Chapter 61

61.34 Annotation When a municipality’s power to contract is improperly or irregularly exercised and the municipality receives a benefit under the contract, it is estopped from asserting the invalidity of the contract. Village of McFarland v. Town of Dunn, 82 Wis. 2d 469, 263 N.W.2d 167 (1978).

61.34 Annotation A village was authorized under sub. (1) and s. 30.77 (3) to enact an ordinance granting exclusive temporary use of a portion of a lake for public water exhibition licensees. State v. Village of Lake Delton, 93 Wis. 2d 78, 286 N.W.2d 622 (Ct. App. 1979).

61.34 Annotation There is a four-part test in evaluating whether a municipality may regulate a matter of state-wide concern: 1) whether the legislature has expressly withdrawn the power of municipalities to act; 2) whether the ordinance logically conflicts with the state legislation; 3) whether the ordinance defeats the purpose of the state legislation; or 4) whether the ordinance goes against the spirit of the state legislation. Anchor Savings & Loan Ass’n v. Equal Opportunities Commission, 120 Wis. 2d 391, 355 N.W.2d 234 (1984).

61.34 Annotation Discussing the delegation of village powers to a non-governmental entity. Save Elkhart Lake, Inc. v. Village of Elkhart Lake, 181 Wis. 2d 778, 512 N.W.2d 202 (Ct. App. 1993).

61.34 Annotation The state regulatory scheme for tobacco sales preempts municipalities from adopting regulations that are not in strict conformity with those of the state. U.S. Oil, Inc. v. City of Fond du Lac, 199 Wis. 2d 333, 544 N.W.2d 589 (Ct. App. 1996), 95-0213.

61.34 Annotation It was not a violation of this section, s. 236.45, or the public purpose doctrine for a municipality to assume the dual role of subdivider of property it owned and reviewer of the plat under ch. 236. Town of Beloit v. County of Rock, 2001 WI App 256, 249 Wis. 2d 88, 637 N.W.2d 71, 00-1231.

61.34 Annotation Affirmed on other grounds. 2003 WI 8, 259 Wis. 2d 37, 657 N.W.2d 344, 00-1231.

61.34 Annotation One who deals with a municipality does so at the person’s own risk and may be subject to any provisions of law that might prevent the person from being paid by a municipality even though the services are rendered. Unless the power to bind the municipality financially has been specifically delegated, the only entity with the statutory authority to contract is the municipality. Holzbauer v. Safway Steel Products, Inc., 2005 WI App 240, 288 Wis. 2d 250, 708 N.W.2d 36, 04-2058.

61.34 Annotation The line distinguishing general police power regulation from zoning ordinances is far from clear. The question of whether a particular enactment constitutes a zoning ordinance is often a matter of degree. Broad statements of the purposes of zoning and the purposes of an ordinance are not helpful in distinguishing a zoning ordinance from an ordinance enacted pursuant to non-zoning police power. The statutorily enumerated purposes of zoning are not the exclusive domain of zoning regulation. A more specific and analytically helpful formulation of the purpose of zoning, at least in the present case, is to separate incompatible land uses. Multiple factors are considered and discussed. Zwiefelhofer v. Town of Cooks Valley, 2012 WI 7, 338 Wis. 2d 488, 809 N.W.2d 362, 10-2398.

61.34 Annotation A sidewalk is a “pedestrian way” as that term is used in sub. (3) (b) and s. 32.015. The general definition of pedestrian way in s. 346.02 (8) (a) is broader than the definition of a sidewalk because a pedestrian way can—but need not—be adjacent to a roadway. In other words, the term pedestrian way includes both: 1) sidewalks, i.e., walks adjacent to a roadway for the use of pedestrian travel, as defined in s. 340.01 (58); and 2) all other walks designated for pedestrian travel that are not adjacent to a roadway, such as a walking path through a parcel of property. Sojenhomer LLC v. Village of Egg Harbor, 2023 WI App 20, 407 Wis. 2d 587, 990 N.W.2d 267, 21-1589.

61.34 Annotation State statutory enabling legislation is required to authorize enactment of typical rent control ordinances. 62 Atty. Gen. 276.

