“Conditional use” means a use allowed under a conditional use permit, special exception, or other special zoning permission issued by a county, but does not include a variance.
“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.
If an applicant for a conditional use permit meets or agrees to meet all of the requirements and conditions specified in the county ordinance or those imposed by the county zoning board, the county shall grant the conditional use permit. Any condition imposed must be related to the purpose of the ordinance and be based on substantial evidence.
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 county relating to the conditional use are or shall be satisfied, both of which must be supported by substantial evidence. The county's decision to approve or deny the permit must be supported by substantial evidence.
Upon receipt of a conditional use permit application, and following publication in the county of a class 2 notice under ch. 985
, the county shall hold a public hearing on the application.
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 county 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 county zoning board.
If a county denies a person's conditional use permit application, the person may appeal the decision to the circuit court under the procedures contained in s. 59.694 (10)
Subject to par. (b)
, if a county clerk receives a notice from a town under s. 60.23 (34) (b) 1.
before July 1 of the year before a year in which a town may withdraw from county zoning under s. 60.23 (34)
, a county board may enact an ordinance, before October 1 of the year in which the county clerk receives the notice, to repeal all of its zoning ordinances enacted under this section if it so notifies, in writing, all of the towns that are subject to its zoning ordinances. If a county does not repeal all of its zoning ordinances as described in this paragraph, it shall amend its zoning ordinances to specify that the ordinances do not apply in the town from which it received the notice.
An ordinance enacted under par. (a)
shall have a delayed effective date of one year. No county board may repeal under this subsection a county shoreland zoning or floodplain zoning ordinance.
(6) Optional additional procedures.
Nothing in this section shall be construed to prohibit the zoning agency, the board or a town board from adopting any procedures in addition to those prescribed in this section and not in conflict therewith. Such procedures may, but are not required to, provide for public hearings before the county board. The public hearing provided by sub. (5) (a)
and (e) 2.
is deemed to be sufficient for the requirements of due process whether or not the county board holds a further public hearing thereafter.
(7) Continued effect of ordinance.
Whenever an area which has been subject to a county zoning ordinance petitions to become part of a city or village, the regulations imposed by the county zoning ordinance shall continue in effect, without change, and shall be enforced by the city or village until the regulations have been changed by official action of the governing body of the city or village, except that in the event an ordinance of annexation is contested in the courts, the county zoning shall prevail and the county shall have jurisdiction over the zoning in the area affected until ultimate determination of the court action.
(8) Exchange of tax deeded lands.
When a county acquires lands by tax deeds, the board may exchange such lands for other lands in the county for the purpose of promoting the regulation and restriction of agricultural and forestry lands and may exchange such lands for other lands for the purpose of creating a park or recreational area.
(9) Zoning of county-owned lands. 59.69(9)(a)
The county board may by ordinance zone and rezone lands owned by the county without necessity of securing the approval of the town boards of the towns wherein the lands are situated and without following the procedure outlined in sub. (5)
, provided that the county board shall give written notice to the town board of the town wherein the lands are situated of its intent to so rezone and shall hold a public hearing on the proposed rezoning ordinance and give notice of the hearing by posting in 5 public places in the town.
This subsection does not apply to land that is subject to a town zoning ordinance which is purchased by the county for use as a solid or hazardous waste disposal facility or hazardous waste storage or treatment facility, as these terms are defined under s. 289.01
In this subsection “nonconforming use" means a use of land, a dwelling, or a building that existed lawfully before the current zoning ordinance was enacted or amended, but that does not conform with the use restrictions in the current ordinance.
An ordinance enacted under this section may not prohibit the continuance of the lawful use of any building, premises, structure, or fixture for any trade or industry for which such building, premises, structure, or fixture is used at the time that the ordinances take effect, but the alteration of, or addition to, or repair in excess of 50 percent of its assessed value of any existing building, premises, structure, or fixture for the purpose of carrying on any prohibited trade or new industry within the district where such buildings, premises, structures, or fixtures are located, may be prohibited. The continuance of the nonconforming use of a temporary structure may be prohibited. If the nonconforming use is discontinued for a period of 12 months, any future use of the building, premises, structure, or fixture shall conform to the ordinance.
Notwithstanding par. (am)
, a manufactured home community licensed under s. 101.935
that is a legal nonconforming use continues to be a legal nonconforming use notwithstanding the occurrence of any of the following activities within the community:
Except as provided under subd. 2.
, the board shall designate an officer to administer the zoning ordinance, who may be the secretary of the zoning agency, a building inspector appointed under s. 59.698
or other appropriate person.
