the division of land in areas where such prohibition will carry out the purposes [listed in 236.45(1)].

The associations did not contest that the ordinance furthered the purposes listed in subsec. (1), but contended that subsec. (2) only authorizes towns to ban development in areas of the town, not the entire town.

The town contended that in areas may include an entire town if inclusion of the entire town will carry out the statutory purposes. The associations contended this reading renders the phrase in areas superfluous, because the statute would mean the same thing if it were not included at all.

The court agreed with the associations that the town's reading renders in areas surplus, but agreed with the town nevertheless, reasoning, our legislature sometimes uses more words than necessary without intending to add meaning.

Court Rejects Argument

The court rejected the associations' argument, concluding that its interpretation was unreasonable. A town could comply with the statute, as interpreted by the associations, merely by excluding a few parcels, but still effectively prohibit all land division.

The associations also argued that permitting townwide moratoriums would render sec. 62.23(7)(da) meaningless. That section authorizes cities (but not towns) to enact an interim zoning ordinance to preserve existing uses...