Frac Sand Mining Rights in Wisconsin

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July 27, 2018

I. Land Use Approval

A. Zoning Overview
Zoning may be the most essential function performed by local government because it permits the municipality to protect its citizens’ quality of life.1 In 1923 the Wisconsin Supreme Court upheld an enabling statute and a “so-called zoning ordinance” against equal protection and due process challenges.2 One Charles Carter operated a dairy and milk pasteurizing plant in the city of Milwaukee. Carter sought a building permit in order to expand the building, but Milwaukee refused to issue the permit because it had adopted a zoning ordinance pursuant to the enabling statute. Under the ordinance, the dairy and pasteurizing plant were considered a nonconforming use within a residential zone; the operation could not be expanded unless it was made a conforming use. Carter argued the zoning ordinance violated his constitutional rights to equal protection, due process of law, and a taking of his property without payment of just compensation. At that time only a handful of states had considered the constitutionality of zoning ordinances. The Wisconsin Supreme Court came down firmly on the side of the state’s exercise of its police power:

It is thoroughly established in this country that the rights preserved to the individual by these constitutional provisions are held in subordination to the rights of society. Although one owns property, he may not do with it as he pleases, any more than he may act in accordance with his personal desires. As the interest of society justifies restraints upon individual conduct, so also does it justify restraints upon the use to which property may be devoted. It was not intended by these constitutional provisions to so far protect the individual in the use of his property as to enable him to use it to the detriment of society. By thus protecting individual rights, society did not part with the power to protect itself or to promote its general well-being. Where the interest of the individual conflicts with the interest of society, such individual interest is subordinated to the general welfare. If in the prosecution of governmental functions it becomes necessary to take private property, compensation must be made. But incidental damages to property resulting from governmental activities, or laws passed in the promotion of the public welfare, are not considered a taking of property for which compensation must be made.3

The court observed that the police power may be exercised so as to impose restrictions on property not only in the interest of public health, morals, and safety, but also “ . . . in promotion of the public welfare, convenience, and general prosperity . . .”4 The court concluded that Milwaukee’s ordinance is “ . . . a reasonable, valid, and constitutional enactment.”5 The court upheld Milwaukee’s denial of the building permit.6 Three years later zoning was held to be constitutional by the United States Supreme Court.7 Zoning is classified in two broad categories: general zoning and special purpose zoning. The objectives of county general zoning embrace a wide array of values, including:

•    Public health, safety, convenience, and general welfare;
•    Planned and orderly land use and development;
•    Protections of property values and the property tax base;
•    Planning and efficient maintenance of highway systems;
•    Adequate highway, utility, health, educational, and recreational facilities;
•    Recognition of the needs of agriculture, forestry, industry, and business in future growth;
•    Use of land and natural resources in accord with their character and adaptability;
•    Provision of adequate light and air, including use for solar and wind energy systems;
•    Protection of groundwater resources;
•    Preservation of wetlands;
•    Conservation of soil, water, and forest resources;
•    Protection of beauty and amenities of landscape and man-made developments;
•    Provision of healthy surroundings for family life; and
•    Promotion of the efficient and economical use of public funds.8

The purposes of city general zoning include lessening congestion and population density; safety from fire, panic, and other dangers; avoiding the overcrowding of land; adequate provision of transportation, water, sewerage, schools, parks and other public requirements; and burial sites.9

General zoning is one tool for planning the orderly development of land; comprehensive planning is another. Wis. Stat. § 62.23(7) provides that general zoning regulations should be made in accordance with a comprehensive plan. In Bell v. City of Elkhorn10 the Wisconsin Supreme Court explained that general zoning applies to the immediate use of land, whereas planning places restrictions on the future use of land.11 The court recognized the definition of a comprehensive plan as “a general plan to control and direct the use and development of property in a municipality, or a large part thereof, by dividing it into districts according to present and potential use of the property.”12 The court held that a separate document titled a “comprehensive plan” is not a condition precedent to general zoning because Wis. Stat. § 62.23(7), which governs general zoning in cities, villages, and towns acting with village powers, serves the function of and constitutes a comprehensive plan.13

