62.23(7)(i)9m.
9m. 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
subd. 9. to assert or prove that the existence of the community living arrangement in the city poses a threat to the health, safety or welfare of the residents of the city.
62.23(7)(i)10.
10. A determination made under
subd. 9. shall be made after a hearing before the common council. The city 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 may call witnesses and may issue subpoenas. All witnesses shall be sworn by the common council. The common council shall take notes of the testimony and shall mark and preserve all exhibits. The common council 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 city. Within 20 days after the hearing, the common council 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.
62.23(7a)
(7a) Extraterritorial zoning. The governing body of any city which has created a city plan commission under
sub. (1) and has adopted a zoning ordinance under
sub. (7) may exercise extraterritorial zoning power as set forth in this subsection. Insofar as applicable
sub. (7) (a),
(b),
(c),
(ea),
(h) and
(i) shall apply to extraterritorial zoning ordinances enacted under this subsection. This subsection shall also apply to the governing body of any village.
62.23(7a)(a)
(a) Extraterritorial zoning jurisdiction means the unincorporated area within 3 miles of the corporate limits of a first, second or third class city, or 1 1/2 miles of a fourth class city or a village. Wherever extraterritorial zoning jurisdictions overlap, the provisions of
s. 66.0105 shall apply and any subsequent alteration of the corporate limits of the city by annexation, detachment or consolidation proceedings shall not affect the dividing line as initially determined under
s. 66.0105. The governing body of the city shall specify by resolution the description of the area to be zoned within its extraterritorial zoning jurisdiction sufficiently accurate to determine its location and such area shall be contiguous to the city. The boundary line of such area shall follow government lot or survey section or fractional section lines or public roads, but need not extend to the limits of the extraterritorial zoning jurisdiction. Within 15 days of the adoption of the resolution the governing body shall declare its intention to prepare a comprehensive zoning ordinance for all or part of its extraterritorial zoning jurisdiction by the publication of the resolution in a newspaper having general circulation in the area proposed to be zoned, as a class 1 notice, under
ch. 985. The city clerk shall mail a certified copy of the resolution and a scale map reasonably showing the boundaries of the extraterritorial jurisdiction to the clerk of the county in which the extraterritorial jurisdiction area is located and to the town clerk of each town, any part of which is included in such area.
62.23(7a)(b)
(b) The governing body may enact, without referring the matter to the plan commission, an interim zoning ordinance to preserve existing zoning or uses in all or part of the extraterritorial zoning jurisdiction while the comprehensive zoning plan is being prepared. Such ordinance may be enacted as is an ordinary ordinance but shall be effective for no longer than 2 years after its enactment, unless extended as provided in this paragraph. Within 15 days of its passage, the governing body of the city shall publish the ordinance in a newspaper having general circulation in the area proposed to be zoned as a class 1 notice, under
ch. 985, and the city clerk shall mail a certified copy of the ordinance to the clerk of the county in which the extraterritorial jurisdiction is located and to the clerk of each town affected by the interim zoning ordinance and shall file a copy of the ordinance with the city plan commission. The governing body of the city may extend the interim zoning ordinance for no longer than one year, upon the recommendation of the joint extraterritorial zoning committee established under
par. (c). No other interim zoning ordinance shall be enacted affecting the same area or part thereof until 2 years after the date of the expiration of the interim zoning ordinance or the one year extension thereof. While the interim zoning ordinance is in effect, the governing body of the city may amend the districts and regulations of the ordinance according to the procedure set forth in
par. (f).
