Wildwood Estate, LLC v. Village of Summit

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
July 9, 2025
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2024AP178 Cir. Ct. No. 2021CV631

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

WILDWOOD ESTATE, LLC,

PLAINTIFF-RESPONDENT,

V.

VILLAGE OF SUMMIT,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Waukesha County:
MICHAEL P. MAXWELL, Judge. Affirmed.

Before Gundrum, P.J., Grogan, and Lazar, JJ.

¶1 LAZAR, J. The Village of Summit appeals the circuit court’s grant
of declaratory and summary judgment in favor of Wildwood Estate, LLC as well
as its award of attorney fees to Wildwood pursuant to 42 U.S.C. § 1988. The
Village contends that the court erred in three respects: (1) by considering a due
No. 2024AP178

process claim Wildwood allegedly raised during the declaratory and summary
judgment motion process without amended pleadings; (2) by determining that the
short-term rental ordinance, which the Village contends was enacted pursuant to
its police powers, was void and unenforceable as a zoning ordinance; and (3) by
awarding Wildwood attorney fees. In the alternative, the Village seeks a reduction
of the attorney fees award because, it asserts, Wildwood only arguably prevailed
on one claim.

¶2 Wildwood asks this court to affirm on all grounds, asserting that the
circuit court properly considered its due process arguments, that the ordinance in
question is void and unenforceable because the Village failed to follow required
zoning procedures pursuant to Zwiefelhofer v. Town of Cooks Valley, 2012 WI 7,
338 Wis. 2d 488, 809 N.W.2d 362, and that the award of attorney fees was proper.
We agree with Wildwood and affirm.

BACKGROUND

¶3 In 2017, Wildwood acquired real property in Summit. Also in 2017,
the state legislature enacted WIS. STAT. § 66.1014 (2023-24),1 entitled “Limits on
residential dwelling rental prohibited.” 2017 Wis. Act 59, § 996G.2 Throughout
2018 and 2019, Wildwood rented out its property through Vacation Rentals by
Owner (“Vrbo”); while the rental time periods ranged from three to seven nights,
the “great majority” were for less than seven nights.

1
All references to the Wisconsin Statutes are to the 2023-24 version.
2
This law is colloquially known as Wisconsin’s “Right to Rent” law. Sullivan v. Town
of Stockholm, 402 F. Supp. 3d 534, 537 (W.D. Wis. 2019) (“[T]he Wisconsin legislature enacted
a ‘Right to Rent’ law, WIS. STAT. § 66.1014, which limited Wisconsin towns’ authority to
regulate short-term rentals.”).

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¶4 On August 15, 2019, the Village adopted Ordinance No. 71-2019
(the “Ordinance”), codified in its chapter containing business regulations, to
“create regulation of vacation rental establishments in the Village of Summit.”
See SUMMIT, WIS., CODE ch. 6, art. V (enacted by Ordinance No. 71-2019
(Aug. 15, 2019)). Relevant to this appeal, Section 6-157 of the Ordinance
provides as follows:

(b) License required. No vacation rental establishment
may operate in the village unless an annual vacation
rental establishment license for such operation is
granted by the village, and only in full compliance with
such license. A separate tenant permit is required for
each rental of the vacation rental establishment.

….

(e) Minimum standards. Conditions under which
permitted. A license shall not be granted for a vacation
rental establishment unless all of the following
conditions are met per the satisfaction of the village
planner:

….

(4) Each vacation rental establishment shall be required
to keep a register and require all guests to sign such
register using their actual legal names including
middle initial and address before being assigned
sleeping quarters. The register shall be available for
inspection by the Village of Summit Police
Department, and village planner or designee of the
village for a period of not less than one year.

….

(g) Prohibition. Rental of a residential dwelling for six
consecutive days or fewer is prohibited....

In addition, Section 6-158 provides for penalties for noncompliance:

Violations of this article are subject to penalties in the
maximum amount of $10,000.00 and minimum amount of
$1,000.00, for each day of violation, and under no

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circumstance shall a penalty be imposed that is less than the
rental amount charged.

¶5 The Village first contemplated enactment of the Ordinance six
months prior to its adoption, seeking to model it after a zoning ordinance
regulating short-term rentals from the Village of Oconomowoc Lake (the “VOL
Ordinance”).3 At a February 2019 village board meeting, the village president
proposed holding a public hearing on the Ordinance. At an April 2019 meeting,
the police chief stated that there had not been problems with vacation rentals the
prior year, but that there had been issues with one property “a couple of years
ago.” In response to a query by the president as to whether a public hearing was
required, the Village’s attorney stated, “[N]o, unless it is put into the Zoning
Code.” The Village voted to direct its staff to draft a short-term rental ordinance
similar to the VOL Ordinance. No public hearing was ever held.

¶6 On December 17, 2019, the Village advised Wildwood in writing
that it intended to begin enforcing the Ordinance on or after January 6, 2020.
Pursuant to WIS. STAT. § 893.80, Wildwood served a Notice of Claim upon the
Village in June 2020 challenging the four Ordinance provisions identified above.
Wildwood sought a nonconforming use exemption because it had been renting its
property for periods of fewer than seven consecutive nights before the Ordinance
was passed. In October 2020, the Village disallowed the Notice of Claim.

