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
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
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
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. South Milwaukee, 197 Wis. 2d 157
, 540 N.W.2d 189
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
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).
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).
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).
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 655
, 579 N.W.2d 715
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).
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
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).
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 it has legitimate reasons for breaching. Eternalist Foundation, Inc. v. City of Platteville, 225 Wis. 2d 759
, 593 N.W.2d 84
(Ct. App. 1999).
While the DNR 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
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
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
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 element of identifiable change or extension, the enlargement will invalidate a legal nonconforming use. A proposed elimination of cabins and the expansion from twenty-one to forty-four 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,___ Wis. 2d ___, 649 N.W.2d 728
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,___ Wis. 2d ___, 649 N.W.2d 728
The fact that a county is within a regional planning commission does not affect county zoning power. 61 Atty. Gen. 220.
The authority of a county to regulate mobile homes under this section and other zoning questions are discussed. 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 [now s. 59.69] (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 effect of s. 91.73 (4) on procedures to amend county comprehensive zoning ordinances under s. 59.97 [now s. 59.69] (5) (e) is discussed. 67 Atty. Gen. 290.
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 [now s. 59.69] (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
Architectural Appearances Ordinances and the 1st Amendment. Rice. 76 MLR 439 (1992).
Zoning of shorelands on navigable waters. 59.692(1)(a)
"Department" means the department of natural resources.
"Shorelands" means the area within the following distances from the ordinary high-water mark of navigable waters, as defined under s. 281.31 (2) (d)
One thousand feet from a lake, pond or flowage. If the navigable water is a glacial pothole lake, this distance shall be measured from the high-water mark of the lake.
Three hundred feet from a river or stream or to the landward side of the floodplain, whichever distance is greater.
"Shoreland setback area" means an area in a shoreland that is within a certain distance of the ordinary high-water mark in which the construction or placement of buildings or structures has been limited or prohibited under an ordinance enacted under this section.
"Shoreland zoning standard" means a standard for ordinances enacted under this section that is promulgated as a rule by the department.
To effect the purposes of s. 281.31
and to promote the public health, safety and general welfare, each county shall zone by ordinance all shorelands in its unincorporated area. This ordinance may be enacted separately from ordinances enacted under s. 59.69
An ordinance enacted under this section may not prohibit the maintenance of stairs, platforms or decks that were constructed before August 15, 1991, and that are located in any of the following shorelands:
The shoreland of Lake Wissota in Chippewa County.
The shorelands of Lake Holcombe in Chippewa and Rusk counties.
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:
The nonconforming structure was damaged or destroyed after October 14, 1997.
The damage or destruction was caused by violent wind, vandalism, fire or a flood.
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.
A county or the department may not commence an enforcement action against a person who owns a building or structure that is in violation of a shoreland zoning standard or an ordinance enacted under this section if the building or structure has been in place for more than 10 years.
A county shall grant special zoning permission for the construction or placement of a structure on property in a shoreland setback area if all of the following apply:
The part of the structure that is nearest to the water is located at least 35 feet landward from the ordinary high-water mark.
The total floor area of all of the structures in the shoreland setback area of the property will not exceed 200 square feet. In calculating this square footage, boathouses shall be excluded.
The structure that is the subject of the request for special zoning permission has no sides or has open or screened sides.
The county must approve a plan that will be implemented by the owner of the property to preserve or establish a vegetative buffer zone that covers at least 70% of the half of the shoreland setback area that is nearest to the water.
Except as otherwise specified, all provisions of s. 59.69
apply to ordinances and their amendments enacted under this section whether or not enacted separately from ordinances enacted under s. 59.69
, but the ordinances and amendments shall not require approval or be subject to disapproval by any town or town board.
If an existing town ordinance relating to shorelands is more restrictive than an ordinance later enacted under this section affecting the same shorelands, it continues as a town ordinance in all respects to the extent of the greater restrictions, but not otherwise.
Ordinances that are enacted under this section shall accord and be consistent with any comprehensive zoning plan or general zoning ordinance applicable to the enacting counties, so far as practicable.
All powers granted to a county under s. 236.45
may be exercised by it with respect to shorelands, but the county must have or provide a planning agency as defined in s. 236.02 (3)
59.692(4)(a)(a) Section 66.0301
applies to this section, except that for the purposes of this section an agreement under s. 66.0301
shall be effected by ordinance. If the municipalities as defined in s. 281.31
are served by a regional planning commission under s. 66.0309
, the commission may, with its consent, be empowered by the ordinance of agreement to administer each ordinance enacted hereunder throughout its enacting municipality, whether or not the area otherwise served by the commission includes all of that municipality.
Variances and appeals regarding shorelands within a county are for the board of adjustment for that county under s. 59.694
, and the procedures of that section apply.
An ordinance enacted under this section supersedes all provisions of an ordinance enacted under s. 59.69
that relate to shorelands.
If a county does not enact an ordinance by January 1, 1968, or if the department, after notice and hearing, determines that a county has enacted an ordinance that fails to meet the shoreland zoning standards, the department shall adopt such an ordinance for the county. As far as possible, s. 87.30
shall apply to this subsection.