62.23(7a)(c)
(c) If the governing body of the city adopts a resolution under
par. (a), it shall direct the plan commission to formulate tentative recommendations for the district plan and regulations within all or a part of the extraterritorial zoning jurisdiction as described in the resolution adopted under
par. (a). When the plan commission is engaged in the preparation of such district plan and regulations, or amendments thereto, a joint extraterritorial zoning committee shall be established. Such joint committee shall consist of 3 citizen members of the plan commission, or 3 members of the plan commission designated by the mayor if there are no citizen members of the commission, and 3 town members from each town affected by the proposed plan and regulations, or amendments thereto. The 3 town members shall be appointed by the town board for 3 year terms and shall be residents of the town and persons of recognized experience and qualifications. Town board members are eligible to serve. If the town board fails to appoint the 3 members within 30 days following receipt of the certified resolution under
par. (a), the board shall be subject to a mandamus proceeding which may be instituted by any resident of the area to be zoned or by the city adopting such resolution. The entire plan commission shall participate with the joint committee in the preparation of the plan and regulations, or amendments thereto. Only the members of the joint committee shall vote on matters relating to the extraterritorial plan and regulations, or amendments thereto. A separate vote shall be taken on the plan and regulations for each town and the town members of the joint committee shall vote only on matters affecting the particular town which they represent. The governing body shall not adopt the proposed plan and regulations, or amendments thereto, unless the proposed plan and regulations, or amendments thereto, receive a favorable vote of a majority of the 6 members of the joint committee. Such vote shall be deemed action taken by the entire plan commission.
62.23(7a)(d)
(d) The joint committee shall formulate tentative recommendations for the district plan and regulations and shall hold a public hearing thereon. Notice of a hearing shall be given by publication in a newspaper having general circulation in the area to be zoned, as a class 2 notice, under
ch. 985, during the preceding 30 days, and by mailing the notice to the town clerk of the town for which the plan and regulations are proposed. The notice shall contain the layout of tentative districts either by maps or words of description, and may contain the street names and house lot numbers for purposes of identification if the joint committee or the governing body so determines. At a public hearing an opportunity to be heard shall be afforded to representatives of the town board of the town and to any person in the town for which the plan and regulations are proposed.
62.23(7a)(e)
(e) The governing body of the city may adopt by ordinance the proposed district plan and regulations recommended by the joint committee after giving notice and holding a hearing as provided in
par. (d), or the governing body may change the proposed districts and regulations after first submitting the proposed changes to the joint committee for recommendation and report. The joint committee and the governing body may hold a hearing on the proposed changes after giving notice as provided in
par. (d). The joint committee recommendation on the proposed changes shall be submitted to the governing body in accordance with the voting requirements set forth in
par. (c).
62.23(7a)(f)
(f) The governing body of the city may amend the districts and regulations of the extraterritorial zoning ordinance after first submitting the proposed amendment to the joint committee for recommendation and report. The procedure set forth in
pars. (c),
(d) and
(e) shall apply to amendments to the extraterritorial zoning ordinance. In the case of a protest against an amendment the applicable provisions under
sub. (7) (d) shall be followed.
62.23(7a)(g)
(g) Insofar as applicable the provisions of
subs. (7) (e),
(f),
(8) and
(9) shall apply. The governing body of a city which adopts an extraterritorial zoning ordinance under this subsection may specifically provide in the ordinance for the enforcement and administration of this subsection. A town which has been issuing building permits may continue to do so, but the city building inspector shall approve such permits as to zoning prior to their issuance.
62.23(8)
(8) Other measures of enforcement and remedies; penalty. Any building erected, constructed or reconstructed in violation of this section or regulations adopted pursuant thereto shall be deemed an unlawful structure, and the building inspector or city attorney or other official designated by the council may bring action to enjoin such erection, construction or reconstruction, or cause such structure to be vacated or removed. It shall be unlawful to erect, construct or reconstruct any building or structure in violation of this section or regulations adopted pursuant thereto. Any person, firm or corporation violating such provisions shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined not more than $500. Each and every day during which said illegal erection, construction or reconstruction continues shall be deemed a separate offense. In case any building or structure is or is proposed to be erected, constructed or reconstructed, or any land is or is proposed to be used in violation of this section or regulations adopted pursuant thereto, the building inspector or the city attorney or any adjacent or neighboring property owner who would be specially damaged by such violation, may, in addition to other remedies provided by law, institute injunction, mandamus, abatement or any other appropriate action or proceeding to prevent or enjoin or abate or remove such unlawful erection, construction or reconstruction.