¶7 Undaunted, Wildwood applied for a legal nonconforming use
exemption from the following provisions in the Ordinance: (1) the tenant permit

3
In its preamble, the VOL Ordinance purports to be a zoning law, stating “WHEREAS,
the Village of Oconomowoc Lake Village staff have recommended that the Village of
Oconomowoc Lake Zoning Code be modified to comply with current State laws in this
regard.…” Village of Oconomowoc Lake, Wis., Ordinance 294 (Nov. 1, 2018).

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application in § 6-157(b); (2) the log of guests in § 6-157(e)(4); and (3) the
seven-day minimum rental period in § 6-157(g). On April 14, 2021, the Village
refused to grant the legal nonconforming use exemption. On April 16, 2021,
Wildwood commenced an action against the Village seeking declaratory judgment
that the Ordinance is unenforceable and that it was entitled to a legal
nonconforming use exemption. Wildwood also alleged a violation of 42 U.S.C.
§ 1983,4 asserting that “[t]he actions of the Village, including but not limited to
denying [Wildwood’s] request for a legal nonconforming use without explanation
or justification, deprived [Wildwood] of property without due process of law, in
violation of the Fourteenth Amendment of the United States Constitution.”

¶8 In July 2022, Wildwood and the Village filed competing dispositive
motions. Wildwood moved for declaratory and summary judgment and sought
attorney fees based upon an alleged deprivation of its due process rights. It
alleged that although the Ordinance was “arbitrarily and capriciously classif[ied]”
as a business ordinance, it was actually a zoning amendment and arguing that “the
Village impermissibly changed its zoning regulations to prohibit certain uses of
land and dwellings without following the statutory and local procedural
requirements.” The Village moved for summary judgment seeking an order
upholding the validity of the Ordinance. In its response brief (to Wildwood’s
motion) and its reply (in support of its own motion), the Village argued that
Wildwood’s due process zoning argument was not set forth in the complaint and
should be disregarded by the circuit court. Despite this assertion, the Village
addressed Wildwood’s argument on the merits in its briefs.

4
In connection with this third cause of action, Wildwood sought reimbursement of all its
attorney fees and costs.

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¶9 The circuit court held oral argument on all motions in October 2022.
Wildwood’s due process zoning argument was fully debated by the parties, as was
the Village’s police power authority. The court inquired whether the Village
believed it had had the opportunity to argue the “whole zoning issue” in its briefs
and at the hearing. The Village stated that while it did not believe it should have
had to argue this issue, it was “able to do so” and that the court had “given [it] the
opportunity to do so both [that day] and in [its] written submissions.”

¶10 The circuit court issued a written decision in January 2023, granting
Wildwood’s motion for summary judgment in part5 and denying the Village’s
motion. The court concluded that the Ordinance was a zoning ordinance, and
since it was enacted without following the proper procedures, it violated
Wildwood’s due process rights. Accordingly, the court declared the Ordinance
void and unenforceable as an illegal zoning ordinance.

¶11 Following additional briefing and a status conference, the circuit
court entered another written decision declaring Wildwood to be the prevailing
party and awarding reasonable attorney fees under 42 U.S.C. § 1988.6

¶12 The Village appeals.

5
Wildwood’s request for a nonconforming use exemption was denied as moot; the
decision stated that “would be an issue for another day assuming the Village follows the proper
procedure to enact a zoning ordinance.”
6
In another written order and amended judgment, the circuit court awarded Wildwood
all of its requested attorney fees ($54,439.00), including those incurred in seeking the attorney
fees, together with costs ($648.95), for a total judgment of $55,087.95.

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STANDARD OF REVIEW

¶13 “Summary judgment is appropriate when there are no disputed
material facts and the moving party is entitled to judgment as a matter of law,” and
we review the circuit court’s grant of summary judgment independently. Scenic
Pit LLC v. Village of Richfield, 2017 WI App 49, ¶6, 377 Wis. 2d 280, 900
N.W.2d 84; see also Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315-17,
401 N.W.2d 816 (1987) (setting out method for appellate review).

¶14 A circuit court’s decision to grant or deny declaratory relief is within
its discretion. Commercial Union Midwest Ins. Co. v. Vorbeck, 2004 WI App 11,
¶7, 269 Wis. 2d 204, 674 N.W.2d 665 (2003). However, when this decision is
based on a question of law, such as the interpretation of a municipal ordinance, our
review is de novo. See id.; A & A Enters. v. City of Milwaukee, 2008 WI App 43,
¶16, 308 Wis. 2d 479, 747 N.W.2d 751. In such an independent review, we often
benefit from the circuit court’s analysis. Zwiefelhofer, 338 Wis. 2d 488, ¶20.
“[W]e apply the same principles used in statutory interpretation.” Milwaukee
Dist. Council 48 v. Milwaukee County, 2019 WI 24, ¶11, 385 Wis. 2d 748, 924
N.W.2d 153.

