Under Goode 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
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
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
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
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
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
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
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, ___ Wis. 2d ___, 781 N.W.2d 706
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).
Required notice on certain approvals. 59.691(2)(a)(a)
Except as provided in par. (b)
, a county that issues a building permit or other approval for construction activity, shall give the applicant a written notice as specified in subs. (3)
at the time the building permit is issued.
A county is not required to give the notice under par. (a)
at the time that it issues a building permit if the county issues the building permit on a standard building permit form prescribed by the department of commerce.
A county is not required to give the notice under par. (a)
at the time that it issues a building permit or other approval if the building permit or other approval is for construction activity that does not involve any land disturbing activity including removing protective ground cover or vegetation, or excavating, filling, covering, or grading land.
Each notice shall contain the following language: "YOU ARE RESPONSIBLE FOR COMPLYING WITH STATE AND FEDERAL LAWS CONCERNING CONSTRUCTION NEAR OR ON WETLANDS, LAKES, AND STREAMS. WETLANDS THAT ARE NOT ASSOCIATED WITH OPEN WATER CAN BE DIFFICULT TO IDENTIFY. FAILURE TO COMPLY MAY RESULT IN REMOVAL OR MODIFICATION OF CONSTRUCTION THAT VIOLATES THE LAW OR OTHER PENALTIES OR COSTS. FOR MORE INFORMATION, VISIT THE DEPARTMENT OF NATURAL RESOURCES WETLANDS IDENTIFICATION WEB PAGE OR CONTACT A DEPARTMENT OF NATURAL RESOURCES SERVICE CENTER."
The notice required in sub. (2) (a)
shall contain the electronic Web site address that gives the recipient of the notice direct contact with that Web site.
A county in issuing a notice under this section shall require that the applicant for the building permit sign a statement acknowledging that the person has received the notice.
History: 2009 a. 373
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, flood, ice, snow, mold, or infestation.
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
. See also State v. Outagamie, 2001 WI 78, 244 Wis. 2d 613
, 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), 97-2094
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), 99-0707
In evaluating whether to grant an area variance to a zoning ordinance, a board of adjustment should focus on the purpose of the zoning law at issue in determining whether an unnecessary hardship exists for the property owner seeking the variance. The facts of the case should be analyzed in light of that purpose, and boards of adjustment must be afforded flexibility so that they may appropriately exercise their discretion. State v. Waushara County Board of Adjustment, 2004 WI 56, 271 Wis. 2d 547
, 679 N.W.2d 514
The term "floor area" in sub. (1v) (b) unambiguously encompasses only the surface portion of a deck's floorboards and, therefore, does not include portions of the deck's support system that extend beyond the floorboards. If a portion of a structure is outside the setback area, that part is not in the setback area and it is not the portion "extending into" that area for purposes of calculating the 200 square foot restriction in sub. (1v) (b). Propp v. Sauk County Board of Adjustment, 2010 WI App 25, 323 Wis. 2d 495
, 779 N.W.2d 705