J.B. VAN HOLLEN
ATTORNEY GENERAL
Raymond P. Taffora
Deputy Attorney General
114 East, State Capitol
P.O. Box 7857
Madison, WI 53707-7857
June 8, 2007 OAG – 2 – 07
Mr. Richard J. Summerfield
Corporation Counsel
Rusk County
311 East Miner Avenue, Suite L361
Ladysmith, WI 54848
Dear Mr. Summerfield:
In your letter dated March 8, 2007, you ask whether a county can exercise its home rule authority in such a way as to appoint one regular member and one alternate member who reside in the same town to a county board of adjustment.
In my opinion, the answer is no.
Wisconsin Stat. § 59.03 provides in part as follows: (1) ADMINISTRATIVE HOME RULE. Every county may exercise any organizational or administrative power, subject only to the constitution and to any enactment of the legislature which is of statewide concern and which uniformly affects every county.
Wisconsin Stat. § 59.04 provides as follows: Construction of powers. To give counties the largest measure of self‑government under the administrative home rule authority granted to counties in s. 59.03(1), this chapter shall be liberally construed in favor of the rights, powers and privileges of counties to exercise any organizational or administrative power. Wisconsin Stat. § 59.51(1) provides as follows: Board powers. (1) ORGANIZATIONAL OR ADMINISTRATIVE POWERS. The board of each county shall have the authority to exercise any organizational or administrative power, subject only to the constitution and any enactment of the legislature which grants the organizational or administrative power to a county executive or county administrator or to a person supervised by a county executive or county administrator or any enactment which is of statewide concern and which uniformly affects every county. Any organizational or administrative power conferred under this subchapter shall be in addition to all other grants. A county board may exercise any organizational or administrative power under this subchapter without limitation because of enumeration, and these powers shall be broadly and liberally construed and limited only by express language.
Wisconsin Stat. § 59.694(2) provides in part: (am) The chairperson of the county board to which par. (a) applies shall appoint, for staggered 3-year terms, 2 alternate members of the board of adjustment, who are subject to the approval of the county board. Annually, the chairperson of the county board shall designate one of the alternate members as the first alternate and the other as 2nd alternate. The first alternate shall act, with full power, only when a member of the board of adjustment refuses to vote because of a conflict of interest or when a member is absent. The 2nd alternate shall act only when the first alternate refuses to vote because of a conflict of interest or is absent, or if more than one member of the board of adjustment refuses to vote because of a conflict of interest or is absent.
. . . .
(c) The members of the board of adjustment, including alternate members, shall all reside within the county and outside of the limits of incorporated cities and villages; provided however, that no 2 members shall reside in the same town.
The County correctly asserts that Wis. Stat. § 59.03 is a broad grant of power to counties. . . . When exercising home rule power, a county must be cognizant of the limitation imposed if the matter has been addressed in a statute that uniformly affects every county as such legislation shows the matter is of statewide concern. Mommsen v. Schueller, 228 Wis. 2d 627, 635, 599 N.W.2d 21 (Ct. App. 1999). Wisconsin courts have previously recognized that while some subjects are exclusively a statewide concern, others may be entirely a local concern and some subjects are not exclusively within the purview of either the state or of a county. Id. at 636. For those subjects where both the state and a county may act, the county’s actions must “complement rather than conflict with the state legislation.” State ex rel. Ziervogel v. Washington County Bd. of Adjustment, 2004 WI 23, ¶ 37, 269 Wis. 2d 549, 676 N.W.2d 401. Four factors assist us in determining how a county’s action is to be analyzed:
(1) whether the legislature has expressly withdrawn the power of municipalities to act;
(2) whether the ordinance logically conflicts with the state legislation;
(3) whether the ordinance defeats the purpose of the state legislation; or
(4) whether the ordinance goes against the spirit of the state legislation.
Mommsen, 228 Wis. 2d at 636-37 (citing Anchor Sav. & Loan Ass’n v. EOC, 120 Wis. 2d 391, 397, 355 N.W.2d 234 (1984); U.S. Oil, Inc. v. City of Fond Du Lac, 199 Wis. 2d 333, 345, 544 N.W.2d 589 (Ct. App. 1996)). If any one of the four factors set out in Mommsen is met by a county’s action, that action is without legal effect. Ziervogel, 269 Wis. 2d 549, ¶ 38 (citation omitted).
