Chapter 59

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

59.69 Annotation The primary authority to enact, repeal, and amend a zoning ordinance is at the county, not town, level. The county is responsible for any liabilities that may arise from adoption. No liability arises to a town from the town’s approval of a county ordinance enacted following the repeal of a prior effective ordinance. M&I Marshall & Ilsley Bank v. Town of Somers, 141 Wis. 2d 271, 414 N.W.2d 824 (1987).

59.69 Annotation When it is claimed that zoning resulted in a taking of land without compensation, there is no compensable taking unless the regulation resulted in a diminution of value so great that it amounts to a confiscation. M&I Marshall & Ilsley Bank v. Town of Somers, 141 Wis. 2d 271, 414 N.W.2d 824 (1987).

59.69 Annotation For purposes of determining a nonconforming use for a quarry site, all land that contains the mineral and is integral to the operation is included, although a particular portion may not be under actual excavation. Smart v. Dane County Board of Adjustments, 177 Wis. 2d 445, 501 N.W.2d 782 (1993).

59.69 Annotation The power to regulate nonconforming uses includes the power to limit the extension or expansion of the use if it results in a change in the character of the use. Waukesha County v. Pewaukee Marina, Inc., 187 Wis. 2d 18, 522 N.W.2d 536 (Ct. App. 1994).

59.69 Annotation When a zoning ordinance is changed, a builder may have a vested right, enforceable by mandamus, to build under the previously existing ordinance if the builder has submitted, prior to the change, an application for a permit in strict and complete conformance with the ordinance then in effect. Lake Bluff Housing Partners v. City of South Milwaukee, 197 Wis. 2d 157, 540 N.W.2d 189 (1995), 94-1155.

59.69 Annotation Unless the zoning ordinance provides otherwise, a court should measure the sufficiency of a conditional use application at the time that notice of the final public hearing is first given. Weber v. Town of Saukville, 209 Wis. 2d 214, 562 N.W.2d 412 (1997), 94-2336.

59.69 Annotation A permit issued for a use prohibited by a zoning ordinance is illegal per se. A conditional use permit only allows a property owner to put the property to a use that is expressly permitted, as long as conditions have been met. A use begun under an illegal permit cannot be a prior nonconforming use. Foresight, Inc. v. Babl, 211 Wis. 2d 599, 565 N.W.2d 279 (Ct. App. 1997), 96-1964.

59.69 Annotation A nonconforming use, regardless of its duration, may be prohibited or restricted if it also constitutes a public nuisance or is harmful to public health, safety, or welfare. Town of Delafield v. Sharpley, 212 Wis. 2d 332, 568 N.W.2d 779 (Ct. App. 1997), 96-2458.

59.69 Annotation A county executive’s power to veto ordinances and resolutions extends to rezoning petitions that are in essence proposed amendments to the county zoning ordinance. The veto is subject to limited judicial review. Schmeling v. Phelps, 212 Wis. 2d 898, 569 N.W.2d 784 (Ct. App. 1997), 96-2661.

59.69 Annotation Sub. (11) does not eliminate the traditional equitable power of a circuit court. It is within the power of the court to deny a county’s request for injunctive relief when a zoning ordinance violation is proven. The court should take evidence and weigh equitable interests including those of the state’s citizens. Forest County v. Goode, 219 Wis. 2d 654, 579 N.W.2d 715 (1998), 96-3592.

59.69 Annotation Construction in violation of zoning, even when authorized by a voluntarily issued permit, is unlawful. However, in rare cases, there may be compelling equitable reasons when a requested order of abatement should not be issued. Lake Bluff Housing Partners v. City of South Milwaukee, 222 Wis. 2d 222, 588 N.W.2d 45 (Ct. App. 1998), 97-1339.

59.69 Annotation A conditional use permit did not impose a condition that the conditional use not be conducted outside the permitted area. It was improper to revoke the permit based on that use. An enforcement action in relation to the parcel where the use was not permitted is an appropriate remedy. Bettendorf v. St. Croix County Board of Adjustment, 224 Wis. 2d 735, 591 N.W.2d 916 (Ct. App.1999), 98-2327.

