2023 Wisconsin Statutes & Annotations › Chapter 59 - Counties. › 59.69 - Planning and zoning authority.

59.69
Planning and zoning authority.
(1)
Purpose. It is the purpose of this section to promote the public health, safety, convenience and general welfare; to encourage planned and orderly land use development; to protect property values and the property tax base; to permit the careful planning and efficient maintenance of highway systems; to ensure adequate highway, utility, health, educational and recreational facilities; to recognize the needs of agriculture, forestry, industry and business in future growth; to encourage uses of land and other natural resources which are in accordance with their character and adaptability; to provide adequate light and air, including access to sunlight for solar collectors and to wind for wind energy systems; to encourage the protection of groundwater resources; to preserve wetlands; to conserve soil, water and forest resources; to protect the beauty and amenities of landscape and man-made developments; to provide healthy surroundings for family life; and to promote the efficient and economical use of public funds. To accomplish this purpose the board may plan for the physical development and zoning of territory within the county as set forth in this section and shall incorporate therein the master plan adopted under s. 62.23 (2) or (3) and the official map of any city or village in the county adopted under s. 62.23 (6).
(2)
Planning and zoning agency or commission.
(a)
1.
Except as provided under subd. 2., the board may create a planning and zoning committee as a county board agency or may create a planning and zoning commission consisting wholly or partially of persons who are not members of the board, designated the county zoning agency. In lieu of creating a committee or commission for this purpose, the board may designate a previously established committee or commission as the county zoning agency, authorized to act in all matters pertaining to county planning and zoning.
2.
If the board in a county with a county executive authorizes the creation of a county planning and zoning commission, designated the county zoning agency, the county executive shall appoint the commission, subject to confirmation by the board.
3.
If a county planning and zoning commission is created under subd. 2., the county executive may appoint, for staggered 3-year terms, 2 alternate members of the commission, who are subject to confirmation by the board. Annually, the county executive shall designate one of the alternate members as first alternate and the other as 2nd alternate. The first alternate shall act, with full power, only when a member of the commission 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 commission refuses to vote because of a conflict of interest or is absent.
(b)
From its members, the county zoning agency shall elect a chairperson whose term shall be for 2 years, and the county zoning agency may create and fill other offices.
(bm)
The head of the county zoning agency appointed under sub. (10) (b) 2. shall have the administrative powers and duties specified for the county zoning agency under this section, and the county zoning agency shall be only a policy-making body determining the broad outlines and principles governing such administrative powers and duties and shall be a quasi-judicial body with decision-making power that includes but is not limited to conditional use, planned unit development and rezoning. The building inspector shall enforce all laws, ordinances, rules and regulations under this section.
(bs)
As part of its approval process for granting a conditional use permit under this section, a county may not impose on a permit applicant a requirement that is expressly preempted by federal or state law.
(c)
Subject to change by the board, the county zoning agency may adopt such rules and regulations governing its procedure as it considers necessary or advisable. The county zoning agency shall keep a record of its planning and zoning studies, its resolutions, transactions, findings and determinations.
(cm)
In addition to the members who serve on, or are appointed to, a planning and zoning committee, commission, or agency under par. (a), the committee, commission, or agency shall also include, as a nonvoting member, a representative from a military base or installation, with at least 200 assigned military personnel or that contains at least 2,000 acres, that is located in the county, if the base's or installation's commanding officer appoints such a representative.
(d)
The county may accept, review and expend funds, grants and services and may contract with respect thereto and may provide such information and reports as may be necessary to secure such financial aid and services, and within such funds as may be made available, the county zoning agency may employ, or contract for the services of, such professional planning technicians and staff as are considered necessary for the discharge of the duties and responsibilities of the county zoning agency.
(e)
Wherever a public hearing is specified under this section, the hearing shall be conducted by the county zoning agency in the county courthouse or in such other appropriate place as may be selected by the county zoning agency. The county zoning agency shall give notice of the public hearing by publication in the county as a class 2 notice under ch. 985, and shall consider any comments made, or submitted by, the commanding officer, or the officer's designee, of a military base or installation, with at least 200 assigned military personnel or that contains at least 2,000 acres, that is located in or near the county.
(f)
Whenever a county development plan, part thereof or amendment thereto is adopted by, or a zoning ordinance or amendment thereto is enacted by, the board, a duplicate copy shall be certified by the clerk and sent to the municipal clerks of the municipalities affected thereby, and also to the commanding officer, or the officer's designee, of any military base or installation, with at least 200 assigned military personnel or that contains at least 2,000 acres, that is located in or near the county.
(g)
Neither the board nor the county zoning agency may condition or withhold approval of a permit under this section based upon the property owner entering into a contract, or discontinuing, modifying, extending, or renewing any contract, with a 3rd party under which the 3rd party is engaging in a lawful use of the property.
(3)
The county development plan.
(a)
The county zoning agency may direct the preparation of a county development plan or parts of the plan for the physical development of the unincorporated territory within the county and areas within incorporated jurisdictions whose governing bodies by resolution agree to having their areas included in the county's development plan. The plan may be adopted in whole or in part and may be amended by the board and endorsed by the governing bodies of incorporated jurisdictions included in the plan. The county development plan, in whole or in part, in its original form or as amended, is hereafter referred to as the development plan. To the extent that the development plan applies to unincorporated areas of a county with the population described in s. 60.23 (34), it applies only to those unincorporated areas that are subject to county zoning. Beginning on January 1, 2010, or, if the county is exempt under s. 66.1001 (3m), the date under s. 66.1001 (3m) (b), if the county engages in any program or action described in s. 66.1001 (3), the development plan shall contain at least all of the elements specified in s. 66.1001 (2).
(b)
The development plan shall include the master plan, if any, of any city or village, that was adopted under s. 62.23 (2) or (3) and the official map, if any, of such city or village, that was adopted under s. 62.23 (6) in the county, without change. In counties with a population of at least 485,000, the development plan shall also include, and integrate, the master plan and the official map of a town that was adopted under s. 60.62 (6) (a) or (b), without change.
(c)
The development plan may be in the form of descriptive material, reports, charts, diagrams or maps. Each element of the development plan shall describe its relationship to other elements of the plan and to statements of goals, objectives, principles, policies or standards.
(d)
The county zoning agency shall hold a public hearing on the development plan before approving it. After approval of the plan the county zoning agency shall submit the plan to the board for its approval and adoption. The plan shall be adopted by resolution and when adopted it shall be certified as provided in sub. (2) (f). The development plan shall serve as a guide for public and private actions and decisions to assure the development of public and private property in appropriate relationships.
(e)
Except for a town that has adopted a master plan and official map as described in par. (b), a master plan adopted under s. 62.23 (2) and (3) and an official map that is established under s. 62.23 (6) shall control in unincorporated territory in a county affected thereby, whether or not such action occurs before the adoption of a development plan.
(4)
Extent of power. For the purpose of promoting the public health, safety and general welfare the board may by ordinance effective within the areas within such county outside the limits of incorporated villages and cities establish districts of such number, shape and area, and adopt such regulations for each such district as the board considers best suited to carry out the purposes of this section. The board may establish mixed-use districts that contain any combination of uses, such as industrial, commercial, public, or residential uses, in a compact urban form. The board may not enact a development moratorium, as defined in s. 66.1002 (1) (b), under this section or s. 59.03, by acting under ch. 236, or by acting under any other law, except that this prohibition does not limit any authority of the board to impose a moratorium that is not a development moratorium. The powers granted by this section shall be exercised through an ordinance which may, subject to sub. (4e), determine, establish, regulate and restrict:
(a)
The areas within which agriculture, forestry, industry, mining, trades, business and recreation may be conducted, except that no ordinance enacted under this subsection may prohibit forestry operations that are in accordance with generally accepted forestry management practices, as defined under s. 823.075 (1) (d).
(b)
The areas in which residential uses may be regulated or prohibited.