In 1999 the legislature provided that as of January 1, 2010, local governmental units, i.e, cities, villages, towns, counties, and regional planning commissions,14 must ensure that any amendments to their general zoning ordinances are consistent with nine elements of the unit’s comprehensive plan.15 Those elements are: issues and opportunities; housing; transportation; utilities and community facilities; agriculture, natural and cultural resources; economic development; intergovernmental cooperation; land use; and implementation.16 In Step Now Citizens Group v. Town of Utica Planning and Zoning Committee17 the plan commission approved a zoning change to the industrial classification so as to allow for development of an ethanol plant in what had been classified as agriculture. Adjacent land owners challenged the rezoning decision as illegal spot zoning. Observing from Bell that a comprehensive plan is a guide, the Wisconsin Court of Appeals in Step Now reasoned that when a zoning change is made prior to January 1, 2010, a separate comprehensive plan must necessarily be advisory, not binding.18 After January 1, 2010, however, zoning changes must be consistent with comprehensive plans.19 The term “consistent with” means “furthers or does not contradict the objectives, goals, and policies contained in the comprehensive plan.”20 The term “special purpose zoning” is self-descriptive. Several special purpose zoning requirements are likely to be of particular interest in the context of frac sand mining operations.

(1) Annexed land. The land described in a petition for annexation may be temporarily classified for zoning purposes until such time as the general zoning ordinance of the city or village is amended.21

(2) Extraterritorial zoning. Cities and villages that have plan commissions and that have general zoning ordinances may exercise extraterritorial zoning in unincorporated areas, i.e. towns, within three miles of the corporate limits of first, second, and third class cities and within one and onehalf miles of the limits of fourth class cities and villages.22 Extraterritorial zoning requires the establishment of a joint extraterritorial zoning committee between the city or village and the town(s) in which the extraterritorial area to be zoned is located.23 Approval of city and village resolution to exercise extraterritorial zoning requires a simple majority of the joint committee.24

(3) Floodplain zoning. Counties, cities, and villages must adopt reasonable and effective floodplain ordinances.25 These ordinances must be at least as restrictive as the minimum standards set forth in Wis. Admin. Code ch. NR 116.26

(4) Shoreland zoning. Shorelands are defined as the area within one thousand feet of lakes, ponds, and flowages and three hundred feet of rivers and streams.27 Counties must zone shorelands within unincorporated areas.28 Towns may not opt out of county shoreland zoning,29 which they can do in the case of general zoning, as discussed below. Cities and villages may enact shoreland management ordinances,30 as can towns that have zoning authority.31 Shorelands located in areas annexed to cities and villages are subject to county shoreland zoning even when the annexing cities and villages have not elected to enact shoreland zoning.32 Hegwood v. Town of Eagle Zoning Board of Appeals33 held that towns with or without village powers have been deliberately excluded by the legislature from holding general zoning authority over shorelands. The only exception is where the town had an existing ordinance regulating shorelands that is more restrictive than a later-adopted county shoreland zoning ordinance, but only to the extent of the greater restrictions.34

(5) Wetlands in shorelands. Cities and villages are required to zone wetlands of five acres or more within their corporate limits that are shown on the wetland inventory prepared by the Department of Natural Resources for the efficient use, conservation, development, and protection of the state’s water resources.35

(6) Farmland preservation. Political subdivisions may adopt farmland preservations ordinances.36 Nonmetallic mineral extraction qualifies as a conditional use in a farmland preservation zone if all of the following conditions are present:
•    Compliance with the reclamation requirements of subchapter I of Chapter 295;
•    Consistency with the purposes of the farmland zoning district;
•    Reasonableness and appropriateness considering alternative locations outside the farmland zoning district;
•    Minimization of conversion of land around the extraction site from agricultural use;
•    Absence of impairment of parcels surrounding the extraction site for future agricultural use; and
•    Restoration of the extraction site to agricultural use.37

In addition, political subdivisions and landowners may petition the Department of Agriculture, Trade and Consumer Protection (“DATCP”) of designation of agricultural enterprise areas.38 The effect of such “AEA” designations is to allow owners of land within the designated area to enter into farmland preservation agreements with DATCP.39

B. Zoning Authority of Counties, Cities, Villages, and Towns
Zoning authority, general and special, is vested in a complex mix of political subdivisions. Counties have general zoning authority under Wis. Stat. § 59.69. Cities hold that power under Wis. Stat. § 62.23(7). Pursuant to Wis. Stat. § 61.35, villages are empowered to act under Wis. Stat. § 62.23.

