Chapter 62

62.23 Annotation Casual, occasional, accessory, or incidental use after the primary nonconforming use is terminated cannot serve to perpetuate a nonconforming use. Village of Menomonee Falls v. Veierstahler, 183 Wis. 2d 96, 515 N.W.2d 290 (Ct. App. 1994).

62.23 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).

62.23 Annotation Sub. (7) (f) 1. allowing “civil penalties” for zoning violations does not authorize imposing a lien against the subject property retroactive to the date of the violation. Waukesha State Bank v. Village of Wales, 188 Wis. 2d 374, 525 N.W.2d 110 (Ct. App. 1994).

62.23 Annotation Though a conditional use permit was improperly issued by a town board, rather than a board of appeals, the permit was not void when the subject property owner acquiesced to the error for many years. State ex rel. Brooks v. Hartland Sportsman’s Club, Inc., 192 Wis. 2d 606, 531 N.W.2d 445 (Ct. App. 1995).

62.23 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.

62.23 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.

62.23 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.

62.23 Annotation A municipal attorney may not serve as both prosecutor and advisor to the tribunal in a hearing under sub. (7) (i). Nova Services, Inc. v. Village of Saukville, 211 Wis. 2d 691, 565 N.W.2d 283 (Ct. App. 1997), 96-2198.

62.23 Annotation Sub. (7a) authorizes transfer of zoning administration and enforcement to cities and villages upon enactment of an interim extraterritorial ordinance. Filing an application for a conditional use permit prior to adoption of the interim ordinance did not prevent the transfer of decision making; the applicant had no vested right by virtue of having requested a permit whose issuance was discretionary. Village of DeForest v. County of Dane, 211 Wis. 2d 804, 565 N.W.2d 296 (Ct. App. 1997), 96-1574.

62.23 Annotation An area variance and a use variance each require unnecessary hardship, but there is an “unnecessarily burdensome” test for an area variance while the test for a use variance is “no feasible use.” State v. Kenosha County Board of Adjustment, 212 Wis. 2d 310, 569 N.W.2d 54 (Ct. App. 1997), 96-1235.

62.23 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.

62.23 Annotation The legal standard of unnecessary hardship requires that the property owner demonstrate that without a variance there is no reasonable use for the property. When the property owner has a reasonable use for the property, the statute takes precedence and the variance should be denied. State v. Kenosha County Board of Adjustment, 218 Wis. 2d 396, 577 N.W.2d 813 (1998), 96-1235. See also State v. Outagamie County Board of Adjustment, 2001 WI 78, 244 Wis. 2d 613, 628 N.W.2d 376, 98-1046.

62.23 Annotation A writ of certiorari proceeding bears no resemblance to a civil action brought to resolve a dispute between the parties; it exists only to test the validity of judicial or quasi-judicial determinations, and it neither contemplates nor authorizes the respondent to interpose any answers, denials, or defenses. Merkel v. Village of Germantown, 218 Wis. 2d 572, 581 N.W.2d 552 (Ct. App. 1998), 97-3347. But see State ex rel. Kurtzweil v. Sawyer County Zoning Board of Appeals, 2023 WI App 43, 409 Wis. 2d 77, 995 N.W.2d 286, 22-1577.

62.23 Annotation It is within the power of the court to deny a municipality’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.

62.23 Annotation Sub. (7) (e) 6. does not mandate a hearing for each variance application—only those that satisfy the legal requirements for applications. A city rule that a variance request would not be reheard unless accompanied by evidence of a substantial change of circumstances did not violate due process or equal protection guarantees. Denial of a variance based on the rule was not arbitrary and capricious. Tateoka v. City of Waukesha Board of Zoning Appeals, 220 Wis. 2d 656, 583 N.W.2d 871 (Ct. App. 1998), 97-1802.

62.23 Annotation Construction in violation of zoning, even when authorized by a voluntarily issued permit, is unlawful. Those who build in violation of zoning rules are not shielded from razing under sub. (8) because construction was completed before the lawfulness of the zoning was determined. 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.

