59.694 Annotation An ordinance requirement that no special use permit will be granted unless it is “necessary for the public convenience” meant that the petitioner had to present sufficient evidence that the proposed use was essential to the community as a whole. Hearst-Argyle Stations, Inc. v. Board of Zoning Appeals, 2003 WI App 48, 260 Wis. 2d 494, 659 N.W.2d 424, 02-0596.

59.694 Annotation Area variance applicants need not meet the no reasonable use of the property standard that is applicable to use variance applications. The standard for unnecessary hardship required in area variance cases is whether compliance with the strict letter of the restrictions governing area, set backs, frontage, height, bulk, or density would unreasonably prevent the owner from using the property for a permitted purpose or would render conformity with those restrictions unnecessarily burdensome. State ex rel. Ziervogel v. Washington County Board of Adjustment, 2004 WI 23, 269 Wis. 2d 549, 676 N.W.2d 401, 02-1618.

59.694 Annotation In evaluating whether to grant an area variance to a zoning ordinance, a board of adjustment should focus on the purpose of the zoning law at issue in determining whether an unnecessary hardship exists for the property owner seeking the variance. The facts of the case should be analyzed in light of that purpose, and boards of adjustment must be afforded flexibility so that they may appropriately exercise their discretion. State v. Waushara County Board of Adjustment, 2004 WI 56, 271 Wis. 2d 547, 679 N.W.2d 514, 02-2400.

59.694 Annotation When reviewing a decision to grant or deny a conditional use permit, a county board of adjustment has the authority to conduct a de novo review of the record and substitute its judgment for the county zoning committee’s judgment. Moreover, under the applicable state statute, a board has authority to take new evidence. Osterhues v. Board of Adjustment, 2005 WI 92, 282 Wis. 2d 228, 698 N.W.2d 701, 03-2194.

59.694 Annotation A board of appeals may not simply grant or deny an application with conclusory statements that the application does or does not satisfy the statutory criteria, but shall express, on the record, its reasoning why an application does or does not meet the statutory criteria. Even when a board’s decision is dictated by a minority, these controlling members of the board ought to be able to articulate why an applicant has not satisfied its burden of proof on unnecessary hardship or why the facts of record cannot be reconciled with some requirement of the ordinance or statute. A written decision is not required as long as a board’s reasoning is clear from the transcript of its proceedings. Lamar Central Outdoor, Inc. v. Board of Zoning Appeals, 2005 WI 117, 284 Wis. 2d 1, 700 N.W.2d 87, 01-3105.

59.694 Annotation Although a county’s ordinance used the term “variance” to describe an exception to the setback standard, it did not have the technical legal meaning commonly used in a zoning context. Rather, under the terms of the ordinance, a “variance” could be granted as part of the conditional use permit process, not as a separate determination based on the demonstration of a hardship. Roberts v. Manitowoc County Board of Adjustment, 2006 WI App 169, 295 Wis. 2d 522, 721 N.W.2d 499, 05-2111.

59.694 Annotation The court’s opinion that a deck was optimally located in its current position was not the relevant inquiry in regard to the granting of an area variance. The board of adjustment was justified in determining that the property owner’s desire for the variance to retain the nonconforming deck was based on a personal inconvenience rather than an unnecessary hardship. Block v. Waupaca County Board of Zoning Adjustment, 2007 WI App 199, 305 Wis. 2d 325, 738 N.W.2d 132, 06-3067.

59.694 Annotation Ziervogel, 2004 WI 23, did not state that use cannot be a factor in an area variance analysis. It stated that use cannot overwhelm all other considerations in the analysis, rendering irrelevant any inquiry into the uniqueness of the property, the purpose of the ordinance, and the effect of a variance on the public interest. Here, the board properly considered the purpose of the zoning code, the effect on neighboring properties, and the hardship alleged. Driehaus v. Walworth County, 2009 WI App 63, 317 Wis. 2d 734, 767 N.W.2d 343, 08-0947.

59.694 Annotation Nothing in sub. (10) [now sub. (10) (a)] 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.

59.694 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.

59.694 Annotation Short-term rental was a permitted use for property in a single-family residential district under the city’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.

59.694 Annotation The decision to grant a conditional use permit (CUP) is discretionary. The burden is on the party seeking a CUP to establish that it has met the conditions. State ex rel. Earney v. Buffalo County Board of Adjustment, 2016 WI App 66, 371 Wis. 2d 505, 885 N.W.2d 167, 15-1762.

