Moratoria, moratoria on the wall …
Who’s the most restrictive of them all?
If you get in your car and travel around Wisconsin, it’s a good bet that, of the state’s 1,253 towns, 410 villages, and 190 cities you will pass through, most will have enacted or actively considered enacting some type of development moratorium during the past 20 years.
Welcome to the Moratoria State.
Wisconsin’s local governments—especially its towns—have gone on a veritable moratoria binge in the past score of years, and particularly since 2010. That year, Scott Walker was elected governor, and he and the state Legislature began putting limits on how restrictive local governments could be on a variety of development issues.
The response? Environmentalists freaked, and so did their Not-In-My-Backyard Republican pals, and they began to push moratoria on the local level, followed by strict development ordinances. In doing so, local governments argued that most of the restrictions established by the Legislature were restrictions on local governments’ zoning authority, and their own local moratoria and development ordinances were not zoning ordinances at all but ordinances enacted under municipalities’ general policing powers, which grants municipalities (including towns with village powers) the power to pass ordinances designed to protect the health, welfare, and safety of the communities.
In other words, as justice Brian Hagedorn mused (in a dissenting Supreme Court opinion that he actually got right), the towns were using a vague statutory authority to accomplish exactly what the state Legislature specifically forbade them to do in another statute, which, he wrote correctly, was absurd.
Imagine it this way. For analogy’s sake, let’s say a town is a minor teenage child. The state is represented by the child’s parents: a mom and a dad. Each parent represents a source of authority over the child. Usually these authorities work in tandem to parent but not always. So one day the child asks dad if it’s OK to go swimming, and the dad, for various reasons, says no. This doesn’t sit well with the teen so the child asks mom (or vice versa) if it’s OK to go swimming. Mom says sure! So is it OK for the kid to go swimming without the parental conflict resolved?
Yes, according to the state. The teen only needs one grant of authority to go swimming, even if the other authority forbids it. Just because one source of authority specifically precludes something, it doesn’t mean a town can’t use another source of authority to do it anyway. What contradiction?
Families are not state statutes, of course, but the case cited above involving Hagedorn, Newbold v Anderson, underscores the point. By law, local governments cannot enact stricter shoreland zoning ordinances than a state shoreland zoning standard, and a property owner sued, claiming that’s exactly what the town of Newbold did. In fact, the town enacted a subdivision ordinance that required a minimum of 225 feet of shoreland frontage for parcels that was well in excess of the state’s minimum shoreland zoning standard of 100 feet, a zoning standard that forbids local governments from exceeding it. In the Supreme Court decision, the town won, with the court saying the town could not have passed a shoreland zoning law to require 225 feet of frontage, but since they called it a subdivision ordinance it was OK.
Dad said no, in other words, so the town went to mom.
Of course, by the time of that 2021 decision, the barn door had long been open for local governments passing all sorts of development moratoria and ordinances, and, as I shall show, it was just the latest in a string of muddled court decisions allowing local governments galore to get around legislative intent.
Moratoria gone wild …