59.69 Annotation
An existing conditional use permit (CUP) is not a vested property right and the revocation of the permit is not an unconstitutional taking. A CUP merely represents a species of zoning designations. Because landowners have no property interest in zoning designations applicable to their properties, a CUP is not property and no taking occurs by virtue of a revocation. Rainbow Springs Golf Company, Inc. v. Town of Mukwonago,
2005 WI App 163,
284 Wis. 2d 519,
702 N.W.2d 40,
04-1771.
59.69 Annotation
Zoning that restricts land so that the landowner has no permitted use as of right must bear a substantial relation to the health, safety, morals, or general welfare of the public in order to withstand constitutional scrutiny. Town of Rhine v. Bizzell,
2008 WI 76,
311 Wis. 2d 1,
751 N.W.2d 780,
06-0450.
59.69 Annotation
Having a vested interest in the continuance of a use is fundamental to protection of a nonconforming use. There can be no vested interest if the use is not actually and actively occurring at the time the ordinance amendment takes effect. However, it does not follow that any use that is actually occurring on the effective date of the amendment is sufficient to give the owner a vested interest in its continued use. To have a vested interest in the continuation of a use requires that if the continuance of the use were to be prohibited, substantial rights would be adversely affected, which will ordinarily mean that there has been a substantial investment in the use. The longevity of a use and the degree of development of a use are subsumed in an analysis of what investments an owner has made, rather than separate factors to be considered. Town of Cross Plains v. Kitt's “Field of Dreams" Korner, Inc.
2009 WI App 142,
321 Wis. 2d 671,
775 N.W.2d 283,
08-0546.
59.69 Annotation
There must be reasonable reliance on the existing law in order to acquire a vested interest in a nonconforming use. Reasonable reliance on the existing law was not present when the owners knew the existing law was soon to change at the time the use was begun. Town of Cross Plains v. Kitt's “Field of Dreams" Korner, Inc.
2009 WI App 142,
321 Wis. 2d 671,
775 N.W.2d 283,
08-0546.
59.69 Annotation
The town board's recommendation on a form that was signed by the town board and clerk and dated but not certified as a resolution by the town clerk did not effectively satisfy the statutory elements of a certified copy of a resolution under sub. (5) (e) 3. Although the legislature intended the town board to serve as a political check on the otherwise unfettered discretion of the county board in wielding its legislative zoning power, it prescribed a specific procedure by which towns perform that function. Johnson v. Washburn County,
2010 WI App 50,
324 Wis. 2d 366,
781 N.W.2d 706,
09-0371.
59.69 Annotation
When a village eliminated the selling of cars as a conditional use in general business districts a previously granted conditional use permit (CUP) was voided, the property owner was left with a legal nonconforming use to sell cars, and the village could not enforce the strictures of the CUP against the property owner. Therefore, the owner could continue to sell cars in accordance with the historical use of the property, but if the use were to go beyond the historical use of the property, the village could seek to eliminate the property's status as a legal nonconforming use. Hussein v. Village of Germantown Board of Zoning Appeals,
2011 WI App 96,
334 Wis. 2d 764,
800 N.W.2d 551,
10-2178.
59.69 Annotation
A county has the authority under both subs. (1) and (4) and s. 59.70 (22) to enact ordinances regulating billboards and other similar structures. When a town approves a county zoning ordinance under sub. (5) (c) that includes a billboard ordinance, the town's billboard ordinance adopted under s. 60.23 (29) does not preempt a county's authority to regulate billboards in that town. Adams Outdoor Advertising, L.P. v. County of Dane,
2012 WI App 28,
340 Wis. 2d 175,
811 N.W.2d 421,
10-0178.
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 are 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 that has enacted a countywide 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 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
A county's power under sub. (4) is broad enough to encompass regulation of the storage of junked, unused, unlicensed, or abandoned motor vehicles on private property. Because sub. (10) protects “trade or industry," a county zoning ordinance could prohibit an existing non-commercial, nonconforming use or a use that is “casual and occasional."
