861 N.W.2d 797
Wis. Ct. App.2015Background
- Two Cedarburg homeowners (Radmanns and Desjardin) rented their houses short-term and received city notices (Sept–Oct 2012) asserting violations of Cedarburg Zoning Code §13-1-46 (RS-5 single-family residential district).
- The City Board of Appeals denied their appeals, ruling short-term rentals were not permitted in single-family districts.
- Owners sought certiorari review in circuit court; the circuit court found the dwellings are single-family and reversed the Board as a matter of law.
- The Board appealed to the court of appeals; the core question was whether the zoning ordinance unambiguously prohibits short-term rentals in single-family zones.
- The ordinance listed "single-family dwellings" as a permitted use and defined "dwelling" as a building designed or used exclusively as a residence (excluding boarding houses, motels, etc.), but did not include any minimum-occupancy-duration requirement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether short-term rentals are a permitted use in an RS-5 single-family district | Owners: Plain language permits single-family dwellings; no time-duration limit; ambiguities construed for free use of property | Board: A dwelling must be an occupant's established residence; transient rentals are commercial, not residential; residency informed by voting/address concepts | Court: Short-term rentals are permitted; ordinance does not unambiguously prohibit them and must be construed in favor of property use |
| Whether the Board lawfully imposed a time/occupancy requirement not in the ordinance | Owners: Board can't impose time requirements absent clear legislative language | Board: Implicit residency requirement supports their interpretation | Court: Board acted contrary to law by reading in a time requirement; only clear ordinance terms can restrict property use |
Key Cases Cited
- State ex rel. Harding v. Door County Bd. of Adjustment, 125 Wis.2d 269 (Ct. App.) (time-limited occupancy does not remove use from "single-family dwelling" category; ordinance must explicitly restrict duration)
- Cohen v. Dane County Bd. of Adjustment, 74 Wis.2d 87 (1976) (zoning ordinances are in derogation of common law and must be construed to favor free use of property unless clear)
- Murr v. St. Croix County Bd. of Adjustment, 332 Wis.2d 172 (2011) (certiorari review examines whether board stayed within jurisdiction and acted according to law)
- Winkelman v. Town of Delafield, 239 Wis.2d 542 (2000) (standards for judicial review of zoning board decisions on certiorari)
- State ex rel. B'nai B'rith Foundation v. Walworth County Bd. of Adjustment, 59 Wis.2d 296 (1973) (municipal zoning power broadly construed)
- Cook v. Cook, 208 Wis.2d 166 (1997) (court of appeals precedent binding unless altered by supreme court)