62.23(17)(a)2.
2. To provide garden suburbs at reasonable cost to the residents of such city;
62.23(17)(a)3.
3. To establish city owned vacation camps for school children and minors up to 20 years of age, such camps to be equipped to give academic and vocational opportunities, including physical training.
62.23(17)(b)
(b) After the establishment, layout and completion of such improvements, such city may convey or lease any such real estate thus acquired and not necessary for such improvements, with reservations concerning the future use and occupation of such real estate, so as to protect such public works and improvements, and their environs, and to preserve the view, appearance, light, air and usefulness of such public works, and to promote the public health and welfare.
62.23(17)(c)
(c) The acquisition and conveyance of lands for such purpose is a public purpose and is for public health and welfare.
62.23(18)
(18) Lakes and rivers. The city may improve lakes and rivers within the city and establish the shorelines thereof so far as existing shores are marsh, and where a navigable stream traverses or runs along the border of a city, such city may make improvements therein throughout the county in which such city shall be located in aid of navigation, and for the protection and welfare of public health and wildlife.
62.23 History
History: 1973 c. 60;
1975 c. 281;
1977 c. 205;
1979 c. 221,
355;
1981 c. 289,
341,
354,
374;
1983 a. 49,
410;
1985 a. 136 ss.
7 to
9,
10;
1985 a. 187,
225,
281,
316;
1987 a. 161,
395;
1989 a. 201;
1991 a. 255,
316;
1993 a. 27,
184,
301,
327,
400,
446,
471,
490,
491;
1995 a. 27 ss.
9126 (19),
9130 (4);
1995 a. 225.
62.23 Annotation
A contract made by a zoning authority to zone or rezone or not to zone is illegal and an ordinance made pursuant thereto is void because a municipality may not surrender its governmental powers and functions or thus inhibit the exercise of its police or legislative powers. When a zoning authority does not make an agreement to zone but is motivated to zone by agreements as to use of the land made by others or by voluntary restrictions running with the land although suggested by the authority, the zoning ordinance is valid and not considered to be contract or conditional zoning. State ex rel. Zupancic v. Schimenz, 46 W (2d) 22, 174 NW (2d) 533.
62.23 Annotation
The rezoning of one parcel in a neighborhood shopping area for local business was not a violation of 62.23 (7) (b) because there is no minimum size requirement and "local business" was not substantially different from "neighborhood shopping". State ex rel. Zupancic v. Schimenz, 46 W (2d) 22, 174 NW (2d) 533.
62.23 Annotation
Spot rezoning from residential to industrial is arbitrary and unreasonable, where the result would be detrimental to the surrounding residential area, had no substantial relation to the public health, safety, morals, or general welfare of the community, and the reasons advanced therefor were neither material nor substantial enough to justify the amendment. Heaney v. Oshkosh, 47 W (2d) 303, 177 NW (2d) 74.
62.23 Annotation
A nonconforming use may be continued even though it violated an earlier regulatory ordinance, so long as the earlier use was not prohibited. Franklin v. Gerovac, 55 W (2d) 51, 197 NW (2d) 772.
62.23 Annotation
The owner of a tract of land may, by leaving a 100 foot strip along one side unchanged, eliminate the right of property owners adjacent to the strip to legally protest. Rezoning of a 42 acre parcel cannot be considered spot zoning. Rodgers v. Menomonee Falls, 55 W (2d) 563, 201 NW (2d) 29.
62.23 Annotation
A zoning ordinance adopted by a new city which changed the zoning of the former town did not expire in 2 years under (7) (da) even though labeled an interim ordinance. New Berlin v. Stein, 58 W (2d) 417, 206 NW (2d) 207.
62.23 Annotation
A long-standing interpretation of a zoning ordinance by zoning officials is to be given great weight by the court. State ex rel. B'nai B'rith F. v. Walworth County, 59 W (2d) 296, 208 NW (2d) 113.
62.23 Annotation
A challenge to a refusal by the board of appeals to hear an appeal where the grounds alleged are a constitutional lack of due process in the proceedings can only be heard in a statutory certiorari proceeding, not in an action for declaratory judgment. Master Disposal v. Vil. of Menomonee Falls, 60 W (2d) 653, 211 NW (2d) 477.
