62.23 Annotation
Statutory certiorari review exists to test the validity of agency decisions by reviewing the record, and the court has jurisdiction only for that limited purpose. An action to enforce a variance is an entirely different matter. It is coercive, and personal jurisdiction must be established by serving a summons and complaint or original writ separate from any related certiorari action. Winkelman v. Town of Delafield, 2000 WI App 254,
239 Wis. 2d 542,
620 N.W.2d 438.
62.23 Annotation
The consideration by a separate city council committee, without notice, of a duplicate file of matters then under consideration by the city's zoning committee was not void. Oliveira v. City of Milwaukee, 2001 WI 27,
242 Wis. 2d 1,
624 N.W.2d 117.
62.23 Annotation
If residents would not be living in a proposed community living arrangement because of disabilities, although some may have disabilities, a municipality is not required by the federal American with Disabilities Act or Fair Housing Amendments Act to make reasonable accommodations in the application of the sub. (7) (i) 1. 2500 foot requirement. State ex rel. Bruskewitz v. City of Madison, 2001 WI App 233,
248 Wis. 2d 297,
635 N.W.2d 797.
62.23 Annotation
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.
62.23 Annotation
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.
62.23 Annotation
A variance authorizes a landowner to establish or maintain a use prohibited by zoning regulations. A special exception allows the landowner to put the property to a use expressly permitted but that conflicts with some requirement of the ordinance. The grant of a special exception does not require the showing of hardship required for a variance. Fabyan v. Waukesha County Board of Adjustment, 2001 WI App 162,
246 Wis. 2d 814,
632 N.W.2d 116.
62.23 Annotation
The public policy of promoting confidence in impartial tribunals may justify expansion of the certiorari record when evidence outside of the record demonstrates procedural unfairness. However, before a circuit court may authorize expansion, the party alleging bias must make a prima facie showing of wrongdoing. Sills v. Walworth Cty Land, 2002 WI App 111,
252 Wis. 2d 1,
648 N.W.2d 878.
62.23 Annotation
While an increase in the volume, intensity, or frequency of a nonconforming use is not sufficient to invalidate it, if the increase 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 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.
62.23 Annotation
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.
62.23 Annotation
A purpose of sub. (5) is that a plan commission have the opportunity to review and make a recommendation on a final plat before the governing body makes a final decision, but not to require that body to wait more than 30 days for the plan commission's report. KW Holdings, LLC v. Town of Windsor, 2003 WI App 9,
259 Wis. 2d 357,
656 N.W.2d 752,
02-0706.
62.23 Annotation
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.
62.23 Annotation
An ordinance requirement that no special use permit will be granted unless it is "necessary for the public convenience" meant that the petitioner had to present sufficient evidence that the proposed use was essential to the community as a whole. Hearst-Argyle Stations v. Board of Zoning Appeals of the City of Milwaukee, 2003 WI App 48,
260 Wis. 2d 494,
659 N.W.2d 424,
02-0596.
62.23 Annotation
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.
62.23 Annotation
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.
62.23 Annotation
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,
02-0979.
62.23 Annotation
Area variance applicants need not meet the no reasonable use of the property standard that is applicable to use variance applications. The standard for unnecessary hardship required in area variance cases is whether compliance with the strict letter of the restrictions governing area, set backs, frontage, height, bulk, or density would unreasonably prevent the owner from using the property for a permitted purpose or would render conformity with those restrictions unnecessarily burdensome. Ziervogel v. Washington County Board of Adjustment, 2004 WI 23,
269 Wis. 2d 549,
676 N.W.2d 401,
02-1618.
62.23 Annotation
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,
02-2400.