Towns hold several options. Towns that hold village powers may adopt zoning ordinances pursuant to Wis. Stat. §§ 61.35 and 62.23(7).40 Where such a town is located within a county that has adopted general zoning, the town’s zoning ordinance must be approved at the town meeting or on a referendum vote of the electors41 and is subject to county board approval.42 Towns hold general zoning authority under Wis. Stat. § 60.61, however, in the absence of village powers authorization where the county refuses a request from the town to adopt county zoning in the time specified by statute.43 Alternatively, towns may opt to have the county general zoning apply to it. The Wisconsin Department of Administration, Division of Intergovernmental Relations, has a color-coded map (“Zoning in Cities, Villages, and Towns”) of the state dated November 30, 2010, that identifies the source of zoning authority or its absence. The map depicts 1,255 towns: town zoning exists in 242 (19%) of them; county zoning exists in 767 (61%); and no zoning exists in 246 (20%).44 The map shows that the great majority of cities and villages are zoned: 552 (93%) zoned versus 36 (6%) not zoned (and 1% for which the zoning status was unknown).45 Accordingly, general zoning might not exist in a particular county and township where a frac sand mining operation is planned. Even in that less common circumstance, however, special purpose zoning may be applicable.

C. Conditional Use Permits
In the more common circumstance in which general zoning exists, non-metallic mining operations are typically classified as conditional uses. General zoning ordinances divide jurisdictions into divisions in which certain uses are clearly permitted or prohibited. Other uses that, due to their nature or scale, are likely to cause problems if not closely controlled may be permitted. Such uses are permissible, but with conditions imposed upon them so as to allow for close regulation. To this end, one seeking local approval to operate a nonmetallic mine under a general zoning ordinance might apply for a “conditional use permit,” which may also be referred to as a “special exception permit.”46 Conditional use permits typically control for various factors, such as fugitive dust emissions, noise, visual screening, traffic, and hours and days of operation, including blasting. Zoning ordinances are matters of legislative decision; they enjoy a presumption of validity and are to be construed liberally in favor of the zoning authority.47 Though the zoning authority has discretion to issue a conditional use permit, a permit issued for a use that is prohibited is illegal per se.48

There is a fundamental distinction between conditional use permits and variances. Whereas the former are permissible, variances are prohibited subject to exceedingly narrow exceptions. There are two types of variance, use variances and area variances. Use variances are rarely granted because the legal standard to meet the criterion is Olympian: a use variance can be granted only if no reasonable use of the property could be made without the variance.49 The criteria for obtaining an area variance, which applies to dimensions, such as height, width, lot size, setbacks, and density, is imposing.

Strict application of the ordinance must impose an unnecessary hardship in light of the purpose of the zoning provision, but such hardship must be unique to the property, not personal to the landowner, and not self-created.50 As a practical matter, obtaining an amendment to a general zoning ordinance from a prohibited use to a conditional use may be easier to obtain than a variance and less likely to spawn litigation.

