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COURT OF APPEALS
DECISION
DATED AND FILED
April 27, 2011
A. John Voelker
Acting Clerk of Court of Appeals
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NOTICE
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This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official
Reports.
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
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Appeal No.
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STATE OF WISCONSIN
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IN COURT OF
APPEALS
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Village
of Menomonee Falls,
Plaintiff-Respondent,
v.
Jason R. Ferguson,
Defendant-Appellant.
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APPEAL
from a judgment of the circuit court for Waukesha County: linda
m. van de water, Judge. Affirmed.
Before
Neubauer, P.J., Anderson
and Reilly, JJ.
¶1 ANDERSON, J. Jason R.
Ferguson appeals from the circuit court’s judgment finding him guilty of
violating the Village
of Menomonee Falls sex
offender residency restriction ordinance (Village Ordinance). Village of Menomonee Falls, Wis., Code of Ordinances § 62-51(c)(1) (2007). The circuit court did not err. We affirm.
I.
Facts
¶2 The
facts of this case are undisputed. On
June 18, 2001, Ferguson
was convicted of second-degree sexual assault of a child in violation of Wis. Stat. § 948.02. In October
2003, Ferguson moved to an apartment on Main Street in the Village of Menomonee Falls, which was located
within 1500 feet of school facilities for children. Ferguson
registered himself as a sex offender and his Main Street address with Wisconsin’s Sex Offender
Registry. On June 18, 2007, the Village
of Menomonee Falls passed a Village Ordinance, which in part provides that
“[a]n offender shall not reside within 1,500 feet of real property that
supports or upon which there exists ... [a]ny facility for children.” Village of Menomonee Falls, Wis., Code of Ordinances § 62-51(c)(1)a.
¶3 Also,
within the ordinance, is a grandfather clause exception, which, in relevant
part, states:
(3) An offender residing within 1,500 feet of
real property that supports or upon which there exists any of the [identified]
uses ... does not commit a violation of this section if ... a. The offender is required to serve a sentence
at a jail, prison, juvenile facility, or other correctional institution or
facility. [or] b. The offender has established a permanent or
temporary residence and reported and registered that residence pursuant to Wis. Stats. § 301.45 prior to the
effective date of [the residency restriction].
Village of Menomonee Falls, Wis., Code of Ordinances § 62-51(c)(3)a., b. Therefore, because Ferguson was residing at the Main Street residence
prior to the enactment of the Village Ordinance, he was excepted from the
residency restriction by the ordinance’s grandfather clause.
¶4 Some
time after the enactment of the statute, Ferguson
moved from his Main Street
residence to a Menomonee River
Parkway residence, also located within the Village of Menomonee Falls. Ferguson’s
Menomonee River Parkway
residence is located less than one mile from his former Main Street residence and is also within
1500 feet of public facilities for children.
¶5 On
December 10, 2008, following Ferguson’s change
in residence, a Village of Menomonee Falls police detective made face-to-face
contact with Ferguson
at the Menomonee River Parkway
residence and advised him that because of his change in residence, he was now
in violation of the Village Ordinance and had thirty days to vacate the Menomonee River Parkway
residence. After the thirty days had
passed, the detective again made face-to-face contact with Ferguson
at the Menomonee River Parkway
residence, and on
February 2, 2009, because Ferguson
had not vacated the residence, the detective issued him a citation for
violating the Village Ordinance’s residency restriction.
¶6 Ferguson challenged the ordinance violation in Menomonee Falls municipal court; on November 11, 2009,
Municipal Judge Bradley W. Matthiesen upheld the citation.
¶7 Ferguson appealed the ruling to the Waukesha county circuit court on December 4,
2009. On February 3, 2010, Ferguson filed a motion to
dismiss, alleging that although his Menomonee
River Parkway residence was within 1500 feet of a
child safety zone as prohibited by the Village Ordinance, he was excepted by
the ordinance’s grandfather clause provisions because he had “established a
permanent or temporary residence and reported and registered that residence
pursuant to Wis. Stats. § 301.45
prior to the effective date of [the residency restriction]” as provided by Village of
Menomonee Falls, Wis.,
Code of Ordinances § 62-51(c)(3)b. Ferguson argued that the
grandfather clause exception, which allowed him to reside in the Main Street
residence, also allowed him to reside in the Menomonee River Parkway residence
because “an individual does not commit a violation if he has established a
permanent or temporary residence and registered that residence” prior to the
enactment of the ordinance.
¶8 In
response, the Village filed a Reply Brief in Opposition to Motion to Dismiss
Citation on April 29, 2010. In its
brief, the Village agreed that Ferguson’s Main Street residence had been
excepted by Village of Menomonee
Falls, Wis., Code of Ordinances § 62-51(c)(3)b. However, the Village argued that once Ferguson moved to the Menomonee River Parkway
residence, he lost the protection of the grandfather clause exception in effect
for the Main Street
residence. The Village argued that the
Village Ordinance’s grandfather clause excepts only the residence, not the sex
offender, and thus Ferguson
violated the Village Ordinance when he moved from the excepted Main Street
residence to the unexcepted Menomonee
River Parkway residence.
¶9 The
circuit court denied Ferguson’s
motion to dismiss on
May 24, 2010. The court held that the
Village Ordinance’s grandfather clause exception allowed Ferguson to reside at the Main Street residence. However, the court interpreted the
grandfather clause exception to mean that a sex offender is no longer immune if
he or she moves to another residence after the ordinance’s date of
enactment. The matter proceeded to
trial.
¶10 At
trial on July 15, 2010, Ferguson
stipulated that he was an offender as the term is used throughout the Village
Ordinance. Ferguson
also admitted that from December 10, 2008, to the date of the trial, July 15,
2010, he resided at the Menomonee
River Parkway residence and registered that
residence with Wisconsin’s
Sex Offender Registry. However, Ferguson argued that
although the Menomonee River
Parkway residence was within 1500 feet of a child
safety zone as prohibited by the Village Ordinance, he was excepted by its
grandfather clause. Specifically,
because he was an offender “required to serve a sentence at a jail, prison,
juvenile facility, or other correctional institution,” Village of Menomonee Falls, Wis., Code of Ordinances § 62-51(c)(3)a, and
had also “established a permanent or temporary residence and reported and
registered that residence pursuant to Wis.
Stats. § 301.45 prior to the effective date of [the residency
restriction].” Village of Menomonee Falls, Wis., Code of Ordinances § 62-51(c)(3)b.
¶11 In
response, the Village noted that the latter half of Ferguson’s argument—that
his establishment of permanent or temporary residence allowed him to move
throughout the child safety zone—had been dismissed by the court at the motion
hearing on May 24, 2010, and was no longer at issue. The Village argued that if the court accepted
the former half of Ferguson’s
argument—that his time at jail, prison, juvenile facility, or correctional
institution allowed him to move throughout a child safety zone—it would
contravene the very purpose of the Village Ordinance and lead to an absurd
conclusion.
¶12 The
court determined that Ferguson’s Menomonee River Parkway residence was not
protected by the Village Ordinance’s grandfather clause exception. The court reasoned that the Village
Ordinance’s grandfather clause exception does not travel with the sex offender
to allow him or her to move wherever he or she wants within the prohibited 1500
foot area. Moreover, the court held that
if it accepted Ferguson’s argument—that his time at jail, prison, juvenile
facility, or correctional institution allowed him to move throughout a child
safety zone—it would cause an absurd result by which any offender who was
convicted and served time pursuant to any offense listed within the Village
Ordinance would be excepted from the ordinance.
Therefore, the court upheld the Menomonee Falls municipal court’s ruling
and found Ferguson
guilty of violating the Village Ordinance.
¶13 Ferguson
appeals.
II. Standard
of Review
¶14 This
matter requires interpretation of a municipal ordinance, which is a question of
law we ordinarily review de novo. Board
of Regents v. Dane Cnty. Bd. of Adjustment, 2000 WI App 211, ¶12, 238 Wis. 2d 810, 618 N.W.2d 537 (citing Marris v. City of Cedarburg, 176
Wis. 2d 14,
32, 498 N.W.2d 842 (1993)). De novo
review of an ordinance is especially appropriate when its interpretation will
likely have a statewide impact as a result of ordinances in other
municipalities with similar language. See Board of Regents, 238 Wis. 2d 810,
¶12.
¶15 The
rules of interpretation for a municipal ordinance are the same as those for a
statute. State v. Ozaukee Cnty. Bd. of
Adjustment, 152 Wis. 2d 552, 559, 449 N.W.2d 47 (Ct. App. 1989). The objective in interpreting legislation is
to reach a reasonable construction that will effectuate the purpose of the
legislation at issue. State ex rel. Melentowich v. Klink,
108 Wis. 2d 374, 380, 321 N.W.2d 272 (1982).
If the language of the ordinance is plain and clearly understood, the
court should apply its ordinary and accepted meaning. See Maier
v. Kalwitz, 134 Wis.
2d 207, 209-10, 397 N.W.2d 119 (Ct. App. 1986).
III. State
Residency Restrictions Limit Grandfather Clauses
¶16 At
issue here is a municipal residency restriction ordinance. See
Village
of Menomonee Falls, Wis.,
Code of Ordinances §
62-51(c)(1), (3). In Wisconsin, sex
offenders must register themselves and their address with the department of
corrections, Wis. Stat. § 301.45(1g), (2). However, Wisconsin does not have a sex offender
residency restriction statute. Instead, Wisconsin municipalities are allowed and commonly do enact
sex offender residency restriction ordinances.
See generally City
of Brookfield, Wis., Municipal Code § 9.34.030 (2011); Village of Brown Deer, Wis., Code
of Ordinances § 34-3 (2010); Village of Germantown, Wis., Municipal Code §
9.50 (2010); Village of Menomonee Falls, Wis., Code of Ordinances § 62-51.
¶17 Here,
the unambiguous language of the ordinance’s grandfather clause exception,
“[t]he offender has established a
permanent or temporary residence and
reported and registered that residence
… prior to the effective date” leads to the inescapable conclusion the
exception is for the residence and not the individual. See Village of
Menomonee Falls, Wis.,
Code of Ordinances § 62-51(c)(3)b.
¶18 This
conclusion is supported by reviewing how other jurisdictions have handled
similar sex offender residency restrictions.
We found particularly persuasive the Iowa Supreme Court’s interpretation
of an Iowa statute very similar to Menomonee Falls’ Village Ordinance.
¶19 Iowa’s statute prohibited
convicted sex offenders from living within 2000 feet of a school or child care
facility. State v. Finders, 743
N.W.2d 546, 548 (Iowa 2008). Like the
Village Ordinance, the statute contained a grandfather clause exemption for sex
offenders who established a residence within a prohibited area prior to the
enactment of the statute. See id. Prior
to the enactment of the statute, the defendant was found guilty of a sexual offense
against a minor and was subjected to the state’s sex offender registration
laws. Id. at 547. Also prior to the enactment of the statute,
the defendant had established a residence within a zone subsequently prohibited
by the statute. Id. As a result, the
defendant’s residence was exempted under the statute’s grandfather clause. Id. Following the enactment of the statute, the
defendant moved to another residence in the same prohibited area, within 2000
feet of a school or childcare facility. See
id. Because he no longer resided at an exempted
residence, the defendant was charged with violating the statute’s residency
restrictions and was found guilty. Id.
¶20 On
appeal, the Iowa Supreme Court affirmed the lower court’s ruling. Id. at 550. It held that the grandfather clause exemption
within a state sex offender residency restriction statute only exempted an
individual sex offender from the statute if the offender maintained the
residence he or she had prior to the enactment of the statute. Id. It explained its role in interpreting a
criminal statute was to “seek a reasonable interpretation that will best affect
the legislative purpose and avoid absurd results.” Id. at 548 (citations omitted). Thus, looking to the language of the statute,
it concluded that the grandfather clause exemption applied to sex offenders who
established “a residence,” meaning a specific residence, and that it did not
apply to a sex offender’s “residency” or “any residence” for that matter. Id. at 549. Therefore, the grandfather clause exemption
did not apply to a sex offender who once resided in an exempted residence but
moved to a new residence, even if the new residence was within the same
prohibited area. See id.
¶21 The
Iowa Supreme Court further explained that if it applied the grandfather clause
exemption to the individual instead of the residence, it would cause an absurd
result: allowing sex offenders to move
in and out of the same prohibited zone with impunity. Id. It stated that the purpose of the residency
restriction statute was to “reduce the high risk of recidivism posed by sex
offenders,” and the purpose of the grandfather clause was to “avoid the harsh
effect of the retroactive application of the two thousand foot rule.” Id. If the court were to interpret the
grandfather clause exemption to apply to the individual over the residence, it
would undermine the purpose behind the residency restriction statute. See id.
¶22 Similarly,
if this court were to interpret the Village Ordinance’s grandfather clause to
apply to Ferguson
as an individual instead of his residence, the purpose of the Village Ordinance
would be undermined. The purpose and
intent behind the Village Ordinance is to address recidivism “reducing
opportunity and temptation” for sex offenders and “to protect children where
they congregate or play in public places.”
Village of Menomonee Falls, Wis., Code of Ordinances § 62-51(a)(1). To achieve the ordinance’s purpose and
intent, “certain sexual offenders and sexual predators are prohibited from establishing
temporary or permanent residence” in areas around locations “where children
regularly congregate in concentrated numbers.” Sec. 62-51(a)(2). Several
municipalities surrounding the Village of Menomonee Falls passed sex offender
residency restriction ordinances with language similar to that of the Village
Ordinance, including its grandfather clause exception. See
generally City of Brookfield, Wis.,
Municipal Code § 9.34.030 (2011); Village of Brown Deer, Wis., Code
of Ordinances § 34-3 (2010); Village of Germantown, Wis., Municipal Code § 9.50 (2010).
¶23 We
agree with the rationale of the Iowa Supreme Court in Finders. If we were to interpret the Village
Ordinance’s grandfather clause exception to extend to an individual sex
offender instead of his or her residence, it would lead to an absurd result
undermining the very purpose of the Village Ordinance. We will not adopt such an absurd
interpretation. Though we could end our
discussion here, it is relevant to note that our interpretation of grandfather
clauses in Wisconsin
zoning ordinances also supports a narrow interpretation of the Village
Ordinance’s grandfather clause.
IV. Wisconsin
Zoning Ordinances Limit Grandfather Clauses
¶24 Although
there is no Wisconsin sex offender residency restriction statute or any law on
the subject of grandfather clauses in municipal sex offender residency
restriction ordinances, such restrictions are similar in nature to zoning
ordinances, many of which also contain grandfather clause exceptions. This court has previously held that a zoning
ordinance’s grandfather clause exception ends once there is a change of use
within that zoning area, thus, supporting a narrow interpretation of the
Village Ordinance’s grandfather clause.
¶25 In
Waukesha
County v. Pewaukee Marina, Inc., 187 Wis. 2d 18, 21, 24, 522 N.W.2d 536 (Ct. App.
1994), this court analyzed a zoning ordinance with a grandfather clause
exception in the context of conforming building and premises usage. In Pewaukee Marina, a county brought an
action against a marina owner for expanding and enlarging the use of his
property, which invalidated a county ordinance exception that allowed the owner
to maintain the property as a nonconforming use. Id. at 20. The marina owner argued that under Wisconsin statute, the county lacked valid authority to
invalidate his expansion or enlargement of his marina as an excepted
nonconforming use. Id.
Moreover, he alleged that the expansion or enlargement was valid because
the marina’s nonconforming use was not changed, but instead, improved. Id. The county, however, alleged that although it
lacked statutory authority, the purpose behind the relevant Wisconsin
statute was to protect the original use of premises, and thus, the county had
implied authority to restrict nonconforming uses of the particular premises
under the county ordinance. Id. at 22-23.
¶26 We
held that the county had the power to enact an ordinance that prohibited
nonconforming building and premise uses.
Id. at 20, 24. However,
we also concluded that the county could not prohibit nonconforming uses where
that nonconforming use existed prior to the enactment of the ordinance. Id. at 23-24
(citing State ex rel. Brill v. Mortenson, 6 Wis. 2d 325, 330, 94 N.W.2d 691
(1959)). We then reasoned that because
the county had the authority to regulate new, prohibited uses in effect after
the enactment of the ordinance, the owner’s expansion and enlargement of his
marina, which changed its excepted nonconforming use, violated the ordinance
and was subject to county regulation. Pewaukee
Marina, 187 Wis.
2d at 20, 24, 27. In short, we concluded
that, although a nonconforming use that was established before the enactment of
the ordinance is excepted from that ordinance, once that nonconforming use is
altered, it loses its protection. See id. at 24.
¶27 Similar
to the underlying purpose of zoning laws, sex offender residency restriction
ordinances aim to restrict and eliminate nonconforming uses, i.e., sex offenders
residing in prohibited areas. See id. at 29 (citing Waukesha
Cnty. v. Seitz, 140 Wis. 2d 111, 116, 409
N.W.2d 403 (Ct. App. 1987)). Thus,
according to Pewaukee Marina, if an excepted but nonconforming use is
altered, both the once excepted, nonconforming use and the subsequent change of
that use are invalid. Pewaukee
Marina, 187 Wis.
2d at 30-31. “As a matter of law, when
an owner of a nonconforming use modifies that use, the municipality is entitled
to terminate the entire nonconforming use.” Village
of Menomonee Falls v. Preuss, 225 Wis. 2d 746, 748, 593 N.W.2d 496 (Ct. App.
1999).
¶28 In
this case, the nonconforming use of Ferguson’s Main Street
residence—housing a sex offender within an area prohibited by the Village
Ordinance—was excepted by the ordinance’s grandfather clause until Ferguson modified the
excepted, nonconforming use by changing his residence. Therefore, the Village
of Menomonee Falls is entitled to
restrict Ferguson’s
nonconforming use and penalize him for violating the Village Ordinance.
¶29 We
conclude that the circuit court did not err when it denied Ferguson’s motion to
dismiss and issued a judgment finding Ferguson guilty of violating Village of Menomonee Falls, Wis., Code of
Ordinances § 62-51. The Village
Ordinance’s grandfather clause exception applies to the sex offender’s
residence, not the individual sex offender.
Analogous to this court’s jurisprudence on zoning laws, once an excepted
nonconforming use alters that use, it is no longer excepted and the
municipality has the authority to punish that violation. Therefore, once Ferguson, whose Main Street residence was excepted under
the ordinance, changed his residence to the Menomonee River Parkway residence, he
lost the protection of the exception and is prohibited from establishing a new
residence within 1500 feet of a child safety zone, even within the same child
safety zone.
By
the Court.—Judgment affirmed.