Chapter 62

62.23(7a)(am) (am)

62.23(7a)(am)1. 1. In this paragraph, “primary geographical area” means the area of a city or village that serves as the location of the primary seat of government and all territory that is contiguous to that area.

62.23(7a)(am)2. 2. Unless otherwise agreed to by a town, the authority of a city or village to exercise jurisdiction outside of its adjacent outlying waters when acting under s. 30.745 (2), or outside of its boundaries or corporate limits when acting under this subsection or sub. (2), or under s. 66.0415 (1), 236.10 (1) (b) or (2), or 254.57, includes only town territory within the extraterritorial zoning jurisdiction of the city or village surrounding or included entirely within the primary geographical area of the city or village.

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 in areas subject to a general zoning ordinance under s. 59.69, 60.61, or 60.62 and to preserve existing uses in areas not subject to a general zoning ordinance 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 18 months 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, or as a notice, as described under s. 62.11 (4) (c) 2., 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 5 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) (9) Building inspection; appeal process.

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(9)(c) (c) If an applicant is denied a temporary use permit or an extension of a temporary use permit and the individual denying the permit or extension is the chief of a fire district, or an authorized individual acting on the chief’s behalf, and if the basis of the denial is a discretionary determination by the chief or authorized individual, the permit or extension applicant may appeal the denial to the common council of the city to which the application relates. Following a hearing on the fire district chief’s or authorized individual’s denial, the common council may approve the applicant’s temporary use permit or extension application.

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) (10) Widening streets.

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 percent 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) (11) Building lines.

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 sub. (14).

62.23(17) (17) Acquiring land.

62.23(17)(a) (a) Except as provided in par. (am), cities may acquire by gift, lease, purchase, or condemnation any lands 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 or 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)(am) (am) Cities may not use the power of condemnation to acquire property for the purpose of establishing or extending a recreational trail; a bicycle way, as defined in s. 340.01 (5s); a bicycle lane, as defined in s. 340.01 (5e); or a pedestrian way, as defined in s. 346.02 (8) (a).

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; 2005 a. 26, 34, 79, 81, 112, 171, 208; 2007 a. 20 ss. 1868 to 1873, 9121 (6) (a); 2007 a. 72; 2009 a. 28, 209, 276, 351, 372, 405; 2011 a. 32, 135, 170; 2013 a. 347; 2015 a. 176, 223, 391; 2017 a. 59, 67; 2017 a. 207 s. 5; 2017 a. 243, 317, 364; 2019 a. 140; 2021 a. 198; 2021 a. 240 s. 30; 2023 a. 16.

62.23 Annotation A contract made by a zoning authority to zone, rezone, or not to zone is illegal. An ordinance made pursuant to the contract is void as 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 sub. (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. City of 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. City of 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. Village of 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 two years under sub. (7) (da), even though labeled an interim ordinance. City of 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 Board of Adjustment, 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, Inc. 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. City of Racine v. J-T Enterprises of America, Inc., 64 Wis. 2d 691, 221 N.W.2d 869 (1974).

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. Konkel v. Common Council, 68 Wis. 2d 574, 229 N.W.2d 606 (1975).

62.23 Annotation The minimum requirements of sub. (7) (a) [now sub. (7) (am)] do not include publication of a map. City of Lake Geneva v. Smuda, 75 Wis. 2d 532, 249 N.W.2d 783 (1977).

62.23 Annotation A nonconforming use is an active and actual use of land and buildings that existed prior to the commencement of the zoning ordinance and continued in the same or related use until the present. The owner must prove that the use of the property prior to the effective date of the ordinance was so active and actual that it can be said the owner has acquired a vested interest in its continuance. If the specific use was but casual and occasional or merely accessory or incidental to the principal use, then it cannot be said that the owner had acquired a vested interest. 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 the constitutionality of the commission’s implementation of the ordinance. Nodell Investment Corp. v. City of 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. City of Milwaukee Board of Zoning Appeals, 115 Wis. 2d 517, 340 N.W.2d 558 (Ct. App. 1983).

