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
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
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
A board of appeals may not simply grant or deny an application with conclusory statements that the application does or does not satisfy the statutory criteria, but shall express, on the record, its reasoning why an application does or does not meet the statutory criteria. Even when a board's decision is dictated by a minority, these controlling members of the board ought to be able to articulate why an applicant has not satisfied its burden of proof on unnecessary hardship or why the facts of record cannot be reconciled with some requirement of the ordinance or statute. A written decision is not required as long as a board's reasoning is clear from the transcript of its proceedings. Lamar Central Outdoor, Inc. v. Board of Zoning Appeals of the City of Milwaukee, 2005 WI 117
, 284 Wis. 2d 1
, 700 N.W.2d 87
Sub. (7) (h) relates to the use to which the building was put, not to the physical structure of the building itself. It limits the repairs and improvements that can be made on a structure that is used in a manner that does not conform to uses permitted by applicable zoning codes. Hillis v. Village of Fox Point Board of Appeals, 2005 WI App 106
, 281 Wis. 2d 147
, 699 N.W.2d 636
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
Neither the desire for a different remedy nor a resort to alternative legal theories was sufficient to insulate a party filing an action under sub. (8) from the impact of claim preclusion when that party had adequate opportunity to litigate its claims before the zoning board. Barber v. Weber, 2006 WI App 88
, 292 Wis. 2d 426
, 715 N.W.2d 683
In deciding whether to grant a variance under sub. (7) (e) 7., a zoning board of appeals may consider the role municipal officials played in a zoning violation when determining whether a hardship was self-created and whether strict enforcement of the ordinance would result in an unnecessary hardship. Accent Developers, LLC v. City of Menomonie Board of Zoning Appeals, 2007 WI App 48
, 300 Wis. 2d 561
, 730 N.W.2d 194
The court's opinion that a deck was optimally located in its current position was not the relevant inquiry in regard to the granting of an area variance. The board of adjustment was justified in determining that the property owner's desire for the variance to retain their nonconforming deck was based on a personal inconvenience rather than an unnecessary hardship. Block v. Waupaca County Board of Zoning Adjustment, 2007 WI App 199
, 305 Wis. 2d 325
, 738 N.W.2d 132
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
Ziervogel did not state that use cannot be a factor in an area variance analysis. It stated that use cannot overwhelm all other considerations in the analysis, rendering irrelevant any inquiry into the uniqueness of the property, the purpose of the ordinance, and the effect of a variance on the public interest. Here, the board properly considered the purpose of the zoning code, the effect on neighboring properties, and the hardship alleged. Driehaus v. Walworth County, 2009 WI App 63
, 317 Wis. 2d 734
, 767 N.W.2d 343
Condominiums are not a form of land use. A condominium unit set aside for commercial use runs afoul of a zoning ordinance prohibiting commercial use. When an intended commercial use did not comport with a town's zoning restrictions, approval of the condominium by the town was de facto rezoning. A town could not seek to avoid the restrictions of applicable extraterritorial zoning by aiming to define its action as something other than a zoning change. Village of Newburg v. Town of Trenton, 2009 WI App 139
, 321 Wis. 2d 424
, 773 N.W.2d 500
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 language of this section clearly and unambiguously conveys that the mechanism for an appeal of a board of appeals decision is an action in certiorari for review of the board's decision. The action is against the board of appeals, not against the city. Acevedo v. City of Kenosha, 2011 WI App 10
, 331 Wis. 2d 218
, 793 N.W.2d 500
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
The line distinguishing general police power regulation from zoning ordinances is far from clear. The question of whether a particular enactment constitutes a zoning ordinance is often a matter of degree. Broad statements of the purposes of zoning and the purposes of an ordinance are not helpful in distinguishing a zoning ordinance from an ordinance enacted pursuant to non-zoning police power. The statutorily enumerated purposes of zoning are not the exclusive domain of zoning regulation. A more specific and analytically helpful formulation of the purpose of zoning, at least in the present case, is to separate incompatible land uses. Multiple factors are considered and discussed. Zwiefelhofer v. Town of Cooks Valley, 2012 WI 7
, 338 Wis. 2d 488
, 809 N.W.2d 362
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.
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 sub. (7a) is 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 U.S. 43
, 129 L. Ed. 2d 22
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
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
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
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.
(5m) Restoration of certain nonconforming structures. 62.231(5m)(a)(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:
The nonconforming structure was damaged or destroyed on or after March 2, 2006.
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.
(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.
(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)
, (3) (a)
, or (4) (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.
See also ch. NR 117
, Wis. adm. code.
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
. 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
Wisconsin's Shoreland Management Program: An Assessment With Implications for Effective Natural Resources Management and Protection. Kuczenski. 1999 WLR 273.
Required notice on certain approvals. 62.232(2)(a)(a)
Except as provided in par. (b)
, a city 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 city is not required to give the notice under par. (a)
at the time that it issues a building permit if the city issues the building permit on a standard building permit form prescribed by the department of safety and professional services.
A city 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 city 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
; 2011 a. 32
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. 66.0301
applies to this section, but for the purposes of this section any agreement under s. 66.0301
shall be effected by ordinance.
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.
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.
This section contains no prohibition against imposing municipal fees for services in connection with erosion control projects. It does not mandate that fees be listed "within the four corners" of the ordinance. The statute does not mention fees. Sub. (4) (c) states that an ordinance adopted under s. 62.23 that relates 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 is superseded by an ordinance adopted under s. 62.234. A fee schedule adopted via resolution was not an ordinance enacted under s. 62.23 and was not superseded by the city's erosion control ordinance. Edgerton Contractors, Inc. v. City of Wauwatosa, 2010 WI App 45
, 324 Wis. 2d 256
, 781 N.W.2d 228
Municipal mortgage housing assistance. 62.237(1)(a)
"Debt service" means the amount due of principal, interest and premium for mortgage revenue bonds or revenue bonds issued under this section.
"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
"Lending institution" means any private business issuing home mortgages.
"Municipality" means any city with a population greater than 75,000.
"Owner-occupied dwelling" means a dwelling in which the owner occupies or will occupy any unit.
The legislative body of any municipality may adopt a resolution, authorizing the municipality to:
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.