Notwithstanding subd. 1.
and s. 59.698
, in a county with a county zoning agency and a county executive or county administrator, the county executive or county administrator shall appoint and supervise the head of the county zoning agency and the county building inspector, in separate or combined positions. The appointment is subject to confirmation by the board unless the board, by ordinance, elects to waive confirmation or unless the appointment is made under a civil service system competitive examination procedure established under s. 59.52 (8)
or ch. 63
. The board, by resolution or ordinance, may provide that, notwithstanding s. 17.10 (6)
, the head of the county zoning agency and the county building inspector, whether serving in a separate or combined position, if appointed under this subdivision, may not be removed from his or her position except for cause.
The officer designated under subd. 1.
shall cause a record to be made immediately after the enactment of an ordinance or amendment thereto, or change in district boundary, approved by the town board, of all lands, premises and buildings in the town used for purposes not conforming to the regulations applicable to the district in which they are situated. The record shall include the legal description of the lands, the nature and extent of the uses therein, and the names and addresses of the owner or occupant or both. Promptly on its completion the record shall be published in the county as a class 1 notice, under ch. 985
. The record, as corrected, shall be on file with the register of deeds 60 days after the last publication and shall be prima facie evidence of the extent and number of nonconforming uses existing on the effective date of the ordinance in the town. Corrections before the filing of the record with the register of deeds may be made on the filing of sworn proof in writing, satisfactory to the officer administering the zoning ordinance.
The board shall prescribe a procedure for the annual listing of nonconforming uses, discontinued or created, since the previous listing and for all other nonconforming uses. Discontinued and newly created nonconforming uses shall be recorded with the register of deeds immediately after the annual listing.
shall not apply to counties issuing building permits or occupancy permits as a means of enforcing the zoning ordinance or to counties which have provided other procedures for this purpose.
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.
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.
(10e) Repair, rebuilding, and maintenance of certain nonconforming structures. 59.69(10e)(a)1.
“Development regulations" means the part of a zoning ordinance that applies to elements including setback, height, lot coverage, and side yard.
“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.
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.
(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:
The nonconforming structure was damaged or destroyed on or after March 2, 2006.
The damage or destruction was caused by violent wind, vandalism, fire, flood, ice, snow, mold, or infestation.
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.
(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.
(12) Prior ordinances effective.
Nothing in this section shall invalidate any county zoning ordinance enacted under statutes in effect before July 20, 1951.
(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.
(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.
(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:
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.
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.
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.
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)
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)
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.
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)
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 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)
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 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.
If the community living arrangement has capacity for serving 16 or more persons, meets the criteria listed in pars. (a)
, 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.
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.
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.
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.
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.
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.
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.
History: 1971 c. 40
; 1971 c. 86
; 1973 c. 274
; 1977 c. 205
; 1979 c. 233
; 1979 c. 323
; 1981 c. 341
; 1983 a. 192
s. 303 (1)
; 1983 a. 410
; 1983 a. 532
; 1985 a. 29
; 1987 a. 161
; 1989 a. 80
; 1991 a. 255
; 1993 a. 16
; 1995 a. 27
ss. 9130 (4)
, 9126 (19)
; 1995 a. 201
; Stats. 1995 s. 59.69; 1995 a. 225
; 1995 a. 227
; 1997 a. 3
; 1999 a. 9
; 2001 a. 16
; 2003 a. 214
; 2005 a. 26
; 2007 a. 11
; 2007 a. 20
, 9121 (6) (a)
; 2009 a. 28
; 2011 a. 32
; 2013 a. 20
; 2013 a. 165
; 2015 a. 55
; 2017 a. 67
; 2019 a. 145
; s. 35.17 correction in (5) (a) and (b).
NOTE: 2003 Wis. Act 214
, which affected this section, contains extensive explanatory notes.
A zoning ordinance may distinguish between foster homes and therapeutic homes for the care of children. Browndale International v. Board of Adjustment, 60 Wis. 2d 182
, 208 N.W.2d 121
A plaintiff is not required to exhaust administrative remedies when his or her 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
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
Under s. 59.97 [now s. 59.69] (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
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
A municipality is not required to show irreparable injury before obtaining an injunction under s. 59.97 [now s. 59.69] (11). County of Columbia v. Bylewski, 94 Wis. 2d 153
, 288 N.W.2d 129
Under s. 59.97 [now s. 59.69] (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
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 Bank v. Town of Somers, 141 Wis. 2d 271
, 414 N.W.2d 824
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 Bank v. Town of Somers, 141 Wis. 2d 271
, 414 N.W.2d 824
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 Adjustment, 177 Wis. 2d 445
, 501 N.W.2d 782
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).
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. South Milwaukee, 197 Wis. 2d 157
, 540 N.W.2d 189
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
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
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
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
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 considerations including that of the state's citizens. Forest County v. Goode, 219 Wis. 2d 654
, 579 N.W.2d 715
Construction in violation of zoning regulations, 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
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 was 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
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
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
While the DNR 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 v. Town of Shelby, 2000 WI 56
, 235 Wis. 2d 409
, 611 N.W.2d 693