¶15 Finally, our review of both whether pleadings are sufficient and
whether an award of attorney fees is reasonable is conducted under an erroneous
exercise of discretion standard. See Schultz v. Trascher, 2002 WI App 4, ¶14,
249 Wis. 2d 722, 640 N.W.2d 130 (2001); Hartman v. Winnebago County, 216
Wis. 2d 419, 427-28, 574 N.W.2d 222 (1998). Under this standard, we will
uphold a circuit court’s exercise of discretion “if it is a reasonable conclusion,
based upon a consideration of the appropriate law and facts of record.” State v.

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No. 2024AP178

Salas Gayton, 2016 WI 58, ¶20, 370 Wis. 2d 264, 882 N.W.2d 459 (citations
omitted).

DISCUSSION

I. Wildwood sufficiently raised a due process claim.

¶16 We first address the Village’s argument that the circuit court erred in
considering Wildwood’s procedural due process claim, which, it asserts, did not
appear in Wildwood’s complaint and was first raised in Wildwood’s motion for
summary and declaratory judgment.

A. Wildwood’s complaint provided adequate notice of
its procedural due process claim.

¶17 Wisconsin has long been a liberal pleading state. See Data Key
Partners v. Permira Advisers LLC, 2014 WI 86, ¶¶37-38, 356 Wis. 2d 665, 849
N.W.2d 693 (citing favorably to the liberal pleading standard set forth in the
eponymous Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), decision). All
that is required is that a plaintiff plead a “short and plain statement of the claim,
identifying the transaction or occurrence or series of transactions or occurrences
out of which the claim arises and showing that the pleader is entitled to relief”
together with a “demand for judgment for the relief” sought. WIS. STAT.
§ 802.02(1)(a)-(b). Pleadings are to be liberally “construed as to do substantial
justice.” Sec. 802.02(6). Litigation is a serious exercise in the pursuit of truth and
justice, not “a game of skill in which one misstep by counsel may be decisive of
the outcome.” Tews v. NHI, LLC, 2010 WI 137, ¶62, 330 Wis. 2d 389, 793
N.W.2d 860 (citation omitted).

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¶18 Wildwood’s complaint identified provisions in the Ordinance that it
argued were invalid, requested a judicial declaration that the Ordinance was
unenforceable in whole or in part, and specifically stated:

The actions of the Village, including but not limited to
denying [Wildwood’s] request for a legal non-conforming
use without explanation or justification, deprived
[Wildwood] of property without due process of law, in
violation of the Fourteenth Amendment of the United
States Constitution.

(Emphasis added). Thus, it set out Wildwood’s due process claim and put the
Village on notice that there were multiple grounds for its assertion that the Village
had deprived Wildwood of property and its constitutional rights “without due
process of law.” This was sufficient, and we affirm the circuit court’s
discretionary decision to that effect.7

B. No formal amendment of the complaint was
necessary because the Village suffered no prejudice.

¶19 Even if Wildwood’s complaint had not sufficiently placed the
Village on notice of the due process claim more fully articulated in Wildwood’s
motion briefing, the Village had a fair and full opportunity to address that issue in
both its briefs and during oral argument such that no formal amendment of the
initial pleadings was necessary.

7
Although the circuit court’s decision on the adequacy of Wildwood’s complaint was
not explicit in its original decision and order issued in January 2023, it was obviously implicit
because after hearing argument on the issue, the court ruled on the merits. In the amended
decision and order issued in June 2023, the court explained its conclusion that a due process
violation occurred based on the Village’s passing of the Ordinance “under the guise of” a
business ordinance, “which the plaintiff raised in [its] complaint when [alleging a] violation of 42
U.S.C. § 1983.” Like this court, the circuit court emphasized Wildwood’s statement in its
complaint that its claim was based on the “actions of the Village including but not limited to” the
denial of Wildwood’s nonconforming use request.

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¶20 Circuit courts have considerable discretion to permit amendments to
pleadings. See WIS. STAT. § 802.09(2). They may even informally or sua sponte
amend complaints to conform to the evidence, provided the opposing party suffers
no prejudice. Schultz, 249 Wis. 2d 722, ¶¶14, 21. When considering whether to
allow a late amendment to a complaint, courts look to “whether the party opposing
amendment has been given such notice of the operative facts which form the basis
for the claim so as to enable [it] to prepare a defense or response.” Carl v.
Spickler Enters., Ltd., 165 Wis. 2d 611, 623, 478 N.W.2d 48 (Ct. App. 1991)
(citation omitted). Amendments are to be granted if such an opportunity has been
provided.8 Id. Here, the Village conceded that it had a sufficient opportunity to
respond to Wildwood’s procedural due process argument in response to the circuit
court’s question about whether the Village had had an adequate opportunity—in
its briefs and oral argument—to argue the “whole zoning issue.” After the
Village’s concession, the court commented that “the Village is clearly aware [of]
how this thing progressed through the governmental system” and noted that it
looked “to the outside observer … like they were contemplating some change to
the zoning related to this.” In further support of its decision to consider the due
process claim, the court also noted that the Village had not sought a continuance to
reopen discovery.

