Ordinances & Resolutions
471. Discusses the differences between charter ordinances, regular ordinances, resolutions, bylaws and motions and when the various forms of legislation are most appropriately used by a governing body. 7/31/97.
471 R1. Discusses the differences between charter ordinances, regular ordinances, resolutions, bylaws and motions and when the various forms of legislation are most appropriately used by a governing body. 3/31/09.
472. Proposed ordinance initiated under sec. 9.20, Stats., prohibiting the City from approving the location of a secured treatment facility for Ch. 980, Stats., commitments in the City is not a proper subject for direct legislation because it directly conflicts with two previous resolutions adopted by the common council approving the placement of such a facility in the City. The direct legislation statute cannot be used by citizens to compel the passage of an ordinance or resolution which is in clear conflict with a prior ordinance or resolution and which would constitute an implied repealer of that legislation. State ex rel. Althouse v. City of Madison, 79 Wis. 2d 97, 255 N.W.2d 449, 454 (1977). (1/31/98).
473. Reviews Lounge Management, Ltd. v. Town of Trenton, No. 96-1853 (Wis. June 18, 1998), and other recent court decisions addressing the ability of municipalities to regulate nude dancing and suggests ways municipalities can draft constitutionally viable ordinances prohibiting nude dancing in bars. Includes a sample ordinance drafted by League attorneys prohibiting live totally nude, non-obscene, erotic dancing in establishments licensed to sell alcohol beverages. 7/31/98.
474. Petition and proposed charter ordinance addressing design details of a particular street reconstruction project and creating a design review committee to review plans for the project does not constitute a valid initiative under secs. 66.01(6) and 9.20, Stats., because it is administrative rather than legislative in nature. 10/6/98.
475. Summarizes federal district court decision holding the City of Cumberland's ordinance establishing a comprehensive licensing and regulatory scheme for all "sexually oriented businesses" to be unconstitutionally vague and in violation of the First Amendment. Schultz v. City of Cumberland, No. 98-C-0107-C (W.D. Wis. Nov. 5, 1998). 11/30/98.
476. If a proposed charter ordinance initiated under sec. 9.20, Stats., is adopted by a majority of those voting at a referendum, the charter ordinance takes effect upon publication since the proposed charter ordinance itself specifies that it becomes effective immediately upon publication and sec. 9.20(7), Stats., indicates that if a majority of the electors vote in favor of adopting an initiated ordinance, the proposed ordinance takes effect upon publication which must be accomplished by the clerk within 10 days after the election. 12/30/98.
477. Proposed charter ordinances which prescribe compensation to be paid elected officials, and which set time for governing body's regular meeting and require recording the proceedings are administrative in nature and not proper subjects for direct legislation under sec. 9.20, Stats. Where a proper subject for direct legislation is combined with an improper subject, the council may refuse to act on the entire proposal. 1/25/99.
478. Summarizes Lavey v. City of Two Rivers, __ F.3d ___, Case No. 98-1785 (7th Cir. March 25, 1999), in which the Seventh Circuit, relying in part on Metromedia, Inc. v. San Diego, 453 U.S. 490 (1981), upheld as constitutional an extensive city ordinance which regulates the placement and nature of outdoor advertising and differentiates between on-premises and off-premises advertising. 5/31/99.
479. Discusses recent decision by the U.S. Court of Appeals for the 7th Circuit upholding a Wisconsin town's ordinance regulating the hours of operation of adult-entertainment establishments against a First Amendment challenge. DiMa Corp. v. Town of Hallie, No. 98-3997 (7th Cir. July 26, 1999). 8/18/99.
480. Discusses recent Wisconsin Court of Appeals decision, City News & Novelty, Inc. v. City of Waukesha, No. 97-1504 (Wis. Ct. App. August 18, 1999) (recommended for publication in the official reports), upholding the City of Waukesha's adult-oriented establishment licensing scheme. Of particular note is court's conclusion that Waukesha's licensing ordinance, which provided that administrative review of the municipality's determination is to be addressed by ch. 68, Stats., satisfied the "prompt judicial review" standard applicable to municipal licensing schemes implicating First Amendment rights.
481. Summarizes a recent decision by the U.S. Court of Appeals for the Seventh Circuit holding that a Chicago ordinance essentially banning all publicly visible advertising of cigarette products and alcohol, with certain exceptions, was not preempted by the Federal Cigarette Labeling and Advertising Act. Federation of Advertising Industry Representatives, Inc. v. Chicago, No. 98-3191 (7th Cir. Sept. 1, 1999). 9/30/99.
482. Summarizes the U.S. Supreme Court's most recent nude dancing case, City of Erie v. Pap's A.M., No. 98-1161, 2000 WL 313381 (U.S. Mar. 29, 2000),the Wisconsin court of appeals' decision in Urmanski v. Town of Bradley, No. 99-2230 (Wis. Ct. App. May 23, 2000),and one other recent unpublished court of appeals decision, East of the River Enterprises II v. City of Hudson, No. 99-1801 (Wis. Ct. App. April 11, 2000), upholding a municipality's denial of a liquor license to a nude dancing establishment. 5/31/00.
