Chapter 59

59.69(10)(e) (e)

59.69(10)(e)1. 1. In this paragraph, “amortization ordinance” means an ordinance that allows the continuance of the lawful use of a nonconforming building, premises, structure, or fixture that may be lawfully used as described under par. (am), but only for a specified period of time, after which the lawful use of such building, premises, structure, or fixture must be discontinued without the payment of just compensation.

59.69(10)(e)2. 2. Subject to par. (am), an ordinance enacted under this section may not require the removal of a nonconforming building, premises, structure, or fixture by an amortization ordinance.

59.69(10e) (10e) Repair, rebuilding, and maintenance of certain nonconforming structures.

59.69(10e)(a) (a) In this subsection:

59.69(10e)(a)1. 1. “Development regulations” means the part of a zoning ordinance that applies to elements including setback, height, lot coverage, and side yard.

59.69(10e)(a)2. 2. “Nonconforming structure” means a dwelling or other building that existed lawfully before the current zoning ordinance was enacted or amended, but that does not conform with one or more of the development regulations in the current zoning ordinance.

59.69(10e)(b) (b) An ordinance may not prohibit, limit based on cost, or require a variance for the repair, maintenance, renovation, rebuilding, or remodeling of a nonconforming structure or any part of a nonconforming structure.

59.69(10m) (10m) Restoration of certain nonconforming structures.

59.69(10m)(a) (a) Restrictions that are applicable to damaged or destroyed nonconforming structures and that are contained in an ordinance enacted under this section may not prohibit the restoration of a nonconforming structure if the structure will be restored to the size, subject to par. (b), location, and use that it had immediately before the damage or destruction occurred, or impose any limits on the costs of the repair, reconstruction, or improvement if all of the following apply:

59.69(10m)(a)1. 1. The nonconforming structure was damaged or destroyed on or after March 2, 2006.

59.69(10m)(a)2. 2. The damage or destruction was caused by violent wind, vandalism, fire, flood, ice, snow, mold, or infestation.

59.69(10m)(b) (b) An ordinance enacted under this section to which par. (a) applies shall allow for the size of a structure to be larger than the size it was immediately before the damage or destruction if necessary for the structure to comply with applicable state or federal requirements.

59.69(11) (11) Procedure for enforcement of county zoning ordinance. The board shall prescribe rules, regulations and administrative procedures, and provide such administrative personnel as it considers necessary for the enforcement of this section, and all ordinances enacted in pursuance thereof. The rules and regulations and the districts, setback building lines and regulations authorized by this section, shall be prescribed by ordinances which shall be declared to be for the purpose of promoting the public health, safety and general welfare. The ordinances shall be enforced by appropriate forfeitures. Compliance with such ordinances may also be enforced by injunctional order at the suit of the county or an owner of real estate within the district affected by the regulation.

59.69(12) (12) Prior ordinances effective. Nothing in this section shall invalidate any county zoning ordinance enacted under statutes in effect before July 20, 1951.

59.69(13) (13) Construction of section. The powers granted in this section shall be liberally construed in favor of the county exercising them, and this section shall not be construed to limit or repeal any powers now possessed by a county.

59.69(14) (14) Limitation of actions. A landowner, occupant or other person who is affected by a county zoning ordinance or amendment, who claims that the ordinance or amendment is invalid because procedures prescribed by the statutes or the ordinance were not followed, shall commence an action within the time provided by s. 893.73 (1), except this subsection and s. 893.73 (1) do not apply unless there has been at least one publication of a notice of a zoning hearing in a local newspaper of general circulation and unless there has been held a public hearing on the ordinance or amendment at the time and place specified in the notice.

59.69(15) (15) 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 municipality, shall be subject to the following criteria:

59.69(15)(a) (a) No community living arrangement may be established after March 28, 1978, within 2,500 feet, or any lesser distance established by an ordinance of a municipality, 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 municipality. Two community living arrangements may be adjacent if the municipality authorizes that arrangement and if both facilities comprise essential components of a single program.

59.69(15)(b) (b)

59.69(15)(b)1. 1. Community living arrangements shall be permitted in each municipality without restriction as to the number of facilities, so long as the total capacity of the community living arrangements does not exceed 25 or 1 percent of the municipality’s population, whichever is greater. When the capacity of the community living arrangements in the municipality reaches that total, the municipality may prohibit additional community living arrangements from locating in the municipality. In any municipality, when the capacity of community living arrangements in an aldermanic district in a city or a ward in a village or town reaches 25 or 1 percent of the population, whichever is greater, of the district or ward, the municipality may prohibit additional community living arrangements from being located within the district or ward. 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 municipality.

