Zoning

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426. The general rule with respect to zoning ordinances is that because the ordinance explicitly enumerates uses permitted within each district, all other uses are necessarily prohibited. Foresight, Inc. v. Babl, No. 96-1964 (Wis. Ct. App. May 6, 1997.) (Publication recommended.) 5/30/97.

427. "A conditional use permit only allows a property owner 'to put his property to a use which the ordinance expressly permits when certain conditions are met.'" Foresight, Inc. v. Babl, No. 96-1964 (Wis. Ct. App. May 6, 1997) (quoting State ex rel. Skelly oil Co. v. Common Council, 58 Wis.2d 695, 700-01, 207 N.W.2d 585, 587 (1973)). Thus, a permit issued for a use not explicitly set forth in the zoning ordinances as either a permitted or conditional use is illegal per se and void. 5/30/97.

428. The U.S. Supreme Court held that the 1993 Religious Freedom Restoration Act (RFRA) which prohibits governments from burdening a person's exercise of religion, even if the burden results from a rule of general applicability, unless the government demonstrates that the burden is the least restrictive means of furthering a compelling governmental interest, is unconstitutional because Congress exceeded its constitutional powers in enacting it. Thus, a city's denial based on historic preservation provisions in its zoning ordinance of a church's request for a building permit to expand its parish could not be successfully challenged as a substantial burden on religion under RFRA. City of Boerne v. Flores, 65 U.S.L.W. 4612 (1997). 7/10/97.

429. Protest petition filed by owner of land separated from the parcel proposed to be rezoned by a 70 foot wide dedicated street right-of-way and a 450 foot four lane State highway is invalid since the protester's land is not "directly opposite" the parcel proposed to be rezoned and therefore is outside of the third protest area described in sec. 62.23(7)(d), Stats. (1/31/98).

430. Language in sec. 62.23(7a)(b), Stats., which authorizes the governing body of a municipality exercising extraterritorial zoning jurisdiction to extend an interim zoning ordinance "upon the recommendation of the joint extraterritorial zoning committee" requires the municipality to refer the matter of extending the interim ordinance to the joint committee for its consideration, but does not require that the committee's recommendation be favorable. 10/16/98

431. In the companion cases of Vincent Z. by his Guardian, et al. v. Village of Greendale, City of Greenfield, State of Wisconsin and Wisconsin Dept. of Health & Family Services (U.S. Eastern District Case No. 96-C-1101) and Oconomowoc Residential Programs v. City of Greenfield and Village of Greendale (U.S. Eastern District Case No. 96-C-1112) (each decided on September 30, 1998) the federal district court found that the 2,500 foot community living arrangement spacing requirement under sec. 62.23(7)(i), Stats., has been preempted by the federal Americans with Disabilities Act of 1990, 42 U.S.C. secs.12101-12213 (ADA) and the Federal Fair Housing Amendment Act of 1988, 42 U.S.C. secs.3601-3631 (FFHA). 10/30/98.

432. Reviews and reconfirms previous legal opinion, Zoning 412, which concluded that under sec. 13.48(13), Stats., a county is subject to municipal zoning ordinances when locating and constructing a jail or a house of correction within the municipality. The attorney general has reached the same conclusion but for different reasons. See Informal Opinion of Wis. Att'y Gen. to Kenneth Bukowski, Brown County Corp. Counsel, OAG I-I-97 (January 8, 1997). 10/30/98.

433. Under State v. Kenosha County Board of Adjustment, 218 Wis.2d 396, 577 N.W.2d 813 (1998), a zoning board of appeals may grant an applicant a variance only if the applicant can demonstrate the existence of an unnecessary hardship by showing that in the absence of a variance, the applicant will have "no reasonable use" of his or her property. This legal comment also discusses State ex rel. Spinner v. Kenosha County Board of Adjustment where the court of appeals applied the "no reasonable use" test and reversed the board's granting of a variance. No. 97-2094 (Wis. Ct. App. Nov. 11, 1998) (publication recommended). 11/30/98.

434. Expansion or enlargement of a nonconforming use which changes the use invalidates not only the illegal change but the legal nonconforming use as well. Village of Menomonee Falls v. Preuss, Case No. 98-0384 (Ct. App. March 17, 1999) (publication recommended) citing Waukesha County v. Pewaukee Marina, Inc., 187 Wis.2d 18, 31, 522 N.W.2d 536, 542 (Ct. App. 1994).