61.34 Annotation Local units of government may not create and accumulate unappropriated surplus funds. However, a local unit of government may maintain reasonable amounts necessary in the exercise of sound business principles to meet the immediate cash flow needs of the municipality during the current budgetary period or to accumulate needed capital in non-lapsing funds to finance specifically identified future capital expenditures. 76 Atty. Gen. 77.

61.34 Annotation Article VIII, section 5 restricts the state from levying taxes to create a surplus having no public purpose. Although the constitutional provision does not apply directly to municipalities, the same limitation applies indirectly to them because the state cannot delegate more power than it has. 76 Atty. Gen. 77.

61.34 Annotation Conflicts Between State Statute and Local Ordinance in Wisconsin. Solheim. 1975 WLR 840.

61.342 61.342 Direct legislation. The provisions of s. 9.20, relating to direct legislation, shall be applicable to villages.

61.342 History History: 1989 a. 273.

61.345 61.345 Recycling or resource recovery facilities. A village 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.

61.345 History History: 1983 a. 27; 1989 a. 335 s. 89; 1995 a. 227.

61.35 61.35 Village planning. Section 62.23 applies to villages, and the powers and duties conferred and imposed by s. 62.23 upon mayors, councils and specified city officials are hereby conferred upon presidents, village boards, and village officials performing duties similar to the duties of such specified city officials, respectively. Any ordinance or resolution passed prior to May 30, 1925, by any village board under s. 61.35, 1923 stats., shall remain in effect until repealed or amended by such village board.

61.35 History History: 1981 c. 390.

61.35 Annotation The line distinguishing general police power regulation from zoning ordinances is far from clear. The question of whether a particular enactment constitutes a zoning ordinance is often a matter of degree. Broad statements of the purposes of zoning and the purposes of an ordinance are not helpful in distinguishing a zoning ordinance from an ordinance enacted pursuant to non-zoning police power. The statutorily enumerated purposes of zoning are not the exclusive domain of zoning regulation. A more specific and analytically helpful formulation of the purpose of zoning, at least in the present case, is to separate incompatible land uses. Multiple factors are considered and discussed. Zwiefelhofer v. Town of Cooks Valley, 2012 WI 7, 338 Wis. 2d 488, 809 N.W.2d 362, 10-2398.

61.351 61.351 Zoning of wetlands in shorelands.

61.351(1) (1) Definitions. As used in this section:

61.351(1)(a) (a) “Shorelands” has the meaning specified under s. 59.692 (1) (b).

61.351(1)(b) (b) “Wetlands” has the meaning specified under s. 23.32 (1).

61.351(2) (2) Filled wetlands. Any wetlands which are filled prior to the date on which a village receives a final wetlands map from the department of natural resources in a manner which affects their characteristics as wetlands are filled wetlands and not subject to an ordinance adopted under this section.

61.351(2m) (2m) Certain wetlands on landward side of an established bulkhead line. Any wetlands on the landward side of a bulkhead line, established by the village under s. 30.11 prior to May 7, 1982 and between that bulkhead line and the ordinary high-water mark are exempt wetlands and not subject to an ordinance adopted under this section.

61.351(3) (3) Adoption of ordinance. To effect the purposes of s. 281.31 and to promote the public health, safety and general welfare, each village shall zone by ordinance all unfilled wetlands of 5 acres or more which are shown on the final wetland inventory maps prepared by the department of natural resources for the village under s. 23.32, which are located in any shorelands and which are within its incorporated area. A village may zone by ordinance any unfilled wetlands which are within its incorporated area at any time.

61.351(4) (4) Village planning.

61.351(4)(a) (a) Powers and procedures. Except as provided under sub. (5), s. 61.35 applies to ordinances and amendments enacted under this section.

61.351(4)(b) (b) Impact on other zoning ordinances. If a village ordinance enacted under s. 61.35 affecting wetlands in shorelands is more restrictive than an ordinance enacted under this section affecting the same lands, it continues to be effective in all respects to the extent of the greater restrictions, but not otherwise.

61.351(5) (5) Repair and expansion of existing structures permitted. Notwithstanding s. 62.23 (7) (h), an ordinance adopted under this section may not prohibit the repair, reconstruction, renovation, remodeling or expansion of a nonconforming structure in existence on the effective date of an ordinance adopted under this section or any environmental control facility in existence on the effective date of an ordinance adopted under this section related to that structure.

61.351(5m) (5m) Restoration of certain nonconforming structures.

