62.23 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.
62.23 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.
62.23 Annotation
The language of this section clearly and unambiguously conveys that the mechanism for an appeal of a board of appeals decision is an action in certiorari for review of the board's decision. The action is against the board of appeals, not against the city. Acevedo v. City of Kenosha,
2011 WI App 10,
331 Wis. 2d 218,
793 N.W.2d 500,
10-0070.
62.23 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.
62.23 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.
62.23 Annotation
Nothing in s. 59.694 (10) prevented an applicant whose conditional use permit (CUP) was denied from filing a second CUP application rather than seeking certiorari review. A municipality may enact a rule prohibiting a party whose application to the zoning board has been denied from filing a new application absent a substantial change in circumstances, but that was not done in this case. O'Connor v. Buffalo County Board of Adjustment,
2014 WI App 60,
354 Wis. 2d 231,
847 N.W.2d 881,
13-2097.
62.23 Annotation
Zoning ordinances are in derogation of the common law and are to be construed in favor of the free use of private property. To operate in derogation of the common law, the provisions of a zoning ordinance must be clear and unambiguous. HEEF Realty & Investments, LLP v. City of Cedarburg Board of Appeals,
2015 WI App 23,
361 Wis. 2d 185,
861 N.W.2d 797,
14-0062.
62.23 Annotation
Short-term rental was a permitted use for property in a single-family residential district under the city of Cedarburg's zoning code. A zoning board cannot arbitrarily impose time or occupancy restrictions in a residential zone where there are none adopted democratically by the city. There is nothing inherent in the concept of residence or dwelling that includes time. HEEF Realty & Investments, LLP v. City of Cedarburg Board of Appeals,
2015 WI App 23,
361 Wis. 2d 185,
861 N.W.2d 797,
14-0062.
62.23 Annotation
A municipality has the flexibility to regulate land use through zoning up until the point when a developer obtains a building permit. Once a building permit has been obtained, a developer may make expenditures in reliance on a zoning classification. Wisconsin follows the bright-line building permit rule that a property owner's rights do not vest until the developer has submitted an application for a building permit that conforms to the zoning or building code requirements in effect at the time of application. McKee Family I, LLC v. City of Fitchburg,
2017 WI 34,
374 Wis. 2d 487,
893 N.W.2d 12,
14-1914.
62.23 Annotation
The building permit rule is a bright-line rule vesting the right to use property consistent with current zoning at the time a building permit application that strictly conforms to all applicable zoning regulations is filed. The rule extends to all land specifically identified in a building permit application as part of the project. Golden Sands Dairy LLC v. Town of Saratoga,
2018 WI 61,
381 Wis. 2d 704,
913 N.W.2d 118,
15-1258.
62.23 Annotation
Pursuant to sub. (7) (e) 10., certiorari review of a local zoning board's decision is triggered when a written copy of the decision is filed in the board's office. Moreschi v. Village of Williams Bay & Town of Linn ETZ Zoning Board of Appeals,
2020 WI 95,
395 Wis. 2d 55,
953 N.W.2d 318,
18-0283.
62.23 Annotation
Wisconsin law requires two elements for abandonment of a legal nonconforming use: 1) actual cessation of the nonconforming use; and 2) an intent to abandon the nonconforming use. In this case, the property owner sought and obtained rezoning from agricultural to residential; entered into a subdivision development agreement restricting the property to residential use; recorded a declaration of covenants, conditions, and restrictions that explicitly stated that the property owner intended to develop a subdivision for residences; installed residential infrastructure; and built two homes on the property. Although the property owner's specific acts may have signified an intent to abandon the nonconforming use, the undisputed fact that the property owner continued farming on the property after the rezoning confirmed that there was no actual cessation of the nonconforming use. Village of Slinger v. Polk Properties, LLC,
2021 WI 29,
396 Wis. 2d 342,
957 N.W.2d 229,
17-2244.
62.23 Annotation
Zoning ordinances may be applied to land held by the United States for an Indian tribe so long as they do not conflict with a federal treaty, agreement, or statute and so long as the land use proscribed is not a federal governmental function. 58 Atty. Gen. 91.