62.23(9)(a)(a) The city council may provide for the enforcement of this section and all other laws and ordinances relating to buildings by means of the withholding of building permits, imposition of forfeitures and injunctive action, and for such purposes may establish and fill the position of building inspector. From and after the establishment of such position and the filling of the same, it shall be unlawful to erect, construct or reconstruct any building or other structure without obtaining a building permit from such building inspector; and such building inspector shall not issue any permit unless the requirements of this section are complied with.
62.23(9)(b)
(b) The council may by ordinance designate general fire limits and regulate for safety and fire prevention the construction, alteration, enlargement and repair of buildings and structures within such limits, and may designate special fire limits within the general limits, and prescribe additional regulations therein. Any such proposed ordinance or amendment thereto shall be referred to the city plan commission, if such commission exists, for consideration and report, before final action is taken thereon by the council. However, no such ordinance or amendment thereto shall be adopted or become effective until after a public hearing in relation thereto, which may be held by the city plan commission or council, at which parties in interest and citizens shall have an opportunity to be heard. Notice of the time and place of the hearing shall be published as a class 2 notice, under
ch. 985.
62.23(9a)
(9a) May exercise powers of board of public land commissioners. In cities of the first class, said city plan commission may exercise all of the powers conferred on board of public land commissioners under
s. 27.11.
62.23(10)(a)(a) When the council by resolution declares it necessary for the public use to widen any street or a part thereof, it may proceed as prescribed in
ch. 32, except as herein modified. The determination of necessity by the council shall not be a taking, but shall be an establishment of new future boundary lines.
62.23(10)(b)
(b) After such establishment no one shall erect any new structure within the new lines, nor rebuild or alter the front or add to the height of any existing structure without receding the structure to conform to the new lines. No damages shall be received for any construction in violation hereof.
62.23(10)(c)
(c) The council may at any time after the establishment of new lines provide compensation for any of the lands to be taken, whereupon such lands shall be deemed taken, and the required further proceedings shall be commenced.
62.23(10)(d)
(d) If a structure on lands taken under this subsection is not removed after 3 months' written notice served in the manner directed by the council, the city may cause it to be removed, and may dispose of it and apply the proceeds to the expense of removal. Excess proceeds shall be paid to the owner. Excess expenses shall be a lien on the rest of the owner's land abutting on the street to be widened under this subsection. If the excess expenses are not paid, they shall be assessed against the owner's land abutting on the street and collected as are other real estate taxes. If the owner does not own the adjoining piece of land abutting on the new line, the owner shall be personally liable to the city for the expense of removal.
62.23(10)(e)
(e) Until the city has taken all of the lands within the new lines, it may lease any taken lands, to the person owning the taken lands at the time of the taking, at an annual rental of not more than 5% of the amount paid for the taken lands by the city or of the market value, if the lands were donated. Improvements may be maintained on the leased lands until all lands within the new lines are taken, whereupon the improvements shall be removed as provided in
par. (d). No damages shall be had for improvements made under a lease entered into under this paragraph.
62.23(11)(a)(a) The council may by ordinance, in districts consisting of one side of a block or more, establish the distance from the street that structures may be erected. The city engineer shall thereupon make a survey and plat, and report the same, with description of any structure then situated contrary to such ordinance, to the council.
62.23(11)(b)
(b) The council may by ordinance make such regulation or prohibition of construction on any parts of lots or parcels of land or on any specified part of any particular realty, as shall be for the public health, safety or welfare.
62.23(11)(c)
(c) Whenever to carry out any ordinance under this subsection it is necessary to take property for public use, the procedure of
ch. 32 shall be followed.
62.23(13)
(13) Funds. Funds to carry out the purposes of this section may be raised by taxation or by bonds issued as provided in
ss. 67.05,
67.06,
67.07,
67.08 and
67.10.
62.23(14)
(14) Assessments. The expense of acquiring, establishing, laying out, widening, enlarging, extending, paving, repaving and improving streets, arterial highways, parkways, boulevards, memorial grounds, squares, parks and playgrounds, and erecting bridges under any plan adopted by the common council pursuant to this section or
s. 27.11, including the cost of all lands and improvements thereon which it is necessary to acquire to carry out such plan, whether acquired by direct purchase or lease, or through condemnation, and also including the cost of constructing any bridge, viaduct or other improvement which is a part of the plan adopted by the common council, may be assessed, in whole or in part, to the real estate benefited thereby, in the same manner in which under existing law in such city benefits and damages are assessable for improvements of streets. Whenever plans are adopted which are supplementary to each other the common council may by ordinance combine such plans into a single plan within the meaning of this section.
