July/August 2022 Issue

Also in this issue: Wisconsin High Court Rules Election Drop Boxes Are Illegal; Absentee Ballots May Only Be Mailed or Hand-Delivered by the Voter     |     Recent Developments Regarding the First Amendment’s Establishment Clause

Wisconsin Court of Appeals Affirms Town Board’s Right to Reconsider Nonconforming Use Recognition and Request Zoning Administrator Decision

Storm B. Larson | 07.22.22

A recent decision from the Wisconsin Court of Appeals discusses whether a Town Board can properly withdraw an initial vote to recognize a non-conforming use under the diminishing assets rule and what happens when it does.

The decision, Meinholz, LLC v. Dane Town Board of Zoning Appeals and Adjustment, involved a landowner, Meinholz, LLC, which owned a tract of land in the Town of Springfield, Dane County. In 1968, Dane County adopted a zoning ordinance that only allowed quarrying as a nonconforming use if the quarried parcel was registered with Dane County. Meinholz or a related entity operated a quarry on a registered parcel. In 2017, Meinholz acquired three parcels adjacent to the registered quarried parcel with the intent to quarry them. Meinholz submitted a request to the Town in December 2018 to recognize quarrying on the three adjacent parcels as a legal non-conforming use under the diminishing assets rule.

In December 2018, the Town Board voted to recognize quarrying on the three parcels as a legal non-conforming use. However, in May 2019, the Town withdrew its recognition and referred the matter to the Town’s zoning administrator for a ruling after local residents complained. The zoning administrator ruled against Meinholz and declared that the quarrying on the parcels was not a legal nonconforming use and that Meinholz would need a conditional use permit to quarry them. Meinholz appealed this ruling to the Dane Town Board of Zoning Appeals and Adjustment (“Zoning Board”) which subsequently affirmed the administrator’s ruling.

Meinholz then appealed the Zoning Board’s ruling to Dane County Circuit Court. Meinholz did not argue that the Zoning Board’s decision was incorrect, but rather challenged the Zoning Board’s power to decide the nonconforming use status at all. Meinholz also sought a declaration that the Town’s initial recognition should be binding on the parcels’ status. The circuit court rejected all of Meinholz’s claims and Meinholz appealed.

In a lengthy and detailed decision, the court of appeals affirmed the circuit court’s decision. First, the court began by rejecting the premise of Meinholz’s argument that the Town’s recognition vote had conferred a fixed right upon Meinholz. The court noted that the Town’s recognition vote did not, and could not, create a right to nonconforming use status. Instead, the most the Town’s recognition could do is recognize a parcel’s nonconforming use status based on its view of the objective facts regarding how the land was used or developed before enactment of the ordinance that prohibited the nonconforming use.

Second, Meinholz argued that the Town’s initial recognition vote was binding on the Zoning Board because no party had challenged the Town’s vote. The court rejected this argument holding that the Town was empowered to revisit its own prior decision.

Third, the court rejected Meinholz’s argument that the Town’s withdrawal of its initial recognition was improper because it did not use the term ​“withdraw” or ​“rescind” in its May 2019 vote to refer the matter to the zoning administrator. The court observed that there is no ​“magic words” requirement for withdrawing a Town Board’s action.

Fourth, Meinholz argued that, after the Town Board’s initial recognition vote, it possessed a vested right to quarry the land. This vested right, according to Meinholz, was not within the Board’s jurisdiction to revoke. The court discussed each instance where Meinholz said the right had become vested and rejected each argument. The court explained that the Town only had the authority to regulate a right and not create one, and so no vested right had ever existed with respect to the parcels because they never had nonconforming quarrying status. Accordingly, the court rejected Meinholz’s final certiorari claim.

Fifth and finally, Meinholz asked the court to declare that the Town was equitably estopped from enforcing its zoning ordinance that prohibited Meinholz from quarrying the parcels. Meinholz argued that it had reasonably relied upon the Town’s initial vote to allow quarrying and had suffered harm in the form of lost revenue and opportunities. The court quickly disposed of this argument by citing the general rule prohibiting estoppel claims against municipalities. The court was further unpersuaded that the limited exception to this general rule applied to Meinholz because it had not pointed to any egregious or serious harm resulting from the Town’s revocation. Accordingly, the estoppel claim also failed.