Chapter 59

59.694 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.

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

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

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

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

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

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

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

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

59.694 Annotation Nothing in sub. (10) [now sub. (10) (a)] prevented an applicant whose conditional use permit (CUP) was denied from filing a second CUP application rather than seeking certiorari review. A municipality may enact a rule prohibiting a party whose application to the zoning board has been denied from filing a new application absent a substantial change in circumstances, but that was not done in this case. O’Connor v. Buffalo County Board of Adjustment, 2014 WI App 60, 354 Wis. 2d 231, 847 N.W.2d 881, 13-2097.

59.694 Annotation Zoning ordinances are in derogation of the common law and are to be construed in favor of the free use of private property. To operate in derogation of the common law, the provisions of a zoning ordinance must be clear and unambiguous. HEEF Realty & Investments, LLP v. City of Cedarburg Board of Appeals, 2015 WI App 23, 361 Wis. 2d 185, 861 N.W.2d 797, 14-0062.

59.694 Annotation Short-term rental was a permitted use for property in a single-family residential district under the city’s zoning code. A zoning board cannot arbitrarily impose time or occupancy restrictions in a residential zone where there are none adopted democratically by the city. There is nothing inherent in the concept of residence or dwelling that includes time. HEEF Realty & Investments, LLP v. City of Cedarburg Board of Appeals, 2015 WI App 23, 361 Wis. 2d 185, 861 N.W.2d 797, 14-0062.

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

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

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

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

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

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

59.694 Annotation The Necessity of Zoning Variance or Amendments Notice to the Wisconsin Department of Natural Resources Under the Shoreland Zoning and Navigable Waters Protection Acts. Whipple. 57 MLR 25 (1973).

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

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

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

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

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

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

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

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

59.70 59.70 Environmental protection and land use.

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

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

59.70(2)(a) (a) Develop a plan for a solid waste management system.

59.70(2)(b) (b) Within such county or joint county, collect, transport, dispose of, destroy or transform wastes, including, without limitation because of enumeration, garbage, ashes, or incinerator residue, municipal, domestic, agricultural, industrial and commercial rubbish, waste or refuse material, including explosives, pathological wastes, chemical wastes, herbicide and pesticide wastes.

59.70(2)(c) (c) Acquire lands within the county by purchase, lease, donation or eminent domain, within the county, for use in the solid waste management system.

59.70(2)(d) (d) Authorize employees or agents to enter lands to conduct reasonable and necessary investigations and tests to determine the suitability of sites for solid waste management activities whenever permission is obtained from the property owner.

59.70(2)(e) (e) Acquire by purchase, lease, donation or eminent domain easements or other limited interests in lands that are desired or needed to assure compatible land uses in the environs of any site that is part of the solid waste disposal system.

59.70(2)(f) (f) Establish operations and methods of waste management that are considered appropriate. Waste burial operations shall be in accordance with sanitary landfill methods and the sites shall, insofar as practicable, be restored and made suitable for attractive recreational or productive use upon completion of waste disposal operations.

59.70(2)(g) (g) Acquire the necessary equipment, use such equipment and facilities of the county highway agency, and construct, equip and operate incinerators or other structures to be used in the solid waste management system.

59.70(2)(h) (h) Enact and enforce ordinances necessary for the conduct of the solid waste management system and provide forfeitures for violations.

59.70(2)(i) (i) Contract with private collectors, transporters or municipalities to receive and dispose of wastes.

59.70(2)(j) (j) Engage in, sponsor or cosponsor research and demonstration projects that are intended to improve the techniques of solid waste management or to increase the extent of reuse or recycling of materials and resources included within the wastes.

59.70(2)(k) (k) Accept funds that are derived from state or federal grant or assistance programs and enter into necessary contracts or agreements.

59.70(2)(L) (L) Appropriate funds and levy taxes to provide funds for acquisition or lease of sites, easements, necessary facilities and equipment and for all other costs required for the solid waste management system except that no municipality which operates its own solid waste management program under s. 287.09 (2) (a) or waste collection and disposal facility, or property therein, shall be subject to any tax levied hereunder to cover the capital and operating costs of these functions. Such appropriations may be treated as a revolving capital fund to be reimbursed from proceeds of the system.

59.70(2)(m) (m) Make payments to any municipality in which county disposal sites or facilities are located to cover the reasonable costs of services that are rendered to such sites or facilities.

59.70(2)(n) (n) Charge or assess reasonable fees, approximately commensurate with the costs of services rendered to persons using the services of the county solid waste management system. The fees may include a reasonable charge for depreciation which shall create a reserve for future capital outlays for waste disposal facilities or equipment. All assessments for liquid waste shall be assessed by volume.

