“Payday lender" means a business, owned by a licensee, that makes payday loans.
Except as provided in subds. 3.
, and 5.
, no payday lender may operate in a city unless it receives a permit to do so from the city council, and the city council may not issue a permit to a payday lender if any of the following applies:
The payday lender would be located within 1,500 feet of another payday lender.
The payday lender would be located within 150 feet of a single-family or 2-family residential zoning district.
A city may regulate payday lenders by enacting a zoning ordinance that contains provisions that are more strict than those specified in subd. 2.
If a city has enacted an ordinance regulating payday lenders that is in effect on January 1, 2011, the ordinance may continue to apply and the city may continue to enforce the ordinance, but only if the ordinance is at least as restrictive as the provisions of subd. 2.
Notwithstanding the provisions of subd. 4.
, if a payday lender that is doing business on January 1, 2011, from a location that does not comply with the provisions of subd. 2.
, the payday lender may continue to operate from that location notwithstanding the provisions of subd. 2.
Migrant labor camps.
The council of a city may not enact an ordinance or adopt a resolution that interferes with any repair or expansion of migrant labor camps, as defined in s. 103.90 (3)
, that are in existence on May 12, 1992, if the repair or expansion is required by an administrative rule promulgated by the department of workforce development under ss. 103.90
. An ordinance or resolution of a city that is in effect on May 12, 1992, and that interferes with any repair or expansion of existing migrant labor camps that is required by such an administrative rule is void.
Community and other living arrangements.
For purposes of this section, the location of a community living arrangement for adults, as defined in s. 46.03 (22)
, a community living arrangement for children, as defined in s. 48.743 (1)
, a foster home, as defined in s. 48.02 (6)
, or an adult family home, as defined in s. 50.01 (1)
, in any city shall be subject to the following criteria:
No community living arrangement may be established after March 28, 1978 within 2,500 feet, or any lesser distance established by an ordinance of the city, of any other such facility. Agents of a facility may apply for an exception to this requirement, and such exceptions may be granted at the discretion of the city. Two community living arrangements may be adjacent if the city authorizes that arrangement and if both facilities comprise essential components of a single program.
Community living arrangements shall be permitted in each city without restriction as to the number of facilities, so long as the total capacity of such community living arrangements does not exceed 25 or one percent of the city's population, whichever is greater. When the capacity of the community living arrangements in the city reaches that total, the city may prohibit additional community living arrangements from locating in the city. In any city of the 1st, 2nd, 3rd or 4th class, when the capacity of community living arrangements in an aldermanic district reaches 25 or one percent of the population, whichever is greater, of the district, the city may prohibit additional community living arrangements from being located within the district. Agents of a facility may apply for an exception to the requirements of this subdivision, and such exceptions may be granted at the discretion of the city.
A foster home that is the primary domicile of a foster parent and that is licensed under s. 48.62
or an adult family home certified under s. 50.032 (1m) (b)
shall be a permitted use in all residential areas and is not subject to subds. 1.
except that foster homes operated by corporations, child welfare agencies, churches, associations, or public agencies shall be subject to subds. 1.
No adult family home described in s. 50.01 (1) (b)
may be established within 2,500 feet, or any lesser distance established by an ordinance of the city, of any other adult family home described in s. 50.01 (1) (b)
or any community living arrangement. An agent of an adult family home described in s. 50.01 (1) (b)
may apply for an exception to this requirement, and the exception may be granted at the discretion of the city.
An adult family home described in s. 50.01 (1) (b)
that meets the criteria specified in subd. 2r. a.
and that is licensed under s. 50.033 (1m) (b)
is permitted in the city without restriction as to the number of adult family homes and may locate in any residential zone, without being required to obtain special zoning permission except as provided in subd. 9.
In all cases where the community living arrangement has capacity for 8 or fewer persons being served by the program, meets the criteria listed in subds. 1.
, and is licensed, operated, or permitted under the authority of the department of health services or the department of children and families, that facility is entitled to locate in any residential zone, without being required to obtain special zoning permission except as provided in subd. 9.
In all cases where the community living arrangement has capacity for 9 to 15 persons being served by the program, meets the criteria listed in subds. 1.
, and is licensed, operated, or permitted under the authority of the department of health services or the department of children and families, that facility is entitled to locate in any residential area except areas zoned exclusively for single-family or 2-family residences except as provided in subd. 9.
, but is entitled to apply for special zoning permission to locate in those areas. The city may grant such special zoning permission at its discretion and shall make a procedure available to enable such facilities to request such permission.
In all cases where the community living arrangement has capacity for serving 16 or more persons, meets the criteria listed in subds. 1.
, and is licensed, operated, or permitted under the authority of the department of health services or the department of children and families, that facility is entitled to apply for special zoning permission to locate in areas zoned for residential use. The city may grant such special zoning permission at its discretion and shall make a procedure available to enable such facilities to request such permission.
The department of health services shall designate a single subunit within that department to maintain appropriate records indicating the location and number of persons served by each community living arrangement for adults, and such information shall be available to the public. The department of children and families shall designate a single subunit within that department to maintain appropriate records indicating the location and number of persons served by each community living arrangement for children, and such information shall be available to the public.
In this paragraph, “
special zoning permission" includes but is not limited to the following: special exception, special permit, conditional use, zoning variance, conditional permit and words of similar intent.
The attorney general shall take all necessary action, upon the request of the department of health services or the department of children and families, to enforce compliance with this paragraph.
Not less than 11 months nor more than 13 months after the first licensure of an adult family home under s. 50.033
or of a community living arrangement and every year thereafter, the common council of a city in which a licensed adult family home or a community living arrangement is located may make a determination as to the effect of the adult family home or community living arrangement on the health, safety or welfare of the residents of the city. The determination shall be made according to the procedures provided under subd. 10.