59.69(15)(b)2. 2. No community living arrangement may be established after January 1, 1995, within 2,500 feet, or any lesser distance established by an ordinance of the municipality, of any other such facility. Agents of a facility may apply for an exception to this requirement, and exceptions may be granted at the discretion of the municipality. Two community living arrangements may be adjacent if the municipality authorizes that arrangement and if both facilities comprise essential components of a single program.

59.69(15)(bm) (bm) 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 pars. (a) and (b) except that foster homes operated by corporations, child welfare agencies, religious associations, as defined in s. 157.061 (15), associations, or public agencies shall be subject to pars. (a) and (b).

59.69(15)(br) (br)

59.69(15)(br)1. 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 municipality, 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 municipality.

59.69(15)(br)2. 2. An adult family home described in s. 50.01 (1) (b) that meets the criteria specified in subd. 1. and that is licensed under s. 50.033 (1m) (b) is permitted in the municipality 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 par. (i).

59.69(15)(c) (c) If the community living arrangement has capacity for 8 or fewer persons being served by the program, meets the criteria listed in pars. (a) and (b), 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 par. (i).

59.69(15)(d) (d) If the community living arrangement has capacity for 9 to 15 persons being served by the program, meets the criteria listed in pars. (a) and (b), and is licensed, or operated, or permitted under the authority of the department of health services or the department of children and families, the facility is entitled to locate in any residential area except areas zoned exclusively for single-family or 2-family residences, except as provided in par. (i), but is entitled to apply for special zoning permission to locate in those areas. The municipality may grant special zoning permission at its discretion and shall make a procedure available to enable such facilities to request such permission.

59.69(15)(e) (e) If the community living arrangement has capacity for serving 16 or more persons, meets the criteria listed in pars. (a) and (b), 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 municipality may grant special zoning permission at its discretion and shall make a procedure available to enable such facilities to request such permission.

59.69(15)(f) (f) The department of health services shall designate a single subunit within that department to maintain appropriate records indicating the location and the capacity of each community living arrangement for adults, and the 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 the capacity of each community living arrangement for children, and the information shall be available to the public.

59.69(15)(g) (g) In this subsection, “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.

59.69(15)(h) (h) The attorney general shall take action, upon the request of the department of health services or the department of children and families, to enforce compliance with this subsection.

59.69(15)(i) (i) 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 or village or town board of a municipality 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 municipality. The determination shall be made according to the procedures provided under par. (j). If the common council or village or town board determines that the existence in the municipality 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 municipality, the common council or village or town board 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 licensed adult family home or community living arrangement. The licensed adult family home or community living arrangement shall 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.

59.69(15)(im) (im) 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 par. (i) to assert or prove that the existence of the community living arrangement in the municipality poses a threat to the health, safety or welfare of the residents of the municipality.

59.69(15)(j) (j) A determination under par. (i) shall be made after a hearing before the common council or village or town board. The municipality 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 or village or town board may call witnesses and may issue subpoenas. All witnesses shall be sworn by the common council, town board or village board. The common council or village or town board shall take notes of the testimony and shall mark and preserve all exhibits. The common council or village or town board 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 municipality. Within 20 days after the hearing, the common council or village or town board 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.

59.69 History History: 1971 c. 40 s. 93; 1971 c. 86, 224; 1973 c. 274; 1977 c. 205; 1979 c. 233 ss. 2 to 5, 7 and 8; 1979 c. 323; 1981 c. 341, 354, 374; 1983 a. 192 s. 303 (1); 1983 a. 410; 1983 a. 532 s. 36; 1985 a. 29, 136, 196, 281, 316; 1987 a. 161, 395; 1989 a. 80, 201; 1991 a. 255, 269, 316; 1993 a. 16, 27, 246, 327, 400, 446, 491; 1995 a. 27 ss. 9130 (4), 9126 (19); 1995 a. 201 s. 475; Stats. 1995 s. 59.69; 1995 a. 225 s. 174; 1995 a. 227; 1997 a. 3, 35; 1999 a. 9, 148, 185; 2001 a. 16, 30, 50, 105; 2003 a. 214; 2005 a. 26, 79, 81, 112, 171, 208; 2007 a. 11; 2007 a. 20 ss. 1852 to 1857, 9121 (6) (a); 2009 a. 28, 209, 351, 372, 405; 2011 a. 32, 170; 2013 a. 20; 2013 a. 165 s. 115; 2015 a. 55, 176, 178, 214, 223, 391; 2017 a. 67, 317; 2019 a. 145; 2021 a. 240 s. 30; 2023 a. 16, 207, 264.