8
The Village asserts that Mach v. Allison, 2003 WI App 11, 259 Wis. 2d 686, 656
N.W.2d 766 (2002), sets forth the “specific criteria” upon which circuit courts are to deliberate
when considering whether to permit an amended complaint. That is correct; however, the Mach
criteria do not come into play until after a motion for summary judgment has been granted.
Tietsworth v. Harley-Davidson, Inc., 2007 WI 97, ¶26, 303 Wis. 2d 94, 735 N.W.2d 418; Mach,
259 Wis. 2d 686, ¶27. We decline the implicit request to extend Mach criteria to all instances
where amendments to complaints are under consideration.

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¶21 Wildwood argued the zoning due process issue in its summary
judgment brief filed July 15, 2022. On the same day, the Village argued that the
Ordinance was not a zoning amendment in its brief supporting its motion for
summary judgment; this was its defense to Wildwood’s claim that it was entitled
to a legal nonconforming use exemption. In fact, in each of its three briefs, the
Village included an in-depth discussion of this issue. The Village’s concession
that it had been able to fully brief and argue the issue of whether the Ordinance
was a zoning amendment belies any assertion that it was prejudiced by delayed
notice of this claim. It is evident that the Village was not prejudiced because it
was able to fully prepare its defenses to the claim. See Carl, 165 Wis. 2d at 623.

¶22 The circuit court did not erroneously exercise its discretion in
considering Wildwood’s procedural due process claim. The Village received
adequate notice of the claim and was not prejudiced such that informal amendment
of the complaint, to the extent it was necessary, was warranted.

II. As a zoning amendment, the Ordinance was passed
without following required procedures in violation of
Wildwood’s due process rights and is thus void and
unenforceable.

¶23 We begin with one of the uncontroverted principles that underlies
the foundation of our nation. As far back as the Philadelphia Convention,
Alexander Hamilton noted that “the security of Property” is one of the “great
[objects] of Gov[ernment].” 1 THE RECORDS OF THE FEDERAL CONVENTION OF
1787, 302 (Max Farrand ed., Yale Univ. Press 1911). At the time of our nation’s

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founding,9 property was “the guardian of every other right,” JAMES W. ELY, JR.,
THE GUARDIAN OF EVERY OTHER RIGHT: A CONSTITUTIONAL HISTORY OF
PROPERTY RIGHTS, 26 (3d ed. 2008), and protection of property was critical to the
concept of individual liberty, see ARTHUR LEE, AN APPEAL TO THE JUSTICE AND
INTERESTS OF THE PEOPLE OF GREAT BRITAIN, IN THE PRESENT DISPUTES WITH
AMERICA, 28-29 (4th ed. 1776). “Wisconsin public policy also ‘favors the free
and unrestricted use of property.’” Solowicz v. Forward Geneva Nat’l, LLC,
2010 WI 20, ¶34, 323 Wis. 2d 556, 780 N.W.2d 111 (quoting Dodge v. Carauna,
127 Wis. 2d 62, 65, 377 N.W.2d 208 (Ct. App. 1985)).

¶24 There is no doubt that owners of real property have the right to use
that property as they see fit as well as the right to include others on or exclude
others from that property. See Loretto v. Teleprompter Manhattan CATV Corp.,
458 U.S. 419, 435-36 (1982) (regarding the right to exclude others from real
property). That being said, this use-of-property right is not absolute; states and
local governmental units (including villages) may use their police power to

9
The concept of property at the time of our founding is further addressed in Paul J.
Larkin Jr.’s law review article, The Original Understanding of “Property” in the Constitution,
100 Marq. L. Rev. 1, 26-27 (2016):

The American Revolution, accordingly, was a rebellion fought
to preserve the rule of law and the freedoms enjoyed by the
Framers’ generation as Englishmen, not to obtain them.

….

One of those freedoms was the ability to acquire and enjoy
the use of private property. The Framers’ generation held that
“property” was a “natural right,” a right that is antecedent to and
exists independently of government. Such a right, in [Lord
Edward] Coke’s words, was the “Lex aeterna, the law of nature
... written with the finger of God in the heart of man.”

(Footnotes omitted; final omission in original).

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regulate and restrict the use of real property within their boundaries. State ex rel.
Carter v. Harper, 182 Wis. 148, 154-55, 196 N.W. 451 (1923). “‘Police power’ is
an inherent authority of state [and local] governments” covering “all matters
having a reasonable relation to the protection of the public health, safety, or
welfare.” State v. Cole, 2003 WI 112, ¶22, 264 Wis. 2d 520, 665 N.W.2d 328
(citations omitted); see also WIS. STAT. § 61.34(1) (prescribing police powers for
local governments).

A. Zoning laws are subject to substantive and
procedural safeguards.

¶25 “Zoning power is a subset of the police power.” Zwiefelhofer, 338
Wis. 2d 488, ¶31. While all “[z]oning ordinances are enacted pursuant to a local
government’s police power,” “all ordinances enacted under the police power are
not zoning ordinances.” Id., ¶5 (citations omitted). Both zoning power and police
power “serve the same overarching purpose of protecting the health, safety, and
welfare of the community.” Id., ¶31. However, “[d]espite the similarity and
potential overlap between zoning ordinances and non-zoning police power
ordinances, the legislature imposes different procedural requirements on these two
forms of ordinances.” Id., ¶6.

