60.22 Annotation
There is a four-part test in evaluating whether a municipality may regulate a matter of state-wide concern: 1) whether the legislature has expressly withdrawn the power of municipalities to act; 2) whether the ordinance logically conflicts with the state legislation; 3) whether the ordinance defeats the purpose of the state legislation; or 4) whether the ordinance goes against the spirit of the state legislation. Anchor Savings and Loan Ass'n v. Madison EOC,
120 Wis. 2d 391,
355 N.W.2d 234 (1984).
60.22 Annotation
The state regulatory scheme for tobacco sales preempts municipalities from adopting regulations that are not in strict conformity with those of the state. U.S. Oil, Inc. v. City of Fond du Lac,
199 Wis. 2d 333,
544 N.W.2d 589 (Ct. App. 1995),
95-0213.
60.22 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),
98-2797.
60.22 Annotation
A town board exercising village powers is not entitled to purchase land and contract for construction when doing so would conflict with statutes relating to towns and town boards. The village board power to acquire land and construct buildings under s. 61.34 (3) is in direct conflict with s. 60.10 (2) (e) and (f), which relates to towns and town boards and which confers that power of authorization on the town meeting. Town of Clayton v. Cardinal Construction Co.,
2009 WI App 54,
317 Wis. 2d 424,
767 N.W.2d 605,
08-1793.
60.22 Annotation
The line distinguishing general police power regulation from zoning ordinances is far from clear. The question of whether a particular enactment constitutes a zoning ordinance is often a matter of degree. Broad statements of the purposes of zoning and the purposes of an ordinance are not helpful in distinguishing a zoning ordinance from an ordinance enacted pursuant to non-zoning police power. The statutorily enumerated purposes of zoning are not the exclusive domain of zoning regulation. A more specific and analytically helpful formulation of the purpose of zoning, at least in the present case, is to separate incompatible land uses. Multiple factors are considered and discussed. Zwiefelhofer v. Town of Cooks Valley,
2012 WI 7,
338 Wis. 2d 488,
809 N.W.2d 362,
10-2398.
60.22 Annotation
Permitting general town regulation of shorelands under village powers conflicts with the statutory scheme of ss. 59.692 and 281.31, which, by their plain language, appear to deliberately exclude towns from having shoreland zoning authority, except in the circumstance identified in s. 59.692 (2) (b) [now s. 59.692 (2) (b), (bg), and (bm)]. Hegwood v. Town of Eagle Zoning Board of Appeals,
2013 WI App 118,
351 Wis. 2d 196,
839 N.W.2d 111,
12-2058.
60.23
60.23
Miscellaneous powers. The town board may:
60.23(1)
(1)
Joint participation. Cooperate with the state, counties and other units of government under s.
66.0301, including cooperative arrangements involving the acquisition, development, remodeling, construction, equipping, operation and maintenance of land, buildings and facilities for regional projects, whether or not located in the town.
60.23(2)
(2)
Utility districts. Establish utility districts under s.
66.0827 and provide that any convenience or public improvement in the district be paid for under that section.
60.23(3)
(3)
Appropriations for civic and other functions. If authorized under s.
60.10 (3) (b), appropriate reasonable amounts of money for gifts or donations to be used to:
60.23(3)(a)
(a) Further civic functions and agricultural societies.
60.23(3)(b)
(b) Advertise the attractions, advantages and natural resources of the town.
60.23(3)(e)
(e) Establish, maintain and repair ecological areas.
60.23(3)(f)
(f) Provide for the organization, equipment and maintenance of a town museum or a municipal band, or for the employment of other bands to give concerts and municipal entertainment in the town.
60.23(3)(g)
(g) Construct or otherwise acquire, equip, furnish, operate and maintain, with the county in which the town is located, a county-town auditorium. The provisions of s.
66.0925, as they apply to cities, shall apply to towns, and the powers and duties conferred and imposed by s.
66.0923 upon mayors, councils and specified city officials are hereby conferred upon town board chairpersons, town boards and town officials performing duties similar to the duties of such specified city officials respectively, except those provisions or powers that conflict with statutes relating to towns and town boards.