If the common council determines that the existence in the city of a licensed adult family home or a community living arrangement poses a threat to the health, safety or welfare of the residents of the city, the common council may order the adult family home or community living arrangement to cease operation unless special zoning permission is obtained. The order is subject to judicial review under s. 68.13
, except that a free copy of the transcript may not be provided to the adult family home or community living arrangement. The adult family home or community living arrangement must cease operation within 90 days after the date of the order, or the date of final judicial review of the order, or the date of the denial of special zoning permission, whichever is later.
The fact that an individual with acquired immunodeficiency syndrome or a positive HIV test, as defined in s. 252.01 (2m)
, resides in a community living arrangement with a capacity for 8 or fewer persons may not be used under subd. 9.
to assert or prove that the existence of the community living arrangement in the city poses a threat to the health, safety or welfare of the residents of the city.
A determination made under subd. 9.
shall be made after a hearing before the common council. The city shall provide at least 30 days' notice to the licensed adult family home or the community living arrangement that such a hearing will be held. At the hearing, the licensed adult family home or the community living arrangement may be represented by counsel and may present evidence and call and examine witnesses and cross-examine other witnesses called. The common council may call witnesses and may issue subpoenas. All witnesses shall be sworn by the common council. The common council shall take notes of the testimony and shall mark and preserve all exhibits. The common council may, and upon request of the licensed adult family home or the community living arrangement shall, cause the proceedings to be taken by a stenographer or by a recording device, the expense thereof to be paid by the city. Within 20 days after the hearing, the common council shall mail or deliver to the licensed adult family home or the community living arrangement its written determination stating the reasons therefor. The determination shall be a final determination.
(7a) Extraterritorial zoning.
The governing body of any city which has created a city plan commission under sub. (1)
and has adopted a zoning ordinance under sub. (7)
may exercise extraterritorial zoning power as set forth in this subsection. Insofar as applicable sub. (7) (am)
shall apply to extraterritorial zoning ordinances enacted under this subsection. This subsection shall also apply to the governing body of any village.
Extraterritorial zoning jurisdiction means the unincorporated area within 3 miles of the corporate limits of a first, second or third class city, or 1 1/2 miles of a fourth class city or a village. Wherever extraterritorial zoning jurisdictions overlap, the provisions of s. 66.0105
shall apply and any subsequent alteration of the corporate limits of the city by annexation, detachment or consolidation proceedings shall not affect the dividing line as initially determined under s. 66.0105
. The governing body of the city shall specify by resolution the description of the area to be zoned within its extraterritorial zoning jurisdiction sufficiently accurate to determine its location and such area shall be contiguous to the city. The boundary line of such area shall follow government lot or survey section or fractional section lines or public roads, but need not extend to the limits of the extraterritorial zoning jurisdiction. Within 15 days of the adoption of the resolution the governing body shall declare its intention to prepare a comprehensive zoning ordinance for all or part of its extraterritorial zoning jurisdiction by the publication of the resolution in a newspaper having general circulation in the area proposed to be zoned, as a class 1 notice, under ch. 985
. The city clerk shall mail a certified copy of the resolution and a scale map reasonably showing the boundaries of the extraterritorial jurisdiction to the clerk of the county in which the extraterritorial jurisdiction area is located and to the town clerk of each town, any part of which is included in such area.
The governing body may enact, without referring the matter to the plan commission, an interim zoning ordinance to preserve existing zoning or uses 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 2 years 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 2 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)
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.
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.
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)
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)
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.
Insofar as applicable the provisions of subs. (7) (e)
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.
(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.
(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.
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
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.
(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
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.
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.
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.
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.
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.
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.
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.
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.
Funds to carry out the purposes of this section may be raised by taxation or by bonds issued as provided in ss. 67.05
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.
(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.
(16) Benefits from public buildings.
Any benefits of public buildings and groups thereof may be assessed in the manner provided in sub. (14)
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:
To relieve congested sections by providing housing facilities suitable to the needs of such city;
To provide garden suburbs at reasonable cost to the residents of such city;
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.
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)
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.
The acquisition and conveyance of lands for such purpose is a public purpose and is for public health and welfare.
(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.
History: 1973 c. 60
; 1975 c. 281
; 1977 c. 205
; 1979 c. 221
; 1981 c. 289
; 1983 a. 49
; 1985 a. 136
; 1985 a. 187
; 1987 a. 161
; 1989 a. 201
; 1991 a. 255
; 1993 a. 27
; 1995 a. 27
ss. 9126 (19)
, 9130 (4)
; 1995 a. 225
; 1997 a. 3
; 1999 a. 9
; 1999 a. 150
; 2001 a. 30
; 2001 a. 50
; 2005 a. 26
; 2007 a. 20
, 9121 (6) (a)
; 2007 a. 72
; 2009 a. 28
; 2011 a. 32
; 2013 a. 347
; 2015 a. 176
; 2017 a. 59
; 2017 a. 207
; 2017 a. 243
; 2019 a. 140
; s. 35.17 correction in (16).
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
The rezoning of one parcel in a neighborhood shopping area for local business was not a violation of s. 62.23 (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
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
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
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. Menomonee Falls, 55 Wis. 2d 563
, 201 N.W.2d 29
A zoning ordinance adopted by a new city that changed the zoning of the former town did not expire in 2 years under sub. (7) (da), even though labeled an interim ordinance. New Berlin v. Stein, 58 Wis. 2d 417
, 206 N.W.2d 207
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
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
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
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
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
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
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
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).
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).
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).
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).
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
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).
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).
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).