62.23 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.
62.23 Annotation
County shoreland zoning of unincorporated areas adopted under s. 59.971 [now s. 59.692] is not superseded by municipal extraterritorial zoning under sub. (7a). Discussing subs. (7) and (7a) and ss. 59.971 and 144.26 [now s. 281.31]. 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.
62.23 Annotation
Discussing extraterritorial zoning under sub. (7a). 67 Atty. Gen. 238.
62.23 Annotation
There is no property interest in a position on a zoning board of appeals and none was created by a common council member's assertion that the council would not approve a board member's successor. Generally, the 1st amendment protects a person from being removed from public employment for purely political reasons, but a board member is an exempt policymaker. Pleva v. Norquist,
195 F.3d 905 (1999).
62.23 Annotation
Plaintiffs were not required to exhaust administrative remedies under sub. (7) (e) before bringing a civil rights act suit challenging the definition of “family" as used in that portion of a village zoning ordinance creating single-family residential zones since plaintiffs' claim was based on federal law. Timberlake v. Kenkel,
369 F. Supp. 456 (1974).
62.23 Annotation
The denial of a permit for a second residential facility within a 2,500 foot radius pursuant to sub. (7) (i) 1., which had the effect of precluding handicapped individuals, absent evidence of adverse impact on the legislative goals of the statute or of a burden upon the village constituted a failure to make reasonable accommodations in violation of federal law. United States v. Village of Marshall,
787 F. Supp. 872 (1992).
62.23 Annotation
Sub. (2) (i) 1. and 2r. are preempted by the Federal Fair Housing Amendment Act and the Americans With Disabilities Act. Sub. (2) (i) 1. and 2r. impermissibly classify people on the basis of disability by imposing a 2,500 foot spacing requirement on community living arrangements for the disabled. Oconomowoc Residential Programs v. City of Greenfield,
23 F. Supp. 2d 941 (1998).
62.23 Annotation
The necessity of a 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.
62.23 Annotation
Architectural Appearances Ordinances and the 1st Amendment. Rice. 76 MLR 439 (1992).
62.23 Annotation
Conditional Use Permits: Strategies for Local Zoning Proceedings. Peranteau. Wis. Law. Sept. 2015.
62.231
62.231
Zoning of wetlands in shorelands. 62.231(1)(1)
Definitions. As used in this section:
62.231(2)
(2)
Filled wetlands. Any wetlands which are filled prior to the date on which a city receives a final wetlands map from the department of natural resources in a manner which affects their characteristics as wetlands are filled wetlands and not subject to an ordinance adopted under this section.
62.231(2m)
(2m)
Certain wetlands on landward side of an established bulkhead line. Any wetlands on the landward side of a bulkhead line, established by the city under s.
30.11 prior to May 7, 1982, and between that bulkhead line and the ordinary high-water mark are exempt wetlands and not subject to an ordinance adopted under this section.
62.231(3)
(3)
Adoption of ordinance. To effect the purposes of s.
281.31 and to promote the public health, safety and general welfare, each city shall zone by ordinance all unfilled wetlands of 5 acres or more which are shown on the final wetland inventory maps prepared by the department of natural resources for the city under s.
23.32, which are located in any shorelands and which are within its incorporated area. A city may zone by ordinance any unfilled wetlands which are within its incorporated area at any time.
62.231(4)(a)(a)
Powers and procedures. Except as provided under sub.
(5), s.
62.23 applies to ordinances and amendments enacted under this section.
62.231(4)(b)
(b)
Impact on other zoning ordinances. If a city ordinance enacted under s.
62.23 affecting wetlands in shorelands is more restrictive than an ordinance enacted under this section affecting the same lands, it continues to be effective in all respects to the extent of the greater restrictions, but not otherwise.
62.231(5)
(5)
Repair and expansion of existing structures permitted. Notwithstanding s.
62.23 (7) (h), an ordinance adopted under this section may not prohibit the repair, reconstruction, renovation, remodeling or expansion of a nonconforming structure in existence on the effective date of an ordinance adopted under this section or any environmental control facility in existence on May 7, 1982 related to that structure.