435. The notice of claim provisions in sec. 893.80(1)(b), Wis. Stats., which prohibit an action from being brought or maintained against a municipality unless the municipality is provided with a claim containing the address of the claimant and an itemized statement of the relief sought, and the claim has been disallowed, do not apply to certiorari review of decisions made by county zoning boards of adjustment brought under sec. 59.694(10), Wis. Stats. Kapischke v. County of Walworth , Case No. 98-0796 (Ct. App. April 7, 1999) (publication recommended). 4/30/99.

436. The Telecommunications Act of 1996 allows local governments to regulate the placement of towers for personal wireless services as long as any decision to deny certain requests for locating such facilities within the community is in writing and supported by substantial evidence contained in a written record. In addition, local governments may not "unreasonably discriminate among providers of functionally equivalent services." See 47 U.S.C. sec. 332(c)(7)(B)(iii) and (B)(i)(I). In Aegerter v. City of Delafield, No. 98-2422 (7th Cir. April 19, 1999), the federal 7th Circuit Court of Appeals held that the City of Delafield complied with the Telecommunications Act when it denied Air Page Corp. permission to replace an existing telecommunications tower with a larger one on the same site within a residential zoning district. 4/30/99.

437. In City of Monterey v. Del Monte Dunes at Monterey, Ltd., 67 U.S.L.W. 4345 (U.S. May 24, 1999), the U.S. Supreme Court indicated that a federal court is precluded from entertaining a takings claim under 42 U.S.C. sec. 1983 "unless or until the complaining landowner has been denied an adequate postdeprivation remedy." Since landowners in Wisconsin may bring an action for inverse condemnation under sec. 32.10, Wis. Stats., to seek just compensation for a temporary regulatory taking, local governments need not fear the prospect of facing takings claims brought by landowners under 42 U.S.C. sec. 1983. 5/31/99.

438. In City of Monterey v. Del Monte Dunes at Monterey, Ltd., 67 U.S.L.W. 4345 (U.S. May 24, 1999), the U.S. Supreme Court held that the rough-
proportionality test of Dolan v. City of Tigard, 512 U.S. 374 (1994), is limited to land use decisions conditioning approval of development on the dedication of land to the public use and does not apply to regulatory takings cases. 5/31/99.

439. Where a zoning ordinance provides that the plan commission is authorized to grant conditional use permits, the common council has no authority to negate the plan commission's granting of a conditional use permit and cannot set aside the actions of the plan commission by merely disapproving certain portions of the minutes of the plan commission's meeting. 7/21/99.

440. The 1999-2000 State Budget Act, 1999 Wisconsin Act 9, which generally took effect on October 29, 1999, significantly modified the make-up of municipal plan commissions. Under Act 9, all seven members of the plan commission are to be appointed by the mayor (or village president in villages) and the mayor (village president) may choose the commission's presiding officer. In addition, Act 9 provides that the mayor (village president) may appoint himself or herself and other municipal elected or appointed officials to the plan commission. However, the commission must have at least three citizen members who are not municipal officials. See sec. 62.23(1)(a), Stats. 11/30/99.

441. Summarizes the significant changes to land use planning laws made by the 1999-2000 State Budget Act, 1999 Wisconsin Act 9, including the new definition of "comprehensive plan" and the requirement that beginning on January 1, 2010, any municipal program or action that "affects land use" (e.g., annexation, subdivision regulations and zoning ordinances) must be "consistent with" the municipality's comprehensive plan. Sec. 66.0295, Stats. 11/30//99.

442. Concludes that a city may properly impose, as a condition of granting a restaurant applicant a conditional use permit, a requirement that the restaurant close at a certain hour short of bar time, such as 10:00 p.m. Such a restriction would be enforceable even if the restaurant were to eventually obtain a liquor license since nothing in ch. 125, Stats., precludes the city from exercising its zoning authority in this fashion. Indeed, sec. 125.10(3), Stats., expressly provides that ch. 125 "does not affect the power of municipalities to enact or enforce zoning regulations." 1/6/00.

443. The Wisconsin Court of Appeals issued a decision voiding a zoning change adopted by the Milwaukee Common Council after concluding that the council committee which had approved the zoning change had not given the class 2 notice required by sec. 62.23(7)(d), Wis. Stats., before it had held a hearing on the proposed change. The court reached this conclusion even though a different committee had held a properly noticed public hearing on an identical proposed zoning change but had failed to take action on the legislative item. Oliveira v. City of Milwaukee, No. 98-2474 (Wis. Ct. App. Feb. 8, 2000. (Recommended for publication in the official reports.). 2/29/00.