(c)
The areas in and along, or in or along, natural watercourses, channels, streams and creeks in which trades or industries, filling or dumping, erection of structures and the location of buildings may be prohibited or restricted.
(d)
Trailer or tourist camps, motels, and manufactured and mobile home communities.
(e)
Designate certain areas, uses or purposes which may be subjected to special regulation.
(f)
The location of buildings and structures that are designed for specific uses and designation of uses for which buildings and structures may not be used or altered.
(g)
The location, height, bulk, number of stories and size of buildings and other structures.
(h)
The location of roads and schools.
(i)
Building setback lines.
(j)
Subject to s. 66.10015 (3), the density and distribution of population.
(k)
The percentage of a lot which may be occupied, size of yards, courts and other open spaces.
(L)
Places, structures or objects with a special character, historic interest, aesthetic interest or other significant value, historic landmarks and historic districts.
(m)
Burial sites, as defined in s. 157.70 (1) (b).
(4c)
Construction site ordinance limits. Except as provided in s. 101.1206 (5m), an ordinance that is enacted under sub. (4) may only include provisions that are related to construction site erosion control if those provisions are limited to sites described in s. 281.33 (3) (a) 1. a. and b.
(4d)
Antenna facilities. The board may not enact an ordinance or adopt a resolution on or after May 6, 1994, or continue to enforce an ordinance or resolution on or after May 6, 1994, that affects satellite antennas with a diameter of 2 feet or less unless one of the following applies:
(a)
The ordinance or resolution has a reasonable and clearly defined aesthetic or public health or safety objective.
(b)
The ordinance or resolution does not impose an unreasonable limitation on, or prevent, the reception of satellite-delivered signals by a satellite antenna with a diameter of 2 feet or less.
(c)
The ordinance or resolution does not impose costs on a user of a satellite antenna with a diameter of 2 feet or less that exceed 10 percent of the purchase price and installation fee of the antenna and associated equipment.
(4e)
Migrant labor camps. The board may not enact an ordinance or adopt a resolution that interferes with any of the following:
(a)
Any repair or expansion of migrant labor camps, as defined in s. 103.90 (3). An ordinance or resolution of the county that is in effect on September 1, 2001, and that interferes with any construction, repair, or expansion of migrant labor camps is void.
(b)
The construction of new migrant labor camps, as defined in s. 103.90 (3), that are built on or after September 1, 2001, on property that is adjacent to a food processing plant, as defined in s. 97.29 (1) (h), or on property owned by a producer of vegetables, as defined in s. 100.235 (1) (g), if the camp is located on or contiguous to property on which vegetables are produced or adjacent to land on which the producer resides.
(4f)
Amateur radio antennas. The board may not enact an ordinance or adopt a resolution on or after April 17, 2002, or continue to enforce an ordinance or resolution on or after April 17, 2002, that affects the placement, screening, or height of antennas, or antenna support structures, that are used for amateur radio communications unless all of the following apply:
(a)
The ordinance or resolution has a reasonable and clearly defined aesthetic, public health, or safety objective, and represents the minimum practical regulation that is necessary to accomplish the objectives.
(b)
The ordinance or resolution reasonably accommodates amateur radio communications.
(4g)
Airport areas. In a county which has created a county zoning agency under sub. (2) (a), the county's development plan shall include the location of any part of an airport, as defined in s. 62.23 (6) (am) 1. a., that is located in the county and of any part of an airport affected area, as defined in s. 62.23 (6) (am) 1. b., that is located in the county.
(4h)
Payday lenders.
(a)
Definitions. In this subsection:
1.
“Licensee" has the meaning given in s. 138.14 (1) (i).
2.
“Payday lender" means a business, owned by a licensee, that makes payday loans.
3.
“Payday loan" has the meaning given in s. 138.14 (1) (k).
(b)
Limits on locations of payday lenders. Except as provided in par. (c), no payday lender may operate in a county unless it receives a permit to do so from the county zoning agency, and the county zoning agency may not issue a permit to a payday lender if any of the following applies:
1.
The payday lender would be located within 1,500 feet of another payday lender.
2.
The payday lender would be located within 150 feet of a single-family or 2-family residential zoning district.
(c)
Exceptions.
1.
Paragraph (b) only applies in the unincorporated parts of the county which have not adopted a zoning ordinance as authorized under s. 60.62 (1).
2.
A county may regulate payday lenders by enacting a zoning ordinance that contains provisions that are more strict than those specified in par. (b).
3.
If a county has enacted an ordinance regulating payday lenders that is in effect on January 1, 2011, the ordinance may continue to apply and the county may continue to enforce the ordinance, but only if the ordinance is at least as restrictive as the provisions of par. (b).
4.
Notwithstanding the provisions of subd. 3., if a payday lender that is doing business on January 1, 2011, from a location that does not comply with the provisions of par. (b), the payday lender may continue to operate from that location notwithstanding the provisions of par. (b).
(4m)
Historic preservation.
(a)
Subject to pars. (b) and (bm), a county, as an exercise of its zoning and police powers for the purpose of promoting the health, safety and general welfare of the community and of the state, may regulate by ordinance any place, structure or object with a special character, historic interest, aesthetic interest or other significant value, for the purpose of preserving the place, structure or object and its significant characteristics. Subject to pars. (b), (bm), and (c), the county may create a landmarks commission to designate historic landmarks and establish historic districts. Subject to pars. (b) and (bm), the county may regulate all historic landmarks and all property within each historic district to preserve the historic landmarks and property within the district and the character of the district.
(b)
Before the county designates a historic landmark or establishes a historic district, the county shall hold a public hearing. If the county proposes to designate a place, structure, or object as a historic landmark or establish a historic district that includes a place, structure, or object, the county shall, by 1st class mail, notify the owner of the place, structure, or object of the determination and of the time and place of the public hearing on the determination.
(bm)
In the repair or replacement of a property that is designated as a historic landmark or included within a historic district or neighborhood conservation district under this subsection, a county shall permit an owner to use materials that are similar in design, color, scale, architectural appearance, and other visual qualities.
(c)
An owner of property that is affected by a decision of a county landmarks commission may appeal the decision to the board. The board may overturn a decision of the commission by a majority vote of the board.
(5)
Formation of zoning ordinance; procedure.
(a)
When the county zoning agency has completed a draft of a proposed zoning ordinance, it shall hold a public hearing thereon, following publication in the county of a class 2 notice under ch. 985. The proposed zoning ordinance may specify whether it would apply in all or part of a town's territory. If the proposed ordinance has the effect of changing the allowable use of any property, the notice shall include either a map showing the property affected by the ordinance or a description of the property affected by the ordinance and a statement that a map may be obtained from the zoning agency. After such hearing the agency may make such revisions in the draft as it considers necessary, or it may submit the draft without revision to the board with recommendations for adoption. Proof of publication of the notice of the public hearing held by such agency shall be attached to its report to the board.
(b)
When the draft of the ordinance, recommended for enactment by the zoning agency, is received by the board, it may enact the ordinance as submitted, or reject it, or return it to the agency with such recommendations as the board may see fit to make. The board may enact an ordinance that applies in all or part of a town's territory, including applying in all of the territory of some towns in the county and in only part of the territory of other towns in the county. In the event of such return subsequent procedure by the agency shall be as if the agency were acting under the original directions. When enacted, a copy of the ordinance shall be submitted by the clerk to each town clerk, under par. (g), for consideration by the town board.
(c)
A county ordinance enacted under this section shall not be effective in any town until it has been approved by the town board. If the town board approves an ordinance enacted by the county board, under this section, a certified copy of the approving resolution attached to one of the copies of such ordinance submitted to the town board shall promptly be filed with the county clerk by the town. The ordinance shall become effective in the town as of the date of the filing, which filing shall be recorded by the county clerk in the clerk's office, reported to the town board and the county board, and printed in the proceedings of the county board. The ordinance shall supersede any prior town ordinance in conflict therewith or which is concerned with zoning, except as provided by s. 60.62. A town board may withdraw from coverage of a county zoning ordinance as provided under s. 60.23 (34).
(d)
The board may by a single ordinance repeal an existing county zoning ordinance and reenact a comprehensive revision thereto in accordance with this section. “Comprehensive revision", in this paragraph, means a complete rewriting of an existing zoning ordinance which changes numerous zoning provisions and alters or adds zoning districts. The comprehensive revision may provide that the existing ordinance shall remain in effect in a town for a period of up to one year or until the comprehensive revision is approved by the town board, whichever period is shorter. If the town board fails to approve the comprehensive revision within a year neither the existing ordinance nor the comprehensive revision shall be in force in that town. Any repeal and reenactment prior to November 12, 1965, which would be valid under this paragraph is hereby validated.
(e)
The board may amend an ordinance or change the district boundaries. The procedure for such amendments or changes is as follows:
1.
A petition for amendment of a county zoning ordinance may be made by a property owner in the area to be affected by the amendment, by the town board of any town in which the ordinance is in effect; by any member of the board or by the agency designated by the board to consider county zoning matters as provided in sub. (2) (a). The petition shall be filed with the clerk who shall immediately refer it to the county zoning agency for its consideration, report and recommendations. Immediate notice of the petition shall be sent to the county supervisor of any affected district. A report of all petitions referred under this paragraph shall be made to the county board at its next succeeding meeting.
2.
Upon receipt of the petition by the agency it shall call a public hearing on the petition. Notice of the time and place of the hearing shall be given by publication in the county of a class 2 notice, under ch. 985. If an amendment to an ordinance, as described in the petition, has the effect of changing the allowable use of any property, the notice shall include either a map showing the property affected by the amendment or a description of the property affected by the amendment and a statement that a map may be obtained from the zoning agency. A copy of the notice shall be submitted by the clerk under par. (g) to the town clerk of each town affected by the proposed amendment at least 10 days prior to the date of such hearing. If the petition is for any change in an airport affected area, as defined in s. 62.23 (6) (am) 1. b., the agency shall mail a copy of the notice to the owner or operator of the airport bordered by the airport affected area.
3.
Except as provided under subd. 3m., if a town affected by the proposed amendment disapproves of the proposed amendment, the town board of the town may file a certified copy of the resolution adopted by the board disapproving of the petition with the agency before, at or within 10 days after the public hearing. If the town board of the town affected in the case of an ordinance relating to the location of boundaries of districts files such a resolution, or the town boards of a majority of the towns affected in the case of all other amendatory ordinances file such resolutions, the agency may not recommend approval of the petition without change, but may only recommend approval with change or recommend disapproval.
3m.
A town may extend its time for disapproving any proposed amendment under subd. 3. by 20 days if the town board adopts a resolution providing for the extension and files a certified copy of the resolution with the clerk of the county in which the town is located. The 20-day extension shall remain in effect until the town board adopts a resolution rescinding the 20-day extension and files a certified copy of the resolution with the clerk of the county in which the town is located.
4.
As soon as possible after the public hearing, the agency shall act, subject to subd. 3., on the petition either approving, modifying and approving, or disapproving it. If its action is favorable to granting the requested change or any modification thereof, it shall cause an ordinance to be drafted effectuating its determination and shall submit the proposed ordinance directly to the board with its recommendations. If the agency after its public hearing recommends denial of the petition it shall report its recommendation directly to the board with its reasons for the action. Proof of publication of the notice of the public hearing held by the agency and proof of the giving of notice to the town clerk of the hearing shall be attached to either report. Notification of town board resolutions filed under subd. 3. shall be attached to either such report.
5.
Upon receipt of the agency report the board may enact the ordinance as drafted by the zoning agency or with amendments, or it may deny the petition for amendment, or it may refuse to deny the petition as recommended by the agency in which case it shall rerefer the petition to the agency with directions to draft an ordinance to effectuate the petition and report the ordinance back to the board which may then enact or reject the ordinance.
5m.
If a proposed amendment under this paragraph would make any change in an airport affected area, as defined under s. 62.23 (6) (am) 1. b., and the owner or operator of the airport bordered by the airport affected area files a protest against the proposed amendment with the clerk at least 24 hours prior to the date of the meeting of the board at which the report of the zoning agency under subd. 4. is to be considered, no ordinance which makes such a change may be enacted except by the affirmative vote of two-thirds of the members of the board present and voting.
6.
If an amendatory ordinance makes only the change sought in the petition and if the petition was not disapproved prior to, at or within 10 days under subd. 3. or 30 days under subd. 3m., whichever is applicable, after the public hearing by the town board of the town affected in the case of an ordinance relating to the location of district boundaries or by the town boards of a majority of the towns affected in the case of all other amendatory ordinances, it shall become effective on passage. The county clerk shall record in the clerk's office the date on which the ordinance becomes effective and notify the town clerk of all towns affected by the ordinance of the effective date and also insert the effective date in the proceedings of the county board. The county clerk shall submit a copy of any other amendatory ordinance, under par. (g), within 7 days of its enactment, to the town clerk of each town in which lands affected by the ordinance are located. If after 40 days from the date of the enactment a majority of the towns have not filed certified copies of resolutions disapproving the amendment with the county clerk, or if, within a shorter time a majority of the towns in which the ordinance is in effect have filed certified copies of resolutions approving the amendment with the county clerk, the amendment shall be in effect in all of the towns affected by the ordinance. The county clerk shall submit under par. (g), within 7 days of its enactment, any ordinance relating to the location of boundaries of districts only to the town clerk of the town in which the lands affected by the change are located. Such an ordinance shall become effective 40 days after enactment of the ordinance by the county board unless such town board prior to such date files a certified copy of a resolution disapproving of the ordinance with the county clerk. If such town board approves the ordinance, the ordinance shall become effective upon the filing of the resolution of the town board approving the ordinance with the county clerk. The clerk shall record in the clerk's office the date on which the ordinance becomes effective and notify the town clerk of all towns affected by such ordinance of such effective date and also make such report to the county board, which report shall be printed in the proceedings of the county board.
7.
When any lands previously under the jurisdiction of a county zoning ordinance have been finally removed from such jurisdiction by reason of annexation to an incorporated municipality, and after the regulations imposed by the county zoning ordinance have ceased to be effective as provided in sub. (7), the board may, on the recommendation of its zoning agency, enact amendatory ordinances that remove or delete the annexed lands from the official zoning map or written descriptions without following any of the procedures provided in subds. 1. to 6., and such amendatory ordinances shall become effective upon enactment and publication. A copy of the ordinance shall be forwarded by the clerk to the clerk of each town in which the lands affected were previously located. Nothing in this paragraph shall be construed to nullify or supersede s. 66.1031.
(f)
The county zoning agency shall maintain a list of persons who submit a written or electronic request to receive notice of any proposed ordinance or amendment that affects the allowable use of the property owned by the person. Annually, the agency shall inform residents of the county that they may add their names to the list. The agency may satisfy this requirement to provide such information by any of the following means: publishing a 1st class notice under ch. 985; publishing on the county's Internet site; 1st class mail; or including the information in a mailing that is sent to all property owners. If the county zoning agency completes a draft of a proposed zoning ordinance under par. (a) or if the agency receives a petition under par. (e) 2., the agency shall send a notice, which contains a copy or summary of the proposed ordinance or petition, to each person on the list whose property, the allowable use or size or density requirements of which, may be affected by the proposed ordinance or amendment. The notice shall be by mail or in any reasonable form that is agreed to by the person and the agency, including electronic mail, voice mail, or text message. The agency may charge each person on the list who receives a notice by 1st class mail a fee that does not exceed the approximate cost of providing the notice to the person. An ordinance or amendment that is subject to this paragraph may take effect even if the agency fails to send the notice that is required by this paragraph.
(g)
1.
Except as provided in subd. 2., when a county clerk is required to submit materials to a town clerk as described in pars. (b) and (e) 2. and 6., the county clerk shall submit the materials by certified mail.
2.
A county clerk may submit to a town clerk by electronic mail the materials described in subd. 1. if the county clerk includes with the electronic mail a request that the town clerk promptly confirm receipt of the materials by return electronic mail. If the county clerk does not receive such confirmation within 2 business days, the county clerk shall submit the materials to the town clerk by certified mail.
(5e)
Conditional use permits.
(a)
In this subsection:
1.
“Conditional use” means a use allowed under a conditional use permit, special exception, or other special zoning permission issued by a county, but does not include a variance.
2.
“Substantial evidence” means facts and information, other than merely personal preferences or speculation, directly pertaining to the requirements and conditions an applicant must meet to obtain a conditional use permit and that reasonable persons would accept in support of a conclusion.
(b)
1.
If an applicant for a conditional use permit meets or agrees to meet all of the requirements and conditions specified in the county ordinance or those imposed by the county zoning board, the county shall grant the conditional use permit. Any condition imposed must be related to the purpose of the ordinance and be based on substantial evidence.
2.
The requirements and conditions described under subd. 1. must be reasonable and, to the extent practicable, measurable and may include conditions such as the permit's duration, transfer, or renewal. The applicant must demonstrate that the application and all requirements and conditions established by the county relating to the conditional use are or shall be satisfied, both of which must be supported by substantial evidence. The county's decision to approve or deny the permit must be supported by substantial evidence.
(c)
Upon receipt of a conditional use permit application, and following publication in the county of a class 2 notice under ch. 985, the county shall hold a public hearing on the application.
(d)
Once granted, a conditional use permit shall remain in effect as long as the conditions upon which the permit was issued are followed, but the county may impose conditions such as the permit's duration, transfer, or renewal, in addition to any other conditions specified in the zoning ordinance or by the county zoning board.
(e)
If a county denies a person's conditional use permit application, the person may appeal the decision to the circuit court under the procedures contained in s. 59.694 (10) (a), or if the decision is on an application for an approval, as defined in s. 781.10 (1) (a), under the procedures described in s. 59.694 (10) (b). Notwithstanding s. 59.694 (4), a county may provide by ordinance that the county's decision on a conditional use permit application is not reviewable by the board of adjustment and may be appealed directly to the circuit court under the procedures contained in s. 59.694 (10).
(5m)
Termination of county zoning.
(a)
Subject to par. (b), if a county clerk receives a notice from a town under s. 60.23 (34) (b) 1. before July 1 of the year before a year in which a town may withdraw from county zoning under s. 60.23 (34), a county board may enact an ordinance, before October 1 of the year in which the county clerk receives the notice, to repeal all of its zoning ordinances enacted under this section if it so notifies, in writing, all of the towns that are subject to its zoning ordinances. If a county does not repeal all of its zoning ordinances as described in this paragraph, it shall amend its zoning ordinances to specify that the ordinances do not apply in the town from which it received the notice.
(b)
An ordinance enacted under par. (a) shall have a delayed effective date of one year. No county board may repeal under this subsection a county shoreland zoning or floodplain zoning ordinance.
(6)
Optional additional procedures. Nothing in this section shall be construed to prohibit the zoning agency, the board or a town board from adopting any procedures in addition to those prescribed in this section and not in conflict therewith. Such procedures may, but are not required to, provide for public hearings before the county board. The public hearing provided by sub. (5) (a) and (e) 2. is deemed to be sufficient for the requirements of due process whether or not the county board holds a further public hearing thereafter.
(7)
Continued effect of ordinance. Whenever an area which has been subject to a county zoning ordinance petitions to become part of a city or village, the regulations imposed by the county zoning ordinance shall continue in effect, without change, and shall be enforced by the city or village until the regulations have been changed by official action of the governing body of the city or village, except that in the event an ordinance of annexation is contested in the courts, the county zoning shall prevail and the county shall have jurisdiction over the zoning in the area affected until ultimate determination of the court action.
(8)
Exchange of tax deeded lands. When a county acquires lands by tax deeds, the board may exchange such lands for other lands in the county for the purpose of promoting the regulation and restriction of agricultural and forestry lands and may exchange such lands for other lands for the purpose of creating a park or recreational area.
(9)
Zoning of county-owned lands.
(a)
The county board may by ordinance zone and rezone lands owned by the county without necessity of securing the approval of the town boards of the towns wherein the lands are situated and without following the procedure outlined in sub. (5), provided that the county board shall give written notice to the town board of the town wherein the lands are situated of its intent to so rezone and shall hold a public hearing on the proposed rezoning ordinance and give notice of the hearing by posting in 5 public places in the town.
(b)
This subsection does not apply to land that is subject to a town zoning ordinance which is purchased by the county for use as a solid or hazardous waste disposal facility or hazardous waste storage or treatment facility, as these terms are defined under s. 289.01.
(10)
Nonconforming uses.
(ab)
In this subsection “nonconforming use" means a use of land, a dwelling, or a building that existed lawfully before the current zoning ordinance was enacted or amended, but that does not conform with the use restrictions in the current ordinance.
(am)
An ordinance enacted under this section may not prohibit the continuance of the lawful use of any building, premises, structure, or fixture for any trade or industry for which such building, premises, structure, or fixture is used at the time that the ordinances take effect, but the alteration of, or addition to, or repair in excess of 50 percent of its assessed value of any existing building, premises, structure, or fixture for the purpose of carrying on any prohibited trade or new industry within the district where such buildings, premises, structures, or fixtures are located, may be prohibited. The continuance of the nonconforming use of a temporary structure may be prohibited. If the nonconforming use is discontinued for a period of 12 months, any future use of the building, premises, structure, or fixture shall conform to the ordinance.
(at)
Notwithstanding par. (am), a manufactured home community licensed under s. 101.935 that is a legal nonconforming use continues to be a legal nonconforming use notwithstanding the occurrence of any of the following activities within the community:
1.
Repair or replacement of homes.
2.
Repair or replacement of infrastructure.
(b)
1.
Except as provided under subd. 2., the board shall designate an officer to administer the zoning ordinance, who may be the secretary of the zoning agency, a building inspector appointed under s. 59.698 or other appropriate person.
2.
Notwithstanding subd. 1. and s. 59.698, in a county with a county zoning agency and a county executive or county administrator, the county executive or county administrator shall appoint and supervise the head of the county zoning agency and the county building inspector, in separate or combined positions. The appointment is subject to confirmation by the board unless the board, by ordinance, elects to waive confirmation or unless the appointment is made under a civil service system competitive examination procedure established under s. 59.52 (8) or ch. 63. The board, by resolution or ordinance, may provide that, notwithstanding s. 17.10 (6), the head of the county zoning agency and the county building inspector, whether serving in a separate or combined position, if appointed under this subdivision, may not be removed from his or her position except for cause.
3.
The officer designated under subd. 1. or 2. shall cause a record to be made immediately after the enactment of an ordinance or amendment thereto, or change in district boundary, approved by the town board, of all lands, premises and buildings in the town used for purposes not conforming to the regulations applicable to the district in which they are situated. The record shall include the legal description of the lands, the nature and extent of the uses therein, and the names and addresses of the owner or occupant or both. Promptly on its completion the record shall be published in the county as a class 1 notice, under ch. 985. The record, as corrected, shall be on file with the register of deeds 60 days after the last publication and shall be prima facie evidence of the extent and number of nonconforming uses existing on the effective date of the ordinance in the town. Corrections before the filing of the record with the register of deeds may be made on the filing of sworn proof in writing, satisfactory to the officer administering the zoning ordinance.
(c)
The board shall prescribe a procedure for the annual listing of nonconforming uses, discontinued or created, since the previous listing and for all other nonconforming uses. Discontinued and newly created nonconforming uses shall be recorded with the register of deeds immediately after the annual listing.
(d)
Paragraphs (b) and (c) shall not apply to counties issuing building permits or occupancy permits as a means of enforcing the zoning ordinance or to counties which have provided other procedures for this purpose.
(e)
1.
In this paragraph, “ amortization ordinance" means an ordinance that allows the continuance of the lawful use of a nonconforming building, premises, structure, or fixture that may be lawfully used as described under par. (am), but only for a specified period of time, after which the lawful use of such building, premises, structure, or fixture must be discontinued without the payment of just compensation.
2.
Subject to par. (am), an ordinance enacted under this section may not require the removal of a nonconforming building, premises, structure, or fixture by an amortization ordinance.
(10e)
Repair, rebuilding, and maintenance of certain nonconforming structures.
(a)
In this subsection:
1.
“Development regulations" means the part of a zoning ordinance that applies to elements including setback, height, lot coverage, and side yard.
2.
“Nonconforming structure" means a dwelling or other building that existed lawfully before the current zoning ordinance was enacted or amended, but that does not conform with one or more of the development regulations in the current zoning ordinance.
(b)
An ordinance may not prohibit, limit based on cost, or require a variance for the repair, maintenance, renovation, rebuilding, or remodeling of a nonconforming structure or any part of a nonconforming structure.
(10m)
Restoration of certain nonconforming structures.
(a)
Restrictions that are applicable to damaged or destroyed nonconforming structures and that are contained in an ordinance enacted under this section may not prohibit the restoration of a nonconforming structure if the structure will be restored to the size, subject to par. (b), location, and use that it had immediately before the damage or destruction occurred, or impose any limits on the costs of the repair, reconstruction, or improvement if all of the following apply:
1.
The nonconforming structure was damaged or destroyed on or after March 2, 2006.
2.
The damage or destruction was caused by violent wind, vandalism, fire, flood, ice, snow, mold, or infestation.
(b)
An ordinance enacted under this section to which par. (a) applies shall allow for the size of a structure to be larger than the size it was immediately before the damage or destruction if necessary for the structure to comply with applicable state or federal requirements.
(11)
Procedure for enforcement of county zoning ordinance. The board shall prescribe rules, regulations and administrative procedures, and provide such administrative personnel as it considers necessary for the enforcement of this section, and all ordinances enacted in pursuance thereof. The rules and regulations and the districts, setback building lines and regulations authorized by this section, shall be prescribed by ordinances which shall be declared to be for the purpose of promoting the public health, safety and general welfare. The ordinances shall be enforced by appropriate forfeitures. Compliance with such ordinances may also be enforced by injunctional order at the suit of the county or an owner of real estate within the district affected by the regulation.
(12)
Prior ordinances effective. Nothing in this section shall invalidate any county zoning ordinance enacted under statutes in effect before July 20, 1951.
(13)
Construction of section. The powers granted in this section shall be liberally construed in favor of the county exercising them, and this section shall not be construed to limit or repeal any powers now possessed by a county.
(14)
Limitation of actions. A landowner, occupant or other person who is affected by a county zoning ordinance or amendment, who claims that the ordinance or amendment is invalid because procedures prescribed by the statutes or the ordinance were not followed, shall commence an action within the time provided by s. 893.73 (1), except this subsection and s. 893.73 (1) do not apply unless there has been at least one publication of a notice of a zoning hearing in a local newspaper of general circulation and unless there has been held a public hearing on the ordinance or amendment at the time and place specified in the notice.
(15)
Community and other living arrangements. For purposes of this section, the location of a community living arrangement for adults, as defined in s. 46.03 (22), a community living arrangement for children, as defined in s. 48.743 (1), a foster home, as defined in s. 48.02 (6), or an adult family home, as defined in s. 50.01 (1), in any municipality, shall be subject to the following criteria:
(a)
No community living arrangement may be established after March 28, 1978, within 2,500 feet, or any lesser distance established by an ordinance of a municipality, of any other such facility. Agents of a facility may apply for an exception to this requirement, and such exceptions may be granted at the discretion of the municipality. Two community living arrangements may be adjacent if the municipality authorizes that arrangement and if both facilities comprise essential components of a single program.
(b)
1.
Community living arrangements shall be permitted in each municipality without restriction as to the number of facilities, so long as the total capacity of the community living arrangements does not exceed 25 or 1 percent of the municipality's population, whichever is greater. When the capacity of the community living arrangements in the municipality reaches that total, the municipality may prohibit additional community living arrangements from locating in the municipality. In any municipality, when the capacity of community living arrangements in an aldermanic district in a city or a ward in a village or town reaches 25 or 1 percent of the population, whichever is greater, of the district or ward, the municipality may prohibit additional community living arrangements from being located within the district or ward. Agents of a facility may apply for an exception to the requirements of this subdivision, and such exceptions may be granted at the discretion of the municipality.
2.
No community living arrangement may be established after January 1, 1995, within 2,500 feet, or any lesser distance established by an ordinance of the municipality, of any other such facility. Agents of a facility may apply for an exception to this requirement, and exceptions may be granted at the discretion of the municipality. Two community living arrangements may be adjacent if the municipality authorizes that arrangement and if both facilities comprise essential components of a single program.
(bm)
A foster home that is the primary domicile of a foster parent and that is licensed under s. 48.62 or an adult family home certified under s. 50.032 (1m) (b) shall be a permitted use in all residential areas and is not subject to pars. (a) and (b) except that foster homes operated by corporations, child welfare agencies, religious associations, as defined in s. 157.061 (15), associations, or public agencies shall be subject to pars. (a) and (b).
(br)
1.
No adult family home described in s. 50.01 (1) (b) may be established within 2,500 feet, or any lesser distance established by an ordinance of the municipality, of any other adult family home described in s. 50.01 (1) (b) or any community living arrangement. An agent of an adult family home described in s. 50.01 (1) (b) may apply for an exception to this requirement, and the exception may be granted at the discretion of the municipality.
2.
An adult family home described in s. 50.01 (1) (b) that meets the criteria specified in subd. 1. and that is licensed under s. 50.033 (1m) (b) is permitted in the municipality without restriction as to the number of adult family homes and may locate in any residential zone, without being required to obtain special zoning permission except as provided in par. (i).
(c)
If the community living arrangement has capacity for 8 or fewer persons being served by the program, meets the criteria listed in pars. (a) and (b), and is licensed, operated, or permitted under the authority of the department of health services or the department of children and families, that facility is entitled to locate in any residential zone, without being required to obtain special zoning permission except as provided in par. (i).
(d)
If the community living arrangement has capacity for 9 to 15 persons being served by the program, meets the criteria listed in pars. (a) and (b), and is licensed, or operated, or permitted under the authority of the department of health services or the department of children and families, the facility is entitled to locate in any residential area except areas zoned exclusively for single-family or 2-family residences, except as provided in par. (i), but is entitled to apply for special zoning permission to locate in those areas. The municipality may grant special zoning permission at its discretion and shall make a procedure available to enable such facilities to request such permission.
(e)
If the community living arrangement has capacity for serving 16 or more persons, meets the criteria listed in pars. (a) and (b), and is licensed, operated, or permitted under the authority of the department of health services or the department of children and families, that facility is entitled to apply for special zoning permission to locate in areas zoned for residential use. The municipality may grant special zoning permission at its discretion and shall make a procedure available to enable such facilities to request such permission.
(f)
The department of health services shall designate a single subunit within that department to maintain appropriate records indicating the location and the capacity of each community living arrangement for adults, and the information shall be available to the public. The department of children and families shall designate a single subunit within that department to maintain appropriate records indicating the location and the capacity of each community living arrangement for children, and the information shall be available to the public.