61.351(5m)(a) (a) Restrictions that are applicable to damaged or destroyed nonconforming structures and that are contained in an ordinance adopted 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:

61.351(5m)(a)1. 1. The nonconforming structure was damaged or destroyed on or after March 2, 2006.

61.351(5m)(a)2. 2. The damage or destruction was caused by violent wind, vandalism, fire, flood, ice, snow, mold, or infestation.

61.351(5m)(b) (b) An ordinance adopted 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.

61.351(6) (6) Failure to adopt ordinance. If any village does not adopt an ordinance required under sub. (3) within 6 months after receipt of final wetland inventory maps prepared by the department of natural resources for the village under s. 23.32, or if the department of natural resources, after notice and hearing, determines that a village adopted an ordinance which fails to meet reasonable minimum standards in accomplishing the shoreland protection objectives of s. 281.31 (1), the department of natural resources shall adopt an ordinance for the village. As far as applicable, the procedures set forth in s. 87.30 apply to this subsection.

61.351 History History: 1981 c. 330; 1995 a. 201, 227; 2005 a. 112.

61.351 Cross-reference Cross-reference: See also ch. NR 117, Wis. adm. code.

61.352 61.352 Required notice on certain approvals.

61.352(1) (1) In this section, “wetland” has the meaning given in s. 23.32 (1).

61.352(2) (2) 

61.352(2)(a) (a) Except as provided in par. (b), a village 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.

61.352(2)(b) (b)

61.352(2)(b)1. 1. A village is not required to give the notice under par. (a) at the time that it issues a building permit if the village issues the building permit on a standard building permit form prescribed by the department of safety and professional services.

61.352(2)(b)2. 2. A village 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.

61.352(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.”

61.352(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.

61.352(5) (5) A village 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.

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

61.353 61.353 Zoning of annexed or incorporated shorelands.

61.353(1) (1) In this section:

61.353(1)(a) (a) “Principal building” means the main building or structure on a single lot or parcel of land and includes any attached garage or attached porch.

61.353(1)(b) (b) “Shorelands” has the meaning given in s. 59.692 (1) (b).

61.353(1)(c) (c) “Shoreland setback area” has the meaning given in s. 59.692 (1) (bn).

61.353(2) (2) Every village shall, on or before July 1, 2014, enact an ordinance that applies to all of the following shorelands:

61.353(2)(a) (a) A shoreland that was annexed by the village after May 7, 1982, and that prior to annexation was subject to a county shoreland zoning ordinance under s. 59.692.

61.353(2)(b) (b) For a village that incorporated after April 30, 1994, under s. 66.0203, 66.0211, or 66.0213, a shoreland that before incorporation by the village was part of a town that was subject to a county shoreland zoning ordinance under s. 59.692.

61.353(3) (3) A village ordinance enacted under this section shall accord and be consistent with the requirements and limitations under s. 59.692 (1d), (1f), and (1k) and shall include at least all of the following provisions:

61.353(3)(a) (a) A provision establishing a shoreland setback area of at least 50 feet from the ordinary high-water mark, except as provided in par. (b).

61.353(3)(b) (b) A provision authorizing construction or placement of a principal building within the shoreland setback area established under par. (a) if all of the following apply:

61.353(3)(b)1. 1. The principal building is constructed or placed on a lot or parcel of land that is immediately adjacent on each side to a lot or parcel of land containing a principal building.

61.353(3)(b)2. 2. The principal building is constructed or placed within a distance equal to the average setback of the principal building on the adjacent lots or 35 feet from the ordinary high-water mark, whichever distance is greater.

61.353(5) (5) Provisions of a county shoreland zoning ordinance under s. 59.692 and any regulations, approvals, and conditions imposed under the ordinance that were applicable, prior to annexation, to any shoreland annexed by a village after May 7, 1982, continue in effect until the effective date of an ordinance enacted by the village under sub. (2).

61.353(6) (6) Provisions of a county shoreland zoning ordinance under s. 59.692 and any regulations, approvals and conditions imposed under the ordinance that were applicable prior to incorporation to any shoreland that is part of a town that incorporates as a village under s. 66.0203, 66.0211, or 66.0213 after April 30, 1994, continue in effect until the effective date of an ordinance enacted by the village under sub. (2).