Section 66.0713 shall apply to all assessments made under this subsection.
62.23(15)
(15) Excess condemnation. Whenever any of the purposes of
sub. (14) are planned to be carried out by excess condemnation, benefits may be assessed in the manner provided in said subsection.
62.23(16)
(16) Benefits from public buildings. Any benefits of public buildings and groups thereof may be assessed in the manner provided in
s. 62.23 (14).
62.23(17)(a)(a) Cities may acquire by gift, lease, purchase or condemnation any lands (a) within its corporate limits for establishing, laying out, widening, enlarging, extending and maintaining memorial grounds, streets, squares, parkways, boulevards, parks, playgrounds, sites for public buildings, and reservations in and about and along and leading to any or all of the same; (b) any lands adjoining or near to such city for use, sublease or sale for any of the following purposes:
62.23(17)(a)1.
1. To relieve congested sections by providing housing facilities suitable to the needs of such city;
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;
1997 a. 3,
35,
246;
1999 a. 9,
148;
1999 a. 150 s.
672;
2001 a. 30 ss.
16,
17,
108;
2001 a. 50.
62.23 Annotation
A contract made by a zoning authority to zone, 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 Wis. 2d 22,
174 N.W.2d 533 (1970).
62.23 Annotation
The rezoning of one parcel in a neighborhood shopping area for local business was not a violation of s. 62.23 (7) (b) because there was no minimum size requirement and "local business" was not substantially different from "neighborhood shopping." State ex rel. Zupancic v. Schimenz,
46 Wis. 2d 22,
174 N.W.2d 533 (1970).
62.23 Annotation
Spot rezoning from residential to industrial is arbitrary and unreasonable when 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 Wis. 2d 303,
177 N.W.2d 74 (1970).
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 Wis. 2d 51,
197 N.W.2d 772 (1972).
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 a 42 acre parcel cannot be considered spot zoning. Rodgers v. Menomonee Falls,
55 Wis. 2d 563,
201 N.W.2d 29 (1972).
62.23 Annotation
A zoning ordinance adopted by a new city that changed the zoning of the former town did not expire in 2 years under sub. (7) (da), even though labeled an interim ordinance. New Berlin v. Stein,
58 Wis. 2d 417,
206 N.W.2d 207 (1973).
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 Foundation v. Walworth County,
59 Wis. 2d 296,
208 N.W.2d 113 (1973).
62.23 Annotation
A challenge to a refusal by the board of appeals to hear an appeal on the grounds of an alleged 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. Village of Menomonee Falls,
60 Wis. 2d 653,
211 N.W.2d 477 (1973).
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 Wis. 2d 691,
221 N.W.2d 869 (1973).
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 valid 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 the conditions are met in the first instance. Konkel v. Delafield Common Council,
68 Wis. 2d 574,
229 N.W.2d 606 (1975).
62.23 Annotation
The minimum requirements of sub. (7) (a) do not include publication of a map. Proof of a nonconforming use is discussed. City of Lake Geneva v. Smuda,
75 Wis. 2d 532,
249 N.W.2d 783 (1977).
62.23 Annotation
When the zoning board of appeals had power under sub. (7) (e) 1. and 7. to invalidate conditions imposed by the plan commission and to afford relief to affected property owners without invalidating a disputed ordinance, the owners' failure to challenge the conditions before the board precluded the owners from challenging in court as unconstitutional the commission's implementation of the ordinance. Nodell Investment Corp. v. Glendale,
78 Wis. 2d 416,
254 N.W.2d 310 (1977).
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 a city to freeze the more restrictive of zoning or uses. Town of Grand Chute v. City of Appleton,