59.694 Annotation Sub. (10) [now sub. (10) (a)] expressly authorizes the reviewing court on certiorari to modify the decision under review. Striking the unenforceable conditions in the conditional use permit was an appropriate remedy. Enbridge Energy Co. v. Dane County, 2019 WI 78, 387 Wis. 2d 687, 929 N.W.2d 572, 16-2503.

59.694 Annotation City or village residents are not eligible for service on a county zoning board of adjustment. 61 Atty. Gen. 262.

59.694 Annotation A self-created or self-imposed hardship does not constitute an unnecessary hardship for which a county zoning board of adjustment may grant a variance under the provisions of s. 59.99 (7) (c) [now sub. (7) (c)]. 62 Atty. Gen. 111.

59.694 Annotation Discussing the extent to which this section authorizes a county board of adjustment to grant zoning variances and review decisions of a county planning and zoning committee. 69 Atty. Gen. 146.

59.694 Annotation A county cannot exercise its home rule authority in such a way as to appoint one regular member and one alternate member who reside in the same town to a county board of adjustment. OAG 2-07.

59.694 Annotation The Necessity of 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 (1973).

59.694 Annotation A New Uncertainty in Local Land Use: A Comparative Institutional Analysis of State v. Outagamie County Board of Adjustment. Friebus. 2003 WLR 571.

59.694 Annotation Conditional Use Permits: Strategies for Local Zoning Proceedings. Peranteau. Wis. Law. Sept. 2015.

59.696 59.696 Zoning; filing fees. The board may enact ordinances establishing schedules of reasonable filing fees for the filing of petitions to amend county zoning ordinances and notices of appeal to the board of adjustment from determinations of county zoning authorities and providing for the charging and collection of such filing fees; such fees to be used to partially defray the expenses of holding hearings and giving notices of hearings prescribed in ss. 59.69 and 59.694.

59.696 History History: 1995 a. 201 s. 126.

59.697 59.697 Fees for zoning appeals. The board may establish a schedule of fees to be charged for the filing of petitions for amendment and notices of appeal under ss. 59.69 and 59.694, relating to zoning ordinances.

59.697 History History: 1995 a. 201 s. 182.

59.698 59.698 Zoning, building inspector. Except as provided under s. 59.69 (2) (bm), for the enforcement of all laws, ordinances, rules and regulations enacted under s. 59.69, the board may appoint a building inspector, define the building inspector’s duties and fix the building inspector’s term of office and compensation. This section does not apply to a county with a population of 750,000 or more.

59.698 History History: 1995 a. 201 s. 125; 2013 a. 14.

59.70 59.70 Environmental protection and land use.

59.70(1) (1) Building and sanitary codes. The board may enact building and sanitary codes, make necessary rules and regulations in relation thereto and provide for enforcement of the codes, rules and regulations by forfeiture or otherwise. The codes, rules and regulations do not apply within municipalities which have enacted ordinances or codes concerning the same subject matter. “Sanitary code” does not include a private on-site wastewater treatment system ordinance enacted under sub. (5). “Building and sanitary codes” does not include well or heat exchange drillhole ordinances enacted under sub. (6).

59.70(2) (2) Solid waste management. The board of any county may establish and operate a solid waste management system or participate in such system jointly with other counties or municipalities. Except in counties having a population of 750,000 or more, the board of a county or the boards of a combination of counties establishing a solid waste management system may create a solid waste management board to operate the system and such board, in a county that does not combine with another county, shall be composed of not less than 9 nor more than 15 persons of recognized ability and demonstrated interest in the problems of solid waste management, but not more than 5 of the board members may be appointed from the county board of supervisors. In any combination of counties, the solid waste management board shall be composed of 11 members with 3 additional members for each combining county in excess of 2. Appointments shall be made by the county boards of supervisors of the combining counties in a manner acceptable to the combining counties, but each of the combining counties may appoint to the solid waste management board not more than 3 members from its county board of supervisors. The term of office of any member of the solid waste management board shall be 3 years, but of the members first appointed, at least one-third shall be appointed for one year; at least one-third for 2 years; and the remainder for 3 years. Vacancies shall be filled for the residue of the unexpired term in the manner that original appointments are made. Any solid waste management board member may be removed from office by a two-thirds vote of the appointing authority. The solid waste management board may employ a manager for the system. The manager shall be trained and experienced in solid waste management. For the purpose of operating the solid waste management system, the solid waste management board may exercise the following powers: