Background
Huckleberry Ulbricht used Wisconsin’s direct legislation statute, WIS. STAT. § 9.20, to gather signatures for a petition that would require the Village of Necedah to either adopt a new ordinance or put it to a popular vote. The proposed ordinance would permit residents to keep up to eight chickens or ducks on any residential property in the village. The Village’s existing zoning code only permitted poultry in the “R-4 Rural Development District,” not in residential districts.
The village clerk, Roger Herried, refused to certify the petition, stating that it improperly attempted to regulate zoning through the direct legislation process. Consequently, the Village Board did not act on the proposal. Ulbricht filed a lawsuit seeking a writ of mandamus—a court order compelling a public official to perform their duty—to force the clerk to certify the petition and the Board to act on it.
The circuit court sided with the Village and quashed the mandamus petition, ruling that the proposed ordinance was not a proper subject for direct legislation. Ulbricht appealed that decision to the Wisconsin Court of Appeals.
The Court’s Holding
The Court of Appeals affirmed the circuit court’s dismissal of Ulbricht’s petition. The court held that the proposed ordinance was an invalid attempt to amend the Village’s zoning code through voter initiative, which is not permitted under Wisconsin law. The court’s reasoning was based on its precedent in Heitman v. City of Mauston, which established that the power of voter initiative cannot be used to bypass the specific procedural and substantive requirements of the state’s zoning statutes.
The court explained that Wisconsin’s zoning enabling act, WIS. STAT. § 62.23, provides a detailed process for enacting or changing zoning laws, including requirements for public notice and hearings. Allowing Ulbricht’s ordinance to proceed via direct legislation would circumvent these important procedural safeguards for property owners. Because the Village’s current zoning code already addresses where poultry can be raised, Ulbricht’s proposal to allow them in all residential districts constituted an amendment to that zoning code. As such, it was not a proper subject for direct legislation.
Additionally, the court found that Ulbricht had forfeited his separate argument that the clerk had a “ministerial” (non-discretionary) duty to certify the petition regardless of its legality. By asking the circuit court to rule on the ultimate question of whether the Board had to act, and not distinctly raising the issue of the clerk’s separate duty, Ulbricht failed to preserve that argument for appeal.
Key Takeaways
- Direct legislation (voter initiative) cannot be used in Wisconsin to amend a municipality’s zoning laws or bypass statutory zoning procedures.
- An ordinance that alters land use regulations, such as where animals can be kept, is considered a zoning matter, even if it is framed as a general animal-control regulation.
- Municipal clerks are not required to certify petitions for direct legislation, nor are village boards required to act on them, if the proposal is an improper subject for initiative, such as an attempt to rezone property.
- A litigant must clearly raise and preserve all distinct legal arguments at the trial court level, or an appellate court may deem them forfeited and refuse to consider them.
Why It Matters
This decision reaffirms the legal principle that the power of voter initiative, while an important tool for direct democracy, has well-defined limits. It clarifies that this power does not override specific and comprehensive statutory schemes like those governing municipal zoning. For local governments and citizen groups in Wisconsin, the ruling underscores that changes to land use policy, including rules about keeping backyard chickens, must go through the established administrative and legislative channels, which are designed to ensure public input and protect the rights of all affected property owners. The case serves as a clear warning that attempts to use direct legislation as an end-run around zoning procedures will be rejected by the courts.