59.70(2)(o) (o) Create service districts which provide different types of solid waste collection or disposal services. Different regulations and cost allocations may be applied to each service district. Costs allocated to such service districts may be provided by general tax upon the property of the respective districts or by allocation of charges to the municipalities whose territory is included within such districts.

59.70(2)(p) (p) Utilize or dispose of by sale or otherwise all products or by-products of the solid waste management system.

59.70(2)(q) (q) Impose fees, in addition to the fees imposed under ch. 289, upon persons who dispose of solid waste at publicly owned solid waste disposal sites in the county for the purpose of cleaning up closed or abandoned solid waste disposal sites within the county, subject to all of the following conditions:

59.70(2)(q)1. 1. The fees are based on the amount of solid waste that is disposed of by each person.

59.70(2)(q)2. 2. The fees may not exceed 20 percent of the amount that is charged for the disposal of the solid waste.

59.70(2)(q)3. 3. The effective date of the fees and any increase in the fees is January 1 and such effective date is at least 120 days after the date on which the board adopts the fee increase.

59.70(2)(q)4. 4. The cleanup of the site is conducted under the supervision of the department of natural resources.

59.70(2)(q)5. 5. The board may prevent the implementation of, or may terminate, fees imposed by the solid waste management board.

59.70(3) (3) Recycling or resource recovery facilities. The board may establish and require use of facilities for the recycling of solid waste or for the recovery of resources from solid waste as provided under s. 287.13.

59.70(5) (5) Private on-site wastewater treatment system ordinance.

59.70(5)(a) (a) Every governmental unit responsible for the regulation of private on-site wastewater treatment systems, as defined under s. 145.01 (5), shall enact an ordinance governing private on-site wastewater treatment systems, as defined in s. 145.01 (12), which conforms with the state plumbing code. The ordinance shall apply to the entire area of the governmental unit responsible for the regulation of private on-site wastewater treatment systems, as defined under s. 145.01 (5). After July 1, 1980, no municipality may enact or enforce a private on-site wastewater treatment system ordinance unless it is a governmental unit responsible for the regulation of private on-site wastewater treatment systems, as defined under s. 145.01 (5).

59.70(5)(b) (b) The governmental unit responsible for the regulation of private on-site wastewater treatment systems, as defined under s. 145.01 (5), shall administer the private on-site wastewater treatment system ordinance under s. 145.20 and the rules promulgated under s. 145.20.

59.70(6) (6) Optional well and heat exchange drillhole ordinances.

59.70(6)(a) (a) Definitions. In this subsection:

59.70(6)(a)1. 1. “Department” means the department of natural resources.

59.70(6)(a)2. 2. “Private well” has the meaning specified by rule by the department under s. 280.21 (2).

59.70(6)(a)3. 3. “Well” has the meaning specified under s. 280.01 (6).

59.70(6)(b) (b) Permits. If authorized by the department under s. 280.21 (1), a county may enact and enforce a well construction, heat exchange drillhole construction, or pump installation ordinance or both. Provisions of the ordinance shall be in strict conformity with ch. 280 and with rules of the department under ch. 280. The ordinance may require that a permit be obtained before construction, installation, reconstruction or rehabilitation of a private well or installation or substantial modification of a pump on a private well, other than replacement of a pump with a substantially similar pump. The county may establish a schedule of fees for issuance of the permits and for related inspections. The department, under s. 280.21 (4), may revoke the authority of a county to enforce its ordinance if the department finds that the ordinance or enforcement of the ordinance does not conform to ch. 280 and rules of the department under ch. 280.

59.70(6)(c) (c) Existing wells. With the approval of the department under s. 280.21 (1), a county may enact and enforce an ordinance in strict conformity with ch. 280 and with department rules under ch. 280, as they relate to existing private wells. The department, under s. 280.21 (4), may revoke the authority of a county to enforce its ordinance if the department finds that the ordinance or enforcement of the ordinance does not conform to ch. 280 and rules of the department under ch. 280.

59.70(6)(d) (d) Enforcement. A county may provide for enforcement of ordinances enacted under this subsection by forfeiture or injunction or both. The district attorney or county corporation counsel may bring enforcement actions.

59.70(6)(e) (e) Other municipalities. No municipality may enact or enforce an ordinance regulating matters covered by ch. 280 or by department rules under ch. 280.

59.70(7) (7) Soil conservation. The board of any county with a population of less than 750,000 may contract to do soil conservation work on privately owned land either directly or through a committee designated by it.

