62.23 Annotation
Sub. (7) (e) 1. allows a municipality to provide by ordinance that a town board has exclusive authority to consider special exception permit applications; the board of appeals retains exclusive authority absent a municipal ordinance granting power to the town board. Town of Hudson v. Bd. of Adjustment, 158 W (2d) 263, 461 NW (2d) 827 (Ct. App. 1990).
62.23 Annotation
Impermissible prejudice of appeals board member discussed. Marris v. City of Cedarburg, 176 W (2d) 14, 498 NW (2d) 843 (1993).
62.23 Annotation
Sub. (7a) requires a cooperative effort in implementing extraterritorial zoning which may not be superseded by a city acting unilaterally under its ch. 236 land division approval authority. Boucher Lincoln-Mercury v. Madison Plan Commission, 178 W (2d) 74, 503 NW (2d) 265 (Ct. App. 1993).
62.23 Annotation
Sub. (7) (i) 1. does not excuse a municipality for failing to make reasonable accommodation of a group home as required by federal law. Tellurian Ucan, Inc. v. Goodrich, 178 W (2d) 205, 504 NW (2d) 342 (Ct. App. 1993).
62.23 Annotation
The federal fair housing act controls sub. (7) (i) 1. to the extent that its spacing requirements may not be used for a discriminatory purpose. "K" Care, Inc. v. Town of Lac du Flambeau, 181 W (2d) 59, 510 NW (2d) 697 (Ct. App. 1993).
62.23 Annotation
General, rather than explicit, standards regarding the granting of special exceptions may be adopted and applied by the governing body. The applicant has the burden of formulating conditions showing that the proposed use will meet the standards. Upon approval, additional conditions may be imposed by the governing body. Kraemer & Sons v. Sauk County Adjustment Bd. 183 W (2d) 1, 515 NW (2d) 256 (1994).
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. Veirstahler, 183 W (2d) 96, 515 NW (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 W (2d) 18, 522 NW (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 W (2d) 374, 525 NW (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 where the subject property owner acquiesced to the error for many years. Brooks v. Hartland Sportsman's Club, 192 W (2d) 606, 531 NW (2d) 445 (Ct. App. 1995).
62.23 Annotation
Where 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 W (2d) 157, 540 NW (2d) 189 (1995).
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 W (2d) 214, 562 NW (2d) 412 (1997).
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 to put the property to a use which 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 W (2d) 599, 565 NW (2d) 279 (Ct. App. 1997).
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 W (2d) 690, 565 NW (2d) 283 (Ct. App. 1997).
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 NW (2d) 802, 565 NW (2d) 296 (Ct. App. 1997).
62.23 Annotation
An area variance and an 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 W (2d) 310, 569 NW (2d) 54 (Ct. App. 1997).
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 W (2d) 332, 569 NW (2d) 784 (Ct. App. 1997).
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 W (2d) 396, 577 NW (2d) 813 (1998).
62.23 Annotation
A certiorari action exists only to test the validity of judicial or quasi-judicial determinations. It does not allow for answers, denials or defenses by the respondent. Merkel v. Village of Germantown, 218 W (2d) 572, 581 NW (2d) 552 (Ct. App. 1998).
62.23 Annotation
Sub. (7) (e) 6. does not mandate a hearing for each variance application--only those which 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 W (2d) 656, 583 NW (2d) 873 (Ct. App. 1998).
62.23 Annotation
Zoning ordinances may be applied to land held by the U.S. for an Indian tribe so long as they do not conflict with a federal treaty, agreement or statute and 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 59.692] is not superseded by municipal extraterritorial zoning under s. 62.23 (7a). Sections 59.971, 62.23 (7), (7a) and 144.26 [now 281.31] discussed. 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
Extraterritorial zoning under (7a) discussed. 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 US 43, 129 LEd 2d 22 (1994).
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.
62.23 Annotation
The denial of a permit for a 2nd 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. U.S. v. Village of Marshall, 787 F Supp. 872 (1992).
62.23 Annotation
The necessity of a 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.
62.23 Annotation
Architectural Appearances Ordinances and the 1st Amendment. Rice. 76 MLR 439 (1992).
62.231
62.231
Zoning of wetlands in shorelands. 62.231(1)
(1)
Definitions. As used in this section:
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.
62.231(4)(a)(a)
Powers and procedures. Except as provided under
sub. (5),
s. 62.23 applies to ordinances and amendments enacted under this section.