59.69 Annotation Once a municipality has shown an illegal change in use to a nonconforming use, the municipality is entitled to terminate the entire nonconforming use. The decision is not within the discretion of the court reviewing the order. Village of Menomonee Falls v. Preuss, 225 Wis. 2d 746, 593 N.W.2d 496 (Ct. App. 1999), 98-0384.

59.69 Annotation To violate substantive due process guarantees, a zoning decision must involve more than simple errors in law or an improper exercise of discretion; it must shock the conscience. The city’s violation of a purported agreement regarding zoning was not a violation. A court cannot compel a political body to adhere to an agreement regrading zoning if that body has legitimate reasons for breaching. Eternalist Foundation, Inc. v. City of Platteville, 225 Wis. 2d 759, 593 N.W.2d 84 (Ct. App. 1999), 98-1944.

59.69 Annotation While the Department of Natural Resources has the authority to regulate the operation of game farms, its authority does not negate the power to enforce zoning ordinances against game farms. Both are applicable. Willow Creek Ranch, L.L.C. v. Town of Shelby, 2000 WI 56, 235 Wis. 2d 409, 611 N.W.2d 693, 97-2075.

59.69 Annotation Financial investment is a factor to consider when determining whether a zoning violation must be abated, but it does not outweigh all other equitable factors to be considered. Lake Bluff Housing Partners v. City of South Milwaukee, 2001 WI App 150, 246 Wis. 2d 785, 632 N.W.2d 485, 00-1958.

59.69 Annotation A change in method or quantity of production of a nonconforming use is not a new use when the original character of the use remains the same. The incorporation of modern technology into the business of the operator of a nonconforming use is allowed. Racine County v. Cape, 2002 WI App 19, 250 Wis. 2d 44, 639 N.W.2d 782, 01-0740.

59.69 Annotation While an increase in the volume, intensity, or frequency of a nonconforming use is not sufficient to invalidate it, if the increase is coupled with some element of identifiable change or extension, the enlargement will invalidate a legal nonconforming use. A proposed elimination of cabins and the expansion from 21 to 44 RV sites was an identifiable change in a campground and extension of the use for which it had been licensed. Lessard v. Burnett County Board of Adjustment, 2002 WI App 186, 256 Wis. 2d 821, 649 N.W.2d 728, 01-2986.

59.69 Annotation To find discontinuance of a nonconforming use, proof of intent to abandon the nonconforming use is not required. Lessard v. Burnett County Board of Adjustment, 2002 WI App 186, 256 Wis. 2d 821, 649 N.W.2d 728, 01-2986.

59.69 Annotation A conditional use permit (CUP) is not a contract. A CUP is issued under an ordinance. A municipality has discretion to issue a permit and the right to seek enforcement of it. Noncompliance with the terms of a CUP is tantamount to noncompliance with the ordinance. Town of Cedarburg v. Shewczyk, 2003 WI App 10, 259 Wis. 2d 818, 656 N.W.2d 491, 02-0902.

59.69 Annotation Spot zoning grants privileges to a single lot or area that are not granted or extended to other land in the same use district. Spot zoning is not per se illegal but, absent any showing that a refusal to rezone will in effect confiscate the property by depriving all beneficial use thereof, should only be indulged in when it is in the public interest and not solely for the benefit of the property owner who requests the rezoning. Step Now Citizens Group v. Town of Utica Planning & Zoning Committee, 2003 WI App 109, 264 Wis. 2d 662, 663 N.W.2d 833, 02-2760.

59.69 Annotation The failure to comply with an ordinance’s notice requirements, when all statutory notice requirements were met, did not defeat the purpose of the ordinance’s notice provision. Step Now Citizens Group v. Town of Utica Planning & Zoning Committee, 2003 WI App 109, 264 Wis. 2d 662, 663 N.W.2d 833, 02-2760.

59.69 Annotation Under Goode, 219 Wis. 2d 654 (1998), a landowner may contest whether the landowner is in violation of the zoning ordinance and, if so, can further contest on equitable grounds the enforcement of a sanction for the violation. Town of Delafield v. Winkelman, 2004 WI 17, 269 Wis. 2d 109, 675 N.W.2d 470, 02-0979.