444. Reviews under what circumstances common-law concepts of due process and fair play require an impartial decision-maker in zoning decisions. Discusses the leading Wisconsin case on the issue of impartial decision-making in the context of zoning, Marris v. City of Cedarburg, 176 Wis. 2d. 842 (1993), and examines the legislative/adjudicative distinction in zoning. 3/31/00.

445. A governing body member who serves on the plan commission is disqualified from participating in a quasi-judicial zoning decision that comes before the governing body if the member voted on the matter when it was before the plan commission. However, a governing body member in the same circumstances would not be precluded from voting on a legislative matter, such as a rezoning, since the requirement of an impartial decision-maker does not apply to legislative zoning decisions. 3/31/00.

446. Concludes that village board's practice of holding a public hearing whenever a group home facility applies for an exception from the 2,500 foot spacing requirement or the 1% of population limit on the number of group homes within a community under sec. 62.23(7)(i)1 and 2, Stats., is legal and an appropriate way for the board to gather information to help it decide whether the request constitutes a reasonable accommodation and should be granted. Discusses Oconomowoc Residential Programs, Inc. v. City of Greenfield, 23 F. Supp.2d 941 (E.D. Wis. 1998). 7/31/00.

447. Reviews Willow Creek Ranch, LLC v. Town of Shelby, 224 Wis.2d 269, 592 N.W.2d 15 (2000), a zoning case in which the Wisconsin Supreme Court held: (1) DNR licensing of game bird farms does not preempt local zoning regulations applicable to such farms; (2) determination of zoning classifications, changes in zoning districts and zoning ordinance enforcement are discretionary matters and thus municipalities are immune from liability for such decisions under sec. 893.80(4), Stats.; and (3) erroneous acts or representations of municipal officials do not estop a municipality from adopting and enforcing a different interpretation of the zoning ordinance. 7/31/00.

448. Discusses to what extent a governmental body has discretion when considering requests for special exceptions or conditional uses. 8/17/00.

449. Briefly summarizes the Federal Religious Land Use and Institutionalized Persons Act, Public Law 106-274, which President Clinton signed into law on September 22, 2000. The Act prohibits local governments from imposing a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person unless imposition of the burden furthers a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest. 10/31/00.

450. A county constructing a county courthouse within a city is subject to city zoning regulations pursuant to sec. 13.48(13), Stats. 12/28/00.

451. Describes necessity under Wisconsin's "Smart Growth" law of adopting a comprehensive plan by ordinance and includes a sample ordinance for that purpose. 2/28/01.

452. Local government regulation of solar and wind energy systems is limited by Wis. Stat. 66.031 and local restrictions are permitted only if they serve the public health or safety, do not significantly increase the cost or decrease the efficiency of the system, or allow for an alternative system of comparable cost and efficiency. State ex rel. Numrich v. City of Mequon Board of Zoning Appeals, 2001 WI App 88.

453. Properly given notices of an initial hearing before a zoning committee were sufficient to authorize a common council to enact duplicate proposed zoning amendments that had been referred to a different committee, without publishing additional notices where it appeared that the dual functions of the notice and hearing requirements of sec. 62.23(7)(d)2, Stats., had been fulfilled. Oliveira v. City of Milwaukee, 2001 WI 27, reversing 2000 WI App 49, 233 Wis.2d 532, 608 N.W.2d 419. 4/30/01.

454. Discusses Fair Housing Act (FHA) and Fair Housing Amendments Act (FHAA) impact on municipal land use policies and practices affecting group homes and community living arrangements and makes some recommendations for improving compliance with FHA and FHAA. 6/30/01.

455. Summarizes Lake Bluff Housing Partners v. City of South Milwaukee, No. 00-1958 (Wis. Ct. App. June 12, 2001) (recommended for publication) wherein the order requiring Lake Bluff to raze and remove buildings built in contravention of the City's zoning code was affirmed. 6/30/01.

456. The Wisconsin Department of Natural Resources general grant of authority to regulate floodplains does not include the power to write rules that prohibit a local zoning board from exercising its authority to grant a variance from the flood elevation limits where the variance applicant proves unnecessary hardship. State v. Outagamie County Board of Adjustment, 2001 WI 78. 7/31/01.

457. Owner of parcel with wetland and upland areas states ripe Fifth Amendment takings claim even though development proposals rejected by land use authority only involved wetland areas. Acquisition of title to property after complained of regulations were enacted also does not bar landowner from making Fifth Amendment takings claim. Palazzolo v. Rhode Island, 69 U.S.L.W. 4605 (2001). 7/31/01.