D. Regulation by Non-zoning Ordinances: Zwiefelhofer v. Town of Cooks Valley

Zoning authorities hold, however, a more expedient means by which to regulate activities, such as frac sand mining, than the zoning power. Non-zoning ordinances may also be adopted and enforced pursuant to the police power, as seen in the recent Wisconsin Supreme Court case of Zwiefelhofer v. Town of Cooks Valley.51 The town of Cooks Valley (the “Town”) had adopted village powers in 2001.52 Chippewa County had a general zoning ordinance, and the Town had not adopted county zoning.53 The issue was whether the Town’s “Nonmetallic Mining Ordinance” is a zoning ordinance.54 If the ordinance was a zoning ordinance, then it would have been invalid because county board approval would have been required for zoning ordinances adopted by towns in which county-wide zoning existed. This particular ordinance had not been submitted to the county board for approval.55 The Town’s ordinance was held not to be a zoning ordinance; it had not been adopted in a procedurally deficient manner and was, therefore,

The court explained that the Town’s non-zoning ordinance regulating nonmetallic mining was adopted under the police power, but the “heightened procedural requirements” of enacting general zoning were not applicable.57 The court refused to establish a “bright-line rule” to distinguish between zoning and non-zoning ordinances enacted under the police power; instead, the court applied a case-by-case “functional approach.”58 Under this approach the court compares and contrasts the characteristics and purposes of zoning with that of the specific ordinance in question.59 The court catalogued six characteristics of zoning, and observed that no single characteristic is dispositive, a simple addition of the factors is not permissible, and “[s]ome characteristics, under the circumstances of the case, may be more significant than others.”60

The six characteristics of zoning are:
(1) division of geographic area into zones;
(2) identification of uses that are a matter of right, are permissible, or are prohibited;
(3) focus upon where a use may be made, as opposed to how that use is made;
(4) focus upon all possible uses in a comprehensive way;
(5) focus upon a fixed, forward-looking approach as to land use, rather than ad hoc; and
(6) recognition of legal non-conforming use where use was legal prior to enactment.61

The court reviewed a number of broad and less broad expressions of the purpose of zoning and seemed to favor the “separation of incompatible land uses” as the “central purpose” of zoning.62

Applying the functional approach, the court determined the ordinance applied universally to the entire town and that nonmetallic mining had the potential to be permitted anywhere within the town; the ordinance regulates how nonmetallic mining might be operated rather than its location within the town; the ordinance applies to one industry and does not comprehensively address all possible land uses within the town; the ordinance operates exclusively on a case-by-case basis. Thus, the court found that five of the characteristics of zoning were unlike the characteristics of the ordinance.63

The only similarity between the characteristics of zoning and the ordinance was that both allow for the “grandfathering” non-conforming uses that had been legal prior to adoption of zoning or a non-zoning ordinance. That similarity was not enough to swing the ordinance into the category of a zoning ordinance. “However, no rule exists that a non-zoning police power ordinance cannot exempt preexisting uses.”64 The Zwiefelhofer decision provides an expedient land use regulatory tool for zoning authorities. Landowners who anticipate developing property for nonmetallic mining have a tool by which to place what is, in effect, a “stay” on zoning changes so as to preserve the status quo under Wis. Stat. § 295.20. That statute allows a landowner to register his or her land under the following preconditions:
(1) a “marketable nonmetallic mineral deposit” certification is made by a registered geologist or registered professional engineer;
(2) notification of intent to register is made to each county, city, village, and town having zoning authority; and
(3) nonmetallic mining is either a permitted use or a conditional use under any zoning in effect on the day that notification is made to the applicable zoning authorities.65

Registration is made with the applicable office(s) of the register of deeds.66 The effect of registration is to preclude zoning changes that would interfere with the present or future use for nonmetallic mining for a period of ten years, which may be renewed for one additional ten-year period.67

A “marketable nonmetallic mineral deposit” is one that can be or is reasonably anticipated to be commercially feasible to mine and has significant economic or strategic value based on geologic, mineralogical or other scientific data.68 A zoning authority has sixty days in which to file its objection to the notification of intent to register.69 Such zoning authority can sustain its objection only by filing suit within sixty days thereafter in circuit court.70 The basis for objection is limited to (a) zoning as of the day of notification does not permit or conditionally permit nonmetallic mining and/or (b) the land proposed for nonmetallic mining does not contain a marketable nonmetallic mineral deposit.71 Wis. Stat. § 295.20(2) applies facially to zoning:
A county, city, village, or town may not by zoning, rezoning, granting a variance, or other official action or inaction permit the erection of permanent structures upon, or otherwise permit the use of, any land in a manner that would permanently interfere while a registration under this section is in effect for that land . . . (emphasis supplied).