59.69 Annotation A municipality cannot be estopped from seeking to enforce a zoning ordinance, but a circuit court has authority to exercise its discretion in deciding whether to grant enforcement. Upon the determination of an ordinance violation, the proper procedure for a circuit court is to grant an injunction enforcing the ordinance, except when it is presented with compelling equitable reasons to deny it. Village of Hobart v. Brown County, 2005 WI 78, 281 Wis. 2d 628, 698 N.W.2d 83, 03-1907.

59.69 Annotation An existing conditional use permit (CUP) is not a vested property right, and the revocation of the permit is not an unconstitutional taking. A CUP merely represents a species of zoning designations. Because landowners have no property interest in zoning designations applicable to their properties, a CUP is not property and no taking occurs by virtue of a revocation. Rainbow Springs Golf Co. v. Town of Mukwonago, 2005 WI App 163, 284 Wis. 2d 519, 702 N.W.2d 40, 04-1771.

59.69 Annotation A municipality may not effect a zoning change by simply printing a new map marked “official map.” Village of Hobart v. Brown County, 2007 WI App 250, 306 Wis. 2d 263, 742 N.W.2d 907, 07-0891.

59.69 Annotation Zoning that restricts land so that the landowner has no permitted use as of right must bear a substantial relation to the health, safety, morals, or general welfare of the public in order to withstand constitutional scrutiny. Town of Rhine v. Bizzell, 2008 WI 76, 311 Wis. 2d 1, 751 N.W.2d 780, 06-0450.

59.69 Annotation Having a vested interest in the continuance of a use is fundamental to protection of a nonconforming use. There can be no vested interest if the use is not actually and actively occurring at the time the ordinance amendment takes effect. However, it does not follow that any use that is actually occurring on the effective date of the amendment is sufficient to give the owner a vested interest in its continued use. To have a vested interest in the continuation of a use requires that, if the continuance of the use were to be prohibited, substantial rights would be adversely affected, which will ordinarily mean that there has been a substantial investment in the use. The longevity of a use and the degree of development of a use are subsumed in an analysis of what investments an owner has made, rather than separate factors to be considered. Town of Cross Plains v. Kitt’s “Field of Dreams” Korner, Inc., 2009 WI App 142, 321 Wis. 2d 671, 775 N.W.2d 283, 08-0546.

59.69 Annotation There must be reasonable reliance on the existing law in order to acquire a vested interest in a nonconforming use. Reasonable reliance on the existing law was not present when the owners knew the existing law was soon to change at the time the use was begun. Town of Cross Plains v. Kitt’s “Field of Dreams” Korner, Inc., 2009 WI App 142, 321 Wis. 2d 671, 775 N.W.2d 283, 08-0546.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

59.69 Annotation The office of county planning and zoning commission member is incompatible with the position of executive director of the county housing authority. 81 Atty. Gen. 90.

59.69 Annotation An amendment to a county zoning ordinance adding a new zoning district does not necessarily constitute a comprehensive revision requiring town board approval of the entire ordinance under s. 59.97 (5) (d) [now sub. (5) (d)]. 81 Atty. Gen. 98.

59.69 Annotation A county’s power under sub. (4) is broad enough to encompass regulation of the storage of junked, unused, unlicensed, or abandoned motor vehicles on private property. Because sub. (10) protects “trade or industry,” a county zoning ordinance could prohibit an existing non-commercial, nonconforming use or a use that is “casual and occasional.” OAG 2-00.

59.69 Annotation A county’s minimum lot size zoning ordinance applies to parcels created by a court through division in a partition or probate action, even if such division would be exempted from a municipality’s subdivision authority under s. 236.45 (2) (am) 1. OAG 1-14.

59.69 Annotation A county is not prohibited from imposing elements of its general zoning ordinance in the shorelands in a town even if the town has not adopted the county’s general zoning ordinance under sub. (5) (c), so long as those elements are consistent with s. 59.692. OAG 1-19.

59.69 Annotation A county’s application of its comprehensive zoning ordinance to fee simple land held by tribal members within a reservation violates federal Indian law. Red Cliff Band of Lake Superior Chippewa Indians v. Bayfield County, 432 F. Supp. 3d 889 (2020).

59.69 Annotation Zoning Law: Architectural Appearance Ordinances and the First Amendment. Rice. 76 MLR 439 (1993).

59.691 59.691 Required notice on certain approvals.

