DC PR&D recommends “property owner bill of rights” be part of county’s legislative agenda

By LeAnn R. Ralph

MENOMONIE  —  The Dunn County Board’s Planning, Resources and Development Committee has recommended that the county board’s executive committee consider the proposed “property owner bill of rights” as part of the county’s legislative agenda.

“This is a big deal. It is a big change in land use,” said Tom Quinn, county board supervisor from Downing and chair of the PR&D committee.

[emember_protected] The proposed bill would change state law to supersede local zoning codes.

“The intent is to supersede,” said Paul Miller, Dunn County manager.

The proposed legislation would be an “assault on local zoning authority in the form of property owners’ rights,” Miller said.

The proposed legislation hinges on what is a “taking” of property and what is “not a taking,” Quinn said.

If the proposed bill became state law, it would limit the ability of local governments to maintain land use standards and would view attempts to regulate land use as a “taking” of property, he said.

Much of the proposal for the property owner’s bill of rights misunderstands “taking,” Miller said.

The United States Supreme Court determined that zoning is not taking, and zoning has not been taking of property since the 1920s, he said.

An analysis by Bob Colson, Dunn County zoning administrator, quoted UW-Extension Report 95-6, “Wisconsin Takings Law — A Brief Historical Perspective” by Brian Ohm.

“Historically, the definition of a taking under the constitution has been left to the interpretation of the United States Supreme Court and various state supreme courts because these courts are the final arbitrators of their respective constitutions. While the courts have provided general guidance as to what constitutes a taking, the courts have been reluctant to develop a definitive test for a regulatory taking. This reluctance to define a taking as an absolute is based in part on the court’s perceived continuing need to balance protections afforded private rights against the protections afforded public rights in the guise of actions under police power regulations.”

The Extension report states as well, “the court also noted that by ‘protecting individual rights, society did not part with the power to protect itself or to promote its general well-being. Where the interest of the individual conflicts with the interest of society, such individual interest is subordinated to the general welfare.’ Zoning ordinances were therefore seen as promoting public welfare. The court’s decision confirmed that government in the exercise of its police power could impose restrictions upon the use of property to promote the public welfare.”

The exercise of normal zoning authority is not a “taking” of property, Miller said.

For example, if a piece of property is zoned for agricultural use, a property owner cannot argue the zoning takes away his right to create a toxic waste dump because the property owner never had the authority in the first place to create a toxic waste dump, Miller said.

Colson’s analysis quotes from another section of the Extension report: “In Buhler vs. Racine County, the Wisconsin court held that ‘incidental damage such as diminution of value of land because of a restricted use does not constitute a taking unless the restriction practically or substantially renders the land useless for all reasonable purposes.’”

In other words, if the zoning on a particular parcel does not allow a nuclear power plant, the land owner cannot claim that his land was “taken” from him because he cannot develop the land for a nuclear power plant when the land could still be developed as a winery or as pastureland or cropland.

Colson’s analysis again quotes from the Extension report regarding the case of Just vs. Marinette County, “the court noted that ‘too much stress is laid on the right of an owner to change commercially valueless land when the change does damage to the rights of the public.’”

Colson writes in his analysis, “it seems that planning/zoning officials as well as elected officials should oppose this Bill based on the reluctance of the courts to develop a definitive test for a regulatory taking. The courts see value in preserving the balance of protections afforded private rights against the protections afforded public rights.” [/emember_protected]