59.69 Annotation The primary authority to enact, repeal, and amend a zoning ordinance is at the county, not town, level. The county is responsible for any liabilities that may arise from adoption. No liability arises to a town from the town’s approval of a county ordinance enacted following the repeal of a prior effective ordinance. M&I Marshall & Ilsley Bank v. Town of Somers, 141 Wis. 2d 271, 414 N.W.2d 824 (1987).

59.69 Annotation When it is claimed that zoning resulted in a taking of land without compensation, there is no compensable taking unless the regulation resulted in a diminution of value so great that it amounts to a confiscation. M&I Marshall & Ilsley Bank v. Town of Somers, 141 Wis. 2d 271, 414 N.W.2d 824 (1987).

59.69 Annotation For purposes of determining a nonconforming use for a quarry site, all land that contains the mineral and is integral to the operation is included, although a particular portion may not be under actual excavation. Smart v. Dane County Board of Adjustments, 177 Wis. 2d 445, 501 N.W.2d 782 (1993).

59.69 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).

59.69 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.

59.69 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.

59.69 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.

59.69 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.

59.69 Annotation A county executive’s power to veto ordinances and resolutions extends to rezoning petitions that are in essence proposed amendments to the county zoning ordinance. The veto is subject to limited judicial review. Schmeling v. Phelps, 212 Wis. 2d 898, 569 N.W.2d 784 (Ct. App. 1997), 96-2661.

59.69 Annotation Sub. (11) does not eliminate the traditional equitable power of a circuit court. It is within the power of the court to deny a county’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.

59.69 Annotation Construction in violation of zoning, even when authorized by a voluntarily issued permit, is unlawful. 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.

59.69 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.

59.69 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.

59.69 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 regrading 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.

59.69 Annotation While the Department of Natural Resources has the authority to regulate the operation of game farms, its authority does not negate the power to enforce zoning ordinances against game farms. Both are applicable. Willow Creek Ranch, L.L.C. v. Town of Shelby, 2000 WI 56, 235 Wis. 2d 409, 611 N.W.2d 693, 97-2075.

59.69 Annotation Financial investment is a factor to consider when determining whether a zoning violation must be abated, but it does not outweigh all other equitable factors to be considered. Lake Bluff Housing Partners v. City of South Milwaukee, 2001 WI App 150, 246 Wis. 2d 785, 632 N.W.2d 485, 00-1958.

59.69 Annotation A change in method or quantity of production of a nonconforming use is not a new use when the original character of the use remains the same. The incorporation of modern technology into the business of the operator of a nonconforming use is allowed. Racine County v. Cape, 2002 WI App 19, 250 Wis. 2d 44, 639 N.W.2d 782, 01-0740.

59.69 Annotation While an increase in the volume, intensity, or frequency of a nonconforming use is not sufficient to invalidate it, if the increase is coupled with some element of identifiable change or extension, the enlargement will invalidate a legal nonconforming use. A proposed elimination of cabins and the expansion from 21 to 44 RV sites was an identifiable change in a campground and extension of the use for which it had been licensed. Lessard v. Burnett County Board of Adjustment, 2002 WI App 186, 256 Wis. 2d 821, 649 N.W.2d 728, 01-2986.

59.69 Annotation To find discontinuance of a nonconforming use, proof of intent to abandon the nonconforming use is not required. Lessard v. Burnett County Board of Adjustment, 2002 WI App 186, 256 Wis. 2d 821, 649 N.W.2d 728, 01-2986.

59.69 Annotation A conditional use permit (CUP) is not a contract. A CUP is issued under an ordinance. A municipality has discretion to issue a permit and the right to seek enforcement of it. Noncompliance with the terms of a CUP is tantamount to noncompliance with the ordinance. Town of Cedarburg v. Shewczyk, 2003 WI App 10, 259 Wis. 2d 818, 656 N.W.2d 491, 02-0902.

59.69 Annotation Spot zoning grants privileges to a single lot or area that are not granted or extended to other land in the same use district. Spot zoning is not per se illegal but, absent any showing that a refusal to rezone will in effect confiscate the property by depriving all beneficial use thereof, should only be indulged in when it is in the public interest and not solely for the benefit of the property owner who requests the rezoning. Step Now Citizens Group v. Town of Utica Planning & Zoning Committee, 2003 WI App 109, 264 Wis. 2d 662, 663 N.W.2d 833, 02-2760.

59.69 Annotation The failure to comply with an ordinance’s notice requirements, when all statutory notice requirements were met, did not defeat the purpose of the ordinance’s notice provision. Step Now Citizens Group v. Town of Utica Planning & Zoning Committee, 2003 WI App 109, 264 Wis. 2d 662, 663 N.W.2d 833, 02-2760.

59.69 Annotation Under Goode, 219 Wis. 2d 654 (1998), a landowner may contest whether the landowner is in violation of the zoning ordinance and, if so, can further contest on equitable grounds the enforcement of a sanction for the violation. Town of Delafield v. Winkelman, 2004 WI 17, 269 Wis. 2d 109, 675 N.W.2d 470, 02-0979.

59.69 Annotation A municipality cannot be estopped from seeking to enforce a zoning ordinance, but a circuit court has authority to exercise its discretion in deciding whether to grant enforcement. Upon the determination of an ordinance violation, the proper procedure for a circuit court is to grant an injunction enforcing the ordinance, except when it is presented with compelling equitable reasons to deny it. Village of Hobart v. Brown County, 2005 WI 78, 281 Wis. 2d 628, 698 N.W.2d 83, 03-1907.

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 Co. v. Town of Mukwonago, 2005 WI App 163, 284 Wis. 2d 519, 702 N.W.2d 40, 04-1771.

59.69 Annotation A municipality may not effect a zoning change by simply printing a new map marked “official map.” Village of Hobart v. Brown County, 2007 WI App 250, 306 Wis. 2d 263, 742 N.W.2d 907, 07-0891.

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.