62.231(5m)
(5m)
Restoration of certain nonconforming structures. 62.231(5m)(a)(a) Restrictions that are applicable to damaged or destroyed nonconforming structures and that are contained in an ordinance enacted under this section may not prohibit the restoration of a nonconforming structure if the structure will be restored to the size, subject to par.
(b), location, and use that it had immediately before the damage or destruction occurred, or impose any limits on the costs of the repair, reconstruction, or improvement if all of the following apply:
62.231(5m)(a)1.
1. The nonconforming structure was damaged or destroyed on or after March 2, 2006.
62.231(5m)(a)2.
2. The damage or destruction was caused by violent wind, vandalism, fire, flood, ice, snow, mold, or infestation.
62.231(5m)(b)
(b) An ordinance enacted under this section to which par.
(a) applies shall allow for the size of a structure to be larger than the size it was immediately before the damage or destruction if necessary for the structure to comply with applicable state or federal requirements.
62.231(6)
(6)
Failure to adopt ordinance. If any city does not adopt an ordinance required under sub.
(3) within 6 months after receipt of final wetland inventory maps prepared by the department of natural resources for the city under s.
23.32, or if the department of natural resources, after notice and hearing, determines that a city adopted an ordinance which fails to meet reasonable minimum standards in accomplishing the shoreland protection objectives of s.
281.31 (1), the department of natural resources shall adopt an ordinance for the city. As far as applicable, the procedures set forth in s.
87.30 apply to this subsection.
62.231(6m)
(6m)
Certain amendments to ordinances. For an amendment to an ordinance enacted under this section that affects an activity that meets all of the requirements under s.
281.165 (2),
(3) (a), or
(4) (a), the department of natural resources may not proceed under sub.
(6), or otherwise review the amendment, to determine whether the ordinance, as amended, fails to meet reasonable minimum standards.
62.231 Cross-reference
Cross-reference: See also ch.
NR 117, Wis. adm. code.
62.231 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),
96-1235. See also State v. Outagamie,
2001 WI 78,
244 Wis. 2d 613,
628 N.W.2d 376,
98-1046.
62.231 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),
97-2094.
62.231 Annotation
Wisconsin's Shoreland Management Program: An Assessment With Implications for Effective Natural Resources Management and Protection. Kuczenski. 1999 WLR 273.
62.232
62.232
Required notice on certain approvals. 62.232(2)(a)(a) Except as provided in par.
(b), a city 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.
62.232(2)(b)1.1. A city is not required to give the notice under par.
(a) at the time that it issues a building permit if the city issues the building permit on a standard building permit form prescribed by the department of safety and professional services.
62.232(2)(b)2.
2. A city 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.
62.232(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."
62.232(4)
(4) The notice required in sub.
(2) (a) shall contain the electronic website address that gives the recipient of the notice direct contact with that website.
62.232(5)
(5) A city 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.
62.233
62.233
Zoning of annexed or incorporated shorelands. 62.233(1)(a)
(a) “Principal building" means the main building or structure on a single lot or parcel of land and includes any attached garage or attached porch.
62.233(2)
(2) Every city shall, on or before July 1, 2014, enact an ordinance that applies to all of the following shorelands:
62.233(2)(a)
(a) A shoreland that was annexed by the city after May 7, 1982, and that prior to annexation was subject to a county shoreland zoning ordinance under s.
59.692.
62.233(2)(b)
(b) For a city that incorporated after April 30, 1994, under s.
66.0203,
66.0211,
66.0213, or
66.0215, a shoreland that before incorporation as a city was part of a town that was subject to a county shoreland zoning ordinance under s.
59.692.
62.233(3)
(3) A city ordinance enacted under this section shall accord and be consistent with the requirements and limitations under s.
59.692 (1d),
(1f), and
(1k) and shall include at least all of the following provisions:
62.233(3)(a)
(a) A provision establishing a shoreland setback area of at least 50 feet from the ordinary high-water mark, except as provided in par.
(b).