91 Wis. 2d 293,
282 N.W.2d 629 (Ct. App. 1979).
62.23 Annotation
A zoning board acted in excess of its power by reopening a proceeding that had once been terminated. Goldberg v. Milwaukee Zoning Appeals Board,
115 Wis. 2d 517,
340 N.W.2d 558 (Ct. App. 1983).
62.23 Annotation
Notice under sub. (7) (d) 1. b. is required when a proposed amendment makes a substantial change. Herdeman v. City of Muskego,
116 Wis. 2d 687,
343 N.W.2d 814 (Ct. App. 1983).
62.23 Annotation
A zoning ordinance that denied an owner the entire use value of its property was unconstitutional. State ex rel. Nagawicka Is. Corp. v. Delafield,
117 Wis. 2d 23,
343 N.W.2d 816 (Ct. App. 1983).
62.23 Annotation
A zoning ordinance itself can be the "comprehensive plan" required by sub. (7) (c). No separate comprehensive plan need be adopted by a city as a condition precedent to enacting a zoning ordinance. Bell v. City of Elkhorn,
122 Wis. 2d 558,
364 N.W.2d 144 (1985).
62.23 Annotation
A city had no authority to elect against the notice provisions of sub. (7) (d). Gloudeman v. City of St. Francis,
143 Wis. 2d 780,
422 N.W.2d 864 (Ct. App. 1988).
62.23 Annotation
Under sub. (7) (e) 7., the board does not have authority to invalidate a zoning ordinance and must accept the ordinance as written. Ledger v. Waupaca Board of Appeals,
146 Wis. 2d 256,
430 N.W.2d 370 (Ct. App. 1988).
62.23 Annotation
Sub. (7) (e) 1. allows a municipality to provide by ordinance that a town board has exclusive authority to consider special exception permit applications; the board of appeals retains exclusive authority absent a municipal ordinance granting power to the town board. Town of Hudson v. Hudson Town Board of Adjustment,
158 Wis. 2d 263,
461 N.W.2d 827 (Ct. App. 1990).
62.23 Annotation
Impermissible prejudice of an appeals board member is discussed. Marris v. City of Cedarburg,
176 Wis. 2d 14,
498 N.W.2d 843 (1993).
62.23 Annotation
Sub. (7a) requires a cooperative effort in implementing extraterritorial zoning that 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 Wis. 2d 74,
503 N.W.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 Wis. 2d 205,
504 N.W.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 Wis. 2d 59,
510 N.W.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 Wis. 2d 1,
515 N.W.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 Wis. 2d 96,
515 N.W.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 Wis. 2d 18,
522 N.W.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 Wis. 2d 374,
525 N.W.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 when the subject property owner acquiesced to the error for many years. Brooks v. Hartland Sportsman's Club,
192 Wis. 2d 606,
531 N.W.2d 445 (Ct. App. 1995).
62.23 Annotation
When 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 Wis. 2d 157,
540 N.W.2d 189 (1995).
62.23 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 Wis. 2d 214,
562 N.W.2d 412 (1997).
62.23 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 to put the property to a use that 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 Wis. 2d 599,
565 N.W.2d 279 (Ct. App. 1997).
62.23 Annotation
A municipal attorney may not serve as both prosecutor and advisor to the tribunal in a hearing under sub. (7) (i). Nova Services, Inc. v. Village of Saukville,
211 Wis. 2d 690,
565 N.W.2d 283 (Ct. App. 1997).
62.23 Annotation
Sub. (7a) authorizes transfer of zoning administration and enforcement to cities and villages upon enactment of an interim extraterritorial ordinance. Filing an application for a conditional use permit prior to adoption of the interim ordinance did not prevent the transfer of decision making; the applicant had no vested right by virtue of having requested a permit whose issuance was discretionary. Village of DeForest v. County of Dane,
211 N.W.2d 802,
565 N.W.2d 296 (Ct. App. 1997).
62.23 Annotation
An area variance and a use variance each require unnecessary hardship, but 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 Wis. 2d 310,
