Guide to Community Planning in Wisconsin by Brian W. Ohm

Chapter 2:  Types of Plans & Overview of Implementation Tools
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2.4.2  Local Authority to Impose a Moratorium

Cities, villages and towns with village powers have express authority to freeze existing uses while the community prepares a comprehensive zoning plan. Section 62.23(7)(da) of the Wisconsin Statutes, entitled "Interim zoning," states:

"The common council of any city which has not adopted a zoning ordinance may, without referring the matter to the plan commission, enact an interim zoning ordinance to preserve existing uses while the comprehensive zoning plan is being prepared. Such ordinance may be enacted as is an ordinary ordinance but shall be effective for no longer than 2 years after its enactment."

This authorization, however, is rather narrow. It applies only to cities "which have not adopted a zoning ordinance."(62)  There is also express authority for adopting an interim zoning ordinance to preserve existing uses as part of the extraterritorial zoning process.(63)  Moratoria have also been used in other contexts.

Counties also impose temporary moratoria as part of their planning processes. Counties, however, have no express statutory authorization to impose an interim control ordinance. The absence of express enabling authority does not mean that counties cannot impose moratoria. What it does mean is that the authority for counties to impose moratoria is not clear. (Some states have statutes which expressly prohibit moratoria for planning purposes. Wisconsin does not.)

The authority for a county to impose a moratorium must be derived from the general language of the land use enabling legislation for counties. There are no reported court cases in Wisconsin on the issue of county authority to impose a moratorium. There are cases in other states which have held that in the absence of express enabling legislation for moratoria, the general delegation of authority under the planning and zoning enabling legislation is sufficient authority to impose a moratorium.(64)   However, there are cases in other states which have held the opposite.

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(62)  In a recent case entitled Lake City Corp. v. City of Mequon, 199 Wis.2d 353, 544 N.W.2d 600 (Ct. App. 1996), the Wisconsin Court of Appeals questioned whether a city which already had a comprehensive zoning ordinance could adopt a moratorium. The court did not provide a definitive answer to its question but said that arguably there is implied authority for all cities, not just those without any zoning, to impose moratoria. While the Wisconsin Supreme Court reversed the Court of Appeals decision in the case on other grounds, it did not provide any guidance on the propriety of moratoria. Lake City Corp. v. City of Mequon, 207 Wis.2d 156, 558 N.W.2d 100 (1997). 
 (63)  Wis. Stat. § 62.23(7a).
 (64)  One of the leading cases nationally is a Minnesota case, Almquist v. Town of Marshan, 245 N.W.2d 819 (Minn. 1976).

Wisconsin Statutes