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.
59.693(7)
(7) Applicability of local subdivision regulation. All powers granted to a county under
s. 236.45 may be exercised by the county 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 county has or provides a county planning agency as defined in
s. 236.02 (1).
59.693(8)
(8) Applicability to local governments and agencies. An ordinance that is 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 that is 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).
59.693(9)(a)(a) Except as provided in
par. (c),
s. 66.30 applies to this section, but for the purposes of this section an agreement under
s. 66.30 shall be effected by ordinance.
59.693(9)(b)
(b) If a county is served by a regional planning commission under
s. 66.945 and if the commission consents, the county may empower the commission by ordinance to administer an ordinance that is enacted under this section throughout the county, whether or not the area otherwise served by the commission includes all of that county.
59.693(9)(c)
(c) If the board of commissioners of the Dane county lakes and watershed commission consents, Dane county may empower the commission by ordinance to administer an ordinance that is enacted under this section whether or not the area otherwise served by the commission includes all of Dane county.
Section 66.30 does not apply to this paragraph.
59.693(10)
(10) Validity upon annexation. An ordinance that is enacted under this section by a county that is in effect in an area immediately before the area is annexed by a city or village continues in effect in the area after annexation unless the city or village enacts, maintains and enforces a city or village ordinance which complies with minimum standards established by the department and which is at least as restrictive as the county ordinance enacted under this section. If, after providing notice and conducting a hearing on the matter, the department determines that an ordinance that is enacted by a city or village which is applicable to the annexed area does not meet these standards or is not as restrictive as the county ordinance, the department shall issue an order declaring the city or village ordinance void and reinstating the applicability of the county ordinance to the annexed area.
59.694
59.694
County zoning, adjustment board. 59.694(1)
(1)
Appointment, power. The county board may provide for the appointment of a board of adjustment, and in the regulations and restrictions adopted under
s. 59.69 may provide that the board of adjustment may, in appropriate cases and subject to appropriate conditions and safeguards, make special exceptions to the terms of the ordinance in harmony with its general purpose and intent and in accordance with general or specific rules therein contained. Nothing in this subsection precludes the granting of special exceptions by the county zoning agency designated under
s. 59.69 (2) (a) or the county board in accordance with regulations and restrictions adopted under
s. 59.69 which were in effect on July 7, 1973, or adopted after that date.
59.694(2)(a)(a) In counties with a population of less than 500,000, the board of adjustment shall consist of not more than 5 members as determined by resolution of the county board. The chairperson of the county board shall appoint the members with the approval of the county board for terms of 3 years beginning July 1. The incumbent members shall continue to serve until their terms expire. The county board resolution increasing the size of the board of adjustment shall indicate how many members shall be appointed for 1, 2 and 3 years prior to July 1 of the year in which the change takes effect in making the first appointments. If the county board, by resolution, determines to reduce the membership of the board of adjustment below 5 but not less than 3, one of the positions for which the term expires as determined by lot shall not be filled each year until the requisite number of positions has been reached.
59.694(2)(b)
(b) In counties with a population of 500,000 or more, the board of adjustment shall consist of 3 members who are residents of the county, elected by the county board for terms of 1, 2 and 3 years, respectively, and until their successors are elected and qualify.
59.694(2)(bm)
(bm) The chairperson of the county board may appoint, for staggered 3-year terms, 2 alternate members of the board of adjustment, who are subject to the approval of the county board. Annually, the chairperson of the county board shall designate one of the alternate members as the first alternate and the other as 2nd alternate. The first alternate shall act, with full power, only when a member of the board of adjustment refuses to vote because of a conflict of interest or when a member is absent. The 2nd alternate shall act only when the first alternate refuses to vote because of a conflict of interest or is absent, or if more than one member of the board of adjustment refuses to vote because of a conflict of interest or is absent.
59.694(2)(c)
(c) The members of the board of adjustment, including alternate members, shall all reside within the county and outside of the limits of incorporated cities and villages; provided, however, that no 2 members shall reside in the same town. The board of adjustment shall choose its own chairperson. Office room shall be provided by the county board, and the actual and necessary expenses incurred by the board of adjustment in the performance of its duties shall be paid and allowed as in cases of other claims against the county. The county board may likewise compensate the members of the board of adjustment, including alternate members, and the assistants as may be authorized by the county board. Vacancies shall be filled for the unexpired term of any member whose term becomes vacant.
