Chapter 60

60.62(4)(d) (d) Notwithstanding ss. 61.35 and 62.23 (1) (a), if a town with a population of at least 2,500 acts under this section and creates a “Town Plan Commission” under s. 62.23 (1) (a), all members of the commission shall be appointed by the town board chairperson, subject to confirmation by the town board. The town chairperson shall also select the presiding officer. The town board chairperson may appoint town board members to the commission and may appoint other town elected or appointed officials to the commission, except that the commission shall always have at least 3 citizen members who are not town officials. Appointments shall be made by the town board chairperson during the month of April for terms that expire in April or at any other time if a vacancy occurs during the middle of a term except that the appointees to the town plan commission may be removed before the expiration of the appointee’s term by a majority vote of the town board. All other provisions of ss. 61.35 and 62.23 shall apply to a town plan commission to which this paragraph applies.

60.62(4e) (4e) 

60.62(4e)(a) (a) In this subsection:

60.62(4e)(a)1. 1. “Conditional use” means a use allowed under a conditional use permit, special exception, or other special zoning permission issued by a town, but does not include a variance.

60.62(4e)(a)2. 2. “Substantial evidence” means facts and information, other than merely personal preferences or speculation, directly pertaining to the requirements and conditions an applicant must meet to obtain a conditional use permit and that reasonable persons would accept in support of a conclusion.

60.62(4e)(b) (b)

60.62(4e)(b)1. 1. If an applicant for a conditional use permit meets or agrees to meet all of the requirements and conditions specified in the town ordinance or those imposed by the town zoning board, the town shall grant the conditional use permit. Any condition imposed must be related to the purpose of the ordinance and be based on substantial evidence.

60.62(4e)(b)2. 2. The requirements and conditions described under subd. 1. must be reasonable and, to the extent practicable, measurable and may include conditions such as the permit’s duration, transfer, or renewal. The applicant must demonstrate that the application and all requirements and conditions established by the town relating to the conditional use are or shall be satisfied, both of which must be supported by substantial evidence. The town’s decision to approve or deny the permit must be supported by substantial evidence.

60.62(4e)(c) (c) Upon receipt of a conditional use permit application, and following publication in the town of a class 2 notice under ch. 985, the town shall hold a public hearing on the application.

60.62(4e)(d) (d) Once granted, a conditional use permit shall remain in effect as long as the conditions upon which the permit was issued are followed, but the town may impose conditions such as the permit’s duration, transfer, or renewal, in addition to any other conditions specified in the zoning ordinance or by the town zoning board.

60.62(4e)(e) (e) If a town denies a person’s conditional use permit application, the person may appeal the decision to the circuit court under the procedures described in s. 61.35.

60.62(5) (5) 

60.62(5)(a) (a) In this subsection, “shorelands” has the meaning given in s. 59.692 (1) (b).

60.62(5)(b) (b) A town may enact a zoning ordinance under this section that applies in shorelands, except as provided in par. (c).

60.62(5)(c) (c) A town zoning ordinance enacted under this section may not impose restrictions or requirements in shorelands with respect to matters regulated by a county shoreland zoning ordinance enacted under s. 59.692 affecting the same shorelands, regardless of whether the county shoreland zoning ordinance was enacted separately from, or together with, an ordinance enacted under s. 59.69, except as provided in s. 59.692 (2) (b).

60.62(6) (6) 

60.62(6)(a) (a) Not later than 60 days before a town board that wishes to withdraw from county zoning and the county development plan under s. 60.23 (34) may enact an ordinance under s. 60.23 (34), the town board shall enact a zoning ordinance under this section, an official map under s. 62.23 (6), and a comprehensive plan under s. 66.1001.

60.62(6)(b) (b) If a town receives notification under s. 59.69 (5m) that the county board has repealed its zoning ordinances, the town board shall enact a zoning ordinance under this section, an official map under s. 62.23 (6), and a comprehensive plan under s. 66.1001, all of which take effect on the effective date of the county’s repeal of its zoning ordinance.

