DCPREZ-0000-05622 - Laserfiche WebLink

Home Browse Search

W H Y T E & H I R S C H B O E C K s.c. Dane County Zoning Commission May 24, 1993 Page 2 City of Middleton could not rezone the Faga Parcel to a less restrictive zoning classification allowing for development of more than one single family home unless the consent of the Town of Westport is obtained. It is a well-established legal principle that a municipality may not surrender its governmental powers and functions or inhibit the exercise of its police or legislative powers. See State ex rel . Zupancic v. Schimenz, 46 Wis. 2d 22, 174 N.W. 2d 533 (1970) . The Town of Westport, in agreeing to the deed restriction, expressly bargained away its future use of its police or legislative powers by requiring the consent of the City of Middleton before down zoning the Faga Parcel. Likewise, the City of Middleton expressly bargained away its future use of its police or legislative powers by requiring the consent of the Town of Westport. A municipality simply has no authority to enter into such restrictive agreements that result in such contracting away of police and legislative powers. See Rathkopf, The Law of Zoning and Planning, Vol. 2, S 29A. 03 at 29A-27 to 29A-30. Accordingly, the purported deed restriction on the Faga Parcel is null and void and without any legal effect. It is as though the deed restriction never existed. Any opposition to or disapproval of the Faga rezoning based in any part on the existence of such deed restriction is ultimately based on an error of law warranting judicial intervention. See Buhler v. Racine County, 33 Wis. 2d 137, 146 N.W. 2d 403 (1966) . Very truly yours, J H. Zawadsk cc: Craig and Janice Faga Mr. Norbert Scribner Mr. Michael Doyle Mr. Dean Grosskopf Mr. John Van Dinter Thomas G. Wilson, Esq. Frank J. Bucaida, Esq. (Town of Westport Attorney)