569 N.W.2d 54 (Ct. App. 1997).
62.23 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 Wis. 2d 332,
569 N.W.2d 784 (Ct. App. 1997).
62.23 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 Wis. 2d 396,
577 N.W.2d 813 (1998). See also State v. Outagamie, 2001 WI 78,
251 Wis. 2d 484,
628 N.W.2d 376.
62.23 Annotation
A certiorari action exists only to test the validity of judicial or quasi-judicial determinations. It does not allow for answers, denials, or defenses by the respondent. Merkel v. Village of Germantown,
218 Wis. 2d 572,
581 N.W.2d 552 (Ct. App. 1998).
62.23 Annotation
It is within the power of the court to deny a municipality's request for injunctive relief when 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 Wis. 2d 655,
579 N.W.2d 715 (1998).
62.23 Annotation
Sub. (7) (e) 6. does not mandate a hearing for each variance application-only those that satisfy the legal requirements for applications. A city rule that a variance request would not be reheard unless accompanied by evidence of a substantial change of circumstances did not violate due process or equal protection guarantees. Denial of a variance based on the rule was not arbitrary and capricious. Tateoka v. City of Waukesha Board of Zoning Appeals,
220 Wis. 2d 656,
583 N.W.2d 873 (Ct. App. 1998).
62.23 Annotation
Construction in violation of zoning, even when authorized by a voluntarily issued permit, is unlawful. Those who build in violation of zoning rules are not shielded from razing under sub. (8) because construction was completed before the lawfulness of the zoning was determined. However, in rare cases, there may be compelling equitable reasons when a requested order of abatement should not be issued. Lake Bluff v. City of South Milwaukee,
222 Wis. 2d 222,
588 N.W.2d 45 (Ct. App. 1998).
62.23 Annotation
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).
62.23 Annotation
A conditional use permit did not impose a condition that the conditional use not be conducted outside the permitted area. It was improper to revoke the permit based on that use. An enforcement action in relation to the parcel where the use was not permitted is an appropriate remedy. Bettendorf v. St. Croix County Board of Adjustment,
224 Wis. 2d 735,
591 N.W.2d 916 (Ct. App.1999).
62.23 Annotation
Once a municipality has shown an illegal change in use to a nonconforming use, the municipality is entitled to terminate the entire nonconforming use. The decision is not within the discretion of the court reviewing the order. Village of Menomonee Falls v. Preuss,
225 Wis. 2d 746,
593 N.W.2d 496 (Ct. App. 1999).
62.23 Annotation
To violate substantive due process guarantees, a zoning decision must involve more than simple errors in law or an improper exercise of discretion; it must shock the conscience. The city's violation of a purported agreement regarding zoning was not a violation. A court cannot compel a political body to adhere to an agreement regrading zoning if it has legitimate reasons for breaching. Eternalist Foundation v. City of Platteville,
225 Wis. 2d 759,
593 N.W.2d 84 (Ct. App. 1999).
62.23 Annotation
Review of a certiorari action is limited to determining: 1) whether the board kept within its jurisdiction; 2) whether the board proceeded on a correct theory of law; 3) whether the board's action was arbitrary, oppressive, or unreasonable; and 4) whether the evidence was such that the board might reasonably make its order. Kapischke v. County of Walworth,
226 Wis. 2d 320,
595 N.W.2d 42 (Ct. App. 1999).
62.23 Annotation
Zoning may not be legislated or modified by initiative under s. 9.20. An ordinance constituting a pervasive regulation of, or prohibition on, the use of land is zoning. Heitman v. City of Mauston,
226 Wis. 2d 542,
595 N.W.2d 450 (Ct. App. 1999).
62.23 Annotation
A town with village powers has the authority to adopt ordinances authorizing its plan commission to review and approve industrial site plans before issuing a building permit. An ordinance regulating development need not be created with a particular degree of specificity other than is necessary to give developers reasonable notice of the areas of inquiry that the town will examine in approving or disapproving proposed sites. Town of Grand Chute v. U.S. Paper Converters, Inc.
229 Wis. 2d 674,
600 N.W.2d 33 (Ct. App. 1999).
62.23 Annotation
The state, in administering the Fair Housing Act, may not order a zoning board to issue a variance based on characteristics unique to the landowner rather than the land. County of Sawyer Zoning Board v. Department of Workforce Development,
231 Wis. 2d 534,
605 N.W.2d 627 (Ct. App. 1999).