60.23(4)
(4)
Town industrial development agency. In order to promote and develop the resources of the town, appropriate money for and create a town industrial development agency or appoint an executive officer and provide staff and facilities for a nonprofit organization organized to act under this subsection. A town industrial development agency created under this subsection may:
60.23(4)(a)
(a) Develop data regarding the industrial needs of, advantages of and sites in the town.
60.23(4)(b)
(b) Engage in promotional activities to acquaint prospective purchasers with industrial products manufactured in the town.
60.23(4)(c)
(c) Coordinate its activities with the county planning commission, the Wisconsin Economic Development Corporation, and private credit development organizations.
60.23(4)(d)
(d) Engage in any other activity necessary for the continued improvement of the town's industrial climate.
60.23(6)
(6)
Conservation of natural resources. If authorized by the town meeting under s.
60.10 (3) (a), appropriate money for the conservation of natural resources or for payment to a bona fide nonprofit organization for the conservation of natural resources within the town or beneficial to the town. No payment may be made to a nonprofit organization unless the organization submits and the town board approves a detailed plan of the work to be done. The plan shall include the name of the owner of any property on which work is to be performed.
60.23(8)
(8)
Emergency pest and disease control. Appropriate money for the control of insects, weeds or plant or animal diseases if:
60.23(8)(a)
(a) An emergency arises within the town due to insects, weeds or plant or animal diseases; and
60.23(8)(b)
(b) The board determines that any delay resulting from calling a special town meeting to authorize the town board to appropriate money for this purpose under s.
60.10 (3) (c) would result in serious harm to the general welfare of the town.
60.23(9)
(9)
Resident health care providers in certain towns. In a town comprised entirely of one or more islands, annually appropriate money to retain a physician or, if no physician is available, a physician assistant, naturopathic doctor, or nurse practitioner, as a resident within the town.
60.23(10)
(10)
Bowling centers, dance halls, roadhouses, places of amusement, pool tables and amusement devices. Regulate, including the licensing of, bowling centers, dance halls, roadhouses, other places of amusement, billiard and pool tables and amusement devices maintained in commercial facilities. If a license is required, the board shall establish the term of the license, not to exceed one year, and the license fee. The board may suspend or revoke, for cause, a license issued under this subsection. Any person violating a regulation adopted under this subsection shall forfeit to the town an amount established by the town board.
60.23(12)
(12)
Reimbursement of school districts for providing transportation in hazardous areas. Reimburse a school district for costs incurred by the district under s.
121.54 (9) in transporting pupils who reside in the town.
60.23(13)
(13)
Exchange tax credit for county land. Authorize the town treasurer to exchange any credit the town has with the county, arising from delinquent real estate taxes, for county-owned land.
60.23(14)
(14)
Associations of towns. Appropriate money to purchase membership in any association of town boards for the protection of town interests and improvement of town government.
60.23(15)
(15)
Vacation of alleys. Vacate any alley in the town under s.
66.1003. The town board may not vacate, under this subsection, an alley adjacent to land fronting a state or county trunk highway.
60.23(17)
(17)
Change street names. Name, or change the name of, any street in the town under s.
82.03 (7).
60.23(17m)
(17m)
Neighborhood watch program and signs. Authorize a neighborhood watch program. The town board may place within the right-of-way of a street or highway under the jurisdiction of the town a neighborhood watch sign of a uniform design approved by the department of transportation. If the town board obtains the approval of the county board, the town board may place a sign under this subsection within the right-of-way of a county trunk highway within the limits of the town. No sign under this subsection may be placed within the right-of-way of a highway designated as part of the national system of interstate and defense highways.
60.23(19)
(19)
Fences in subdivisions. If authorized under s.
60.10 (2) (c) to exercise village powers, by ordinance require a subdivider to construct a fence under s.
90.02 on the boundary of a subdivision, as defined under s.
236.02 (8), as a condition of plat approval by the town. The fence shall be maintained under s.