59.69 Note NOTE: 2003 Wis. Act 214, which affected this section, contains extensive explanatory notes.

59.69 Annotation A zoning ordinance may distinguish between foster homes and therapeutic homes for the care of children. Browndale International, Ltd. v. Board of Adjustment, 60 Wis. 2d 182, 208 N.W.2d 121 (1973).

59.69 Annotation A plaintiff is not required to exhaust administrative remedies when the plaintiff’s claim is that a zoning ordinance is unconstitutional but may ask for a declaratory judgment. An ordinance classifying land as agricultural when it is unfit for agriculture is unreasonable and amounts to a taking of the land without compensation. Kmiec v. Town of Spider Lake, 60 Wis. 2d 640, 211 N.W.2d 471 (1973).

59.69 Annotation A property owner does not acquire a “vested interest” in the continuance of a nonconforming use, and such status will be denied if the specific use was casual and occasional, or if the use was merely accessory or incidental to the principal use. Walworth County v. Hartwell, 62 Wis. 2d 57, 214 N.W.2d 288 (1974).

59.69 Annotation Under s. 59.97 (5) (c) [now sub. (5) (c)], a county zoning ordinance becomes effective in a town upon approval of the text by the town board and the filing of the approving resolution with the town clerk and not when it merely adopts a zoning map. Racine County v. Alby, 65 Wis. 2d 574, 223 N.W.2d 438 (1974).

59.69 Annotation Zoning ordinances, being in derogation of common law, are to be construed in favor of the free use of private property. Cohen v. Dane County Board of Adjustment, 74 Wis. 2d 87, 246 N.W.2d 112 (1976).

59.69 Annotation A municipality is not required to show irreparable injury before obtaining an injunction under s. 59.97 (11) [now sub. (11)]. County of Columbia v. Bylewski, 94 Wis. 2d 153, 288 N.W.2d 129 (1980).

59.69 Annotation Under s. 59.97 (9) [now sub. (9)], a county may rezone county-owned land contrary to town zoning laws and without town approval. Town of Ringle v. County of Marathon, 104 Wis. 2d 297, 311 N.W.2d 595 (1981).

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.

59.69 Annotation The town board’s recommendation on a form that was signed by the town board and clerk and dated but not certified as a resolution by the town clerk did not effectively satisfy the statutory elements of a certified copy of a resolution under sub. (5) (e) 3. Although the legislature intended the town board to serve as a political check on the otherwise unfettered discretion of the county board in wielding its legislative zoning power, the legislature prescribed a specific procedure by which towns perform that function. Johnson v. Washburn County, 2010 WI App 50, 324 Wis. 2d 366, 781 N.W.2d 706, 09-0371.

59.69 Annotation When a village eliminated the selling of cars as a conditional use in general business districts, a previously granted conditional use permit (CUP) was voided, the property owner was left with a legal nonconforming use to sell cars, and the village could not enforce the strictures of the CUP against the property owner. Therefore, the owner could continue to sell cars in accordance with the historical use of the property, but if the use were to go beyond the historical use of the property, the village could seek to eliminate the property’s status as a legal nonconforming use. Hussein v. Village of Germantown Board of Zoning Appeals, 2011 WI App 96, 334 Wis. 2d 764, 800 N.W.2d 551, 10-2178.

59.69 Annotation A county has the authority under both subs. (1) and (4) and s. 59.70 (22) to enact ordinances regulating billboards and other similar structures. When a town approves a county zoning ordinance under sub. (5) (c) that includes a billboard ordinance, the town’s billboard ordinance adopted under s. 60.23 (29) does not preempt a county’s authority to regulate billboards in that town. Adams Outdoor Advertising, L.P. v. County of Dane, 2012 WI App 28, 340 Wis. 2d 175, 811 N.W.2d 421, 10-0178.

59.69 Annotation A municipality has the flexibility to regulate land use through zoning up until the point when a developer obtains a building permit. Once a building permit has been obtained, a developer may make expenditures in reliance on a zoning classification. Wisconsin follows the bright-line building permit rule that a property owner’s rights do not vest until the developer has submitted an application for a building permit that conforms to the zoning or building code requirements in effect at the time of application. McKee Family I, LLC v. City of Fitchburg, 2017 WI 34, 374 Wis. 2d 487, 893 N.W.2d 12, 14-1914.