(g)
In this subsection, “ special zoning permission" includes, but is not limited to, the following: special exception, special permit, conditional use, zoning variance, conditional permit and words of similar intent.
(h)
The attorney general shall take action, upon the request of the department of health services or the department of children and families, to enforce compliance with this subsection.
(i)
Not less than 11 months nor more than 13 months after the first licensure of an adult family home under s. 50.033 or of a community living arrangement and every year thereafter, the common council or village or town board of a municipality in which a licensed adult family home or a community living arrangement is located may make a determination as to the effect of the adult family home or community living arrangement on the health, safety or welfare of the residents of the municipality. The determination shall be made according to the procedures provided under par. (j). If the common council or village or town board determines that the existence in the municipality of a licensed adult family home or a community living arrangement poses a threat to the health, safety or welfare of the residents of the municipality, the common council or village or town board may order the adult family home or community living arrangement to cease operation unless special zoning permission is obtained. The order is subject to judicial review under s. 68.13, except that a free copy of the transcript may not be provided to the licensed adult family home or community living arrangement. The licensed adult family home or community living arrangement shall cease operation within 90 days after the date of the order, or the date of final judicial review of the order, or the date of the denial of special zoning permission, whichever is later.
(im)
The fact that an individual with acquired immunodeficiency syndrome or a positive HIV test, as defined in s. 252.01 (2m), resides in a community living arrangement with a capacity for 8 or fewer persons may not be used under par. (i) to assert or prove that the existence of the community living arrangement in the municipality poses a threat to the health, safety or welfare of the residents of the municipality.
(j)
A determination under par. (i) shall be made after a hearing before the common council or village or town board. The municipality shall provide at least 30 days' notice to the licensed adult family home or the community living arrangement that such a hearing will be held. At the hearing, the licensed adult family home or the community living arrangement may be represented by counsel and may present evidence and call and examine witnesses and cross-examine other witnesses called. The common council or village or town board may call witnesses and may issue subpoenas. All witnesses shall be sworn by the common council, town board or village board. The common council or village or town board shall take notes of the testimony and shall mark and preserve all exhibits. The common council or village or town board may, and upon request of the licensed adult family home or the community living arrangement shall, cause the proceedings to be taken by a stenographer or by a recording device, the expense thereof to be paid by the municipality. Within 20 days after the hearing, the common council or village or town board shall mail or deliver to the licensed adult family home or the community living arrangement its written determination stating the reasons therefor. The determination shall be a final determination.
History:  1971 c. 40 s. 93; 1971 c. 86, 224; 1973 c. 274; 1977 c. 205; 1979 c. 233 ss. 2 to 5, 7 and 8; 1979 c. 323; 1981 c. 341, 354, 374; 1983 a. 192 s. 303 (1); 1983 a. 410; 1983 a. 532 s. 36; 1985 a. 29, 136, 196, 281, 316; 1987 a. 161, 395; 1989 a. 80, 201; 1991 a. 255, 269, 316; 1993 a. 16, 27, 246, 327, 400, 446, 491; 1995 a. 27 ss. 9130 (4), 9126 (19); 1995 a. 201 s. 475; Stats. 1995 s. 59.69; 1995 a. 225 s. 174; 1995 a. 227; 1997 a. 3, 35; 1999 a. 9, 148, 185; 2001 a. 16, 30, 50, 105; 2003 a. 214; 2005 a. 26, 79, 81, 112, 171, 208; 2007 a. 11; 2007 a. 20 ss. 1852 to 1857, 9121 (6) (a); 2009 a. 28, 209, 351, 372, 405; 2011 a. 32, 170; 2013 a. 20; 2013 a. 165 s. 115; 2015 a. 55, 176, 178, 214, 223, 391; 2017 a. 67, 317; 2019 a. 145; 2021 a. 240 s. 30; 2023 a. 16.
NOTE:  2003 Wis. Act 214, which affected this section, contains extensive explanatory notes.
A zoning ordinance may distinguish between foster homes and therapeutic homes for the care of children. Browndale International v. Board of Adjustment, 60 Wis. 2d 182, 208 N.W.2d 121 (1973).
A plaintiff is not required to exhaust administrative remedies when the plaintiff's claim is that a zoning ordinance is unconstitutional, but may ask for a declaratory judgment. An ordinance classifying land as agricultural when it is unfit for agriculture is unreasonable and amounts to a taking of the land without compensation. Kmiec v. Town of Spider Lake, 60 Wis. 2d 640, 211 N.W.2d 471 (1973).
A property owner does not acquire a “vested interest" in the continuance of a nonconforming use, and such status will be denied if the specific use was casual and occasional, or if the use was merely accessory or incidental to the principal use. Walworth County v. Hartwell, 62 Wis. 2d 57, 214 N.W.2d 288 (1974).
Under s. 59.97 (5) (c) [now sub. (5) (c)], a county zoning ordinance becomes effective in a town upon approval of the text by the town board and the filing of the approving resolution with the town clerk and not when it merely adopts a zoning map. Racine County v. Alby, 65 Wis. 2d 574, 223 N.W.2d 438 (1974).
Zoning ordinances, being in derogation of common law, are to be construed in favor of the free use of private property. Cohen v. Dane County Board of Adjustment, 74 Wis. 2d 87, 246 N.W.2d 112 (1976).
A municipality is not required to show irreparable injury before obtaining an injunction under s. 59.97 (11) [now sub. (11)]. County of Columbia v. Bylewski, 94 Wis. 2d 153, 288 N.W.2d 129 (1980).
Under s. 59.97 (9) [now sub. (9)], a county may rezone county-owned land contrary to town zoning laws and without town approval. Town of Ringle v. County of Marathon, 104 Wis. 2d 297, 311 N.W.2d 595 (1981).
The primary authority to enact, repeal, and amend a zoning ordinance is at the county, not town, level. The county is responsible for any liabilities that may arise from adoption. No liability arises to a town from the town's approval of a county ordinance enacted following the repeal of a prior effective ordinance. M&I Marshall Bank v. Town of Somers, 141 Wis. 2d 271, 414 N.W.2d 824 (1987).
When it is claimed that zoning resulted in a taking of land without compensation, there is no compensable taking unless the regulation resulted in a diminution of value so great that it amounts to a confiscation. M&I Marshall Bank v. Town of Somers, 141 Wis. 2d 271, 414 N.W.2d 824 (1987).
For purposes of determining a nonconforming use for a quarry site, all land that contains the mineral and is integral to the operation is included, although a particular portion may not be under actual excavation. Smart v. Dane County Board of Adjustment, 177 Wis. 2d 445, 501 N.W.2d 782 (1993).
The power to regulate nonconforming uses includes the power to limit the extension or expansion of the use if it results in a change in the character of the use. Waukesha County v. Pewaukee Marina, Inc., 187 Wis. 2d 18, 522 N.W.2d 536 (Ct. App. 1994).
When a zoning ordinance is changed, a builder may have a vested right, enforceable by mandamus, to build under the previously existing ordinance if the builder has submitted, prior to the change, an application for a permit in strict and complete conformance with the ordinance then in effect. Lake Bluff Housing Partners v. City of South Milwaukee, 197 Wis. 2d 157, 540 N.W.2d 189 (1995), 94-1155.
Unless the zoning ordinance provides otherwise, a court should measure the sufficiency of a conditional use application at the time that notice of the final public hearing is first given. Weber v. Town of Saukville, 209 Wis. 2d 214, 562 N.W.2d 412 (1997), 94-2336.
A permit issued for a use prohibited by a zoning ordinance is illegal per se. A conditional use permit only allows a property owner to put the property to a use that is expressly permitted as long as conditions have been met. A use begun under an illegal permit cannot be a prior nonconforming use. Foresight, Inc. v. Babl, 211 Wis. 2d 599, 565 N.W.2d 279 (Ct. App. 1997), 96-1964.