OAG 2-00.
59.69 Annotation
A county's minimum lot size zoning ordinance applies to parcels created by a court through division in a partition or probate action, even if such division would be exempted from a municipality's subdivision authority under s. 236.45 (2) (am) 1.
OAG 1-14.
59.69 Annotation
Architectural Appearances Ordinances and the 1st Amendment. Rice. 76 MLR 439 (1992).
59.691
59.691
Required notice on certain approvals. 59.691(2)(a)(a) Except as provided in
par. (b), a county that issues a building permit or other approval for construction activity, shall give the applicant a written notice as specified in
subs. (3) and
(4) at the time the building permit is issued.
59.691(2)(b)1.1. A county is not required to give the notice under
par. (a) at the time that it issues a building permit if the county issues the building permit on a standard building permit form prescribed by the department of safety and professional services.
59.691(2)(b)2.
2. A county is not required to give the notice under
par. (a) at the time that it issues a building permit or other approval if the building permit or other approval is for construction activity that does not involve any land disturbing activity including removing protective ground cover or vegetation, or excavating, filling, covering, or grading land.
59.691(3)
(3) Each notice shall contain the following language: “YOU ARE RESPONSIBLE FOR COMPLYING WITH STATE AND FEDERAL LAWS CONCERNING CONSTRUCTION NEAR OR ON WETLANDS, LAKES, AND STREAMS. WETLANDS THAT ARE NOT ASSOCIATED WITH OPEN WATER CAN BE DIFFICULT TO IDENTIFY. FAILURE TO COMPLY MAY RESULT IN REMOVAL OR MODIFICATION OF CONSTRUCTION THAT VIOLATES THE LAW OR OTHER PENALTIES OR COSTS. FOR MORE INFORMATION, VISIT THE DEPARTMENT OF NATURAL RESOURCES WETLANDS IDENTIFICATION WEB PAGE OR CONTACT A DEPARTMENT OF NATURAL RESOURCES SERVICE CENTER."
59.691(4)
(4) The notice required in
sub. (2) (a) shall contain the electronic Web site address that gives the recipient of the notice direct contact with that Web site.
59.691(5)
(5) A county in issuing a notice under this section shall require that the applicant for the building permit sign a statement acknowledging that the person has received the notice.
59.691 History
History: 2009 a. 373;
2011 a. 32.
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)(bn)
(bn) “Shoreland setback area" means an area in a shoreland that is within a certain distance of the ordinary high-water mark in which the construction or placement of structures has been limited or prohibited under an ordinance enacted under this section.
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(1)(e)
(e) “Structure" means a principal structure or any accessory structure including a garage, shed, boathouse, sidewalk, stairway, walkway, patio, deck, retaining wall, porch, or fire pit.
59.692(1c)
(1c) 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(1d)(a)(a) An ordinance enacted under this section may not regulate a matter more restrictively than the matter is regulated by a shoreland zoning standard.
59.692(1d)(b)
(b) Paragraph (a) does not prohibit a county from enacting a shoreland zoning ordinance that regulates a matter that is not regulated by a shoreland zoning standard.
59.692(1f)(a)(a) A county shoreland zoning ordinance may not require a person to do any of the following:
59.692(1f)(a)1.
1. Establish a vegetative buffer zone on previously developed land.
59.692(1f)(b)
(b) A county shoreland zoning ordinance may require a person to maintain a vegetative buffer zone that exists on July 14, 2015, if the ordinance also does all of the following:
59.692(1f)(b)1.
1. Allows the buffer zone to contain a viewing corridor that is at least 35 feet wide for every 100 feet of shoreline frontage.
59.692(1f)(b)2.
2. Allows a viewing corridor to run contiguously for the entire maximum width established under
subd. 1.