458. A municipality's obligation to make a reasonable accommodation under the Fair Housing Amendments Act or the Americans with Disabilities Act to the 2500-foot separation requirement of §62.23(7)(i), Stats., arises only when the proposed residents need to live in a community living arrangement because of their disability. State ex rel. Bruskewitz v. City of Madison, Case No. 002563 (Ct. App. September 20, 2001) (publication recommended). 9/30/01.

459. A board of appeals is authorized to grant a zoning variance upon proof of unnecessary hardship which requires the variance applicant to demonstrate: (1) that the hardship complained of is caused by a unique condition of the property for which variance relief is sought and (2) without the requested variance, the applicant has no reasonable use of the property. If the applicant fails to prove the existence of a unique condition and a connection between the condition and the hardship, even if the hardship is great, a board of appeals has no power to grant the requested variance. In addition, the board's variance power does not include use variances since there is no clear legal authority vesting such power and significant reason to doubt its existence. 10/31/01.

460. Section 66.1027 of the Wisconsin Statutes required cities and villages with a population of 12,500 to adopt a traditional neighborhood development ordinance that is similar to a model ordinance developed by UW-Extension by January 1, 2002. It also requires a city or village that reaches this population threshold after January 1, 2002 to adopt such an ordinance. 11/30/01.

461. City plan commission may condition approval of proposed land division within city's extraterritorial plat review jurisdiction upon compliance with master plan lot size requirement that is more restrictive than town zoning ordinance provision. 12/30/01.

462. Moratoria, lasting 32 months, on all development imposed by regional planning agency while it formulated comprehensive land-use plan are not per se takings of property requiring compensation under the Fifth Amendment Takings Clause. Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 2002 WL 654431 (U.S. April 23, 2002).

463. Discusses various methods for controlling big-box (superstores) sprawl including impact assessments, design standards, planning moratoria, retail size limits, intergovernmental agreements, and the withdrawal of subsidies for retail sprawl. 4/30/02.

464. A group home or community living arrangement (CLA) is subject to a public hearing requirement associated with rezoning, variance, conditional use or reasonable accommodation relief from a general land use regulation but a public hearing for purposes of determining whether a proposed exception to the CLA spacing or density restriction of Wis. Stat. sec. 62.23(7)(i) qualifies as a reasonable accommodation is inadvisable and probably contrary to the Fair Housing Amendment Act. 7/31/02.

465. For purposes of reasonable accommodation under the Fair Housing Amendments Act (FHAA) and Americans with Disabilities Act (ADA), party seeking accommodation from municipal group home spacing ordinance need only make an initial showing that proposed accommodation is reasonable and, upon that showing, burden shifts to municipality to "come forward to demonstrate unreasonableness or undue hardship in the particular circumstances" and municipality must adequately establish "the nature or quantity" of alleged financial and administrative burdens imposed by group home facility. Oconomowoc Residential Programs, Inc. v. City of Milwaukee, No. 01-1002 (7th Cir. Aug. 8, 2002). 8/31/02.

466. The undefined zoning ordinance term "municipal building" is ambiguous regarding whether it includes or excludes county buildings. Wisconsin courts consistently resolve ambiguity in the meaning of zoning terms in favor of the free use of private property. 10/15/02.

467. Discusses implications of Smart Growth consistency requirement that, effective January 1, 2010, any program or action of a local governmental unit that affects land use be consistent with the local governmental unit's comprehensive plan. 2/28/03.

468. A zoning permit applicant is entitled to an impartial decision-maker and zoning permit proceedings before a plan commission that include analysis of or a recommendation on a zoning permit application by a trustee who is vested with appointment, compensation or other significant authority over members of the plan commission is inconsistent with this essential due process requirement. 3/4/03.

469. In a zoning variance proceeding, neither State v. Kenosha County Bd. of Adjustment, 218 Wis. 2d 396, 577 N.W. 2d 813 (1998) nor State v. Outagamie County Bd. of Adjustment, 2001 WI 78, 244 Wis. 2d 613, 628 N.W.2d 376, require a zoning board to balance the public interest and purpose of a zoning ordinance against the rights of the property owner nor do they establish a two-part variance test, which asks: (1) whether the proposed variance violates the purpose of the zoning ordinance at issue and (2) if the variance violates the purpose of the ordinance, whether the property owner has any reasonable use of the property if the variance is denied. However, Kenosha County does require a successful variance applicant to prove that he or she has no reasonable use of the property without the requested variance. 3/31/03.

470. Expands on Zoning 467 and further explains the Smart Growth consistency requirement that, effective January 1, 2010, any program or action of a local government unit that affects land use be consistent with the local governmental unit's comprehensive plan. 5/30/03.