59.694(3)
(3) Rules, meetings, minutes. The county board shall adopt rules for the conduct of the business of the board of adjustment, in accordance with the provisions of any ordinance enacted under
s. 59.69. The board of adjustment may adopt further rules as necessary to carry into effect the regulations of the county board. Meetings of the board of adjustment shall be held at the call of the chairperson and at such other times as the board of adjustment may determine. The chairperson, or in his or her absence the acting chairperson, may administer oaths and compel the attendance of witnesses. All meetings of the board of adjustment shall be open to the public. The board of adjustment shall keep minutes of its proceedings, showing the vote of each member upon each question, or, if absent or failing to vote, indicating such fact, and shall keep records of its examinations and other official actions, all of which shall be immediately filed in the office of the board of adjustment and shall be a public record.
59.694(4)
(4) Appeals to board. Appeals to the board of adjustment may be taken by any person aggrieved or by any officer, department, board or bureau of the municipality affected by any decision of the building inspector or other administrative officer. Such appeal shall be taken within a reasonable time, as provided by the rules of the board of adjustment, by filing with the officer from whom the appeal is taken and with the board of adjustment a notice of appeal specifying the grounds thereof. The officer from whom the appeal is taken shall forthwith transmit to the board of adjustment all the papers constituting the record upon which the action appealed from was taken.
59.694(5)
(5) Stays. An appeal shall stay all proceedings in furtherance of the action appealed from, unless the officer from whom the appeal is taken shall certify to the board of adjustment after the notice of appeal shall have been filed with that officer that by reason of facts stated in the certificate a stay would cause imminent peril to life or property. In such case proceedings shall not be stayed otherwise than by a restraining order, which may be granted upon application to the board of adjustment or by petition to a court of record, with notice to the officer from whom the appeal is taken.
59.694(6)
(6) Hearing appeals. The board of adjustment shall fix a reasonable time for the hearing of the appeal and publish a class 2 notice thereof under
ch. 985, as well as give due notice to the parties in interest, and decide the same within a reasonable time. Upon the hearing, a party may appear in person or by agent or attorney. In an action involving a historic property, as defined in
s. 44.31 (3), the board of adjustment shall consider any suggested alternatives or recommended decision submitted by the landmarks commission or the planning and zoning committee or commission.
59.694(7)
(7) Powers of board. The board of adjustment shall have all of the following powers:
59.694(7)(a)
(a) To hear and decide appeals where it is alleged there is error in an order, requirement, decision or determination made by an administrative official in the enforcement of
s. 59.69 or of any ordinance enacted pursuant thereto.
59.694(7)(b)
(b) To hear and decide special exceptions to the terms of the ordinance upon which the board is required to pass under such ordinance.
59.694(7)(c)
(c) To authorize upon appeal in specific cases variances from the terms of the ordinance that will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done.
59.694(7)(d)
(d) To grant special exceptions and variances for renewable energy resource systems. If the board denies an application for a special exception or variance for such a system, the board shall provide a written statement of its reasons for denying the application. In this paragraph, "renewable energy resource system" means a solar energy system, a waste conversion energy system, a wind energy system or any other energy system which relies on a renewable energy resource.
59.694(8)
(8) Order on appeal. In exercising the powers under this section, the board of adjustment may, in conformity with the provisions of this section, reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from, and may make the order, requirement, decision or determination as ought to be made, and to that end shall have all the powers of the officer from whom the appeal is taken.
59.694(9)
(9) Majority rule. A majority vote of the board of adjustment shall be necessary to reverse any order, requirement, decision or determination of any such administrative official, or to decide in favor of the applicant on any matter upon which it is required to pass under any such ordinance, or to effect any variation in such ordinance.
59.694(10)
(10) Certiorari. A person aggrieved by any decision of the board of adjustment, or a taxpayer, or any officer, department, board or bureau of the municipality, may, within 30 days after the filing of the decision in the office of the board, commence an action seeking the remedy available by certiorari. The court shall not stay the decision appealed from, but may, with notice to the board, grant a restraining order. The board of adjustment shall not be required to return the original papers acted upon by it, but it shall be sufficient to return certified or sworn copies thereof. If necessary for the proper disposition of the matter, the court may take evidence, or appoint a referee to take evidence and report findings of fact and conclusions of law as it directs, which shall constitute a part of the proceedings upon which the determination of the court shall be made. The court may reverse or affirm, wholly or partly, or may modify, the decision brought up for review.