62.231(4)(b)
(b)
Impact on other zoning ordinances. If a city ordinance enacted under
s. 62.23 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.
62.231(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 May 7, 1982 related to that structure.
62.231(6)
(6) Failure to adopt ordinance. If any city 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 city under
s. 23.32, or if the department of natural resources, after notice and hearing, determines that a city 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 city. As far as applicable, the procedures set forth in
s. 87.30 apply to this subsection.
62.231 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 statue takes precedence and the variance should be denied. State v. Kenosha County Board of Adjustment, 218 W (2d) 396, 577 NW (2d) 813 (1998).
62.234
62.234
Construction site erosion control and storm water management zoning. 62.234(1)
(1)
Definition. As used in this section, "department" means the department of natural resources.
62.234(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 city may enact a zoning ordinance, that is applicable to all of its incorporated area, for construction site erosion control at sites where the construction activities do not include the construction of a building and for storm water management. This ordinance may be enacted separately from ordinances enacted under
s. 62.23.
62.234(4)
(4) Applicability of city zoning provisions. 62.234(4)(a)(a) Except as otherwise specified in this section,
s. 62.23 applies to any ordinance or amendment to an ordinance enacted under this section.
62.234(4)(b)
(b) Variances and appeals regarding construction site erosion control or storm water management regulations under this section are to be determined by the board of appeals for that city. Procedures under
s. 62.23 (7) (e) apply to these determinations.
62.234(4)(c)
(c) An ordinance enacted under this section supersedes all provisions of an ordinance enacted under
s. 62.23 that relate to construction site erosion control at sites where the construction activities do not include the construction of a building or to storm water management regulation.
62.234(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 cities, so far as practicable.
62.234(6)
(6) Applicability of local subdivision regulation. All powers granted to a city under
s. 236.45 may be exercised by it with respect to construction site erosion control at sites where the construction activities do not include the construction of a building or with respect to storm water management regulation, if the city has or provides a planning commission or agency.
62.234(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).
62.234(8)(a)(a) Except as provided in
par. (c),
s. 66.30 applies to this section, but for the purposes of this section any agreement under
s. 66.30 shall be effected by ordinance.
62.234(8)(b)
(b) If a city is served by a regional planning commission under
s. 66.945 and if the commission consents, the city may empower the commission by ordinance to administer the ordinance enacted under this section throughout the city, whether or not the area otherwise served by the commission includes all of that city.
62.234(8)(c)
(c) If a city is served by the Dane county lakes and watershed commission, and if the commission consents, the city may empower the commission by ordinance to administer the ordinance enacted under this section throughout the city, whether or not the area otherwise served by the commission includes all of that city.
Section 66.30 does not apply to this paragraph.
62.25
62.25
Claims and actions. 62.25(1)(1)
Claims. No action may be brought or maintained against a city upon a claim or cause of action unless the claimant complies with
s. 893.80. This subsection does not apply to actions commenced under
s. 19.37,
19.97 or
281.99.
62.25(2)(a)(a) Damages, if any, in an action against a city officer in the officer's official capacity, except the action directly involve the title to the officer's office, shall not be awarded against such officer, but may be awarded against the city.
62.25(2)(b)
(b) In an action to restrain payment by a city for work performed or material furnished, the plaintiff shall give a bond conditioned for payment to the claimant, if the action is finally determined in the claimant's favor, of damages caused by the delay, including expense incurred in the action, and interest. The bond shall be with 2 sureties to be approved by the court, and in an amount fixed by the court and sufficient to cover all probable damages.
62.25(2)(d)
(d) No person shall be ineligible to sit as judge, justice or juror in an action to which the city is a party, by reason of being an inhabitant of the city.
62.25 Annotation
Cross-references: As to filing claims and demands against the city, see s. 62.12 (8).
62.25 Annotation
For an alternative system of approving claims, see s. 66.044.
62.25 Annotation
An action against a municipality based on a filed "claim" which did not state a dollar amount must be dismissed. The fact that the city council denied the claim did not bar the defense. By purchasing liability insurance the city did not waive the protection of the statute. The plaintiff can start a new action under 893.35. Sambs v. Nowak, 47 W (2d) 158, 177 NW (2d) 144.