59.69 Annotation The building permit rule is a bright-line rule vesting the right to use property consistent with current zoning at the time a building permit application that strictly conforms to all applicable zoning regulations is filed. The rule extends to all land specifically identified in a building permit application as part of the project. Golden Sands Dairy LLC v. Town of Saratoga, 2018 WI 61, 381 Wis. 2d 704, 913 N.W.2d 118, 15-1258.

59.69 Annotation Whether an association has authority to maintain an enforcement action under sub. (11) is not based upon the law of standing itself, but rather on the text of the statute. In this case, a lake association did not fall within the statutory categories of individuals that may maintain an action to enforce a county ordinance, and it had no authority to bring an enforcement action under sub. (11). Carlin Lake Ass’n v. Carlin Club Properties, LLC, 2019 WI App 24, 387 Wis. 2d 640, 929 N.W.2d 228, 17-2439.

59.69 Annotation A party pursuing an enforcement action under sub. (11) need not wait until a county zoning violation has actually occurred before seeking an injunction. Instead, the party must show a “sufficient probability” that a county zoning ordinance violation will occur. Carlin Lake Ass’n v. Carlin Club Properties, LLC, 2019 WI App 24, 387 Wis. 2d 640, 929 N.W.2d 228, 17-2439.

59.69 Annotation The following factors are relevant to a court’s determination of whether it is equitable to enjoin a violation of a county zoning ordinance: 1) the interest of the citizens of the jurisdiction that has established the zoning requirements in enforcing the requirements; 2) the extent of the zoning violation; 3) whether the parties to the action have acted in good faith; 4) whether the violator of the zoning requirements has available any other equitable defenses, such as laches, estoppel, or unclean hands; 5) the degree of hardship compliance with the zoning requirements will create; and 6) what role, if any, the government played in contributing to the violation. Carlin Lake Ass’n v. Carlin Club Properties, LLC, 2019 WI App 24, 387 Wis. 2d 640, 929 N.W.2d 228, 17-2439.

59.69 Annotation Nothing in sub. (11) reanimates void conditions. Landowners therefore enjoy no better footing than a county in an attempt to enforce unlawful conditions. Enbridge Energy Co. v. Dane County, 2019 WI 78, 387 Wis. 2d 687, 929 N.W.2d 572, 16-2503.

59.69 Annotation Wisconsin law requires two elements for abandonment of a legal nonconforming use: 1) actual cessation of the nonconforming use; and 2) an intent to abandon the nonconforming use. In this case, the property owner sought and obtained rezoning from agricultural to residential; entered into a subdivision development agreement restricting the property to residential use; recorded a declaration of covenants, conditions, and restrictions that explicitly stated that the property owner intended to develop a subdivision for residences; installed residential infrastructure; and built two homes on the property. Although the property owner’s specific acts may have signified an intent to abandon the nonconforming use, the undisputed fact that the property owner continued farming on the property after the rezoning confirmed that there was no actual cessation of the nonconforming use. Village of Slinger v. Polk Properties, LLC, 2021 WI 29, 396 Wis. 2d 342, 957 N.W.2d 229, 17-2244.

59.69 Annotation The statutory razing requirements under s. 66.0413 do not limit or otherwise affect a circuit court’s authority to grant injunctive relief requested by a county under sub. (11). Waupaca County v. Golla, 2022 WI App 40, 404 Wis. 2d 141, 978 N.W.2d 558, 21-1076.

59.69 Annotation In this case, the circuit court did not improperly consider deterrence as a factor to support an injunction under sub. (11). Waupaca County v. Golla, 2022 WI App 40, 404 Wis. 2d 141, 978 N.W.2d 558, 21-1076.

59.69 Annotation The fact that a county is within a regional planning commission does not affect county zoning power. 61 Atty. Gen. 220.

59.69 Annotation Discussing the authority of a county to regulate mobile homes under this section and other zoning questions. 62 Atty. Gen. 292.

59.69 Annotation Zoning ordinances utilizing definitions of “family” to restrict the number of unrelated persons who may live in a single family dwelling are of questionable constitutionality. 63 Atty. Gen. 34.

59.69 Annotation Under s. 59.97 (5) (c) [now sub. (5) (c)], town board approval of a comprehensive county zoning ordinance must extend to the ordinance in its entirety and may not extend only to parts of the ordinance. 63 Atty. Gen. 199.