¶26 Given the importance of property rights, it is evident why zoning
ordinances “are to be construed in favor of the free use of private property.” Heef
Realty & Invs., LLP v. City of Cedarburg Bd. of Appeals, 2015 WI App 23, ¶7,
361 Wis. 2d 185, 861 N.W.2d 797 (citation omitted). In fact, “[z]oning at first
was considered one of the most radical departures from the traditional concepts of
private property because it was perceived as prohibiting a citizen from devoting
his property to a purpose useful and entirely harmless, in the ordinary sense, in
certain districts within a community.” Zwiefelhofer, 338 Wis. 2d 488, ¶7 n.8

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(quoting 1 Edward H. Ziegler, Jr., Rathkopf’s The Law of Zoning and Planning,
§1.2 (2011)).

¶27 “[Z]oning decisions implicate important private and public interests;
they significantly affect individual property ownership rights as well as
community interests in the use and enjoyment of land.” Marris v. City of
Cedarburg, 176 Wis. 2d 14, 25, 498 N.W.2d 842 (1993). Should a local
government or municipality10 decide to prohibit a use that is permitted under its
zoning code, that entity is amending its zoning code and must, a priori, follow the
procedures for doing so under state and local law. Heitman v. City of Mauston
Common Council, 226 Wis. 2d 542, 550-51, 595 N.W.2d 450 (Ct. App. 1999)
(citing WIS. STAT. § 62.23(7)(d)2). Precisely because a zoning restriction impairs
a property owner’s rights, the procedural requirements are heightened.
Zwiefelhofer, 338 Wis. 2d 488, ¶7. “[W]hen land use controls prohibit the use of
land for particular purposes, they must be accomplished by the substantive and
procedural safeguards created by the legislature in the zoning enabling act.”
Heitman, 226 Wis. 2d at 554.

¶28 One of those heightened requirements under WIS. STAT.
§ 63.23(7)(d)2 is notice and a public hearing. Our supreme court in Oliveira v.
City of Milwaukee, 2001 WI 27, ¶31, 242 Wis. 2d 1, 624 N.W.2d 117, explains:

The rationale for requiring a WIS. STAT.
§ 62.23(7)(d)2. notice and hearing when there is a
substantial change in the substance of the zoning
amendment ensures that the public has the opportunity to
express views regarding the zoning amendments. The
statutory notice and hearing requirements implicate due

10
Villages have the same zoning powers as cities. WIS. STAT. §§ 61.35, 63.23; see also
WIS. STAT. § 62.23(7)(am) (outlining the grant of zoning powers to local governments).

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process concerns because property rights are affected by
changes in the zoning laws. “Notice and hearing provisions
are invariably intertwined with due process considerations.
The legislature, in enacting sec. 62.23(7)(d), has attempted
to protect this right to due process by requiring an adequate
notice and hearing before a change in municipal zoning
could affect the character of a neighborhood.”

(Citation omitted.)

B. The Ordinance is a zoning ordinance.

¶29 Under the Wisconsin “Right to Rent” law, the legislature has
declared that short-term rentals—even those fewer than six consecutive days—are
permitted in single family residential districts when the community’s general
zoning code does not contain time restrictions on occupancy. See WIS. STAT.
§ 66.1014. Within the parameters of the “Right to Rent” law, local governments
may regulate rentals within their boundaries. Because there is an impact on
property owners’ ability to enjoy all of the rights bundled in their fee simple titles,
see Gebhardt v. City of West Allis, 89 Wis. 2d 103, 108-09, 278 N.W.2d 465
(1979), these local regulations must be fair and reasonable and they must be
enacted in accord with the appropriate zoning procedural requirements set forth in
WIS. STAT. § 62.23(7)(d).

¶30 There is no straightforward, bright-line rule to determine whether an
ordinance is a zoning ordinance. Zwiefelhofer, 338 Wis. 2d 488, ¶8. “Nor may a
court simply add up the number of similarities a challenged ordinance has to
traditional zoning ordinances or the number of differences a challenged ordinance
has from traditional zoning ordinances to determine whether a challenged
ordinance is a zoning ordinance.” Id., ¶9. Our supreme court cautions that the
determination is typically done on a case-by-case basis looking to the facts at hand
because “[s]ome characteristics, under the circumstances of the case, may be more

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significant than others.” Id. Accordingly, we are to utilize a “functional
approach” and consider characteristics traditionally associated with zoning
ordinances. Id., ¶8. They include:

(1) zoning ordinances typically divide a geographic area
into multiple zones or districts; (2) within the established
districts or zones, certain uses are typically allowed as of
right and certain uses are prohibited; (3) zoning ordinances
are traditionally aimed at directly controlling where a use
takes place as opposed to how it takes place;
(4) traditionally classifying uses in general terms, zoning
ordinances attempt to comprehensively address all possible
uses in the geographic area; (5) zoning ordinances
traditionally make a fixed, forward-looking determination
regarding what uses will be permitted as opposed to
case-by-case determinations; and (6) traditional zoning
ordinances allow certain landowners whose land use was
legal prior to the adoption of the zoning ordinance to
maintain their land use despite its failure to conform to the
ordinance.