60.62(7) (7) 

60.62(7)(a) (a) If a town withdraws from coverage of a county zoning ordinance under s. 60.23 (34) or (35), the ordinance and any regulations, approvals, and conditions imposed under the ordinance continue in effect until the ordinance or the particular regulation, approval, or condition is specifically changed by official action of the town. This paragraph does not expand or modify the authority of a town to change a zoning ordinance, any regulation, approval, or condition imposed under a zoning ordinance, or any nonconforming use.

60.62(7)(b) (b) If a town that has been subject to a town zoning ordinance adopts a resolution under s. 59.69 (5) (c) approving the application of a county zoning ordinance within any part of the town, the town zoning ordinance and any regulations, approvals, and conditions imposed under the town zoning ordinance, that are applicable to the area within the town for which the application of the county zoning ordinance is approved, continue in effect until the town zoning ordinance or the particular regulation, approval, or condition is specifically changed by official action of the county. This paragraph does not expand or modify the authority of a town to change a zoning ordinance, any regulation, approval, or condition imposed under a zoning ordinance, or any nonconforming use.

60.62 History History: 1983 a. 532; 1995 a. 201; 1997 a. 27; 1999 a. 9, 182; 2005 a. 207; 2009 a. 372; 2013 a. 287; 2015 a. 41, 55, 178; 2017 a. 67, 365; 2023 a. 264.

60.62 Annotation An amended planned unit development (PUD) ordinance that allowed the placement of a PUD in any district, subject only to the approval of the town board as a conditional use, was invalid as it allowed the town to rezone without county board approval. City of Waukesha v. Town Board, 198 Wis. 2d 592, 543 N.W.2d 515 (Ct. App. 1995), 94-0812.

60.62 Annotation Permitting general town regulation of shorelands under village powers conflicts with the statutory scheme of ss. 59.692 and 281.31, which, by their plain language, appear to deliberately exclude towns from having shoreland zoning authority, except in the circumstance identified in s. 59.692 (2) (b) [now s. 59.692 (2) (b), (bg), and (bm)]. Hegwood v. Town of Eagle Zoning Board of Appeals, 2013 WI App 118, 351 Wis. 2d 196, 839 N.W.2d 111, 12-2058.

60.62 Annotation Judicial review of a county board’s legislative decision concerning approval or disapproval of town zoning ordinances submitted under sub. (3) is limited to cases of abuse of discretion, excess of power, or error of law. 79 Atty. Gen. 117.

60.625 60.625 Required notice on certain approvals.

60.625(1) (1) In this section, “wetland” has the meaning given in s. 23.32 (1).

60.625(2) (2) 

60.625(2)(a) (a) Except as provided in par. (b), a town that issues a building permit or other approval for construction activity, shall give the applicant a written notice as specified in subs. (3) and (4) at the time the building permit is issued.

60.625(2)(b) (b)

60.625(2)(b)1. 1. A town is not required to give the notice under par. (a) at the time that it issues a building permit if the town issues the building permit on a standard building permit form prescribed by the department of safety and professional services.

60.625(2)(b)2. 2. A town is not required to give the notice under par. (a) at the time that it issues a building permit or other approval if the building permit or other approval is for construction activity that does not involve any land disturbing activity including removing protective ground cover or vegetation, or excavating, filling, covering, or grading land.

60.625(3) (3) Each notice shall contain the following language: “YOU ARE RESPONSIBLE FOR COMPLYING WITH STATE AND FEDERAL LAWS CONCERNING CONSTRUCTION NEAR OR ON WETLANDS, LAKES, AND STREAMS. WETLANDS THAT ARE NOT ASSOCIATED WITH OPEN WATER CAN BE DIFFICULT TO IDENTIFY. FAILURE TO COMPLY MAY RESULT IN REMOVAL OR MODIFICATION OF CONSTRUCTION THAT VIOLATES THE LAW OR OTHER PENALTIES OR COSTS. FOR MORE INFORMATION, VISIT THE DEPARTMENT OF NATURAL RESOURCES WETLANDS IDENTIFICATION WEB PAGE OR CONTACT A DEPARTMENT OF NATURAL RESOURCES SERVICE CENTER.”

60.625(4) (4) The notice required in sub. (2) (a) shall contain the electronic website address that gives the recipient of the notice direct contact with that website.

60.625(5) (5) A town in issuing a notice under this section shall require that the applicant for the building permit sign a statement acknowledging that the person has received the notice.

