2011 - 2012 LEGISLATURE
December 1, 2011 - Introduced by Representatives Steineke, Stroebel, Bies,
Rivard and Jacque, cosponsored by Senators Lasee, Darling and Grothman.
Referred to Committee on Urban and Local Affairs.
1An Act to amend
59.694 (7) (c) and 62.23 (7) (e) 7. of the statutes; relating to:
2the length of time for which a variance applies.
Analysis by the Legislative Reference Bureau
Under current law, a city, village, or town that is authorized to exercise village
powers (municipality) or county is authorized to enact zoning ordinances that
regulate and restrict the height, number of stories, and size of buildings and other
structures, the percentage of lot that may be occupied, the size of yards and other
open spaces, the density of population, and the location and use of buildings,
structures, and land for various purposes.
A municipality's board of appeals or a county's board of adjustment (board) is
authorized under current law to hear and decide appeals that allege there is an error
in the enforcement of a zoning ordinance, to hear and decide special exceptions to the
terms of a zoning ordinance, and to authorize a variance from the terms of a zoning
ordinance. A "use" variance grants permission for a use that is not permitted by the
zoning ordinance, and an "area" variance relaxes restrictions on dimensions, such as
setback, frontage, height, bulk, density, and area. To grant a variance, a board must
find four things:
1. The variance will not be contrary to the public interest.
2. Substantial justice will be done by granting the variance.
3. The variance is needed so that the spirit of the ordinance is observed.
4. Due to special conditions, a literal enforcement of the provisions of the zoning
ordinance will result in unnecessary hardship.
This bill authorizes a municipality or county to enact an ordinance specifying
an expiration date for a variance. If no such ordinance exits, however, the bill
specifies that a variance that is granted does not expire unless the board specifies in
the variance, at the time it is granted, a date after which the variance does not apply.
The bill also codifies a court decision (Goldberg v. Milwaukee Zoning Appeals Board,
115 Wis. 2d 517 (Ct. App. 1983)) stating that a variance runs with the land.
The bill first applies, retroactively, to a variance that was granted before the
effective date of the bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB403, s. 1
59.694 (7) (c) of the statutes is amended to read:
(c) To authorize upon appeal in specific cases variances from the 3
terms of the ordinance that will not be contrary to the public interest, where, owing 4
to special conditions, a literal enforcement of the provisions of the ordinance will 5
result in unnecessary hardship, and so that the spirit of the ordinance shall be 6
observed and substantial justice done. A county board may enact an ordinance
7specifying an expiration date for a variance granted under this paragraph. If no such
8ordinance is in effect, a variance granted under this paragraph does not expire
9unless, at the time it is granted, the board of adjustment specifies in the variance a
10date after which the variance does not apply. A variance granted under this
11paragraph runs with the land.
AB403, s. 2
62.23 (7) (e) 7. of the statutes is amended to read:
(e) 7. The board of appeals shall have the following powers: To hear 14
and decide appeals where it is alleged there is error in any order, requirement, 15
decision or determination made by an administrative official in the enforcement of 16
this section or of any ordinance adopted pursuant thereto; to hear and decide special 17
exception to the terms of the ordinance upon which such board is required to pass 18
under such ordinance; to authorize upon appeal in specific cases such variance from 19
the terms of the ordinance as will not be contrary to the public interest, where, owing
to special conditions, a literal enforcement of the provisions of the ordinance will 2
result in practical difficulty or unnecessary hardship, so that the spirit of the 3
ordinance shall be observed, public safety and welfare secured, and substantial 4
justice done. The council of a city may enact an ordinance specifying an expiration
5date for a variance granted under this subdivision. If no such ordinance is in effect,
6a variance granted under this subdivision does not expire unless, at the time it is
7granted, the board of appeals specifies in the variance a date after which the variance
8does not apply. A variance granted under this paragraph runs with the land.
board may permit in appropriate cases, and subject to appropriate conditions and 10
safeguards in harmony with the general purpose and intent of the ordinance, a 11
building or premises to be erected or used for such public utility purposes in any 12
location which is reasonably necessary for the public convenience and welfare.
(1) This act first applies, retroactively, to a variance that was granted before 15
the effective date of this subsection.