State ex rel. Anderson v. Town of Newbold, 2021 WI 6, ¶40, 395 Wis. 2d 351,
954 N.W.2d 323 (citing Zwiefelhofer, 338 Wis. 2d 488, ¶¶36, 38-42; citations to
Zwiefelhofer omitted above).

¶31 Several of these tilt strongly in favor of concluding that the
Ordinance is a zoning ordinance. Although the Ordinance applies throughout the
entire Village and does not divide the Village into multiple districts, it makes
certain use of the land—namely short-term rentals for periods shorter than six
consecutive days—prohibited. See Zwiefelhofer, 338 Wis. 2d 488, ¶38 & n.21
(explaining that traditional zoning ordinances often “prohibit some uses in all
circumstances”). It directly controls that no short-term rentals will take place in
the Village; there is no regulation about how short-term rentals take place. See id.,
¶39 & n.22 (describing the “where” and “how” dichotomy that often applies,
respectively, to zoning ordinances and other regulations). This is a fixed,

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forward-looking determination applicable to all properties within the Village and
not one made on a case-by-case basis.11 See id., ¶41. Thus, considering the
second, third, and fifth Anderson factors, those factors weigh in favor of
determining that the Ordinance is a zoning law.

¶32 The sixth Anderson factor pertains to land use that was legal before
passage of an ordinance that becomes illegal after. We deem this very significant
in this case. In Heef, we held that the short-term rental of a dwelling in a
single-family zoning district is a permitted use of real property under a municipal
zoning code when that zoning code has not clearly and unambiguously prohibited
such rental. Heef, 361Wis. 2d 185, ¶¶1, 10-14. Wildwood’s property is zoned
“Country Residential District (R-2).” Prior to the enactment of the Ordinance,
short-term rental of Wildwood’s property was unquestionably permitted. When
the Ordinance was enacted, it clearly resulted in a change to Wildwood’s
permitted uses; it took a substantial stick out of Wildwood’s bundle.

¶33 This court rejects the Village’s assertion that its short-term rental
prohibition should be shrugged off as merely “one limit” on real property owners’
rights. It may be “one limit,” but it is significant nonetheless, especially to owners

11
The Village asserts that the Ordinance does not violate WIS. STAT. § 66.1014 in
prohibiting short-term rentals. This assertion, however, is not relevant to the question of whether
the Ordinance is a zoning ordinance.

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(such as Wildwood) who typically rent their properties for periods of fewer than
six consecutive days.12

¶34 Moreover, the Anderson factors are not exclusive. There are several
other facts in this case that evidence that the Ordinance is a zoning ordinance.
From the very beginning, the village board decided to model its ordinance after the
VOL Ordinance regulating short-term rentals—on its face, a zoning ordinance—
and repeatedly acknowledged that the Ordinance dealt with land use and its
administration should be handled by the personnel responsible for zoning. At its
May 2019 meeting, for instance, the board determined that “[t]he duties that are
currently assigned in the draft ordinance to the Administrator, should be changed
to Planner since this is a land use issue and falls under the scope of the Zoning
Administrator.” The village planner is under the authority of the Department of
Planning and Zoning and is “designated as the zoning administrator and
administrative officer for the provisions of [Chapter 111 - Zoning and Shoreland
Protection].” SUMMIT, WIS., CODE ch. 111, art. XIV § 111-407(a).

¶35 At the June 2019 meeting of the village board, the “[o]perational
items” concerning the Ordinance were assigned to the village planner. The
application forms related to short-term rentals were located in the “Planning &

12
We do not give significant weight to the apparent trend in non-Wisconsin jurisdictions
finding similar ordinances to be zoning ordinances. See Kirsch Holding Co. v. Borough of
Manasquan, 281 A.2d 513, 514 n.1 (N.J. 1971); Landing Dev. Corp. v. City of Myrtle Beach,
329 S.E.2d 423, 424 (S. C. 1985); City of Grapevine v. Muns., 651 S.W.3d 317, 335-37 (Tex.
App. 2021); Wihbey v. Zoning Bd. of Appeals, 292 A.3d 21, 29-30 (Conn. App. Ct. 2023); and
Slice of Life, LLC v. Hamilton Twp. Zoning Hearing Bd., 207 A.3d 886, 899-900 (Pa. 2019).

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No. 2024AP178

Zoning” section of the Village’s website.13 And, the Village’s attorney, while
acknowledging that a zoning ordinance would require notice and a public hearing,
stated that the Ordinance “was drafted to regulate to the extent you can for
regulatory reasons, not for public safety.” He admitted that “[m]ost of the horror
situations will not be addressed by this ordinance, those are public safety or
nuisance issues and this will not solve the problem.... Those other issues would
have to be addressed with a different ordinance.” These additional factors, taken
together, further persuade us that this is a zoning ordinance.