62.233(3)(b)
(b) A provision authorizing construction or placement of a principal building within the shoreland setback area established under par.
(a) if all of the following apply:
62.233(3)(b)1.
1. The principal building is constructed or placed on a lot or parcel of land that is immediately adjacent on each side to a lot or parcel of land containing a principal building.
62.233(3)(b)2.
2. The principal building is constructed or placed within a distance equal to the average setback of the principal building on the adjacent lots or 35 feet from the ordinary high-water mark, whichever distance is greater.
62.233(5)
(5) Provisions of a county shoreland zoning ordinance under s.
59.692 that were applicable, prior to annexation, to any shoreland annexed by a city after May 7, 1982, shall continue in effect and shall be enforced after annexation by the annexing city until the effective date of an ordinance enacted by the city under sub.
(2).
62.233(6)
(6) Provisions of a county shoreland zoning ordinance under s.
59.692 that were applicable prior to incorporation to any shoreland that is part of a town that incorporates as a city under s.
66.0203,
66.0211,
66.0213, or
66.0215 after April 30, 1994, shall continue in effect and shall be enforced after incorporation by the incorporated city until the effective date of an ordinance enacted by the city under sub.
(2).
62.233(7)
(7) An ordinance enacted under sub.
(2) does not apply to lands adjacent to an artificially constructed drainage ditch, pond, or stormwater retention basin if the drainage ditch, pond, or retention basin is not hydrologically connected to a natural navigable water body.
62.233 History
History: 2013 a. 80,
151;
2015 a. 55.
62.234
62.234
Construction site erosion control and storm water management zoning. 62.234(1)(1)
Definition. As used in this section, “department" means the department of natural resources.
62.234(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 city may enact a zoning ordinance, that is applicable to all of its incorporated area, for construction site erosion control at sites described in s.
281.33 (3) (a) 1. a. and
b. and for storm water management. This ordinance may be enacted separately from ordinances enacted under s.
62.23. An ordinance enacted under this subsection is subject to the strict conformity requirements under s.
281.33 (3m).
62.234(4)
(4)
Applicability of city zoning provisions. 62.234(4)(a)
(a) Except as otherwise specified in this section, s.
62.23 applies to any ordinance or amendment to an ordinance enacted under this section.
62.234(4)(b)
(b) Variances and appeals regarding construction site erosion control or storm water management regulations under this section are to be determined by the board of appeals for that city. Procedures under s.
62.23 (7) (e) apply to these determinations.
62.234(4)(c)
(c) An ordinance enacted under this section supersedes all provisions of an ordinance enacted under s.
62.23 that relate to construction site erosion control at sites described in s.
281.33 (3) (a) 1. a. and
b. or to storm water management regulation.
62.234(5)
(5)
Applicability of comprehensive zoning plan or general zoning ordinance. Ordinances enacted under this section shall accord and be consistent with any comprehensive zoning plan or general zoning ordinance applicable to the enacting cities, so far as practicable.
62.234(6)
(6)
Applicability of local subdivision regulation. All powers granted to a city under s.
236.45 may be exercised by it with respect to construction site erosion control at sites described in s.
281.33 (3) (a) 1. a. and
b. or with respect to storm water management regulation, if the city has or provides a planning commission or agency.
62.234(7)
(7)
Applicability to local governments and agencies. An ordinance 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 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).
62.234(8)(a)(a) Except as provided in par.
(c), s.
66.0301 applies to this section, but for the purposes of this section any agreement under s.
66.0301 shall be effected by ordinance.
62.234(8)(b)
(b) If a city is served by a regional planning commission under s.
66.0309 and if the commission consents, the city may empower the commission by ordinance to administer the ordinance enacted under this section throughout the city, whether or not the area otherwise served by the commission includes all of that city.
62.234(8)(c)
(c) If a city is served by the Dane County Lakes and Watershed Commission, and if the commission consents, the city may empower the commission by ordinance to administer the ordinance enacted under this section throughout the city, whether or not the area otherwise served by the commission includes all of that city. Section
66.0301 does not apply to this paragraph.