62.23 Annotation
Sub. (9) (a) is not a direct grant of power to the building inspector. Racine v. J-T Enterprises of America, Inc. 64 W (2d) 691, 221 NW (2d) 869.
62.23 Annotation
A municipal ordinance rezoning property upon the occurrence of specified conditions and providing that "the property shall revert back to its present zoning" if the conditions are not met is not invalid as effecting a rezoning of the realty immediately upon the failure to satisfy the conditions because the rezoning, rather than becoming effective immediately and reverting to the previous classification upon noncompliance with the conditions, never becomes effective until such conditions are met in the first instance. Konkel v. Delafield Common Council, 68 W (2d) 574, 229 NW (2d) 606.
62.23 Annotation
Minimum requirements of (7) (a) do not include publication of a map. Proof of nonconforming use discussed. City of Lake Geneva v. Smuda, 75 W (2d) 532, 249 NW (2d) 783.
62.23 Annotation
Where zoning board of appeals had power under (7) (e) 1. and 7. to invalidate conditions imposed by plan commission and afford relief to affected property owners without invalidating disputed ordinance, owners' failure to challenge conditions before board precluded owners from challenging in court as unconstitutional commission's implementation of ordinance. Nodell Inv. Corp. v. Glendale, 78 W (2d) 416, 254 NW (2d) 310.
62.23 Annotation
Sub. (7a) (b) allows interim freezes of existing zoning or, if none exists, interim freezing of existing uses. It does not allow city to freeze the more restrictive of zoning or uses. Town of Grand Chute v. City of Appleton, 91 W (2d) 293, 282 NW (2d) 629 (Ct. App. 1979).
62.23 Annotation
Zoning board acted in excess of its power by reopening proceeding which had once been terminated. Variance runs with land. Goldberg v. Milwaukee Zoning Appeals Bd. 115 W (2d) 517, 340 NW (2d) 558 (Ct. App. 1983).
62.23 Annotation
Notice under (7) (d) 1. b. is required when proposed amendment makes substantial change. Herdeman v. City of Muskego, 116 W (2d) 687, 343 NW (2d) 814 (Ct. App. 1983).
62.23 Annotation
See note to Art. I, sec. 13, citing State ex rel. Nagawicka Is. Corp. v. Delafield, 117 W (2d) 23, 343 NW (2d) 816 (Ct. App. 1983).
62.23 Annotation
Ordinance itself can be "comprehensive plan" required by (7) (c). No separate comprehensive plan need be adopted by city as condition precedent to enacting zoning ordinance. Bell v. City of Elkhorn, 122 W (2d) 558, 364 NW (2d) 144 (1985).
62.23 Annotation
City had no authority to elect against notice provisions of (7) (d). Gloudeman v. City of St. Francis, 143 W (2d) 780, 422 NW (2d) 864 (Ct. App. 1988).
62.23 Annotation
Under (7) (e) 7. board does not have authority to invalidate zoning ordinance and must accept ordinance as written. Ledger v. Waupaca Board of Appeals, 146 W (2d) 256, 430 NW (2d) 370 (Ct. App. 1988).
62.23 Annotation
Under (7) (i) 1. "adjacent" means "contiguous." Brazeau v. DHSS, 154 W (2d) 752, 454 NW (2d) 32 (Ct. App. 1990).
62.23 Annotation
Sub. (7) (e) 1. allows municipality to provide by ordinance that town board has exclusive authority to consider special exception permit applications; board of appeals retains exclusive authority absent municipal ordinance granting power to town board. Town of Hudson v. Bd. of Adjustment, 158 W (2d) 263, 461 NW (2d) 827 (Ct. App. 1990).
62.23 Annotation
Impermissible prejudice of appeals board member discussed. Marris v. City of Cedarburg, 176 W (2d) 14, 498 NW (2d) 843 (1993).
62.23 Annotation
Sub. (7a) requires a cooperative effort in implementing extraterritorial zoning which may not be superseded by a city acting unilaterally under its ch. 236 land division approval authority. Boucher Lincoln-Mercury v. Madison Plan Commission, 178 W (2d) 74, 503 NW (2d) 265 (Ct. App. 1993).
