59.69(15)(i)
(i) Not less than 11 months nor more than 13 months after the first licensure of an adult family home under
s. 50.033 or of a community living arrangement and every year thereafter, the common council or village or town board of a municipality in which a licensed adult family home or a community living arrangement is located may make a determination as to the effect of the adult family home or community living arrangement on the health, safety or welfare of the residents of the municipality. The determination shall be made according to the procedures provided under
par. (j). If the common council or village or town board determines that the existence in the municipality of a licensed adult family home or a community living arrangement poses a threat to the health, safety or welfare of the residents of the municipality, the common council or village or town board may order the adult family home or community living arrangement to cease operation unless special zoning permission is obtained. The order is subject to judicial review under
s. 68.13, except that a free copy of the transcript may not be provided to the licensed adult family home or community living arrangement. The licensed adult family home or community living arrangement shall cease operation within 90 days after the date of the order, or the date of final judicial review of the order, or the date of the denial of special zoning permission, whichever is later.
59.69(15)(im)
(im) The fact that an individual with acquired immunodeficiency syndrome or a positive test for the presence of HIV, as defined in
s. 252.01 (1m), antigen or nonantigenic products of HIV or an antibody to HIV resides in a community living arrangement with a capacity for 8 or fewer persons may not be used under
par. (i) to assert or prove that the existence of the community living arrangement in the municipality poses a threat to the health, safety or welfare of the residents of the municipality.
59.69(15)(j)
(j) A determination under
par. (i) shall be made after a hearing before the common council or village or town board. The municipality shall provide at least 30 days' notice to the licensed adult family home or the community living arrangement that such a hearing will be held. At the hearing, the licensed adult family home or the community living arrangement may be represented by counsel and may present evidence and call and examine witnesses and cross-examine other witnesses called. The common council or village or town board may call witnesses and may issue subpoenas. All witnesses shall be sworn by the common council, town board or village board. The common council or village or town board shall take notes of the testimony and shall mark and preserve all exhibits. The common council or village or town board may, and upon request of the licensed adult family home or the community living arrangement shall, cause the proceedings to be taken by a stenographer or by a recording device, the expense thereof to be paid by the municipality. Within 20 days after the hearing, the common council or village or town board shall mail or deliver to the licensed adult family home or the community living arrangement its written determination stating the reasons therefor. The determination shall be a final determination.
59.69 History
History: 1971 c. 40 s.
93;
1971 c. 86,
224;
1973 c. 274;
1977 c. 205;
1979 c. 233 ss.
2 to
5,
7 and
8;
1979 c. 323;
1981 c. 341,
354,
374;
1983 a. 192 s.
303 (1);
1983 a. 410;
1983 a. 532 s.
36;
1985 a. 29,
136,
196,
281,
316;
1987 a. 161,
395;
1989 a. 80,
201;
1991 a. 255,
269,
316;
1993 a. 16,
27,
246,
327,
400,
446,
491;
1995 a. 27 ss.
9130 (4),
9126 (19);
1995 a. 201 s.
475; Stats. 1995 s. 59.69;
1995 a. 225 s.
174;
1995 a. 227;
1997 a. 3,
35.
59.69 Annotation
A zoning ordinance may distinguish between foster homes and therapeutic homes for the care of children. Browndale International v. Board of Adjustment, 60 W (2d) 182, 208 NW (2d) 121.
59.69 Annotation
A plaintiff is not required to exhaust administrative remedies when his claim is that a zoning ordinance is unconstitutional; he may ask for a declaratory judgment. An ordinance classifying land as agricultural when it is unfit for agriculture is unreasonable and amounts to a taking of the land without compensation. Kmiec v. Town of Spider Lake, 60 W (2d) 640, 211 NW (2d) 471.
59.69 Annotation
A property owner does not acquire a "vested interest" in the continuance of a nonconforming use, and such status will be denied if the specific use was casual and occasional, or if the use was merely accessory or incidental to the principal use. Walworth County v. Hartwell, 62 W (2d) 57, 214 NW (2d) 288.