59.691(1) (1) In this section, “wetland” has the meaning given in s. 23.32 (1).

59.691(2) (2) 

59.691(2)(a) (a) Except as provided in par. (b), a county 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.

59.691(2)(b) (b)

59.691(2)(b)1. 1. A county is not required to give the notice under par. (a) at the time that it issues a building permit if the county issues the building permit on a standard building permit form prescribed by the department of safety and professional services.

59.691(2)(b)2. 2. A county 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.

59.691(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.”

59.691(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.

59.691(5) (5) A county 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.

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

59.692 59.692 Zoning of shorelands on navigable waters.

59.692(1) (1) In this section:

59.692(1)(a) (a) “Department” means the department of natural resources.

59.692(1)(ar) (ar) “Roadway” has the meaning given in s. 340.01 (54).

59.692(1)(b) (b) “Shorelands” means the area within the following distances from the ordinary high-water mark of navigable waters, as defined under s. 281.31 (2) (d):

59.692(1)(b)1. 1. One thousand feet from a lake, pond or flowage. If the navigable water is a glacial pothole lake, this distance shall be measured from the high-water mark of the lake.

59.692(1)(b)2. 2. Three hundred feet from a river or stream or to the landward side of the floodplain, whichever distance is greater.

59.692(1)(bn) (bn) “Shoreland setback area” means an area in a shoreland that is within a certain distance of the ordinary high-water mark in which the construction or placement of structures has been limited or prohibited under an ordinance enacted under this section.

59.692(1)(c) (c) “Shoreland zoning standard” means a standard for ordinances enacted under this section that is promulgated as a rule by the department.

59.692(1)(d) (d) “Special zoning permission” has the meaning given in s. 59.69 (15) (g).

59.692(1)(e) (e) “Structure” means a principal structure or any accessory structure including a garage, shed, boathouse, sidewalk, stairway, walkway, patio, deck, retaining wall, porch, or fire pit.

59.692(1c) (1c) To effect the purposes of s. 281.31 and to promote the public health, safety and general welfare, each county shall zone by ordinance all shorelands in its unincorporated area. The requirements in this ordinance shall relate to the purposes in s. 281.31 (1). This ordinance may be enacted separately from ordinances enacted under s. 59.69.

59.692(1d) (1d) 

59.692(1d)(a) (a) An ordinance enacted under this section may not regulate a matter more restrictively than the matter is regulated by a shoreland zoning standard.

59.692(1d)(b) (b) Paragraph (a) does not prohibit a county from enacting a shoreland zoning ordinance that regulates a matter that is not regulated by a shoreland zoning standard.

59.692(1f) (1f) 

59.692(1f)(a) (a) A county shoreland zoning ordinance may not require a person to do any of the following:

59.692(1f)(a)1. 1. Establish a vegetative buffer zone on previously developed land.

59.692(1f)(a)2. 2. Expand an existing vegetative buffer zone.

59.692(1f)(b) (b) A county shoreland zoning ordinance may require a person to maintain a vegetative buffer zone that exists on July 14, 2015, if the ordinance also does all of the following:

59.692(1f)(b)1. 1. Allows the buffer zone to contain an access and viewing corridor. A county shoreland zoning ordinance may not establish a maximum width along the shoreline for an access and viewing corridor that is less than 10 feet or 35 percent of the shoreline frontage, whichever is greater, except that the ordinance may not permit the width of an access and viewing corridor to exceed 200 feet.

59.692(1f)(b)2. 2. Allows a viewing corridor to run contiguously for the entire maximum width established under subd. 1.

59.692(1h) (1h) If a professional land surveyor licensed under ch. 443, in measuring a setback from an ordinary high-water mark of a navigable water as required by an ordinance enacted under this section, relies on a map, plat, or survey that incorporates or approximates the ordinary high-water mark in accordance with s. 236.025, the setback measured is the setback with respect to a structure constructed on that property if all of the following apply:

59.692(1h)(a) (a) The map, plat, or survey is prepared by a professional land surveyor, licensed under ch. 443, after April 28, 2016. The same professional land surveyor may prepare the map, plat, or survey and measure the setback.

59.692(1h)(b) (b) The department has not identified the ordinary high-water mark on its Internet site as is required under s. 30.102 at the time the setback is measured.