90.05 (2) and repaired under ss.
90.10 and
90.11.
60.23(20)
(20)
Disposition of dead animals. Notwithstanding s.
59.54 (21), dispose of any dead animal within the town or contract for the removal and disposition with any private disposal facility. A town may enter into a contract with any other governmental unit under s.
66.0301 to provide for the removal and disposition. A town may recover its costs under this subsection by imposing a special charge under s.
66.0627.
60.23(22)
(22)
Contribution to truancy. If the town board has established a municipal court under s.
755.01 (1), adopt an ordinance to prohibit conduct that is the same as or similar to that prohibited by s.
948.45 and impose a forfeiture for a violation of the ordinance.
60.23(22m)
(22m)
School attendance. If the town board has established a municipal court under s.
755.01 (1), enact and enforce an ordinance to impose a forfeiture, which is the same as the fine provided under s.
118.15 (5), upon a person having under his or her control a child who is between the ages of 6 and 18 years and whose child is not in compliance with s.
118.15.
60.23(23)
(23)
Power to prohibit certain conduct. Enact and enforce ordinances, and provide forfeitures for violations of those ordinances, that prohibit conduct which is the same as or similar to that prohibited by chs.
941 to
948, except as provided in s.
66.0107 (3).
60.23(25)
(25)
Self-insured health plans. Provide health care benefits to its officers and employees on a self-insured basis, subject to s.
66.0137 (4).
60.23(27)
(27)
Town housing authorities, blighted areas. Engage in certain housing and redevelopment activities. The provisions of ss.
66.1201 to
66.1211,
66.1301 to
66.1329,
66.1331 to
66.1333 and
66.1335, except the provisions of s.
66.1201 (10) and any other provisions that conflict with statutes relating to towns and town boards, apply to towns, and the powers and duties conferred and imposed by ss.
66.1201 to
66.1211,
66.1301 to
66.1329,
66.1331 to
66.1333 and
66.1335, except the powers and duties conferred and imposed by s.
66.1201 (10) and any other powers that conflict with statutes relating to towns and town boards, upon mayors, common councils and specified city officials are conferred upon town board chairpersons, town boards and town officials performing duties similar to the duties of the specified city officials and common councils respectively. Any town housing authorities created under this subsection may participate in any state grants-in-aid for housing in the same manner as city housing authorities created under ss.
66.1201 to
66.1211.
60.23(28)
(28)
Safety buildings. Construct, acquire, equip, furnish, operate and maintain a safety building. The provisions of s.
66.0925, as they apply to cities, shall apply to towns, and the powers and duties conferred and imposed by s.
66.0925 upon mayors, common councils and specified city officials are hereby conferred upon town board chairpersons, town boards and town officials performing duties similar to the duties of such specified city officials and common councils respectively, except those provisions or powers that conflict with statutes relating to towns and town boards.
60.23(29)
(29)
Billboard regulation. Enact and enforce an ordinance, and provide a forfeiture for a violation of the ordinance, that regulates the maintenance and construction of billboards and other similar structures on premises abutting on highways in the town that are maintained by the town or by the county in which the town is located so as to promote the safety of public travel on the highways.
60.23(30)
(30)
Riding horses, dogs running at large. Enact and enforce ordinances, and provide forfeitures for violations of those ordinances, that are the same as or similar to ordinances that may be enacted by a county to regulate riding horses and commercial stables under s.
59.54 (19) or to regulate dogs running at large under s.
59.54 (20).
60.23(31)
(31)
Unified local transportation system. Cooperate with a county under s.
59.58 (2) (j) in the establishment of a comprehensive unified local transportation system, as defined in s.
59.58 (2) (c) 2. 60.23(32)(a)
(a) Subject to s.
66.1105 (16), exercise all powers of cities under s.
66.1105. If the town board exercises the powers of a city under s.
66.1105, it is subject to the same duties as a common council under s.
66.1105 and the town is subject to the same duties and liabilities as a city under s.
66.1105.