59.692(1h)
(1h) If a professional land surveyor licensed under
ch. 443, in measuring a setback from an ordinary high-water mark of a navigable water as required by an ordinance enacted under this section, relies on a map, plat, or survey that incorporates or approximates the ordinary high-water mark in accordance with
s. 236.025, the setback measured is the setback with respect to a structure constructed on that property if all of the following apply:
59.692(1h)(a)
(a) The map, plat, or survey is prepared by a professional land surveyor, licensed under
ch. 443, after April 28, 2016. The same professional land surveyor may prepare the map, plat, or survey and measure the setback.
59.692(1h)(b)
(b) The department has not identified the ordinary high-water mark on its Internet site as is required under
s. 30.102 at the time the setback is measured.
59.692(1k)(a)(a) The department may not impair the interest of a landowner in shoreland property by establishing a shoreland zoning standard, and a county may not impair the interest of a landowner in shoreland property by enacting or enforcing a shoreland zoning ordinance, that does any of the following:
59.692(1k)(a)1.
1. Requires any approval to install or maintain outdoor lighting in shorelands, imposes any fee or mitigation requirement to install or maintain outdoor lighting in shorelands, or otherwise prohibits or regulates outdoor lighting in shorelands if the lighting is designed or intended for residential use.
59.692(1k)(a)2.
2. Except as provided in
par. (b), requires any approval or imposes any fee or mitigation requirement for, or otherwise prohibits or regulates, the maintenance, repair, replacement, restoration, rebuilding, or remodeling of all or any part of a nonconforming structure or a structure of which any part is legally located in the shoreland setback area by operation of a variance granted before July 13, 2015, if the activity does not expand the footprint of the structure.
59.692 Note
NOTE: The cross-reference to par. (b) was changed from subd. 2. by the legislative reference bureau under s. 13.92 (1) (bm) 2. to reflect the renumbering under s. 13.92 (1) (bm) 2. of 59.692 (1k) (a) 2., as created by
2015 Wis. Act 55.
59.692(1k)(a)2m.
2m. Except as provided in
pars. (b) and
(bm), requires any approval or imposes any fee or mitigation requirement for, or otherwise prohibits or regulates, the maintenance, repair, replacement, restoration, rebuilding, or remodeling of all or any part of a structure listed under
sub. (1n) (d) that was legally constructed wholly or partially within the shoreland setback area if the activity does not expand the footprint of the existing structure.
59.692(1k)(a)3.
3. Requires any inspection or upgrade of a structure before the sale or other transfer of the structure may be made.
59.692(1k)(a)4.
4. Requires any approval or imposes any fee or mitigation requirement for, or otherwise prohibits or regulates, the vertical expansion of a nonconforming structure or a structure of which any part is legally located in the shoreland setback area by operation of a variance granted before July 13, 2015, unless the vertical expansion would extend more than 35 feet above grade level.
59.692(1k)(a)6.
6. Prohibits placement in a shoreland setback area of a device or system authorized under
par. (a) 5. [
par. (am) 1.]
59.692 Note
NOTE: The correct cross-reference is shown in brackets. Corrective legislation is pending.
59.692(1k)(am)
(am) The department may not impair the interest of a landowner in shoreland property by establishing a shoreland zoning standard, and a county may not impair the interest of a landowner in shoreland property by enacting or enforcing a shoreland zoning ordinance, that establishes standards for impervious surfaces unless all of the following apply:
59.692(1k)(am)1.
1. The standards provide that a surface is considered pervious if the runoff from the surface is treated by a device or system, or is discharged to an internally drained pervious area, that retains the runoff on or off the parcel to allow infiltration into the soil.
59.692(1k)(am)2.
2. If the standards allow a greater amount of impervious surface on areas with highly developed shorelines than areas with shorelines that are not highly developed, as determined by the department, the standards also require an area with highly developed shorelines to include at least 500 feet of shoreline and require that one of the following applies:
59.692(1k)(am)2.a.
a. The area is composed of a majority of lots with more than 30 percent impervious surface area, as calculated by the county and approved by the department.