62.23 Annotation
A municipality cannot be estopped from seeking to enforce a zoning ordinance violation. Erroneous acts of municipal officers do not afford a basis to estop the municipality from enforcing its ordinances enacted pursuant to the police power. Citizens have a right to rely upon officials not having acted in violation of the zoning ordinance, and, when officials do so act, their acts should not afford a basis for estopping the municipality from later enforcing the zoning ordinance. Village of Hobart v. Brown County, 2004 WI App 66,
271 Wis. 2d 268,
678 N.W.2d 402,
03-1907.
62.23 Annotation
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 so long as the land use proscribed is not a federal governmental function. 58 Atty. Gen. 91.
62.23 Annotation
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.
62.23 Annotation
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.
62.23 Annotation
Extraterritorial zoning under (7a) is discussed. 67 Atty. Gen. 238.
62.23 Annotation
A city's ban on almost all residential signs violated the right of free speech. City of LaDue v. Gilleo,
512 U.S. 43,
129 L. Ed. 2d 22 (1994).
62.23 Annotation
There is no property interest in a position on a zoning board of appeals and none was created by a common council member's assertion that the council would not approve a board member's successor. Generally, the 1st Amendment protects a person from being removed from public employment for purely political reasons, but a board member is an exempt policymaker. Pleva v. Norquist,
195 F.3d 905 (1999).
62.23 Annotation
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.
62.23 Annotation
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).
62.23 Annotation
Sub. (2) (i) 1. and 2r. are preempted by the Federal Fair Housing Amendment Act and the Americans With Disabilities Act. Sub. (2) (i) 1. and 2r. impermissibly classify people on the basis of disability by imposing a 2,500 foot spacing requirement on community living arrangements for the disabled. Oconomowoc Residential Programs v. City of Greenfield,
23 F. Supp. 2d 941 (1998).
62.23 Annotation
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.
62.23 Annotation
Architectural Appearances Ordinances and the 1st Amendment. Rice. 76 MLR 439 (1992).
62.231
62.231
Zoning of wetlands in shorelands. 62.231(1)
(1)
Definitions. As used in this section:
62.231(2)
(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.
62.231(2m)
(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.
62.231(3)
(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.
62.231(4)(a)(a)
Powers and procedures. Except as provided under
sub. (5),
s. 62.23 applies to ordinances and amendments enacted under this section.
62.231(4)(b)
(b)
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.
62.231(5)
(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.
62.231(6)
(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.
62.231(6m)
(6m) Certain amendments to ordinances. 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 of natural resources may not proceed under
sub. (6), or otherwise review the amendment, to determine whether the ordinance, as amended, fails to meet reasonable minimum standards.
62.231 Cross-reference
Cross Reference: See also ch.
NR 117, Wis. adm. code.
62.231 Annotation
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 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.
62.231 Annotation
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).
62.231 Annotation
Wisconsin's Shoreland Management Program: An Assessment With Implications for Effective Natural Resources Management and Protection. Kuczeski. 1999 WLR 273.
62.234
62.234
Construction site erosion control and storm water management zoning. 62.234(1)
(1)
Definition. As used in this section, "department" means the department of natural resources.
62.234(2)
(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.
62.234(4)
(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.
62.234(4)(b)
(b) 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.
62.234(4)(c)
(c) 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.
62.234(5)
(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.
62.234(6)
(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.
62.234(7)
(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).
62.234(8)(a)(a) Except as provided in
par. (c),
s. 66.0301 applies to this section, but for the purposes of this section any agreement under
s. 66.0301 shall be effected by ordinance.
62.234(8)(b)
(b) If a city is served by a regional planning commission under
s. 66.0309 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.
62.234(8)(c)
(c) 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 66.0301 does not apply to this paragraph.
62.237
62.237
Municipal mortgage housing assistance. 62.237(1)(a)
(a) "Debt service" means the amount due of principal, interest and premium for mortgage revenue bonds or revenue bonds issued under this section.
62.237(1)(b)
(b) "Dwelling" means any structure used or intended to be used for habitation with up to 2 separate units certified for occupancy by the city. "Dwelling" also means any housing cooperative incorporated under
ch. 185.