59.69 Annotation
Under s. 59.97 [now s. 59.69] (5) (c), a county zoning ordinance becomes effective in a town upon approval of the text by the town board and the filing of the approving resolution with the town clerk and not when it merely adopts a zoning map. Racine County v. Alby, 65 W (2d) 574, 223 NW (2d) 438.
59.69 Annotation
Zoning ordinances, being in derogation of common law, are to be construed in favor of the free use of private property. Cohen v. Dane Co. Bd. of Adjustment, 74 W (2d) 87, 246 NW (2d) 112.
59.69 Annotation
A municipality is not required to show irreparable injury before obtaining an injunction under s. 59.97 [now s. 59.69] (11). County of Columbia v. Bylewski, 94 W (2d) 153, 288 NW (2d) 129 (1980).
59.69 Annotation
Under s. 59.97 [now s. 59.69] (9) a county may rezone county-owned land contrary to town zoning laws and without town approval. Town of Ringle v. County of Marathon, 104 W (2d) 297, 311 NW (2d) 595 (1981).
59.69 Annotation
Environmental zoning discussed. M & I Marshall Bank v. Town of Somers, 141 W (2d) 271, 414 NW (2d) 824 (1987).
59.69 Annotation
For purposes of determining a nonconforming use of a quarry site, all land is used which contains the mineral and which is integral to the operation although a particular portion may not be under actual excavation. Smart v. Dane County Bd. of Adjustment, 177 W (2d) 445, 501 NW (2d) 782 (1993).
59.69 Annotation
The power to regulate nonconforming uses 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).
59.69 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).
59.69 Annotation
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 W (2d) 214, 562 NW (2d) 412 (1997).
59.69 Annotation
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 which 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 W (2d) 599, 565 NW (2d) 279 (Ct. App. 1997).
59.69 Annotation
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 W (2d) 332, 568 NW (2d) 779 (Ct. App. 1997).
59.69 Annotation
A county executive's power to veto ordinances and resolutions extends to rezoning petitions which are in essence proposed amendments to the county zoning ordinance. The veto is subject to limited judicial review. Schmeling v. Phelps, 212 W (2d) 898, 569 NW (2d) 784 (Ct. App. 1997).
59.69 Annotation
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 where 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 W (2d) 655, 579 NW (2d) 715 (1998).
59.69 Annotation
The fact that a county is within a regional planning commission does not affect county zoning power. 61 Atty. Gen. 220.
59.69 Annotation
The authority of a county to regulate mobile homes under this section, and other zoning questions discussed. 62 Atty. Gen. 292.
59.69 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.
59.69 Annotation
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.
59.69 Annotation
A county which has enacted countywide a 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.
59.69 Annotation
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) discussed. 67 Atty. Gen. 290.
59.69 Annotation
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.
59.69 Annotation
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.
59.69 Annotation
Architectural Appearances Ordinances and the 1st Amendment. Rice. 76 MLR 439 (1992).
59.692
59.692
Zoning of shorelands on navigable waters. 59.692(1)(a)
(a) "Department" means the department of natural resources.
59.692(1)(b)
(b) "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):
59.692(1)(b)1.
1. 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.
59.692(1)(b)2.
2. Three hundred feet from a river or stream or to the landward side of the floodplain, whichever distance is greater.
59.692(1)(c)
(c) "Shoreland zoning standard" means a standard for ordinances enacted under this section that is promulgated as a rule by the department.
59.692(1m)
(1m) 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.
59.692(1r)
(1r) 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:
59.692(1r)(a)
(a) The shoreland of Lake Wissota in Chippewa county.
59.692(1r)(b)
(b) The shorelands of Lake Holcombe in Chippewa and Rusk counties.
59.692(1s)(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:
59.692(1s)(a)1.