A nonconforming use, regardless of its duration, may be prohibited or restricted if it also constitutes a public nuisance or is harmful to public health, safety, or welfare. Town of Delafield v. Sharpley, 212 Wis. 2d 332, 568 N.W.2d 779 (Ct. App. 1997), 96-2458.
A county executive's power to veto ordinances and resolutions extends to rezoning petitions that are in essence proposed amendments to the county zoning ordinance. The veto is subject to limited judicial review. Schmeling v. Phelps, 212 Wis. 2d 898, 569 N.W.2d 784 (Ct. App. 1997), 96-2661.
Sub. (11) does not eliminate the traditional equitable power of a circuit court. It is within the power of the court to deny a county's request for injunctive relief when a zoning ordinance violation is proven. The court should take evidence and weigh equitable considerations including that of the state's citizens. Forest County v. Goode, 219 Wis. 2d 654, 579 N.W.2d 715 (1998), 96-3592.
Construction in violation of zoning regulations, even when authorized by a voluntarily issued permit, is unlawful. However, in rare cases, there may be compelling equitable reasons when a requested order of abatement should not be issued. Lake Bluff Housing Partners v. City of South Milwaukee, 222 Wis. 2d 222, 588 N.W.2d 45 (Ct. App. 1998), 97-1339.
A conditional use permit did not impose a condition that the conditional use not be conducted outside the permitted area. It was improper to revoke the permit based on that use. An enforcement action in relation to the parcel where the use was not permitted was an appropriate remedy. Bettendorf v. St. Croix County Board of Adjustment, 224 Wis. 2d 735, 591 N.W.2d 916 (Ct. App.1999), 98-2327.
Once a municipality has shown an illegal change in use to a nonconforming use, the municipality is entitled to terminate the entire nonconforming use. The decision is not within the discretion of the court reviewing the order. Village of Menomonee Falls v. Preuss, 225 Wis. 2d 746, 593 N.W.2d 496 (Ct. App. 1999), 98-0384.
To violate substantive due process guarantees, a zoning decision must involve more than simple errors in law or an improper exercise of discretion; it must shock the conscience. The city's violation of a purported agreement regarding zoning was not a violation. A court cannot compel a political body to adhere to an agreement regrading zoning if that body has legitimate reasons for breaching. Eternalist Foundation, Inc. v. City of Platteville, 225 Wis. 2d 759, 593 N.W.2d 84 (Ct. App. 1999), 98-1944.
While the Department of Natural Resources has the authority to regulate the operation of game farms, its authority does not negate the power to enforce zoning ordinances against game farms. Both are applicable. Willow Creek Ranch v. Town of Shelby, 2000 WI 56, 235 Wis. 2d 409, 611 N.W.2d 693, 97-2075.
Financial investment is a factor to consider when determining whether a zoning violation must be abated, but it does not outweigh all other equitable factors to be considered. Lake Bluff Housing Partners v. City of South Milwaukee, 2001 WI App 150, 246 Wis. 2d 785, 632 N.W.2d 485, 00-1958.
A change in method or quantity of production of a nonconforming use is not a new use when the original character of the use remains the same. The incorporation of modern technology into the business of the operator of a nonconforming use is allowed. Racine County v. Cape, 2002 WI App 19, 250 Wis. 2d 44, 639 N.W.2d 782, 01-0740.
While a mere increase in the volume, intensity, or frequency of a nonconforming use is not sufficient to invalidate it, if the increase in volume, intensity, or frequency of use is coupled with some identifiable change or extension, the enlargement will invalidate a legal nonconforming use. A proposed elimination of cabins and the expansion from 21 to 44 RV sites was an identifiable change in a campground and extension of the use for which it had been licensed. Lessard v. Burnett County Board of Adjustment, 2002 WI App 186, 256 Wis. 2d 821, 649 N.W.2d 728, 01-2986.
To find discontinuance of a nonconforming use, proof of intent to abandon the nonconforming use is not required. Lessard v. Burnett County Board of Adjustment, 2002 WI App 186, 256 Wis. 2d 821, 649 N.W.2d 728, 01-2986.
A conditional use permit (CUP) is not a contract. A CUP is issued under an ordinance. A municipality has discretion to issue a permit and the right to seek enforcement of it. Noncompliance with the terms of a CUP is tantamount to noncompliance with the ordinance. Town of Cedarburg v. Shewczyk, 2003 WI App 10, 259 Wis. 2d 818, 656 N.W.2d 491, 02-0902.
Spot zoning grants privileges to a single lot or area that are not granted or extended to other land in the same use district. Spot zoning is not per se illegal but, absent any showing that a refusal to rezone will in effect confiscate the property by depriving all beneficial use thereof, should only be indulged in when it is in the public interest and not solely for the benefit of the property owner who requests the rezoning. Step Now Citizens Group v. Town of Utica, 2003 WI App 109, 264 Wis. 2d 662, 663 N.W.2d 833, 02-2760.
The failure to comply with an ordinance's notice requirements, when all statutory notice requirements were met, did not defeat the purpose of the ordinance's notice provision. Step Now Citizens Group v. Town of Utica, 2003 WI App 109, 264 Wis. 2d 662, 663 N.W.2d 833, 02-2760.
Under Goode, 219 Wis. 2d 654 (1998), a landowner may contest whether he or she is in violation of the zoning ordinance and, if so, can further contest on equitable grounds the enforcement of a sanction for the violation. Town of Delafield v. Winkelman, 2004 WI 17, 269 Wis. 2d 109, 675 N.W.2d 470, 02-0979.
A municipality cannot be estopped from seeking to enforce a zoning ordinance, but a circuit court has authority to exercise its discretion in deciding whether to grant enforcement. Upon the determination of an ordinance violation, the proper procedure for a circuit court is to grant an injunction enforcing the ordinance, except when it is presented with compelling equitable reasons to deny it. Village of Hobart v. Brown County, 2005 WI 78, 281 Wis. 2d 628, 698 N.W.2d 83, 03-1907.
An existing conditional use permit (CUP) is not a vested property right and the revocation of the permit is not an unconstitutional taking. A CUP merely represents a species of zoning designations. Because landowners have no property interest in zoning designations applicable to their properties, a CUP is not property and no taking occurs by virtue of a revocation. Rainbow Springs Golf Company, Inc. v. Town of Mukwonago, 2005 WI App 163, 284 Wis. 2d 519, 702 N.W.2d 40, 04-1771.
A municipality may not effect a zoning change by simply printing a new map marked “official map." Village of Hobart v. Brown County, 2007 WI App 250, 306 Wis. 2d 263, 742 N.W.2d 907, 07-0891.
Zoning that restricts land so that the landowner has no permitted use as of right must bear a substantial relation to the health, safety, morals, or general welfare of the public in order to withstand constitutional scrutiny. Town of Rhine v. Bizzell, 2008 WI 76, 311 Wis. 2d 1, 751 N.W.2d 780, 06-0450.
Having a vested interest in the continuance of a use is fundamental to protection of a nonconforming use. There can be no vested interest if the use is not actually and actively occurring at the time the ordinance amendment takes effect. However, it does not follow that any use that is actually occurring on the effective date of the amendment is sufficient to give the owner a vested interest in its continued use. To have a vested interest in the continuation of a use requires that if the continuance of the use were to be prohibited, substantial rights would be adversely affected, which will ordinarily mean that there has been a substantial investment in the use. The longevity of a use and the degree of development of a use are subsumed in an analysis of what investments an owner has made, rather than separate factors to be considered. Town of Cross Plains v. Kitt's “Field of Dreams" Korner, Inc., 2009 WI App 142, 321 Wis. 2d 671, 775 N.W.2d 283, 08-0546.
There must be reasonable reliance on the existing law in order to acquire a vested interest in a nonconforming use. Reasonable reliance on the existing law was not present when the owners knew the existing law was soon to change at the time the use was begun. Town of Cross Plains v. Kitt's “Field of Dreams" Korner, Inc., 2009 WI App 142, 321 Wis. 2d 671, 775 N.W.2d 283, 08-0546.
The town board's recommendation on a form that was signed by the town board and clerk and dated but not certified as a resolution by the town clerk did not effectively satisfy the statutory elements of a certified copy of a resolution under sub. (5) (e) 3. Although the legislature intended the town board to serve as a political check on the otherwise unfettered discretion of the county board in wielding its legislative zoning power, it prescribed a specific procedure by which towns perform that function. Johnson v. Washburn County, 2010 WI App 50, 324 Wis. 2d 366, 781 N.W.2d 706, 09-0371.
When a village eliminated the selling of cars as a conditional use in general business districts, a previously granted conditional use permit (CUP) was voided, the property owner was left with a legal nonconforming use to sell cars, and the village could not enforce the strictures of the CUP against the property owner. Therefore, the owner could continue to sell cars in accordance with the historical use of the property, but if the use were to go beyond the historical use of the property, the village could seek to eliminate the property's status as a legal nonconforming use. Hussein v. Village of Germantown Board of Zoning Appeals, 2011 WI App 96, 334 Wis. 2d 764, 800 N.W.2d 551, 10-2178.
A county has the authority under both subs. (1) and (4) and s. 59.70 (22) to enact ordinances regulating billboards and other similar structures. When a town approves a county zoning ordinance under sub. (5) (c) that includes a billboard ordinance, the town's billboard ordinance adopted under s. 60.23 (29) does not preempt a county's authority to regulate billboards in that town. Adams Outdoor Advertising, L.P. v. County of Dane, 2012 WI App 28, 340 Wis. 2d 175, 811 N.W.2d 421, 10-0178.
A municipality has the flexibility to regulate land use through zoning up until the point when a developer obtains a building permit. Once a building permit has been obtained, a developer may make expenditures in reliance on a zoning classification. Wisconsin follows the bright-line building permit rule that a property owner's rights do not vest until the developer has submitted an application for a building permit that conforms to the zoning or building code requirements in effect at the time of application. McKee Family I, LLC v. City of Fitchburg, 2017 WI 34, 366 Wis. 2d 329, 873 N.W.2d 99, 14-1914.
The building permit rule is a bright-line rule vesting the right to use property consistent with current zoning at the time a building permit application that strictly conforms to all applicable zoning regulations is filed. The rule extends to all land specifically identified in a building permit application as part of the project. Golden Sands Dairy LLC v. Town of Saratoga, 2018 WI 61, 381 Wis. 2d 704, 913 N.W.2d 118, 15-1258.
Whether an association has authority to maintain an enforcement action under sub. (11) is not based upon the law of standing itself, but rather on the text of the statute. In this case, a lake association did not fall within the statutory categories of individuals that may maintain an action to enforce a county ordinance, and it had no authority to bring an enforcement action under sub. (11). Carlin Lake Ass'n v. Carlin Club Properties, LLC, 2019 WI App 24, 387 Wis. 2d 640, 929 N.W.2d 228, 17-2439.
A party pursuing an enforcement action under sub. (11) need not wait until a county zoning violation has actually occurred before seeking an injunction. Instead, the party must show a “sufficient probability” that a county zoning ordinance violation will occur. Carlin Lake Ass'n v. Carlin Club Properties, LLC, 2019 WI App 24, 387 Wis. 2d 640, 929 N.W.2d 228, 17-2439.
The following factors are relevant to a court's determination of whether it is equitable to enjoin a violation of a county zoning ordinance: 1) the interest of the citizens of the jurisdiction that has established the zoning requirements in enforcing the requirements; 2) the extent of the zoning violation; 3) whether the parties to the action have acted in good faith; 4) whether the violator of the zoning requirements has available any other equitable defenses, such as laches, estoppel, or unclean hands; 5) the degree of hardship compliance with the zoning requirements will create; and 6) what role, if any, the government played in contributing to the violation. Carlin Lake Ass'n v. Carlin Club Properties, LLC, 2019 WI App 24, 387 Wis. 2d 640, 929 N.W.2d 228, 17-2439.
Nothing in sub. (11) reanimates void conditions. Landowners therefore enjoy no better footing than a county in an attempt to enforce unlawful conditions. Enbridge Energy Co. v. Dane County, 2019 WI 78, 387 Wis. 2d 687, 929 N.W.2d 572, 16-2503.
Wisconsin law requires two elements for abandonment of a legal nonconforming use: 1) actual cessation of the nonconforming use; and 2) an intent to abandon the nonconforming use. In this case, the property owner sought and obtained rezoning from agricultural to residential; entered into a subdivision development agreement restricting the property to residential use; recorded a declaration of covenants, conditions, and restrictions that explicitly stated that the property owner intended to develop a subdivision for residences; installed residential infrastructure; and built two homes on the property. Although the property owner's specific acts may have signified an intent to abandon the nonconforming use, the undisputed fact that the property owner continued farming on the property after the rezoning confirmed that there was no actual cessation of the nonconforming use. Village of Slinger v. Polk Properties, LLC, 2021 WI 29, 396 Wis. 2d 342, 957 N.W.2d 229, 17-2244.
The statutory razing requirements under s. 66.0413 do not limit or otherwise affect a circuit court's authority to grant injunctive relief requested by a county under sub. (11). Waupaca County v. Golla, 2022 WI App 40, 404 Wis. 2d 141, 978 N.W.2d 558, 21-1076.
In this case, the circuit court did not improperly consider deterrence as a factor to support an injunction under sub. (11). Waupaca County v. Golla, 2022 WI App 40, 404 Wis. 2d 141, 978 N.W.2d 558, 21-1076.
The fact that a county is within a regional planning commission does not affect county zoning power. 61 Atty. Gen. 220.
Discussing the authority of a county to regulate mobile homes under this section and other zoning questions. 62 Atty. Gen. 292.
Zoning ordinances utilizing definitions of “family" to restrict the number of unrelated persons who may live in a single family dwelling are of questionable constitutionality. 63 Atty. Gen. 34.
Under s. 59.97 (5) (c) [now sub. (5) (c)], town board approval of a comprehensive county zoning ordinance must extend to the ordinance in its entirety and may not extend only to parts of the ordinance. 63 Atty. Gen. 199.
A county that has enacted a countywide comprehensive zoning ordinance under this section may not authorize the withdrawal of town approval of the ordinance or exclude any town from the ordinance. 67 Atty. Gen. 197.
The office of county planning and zoning commission member is incompatible with the position of executive director of the county housing authority. 81 Atty. Gen. 90.
An amendment to a county zoning ordinance adding a new zoning district does not necessarily constitute a comprehensive revision requiring town board approval of the entire ordinance under s. 59.97 (5) (d) [now sub. (5) (d)]. 81 Atty. Gen. 98.
A county's power under sub. (4) is broad enough to encompass regulation of the storage of junked, unused, unlicensed, or abandoned motor vehicles on private property. Because sub. (10) protects “trade or industry," a county zoning ordinance could prohibit an existing non-commercial, nonconforming use or a use that is “casual and occasional." OAG 2-00.
A county's minimum lot size zoning ordinance applies to parcels created by a court through division in a partition or probate action, even if such division would be exempted from a municipality's subdivision authority under s. 236.45 (2) (am) 1. OAG 1-14.
A county is not prohibited from imposing elements of its general zoning ordinance in the shorelands in a town even if the town has not adopted the county's general zoning ordinance under sub. (5) (c), so long as those elements are consistent with s. 59.692. OAG 1-19.
A county's application of its comprehensive zoning ordinance to fee simple land held by tribal members within a reservation violates federal Indian law. Red Cliff Band of Lake Superior Chippewa Indians v. Bayfield County, 432 F. Supp. 3d 889 (2020).
Zoning Law: Architectural Appearance Ordinances and the First Amendment. Rice. 76 MLR 439 (1993).