62.23 Annotation
Sub. (9) (a) is not a direct grant of power to the building inspector. Racine v. J-T Enterprises of America, Inc.
64 Wis. 2d 691,
221 N.W.2d 869 (1973).
62.23 Annotation
A municipal ordinance rezoning property upon the occurrence of specified conditions and providing that “the property shall revert back to its present zoning" if the conditions are not met is valid as effecting a rezoning of the realty immediately upon the failure to satisfy the conditions because the rezoning, rather than becoming effective immediately and reverting to the previous classification upon noncompliance with the conditions, never becomes effective until the conditions are met. Konkel v. Delafield Common Council,
68 Wis. 2d 574,
229 N.W.2d 606 (1975).
62.23 Annotation
The minimum requirements of sub. (7) (a) [now sub. (7) (am)] do not include publication of a map. Proof of a nonconforming use is discussed. City of Lake Geneva v. Smuda,
75 Wis. 2d 532,
249 N.W.2d 783 (1977).
62.23 Annotation
When the zoning board of appeals had power under sub. (7) (e) 1. and 7. to invalidate conditions imposed by the plan commission and to afford relief to affected property owners without invalidating a disputed ordinance, the owners' failure to challenge the conditions before the board precluded the owners from challenging in court the constitutionality of the commission's implementation of the ordinance. Nodell Investment Corp. v. Glendale,
78 Wis. 2d 416,
254 N.W.2d 310 (1977).
62.23 Annotation
Sub. (7a) (b) allows interim freezes of existing zoning or, if none exists, interim freezing of existing uses. It does not allow a city to freeze the more restrictive of zoning or uses. Town of Grand Chute v. City of Appleton,
91 Wis. 2d 293,
282 N.W.2d 629 (Ct. App. 1979).
62.23 Annotation
A zoning board acted in excess of its power by reopening a proceeding that had once been terminated. Goldberg v. Milwaukee Zoning Appeals Board,
115 Wis. 2d 517,
340 N.W.2d 558 (Ct. App. 1983).
62.23 Annotation
Notice under sub. (7) (d) 1. b. is required when a proposed amendment makes a substantial change. Herdeman v. City of Muskego,
116 Wis. 2d 687,
343 N.W.2d 814 (Ct. App. 1983).
62.23 Annotation
A zoning ordinance that denied an owner the entire use value of its property was unconstitutional. State ex rel. Nagawicka Is. Corp. v. Delafield,
117 Wis. 2d 23,
343 N.W.2d 816 (Ct. App. 1983).
62.23 Annotation
A zoning ordinance itself can be the “comprehensive plan" required by sub. (7) (c). No separate comprehensive plan need be adopted by a city as a condition precedent to enacting a zoning ordinance. Bell v. City of Elkhorn,
122 Wis. 2d 558,
364 N.W.2d 144 (1985).
62.23 Annotation
A city had no authority to elect against the notice provisions of sub. (7) (d). Gloudeman v. City of St. Francis,
143 Wis. 2d 780,
422 N.W.2d 864 (Ct. App. 1988).
62.23 Annotation
Under sub. (7) (e) 7., the board does not have authority to invalidate a zoning ordinance and must accept the ordinance as written. Ledger v. Waupaca Board of Appeals,
146 Wis. 2d 256,
430 N.W.2d 370 (Ct. App. 1988).
62.23 Annotation
Sub. (7) (e) 1. allows a municipality to provide by ordinance that 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
Impermissible prejudice of an appeals board member is discussed. Marris v. City of Cedarburg,
176 Wis. 2d 14,
498 N.W.2d 843 (1993).
62.23 Annotation
Sub. (7) (i) 1. does not excuse a municipality for failing to make reasonable accommodation of a group home as required by federal law. Tellurian Ucan, Inc. v. Goodrich,
178 Wis. 2d 205,
504 N.W.2d 342 (Ct. App. 1993).
62.23 Annotation
The federal fair housing act controls sub. (7) (i) 1. to the extent that its spacing requirements may not be used for a discriminatory purpose. “K" Care, Inc. v. Town of Lac du Flambeau,
181 Wis. 2d 59,
510 N.W.2d 697 (Ct. App. 1993).
62.23 Annotation
General, rather than explicit, standards regarding the granting of special exceptions may be adopted and applied by the governing body. The applicant has the burden of formulating conditions showing that the proposed use will meet the standards. Upon approval, additional conditions may be imposed by the governing body. Kraemer & Sons v. Sauk County Adjustment Bd.
183 Wis. 2d 1,
515 N.W.2d 256 (1994).
62.23 Annotation
Casual, occasional, accessory, or incidental use after the primary nonconforming use is terminated cannot serve to perpetuate a nonconforming use. Village of Menomonee Falls v. Veirstahler,
183 Wis. 2d 96,
515 N.W.2d 290 (Ct. App. 1994).
62.23 Annotation
The power to regulate nonconforming uses includes the power to limit the extension or expansion of the use if it results in a change in the character of the use. Waukesha County v. Pewaukee Marina, Inc.
187 Wis. 2d 18,
522 N.W.2d 536 (Ct. App. 1994).
62.23 Annotation
Sub. (7) (f) 1. allowing “civil penalties" for zoning violations does not authorize imposing a lien against the subject property retroactive to the date of the violation. Waukesha State Bank v. Village of Wales,
188 Wis. 2d 374,
525 N.W.2d 110 (Ct. App. 1994).
62.23 Annotation
Though a conditional use permit was improperly issued by a town board, rather than a board of appeals, the permit was not void when the subject property owner acquiesced to the error for many years. Brooks v. Hartland Sportsman's Club,
192 Wis. 2d 606,
531 N.W.2d 445 (Ct. App. 1995).
62.23 Annotation
When a zoning ordinance is changed, a builder may have a vested right, enforceable by mandamus, to build under the previously existing ordinance if the builder has submitted, prior to the change, an application for a permit in strict and complete conformance with the ordinance then in effect. Lake Bluff Housing Partners v. South Milwaukee,
197 Wis. 2d 157,
540 N.W.2d 189 (1995),
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.