¶36 The Village’s remaining arguments are unpersuasive. While the
Ordinance’s purpose statement,14 preamble,15 and its placement in the Businesses
Chapter of the Village Code may suggest that its purpose was to regulate
short-term rentals out of concern for the health and safety of citizens, these are
self-serving statements, and as our supreme court has cautioned, we should

13
Although they have apparently been removed, presumably after the circuit court held
the Ordinance unenforceable, the application forms for a vacation rental license and a tenant
permit were located under the “Land, Property and Zoning-related Forms and Applications”
heading on the Village’s website under “Planning & Zoning.”
14
Section 6-157(a) of the Ordinance provides:

Purpose. The following vacation rental establishment licensing
regulations are created, to ensure that applicable state laws are
followed, to protect persons engaged in this practice either as
landlord or tenant; to protect against adverse impacts of noise,
odor, disturbance, adverse visual impacts, or other nuisances,
that this practice could have upon neighboring properties; to
preserve property values for the commercial benefit of the
village; and also to control the impacts of such operations on
municipal services, including snow plowing, garbage collection,
sanitation, law enforcement and fire protection.
15
Unlike the short-term rental zoning VOL Ordinance which mentions the Zoning Code
in its preamble, the Ordinance’s preamble states: “Chapter 6 – BUSINESSES a new Article for
Vacation Rentals” is being enacted.

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No. 2024AP178

carefully scrutinize these facts and “receive with some skepticism post hoc
hypotheses about legislative purpose, unsupported by the legislative history.”
State ex rel. Grand Bazaar Liquors, Inc. v. City of Milwaukee, 105 Wis. 2d 203,
210-11, 313 N.W.2d 805 (1982) (citation omitted). Notably, there is no reference
in the legislative history to establish that the Ordinance was enacted to address an
existing public concern for the Village’s residents’ public health, safety, or general
welfare. To the contrary, the Police Chief noted no recent problems, and the
Village’s attorney admitted the Ordinance was not designed to address such
concerns.

C. The Village failed to follow proper zoning
ordinance procedures.

¶37 There is no factual dispute that the Village failed to follow the
procedural steps necessary for enacting a valid zoning amendment. It never
provided the proposed ordinance to the Plan Commission, it never published a
Class 2 notice pursuant to WIS. STAT. ch. 985, and it never held a public hearing as
required by both WIS. STAT. § 62.23(7)(d)1.a. and the Village’s own code. See
SUMMIT, WIS., CODE art. XIII, § 111-387 (enacted by Ordinance No. 31-2015
(Oct. 1, 2015)).

¶38 Accordingly, because the majority of the Anderson factors, taken
together with the actions—not the self-serving words—of the Village, establish
that the Ordinance is a zoning ordinance and because the Village has sidestepped
the procedural requirements that accompany zoning ordinances, we affirm the
circuit court’s grant of summary and declaratory judgment in favor of Wildwood.

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No. 2024AP178

III. Wildwood is entitled to reasonable attorney fees.

¶39 The Village contends that the circuit court erroneously exercised its
discretion by awarding Wildwood attorney fees pursuant to 42 U.S.C. § 1988
because Wildwood only prevailed on one claim and, moreover, that that one claim
was not one of the three claims alleged in the complaint but rather was first raised
in summary judgment pleadings. In the alternative, the Village seeks a reduction
in the award to reflect Wildwood’s partial success. Wildwood argues that the
court found a due process violation and that, under 42 U.S.C. § 1983, it prevailed
on its claims such that an award of attorney fees is appropriate. We agree.

¶40 To be a “prevailing party” under the federal code, a plaintiff must
“succeed on any significant issue in litigation which achieves some of the benefit
the part[y] sought in bringing suit.” Hensley v. Eckerhart, 461 U.S. 424, 433
(1983) (citation omitted). A party prevails when the “actual relief on the merits of
[the plaintiff’s] claim materially alters the legal relationship between the parties by
modifying the defendant’s behavior in a way that directly benefits the plaintiff.”
Farrar v. Hobby, 506 U.S. 103, 111-12 (1992).

¶41 As explained above, Wildwood asserted a claim for a violation of
procedural due process by the Village. See Black v. City of Milwaukee, 2016 WI
47, ¶41, 369 Wis. 2d 272, 882 N.W.2d 333 (listing three types of 42 U.S.C. § 1983
claims). Success on a procedural due process claim occurs when a plaintiff
“demonstrate[s] (1) a cognizable property interest; (2) a deprivation of that
property interest; and (3) a denial of due process.” Manistee Apartments, LLC v.
City of Chicago, 844 F.3d 630, 633 (7th Cir. 2016). We have already concluded
that Wildwood’s procedural due process rights were violated by the Village when

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No. 2024AP178

it failed to enact the Ordinance under its zoning ordinance procedures: that
constitutes success sufficient for an award of attorney fees.

¶42 That, however, does not end the inquiry. We must determine the
time period and the work for which fees should be awarded. Wildwood asserts it
is entitled to all of its attorney fees from the initiation of the lawsuit through the
affidavits in support of its award of fees. The Village contends that Wildwood had
only partial success, warranting a reduction of the award, and that Wildwood is
not entitled to the fees it expended in seeking attorney fees.