59.70(8) (8) Inland lake protection and rehabilitation. The board may establish an inland lake protection and rehabilitation program and may create, develop and implement inland lake protection and rehabilitation projects similar to projects which an inland lake protection and rehabilitation district is authorized to create, develop and implement under ch. 33. In this subsection, “lake rehabilitation”, “program”, “project” and “lake” have the meanings specified under s. 33.01 (4), (6), (7) and (8), respectively.

59.70(8m) (8m) Harbor improvement. The board may establish, own, operate, lease, equip, and improve harbor facilities on land owned by the county that is located in this state or in another state, subject to the laws of the state in which the land is located, and may appropriate money for the activities specified in this subsection, except that in a county with a population of 750,000 or more, the county executive shall be in charge of the operation of the harbor facilities.

59.70(9) (9) Improvement of artificial lakes. The board may appropriate money for the purpose of maintaining, dredging and improving any artificial lake existing on July 1, 1955, all or a portion of which is adjacent to or within a county park, and for the acquisition of land required in connection therewith.

59.70(10) (10) Drainage district bonds. The board may purchase drainage district bonds at market value or at a discount to salvage the equity of the county in the lands affected and to secure resumption of tax payments thereon and so permit the dissolution of the district.

59.70(11) (11) Acquisition of recycling or resource recovery facilities without bids. The board may contract for the acquisition of any element of a recycling or resource recovery facility without submitting the contract for bids as required under s. 59.52 (29) if the board invites developers to submit proposals to provide a completed project and evaluates proposals according to site, cost, design and the developers’ experience in other similar projects.

59.70(12) (12) Mosquito control districts.

59.70(12)(a) (a) A county or 2 or more contiguous counties may establish a district to control mosquitoes, upon a majority vote of each board, except that the board of a county with a population of 750,000 or more may not take any action under this subsection or sub. (13).

59.70(12)(b) (b)

59.70(12)(b)1. 1. If a county establishes a district, the board shall elect 3 county supervisors to a commission. If 2 or more contiguous counties establish a district, each board in the district shall elect 2 county supervisors to a commission. The elected county supervisors shall serve as members of the commission until the expiration of their terms as county supervisors, as provided in s. 59.10 (1) (b), (2) (b), (3) (d) or (5). Each board in the district shall elect supervisors as replacements when vacancies occur in the commission. The commission shall operate the mosquito control district.

59.70(12)(b)2. 2. The commission shall elect a chairperson, vice chairperson and secretary at its first meeting each year as provided under subd. 3. The chairperson, or vice chairperson, in the chairperson’s absence, shall preside at meetings and shall sign contracts and other written instruments of the commission. The secretary shall keep a record of the minutes of each meeting that is available for public inspection at all reasonable times, and shall mail notices to all members of the time and place of meetings.

59.70(12)(b)3. 3. The commission shall meet on the first Thursday after the first Monday in January to select officers of the commission and to conduct other organizational business. The commission shall also meet if the chairperson calls a meeting, or within 48 hours if a majority of the members of the commission request a meeting in writing, specifying the time and place for the meeting. The commission shall give adequate public notice of the time, place and purpose of each meeting. All business of the commission shall be open to the public.

59.70(12)(b)4. 4. The board of each county in the district shall reimburse commissioners representing that county in the manner provided in s. 59.13 for board committee members.

59.70(13) (13) Commission; powers and duties.

59.70(13)(a) (a) The commission may:

59.70(13)(a)1. 1. Adopt bylaws to regulate its proceedings.

59.70(13)(a)2. 2. Employ the persons and contract for services to carry out the mosquito control program. The commission may not employ any person who is related to a commissioner.

59.70(13)(a)3. 3. Reimburse employees for expenses that are incurred or paid in the performance of their duties, and provide a reasonable daily reimbursement.

59.70(13)(a)4. 4. Purchase the materials, supplies and equipment to carry out the mosquito control program.

59.70(13)(a)5. 5. Take measures to control mosquitoes in accordance with expert and technical plans.

59.70(13)(a)6. 6. Accept gifts of property to control mosquitoes.

59.70(13)(a)7. 7. Dispose of property of the commission or mosquito control district, if it is no longer needed to control mosquitoes, by selling the property on competitive bids after 2 weeks’ published notice.

59.70(13)(a)8. 8. Obtain public liability insurance and worker’s compensation insurance.

59.70(13)(a)9. 9. Enter into agreements with other political subdivisions of the state outside the mosquito control district to conduct mosquito control activities within these political subdivisions, to promote mosquito control in the district.