471. Discusses significant court decisions related to the regulatory takings framework established by the U.S. Supreme Court in Penn Central Transportation Co., v. City of New York, 438 U.S. 104 (1978) and some key unresolved Penn Central analysis issues. 6/30/03.

472. County that obtained opinion of corporation counsel that indicated County could proceed with construction of waste transfer station in Village without the necessary building permits despite the Village's withdrawal from prior positions proceeded with construction in reliance on counsel's opinion, not incorrect representations of Village about zoning requirements and, therefore, County failed to prove necessary element of equitable estoppel defense to Village's zoning enforcement action. Village of Hobart v. Brown County, Appeal No. 03-1907 (Ct. App. Feb. 24, 2004) (recommended for publication). 2/27/04.

473. Comment discusses the Wisconsin Supreme Court zoning variance decision in Ziervogel v. Washington County Bd. of Adjustment, 2004 WI 23. There is brief identification of the leading pre-Ziervogel variance cases, a summary of the Ziergvogel decision analysis, and an exploration of the unique property condition requirement in variance analysis, the new use variance power of zoning boards and the authority of cities and villages to adopt local regulations that define zoning variance terms, and the implications of these aspects of the Ziervogel decision for city and village officials involved in land use policy development and administration. 3/31/04.

474. "[I]n evaluating whether to grant an area variance to an 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 such variance" and must consider all of the components of the statutory variance standard, including "the impact that a proposed variance will have on the public interest." State v. Waushara County Bd. of Adjustment, 2004 WI 56, __Wis. 2d __, 679 W.2d 514. 6/30/04.

475. "[W]hen ordinances are ambiguous as a matter of law, the court has 'consistently resolved all ambiguity in the meaning of zoning terms in favor of the free use of private property.' Because zoning ordinances operate in derogation of the common law, their provisions must be 'in clear, unambiguous and peremptory terms.'" Kollock v. City of Cumberland Board of Zoning Appeals, Case No. 04-0949 (Ct. App. Dec. 4, 2004) (not recommended for publication). 12/30/04.

476. A municipal land use decision, if not justified by the municipality, gives rise to the inference that hostility to religion, or more likely to a particular sect, influenced the decision and the delay, uncertainty and expense imposed on a religious institution by a municipal land use decision, even if no different from those imposed on secular applicants, may still constitute a "substantial burden" under section (a)(1) of the Religious Land Use and Institutionalized Persons Act of 2000. Sts. Constantine and Helen Greek Orthodox Church, Inc. v. City of New Berlin, Case No. 04-2326 (7th Cir. February 1, 2005). 1/31/05.

477. Neither the simple adoption of a wetlands inventory map nor a letter from an administrative agency official stating her predictions of agency action are sufficient to establish a cognizable takings claim and, in accordance with the doctrine of prior resort, courts will refuse to intervene in a takings matter while there remains any possibility of future administrative action. Helnore v. DNR, Appeal No. 04-0602 (Ct. App. February 23, 2005). 2/28/05.

478. The fifty-percent of assessed value restriction on structural repairs or alterations in Wis. Stat. sec. 62.23(7)(h) 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 and advances a balancing of private property and governmental interests by forcing the phase-out of uses that do not conform with the zoning plan by limiting the repairs and structural modifications permitted to buildings in which the nonconforming use is taking place and, therefore, is inapplicable to a nonconforming structure in which a use that is in conformity with applicable zoning restrictions is conducted. Hillis v. Village of Fox Point Board of Appeals, Case No. 04-1787 (Ct. of Appeals, March 15, 2005) (recommended for publication). 3/31/05.

479. Examining regulation to determine whether it "substantially advances" government interests is not a valid means of identifying compensable regulatory takings under the Fifth Amendment because it prescribes an inquiry in the nature of a due process test which has no proper place in Takings jurisprudence. Such an inquiry is a means-end test. Because it provides no information about the magnitude or character of the burden a particular regulation imposes upon property rights, or about how any regulatory burden is distributed among property owners, it does not help identify those regulations whose effects are functionally comparable to government appropriation or invasion of private property. Moreover, its application as a test would pose serious practical difficulties because it would require courts to scrutinize the efficacy of regulations, a task for which courts are not well suited, and would empower courts to substitute their predictive judgments for those of elected legislatures and expert agencies. Lingle v. Chevron, U.S.A., Inc., 544 U.S. ___ , 2005 WL 1200710, (U.S. May 23, 2005 (No. 04-163). 5/31/05

480. A conditional use permit is a type of zoning designation and not a piece of property and town's revocation of conditional use permit did not constitute a taking of property without just compensation. Rainbow Springs Golf Co. v. Town of Mukwonago, 2004 AP1771 (Wis. Ct. App., June 1, 2005) (publication recommended). 6/1/05.

