Sub. (7a) authorizes transfer of zoning administration and enforcement to cities and villages upon enactment of an interim extraterritorial ordinance. Filing an application for a conditional use permit prior to adoption of the interim ordinance did not prevent the transfer of decision making; the applicant had no vested right by virtue of having requested a permit whose issuance was discretionary. Village of DeForest v. County of Dane, 211 NW (2d) 802, 565 NW (2d) 296 (Ct. App. 1997).
An area variance and an use variance each require unnecessary hardship, but there is an "unnecessarily burdensome" test for an area variance while the test for a use variance is "no feasible use". State v. Kenosha County Board of Adjustment, 212 W (2d) 310, 569 NW (2d) 54 (Ct. App. 1997).
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 W (2d) 332, 569 NW (2d) 784 (Ct. App. 1997).
The legal standard of unnecessary hardship requires that the property owner demonstrate that without a variance there is no reasonable use for the property. When the property owner has a reasonable use for the property, the statute takes precedence and the variance should be denied. State v. Kenosha County Board of Adjustment, 218 W (2d) 396, 577 NW (2d) 813 (1998).
A certiorari action exists only to test the validity of judicial or quasi-judicial determinations. It does not allow for answers, denials or defenses by the respondent. Merkel v. Village of Germantown, 218 W (2d) 572, 581 NW (2d) 552 (Ct. App. 1998).
Sub. (7) (e) 6. does not mandate a hearing for each variance application--only those which satisfy the legal requirements for applications. A city rule that a variance request would not be reheard unless accompanied by evidence of a substantial change of circumstances did not violate due process or equal protection guarantees. Denial of a variance based on the rule was not arbitrary and capricious. Tateoka v. City of Waukesha Board of Zoning Appeals, 220 W (2d) 656, 583 NW (2d) 873 (Ct. App. 1998).
Zoning ordinances may be applied to land held by the U.S. for an Indian tribe so long as they do not conflict with a federal treaty, agreement or statute and the land use proscribed is not a federal governmental function. 58 Atty. Gen. 91.
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.
County shoreland zoning of unincorporated areas adopted under s. 59.971 [now 59.692] is not superseded by municipal extraterritorial zoning under s. 62.23 (7a). Sections 59.971, 62.23 (7), (7a) and 144.26 [now 281.31] discussed. Municipal extraterritorial zoning within shorelands is effective insofar as it is consistent with, or more restrictive than, the county shoreland zoning regulations. 63 Atty. Gen. 69.
Extraterritorial zoning under (7a) discussed. 67 Atty. Gen. 238.
A city's ban on almost all residential signs violated the right of free speech. City of LaDue v. Gilleo, 512 US 43, 129 LEd 2d 22 (1994).
Plaintiffs were not required to exhaust administrative remedies under sub. (7) (e) before bringing a civil rights act suit challenging the definition of "family" as used in that portion of a village zoning ordinance creating single-family residential zones, since plaintiffs' claim was based on federal law. Timberlake v. Kenkel, 369 F Supp. 456.
The denial of a permit for a 2nd residential facility within a 2,500 foot radius pursuant to sub. (7) (i) 1. which had the effect of precluding handicapped individuals, absent evidence of adverse impact on the legislative goals of the statute or of a burden upon the village, constituted a failure to make reasonable accommodations in violation of federal law. U.S. v. Village of Marshall, 787 F Supp. 872 (1992).
The necessity of a zoning variance or amendments notice to the Wisconsin department of natural resources under the shoreland zoning and navigable waters protection acts. Whipple, 57 MLR 25.
Architectural Appearances Ordinances and the 1st Amendment. Rice. 76 MLR 439 (1992).
Zoning of wetlands in shorelands. 62.231(1)
As used in this section:
(2) Filled wetlands.
Any wetlands which are filled prior to the date on which a city receives a final wetlands map from the department of natural resources in a manner which affects their characteristics as wetlands are filled wetlands and not subject to an ordinance adopted under this section.
(2m) Certain wetlands on landward side of an established bulkhead line.
Any wetlands on the landward side of a bulkhead line, established by the city under s. 30.11
prior to May 7, 1982, and between that bulkhead line and the ordinary high-water mark are exempt wetlands and not subject to an ordinance adopted under this section.
(3) Adoption of ordinance.
To effect the purposes of s. 281.31
and to promote the public health, safety and general welfare, each city shall zone by ordinance all unfilled wetlands of 5 acres or more which are shown on the final wetland inventory maps prepared by the department of natural resources for the city under s. 23.32
, which are located in any shorelands and which are within its incorporated area. A city may zone by ordinance any unfilled wetlands which are within its incorporated area at any time.