59.692(1k)(am)2.b.
b. The area is composed of a majority of lots that are less than 20,000 square feet in area.
59.692(1k)(b)
(b) A county shoreland zoning ordinance shall allow an activity specified under
par. (a) 2. and
2m. to expand the footprint of a nonconforming structure or a structure listed under
sub. (1n) (d) or a structure of which any part is legally located in the shoreland setback area by operation of a variance granted before July 13, 2015,
if the expansion is necessary for the structure to comply with applicable state or federal requirements.
59.692 Note
NOTE: Par. (b) is shown as affected by
2015 Wis. Acts 167 and
391 and as merged by the legislative reference bureau under s. 13.92 (2) (i). The cross-reference to par. (a) 2. was changed from subd. 1. b. by the legislative reference bureau under s. 13.92 (1) (bm) 2. to reflect the renumbering under s. 13.92 (1) (bm) 2. of s. 59.692 (1k) (a) 1. b., as created by
2015 Wis. Act 55.
59.692(1k)(bm)
(bm) A county shoreland zoning ordinance may prohibit an activity specified under
par. (a) 2m. from expanding a structure listed under
sub. (1n) (d) beyond the 3-dimensional building envelope of the existing structure.
59.692(1k)(c)1.1. Nothing in this section prohibits the department from establishing a shoreland zoning standard that allows the vertical or lateral expansion of a nonconforming structure.
59.692(1k)(c)2.
2. Nothing in this section prohibits a county from enacting a shoreland zoning ordinance that allows the vertical or lateral expansion of a nonconforming structure if the ordinance does not conflict with shoreland zoning standards established by the department.
59.692 Note
NOTE: Sub. (1k) was created as sub. (1k) (a) by
2015 Wis. Act 55 and renumbered to sub. (1k) by the legislative reference bureau under s. 13.92 (1) (bm) 2.
59.692(1n)(a)(a) In this subsection, “setback" means the distance that a shoreland setback area extends from the ordinary high-water mark.
59.692(1n)(am)
(am) Except as provided under
pars. (b),
(bm),
(c), and
(d), a county shoreland zoning ordinance shall establish a setback of 75 feet.
59.692(1n)(b)
(b) Except as provided in
pars. (bm) and
(c), if the closest principal structure in each direction along the shoreline to a proposed principal structure exists on an adjacent lot and within 250 feet of the proposed principal structure and both of the existing principal structures are set back less than 75 feet from the ordinary high-water mark, a county shoreland zoning ordinance shall establish a setback equal to the average of the distances that those structures are set back from the ordinary high-water mark but no less than 35 feet.
59.692(1n)(bm)
(bm) If a principal structure exists on an adjacent lot and within 250 feet of a proposed principal structure in only one direction along the shoreline, is the closest principal structure to the proposed principal structure, and is set back less than 75 feet from the ordinary high-water mark, a county shoreland zoning ordinance may establish a setback equal to the average of 75 feet and the distance that the existing structure is set back from the ordinary high-water mark but no less than 35 feet.
59.692(1n)(c)1.1. Except as provided in
subd. 2., if the closest principal structure in each direction along the shoreline to a proposed principal structure exists on an adjacent lot and within 200 feet of the proposed principal structure and both of the existing principal structures are set back more than 75 feet from the ordinary high-water mark at or farther landward from the setback that was required at the time each structure was built, a county shoreland zoning ordinance may establish a setback equal to the average of the setbacks required for those structures at the time they were built.
59.692(1n)(c)2.
2. Subdivision 1. does not apply if the resulting setback limits the placement of the proposed principal structure to an area on which the structure cannot be built.
59.692(1n)(d)
(d) A county shoreland zoning ordinance may not prohibit the construction of any of the following structures within the 75-foot setback requirement under
par. (am):