481. Although the erroneous acts of municipal officials do not afford a basis for estopping a municipality from asserting that there has been a violation of its zoning ordinance and a municipality cannot be estopped from asserting a zoning violation in court, once a zoning violation is proven a circuit court may deny a municipality's request for injunctive relief if equitable considerations warrant it. Village of Hobart v. Brown County, 2005 WI 78 (June 15, 2005), aff'g 2004 WI App 66, 271 Wis.2d 268, 678 N.W.2d 402. 6/30/05.

482. The Public Use Clause of the Fifth Amendment permits the taking of private property for a public purpose and a city's "carefully formulated" development plan preceded by "thorough deliberation" that is projected to create in excess of 1000 jobs, increase tax and other revenues, revitalize the City's downtown, create leisure and recreational opportunities on the City's waterfront and in a park and make the City more attractive "unquestionably serves a public purpose" consistent with the Public Use Clause. Kelo v. City of New London, 2005 WL 1469529, 545 US ___ (June 23, 2005). 6/30/05.

483. This comment provides background and an update on the Religious Land Use and Institutionalized Persons Act (RLUIPA) of 2000 with a summary of cases addressing the constitutionality of section 2 and some implications of the substantial burden standard under RLUIPA compared to the pre-RLUIPA standard. 7/29/05.

484. In order for meaningful certiorari review to take place, a zoning board of appeals must adequately express its reasons for its decisions. Conclusory statements that an applicant does or does not meet the relevant criteria are insufficient and a board must articulate, either orally or in a written decision, the particular reasons why an applicant has or has not met the statutory or ordinance criteria. If the board's reasoning is not clear by virtue of a written or oral decision, or by reviewing the hearing transcript, a court will view the board's action as representing its will rather than its judgment. Lamar Central Outdoor, Inc. v. Board of Zoning Appeals of the City of Milwaukee, 2005 WI 117. 8/31/05.

485. Under City of Renton v. Playtime Theaters Inc., municipal zoning regulations applicable to adult oriented businesses must (1) serve a substantial government interest and (2) allow for reasonable alternative avenues of communication. This legal comment focuses on Renton's second requirement, that such regulations allow for reasonable alternative avenues of communication. (Bitar and Pollen) 7/1/06.

486. Comment provides overview of planned development district (PDD) (more commonly identified as planned unit development (PUD)) zoning authority in Wisconsin with a discussion of PUD purposes, criticisms and key statutory standards for creating such zoning districts. 9/30/06.

487. Application of a conditional use permit requirement to a family day care home by a municipality is contrary to the plain language of Wis. Stat. 66.1017(2) since such a requirement is not a zoning regulation that applies to a "dwelling" and a municipality is not authorized to impose conditions on a family day care home dwelling on a case-by-case basis since such conditions are unique to each family day care home and not "applicable" to other dwellings as required by 66.1017(2). 10/31/06.

488. A zoning board of appeals may consider the mistakes of a zoning official when evaluating "unnecessary hardship" for a zoning variance and whether the hardship is self-created. Accent Developers, LLC v. City of Menomonie Board of Zoning Appeals and Timber Ridge Homes, LLC, Appeal No. 2006AP1268 (Ct. App. February 27, 2007) (recommended for publication). 2/28/07.

489. The U.S. Constitution and the federal Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) do not create a federal "vested rights" doctrine for property owners. Petra Presbyterian Church v. Village of Northbrook, No. 06-1329 (7th Cir. June 7, 2007). 6/30/07.

490. A zoning ordinance that does not permit churches to locate everywhere in a municipality does not impose a "substantial burden" on religious activity under RLUIPA in the absence of evidence showing the unavailability of land in areas where churches are permitted under the ordinance. Petra Presbyterian Church v. Village of Northbrook, No. 06-1329 (7th Cir. June 7, 2007). 6/30/07.

491. Identification of area as "public use" on zoning map did not amend zoning ordinance and reclassify area zoned A2 as public use where the zoning ordinance did not contain "public use" as a zoning district and procedures for amending a zoning ordinance had not been followed. Village of Hobart v. Brown County, 2007 AP 891 (Ct. App. Oct. 18, 2007, publication recommended). 10/31/07.

492. Equitable considerations did not outweigh village's right to enforce its zoning code where county that built waste transfer station decided to proceed with construction despite village's assertion that current zoning prohibited the facility and knew that village had rescinded an earlier MOU indicating its intention to approve facility and would not issue permits necessary for building the facility. The fact that the county's corporation counsel had opined that the county could proceed without village approval, did not authorize the county to bypass the village's zoning ordinance. Village of Hobart v. Brown County, 2007 AP 891 (Ct. App. Oct. 18, 2007, publication recommended). 10/31/07.