59.694(14)
(14) Costs. Costs shall not be allowed against the board of adjustment unless it shall appear to the court that it acted with gross negligence, or in bad faith, or with malice in making the decision appealed from. All issues in any proceeding under this section shall have preference over all other civil actions and proceedings.
59.694 Note
Judicial Council Note, 1981: Subsections (11), (12) and (13) have been repealed as unnecessary because in large part they merely describe the remedy of certiorari, which is now available in an ordinary action. See s. 781.01, stats., and the note thereto. Those provisions of the repealed subsections which permit departure from ordinary certiorari procedures, such as augmentation of the record by the court, have been placed in sub. (10). No substantive change in the scope or standard of review is intended. [Bill 613-A]
59.694 Annotation
"Unnecessary hardship" under s. 59.99 [now s. 59.694] (7) (c) means "practical difficulties". Grounds for variances discussed. Snyder v. Waukesha County Zoning Bd. 74 W (2d) 468, 247 NW (2d) 98.
59.694 Annotation
An aggrieved person has the right to appeal to the board of adjustment from a zoning committee's decision to grant conditional use permits. League of Women Voters v. Outagamie County, 113 W (2d) 313, 334 NW (2d) 887 (1983).
59.694 Annotation
Aggrieved residents had the right to appeal even though they did not appear at committee hearings. Commencement of construction, not publication of hearing notices, constituted notice to residents that a permit had been issued. Standard of review discussed. State ex rel. Brookside v. Jefferson Bd. 131 W (2d) 101, 388 NW (2d) 593 (1986).
59.694 Annotation
Filing of a petition for a writ of certiorari, without more, did not satisfy the requirement under s. 59.99 [now s. 59.694] (10) that an action be commenced within 30 days. Schwochert v. Marquette County Bd. 132 W (2d) 196, 389 NW (2d) 841 (Ct. App. 1986).
59.694 Annotation
A trial court must exercise discretion when taking additional evidence pursuant to s. 59.99 [now s. 59.694] (10); if evidence taken is substantially similar to that which the board received, review is confined to a certiorari standard. Klinger v. Oneida County, 149 W (2d) 838, 440 NW (2d) 348 (1989).
59.694 Annotation
Under Brookside, the appeal time begins to run at the time notice is given, if the zoning ordinance has a notice provision, and where there is no notice provision, when the aggrieved parties find out about the decision. DNR v. Walworth County Board of Adjustment, 170 W (2d) 406, 489 NW (2d) 631 (Ct. App. 1992).
59.694 Annotation
Determining the 30-day limitation period under s. 59.99 [now s. 59.694] (10) discussed. DNR v. Walworth County Board of Adjustment, 170 W (2d) 406, 489 NW (2d) 631 (Ct. App. 1992).
59.694 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).
59.694 Annotation
The 30-day period to appeal a decision under s. 59.99 [now s. 59.694] (10) runs from the entry of the original decision in a matter and is not extended by filing a motion to reconsider unless the motion raises a new issue. Bettendorf v. St. Croix County Bd. of Adjustment, 188 W (2d) 311, 525 NW (2d) 89 (Ct. App. 1994).
59.694 Annotation
A variance may be granted where application of the zoning ordinance results in unnecessary hardship and the condition is unique to the parcel. Concerns over the most profitable use of a parcel are not proper grounds for granting variances. State v. Winnebago County, 196 W (2d) 836, 540 NW (2d) 6 (Ct. App. 1995).
59.694 Annotation
While an area variance and an use variance each require unnecessary hardship, there is an "unnecessarily burdensome" test for an area variance while the test for a use variance is "no feasible use". State v. Kenosha County Board of Adjustment, 212 W (2d) 310, 569 NW (2d) 54 (Ct. App. 1997).
59.694 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).
59.694 Annotation
City or village residents are not eligible for service on a county zoning board of adjustment. 61 Atty. Gen. 262.
59.694 Annotation
A self-created or self-imposed hardship does not constitute an unnecessary hardship for which a county zoning board of adjustment may grant a variance, under the provisions of s. 59.99 [now s. 59.694] (7) (c). 62 Atty. Gen. 111.
59.694 Annotation
The extent to which this section authorizes a county board of adjustment to grant zoning variances and review decisions of a county planning and zoning committee discussed. 69 Atty. Gen. 146.
59.694 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.
