Atty. Dean B. Richards Wisc. County Code Administrators March 29, 2012 LEGISLATIVE AND CASE LAW UPDATE

Atty. Dean B. Richards

Wisc. County Code Administrators

March 29, 2012

LEGISLATIVE ANDCASE LAW UPDATE

Adams Outdoor vs. Dane County

• Wisconsin Court of Appeals

• Dane County

• Feb. 2, 2012

• Petition for Review Filed


• §60.23(29) – Town billboard authority

• §59.70(22) – County billboard authority– Doesn't apply if town regulates same

subject matter

• §59.69 – General zoning authority– Requires town approval


• §60.23(29) – Town billboard authority

• §59.70(22) – County billboard authority– Doesn't apply if town regulates same

subject matter

• §59.69 – General zoning authority– Requires town approval

Guse v. City of New Berlin


• January 18, 2012


New lot may be prohibited if:

•New lot area less than average of existing

•New lot width less than average of existing

•Subdivision platted more than 25 years ago


• New lot area less than average of existing29,000 new vs. 41,265 average

• New lot width less than average of existing147.5 new vs. 180.91 average

• Subdivision platted more than 25 years ago1969 – 43 years ago


• Unfettered discretion = unconstitutionally vague

• Arbitrary & Discriminatory– Consistency is a virtue, but

inconsistency is not proof of arbitrariness

Berger v. Tn. of New Denmark


• Brown County

• January 10, 2012

©2011 All Rights ReservedReinhart Boerner Van Deuren s.c.


• Insufficient lot size for development

• 35 acre minimum

• 34.5 acres w/o ROW

• 35.19 acres w/ ROW


• ”…do hereby grant and convey to Brown County for highway purposes as long as so used…”

• “…the right of way to be acquired…”

• Fee or easement?


• Absent express language to contrary, conveyance for roadway is an easement.

• ROW strongly suggests easement.

• Lower court didn’t consider whether ordinance allowed inclusion of ROW for acreage determination.

Manlick v. Loppnow


• Waukesha County

• August 2, 2011

Manlick v. Loppnow

• Dispute between adjoining riparian owners

• Challenge as to which method to use to establish riparian zone

• Piers had been placed using straight line extension of property line

• Court adopted coterminous method advocated by surveyor

Manlick v. Loppnow

• Judge should determine riparian line methodology, not a jury,“...because determining which method to apply is a discretionary decision to be based upon principles of fairness.”

• Juries should decide factual issues, not legal issues

Hussein v. Village of Germantown Board of Zoning Appeals


• Washington County

• May 25, 2011


• Hussein purchased a used car lot that had been operated under a conditional use permit limited to 25 cars.

• After granting CUP, Village changed zoning district

• Use car lots were no longer a conditional use


• Once the zoning district was changed, Village no longer had jurisdiction to grant a CUP

• CUP went away and lot became a legal, nonconforming use

• Village could no longer enforce terms of the CUP – including number of cars

Zwiefelhofer v.Town of Cooks Valley

• Wisconsin Supreme Court

• February 8, 2012


• Town adopts nonmetallic mining ordinance

• Does not submit for county approval

• Application and review process – permits can be issued with or without conditions


• Current quarry operators challenge validity

• Unanimous decision of court – 6 members

• Ordinance is NOT a zoning ordinance and does not require county approval.

WTF?


• Divide an area into multiple districts using text and maps

• Uses permitted and prohibited

• Where a use takes place, not how a use takes place


• Uses classified in general terms – address all possible uses in comprehensive terms

• Fixed, forward looking determinations and case-by-case

• Allow permitted, nonconforming


• Purpose of zoning is to separate incompatible uses

• NOTE:– Not a bright line definition– Not a question of how many factors tip

which way

What a difference an

election makes!

©2011 All Rights ReservedReinhart Boerner Van Deuren s.c.

2011 Senate Bill 326Piers

• Loading platform – Configuration not regulated– Must not exceed 200 sq. ft.

• 2 personal watercraft for first 50 feet of frontage, 1 per 50' thereafter


• Current Grandfathering– Placed by Feb. 6, 2004– Registered by April 1, 2012

• New Grandfathering– Placed before effective date of act– No registration– Can't interfere with riparian rights


• Area of Special Natural Resource Interest

– Must permit if meet exemption standards

– May impose conditions, but not prohibit

2011 Senate Bill 472

• Nonconforming structure

• Development Regulations– Setback– Height– Lot coverage– Side yard


Comp. zoning may not prohibit or limitbased on the cost of the

repair, maintenance, reconstruction, renovation, or remodeling

of a nonconforming structure


Comp. zoning may not prohibit or limitbased on the cost of the

repair, maintenance, reconstruction, renovation, or remodeling

of a nonconforming structure


Shoreland zoning cannot be more restrictive than DNR shoreland zoning standards as to:

location, maintenance, expansion, replacement,

repair or relocation.


• Regulation of substandard lots may not be more restrictive than NR 115.

Atty. Dean B. RichardsReinhart Boerner Van Deuren s.c.

P.O. Box 2265Waukesha, WI 53187-2265

[email protected]

Documents

Atty. Dean B. Richards Wisc. County Code Administrators March 29, 2012 LEGISLATIVE AND CASE LAW UPDATE