Wisconsin Supreme Court upholds town board’s interpretation of municipal ordinance 

By Joe Forward, Legal Writer, State Bar of Wisconsin

March 23, 2011 – A town board’s decision to deny a resident’s request to build a driveway was reasonable under a municipal ordinance that protects against non-farming development, the Wisconsin Supreme Court recently held.

The supreme court – in an opinion written by Justice Ann Walsh Bradley – also declined to alter the established scope of statutory certiorari review or review the town board’s decision under the same framework as court review of administrative agency decisions.

Ordinance not unreasonable 

The Town of Primrose is a small farming town in the southwestern part of Dane County. Under its land use plan, the town discourages development that is not related to farming.

Accordingly, it maintains a municipal ordinance that allows the town board to deny permit requests to build driveways if the requestor cannot “show” the parcel to be served by the driveway is “capable of producing at least $6,000 of gross income per year.” This provision, know as the “agricultural productivity clause,” discourages non-farming development.

In 2001, Steve and Sue Ottman decided start a Christmas tree farm. They purchased nearly 50 acres in the Town of Primrose after obtaining town board permission to build a gravel field road across their land for access to a tree farming equipment shed.

Four years later, the Ottmans filed an application to build a driveway and sought approval of a site plan to build a primary farm residence, projecting a farm income of $30,000 annually. The Ottmans argued that the Christmas tree farm could not be viable without a residence on-site.

The town board denied the application, noting the agricultural productivity clause. The clause’s income requirement, the town board concluded, requires an applicant to show proof of actual (not speculative) income, and the Ottmans income projection was speculative.

Ultimately, the circuit and appeals courts upheld the town board’s decision.

In Ottman v. Town of Primrose, 2011 WI 18 (March 22, 2011), the supreme court unanimously concluded that the town board’s interpretation of the agricultural productivity clause – requiring proof of actual income – was not unreasonable based on the court’s scope of review.

The verb “show” – referring to the provision that requires an applicant to “show” proof the parcel is “capable of producing income” – “suggests applicants must provide something beyond conjuncture about what the property would produce,” Justice Bradley wrote.

Scope of certiorari review

After the Ottmans filed for certiorari review in the Dane County Circuit Court, the parties agreed to let the town board reconsider under Wis. Stat. section 68.13(1), which gives a party the power to seek certiorari review in circuit court after a final determination is made.

But under section 68.13(1), Justice Bradley explained, the court’s review is limited to: 1) whether the municipality kept within its jurisdiction; 2) whether it proceeded on a correct theory of law; 3) whether its action was arbitrary, oppressive, or unreasonable; and 4) whether the evidence was such that it might reasonably make the order or determination in question.

After a special hearing, at which both sides presented exhibits, witnesses and had an opportunity for direct and cross-examination, the town board again denied the Ottmans application, concluding the Ottmans failed to show the parcel produced actual income.

On certiorari review to the circuit court, and ultimately on review to the supreme court, the Ottmans argued that the town’s ordinance constitutes a zoning ordinance, and decisions relating to it should be reviewed under Wis. Stat. section 62.23(7)(e)10, not section 68.13(1).

Unlike section 68.13(1), section 62.23(7)(e)10 would empower the circuit court to take evidence on the merits of the town board’s decision. But the Ottmans never requested that the circuit court conduct an evidentiary hearing. The supreme court noted this fact.

Following State ex rel. Brookside Poultry Farms, Inc. v. Jefferson Cnty Bd. Adjustment, 131 Wis. 2d 101, 388 N.W.2d 593 (1986), the supreme court concluded that when the circuit court takes no additional evidence, it reviews the administrative record under traditional standards of common law certiorari, which are the same standards under section 68.13(1).

“No persuasive rationale is provided for upsetting our longstanding jurisprudence,” Justice Bradley wrote. “Therefore, like the court of appeals, we determine that we need not address whether the Agricultural Productivity Clause is in fact a zoning ordinance.”

Deference due 

On certiorari review, the supreme court noted, a municipality’s decision is entitled to a presumption of correctness, stating the “presumption of correctness and validity is appropriate because it recognizes that locally elected officials are especially attuned to local concerns.”

Despite the Ottmans argument that the presumption “improperly insulates the decision from meaningful judicial review,” the court explained that such a presumption does not mean it can never be overcome.

The supreme court also explained that on certiorari review, the court “may not substitute its view of the evidence for that of the municipality and a “court will sustain a municipality’s findings of fact if any reasonable view of the evidence supports them.”

However, Justice Bradley acknowledged the interesting question that arises “when a court is asked to review a municipality’s interpretation and application of its own ordinance.”

In Marris v. City of Cedarburg, 176 Wis. 2d 14, 498 N.W.2d 842 (1993), the ordinance in question parroted a state statute, and the court would not pay deference to the municipality’s interpretation because it would implicate a statewide standard.

Unlike Marris, the court explained, the Town of Primrose’s ordinance does not parrot a state statute. Thus, “applying a presumption of correctness, we will defer to the municipality’s interpretation if it is reasonable,” Justice Bradley explained.

The municipality’s interpretation might be unreasonable, for instance, if the ordinance is contrary to the intent, history, or purpose of the ordinance, or has no rational basis, Justice Bradley noted. But the court concluded the town board’s interpretation was reasonable.

Finally, the supreme court rejected the Ottmans’ argument that the court should apply the three levels of deference applied to administrative agency decisions.

“[W]e decline to graft that framework wholesale onto our framework for reviewing municipal decisions, “Justice Bradley wrote. “The considerations that guide our decisions when reviewing administrative agency determinations would be unnecessarily complex and cumbersome when applied to municipality decisions.”

Attorneys 

John Varda of DeWitt Ross and Stevens SC, Madison, represented the Ottmans. Glenn Reynolds of Reynolds and Associates, Madison, represented the Town of Primrose.