The premise of the Zwiefelhofer case is that the “Nonmetallic Mining Ordinance” in that case is not zoning. Can the phrase “or other official action” be read broadly so as to apply beyond zoning ordinances to non-zoning police power ordinances? Or is that phrase to be construed narrowly so as to apply only within the context of zoning? It appears the argument that registration is ineffective against non-zoning police power ordinances is there for the making. Of course, the legislature could amend the statute so as to encompass non-zoning police power ordinances.

E. Procedure
The possibility exists that a frac sand operation could be developed in the absence of zoning if the operation is located in a jurisdiction(s) in which zoning has not been enacted. At the other end of the regulatory spectrum, if an applicable zoning code prohibits nonmetallic mining in a given zone, a use variance would probably be  unavailing because it is unlikely that the “no reasonable use” standard could be met. An area variance would also be quite unlikely to apply in the context of a frac sand operation. Where an applicable general zoning code prohibits nonmetallic mining, it is likely that the more practical path for a frac sand operator would be to seek an amendment to the zoning code.

It is unlikely that a zoning code would provide an unqualified right to engage in nonmetallic mining. The more likely circumstance is that nonmetallic mining would be permissible under a conditional use permit or special exceptions permit. Applications for conditional use permits are heard and determined by the “zoning board,” often abbreviated as the “BOA.”72

Zoning boards hear three types of matters: (1) administrative appeals; (2) applications for conditional use permits; and (3) applications for variances. An administrative appeal involves the appeal by a landowner of a nondiscretionary decision made by a zoning administrator for a permitted use. In other words, when a zoning administrator denies an arguably permitted use, the landowner appeals that denial to the zoning board. Applications for conditional use permits and variances, however, bypass the zoning administrator and are made directly to the zoning board. In those instances it is helpful for the application to include a written statement from the zoning administrator that the permit for which application is made would require a conditional use permit, or a variance, as the case may be.

County boards of adjustment are comprised of three to five members, depending on the population in that county.73 Town boards of adjustment have three members74 and boards of appeals of cities, villages, and towns exercising village powers have five.75 Marris v. City of Cedarburg76 contains an excellent discussion of the role of zoning board members. Their decisions are inherently vulnerable to bias and conflicts of interest because membership is drawn from the immediate geographical area coupled with the adjudicative, legislative, and political nature of the proceeding.77 Members of zoning boards come with their opinions and preferences; what they must do, however, is apply the law to the facts and not prejudge the application.78 Use of language that is, at best, a poor choice of words (“loophole” in need of “closing”) may give rise to an impermissibly high risk of bias requiring recusal.79

In the case of conditional use permits, it might be the governing body, the plan commission or committee, or the zoning board that hears those applications depending upon how the applicable zoning ordinance or non-zoning police power ordinance is written. The applicant(s), which must include the landowner(s), should prepare a clear, precise, thorough, and complete application80 with supporting documentation and rationale for a conditional use permit to be granted. Transparency is the best policy; it is better to address controversial items directly and openly than to “save them” for the hearing.

Applicants for conditional use permits (as well as for zoning changes and variances) should pay careful attention to the particular requirements for public notice of the hearing and the statutory requirements that govern open meetings.81 Failure to meet the notification requirements of the applicable ordinance can upset the grant of a conditional use permit.82 Likewise, a conditional use permit issued in violation of the open meetings is voidable.83 Underlying these requirements is the fundamental dynamic that it is the applicant, not the zoning authority, who carries the burden to develop a complete application so as to demonstrate that the applicable criteria are satisfied.84 Further, the Wisconsin Supreme Court stated in Edward Kraemer & Sons, Inc. v. Sauk County Board of Adjustment 85, a case involving the denial of a conditional use permit to engage in nonmetallic mining, “[t]he applicant, not the Board, has the burden of showing that the permit meets these standards.”