61.353(7) (7) An ordinance enacted under sub. (2) does not apply to lands adjacent to an artificially constructed drainage ditch, pond, or stormwater retention basin if the drainage ditch, pond, or retention basin is not hydrologically connected to a natural navigable water body.

61.353 History History: 2013 a. 80; 2015 a. 55; 2023 a. 264.

61.354 61.354 Construction site erosion control and storm water management zoning.

61.354(1) (1) Definition. As used in this section, “department” means the department of natural resources.

61.354(2) (2) Authority to enact ordinance. To effect the purposes of s. 281.33 and to promote the public health, safety and general welfare, a village may enact a zoning ordinance, that is applicable to all of its incorporated 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. 61.35. An ordinance enacted under this subsection is subject to the strict conformity requirements under s. 281.33 (3m).

61.354(4) (4) Applicability of village zoning provisions.

61.354(4)(a) (a) Except as otherwise specified in this section, s. 61.35 applies to any ordinance or amendment to an ordinance enacted under this section.

61.354(4)(b) (b) Variances and appeals regarding construction site erosion control and storm water management regulations under this section are to be determined by the board of appeals or similar agency for that village. To the extent specified under s. 61.35, procedures under s. 62.23 (7) (e) apply to these determinations.

61.354(4)(c) (c) An ordinance enacted under this section supersedes all provisions of an ordinance enacted under s. 61.35 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.

61.354(5) (5) Applicability of comprehensive zoning plan or general zoning ordinance. Ordinances enacted under this section shall accord and be consistent with any comprehensive zoning plan or general zoning ordinance applicable to the enacting villages, so far as practicable.

61.354(6) (6) Applicability of local subdivision regulation. All powers granted to a village 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 village has or provides a planning commission or agency.

61.354(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).

61.354(8) (8) Intergovernmental cooperation.

61.354(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.

61.354(8)(b) (b) If a village is served by a regional planning commission under s. 66.0309 and if the commission consents, the village may empower the commission by ordinance to administer the ordinance enacted under this section throughout the village, whether or not the area otherwise served by the commission includes all of that village.

61.354(8)(c) (c) If a village is served by the Dane County Lakes and Watershed Commission, and if the commission consents, the village may empower the commission by ordinance to administer the ordinance enacted under this section throughout the village, whether or not the area otherwise served by the commission includes all of that village. Section 66.0301 does not apply to this paragraph.

61.354 History History: 1983 a. 416; 1983 a. 538 s. 271; 1989 a. 31, 324; 1993 a. 16; 1995 a. 227; 1999 a. 150 s. 672; 2013 a. 20.

61.36 61.36 Streets, sidewalks, sewers and watercourses. Without limitation because of enumeration, the village board may lay out, open, change, widen or extend roads, streets, alleys, sanitary and storm sewers, water mains, parks and other public grounds, and improve, repair or discontinue the same or any part thereof, including lighting and tree planting, and may establish and open and construct drains, canals or sewers and alter, widen or straighten watercourses; may build, alter, repair or otherwise improve or vacate or discontinue sidewalks and crosswalks; and may build and maintain roads and sidewalks required to connect the village with any transportation terminal or village property outside of its limits.

61.39 61.39 Service pipes and sewers. The provisions of s. 62.16 (2), relating to service pipes, and s. 62.18, relating to sewers, shall be applicable to villages.

61.44 61.44 Railroads, dust prevention. The village board may require any railroad company to cause its roadbed within the limits of the village, to a distance of one foot outside each rail, to be sprinkled with water or to be oiled in such manner as to prevent dust from arising therefrom.

61.44 History History: 1985 a. 187.

61.46 61.46 Village taxes.

61.46(1) (1) General; limitation. The village board shall, on or before December 15 in each year, by resolution to be entered of record, determine the amount of corporation taxes to be levied and assessed on the taxable property in such village for the current year. Before levying any tax for any specified purpose, exceeding one percent of the assessed valuation aforesaid, the village board shall, and in all other cases may in its discretion, submit the question of levying the same to the village electors at any general or special election by giving 10 days’ notice thereof prior to such election by publication in a newspaper published in the village, if any, and if there is none, then by posting notices in 3 public places in said village, setting forth in such notices the object and purposes for which such taxes are to be raised and the amount of the proposed tax. The village board shall file the question as provided in s. 8.37.