62.23 Annotation The burden is on the applicant for a variance to demonstrate through evidence that without the variance the applicant is prevented from enjoying any reasonable use of the property. State ex rel. Spinner v. Kenosha County Board of Adjustment, 223 Wis. 2d 99, 588 N.W.2d 662 (Ct. App. 1998), 97-2094.

62.23 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.

62.23 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.

62.23 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 regarding 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.

62.23 Annotation Review of a certiorari action is limited to determining: 1) whether the board kept within its jurisdiction; 2) whether the board proceeded on a correct theory of law; 3) whether the board’s action was arbitrary, oppressive, or unreasonable; and 4) whether the evidence was such that the board might reasonably make its order. Kapischke v. County of Walworth, 226 Wis. 2d 320, 595 N.W.2d 42 (Ct. App. 1999), 98-0796.

62.23 Annotation Zoning may not be legislated or modified by initiative under s. 9.20. An ordinance constituting a pervasive regulation of, or prohibition on, the use of land is zoning. Heitman v. City of Mauston Common Council, 226 Wis. 2d 542, 595 N.W.2d 450 (Ct. App. 1999), 98-3133.

62.23 Annotation A town with village powers has the authority to adopt ordinances authorizing its plan commission to review and approve industrial site plans before issuing a building permit. An ordinance regulating development need not be created with a particular degree of specificity other than is necessary to give developers reasonable notice of the areas of inquiry that the town will examine in approving or disapproving proposed sites. Town of Grand Chute v. U.S. Paper Converters, Inc., 229 Wis. 2d 674, 600 N.W.2d 33 (Ct. App. 1999), 98-2797.

62.23 Annotation The state, in administering the Wisconsin Fair Housing Act, may not order a zoning board to issue a variance based on characteristics unique to the landowner rather than the land. County of Sawyer Zoning Board v. DWD, 231 Wis. 2d 534, 605 N.W.2d 627 (Ct. App. 1999), 99-0707.

62.23 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.

62.23 Annotation Statutory certiorari review exists to test the validity of agency decisions by reviewing the record, and the court has jurisdiction only for that limited purpose. An action to enforce a variance is an entirely different matter. It is coercive, and personal jurisdiction must be established by serving a summons and complaint or original writ separate from any related certiorari action. Winkelman v. Town of Delafield, 2000 WI App 254, 239 Wis. 2d 542, 620 N.W.2d 438, 99-3158.

62.23 Annotation The consideration by a separate city council committee, without notice, of a duplicate file of matters then under consideration by the city’s zoning committee was not void. Oliveira v. City of Milwaukee, 2001 WI 27, 242 Wis. 2d 1, 624 N.W.2d 117, 98-2474.

62.23 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.

62.23 Annotation A variance authorizes a landowner to establish or maintain a use prohibited by zoning regulations. A special exception allows the landowner to put the property to a use expressly permitted but that conflicts with some requirement of the ordinance. The grant of a special exception does not require the showing of hardship required for a variance. Fabyan v. Waukesha County Board of Adjustment, 2001 WI App 162, 246 Wis. 2d 851, 632 N.W.2d 116, 00-3103.

62.23 Annotation If residents would not be living in a proposed community living arrangement because of disabilities, although some may have disabilities, a municipality is not required by the federal American with Disabilities Act or Fair Housing Amendments Act to make reasonable accommodations in the application of the sub. (7) (i) 1. 2,500 foot requirement. State ex rel. Bruskewitz v. City of Madison, 2001 WI App 233, 248 Wis. 2d 297, 635 N.W.2d 797, 00-2563.

62.23 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.

62.23 Annotation The public policy of promoting confidence in impartial tribunals may justify expansion of the certiorari record when evidence outside of the record demonstrates procedural unfairness. However, before a circuit court may authorize expansion, the party alleging bias must make a prima facie showing of wrongdoing. Sills v. Walworth County Land Management Committee, 2002 WI App 111, 254 Wis. 2d 538, 648 N.W.2d 878, 01-0901.

62.23 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.

62.23 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.