493. Local zoning ordinance that prohibits directional signs on residential or agricultural zoned property is not preempted by Wis. Stat. sec. 84.30(3)(a). Donaldson v. Town of Spring Valley, 2008 WI App 61, 750 N.W.2d 506, petition for review denied. 3/31/08.

494. Zoning district classification which authorizes only conditional uses violates substantive due process rights of landowner where ordinance restriction does not bear an identifiable and substantial relation to the health, safety, morals or general welfare of the public. Town of Rhine v. Bizzell, 2008 WI 76. 7/31/08.

495. Legal comment reviews key principles and significant issues related to utilization and enforcement of special use permits for conditional uses and special exceptions. 8/29/08.

496. Legal comment reviews key principles and significant issues related to zoning amendments. 9/30/08.

497. The impact of a proposed use in an area variance case is a proper consideration by a zoning board provided use considerations do not overwhelm all others 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. Driehaus v. Walworth County, 2008AP947 (Ct. App. April 1, 2009) (recommended for publication). 4/30/09.

498. Wis. Stat. sec. 66.0401 does not authorize local policymaking regarding wind and solar energy systems and regulations that apply uniformly to all alternative energy systems but instead delegates administrative power and permits only case-by-case assessment of each individual wind or solar energy system through a process such as conditional use permits and subject to the limitations of 66.0401. Ecker Brothers v. Calumet County, No. 2007AP2109, 2009 WL 2032336, 2009 WI App __, __ Wis. 2d. __, __ N.W.2d __ (Ct. App. July 15, 2009) (decision recommended for publication). 7/31/09.

499. 2009 Wisconsin Act 28 creates Wis. Stat. sec. 84.06(12) which exempts from municipal zoning ordinances any sites from which “borrow” is excavated for use in a specified state highway construction project as long as certain conditions are met. “Borrow” is defined to mean “soil or a mixture of soil and stone, gravel, or other material suitable for use in the construction of embankments or other similar earthworks constructed as part of a state highway construction project.” 7/31/09.

500. Condominium development approval that authorizes a land use that conflicts with underlying zoning or other zoning requirements is invalid “de facto rezoning.” State ex rel. Village of Newburg v. Town of Trenton, No. 2008AP2997, 2009 WL 2602328, 2009 WI App __, __ Wis. 2d __, __ N.W.2d __ (Ct. App. Aug. 27, 2009)(recommended for publication). 8/31/09.

501. A protected nonconforming land use under Wis. Stat. sec. 59.69(10)(a) requires a vested interest in the continuance of the use, which is present only when substantial rights would be adversely affected if the use is prohibited. Town of Cross Plains v. Kitts, et al., No. 08-0546, 2009 WL 3030209, 2009 App __, __ Wis. 2d. __ (Ct. App. Sep.24, 2009) (recommended for publication). 9/30/09.

502. A vested interest in a nonconforming land use requires reasonable reliance on existing law, which is not present when owners have notice existing law may soon change. Town of Cross Plains v. Kitts, et al., No. 08-0546, 2009 WL 3030209, 2009 App __, __ Wis. 2d. __ (Ct. App. Sep.24, 2009) (recommended for publication). 9/30/09.

503. Legal comment discusses content neutrality, overbreadth, vagueness and prior restraint  constitutional principles and current issues regarding municipal zoning and licensing regulation systems for adult entertainment businesses. 10/30/09.

504. Local land use regulations which differentiate between religious and non-religious assemblies do not violate the Equal Terms provision of the Religious Land Use and Institutionalized Persons Act merely because they impose differential treatment but must be shown to target religious assemblies for non-secular reasons and are not subject to strict judicial scrutiny under that provision. River of Life Kingdom Ministries v. Village of Hazel Crest, No. 08-2819 (7th Cir. Oct. 27, 2009).

505. Minutes of a local zoning board for a hearing on a proposed cell tower satisfy the written decision or “in writing” requirement of the Telecommunications Act of 1996 so long as they contain a sufficient explanation of the reasons for the board’s decision to allow a reviewing court the opportunity to evaluate whether substantial evidence exists in the record to support those reasons. Helcher v. Dearborn County, No. 07-3949 (7th Cir. Feb. 9, 2010). 3/31/10.