483. Proposed ordinance initiated under sec. 9.20, Stats., prohibiting a power generation facility from being located in any zoning districts within the city and the city's extraterritorial zoning jurisdiction constituted zoning or rezoning which cannot be accomplished by initiative. Heitman v. City of Mauston Common Council, 226 Wis.2d 542, 595 N.W.2d 450 (Ct. App. 1999). 9/30/00.
484. Direct legislation resolution imposing spending cap on proposed city/county building project is either administrative action or amendment of existing legislation and therefore invalid use of direct legislation. Opinion briefly discusses administrative-legislative distinction and test for determining whether direct legislation constitutes amendment of existing legislation. 2/28/01.
485. Municipal ordinances that were adopted by governing body and recorded/entered in full in a three-ring binder for minutes of governing body are valid and enforceable even though they were not signed by appropriate officials, were not entered in an ordinance book and were not published or posted because recording/entry in the minutes three-ring binder constituted recording/entry of copy of ordinance in a book within the meaning of remedial statute, sec. 889.04, Stats., and three years have elapsed since such recording/entry. 1/31/02.
486. Proposed resolution that seeks to amend existing resolution requiring city employees to reside in the municipality to allow municipal employees to reside outside of municipality is in direct conflict with and constitutes repeal of existing resolution and is administrative not legislative. Such resolution is therefore not a proper subject for direct legislation under sec. 9.20 Stats., or resubmission as a proposed charter ordinance under sec. 66.0101, Stats. 3/18/02.
487. Direct legislation proposal directing village board to construct new village hall and public works facility in specific village park is not a proper subject for direct legislation since proposal is: (1) administrative not legislative in light of its temporary effect and relation to special matter, failure to create new plan or policy, usurpation of function of administrative agency and attempt to exercise recognized administrative function; and (2) an attempt to repeal existing resolution that provides for opposite and irreconcilable action. 6/30/03.
488. Discusses Wis. Stat. sec. 9.20 direct legislation decision in Mount Horeb Community Alert v. Mt. Horeb Village Board, 2003 WI 100 and reasons for considering the Mount Horeb direct legislation's binding popular referendum requirement to be invalid.
489. Modifying and extending opinions in Powers of Municipalities 839 and Ordinances & Resolutions 456, opinion concludes that a city council has authority to establish term limits for elected and appointed statutory officials, such as alderpersons and members of statutory commissions and boards, by charter ordinance under Wis. Stat. sec. 66.0101, and authority to establish term limits by non-charter ordinance for any member of non-statutory board, commission or committee created by a city council. 8/29/03.
490. Direct legislation petition submitted without any proposed resolution, ordinance or charter ordinance is defective, rather than merely insufficient, and clerk need not forward petition to common council pursuant to Wis. Stat. sec. 9.20(3) because there is no proposed legislation that council must adopt without alteration or refer to a vote of the electors. 12/22/03
491. Proposed ordinance submitted with direct legislation petition under Wis. Stat. sec. 9.20 which prohibits adding any substance to the public water supply for the "purpose of treating or affecting the physical or mental functions of the body of any person, rather than to make water safe or potable," directly conflicts with and would repeal existing ordinance requiring that city water utility add fluorine to water supply system and is therefore not a valid use of direct legislation process. Court referred to this as continuing valid exception in Mount Horeb Community Alert v. Village Bd. of Mt. Horeb, 2003 WI 100, 263 Wis.2d 544, 560, 665 N.W.2d 229, 237, citing. Landt v. Wisconsin Dells, 30 Wis. 2d 470, 141 N.W. 2d 239 (1965). 2/20/04.
493. An erosion control ordinance adopted under Wis. Stat. sec. 62.234 does not supersede erosion control inspection fees established by resolution since the plain language of 62.234 provides that a 62.234 ordinance only supersedes an ordinance adopted under Wis. Stat. sec. 62.23. Edgerton Contractors, Inc. v. City of Wauwatosa, No. 2009 AP 1042 (Ct. App. Feb, 17, 2010) (recommended for publication). 2/27/10.
494. Under certiorari review, the court will defer to a municipality's reasonable interpretation of a municipal ordinance where the ordinance is not based on state law but was drafted by the municipality to address a local concern. In such instances, a presumption of correctness is in order because "locally elected officials are especially attuned to local concerns." Ottoman v. Town of Primrose, 2011 WI 18. 4/30/11.
495. The "concise statement" requirement of Wis. Stat. sec. 9.20(6) for a direct legislation ballot only mandates "a brief statement of the general purpose of the proposed ordinance." Metropolitan Milwaukee Association of Commerce, Inc. v. City of Milwaukee, Appeal No. 2009AP1874-AC (Ct. App. Mar. 23, 2011) (recommended for publication). 3/31/11.
496. Like any other municipal ordinance, a direct legislation ordinance need only be rationally related to a legitimate municipal objective to satisfy the substantive due process requirements of the Wisconsin and federal constitutions. Metropolitan Milwaukee Association of Commerce, Inc. v. City of Milwaukee, Appeal No. 2009AP1874-AC (Ct. App. Mar. 23, 2011) (recommended for publication). 3/31/11.