60.625 History History: 2009 a. 373; 2011 a. 32; 2017 a. 365 s. 112.

60.627 60.627 Town construction site erosion control and storm water management zoning.

60.627(1) (1) Definition. In this section, “department” means the department of natural resources.

60.627(2) (2) Authority to enact ordinance.

60.627(2)(a) (a) To effect the purposes of s. 281.33 and to promote the public health, safety and general welfare, if a town board may enact zoning ordinances under s. 60.62, the town board may enact a zoning ordinance, that is applicable to all of its area, for construction site erosion control at sites described in s. 281.33 (3) (a) 1. a. and b. and for storm water management. This ordinance may be enacted separately from ordinances enacted under s. 60.62. An ordinance enacted under this paragraph is subject to the strict conformity requirements under s. 281.33 (3m).

60.627(2)(b) (b) A county ordinance enacted under s. 59.693 does not apply and has no effect in a town in which an ordinance enacted under this section is in effect.

60.627(4) (4) Applicability of village zoning provisions.

60.627(4)(a) (a) Except as otherwise specified in this section, the provisions of s. 61.35, as they apply to villages, apply to any ordinance or amendment to an ordinance enacted under this section.

60.627(4)(b) (b) Variances and appeals regarding a construction site erosion control and storm water management ordinance under this section are to be determined by the board of appeals or similar agency for the town. To the extent specified under s. 61.35, procedures under s. 62.23 (7) (e) apply to these determinations.

60.627(4)(c) (c) An ordinance enacted under this section supersedes all provisions of an ordinance enacted under s. 60.62 that relate to construction site erosion control at sites described in s. 281.33 (3) (a) 1. a. and b. or to storm water management regulation.

60.627(5) (5) Applicability of comprehensive zoning plan or general zoning ordinance. An ordinance enacted under this section shall accord and be consistent with any comprehensive zoning plan or general zoning ordinance applicable to the enacting town, so far as practicable.

60.627(6) (6) Applicability of local subdivision regulation. All powers granted to a town under s. 236.45 may be exercised by it with respect to construction site erosion control at sites described in s. 281.33 (3) (a) 1. a. and b. or with respect to storm water management regulation, if the town has or provides a planning commission or agency.

60.627(7) (7) Applicability to local governments and agencies. An ordinance enacted under this section is applicable to activities conducted by a unit of local government and an agency of that unit of government. An ordinance enacted under this section is not applicable to activities conducted by an agency, as defined under s. 227.01 (1) but also including the office of district attorney, which is subject to the state plan promulgated or a memorandum of understanding entered into under s. 281.33 (2).

60.627(8) (8) Intergovernmental cooperation.

60.627(8)(a) (a) Except as provided in par. (c), s. 66.0301 applies to this section, but for the purposes of this section any agreement under s. 66.0301 shall be effected by ordinance.

60.627(8)(b) (b) If a town is served by a regional planning commission under s. 66.0309 and if the commission consents, the town may empower the commission by ordinance to administer the ordinance enacted under this section throughout the town, whether or not the area otherwise served by the commission includes all of that town.

60.627(8)(c) (c) If a town is served by the Dane County Lakes and Watershed Commission, and if the commission consents, the town may empower the commission by ordinance to administer the ordinance enacted under this section throughout the town, whether or not the area otherwise served by the commission includes all of that town. Section 66.0301 does not apply to this paragraph.

60.627(9) (9) Validity upon annexation. An ordinance enacted under this section by a town continues in effect in any area annexed by a city or village after the effective date of that ordinance unless the city or village enacts, maintains and enforces a city or village ordinance which complies with minimum standards established by the department and which is at least as restrictive as the town ordinance enacted under this section. If, after providing notice and conducting a hearing on the matter, the department determines that an ordinance enacted by a city or village which is applicable to an area annexed after the effective date of the town ordinance does not meet these standards or is not as restrictive as the town ordinance, the department shall issue an order declaring the city or village ordinance void and reinstating the applicability of the town ordinance to the annexed area.