506. Local land use regulations that treat religious and secular assemblies the same from the standpoint of an accepted zoning criterion such as “commercial district,” or “residential district,” or “industrial district,” do not violate the Equal Terms provision of the Religious Land Use and Institutionalized Persons Act. River of Life Kingdom Ministries v. Village of Hazel Crest, No. 08-2819 (7th Cir. Jul. 2, 2010). 7/30/10.

507. A municipal zoning ordinance that effectively bans tattoo businesses in the municipality violates the First Amendment free speech clause given that tattooing and tattoo business is a protected speech activity and a total ban is not a reasonable "time, place and manner"  restriction of it.Anderson v. City of Hermosa Beach, No. 08-56914 (9th Cir. Sep. 9, 2010). 9/30/10.

508. Legal comment provides overview of zoning boards of appeal with a focus on zoning board membership and organization, powers, and decision making. 10/29/10.

509. Legal comment provides overview of plan commissions with a focus on organization, and responsibilities, including the plan commission’s role in community planning, plan implementation, development review and referrals and advisory recommendations.  Also reviews decision standards and procedures for legislative and quasi-judicial decisions. (Rebecca Roberts). 7/31/11.

510. Wisconsin cities and villages probably have general welfare zoning authority to restrict the location of tax exempt land uses for fiscal reasons. 10/31/11.

511. Determining whether an ordinance is a zoning ordinance is done through a functional approach that compares the characteristic(s) and purpose(s) of the subject ordinance with the characteristics and purposes of traditional zoning ordinances. Zwiefelhofer v. Town of Cooks Valley, 2012 WI 7, __ Wis.2d. __, __ N.W.2d __. 2/29/12.

512. The traditional characteristics of a zoning ordinance are: the division of a geographic area into zones or districts; the designation of permitted land uses within established districts or zones; a regulatory emphasis on where a use takes place, as opposed to how it takes place; a comprehensive focus on all possible uses in a geographic area; a fixed, forward-looking determination about what uses will be permitted, as opposed to case-by-case, ad hoc determinations of what individual landowners will be allowed to do, and; provisions allowing lawful preexisting land uses to continue. Zwiefelhofer v. Town of Cooks Valley, 2012 WI 7, __ Wis.2d. __, __ N.W.2d __. 2/29/12.

513. The traditional purpose of a zoning ordinance is the separation of incompatible land uses. Zwiefelhofer v. Town of Cooks Valley, 2012 WI 7, __ Wis.2d. __, __ N.W.2d __. 2/29/12.

514. A nonmetallic mining ordinance that does not create zoning districts, does not designate any permitted uses, does not directly regulate where a land use activity can occur by predetermining specific locations where the activity can occur and where it cannot, focuses on a single land use activity in a geographic area, authorizes a land use activity entirely on a case-by-case ad hoc basis, provides for lawful preexisting mining activities to continue, and does not explicitly separate land uses or explicitly declare any land uses incompatible with any others, is a valid exercise of a Town’s non-zoning police power that does not require county board approval. Zwiefelhofer v. Town of Cooks Valley, 2012 WI 7, __ Wis.2d. __, __ N.W.2d __. 2/29/12.

515. A government demand for money that is not a property tax, user fee or similar payment, must satisfy the Nollan and Dolan takings analysis even if there is no payment made where the demand for money burdens the ownership of a specific parcel of land. Koontz v. Saint Johns River Water Management District, 570 U.S. ___. 6/30/13.

516. Legal comment compares Wisconsin shoreland zoning and comprehensive planning laws to more recent nonconforming structure and cell tower siting laws and raises question of whether impacts of latter legislation on local control suggest a change in the state and local land use policy relationship comparable to one that occurred from the 1970s through the 1990s. 10/31/13.
 517. A subdivision ordinance that restricts land division within its extraterritorial jurisdiction to a density of no more than one lot per thirty-five acres of land and a minimum lot size of one acre and explicitly intended to protect rural character and farming viability is an impermissible land use restriction contrary to Wis. Stat. sec. 236.45(3)(b). Lake Delavan Property Co. v. City of Delavan, 2013AP1202 (publication recommended). 03/01/14.
 
518. Note summarizes 2013 Wisconsin Act 80 shoreland zoning requirements and reports availability of and web link for League model ordinance implementing the requirements. 4/30/14.
 
519. Zoning ordinances are construed in favor of the free use of private property and an ordinance that lists “single-family dwellings” as a permitted use in a “single-family residential district” and does not require occupancy over a period of time permits short-term rentals as a permissible use. Heef Realty and Investments, LLP v. City of Cedarburg Board of Appeals, 2014AP62 (Ct. App. Feb. 4, 2015, publication recommended). 2/26/15.