¶43 Even when there is mixed success on interrelated claims, we
consider whether a plaintiff achieved its desired outcome. Hensley, 461 U.S. at
435. A plaintiff need not succeed on every contention raised to be entitled to
attorney fees. Id., at 439-40. If a plaintiff has unique and distinct claims and only
prevails on one, the time expended on the other claims could warrant a reduction
in attorney fees. Cook v. Public Storage, Inc., 2008 WI App 155, ¶95, 314
Wis. 2d 426, 761 N.W.2d 645. When the claims are related, however, the time
expended on each is too interrelated to divide and “the court ‘should focus on the
significance of the overall relief obtained by the plaintiff in relation to the hours
reasonably expended on the litigation.’” Id. (citation omitted). It necessarily
follows that a “‘losing party is not entitled to a reduction in attorney’s fees for
time spent on unsuccessful claims, if the winning party achieved substantial
success and the unsuccessful claims were brought and pursued in good faith’
especially where all of the ‘claims arise out of a common core of facts.’” Rand v.
Rand, 2010 WI App 98, ¶7, 327 Wis. 2d 778, 787 N.W.2d 445 (citation omitted).

¶44 Wildwood articulated that it was seeking declaratory and summary
judgment for a violation of its procedural due process rights to have the Ordinance

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No. 2024AP178

enacted via the process necessary for a zoning ordinance. Wildwood proceeded to
obtain relief for that specific violation. The circuit court granted Wildwood the
relief it sought and declared that the Ordinance was a zoning ordinance that was
improperly enacted by the Village and was void and unenforceable. Wildwood
achieved more than partial success on its claim; it achieved complete success on
its main goal.

¶45 We agree that Wildwood did not obtain a nonconforming use
exception, but that was an alternate claim—arising out of common facts and
highly related in the sense that both claims depended on the legal issue of whether
the Ordinance was a zoning ordinance—and was rendered moot by the absolute
success on its motion for declaratory and summary judgment. The circuit court,
reaching these same conclusions, properly exercised its discretion in its award of
fees; this was “a reasonable conclusion, based upon a consideration of the
appropriate law and facts of record.” See Salas Gayton, 370 Wis. 2d 264, ¶20
(citation omitted).

¶46 The Village also seeks a reduction of the attorney fees for the time
expended on preparing the motion for attorney fees. It asserts that approximately
34% of the fees sought were tied to the fee request and its responses.16

¶47 This court will “ordinarily defer to a circuit court’s determination as
to hours awarded.” Johnson v. Roma II-Waterford LLC, 2013 WI App 38, ¶25,

16
The Village contends that 65.8 hours (of a total of 225.35 hours) “related exclusively
to Wildwood’s request for attorney fees” and “26.3 of those hours were attributable to the reply
brief in support of the request for attorney’s fees.” The Village further asserts that an additional
16.45 hours was spent by Wildwood to respond to the Village’s two-page letter objection. Thus,
the Village complains that 34% of the 241.8 hours is excessive.

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No. 2024AP178

346 Wis. 2d 612, 829 N.W.2d 538. “An attorney’s hours are subject to the
scrutiny of the court and unreasonable hours should not be compensated.” People
Who Care v. Rockford Bd. of Educ., 90 F.3d 1307, 1314 (7th Cir. 1996). This is
because we “will affirm unless there is a clear showing of [an erroneous exercise]
of discretion,” Totsky v. Riteway Bus Service, Inc., 2000 WI 29, ¶46, 233 Wis. 2d
371, 607 N.W.2d 637 (citation omitted), and will “look for reasons to sustain a
[circuit] court’s discretionary decision,” Farmers Automobile Insurance Ass’n v.
Union Pacific Railway Co., 2009 WI 73, ¶32, 319 Wis. 2d 52, 768 N.W.2d 596.

¶48 Under these circumstances, the Village has failed to establish that
there is a meritorious basis upon which to overturn the circuit court’s award of
attorney fees for the lengthy and apparently the rather disputed attempts to request
and substantiate the award of attorney fees.

CONCLUSION

¶49 An individual’s “right to maintain control over his [or her] home,
and to be free from governmental interference, is a private interest of historic and
continuing importance.” United States v. James Daniel Good Real Prop., 510
U.S. 43, 53-54 (1993). The “valuable rights” associated with this interest include
“the right of sale, the right of occupancy, the right to unrestricted use and
enjoyment, and the right to receive rents.” Id., at 54.

¶50 It is for this reason that municipalities may not pass zoning
ordinances under the “guise of the police power” without following the procedural
steps designed to protect citizens’ rights. See Washington ex rel. Seattle Title
Trust Co. v. Roberge, 278 U.S. 116, 121 (1928). Because the Ordinance changes
the allowed uses of property and includes multiple indicia of traditional zoning
ordinances, the circuit court correctly concluded that it was a zoning ordinance.

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No. 2024AP178

And, as the circuit court noted, the Village’s passage of the Ordinance sidestepped
the proper process to enact a zoning ordinance. We conclude that the Village did
violate Wildwood’s procedural due process rights.

¶51 We further conclude that an award of attorney fees is appropriate
because Wildwood prevailed on its claim and affirm the circuit court’s award.

By the Court.—Judgment affirmed.

Recommended for publication in the official reports.

25