Powers and procedures.
Except as provided under sub. (5)
, s. 62.23
applies to ordinances and amendments enacted under this section.
Impact on other zoning ordinances.
If a city ordinance enacted under s. 62.23
affecting wetlands in shorelands is more restrictive than an ordinance enacted under this section affecting the same lands, it continues to be effective in all respects to the extent of the greater restrictions, but not otherwise.
(5) Repair and expansion of existing structures permitted.
Notwithstanding s. 62.23 (7) (h)
, an ordinance adopted under this section may not prohibit the repair, reconstruction, renovation, remodeling or expansion of a nonconforming structure in existence on the effective date of an ordinance adopted under this section or any environmental control facility in existence on May 7, 1982 related to that structure.
(6) Failure to adopt ordinance.
If any city does not adopt an ordinance required under sub. (3)
within 6 months after receipt of final wetland inventory maps prepared by the department of natural resources for the city under s. 23.32
, or if the department of natural resources, after notice and hearing, determines that a city adopted an ordinance which fails to meet reasonable minimum standards in accomplishing the shoreland protection objectives of s. 281.31 (1)
, the department of natural resources shall adopt an ordinance for the city. As far as applicable, the procedures set forth in s. 87.30
apply to this subsection.
The legal standard of unnecessary hardship requires that the property owner demonstrate that without a variance there is no reasonable use for the property. When the property owner has a reasonable use for the property, the statue takes precedence and the variance should be denied. State v. Kenosha County Board of Adjustment, 218 W (2d) 396, 577 NW (2d) 813 (1998).
Construction site erosion control and storm water management zoning. 62.234(1)
As used in this section, "department" means the department of natural resources.
(2) Authority to enact ordinance.
To effect the purposes of s. 281.33
and to promote the public health, safety and general welfare, a city may enact a zoning ordinance, that is applicable to all of its incorporated area, for construction site erosion control at sites where the construction activities do not include the construction of a building and for storm water management. This ordinance may be enacted separately from ordinances enacted under s. 62.23
(4) Applicability of city zoning provisions. 62.234(4)(a)(a)
Except as otherwise specified in this section, s. 62.23
applies to any ordinance or amendment to an ordinance enacted under this section.
Variances and appeals regarding construction site erosion control or storm water management regulations under this section are to be determined by the board of appeals for that city. Procedures under s. 62.23 (7) (e)
apply to these determinations.
An ordinance enacted under this section supersedes all provisions of an ordinance enacted under s. 62.23
that relate to construction site erosion control at sites where the construction activities do not include the construction of a building or to storm water management regulation.
(5) Applicability of comprehensive zoning plan or general zoning ordinance.
Ordinances enacted under this section shall accord and be consistent with any comprehensive zoning plan or general zoning ordinance applicable to the enacting cities, so far as practicable.
(6) Applicability of local subdivision regulation.
All powers granted to a city under s. 236.45
may be exercised by it with respect to construction site erosion control at sites where the construction activities do not include the construction of a building or with respect to storm water management regulation, if the city has or provides a planning commission or agency.
(7) Applicability to local governments and agencies.
An ordinance enacted under this section is applicable to activities conducted by a unit of local government and an agency of that unit of government. An ordinance enacted under this section is not applicable to activities conducted by an agency, as defined under s. 227.01 (1)
but also including the office of district attorney, which is subject to the state plan promulgated or a memorandum of understanding entered into under s. 281.33 (2)
Except as provided in par. (c)
, s. 66.30
applies to this section, but for the purposes of this section any agreement under s. 66.30
shall be effected by ordinance.
If a city is served by a regional planning commission under s. 66.945
and if the commission consents, the city may empower the commission by ordinance to administer the ordinance enacted under this section throughout the city, whether or not the area otherwise served by the commission includes all of that city.
If a city is served by the Dane county lakes and watershed commission, and if the commission consents, the city may empower the commission by ordinance to administer the ordinance enacted under this section throughout the city, whether or not the area otherwise served by the commission includes all of that city. Section 66.30
does not apply to this paragraph.
Claims and actions. 62.25(1)(1)
No action may be brought or maintained against a city upon a claim or cause of action unless the claimant complies with s. 893.80
. This subsection does not apply to actions commenced under s. 19.37
Damages, if any, in an action against a city officer in the officer's official capacity, except the action directly involve the title to the officer's office, shall not be awarded against such officer, but may be awarded against the city.
In an action to restrain payment by a city for work performed or material furnished, the plaintiff shall give a bond conditioned for payment to the claimant, if the action is finally determined in the claimant's favor, of damages caused by the delay, including expense incurred in the action, and interest. The bond shall be with 2 sureties to be approved by the court, and in an amount fixed by the court and sufficient to cover all probable damages.
