Archive for July, 2011

Wisconsin Act 10 Grievance Procedure

Thursday, July 28th, 2011

As an update to the post below, we are now past the October 1st deadline.  Nevertheless, any municipalities which have not yet adopted a grievance procedure which meets the requirements of 66.509 should still do so as soon as possible.  Since I made the last posting about this, the Towns Association has added sample grievance procedures and some other background information.  See:

Wisconsin Act 10 requires municipalities to have a grievance procedure.  Section 66.0509, Wis. Stats.  I wanted to bring to your attention that the Wisconsin League of Municipalities has posted two sample grievance procedures drafted by Attorney Nancey Pirkey.   While they look good as generic samples, I would suggest you have your municipal attorney review any procedure your municipality proposes to adopt to make sure they make sense in your municipality, and to make sure your final version complies with 66.0509.

Conditional Use Can Become Nonconforming Use

Friday, July 8th, 2011

In a recent appeals court ruling recommended for publication, Yassin Hussein and Germantown Auto Sales, LLC, v. Village of Germantown Board of Zoning Appeals, the court ruled that a municipality cannot enforce a conditional use permit issued prior to a zoning ordinance amendment which removed that use as a conditional use, and that the use continues as a legal nonconforming use.

Germantown Auto Sales had been issued a conditional use permit for an auto sales, repair and service station in 1973.  In 1988 the Village of Germantown revised its zoning code, eliminating auto sales as a conditional use in the zoning district.  In 2009, Germantown Auto Sales sought Village permission to increase the number of cars parked on the property beyond what the 1973 conditional use permit allowed.  The Village denied the expansion, and demanded that Germantown Auto Sales come into compliance with its 1973 permit.

In a certiorari action, the circuit court ruled that Germantown Auto Sales had a legal nonconforming use, and must live within the bounds of legal nonconforming uses, but that the Village could not seek to enforce the conditional use permit from 1973.  The appellate court affirmed the circuit court decision.

The result for Germantown Auto Sales is less than clear – Germantown Auto may continue its historical use as is, but expansion (which is what it was after) would be risky.  As the court stated, quoting an earlier case, “if there is an identifiable change in the [legal nonconforming] use, the enlargement is illegal. If the expansion is a result of a mere increase in the historically allowed use, the enlargement or expansion will be allowed subject to regulatory markers.” Waukesha County v. Pewaukee Marina, Inc., 187 Wis. 2d 18, 27, 522 N.W.2d 536 (Ct. App. 1994).  Thus an incremental expansion due to the natural ebb and flow of the historical business use would probably be safe.  However any major change risks losing the nonconforming status altogether.  It appears to me there’s a large grey area between the two.

Wisconsin Act 10 and Act 32

Tuesday, July 5th, 2011

Things are finally starting to shake out with respect to the new laws.  First of all, the Wisconsin Supreme Court overturned a lower court action that had put Act 10 on hold – allowing the Act to become law.  However, Act 32, the Budget Bill, made a number of clarifications and changes to Act 10, so the new law, as amended, is starting to realize some practical effect.  From a municipality’s standpoint, there was some good and some bad in Act 10 as modified by Act 32.  The League has posted some great articles on this subject, the latest one titled “List of Good and Bad Changes in Act 32…”  You should go to their link and review this and their FAQ document for details.