May/June 2025 Issue

Also in this issue: Short-Term Rental Regulation – Litigation Uncertainty     |     Oitzinger v. City of Marinette – A Closed Session Cautionary Tale     |     Arrest Record Discrimination Includes Protections for Records of Civil Forfeitures

Court of Appeals Upholds County Board Denial of Rezoning Petition Based on Inconsistency with Town Comprehensive Plan

Liz Leonard , Julia Potter | 06.05.25

The Wisconsin Court of Appeals recently affirmed the Iowa County Board of Supervisors’ decision to deny a landowner’s request to rezone agricultural land to a district that allowed quarrying as conditional use. The Court’s decision in Dyersville Ready Mix Inc. v. Iowa County Board of Supervisors et al., 2024AP1091 (April 10, 2025) reaffirms the deferential standards applied on a certiorari review of rezoning decisions.

The landowner wanted to quarry limestone and dolomite on a parcel of approximately 100 acres of land in the Town of Bringham. The land was zoned A‑1, designated for Exclusive Agricultural uses, which did not allow quarrying as either a permitted or conditional use. The landowner requested the parcel of land be rezoned to AB‑1, designated for Agricultural Business use, which allowed quarrying if a conditional use permit (CUP) was obtained. The landowner simultaneously filed two petitions, one requesting that the county rezone the parcel to AB‑1 and one requesting a CUP to allow quarrying on the parcel.

Under Wis. Stat. § 59.69(5)(e), the town board has the option to file a resolution recommending denial of a zoning change. In this case, the Bringham Town Board recommended against granting what it referred to as the ​“quarry application” because it found the application to be inconsistent with the Town’s Comprehensive Plan in a number of different ways, which it supported with citations to the Plan. The County Planning and Zoning Committee (the P & Z Committee) then reviewed the application and held a public meeting and heard public comments on the application. The P & Z Committee also recommended denial of the rezoning petition because of inconsistencies with the Town of Brigham Comprehensive Plan. Finally, the County Board held a public hearing on the rezoning petition and did not approve the rezoning.

Initially, the landowner successfully filed a declaratory judgment action with the Circuit Court challenging the zoning decision, but the Court of Appeals reversed the Circuit Court and held that the more deferential certiorari standard was the proper standard of review for a decision to deny a rezoning. The Circuit Court then applied the certiorari standard and upheld the County Board’s decision. The landowner appealed that decision to the Court of Appeals, and the Court of Appeals also affirmed the Board’s decision.

In a common law certiorari review like this one, the reviewing court is limited to considering four factors: (1) whether the county board kept within its jurisdiction; (2) whether it proceeded on a correct theory of law; (3) whether its action was arbitrary, oppressive, or unreasonable and represented its will and not its judgment; and (4) whether the evidence was such that the county board could reasonably reach the determination under review. The reviewing court is also limited to considering the record as compiled by the municipality and does not take additional evidence from the parties. Municipal decisions on certiorari review are entitled to a ​“presumption of correctness and validity” and the challenging party bears the burden of overcoming that presumption. In addition, local zoning decisions are recognized as a ​“legislative function” of the county board, meaning that reviewing courts are particularly deferential to municipal decisions and will not substitute their judgment for that of the municipality’s governing body. 

In challenging the County Board’s decision, the landowner argued that the Board proceeded on an incorrect theory of law because it adopted the P & Z Committee’s reasoning in whole and, according to the landowner, the P & Z Committee improperly applied the standards set out in the County’s ordinances for granting CUPs, rather than the standards for granting a rezoning. The Court of Appeals held that it was unnecessary to determine what standard the P & Z Committee applied because the County Board did not simply adopt the P & Z Committee’s reasoning but instead exercised its own legislative discretion.

The Court also determined that the landowner did not prove that the County Board applied an incorrect legal standard. Under the County’s zoning ordinances, the County Board must make eight findings in order to approve a rezoning petition, including that the petition is consistent with both the County and Town Comprehensive Plans. The Town of Brigham’s Comprehensive Plan included among its goals the preservation of agricultural land and the natural beauty of the Town. The Court determined that the County Board could have denied the petition on the valid grounds that rezoning to a district which included a number of non-agricultural conditional uses (among them a quarry, a cheese factory, an airport, and an ethanol or bio-fuel plant) was not consistent with the goal in the Town’s Comprehensive Plan of preserving available agricultural land for growing crops.

The record showed that the County Board members were repeatedly reminded of the correct standard to apply when considering whether to approve or deny the zoning petition, and nothing in the record proved that the Board did not apply that standard. Indeed, some of the submissions and comments in the record referenced the agricultural preservation of the land in the face of quarrying or other possible conditional uses under the requested zoning designation. The Court determined that some County Board Members’ apparent concern with ​“local control” was sufficient to indicate the Board was concerned with whether the rezone was consistent with the Town’s Comprehensive Plan — a valid reason to deny a rezoning under the standards set out in the County’s ordinances. The Court also affirmed that the County Board was allowed to consider the potential conditional uses in the requested zoning district when deciding whether to approve or deny the petition and was not limited to considering only the permitted uses within that zoning district.

This case reinforces the fact that a decision to grant or deny a petition to rezone property is a legislative decision that is entitled to a deferential certiorari standard of review. It also makes clear that it is proper for a governing body to consider the conditional uses allowed in various zoning districts when making a rezoning decision. Nevertheless, municipalities should distinguish between rezoning petitions and CUP applications, consider them separately, and carefully apply the proper legal standards when acting on each.