1. The nonconforming structure was damaged or destroyed after October 14, 1997.
59.692(1s)(a)2.
2. The damage or destruction was caused by violent wind, vandalism, fire or a flood.
59.692(1s)(b)
(b) 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.
59.692(1t)
(1t) 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.
59.692(2)(a)(a) 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.
59.692(2)(b)
(b) 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.
59.692(2)(c)
(c) 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.
59.692(3)
(3) 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 66.30 applies to this section, except that for the purposes of this section an agreement under
s. 66.30 shall be effected by ordinance. If the municipalities as defined in
s. 281.31 are served by a regional planning commission under
s. 66.945, 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.
59.692(4)(b)
(b) 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.
59.692(5)
(5) An ordinance enacted under this section supersedes all provisions of an ordinance enacted under
s. 59.69 that relate to shorelands.
59.692(6)
(6) 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.
59.692(7)(a)(a) 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:
59.692(7)(a)1.
1. 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.
59.692(7)(a)2.
2. 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.
59.692(7)(a)3.
3. 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.
59.692(7)(ad)
(ad) 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. 66.012,
66.014,
66.018 or
66.019 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:
59.692(7)(ad)1.
1. 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.
59.692(7)(ad)2.
2. 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.
59.692(7)(ad)3.
3. 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.
59.692(7)(ag)
(ag) 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.
59.692(7)(ar)
(ar) The county may not enact an amendment under
par. (a) 2. or
(ad) 2. that is less restrictive than the shoreland zoning standards.
59.692(7)(aw)
(aw) Any amendment enacted under
par. (a) 2. shall apply only to the annexed area of the city or village requesting the amendment.
59.692(7)(b)
(b) 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.
59.692(7)(c)
(c) 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.
59.692(7)(d)
(d) As far as applicable, the procedures set forth in
s. 87.30 apply to this subsection.
59.692 Annotation
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 W (2d) 406, 489 NW (2d) 631 (Ct. App. 1992).
59.692 Annotation
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 W (2d) 24, 501 NW (2d) 817 (Ct. App. 1993).
59.692 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 statute takes precedence and the variance should be denied. State v. Kenosha County Board of Adjustment, 218 W (2d) 396, 577 NW (2d) 813 (1998).
59.692 Annotation
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.
59.692 Annotation
Counties may zone lands located within 300 feet of an artificial ditch that is navigable in fact. 63 Atty. Gen. 57.
59.692 Annotation
County shoreland zoning of unincorporated areas adopted under s. 59.971 [now 59.692] is not superseded by municipal extraterritorial zoning under 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.
59.692 Annotation
A county may not enact a shoreland zoning ordinance without a provision regulating nonconforming uses that have been discontinued for 12 months or longer. A county may enact an ordinance without the 50% provision under s. 59.69 (10) (a), in which case common law controls.
OAG 2-97.
59.692 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.
59.693
59.693
Construction site erosion control and storm water management zoning. 59.693(1)
(1)
Definition. In this section, "department" means the department of natural resources.
59.693(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 county may enact a zoning ordinance, that is applicable to all of its unincorporated area, except as provided in
s. 60.627 (2) (b), 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. 59.69.
59.693(4)
(4) Applicability of county zoning provisions; town approval. 59.693(4)(a)(a) Except as otherwise specified in this section,
s. 59.69 applies to any ordinance or amendment to an ordinance enacted under this section, but an ordinance or amendment to an ordinance enacted under this section does not require approval and is not subject to disapproval by any town or town board.
59.693(4)(b)
(b) Variances and appeals regarding construction site erosion control and storm water management regulations under this section are to be determined by the board of adjustment for that county. Procedures under
s. 59.694 apply to these determinations.
59.693(4)(c)
(c) An ordinance enacted under this section supersedes all provisions of an ordinance enacted under
s. 59.69 that relate to construction site erosion control or storm water management regulation.
59.693(6)
(6) Applicability of comprehensive zoning plan or general zoning ordinance. 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.