62.237(1)(c)
(c) "Lending institution" means any private business issuing home mortgages.
62.237(1)(d)
(d) "Municipality" means any city with a population greater than 75,000.
62.237(1)(e)
(e) "Owner-occupied dwelling" means a dwelling in which the owner occupies or will occupy any unit.
62.237(2)(a)(a) The legislative body of any municipality may adopt a resolution, authorizing the municipality to:
62.237(2)(a)1.
1. Issue mortgage loans with an interest rate less than the lowest rate available at lending institutions within the municipality, for the purchase or construction of any owner-occupied dwelling located within an area described in
sub. (3). Financing for rehabilitation or home improvements may be made available as part of these loans.
62.237(2)(a)2.
2. Issue loans to any lending institution within the municipality that agrees to loan the money at designated terms for the purchase, purchase and rehabilitation or construction of any owner-occupied dwelling located within an area described in
sub. (3).
62.237(2)(a)3.
3. Foreclose any mortgage and sell the mortgaged property for collection purposes if the mortgagor defaults on the payment of principal and interest of a loan issued under this section.
62.237(2)(b)
(b) The resolution shall designate each area in which dwellings are eligible for loans.
62.237(2)(c)
(c) No loan may be issued to purchase, purchase and rehabilitate or construct a dwelling that violates applicable provisions of the one- and 2-family dwelling code under
ss. 101.60 to
101.66, or that violates any ordinance the municipality adopts regulating the dwelling. If the dwelling is found to be violating the dwelling code or any ordinance after issuance of the loan, the loan shall default. The municipality may require the full loan to become due or may increase the interest rate to the maximum allowable. The municipality may defer imposing a penalty for up to one year after the violation is found to exist.
62.237(3)
(3) Eligible areas. Owner-occupied dwellings in any area of the municipality are eligible for loans under this section if any 2 of the following conditions exist:
62.237(3)(a)
(a) The median assessed property value of one- and 2-family dwellings in the area is less than or equal to 80% of the median assessed property value of one- and 2-family dwellings in the municipality.
62.237(3)(b)
(b) The median family income of the area is less than or equal to 80% of the median family income of the municipality.
62.237(3)(c)
(c) The proportion of owner-occupied dwellings in the area is less than or equal to 80% of the proportion of owner-occupied dwellings in the municipality.
62.237(3)(d)
(d) The vacancy rate of dwellings in the area is greater than or equal to 120% of the vacancy rate of dwellings in the municipality.
62.237(4)(a)(a) The governing body of any municipality may issue revenue bonds by resolution, to finance low-interest mortgage loans under this section. The resolution shall state the maximum dollar amount of authorized bonds and the purpose for which the municipality may issue the bonds. The resolution shall state the terms, form and content of the bonds. These bonds may be registered under
s. 67.09.
62.237(4)(b)
(b) Debt service is payable solely from revenues received from the loans issued under this section. No mortgage revenue bond or revenue bond issued under this section is a debt of the municipality or a charge against the city's general credit or taxing powers. The municipality shall plainly state the provisions of this paragraph on the face of each mortgage revenue bond or revenue bond.
62.237(4)(c)
(c) The municipality shall use revenues from payment of the principal and interest of loans issued under this section to pay debt service. The municipality shall use any excess revenues to pay other costs accruing from the issuance of the loans. The municipality shall deposit any remaining revenues in a revolving fund of the municipal treasury, to use for additional loans under this section.
62.237(4)(d)
(d) The resolution may authorize appointment of a receiver to collect interest and principal on loans issued under this section for paying debt service, if the municipality defaults on paying debt service.
62.237 History
History: 1979 c. 221;
1983 a. 24,
27,
207;
1999 a. 150 s.
378; Stats. 1999 s. 62.237.
62.25
62.25
Claims and actions. 62.25(1)(1)
Claims. 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,
19.97 or
281.99.