62.23 Annotation A variance runs with the land. Goldberg v. City of Milwaukee Board of Zoning Appeals, 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 Island Corp. v. City of 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 of appeals does not have authority to invalidate a zoning ordinance and must accept the ordinance as written. Ledger v. City of Waupaca Board of Appeals, 146 Wis. 2d 256, 430 N.W.2d 370 (Ct. App. 1988).

62.23 Annotation Under sub. (7) (i) 1., “adjacent” means contiguous. Brazeau v. DHSS, 154 Wis. 2d 752, 454 N.W.2d 32 (Ct. App. 1990).

62.23 Annotation Sub. (7) (e) 1. allows a municipality to provide by ordinance that the municipal governing body has exclusive authority to consider special exception permit applications; the board of appeals retains exclusive authority absent such ordinance. Town of Hudson v. Hudson Town Board of Adjustment, 158 Wis. 2d 263, 461 N.W.2d 827 (Ct. App. 1990).

62.23 Annotation Discussing impermissible prejudice of an appeals board member. Marris v. City of Cedarburg, 176 Wis. 2d 14, 498 N.W.2d 842 (1993). But see Miller v. Zoning Board of Appeals, 2023 WI 46, 407 Wis. 2d 678, 991 N.W.2d 380, 21-1764.

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 U.C.A.N., 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 a governing body. An applicant has the burden of formulating conditions showing that a proposed use meets the standards. Upon approval, additional conditions may be imposed by the governing body. Edward Kraemer & Sons, Inc. v. Sauk County Board of Adjustment, 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. Veierstahler, 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. State ex rel. Brooks v. Hartland Sportsman’s Club, Inc., 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. City of South Milwaukee, 197 Wis. 2d 157, 540 N.W.2d 189 (1995), 94-1155.

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), 94-2336.

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 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), 96-1964.

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 691, 565 N.W.2d 283 (Ct. App. 1997), 96-2198.

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 Wis. 2d 804, 565 N.W.2d 296 (Ct. App. 1997), 96-1574.

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), 96-1235.

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, 568 N.W.2d 779 (Ct. App. 1997), 96-2458.

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), 96-1235. See also State v. Outagamie County Board of Adjustment, 2001 WI 78, 244 Wis. 2d 613, 628 N.W.2d 376, 98-1046.

62.23 Annotation A writ of certiorari proceeding bears no resemblance to a civil action brought to resolve a dispute between the parties; it exists only to test the validity of judicial or quasi-judicial determinations, and it neither contemplates nor authorizes the respondent to interpose any answers, denials, or defenses. Merkel v. Village of Germantown, 218 Wis. 2d 572, 581 N.W.2d 552 (Ct. App. 1998), 97-3347. But see State ex rel. Kurtzweil v. Sawyer County Zoning Board of Appeals, 2023 WI App 43, 409 Wis. 2d 77, 995 N.W.2d 286, 22-1577.

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 interests including those of the state’s citizens. Forest County v. Goode, 219 Wis. 2d 654, 579 N.W.2d 715 (1998), 96-3592.

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 871 (Ct. App. 1998), 97-1802.

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 Housing Partners v. City of South Milwaukee, 222 Wis. 2d 222, 588 N.W.2d 45 (Ct. App. 1998), 97-1339.

62.23 Annotation The burden is on the applicant for a variance to demonstrate through evidence that without the variance the applicant 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.

62.23 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), 98-2327.

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), 98-0384.

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 regarding zoning if that body has legitimate reasons for breaching. Eternalist Foundation, Inc. v. City of Platteville, 225 Wis. 2d 759, 593 N.W.2d 84 (Ct. App. 1999), 98-1944.

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), 98-0796.

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 Common Council, 226 Wis. 2d 542, 595 N.W.2d 450 (Ct. App. 1999), 98-3133.

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), 98-2797.