60.23(32)(b)1.1. In this paragraph, “
town" means the town of Brookfield in Waukesha County, the town of Somers in Kenosha County, the town of Freedom in Outagamie County, the town of Cable in Bayfield County, or the town of Gibraltar in Door County.
60.23(32)(b)2.
2. Subject to subds.
3.,
4., and
5., a town may exercise all powers of cities under s.
66.1105 to create a tax incremental district. If the town board exercises the powers of a city under s.
66.1105, it is subject to the same duties as a common council under s.
66.1105 and the town is subject to the same duties and liabilities as a city under s.
66.1105.
60.23(32)(b)3.a.a. If a town creates a tax incremental district under s.
60.85, the town may not take any action with regard to that district except by acting under s.
60.85.
60.23(32)(b)3.b.
b. If a town creates a tax incremental district under par.
(a), the town may not take any action with regard to that district except by acting under par.
(a).
60.23(32)(b)5.
5. The town of Cable may create only one tax incremental district acting under subd.
2. 60.23(32)(b)6.
6. The town of Gibraltar may create a tax incremental district under subd.
2. only if all of the following conditions apply:
60.23(32)(b)6.b.
b. The developer's agreement includes a letter of credit that guarantees repayment of the debt service on the project costs.
60.23(32)(c)
(c) If any part of a tax incremental district that is created as provided under par.
(b) 2. is annexed by a city or village, any assets or liabilities associated with that annexed territory, including a proportional share of any bonds or other debt associated with the district, shall become the responsibility of the annexing city or village.
60.23(32)(d)
(d) If after January 1 a city or village annexes any part of a tax incremental district that is created as provided under par.
(b) 2., the department of revenue shall redetermine the tax incremental base of the district by subtracting from the tax incremental base the value of the taxable property that is annexed from the existing district as of the following January 1, and if the annexation becomes effective on January 1 of any year, the redetermination shall be made as of that date. The tax incremental base as redetermined under this paragraph is effective for the purposes of this paragraph and par.
(b) only if it is less than the original tax incremental base determined under s.
66.1105 (5) (a).
60.23(32)(eg)1.b.
b. “Sewer service area" means territory specified in the sewer service area provisions of an areawide water quality management plan under s.
283.83 approved by the department.
60.23(32)(eg)1.c.
c. “Town" means a town in which the equalized value of all taxable property in the town, in the year before the year in which the town adopts a resolution under s.
66.1105 (4) (gm), is at least $500 million, and the town's population, in the year before the year in which the town adopts a resolution under s.
66.1105 (4) (gm), is at least 3,500.
60.23(32)(eg)2.
2. Subject to subd.
3. and par.
(f), a town with a population of at least 3,500 may exercise all powers of cities under s.
66.1105 to create a tax incremental district if the boundaries of the proposed district are within a sewer service area and sewer service is either currently extended to the proposed district or will be provided to the proposed district before the use or operation of any improvements to real property in the proposed district begins and the sewage treatment is provided by a wastewater treatment facility that complies with ch.
283. If the town board exercises the powers of a city under s.
66.1105, it is subject to the same duties as a common council under s.
66.1105 and the town is subject to the same duties and liabilities as a city under s.
66.1105.
60.23(32)(eg)3.a.a. If a town creates a tax incremental district under s.
60.85, the town may not take any action with regard to that district except by acting under s.
60.85.
60.23(32)(eg)3.b.
b. If a town creates a tax incremental district under par.
(a), the town may not take any action with regard to that district except by acting under par.
(a).
60.23(32)(em)
(em) If any part of a tax incremental district that is created as provided under par.
(eg) 2. is annexed by a city or village, any assets or liabilities associated with that annexed territory, including a proportional share of any bonds or other debt associated with the district, shall become the responsibility of the annexing city or village.
60.23(32)(er)
(er) If after January 1 a city or village annexes any part of a tax incremental district that is created as provided under par.
(eg) 2., the department of revenue shall redetermine the tax incremental base of the district by subtracting from the tax incremental base the value of the taxable property that is annexed from the existing district as of the following January 1, and if the annexation becomes effective on January 1 of any year, the redetermination shall be made as of that date. The tax incremental base as redetermined under this paragraph is effective for the purposes of this paragraph and par.