59.696
59.696
Zoning; filing fees. The board may enact ordinances establishing schedules of reasonable filing fees for the filing of petitions to amend county zoning ordinances and notices of appeal to the board of adjustment from determinations of county zoning authorities and providing for the charging and collection of such filing fees; such fees to be used to partially defray the expenses of holding hearings and giving notices of hearings prescribed in
ss. 59.69 and
59.694.
59.696 History
History: 1995 a. 201 s.
126.
59.697
59.697
Fees for zoning appeals. The board may establish a schedule of fees to be charged for the filing of petitions for amendment and notices of appeal under
ss. 59.69 and
59.694, relating to zoning ordinances.
59.697 History
History: 1995 a. 201 s.
182.
59.698
59.698
Zoning, building inspector. Except as provided under
s. 59.69 (2) (bm), for the enforcement of all laws, ordinances, rules and regulations enacted under
s. 59.69, the board may appoint a building inspector, define the building inspector's duties and fix the building inspector's term of office and compensation.
59.698 History
History: 1995 a. 201 s.
125.
59.70
59.70
Environmental protection and land use. 59.70(1)(1)
Building and sanitary codes. The board may enact building and sanitary codes, make necessary rules and regulations in relation thereto and provide for enforcement of the codes, rules and regulations by forfeiture or otherwise. The codes, rules and regulations do not apply within municipalities which have enacted ordinances or codes concerning the same subject matter. "Sanitary code" does not include a private sewage system ordinance enacted under
sub. (5). "Building and sanitary codes" does not include well code ordinances enacted under
sub. (6).
59.70(2)
(2) Solid waste management. The board of any county may establish and operate a solid waste management system or participate in such system jointly with other counties or municipalities. Except in counties having a population of 500,000 or more, the board of a county or the boards of a combination of counties establishing a solid waste management system may create a solid waste management board to operate the system and such board, in a county that does not combine with another county, shall be composed of not less than 9 nor more than 15 persons of recognized ability and demonstrated interest in the problems of solid waste management, but not more than 5 of the board members may be appointed from the county board of supervisors. In any combination of counties, the solid waste management board shall be composed of 11 members with 3 additional members for each combining county in excess of 2. Appointments shall be made by the county boards of supervisors of the combining counties in a manner acceptable to the combining counties, but each of the combining counties may appoint to the solid waste management board not more than 3 members from its county board of supervisors. The term of office of any member of the solid waste management board shall be 3 years, but of the members first appointed, at least one-third shall be appointed for one year; at least one-third for 2 years; and the remainder for 3 years. Vacancies shall be filled for the residue of the unexpired term in the manner that original appointments are made. Any solid waste management board member may be removed from office by a two-thirds vote of the appointing authority. The solid waste management board may employ a manager for the system. The manager shall be trained and experienced in solid waste management. For the purpose of operating the solid waste management system, the solid waste management board may exercise the following powers:
59.70(2)(a)
(a) Develop a plan for a solid waste management system.
59.70(2)(b)
(b) Within such county or joint county, collect, transport, dispose of, destroy or transform wastes, including, without limitation because of enumeration, garbage, ashes, or incinerator residue, municipal, domestic, agricultural, industrial and commercial rubbish, waste or refuse material, including explosives, pathological wastes, chemical wastes, herbicide and pesticide wastes.
59.70(2)(c)
(c) Acquire lands within the county by purchase, lease, donation or eminent domain, within the county, for use in the solid waste management system.
59.70(2)(d)
(d) Authorize employes or agents to enter lands to conduct reasonable and necessary investigations and tests to determine the suitability of sites for solid waste management activities whenever permission is obtained from the property owner.
59.70(2)(e)
(e) Acquire by purchase, lease, donation or eminent domain easements or other limited interests in lands that are desired or needed to assure compatible land uses in the environs of any site that is part of the solid waste disposal system.
59.70(2)(f)
(f) Establish operations and methods of waste management that are considered appropriate. Waste burial operations shall be in accordance with sanitary landfill methods and the sites shall, insofar as practicable, be restored and made suitable for attractive recreational or productive use upon completion of waste disposal operations.
59.70(2)(g)
(g) Acquire the necessary equipment, use such equipment and facilities of the county highway agency, and construct, equip and operate incinerators or other structures to be used in the solid waste management system.
59.70(2)(h)
(h) Enact and enforce ordinances necessary for the conduct of the solid waste management system and provide forfeitures for violations.