60.627 History History: 1993 a. 246; 1995 a. 201, 227; 1999 a. 150 s. 672; 2013 a. 20.

60.63 60.63 Community and other living arrangements. For purposes of s. 60.61, 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 town shall be subject to the following criteria:

60.63(1) (1) 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 town, 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 local town. Two community living arrangements may be adjacent if the town authorizes that arrangement and if both facilities comprise essential components of a single program.

60.63(2) (2) Community living arrangements shall be permitted in each town without restriction as to the number of facilities, so long as the total capacity of the community living arrangements does not exceed 25 or one percent of the town’s population, whichever is greater. If the capacity of the community living arrangements in the town reaches such total, the town may prohibit additional community living arrangements from locating in the township. Agents of a facility may apply for an exception to this requirement, and such exceptions may be granted at the discretion of the town.

60.63(3) (3) 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 subs. (1) and (2) except that foster homes operated by corporations, child welfare agencies, churches, associations, or public agencies shall be subject to subs. (1) and (2).

60.63(3m) (3m) 

60.63(3m)(a) (a) 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 town, 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 town.

60.63(3m)(b) (b) An adult family home described in s. 50.01 (1) (b) that meets the criteria specified in par. (a) and that is licensed under s. 50.033 (1m) (b) is permitted in the town 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 sub. (10).

60.63(4) (4) If the community living arrangement has capacity for 8 or fewer persons being served by the program, meets the criteria listed in subs. (1) and (2), and is licensed, operated, or permitted under the authority of the department of health services or the department of children and families, the community living arrangement is entitled to locate in any residential zone, without being required to obtain special zoning permission except as provided under sub. (10).

60.63(5) (5) 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 subs. (1) and (2), 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 sub. (10), but is entitled to apply for special zoning permission to locate in those areas. The town may grant such special zoning permission at its discretion and shall make a procedure available to enable such facilities to request such permission.

60.63(6) (6) In all cases where the community living arrangement has capacity for serving 16 or more persons, meets the criteria listed in subs. (1) and (2), 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 town may grant such special zoning permission at its discretion and shall make a procedure available to enable such facilities to request such permission.

60.63(7) (7) 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 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 the capacity of each community living arrangement for children, and such information shall be available to the public.

60.63(8) (8) In this section, “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.

60.63(9) (9) 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 section.

60.63(10) (10) 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 town board of a town 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 town. The determination shall be made according to the procedures provided under sub. (11). If the town board determines that the existence in the town 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 town, the 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 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.

60.63(10m) (10m) 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 sub. (10) to assert or prove that the existence of the community living arrangement in the town poses a threat to the health, safety or welfare of the residents of the town.

60.63(11) (11) A determination made under sub. (10) shall be made after a hearing before the town board. The town 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 town board may call witnesses and may issue subpoenas. All witnesses shall be sworn by the town board. The town board shall take notes of the testimony and shall mark and preserve all exhibits. The 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 town. Within 20 days after the hearing, the town board shall 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.

60.63 History History: 1983 a. 532; 1985 a. 281; 1987 a. 161; 1989 a. 56, 201; 1993 a. 27, 327, 446, 491; 1995 a. 27 s. 9126 (19); 1995 a. 225, 417; 2007 a. 20 ss. 1861 to 1866, 9121 (6) (a); 2009 a. 28, 209; 2011 a. 32.

60.635 60.635 Environmental protection; interstate hazardous liquid pipelines. A town may not require an operator of an interstate hazardous liquid pipeline to obtain insurance if the pipeline operating company carries comprehensive general liability insurance coverage that includes coverage for sudden and accidental pollution liability.

60.635 History History: 2015 a. 55.

60.64 60.64 Historic preservation.

60.64(1) (1) Subject to subs. (2) and (2m), the town board, in the exercise of its zoning and police powers for the purpose of promoting the health, safety and general welfare of the community and of the state, may regulate any place, structure or object with a special character, historic interest, aesthetic interest or other significant value for the purpose of preserving the place, structure or object and its significant characteristics. Subject to subs. (2), (2m), and (3), the town board may create a landmarks commission to designate historic landmarks and establish historic districts. Subject to subs. (2) and (2m), the board may regulate all historic landmarks and all property within each historic district to preserve the historic landmarks and property within the district and the character of the district.