497. The two year period established by Wis. Stat. 9.20(8) during which a direct legislation ordinance may not be amended or repealed does not include any time during which the ordinance is not effective because of a court imposed temporary or permanent injunction prohibiting enforcement of the ordinance. Metropolitan Milwaukee Association of Commerce, Inc. v. City of Milwaukee, Appeal No. 2009AP1874-AC (Ct. App. Mar. 23, 2011) (recommended for publication). 3/31/11.
498. Grandfather clause that exempted existing noncompliant housing arrangements from new ordinance restricting sex offender residency applies to the residence not the sex offender and if the offender moves from the exempted residence location he/she loses all residency restriction exemption. Village of Menomonee Falls v. Ferguson, 2010AP2167 (Ct. App. April 27, 2011) (publication recommended). 5/31/11.
499. An ordinance enacted by a lake protection and rehabilitation district (district) which prohibited diversion of groundwater out of lake's groundwater basin was invalid because it conflicted with, defeated the purpose of, and violated the spirit of the legislature's delegation of authority to the Department of Natural Resources (DNR) to regulate high capacity wells and its creation of a comprehensive permitting framework for high capacity wells. The ordinance did not merely provide additional requirements, but could prohibit the operation of a high capacity well that was authorized by the DNR under statute. The court focused on the preemption authority and did not address the district’s authority to enact such an ordinance. Lake Beulah Mgmt Dist. v. Village of East Troy, 2011 WI 55, 799 N.W.2d 78. 7/29/11.
500. Wisconsin’s Concealed Carry Law, sec. 175.60, does not require that municipalities enact legislation. However, municipalities that want to prohibit firearms and/or weapons in municipal buildings and direct that the buildings be properly posted do need to take some action and a resolution would be sufficient for that purpose. However, if a municipality wants to prohibit persons from carrying weapons and or/firearms in buildings that have been posted and establish forfeitures for violations of those laws, an ordinance is likely necessary. 11/31/11
501. An ordinance is unconstitutionally vague if it fails to afford proper notice of the conduct it seeks to proscribe or if it encourages arbitrary and erratic enforcement. Guse v. City of New Berlin, Appeal No. 2011AP663 (Jan. 18, 2012) (publication recommended). 1/31/12.
502. An ordinance may vest a decisionmaker with significant discretion without being unconstitutionally vague but may not grant unfettered discretion. Guse v. City of New Berlin, Appeal No. 2011AP663 (Jan. 18, 2012) (publication recommended).1/31/12.
503. Legal comment explains how adoption of a salvage and demolition ordinance can protect municipalities when manufacturing plants close, and suggests what type of provisions should be included in such an ordinance (written by Attorney Arthur Harrington, Godfrey & Kahn, s.c.) 7/31/15.
504. Rule adopted by city transit and parking commission prohibiting persons from traveling in city buses with weapons was not preempted by Wis. Stat. sec. 66.0409 which only preempts “ordinances” and “resolutions” enacted or adopted by a “city, village, town or county.” Wisconsin Carry, Inc., v. City of Madison, 2015AP146 (Aug. 6, 2015, publication recommended). 8/31/15.
505. City's anti-panhandling ordinance which defines panhandling as an oral request for an immediate donation of money but does not prohibit signs requesting money or oral pleas to send money later was a content-based restriction in light of Supreme Court’s decision in Reed v. Gilbert. Norton v. City of Springfield, 768 F.3d 713 (7th Cir. 2014), reversed on reh’g, 2015 WL 4714073, at 1 (7th Cir. Aug. 7, 2015). 9/30/15.
506. State law preempts municipal authority over clean fill sites and village could not require facility to comply with local approvals such as zoning and construction, storm water, and erosion permitting requirements. Scenic Pit, LLC v. Village of Richfield, 2017 WI App 49. 08/30/17.
507. Wis. Stat. sec. 66.0409 and Wisconsin’s Concealed Carry statute, sec. 175.60, preempt municipal authority to restrict a concealed carry licensee’s right to carry concealed weapons on public transportation so long as licensee complies with statute’s requirements. Wisconsin Carry Inc. v. City of Madison, 2017 WI 19, 373 Wis.2d 543, 892 N.W.2d 233. 08/30/17.
508. State law preempts municipal authority over clean fill sites and village could not require facility to comply with local approvals such as zoning and construction, storm water, and erosion permitting requirements. Scenic Pit, LLC v. Village of Richfield, 2017 WI App 49. 09/01/17.
509. Wis. Stat. sec. 66.0409 and Wisconsin’s Concealed Carry statute, sec. 175.60, preempt municipal authority to restrict a concealed carry licensee’s right to carry concealed weapons on public transportation so long as licensee complies with statute’s requirements. Wisconsin Carry Inc. v. City of Madison, 2017 WI 19, 373 Wis.2d 543, 892 N.W.2d 233. 09/01/17.