For an amendment to an ordinance enacted under this section that affects an activity that meets all of the requirements under s. 281.165 (2)
or (3) (a)
, the department may not proceed under sub. (6)
or (7) (b)
, or otherwise review the amendment, to determine whether the ordinance, as amended, fails to meet the shoreland zoning standards.
Provisions of a county shoreland zoning ordinance that are enacted under this section that were applicable, prior to annexation, to any shoreland area annexed by a city or village after May 7, 1982, shall continue in effect and shall be enforced after annexation by the annexing city or village unless any of the following occurs:
The city or village enacts, administers and enforces a zoning ordinance, for the annexed area, that complies with the shoreland zoning standards and that is at least as restrictive as the county shoreland zoning ordinance.
After annexation, the city or village requests the county to amend the county shoreland zoning ordinance as it applies to the annexed area to delete or modify provisions that meet the specifications under par. (ag)
, the county enacts the amendment and the city or village administers and enforces the amended ordinance as it applies to the annexed area.
After annexation, the city or village requests that the county shoreland zoning ordinance, as it applies to the annexed area, continues to be in effect and enforced by the county and the county agrees to enforce the ordinance.
Provisions of a county shoreland zoning ordinance that are enacted under this section that were applicable, prior to incorporation, to any shoreland area that is part of a town that incorporates as a city or village under s. 66.0203
after April 30, 1994, shall continue in effect and shall be enforced after incorporation by the incorporated city or village unless any of the following occurs:
The city or village enacts, administers and enforces a zoning ordinance that complies with the shoreland zoning standards and that is at least as restrictive as the county shoreland zoning ordinance.
After incorporation, the city or village requests the county to amend the county shoreland zoning ordinance as it applies to the incorporated area to delete or modify provisions that meet the specifications under par. (ag)
, the county enacts the amendment and the city or village administers and enforces the amended ordinance.
After incorporation, the city or village requests that the county shoreland zoning ordinance, as it applies to the incorporated area, continues to be in effect and enforced by the county and the county agrees to enforce the ordinance.
For purposes of pars. (a) 2.
and (ad) 2.
, the types of provisions that may be deleted or modified are those that establish specified land uses or requirements that are associated with those uses and that are not necessary to effect the purposes of s. 281.31 (1)
that relate to the protection of navigable waters.
The county may not enact an amendment under par. (a) 2.
or (ad) 2.
that is less restrictive than the shoreland zoning standards.
Any amendment enacted under par. (a) 2.
shall apply only to the annexed area of the city or village requesting the amendment.
If the department determines that a zoning ordinance enacted by a city or village under par. (a) 1.
or (ad) 1.
does not meet the shoreland zoning standards or is not as restrictive as the county shoreland zoning ordinance, the department shall, after providing notice and conducting a hearing on the matter, either issue an order declaring the city or village ordinance void and reinstating the applicability of the county shoreland zoning ordinance to the annexed or incorporated area or issue an order declaring the city or village ordinance void and adopting an ordinance for the annexed or incorporated area for the city or village that does meet the shoreland zoning standards and that is at least as restrictive as the county shoreland zoning ordinance.
If the department determines that an amendment enacted by a county under par. (a) 2.
or (ad) 2.
does not meet the shoreland zoning standards, the department, after providing notice and conducting a hearing on the matter, shall issue an order declaring the amendment void and shall reinstate the applicability of the county shoreland zoning ordinance, that was in effect before amending the ordinance, to the annexed or incorporated area.
As far as applicable, the procedures set forth in s. 87.30
apply to this subsection.
See also ch. NR 115
, Wis. adm. code.
The DNR, as trustee of navigable waters in the state, has standing to appeal shoreline zoning decisions. DNR v. Walworth County Board of Adjustment, 170 Wis. 2d 406
, 489 N.W.2d 631
(Ct. App. 1992).
The private right to fill lakebeds granted under s. 30.11 does not preempt the zoning power of a county over shorelands under this section. State v. Land Concepts, Ltd. 177 Wis. 2d 24
, 501 N.W.2d 817
(Ct. App. 1993).
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 Wis. 2d 396
, 577 N.W.2d 813
(1998). See also State v. Outagamie, 2001 WI 78, 251 Wis. 2d 484
, 628 N.W.2d 376
The burden is on the applicant for a variance to demonstrate through evidence that without the variance he or she is prevented from enjoying any reasonable use of the property. State ex rel. Spinner v. Kenosha County Board of Adjustment, 223 Wis. 2d 99
, 588 N.W.2d 662
(Ct. App. 1998).
The state, in administering the Fair Housing Act, may not order a zoning board to issue a variance based on characteristics unique to the landowner rather than the land. County of Sawyer Zoning Board v. Department of Workforce Development, 231 Wis. 2d 534
, 605 N.W.2d 627
(Ct. App. 1999).
County floodplain zoning ordinances may be adopted under s. 59.971 [now 59.692] and do not require the approval of town boards in order to become effective within the unincorporated areas of the county. 62 Atty. Gen. 264.
Counties may zone lands located within 300 feet of an artificial ditch that is navigable in fact. 63 Atty. Gen. 57.