62.23 Annotation A purpose of sub. (5) is that a plan commission have the opportunity to review and make a recommendation on a final plat before the governing body makes a final decision, but not to require that body to wait more than 30 days for the plan commission’s report. KW Holdings, LLC v. Town of Windsor, 2003 WI App 9, 259 Wis. 2d 357, 656 N.W.2d 752, 02-0706.

62.23 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.

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

62.23 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.

62.23 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.

62.23 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.

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

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

62.23 Annotation Sub. (7) (h) relates to the use to which the building was put, not to the physical structure of the building itself. It limits the repairs and improvements that can be made on a structure that is used in a manner that does not conform to uses permitted by applicable zoning codes. Hillis v. Village of Fox Point Board of Appeals, 2005 WI App 106, 281 Wis. 2d 147, 699 N.W.2d 636, 04-1787.

62.23 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.

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

62.23 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.

62.23 Annotation Neither the desire for a different remedy nor a resort to alternative legal theories was sufficient to insulate a party filing an action under sub. (8) from the impact of claim preclusion when that party had adequate opportunity to litigate its claims before the zoning board. Barber v. Weber, 2006 WI App 88, 292 Wis. 2d 426, 715 N.W.2d 683, 05-1196.

62.23 Annotation In deciding whether to grant a variance under sub. (7) (e) 7., a zoning board of appeals may consider the role municipal officials played in a zoning violation when determining whether a hardship was self-created and whether strict enforcement of the ordinance would result in an unnecessary hardship. Accent Developers, LLC v. City of Menomonie Board of Zoning Appeals, 2007 WI App 48, 300 Wis. 2d 561, 730 N.W.2d 194, 06-1268.

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

62.23 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.

62.23 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.

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

62.23 Annotation Condominiums are not a form of land use. A condominium unit set aside for commercial use runs afoul of a zoning ordinance prohibiting commercial use. When an intended commercial use did not comport with a town’s zoning restrictions, approval of the condominium by the town was de facto rezoning. A town could not seek to avoid the restrictions of applicable extraterritorial zoning by aiming to define its action as something other than a zoning change. State ex rel. Village of Newburg v. Town of Trenton, 2009 WI App 139, 321 Wis. 2d 424, 773 N.W.2d 500, 08-2997.

62.23 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.

62.23 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.

62.23 Annotation The language of this section clearly and unambiguously conveys that the mechanism for an appeal of a board of appeals decision is an action in certiorari for review of the board’s decision. The action is against the board of appeals, not against the city. Acevedo v. City of Kenosha, 2011 WI App 10, 331 Wis. 2d 218, 793 N.W.2d 500, 10-0070.

62.23 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.

62.23 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.

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

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

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

62.23 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.

62.23 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.

62.23 Annotation Pursuant to sub. (7) (e) 10. [now sub. (7) (e) 10. a.], certiorari review of a local zoning board’s decision is triggered when a written copy of the decision is filed in the board’s office. Moreschi v. Village of Williams Bay & Town of Linn ETZ Zoning Board of Appeals, 2020 WI 95, 395 Wis. 2d 55, 953 N.W.2d 318, 18-0283.

62.23 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.

62.23 Annotation Certiorari review is the appropriate mechanism to challenge the validity of local governmental decisions—whether characterized as legislative or judicial in nature. The traditional scope of certiorari review applies to purported errors in local legislative decisions. Miller v. Zoning Board of Appeals, 2022 WI App 51, 404 Wis. 2d 539, 980 N.W.2d 295, 21-1764.

62.23 Annotation Affirmed. 2023 WI 46, 407 Wis. 2d 678, 991 N.W.2d 380, 21-1764.

62.23 Annotation Zoning ordinances are legislation. The act of rezoning is as legislative in nature as drafting and adopting a zoning ordinance in the first instance. Although rezoning a single parcel may be a fact-intensive, individualized determination, it remains that rezoning involves amending the zoning ordinance, and a village’s enactment of an amendment to a zoning ordinance is legislation whether it affects multiple parcels and property owners or only one. Miller v. Zoning Board of Appeals, 2022 WI App 51, 404 Wis. 2d 539, 980 N.W.2d 295, 21-1764.