60.64(2) (2) Before the town board designates a historic landmark or establishes a historic district, the town board shall hold a public hearing. If the town board proposes to designate a place, structure, or object as a historic landmark or establish a historic district that includes a place, structure, or object, the town board shall, by 1st class mail, notify the owner of the place, structure, or object of the determination and of the time and place of the public hearing on the determination.

60.64(2m) (2m) In the repair or replacement of a property that is designated as a historic landmark or included within a historic district or neighborhood conservation district under this section, the town board shall allow an owner to use materials that are similar in design, color, scale, architectural appearance, and other visual qualities.

60.64(3) (3) An owner of property that is affected by a decision of a town landmarks commission may appeal the decision to the town board. The town board may overturn a decision of the commission by a majority vote of the town board.

60.64 History History: 1983 a. 532; 2015 a. 176; 2017 a. 317.

60.65 60.65 Board of adjustment.

60.65(1) (1) Town board shall appoint. If a zoning ordinance has been adopted under s. 60.61, the town board shall establish and appoint a board of adjustment.

60.65(2) (2) Membership. The board of adjustment consists of 3 members. Not more than one town board supervisor may be a member of the board of adjustment. The initial terms of the members of the board of adjustment are one, 2 and 3 years, respectively, starting from the first day of the month next following the appointment. Successors shall be appointed or elected at the expiration of each term and their term of office shall be 3 years and until their successors are appointed or elected. Members of the board of adjustment shall reside within the town. The board shall choose a chairperson. Vacancies shall be filled for the unexpired term of any member whose office becomes vacant. The town board may compensate the members of the adjustment board.

60.65(3) (3) Powers and duties. The town board may authorize the board of adjustment to, in appropriate cases and subject to appropriate conditions and safeguards, permit special exceptions to the terms of the zoning ordinance under s. 60.61 consistent with the ordinance’s general purpose and intent and with applicable provisions of the ordinance. This subsection does not preclude the granting of special exceptions by the town zoning committee designated under s. 60.61 (4) or the town board, in accordance with regulations and restrictions adopted under s. 60.61.

60.65(4) (4) Procedure. The town board shall adopt regulations for the conduct of the business of the board of adjustment consistent with ordinances adopted under s. 60.61. The board of adjustment may adopt rules necessary to implement the regulations of the town board. Meetings of the board shall be held at the call of the chairperson and other times as the board may determine. The chairperson or, in his or her absence, the acting chairperson, may administer oaths and compel the attendance of witnesses. The board shall keep minutes of its proceedings showing the vote of each member upon each question or, if absent, indicating that fact and shall keep records of its examinations and other official actions, all of which shall be immediately filed in the office of the board and shall be a public record. In any action involving a historic property, as defined in s. 44.31 (3), the board shall consider any suggested alternatives or recommended decision submitted by the landmarks commission or the zoning committee.

60.65(5) (5) Exercise of county board of adjustment powers. Boards of adjustment under town zoning ordinances shall have the powers and duties provided for boards of adjustment under s. 59.694 and shall carry out their duties in the manner provided for boards of adjustment by s. 59.694.

60.65(6) (6) Judicial review. A decision of a board of adjustment under this section is subject to review under the procedures described in s. 59.694 (10) (a), or if the decision is on an application for an approval, as defined in s. 781.10 (1) (a), under the procedures described in s. 59.694 (10) (b).

60.65 History History: 1983 a. 532; 1985 a. 135; 1987 a. 395; 1995 a. 201; 2023 a. 16.

60.65 Annotation General, rather than explicit, standards regarding the granting of special exceptions may be adopted and applied by a governing body. An applicant has the burden of formulating conditions showing that a proposed use meets the standards. Upon approval, additional conditions may be imposed by the governing body. Edward Kraemer & Sons, Inc. v. Sauk County Board of Adjustment, 183 Wis. 2d 1, 515 N.W.2d 256 (1994).

60.65 Annotation Sub. (3) requires that the authority of a town board of adjustment to grant conditional use permits be contained in the town zoning ordinance. There is no statutory authority for a town board of adjustment to hear appeals from decisions of town boards granting or denying conditional use permits. Magnolia Township & Western Rock County Citizens Against Factory Farming v. Town of Magnolia, 2005 WI App 119, 284 Wis. 2d 361, 701 N.W.2d 60, 04-1591.