(eg) only if it is less than the original tax incremental base determined under s.
66.1105 (5) (a).
60.23(32)(f)1.1. Before a town board may approve a project plan under s.
66.1105 (4) (g), the town board must ensure that the project plan specifies at least one of the items listed in subd.
2. The starting point for determining a tax incremental district's remaining life, under subd.
2. b. and
c., is the date on which the district is created, as described in s.
66.1105 (4) (gm) 2. 60.23(32)(f)2.a.
a. With regard to the total value of public infrastructure improvements in the district, at least 51 percent of the value of such improvements must be financed by a private developer, or other private entity, in return for the town's agreement to repay the developer or other entity for those costs solely through the payment of cash grants as described in s.
66.1105 (2) (f) 2. d. To receive the cash grants, the developer or other private entity must enter into a development agreement with the town as described in s.
66.1105 (2) (f) 2. d. 60.23(32)(f)2.b.
b. The town expects all project costs to be paid within 90 percent of the proposed tax incremental district's remaining life, based on the district's termination date as calculated under s.
66.1105 (7) (ak) to
(au).
60.23(32)(f)2.c.
c. Expenditures may be made only within the first half of the proposed tax incremental district's remaining life, based on the district's termination date as calculated under s.
66.1105 (7) (ak) to
(au), except that expenditures may be made after this period if the expenditures are approved by a unanimous vote of the joint review board. No expenditure under this subd.
2. c. may be made later than the time during which an expenditure may be made under s.
66.1105 (6) (am).
60.23(33)
(33)
Comprehensive plan. Adopt or amend a master plan under s.
62.23.
60.23(34)
(34)
Town withdrawal from county zoning. 60.23(34)(a)
(a) Subject to pars.
(b) and
(c), after December 31, 2016, and before January 1, 2018, and during the one-year period every 3 years after January 1, 2017, enact an ordinance withdrawing the town from coverage of a county zoning ordinance that had previously been approved under s.
59.69 (5) (c) and from coverage by a county development plan that has been enacted under s.
59.69 (3) (a), except that a town board may act under this paragraph only if the town is located in a county with a population on January 1, 2016, of at least 485,000.
60.23(34)(b)
(b) Subject to pars.
(c) and
(d), an ordinance enacted under par.
(a) may not take effect until all of the following occur:
60.23(34)(b)1.
1. Not later than 180 days before enacting an ordinance under par.
(a), the town notifies the county clerk and one or more officials of every other town in the county, in writing, of the town's intent to enact an ordinance under par.
(a).
60.23(34)(b)2.
2. The town enacts a zoning ordinance under s.
60.62, a comprehensive plan under s.
66.1001, and an official map under s.
62.23 (6), and the town sends certified copies of such documents to the county clerk.
60.23(34)(b)3.
3. The ordinance enacted under par.
(a) is approved either at the annual town meeting or in a referendum called by the town board for that purpose at the next spring or general election, to be held not sooner than 70 days after the referendum is called by the town board.
60.23(34)(c)1.1. The zoning ordinance that the town enacts under s.
60.62 must be essentially identical to either the county zoning ordinance that is in effect when the town issues the written notification described in par.
(b) 1., or to the model ordinance described in subd.
2. A town that enacts an ordinance that is essentially identical to the county ordinance may amend the ordinance, but only to the extent that the amendment relates to the location of district boundaries, by following the procedures specified in s.
60.62.
60.23(34)(c)2.
2. All towns in a county that issue a written notification described in par.
(b) 1. shall work together to develop a model zoning ordinance. The model ordinance may be recommended for enactment by a majority vote of the towns that participate in drafting the model ordinance in that county. Once the model ordinance is recommended, a town may enact the ordinance under s.
60.62. The model ordinance may be amended by a majority vote of the towns that have enacted the model ordinance in that county, except that if an amendment affects only the location of district boundaries, each town may unilaterally enact such an amendment.