62.23 Annotation
Sub. (7) (i) 1. does not excuse a municipality for failing to make reasonable accommodation of a group home as required by federal law. Tellurian Ucan, Inc. v. Goodrich, 178 W (2d) 205, 504 NW (2d) 342 (Ct. App. 1993).
62.23 Annotation
The federal fair housing act controls sub. (7) (i) 1. to the extent that its spacing requirements may not be used for a discriminatory purpose. "K" Care, Inc. v. Town of Lac du Flambeau, 181 W (2d) 59, 510 NW (2d) 697 (Ct. App. 1993).
62.23 Annotation
General, rather than explicit, standards regarding the granting of special exceptions may be adopted and applied by the governing body. The applicant has the burden of formulating conditions showing that the proposed use will meet the standards. Upon approval, additional conditions may be imposed by the governing body. Kraemer & Sons v. Sauk County Adjustment Bd. 183 W (2d) 1, 515 NW (2d) 256 (1994).
62.23 Annotation
Casual, occasional, accessory or incidental use after the primary nonconforming use is terminated cannot serve to perpetuate a nonconforming use. Village of Menomonee Falls v. Veirstahler, 183 W (2d) 96, 515 NW (2d) 290 (Ct. App. 1994).
62.23 Annotation
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 W (2d) 18, 522 NW (2d) 536 (Ct. App. 1994).
62.23 Annotation
Sub. (7) (f) 1. allowing ``civil penalties" for zoning violations does not authorize imposing a lien against the subject property retroactive to the date of the violation. Waukesha State Bank v. Village of Wales, 188 W (2d) 374, 525 NW (2d) 110 (Ct. App. 1994).
62.23 Annotation
Though a conditional use permit was improperly issued by a town board rather than a board of appeals, the permit was not void where the subject property owner acquiesced to the error for many years. Brooks v. Hartland Sportsman's Club, 192 W (2d) 606, 531 NW (2d) 445 (Ct. App. 1995).
62.23 Annotation
Where 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 W (2d) 157, 540 NW (2d) 189 (1995).
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 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 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) 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, 512 US ___, 129 LEd 2d 22 (1994).
62.23 Annotation
Plaintiffs were not required to exhaust administrative remedies under (7) (e) before bringing civil rights act suit challenging definition of word "family" as used in that portion of 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
Denial of permit for 2nd residential facility within 2,500 foot radius pursuant to (7) (i) 1. which had 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 failure to make reasonable accomodations in violation of federal law. U.S. v. Village of Marshall, 787 F Supp. 872 (1992).
62.23 Annotation
The necessity of 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.
62.234
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. 66.30 applies to this section, but for the purposes of this section any agreement under
s. 66.30 shall be effected by ordinance.
62.234(8)(b)
(b) 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.
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 66.30 does not apply to this paragraph.
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 or
19.97.
62.25(2)(a)(a) 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.
62.25(2)(b)
(b) 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.
62.25(2)(d)
(d) 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.
62.25 Annotation
Cross-references: As to filing claims and demands against the city, see s. 62.12 (8).
62.25 Annotation
For an alternative system of approving claims, see s. 66.044.
62.25 Annotation
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.
62.25 Annotation
Sub. (1) is applicable to counterclaim for money damages in lawsuit commenced by city. Milwaukee v. Milwaukee Civic Developments, 71 W (2d) 647, 239 NW (2d) 44.
62.25 Annotation
See note to art. I, sec. 1, citing Binder v. Madison, 72 W (2d) 613, 241 NW (2d) 613.
62.25 Annotation
Nothing in either ch. 62 or ch. 120 precludes school board from qualifying as a proper "claimant" under 62.25. Joint School Dist. No. 1 v. City of Chilton, 78 W (2d) 52, 253 NW (2d) 879.
62.25 Annotation
This section does not apply to claim for equitable relief. Kaiser v. City of Mauston, 99 W (2d) 345, 299 NW (2d) 259 (Ct. App. 1980).
62.26
62.26
General provisions.