62.23 Annotation Affirmed. 2023 WI 46, 407 Wis. 2d 678, 991 N.W.2d 380, 21-1764.

62.23 Annotation There is no due process right to impartial decision-makers when a legislative body like a village board enacts, repeals, or amends a generally applicable law like a zoning ordinance. When adjudicative acts are involved, procedural due process requires impartial decision-makers. When legislative actions are at issue, however, those affected by legislation are not entitled to any process beyond that provided by the legislative process. Miller v. Zoning Board of Appeals, 2023 WI 46, 407 Wis. 2d 678, 991 N.W.2d 380, 21-1764.

62.23 Annotation Zoning ordinances may be applied to land held by the United States for an Indian tribe so long as they do not conflict with a federal treaty, agreement, or statute and so long as the land use proscribed is not a federal governmental function. 58 Atty. Gen. 91.

62.23 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.

62.23 Annotation County shoreland zoning of unincorporated areas adopted under s. 59.971 [now s. 59.692] is not superseded by municipal extraterritorial zoning under sub. (7a). Discussing subs. (7) and (7a) and ss. 59.971 and 144.26 [now ss. 59.692 and 281.31]. Municipal extraterritorial zoning within shorelands is effective insofar as it is consistent with, or more restrictive than, the county shoreland zoning regulations. 63 Atty. Gen. 69.

62.23 Annotation Discussing extraterritorial zoning under sub. (7a). 67 Atty. Gen. 238.

62.23 Annotation A city’s ban on almost all residential signs violated the right of free speech. City of LaDue v. Gilleo, 512 U.S. 43, 114 S. Ct. 2038, 129 L. Ed. 2d 36 (1994).

62.23 Annotation There is no property interest in a position on a zoning board of appeals and none was created by a common council member’s assertion that the council would not approve a board member’s successor. Generally, the 1st amendment protects a person from being removed from public employment for purely political reasons, but a board member is an exempt policymaker. Pleva v. Norquist, 195 F.3d 905 (1999).

62.23 Annotation Plaintiffs were not required to exhaust administrative remedies under sub. (7) (e) before bringing a civil rights act suit challenging the definition of “family” as used in that portion of a village zoning ordinance creating single-family residential zones since plaintiffs’ claim was based on federal law. Timberlake v. Kenkel, 369 F. Supp. 456 (1974).

62.23 Annotation The denial of a permit for a second residential facility within a 2,500 foot radius pursuant to sub. (7) (i) 1., which had the effect of precluding handicapped individuals, absent evidence of adverse impact on the legislative goals of the statute or of a burden upon the village constituted a failure to make reasonable accommodations in violation of federal law. United States v. Village of Marshall, 787 F. Supp. 872 (1991).

62.23 Annotation Sub. (2) (i) 1. and 2r. is preempted by the Federal Fair Housing Amendment Act and the Americans With Disabilities Act. Sub. (2) (i) 1. and 2r. impermissibly classifies people on the basis of disability by imposing a 2,500 foot spacing requirement on community living arrangements for the disabled. Oconomowoc Residential Programs, Inc. v. City of Greenfield, 23 F. Supp. 2d 941 (1998).

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

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

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

62.231 62.231 Zoning of wetlands in shorelands.

62.231(1) (1) Definitions. As used in this section:

62.231(1)(a) (a) “Shorelands” has the meaning specified under s. 59.692 (1) (b).

62.231(1)(b) (b) “Wetlands” has the meaning specified under s. 23.32 (1).

62.231(2) (2) Filled wetlands. Any wetlands which are filled prior to the date on which a city 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.

62.231(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 city 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.

62.231(3) (3) Adoption of ordinance. To effect the purposes of s. 281.31 and to promote the public health, safety and general welfare, each city 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 city under s. 23.32, which are located in any shorelands and which are within its incorporated area. A city may zone by ordinance any unfilled wetlands which are within its incorporated area at any time.