62.25 Annotation
Sub. (1) is applicable to a counterclaim for money damages in lawsuit commenced by city. Milwaukee v. Milwaukee Civic Developments, 71 W (2d) 647, 239 NW (2d) 44.
62.25 Annotation
Nothing in either ch. 62 or ch. 120 precludes a school board from qualifying as a proper "claimant" under s. 62.25. Joint School Dist. No. 1 v. City of Chilton, 78 W (2d) 52, 253 NW (2d) 879.
62.25 Annotation
This section does not apply to a claim for equitable relief. Kaiser v. City of Mauston, 99 W (2d) 345, 299 NW (2d) 259 (Ct. App. 1980).
62.26
62.26
General provisions. 62.26(1)(1)
Laws in force. The general laws for the government of cities, villages and towns, the assessment and collection of taxes, the preservation of public and private property, highways, roads and bridges, the punishment of offenders, the collection of penalties and the manner of conducting elections shall be in force in all cities organized under this subchapter except as otherwise provided under this subchapter.
62.26(2)
(2) Equity in land. The acquisition or retention by a city of an equity of redemption in lands shall not create any liability on the part of the city to pay any bonds issued or mortgage or trust deed upon such lands executed prior to the acquisition by the city of such equity.
62.26(3)
(3) Forms. The use of any forms prescribed by the statutes of this state, as far as the same are applicable, shall be as legal and of the same force and effect as the use of the forms prescribed by this subchapter.
62.26(4)
(4) Rewards. When any heinous offense or crime has been committed against life or property within any city the mayor, with the consent of a majority of the alderpersons, may offer a reward for the apprehension of the criminal or perpetrator of such offense.
62.26(6)
(6) Cities in more than one county. In cities lying in more than one county the following shall apply:
62.26(6)(b)
(b) Accused persons may be put in custody of an officer or committed to the jail of the city or of the county where the offense was committed.
62.26(6)(d)
(d) Officers of the city, who by law have the powers of constables in the county in which the city is located, shall have such powers in either county.
62.26(7)
(7) Change of city name. The name of any city of the fourth class shall be changed if a majority of the electors shall address a written petition therefor to the council designating the new name, and the council shall by a two-thirds vote of all the members adopt an ordinance changing to such new name. The change shall be in effect upon publication of the ordinance in the official paper, and the filing of a copy thereof in the office of the secretary of state.
62.26 History
History: 1977 c. 151;
1993 a. 184.
POLICE AND FIRE DEPARTMENTS IN
CITIES OF THE FIRST CLASS
62.50
62.50
Police and fire departments in 1st class cities. 62.50(1)(1)
Organization. In all 1st class cities, however incorporated, there shall be a board of fire and police commissioners, consisting of 5 citizens, not more than 2 of whom shall at any time belong to the same political party. The staff and members of the board shall receive the salary or other compensation for their services fixed by the common council. The salary shall be fixed at the same time and in the same manner as the salary of other city officials and employes. Three members of the board shall constitute a quorum necessary for the transaction of business. It shall be the duty of the mayor of the city, on or before the 2nd Monday in July, to appoint 5 members of the board, designating the term of office of each, one to hold one year, one to hold 2 years, one to hold 3 years, one to hold 4 years and one to hold 5 years, and until their respective successors shall be appointed and qualified. Thereafter the terms of office shall be 5 years from the 2nd Monday in July, and until a successor is appointed and qualified. Every person appointed a member of the board shall be subject to confirmation by the common council and shall, before entering upon the duties of the office take and subscribe the oath of office prescribed by
article IV, section 28, of the constitution, and file the same duly certified by the officer administering it, with the clerk of the city. Appointments made prior to the time this subchapter first applies to a 1st class city shall not be subject to confirmation by the common council.
62.50(1m)
(1m) Policy review. The board shall conduct at least once each year a policy review of all aspects of the operations of the police and fire departments of the city. The board may prescribe general policies and standards for the departments. The board may inspect any property of the departments, including but not limited to books and records, required for a review under this section.
62.50(2)
(2) Control of appointments. No person may be appointed to any position either on the police force or in the fire department of the city, except with the approval of the board.
62.50(3)(a)(a) The board may prescribe rules for the government of the members of each department and may delegate its rule-making authority to the chief of each department. The board shall prescribe a procedure for review, modification and suspension of any rule which is prescribed by the chief, including, but not limited to, any rule which is in effect on March 28, 1984.
