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. 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. 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,
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 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. 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. 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 he 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. 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 Island 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
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. 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. 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,
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 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 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.
62.23 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 it has legitimate reasons for breaching. Eternalist Foundation 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,
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.
62.23 Annotation
The state, in administering the Fair Housing Act, may not order a zoning board to issue a variance based on characteristics unique to the landowner rather than the land. County of Sawyer Zoning Board v. DWD,
231 Wis. 2d 534,
605 N.W.2d 627 (Ct. App. 1999),
99-0707.
62.23 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 v. Town of Shelby,
2000 WI 56,
235 Wis. 2d 409,
611 N.W.2d 693,
97-2075.
62.23 Annotation
Statutory certiorari review exists to test the validity of agency decisions by reviewing the record, and the court has jurisdiction only for that limited purpose. An action to enforce a variance is an entirely different matter. It is coercive, and personal jurisdiction must be established by serving a summons and complaint or original writ separate from any related certiorari action. Winkelman v. Town of Delafield,
2000 WI App 254,
239 Wis. 2d 542,
620 N.W.2d 438,
99-3158.
62.23 Annotation
The consideration by a separate city council committee, without notice, of a duplicate file of matters then under consideration by the city's zoning committee was not void. Oliveira v. City of Milwaukee,
2001 WI 27,
242 Wis. 2d 1,
624 N.W.2d 117,
98-2474.
62.23 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.
62.23 Annotation
A variance authorizes a landowner to establish or maintain a use prohibited by zoning regulations. A special exception allows the landowner to put the property to a use expressly permitted but that conflicts with some requirement of the ordinance. The grant of a special exception does not require the showing of hardship required for a variance. Fabyan v. Waukesha County Board of Adjustment,
2001 WI App 162,
246 Wis. 2d 851,
632 N.W.2d 116,
00-3103.
62.23 Annotation
If residents would not be living in a proposed community living arrangement because of disabilities, although some may have disabilities, a municipality is not required by the federal American with Disabilities Act or Fair Housing Amendments Act to make reasonable accommodations in the application of the sub. (7) (i) 1. 2,500 foot requirement. State ex rel. Bruskewitz v. City of Madison,
2001 WI App 233,
248 Wis. 2d 297,
635 N.W.2d 797,
00-2563.
62.23 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.
62.23 Annotation
The public policy of promoting confidence in impartial tribunals may justify expansion of the certiorari record when evidence outside of the record demonstrates procedural unfairness. However, before a circuit court may authorize expansion, the party alleging bias must make a prima facie showing of wrongdoing. Sills v. Walworth County Land Management Committee,
2002 WI App 111,
254 Wis. 2d 538,
648 N.W.2d 878,
01-0901.
62.23 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.
62.23 Annotation
A purpose of sub. (5) is that a plan commission have the opportunity to review and make a recommendation on a final plat before the governing body makes a final decision, but not to require that body to wait more than 30 days for the plan commission's report. KW Holdings, LLC v. Town of Windsor,
2003 WI App 9,
259 Wis. 2d 357,
656 N.W.2d 752,
02-0706.
62.23 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.
62.23 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 v. Board of Zoning Appeals,
2003 WI App 48,
260 Wis. 2d 494,
659 N.W.2d 424,
02-0596.
62.23 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,
2003 WI App 109,
264 Wis. 2d 662,
663 N.W.2d 833,
02-2760.
62.23 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,
2003 WI App 109,
264 Wis. 2d 662,
663 N.W.2d 833,
02-2760.
62.23 Annotation
Under
Goode,
219 Wis. 2d 654 (1998), a landowner may contest whether he or she 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.
62.23 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. Ziervogel v. Washington County Board of Adjustment,
2004 WI 23,
269 Wis. 2d 549,
676 N.W.2d 401,
02-1618.
62.23 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.
62.23 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.
62.23 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.
62.23 Annotation
Sub. (7) (h) relates to the use to which the building was put, not to the physical structure of the building itself. It limits the repairs and improvements that can be made on a structure that is used in a manner that does not conform to uses permitted by applicable zoning codes. Hillis v. Village of Fox Point Board of Appeals,
2005 WI App 106,
281 Wis. 2d 147,
699 N.W.2d 636,
04-1787.
62.23 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 Company, Inc. v. Town of Mukwonago,
2005 WI App 163,
284 Wis. 2d 519,
702 N.W.2d 40,
04-1771.
62.23 Annotation
Neither the desire for a different remedy nor a resort to alternative legal theories was sufficient to insulate a party filing an action under sub. (8) from the impact of claim preclusion when that party had adequate opportunity to litigate its claims before the zoning board. Barber v. Weber,
2006 WI App 88,
292 Wis. 2d 426,
715 N.W.2d 683,
05-1196.
62.23 Annotation
In deciding whether to grant a variance under sub. (7) (e) 7., a zoning board of appeals may consider the role municipal officials played in a zoning violation when determining whether a hardship was self-created and whether strict enforcement of the ordinance would result in an unnecessary hardship. Accent Developers, LLC v. City of Menomonie Board of Zoning Appeals,
2007 WI App 48,
300 Wis. 2d 561,
730 N.W.2d 194,
06-1268.
62.23 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 their 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.
62.23 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.
62.23 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.
62.23 Annotation
Condominiums are not a form of land use. A condominium unit set aside for commercial use runs afoul of a zoning ordinance prohibiting commercial use. When an intended commercial use did not comport with a town's zoning restrictions, approval of the condominium by the town was de facto rezoning. A town could not seek to avoid the restrictions of applicable extraterritorial zoning by aiming to define its action as something other than a zoning change. Village of Newburg v. Town of Trenton,
2009 WI App 139,
321 Wis. 2d 424,
773 N.W.2d 500,
08-2997.
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.