No person shall be ineligible to sit as judge, justice or juror in an action to which the city is a party, by reason of being an inhabitant of the city.
Cross-references: As to filing claims and demands against the city, see s. 62.12 (8).
For an alternative system of approving claims, see s. 66.044.
An action against a municipality based on a filed "claim" which did not state a dollar amount must be dismissed. The fact that the city council denied the claim did not bar the defense. By purchasing liability insurance the city did not waive the protection of the statute. The plaintiff can start a new action under 893.35. Sambs v. Nowak, 47 W (2d) 158, 177 NW (2d) 144.
Sub. (1) is applicable to a counterclaim for money damages in lawsuit commenced by city. Milwaukee v. Milwaukee Civic Developments, 71 W (2d) 647, 239 NW (2d) 44.
Nothing in either ch. 62 or ch. 120 precludes a school board from qualifying as a proper "claimant" under s. 62.25. Joint School Dist. No. 1 v. City of Chilton, 78 W (2d) 52, 253 NW (2d) 879.
This section does not apply to a claim for equitable relief. Kaiser v. City of Mauston, 99 W (2d) 345, 299 NW (2d) 259 (Ct. App. 1980).
General provisions. 62.26(1)(1)
Laws in force.
The general laws for the government of cities, villages and towns, the assessment and collection of taxes, the preservation of public and private property, highways, roads and bridges, the punishment of offenders, the collection of penalties and the manner of conducting elections shall be in force in all cities organized under this subchapter except as otherwise provided under this subchapter.
(2) Equity in land.
The acquisition or retention by a city of an equity of redemption in lands shall not create any liability on the part of the city to pay any bonds issued or mortgage or trust deed upon such lands executed prior to the acquisition by the city of such equity.
The use of any forms prescribed by the statutes of this state, as far as the same are applicable, shall be as legal and of the same force and effect as the use of the forms prescribed by this subchapter.
When any heinous offense or crime has been committed against life or property within any city the mayor, with the consent of a majority of the alderpersons, may offer a reward for the apprehension of the criminal or perpetrator of such offense.
(6) Cities in more than one county.
In cities lying in more than one county the following shall apply:
Accused persons may be put in custody of an officer or committed to the jail of the city or of the county where the offense was committed.
Officers of the city, who by law have the powers of constables in the county in which the city is located, shall have such powers in either county.
(7) Change of city name.
The name of any city of the fourth class shall be changed if a majority of the electors shall address a written petition therefor to the council designating the new name, and the council shall by a two-thirds vote of all the members adopt an ordinance changing to such new name. The change shall be in effect upon publication of the ordinance in the official paper, and the filing of a copy thereof in the office of the secretary of state.
History: 1977 c. 151
; 1993 a. 184
POLICE AND FIRE DEPARTMENTS IN
CITIES OF THE FIRST CLASS
Police and fire departments in 1st class cities. 62.50(1)(1)
In all 1st class cities, however incorporated, there shall be a board of fire and police commissioners, consisting of 5 citizens, not more than 2 of whom shall at any time belong to the same political party. The staff and members of the board shall receive the salary or other compensation for their services fixed by the common council. The salary shall be fixed at the same time and in the same manner as the salary of other city officials and employes. Three members of the board shall constitute a quorum necessary for the transaction of business. It shall be the duty of the mayor of the city, on or before the 2nd Monday in July, to appoint 5 members of the board, designating the term of office of each, one to hold one year, one to hold 2 years, one to hold 3 years, one to hold 4 years and one to hold 5 years, and until their respective successors shall be appointed and qualified. Thereafter the terms of office shall be 5 years from the 2nd Monday in July, and until a successor is appointed and qualified. Every person appointed a member of the board shall be subject to confirmation by the common council and shall, before entering upon the duties of the office take and subscribe the oath of office prescribed by article IV, section 28, of the constitution
, and file the same duly certified by the officer administering it, with the clerk of the city. Appointments made prior to the time this subchapter first applies to a 1st class city shall not be subject to confirmation by the common council.
(1m) Policy review.
The board shall conduct at least once each year a policy review of all aspects of the operations of the police and fire departments of the city. The board may prescribe general policies and standards for the departments. The board may inspect any property of the departments, including but not limited to books and records, required for a review under this section.
(2) Control of appointments.
No person may be appointed to any position either on the police force or in the fire department of the city, except with the approval of the board.
The board may prescribe rules for the government of the members of each department and may delegate its rule-making authority to the chief of each department. The board shall prescribe a procedure for review, modification and suspension of any rule which is prescribed by the chief, including, but not limited to, any rule which is in effect on March 28, 1984.
The common council may suspend any rule prescribed by the board under par. (a)
The board shall adopt rules to govern the selection and appointment of persons employed in the police and fire departments of the city. The rules shall be designed to secure the best service for the public in each department. The rules shall provide for ascertaining, as far as possible, physical qualifications, standing and experience of all applicants for positions, and may provide for the competitive examination of some or all applicants in such subjects as are deemed proper for the purpose of best determining the applicants' qualifications for the position sought. The rules may provide for the classification of positions in the service and for a special course of inquiry and examination for candidates for each class.
The rules of each department shall be available to the public at a cost not to exceed the actual copying costs.
(4) Printing and distribution of regulations.
The board shall cause the rules and regulations prepared and adopted under this section, and all changes therein, to be printed and distributed as the board deems necessary, and the expense thereof shall be certified by the board to the city comptroller and shall be paid by the city. The rules and regulations shall specify the date when they take effect, and thereafter all selections of persons for employment, appointment or promotion, either in the police force or the fire department of such cities except of the chief of police, the inspector of police, the chief engineer and the first assistant of the fire department, shall be made in accordance with such rules and regulations.
The examinations which the rules and regulations provide for shall be public and free to all U.S. citizens with proper limitations as to residence, age, health and, subject to ss. 111.321
, arrest and conviction record. The examinations shall be practical in their character and shall relate to those matters which fairly test the relative capacity of the candidates to discharge the duties of the positions in which they seek employment or to which they seek to be appointed and may include tests of manual skill and physical strength. The board shall control all examinations and may designate suitable persons, either in the official service of the city or not, to conduct such examinations and may change such examiners at any time, as seems best.
(6) Appointment of chiefs.
If a vacancy exists in the office of chief of police or in the office of chief engineer of the fire department, the board by a majority vote shall appoint proper persons to fill such offices respectively. When filling a vacancy in the office of chief of police or in the office of chief engineer of the fire department occurring after June 15, 1977, the board shall appoint the person to a term of office the number of years and commencement date of which shall be set by the city of the 1st class by ordinance and which may not exceed 10 years, or for the remainder of an unexpired term.
(7) Assistant chiefs, inspectors and captains; vacancies. 62.50(7)(a)(a)
If a vacancy exists in the office of assistant chief, the chief of police shall nominate and, with the approval of the board, shall appoint a person to a term of office coinciding with the term of the chief making the appointment, subject thereafter to reinstatement to a previously held position on the force in accordance with rules prescribed by the board. Removal of the assistant chief shall be pursuant to s. 17.12 (1) (c)
. The chief may summarily suspend the assistant chief whose removal is sought by the chief.
If a vacancy exists in the office of inspector of police or captain of police, the chief of police shall nominate and, with the approval of the board, shall appoint a person to the office subject to suspension and removal under this section.
(8) First assistant engineer, vacancy.
If a vacancy exists in the office of the first assistant engineer of the fire department, the chief engineer shall nominate and with the approval of the board shall appoint a suitable person to the office, subject to suspension and removal under this section.
(9) Members of force, vacancies.
All of the members of the force in either department named, at the time when the rules and regulations go into effect, shall continue to hold their respective positions at the pleasure of their respective chiefs, subject to trial under this section, and all persons subsequently appointed shall so hold. All vacancies in either department shall be filled and all new appointments shall be made by the respective chiefs with the approval of the board. Where vacancies in old offices or newly created offices can, with safety to the department, be filled by the promotion of officers or persons already in the service and who have proved their fitness for the promotion, the vacancies in newly created offices shall be so filled by promotion by the respective chiefs with the approval of the board.
(10) Salaries; pensions.
Provision may be made by the common council of a city by general ordinance that the salaries of the members of the force in the police and fire department of the city shall increase with the length of term of service. The salary and compensation of all members of the force in such departments shall be at all times subject to change by the common council, but the salary or compensation of the members of the force in the service of either department may not be decreased, except upon the previous recommendations of such change made in writing by the board to the common council. The common council may provide for an annual pension for life for such members of either service as are honorably discharged from same.
(10m) Rest days.
The council of every city of the 1st class, however organized, may provide for, and when such provision is made, the chief of the police department shall assign to each police officer in the service of the city one full rest day of 24 consecutive hours during each 192 hours, except in cases of positive necessity by some sudden and serious emergency, which, in the judgment of the chief of police, demands that such day of rest not be given at such time. Arrangements shall be made so that each full rest day may be had at such time as will not impair the efficiency of the department.
(11) Discharge or suspension.
No member of the police force or fire department may be discharged or suspended for a term exceeding 30 days by the chief of either of the departments except for cause and after trial under this section.