The 1994 Wisconsin Supreme Court case of Kraemer & Sons, Inc. Inc. v. Sauk County Board of Adjustment, which for convenience I will refer to as “Kraemer I,” is important because it addressed the issue of specific versus general criteria in seeking a conditional use permit. The nonmetallic mining contractor, whose quarry was located near the Baraboo bluffs, argued that the Sauk County Board of Adjustment was required to issue a conditional use permit because the contractor had met all of the specific criteria required by the Sauk County ordinance. Specifically, the contractor had demonstrated the existence of rock to be quarried, that it would be economically feasible to quarry the rock, that his operations plan showed that no neighboring property would be harmed, and that he had submitted a reclamation plan.86 Based on having met these specific criteria, the contractor argued that Board of Adjustment could not lawfully rely upon general language to deny the permit.

The Wisconsin Supreme Court affirmed the BOA because the ordinance contained general criteria the BOA had relied upon. The ordinance identified as one of its purposes “ ‘[t]o provide for the wise use of the county’s resources.’ ”87 In regard to mineral extraction activities, the ordinance provided the activity must “avoid harm to the public, safety, and welfare.”88 Both the “wise use” and general welfare standards were construed to be sufficiently flexible to allow the Sauk County BOA to base its denial of the conditional use permit application on public opposition to the “desecration” of the scenic and geologically important Baraboo bluffs.89 Though neither the ordinance nor the court’s opinion used the term “aesthetics,” that seems to be the essential interest the Sauk County BOA viewed as the paramount concern.

If aesthetics was the unspoken premise in Kraemer I, it was the center of attention in a subsequent unpublished decision90 of the Wisconsin Court of Appeals involving Kraemer Company, LLC, the Sauk County BOA, and the scenery of the Lower Narrows of the Wisconsin River and the Baraboo Hills, which I will refer to for convenience as “Kraemer II.” The Sauk County BOA once again denied Kraemer a conditional use permit based upon a lapse in active operations of more than one year, which caused its nonconforming use status to be extinguished. Part of the BOA’s justification was “the aesthetic values of the Lower Narrows and Baraboo Hills.”91 Kraemer Company argued the concern for aesthetics had been added to the ordinance at a later time. In other words, Kraemer argued that it was “grandfathered” as to the concern for aesthetics.

In affirming the BOA’s denial of the permit, the court of appeals dealt with Kraemer Company’s “aesthetically grandfathered” argument in two ways. First, the court of appeals noted that the status of legal nonconforming use in the ordinance applies exclusively to “use,” not “conditions.”92 “We cannot conceive of how the aesthetics of a property qualifies as a ‘use’ of that property . . .”93 Second, the court of appeals cited Kraemer I for the proposition that the public health, safety and welfare standard is “ ‘broad enough’ to allow the BOA to consider ‘harm to the public that would result from partial destruction of a natural area . . . of great geological importance.’ ”94 Accordingly, aesthetics may be a factor to be addressed in the permit application process for frac sand operations.

The scope of review of the decision of a zoning authority in determining a conditional use permit or a variance is narrow. Such decisions are challenged upon petitions for certiorari to the circuit court under the following common law standards:
(1) whether the zoning authority kept within its jurisdiction;
(2) whether it proceeded on a correct theory of law;
(3) whether its action was arbitrary, oppressive, or unreasonable and represented its will and not its judgment; and
(4) whether the evidence was such that it might reasonably make the determination in question.95

The zoning authority enjoys a legal presumption of correctness and validity.96 On certiorari review, the circuit court does not weigh evidence or substitute its judgment for that of the zoning board members.97 The highly deferential nature of certiorari review is well explained in the unpublished case of Beverly Materials, LLC v. Town of LaPrairie Board of Supervisors.98 The Beverly Materials case notes the distinction between the scope of review of a quasi-judicial decision whether to issue a conditional use permit versus a quasi-legislative decision to zone or rezone.99 The zoning authority asserted the argument that a zoning or rezoning decision carries an even narrower scope of review: whether the decision is unconstitutional, unreasonable, or discriminatory.100 Having determined the zoning authority had substantial evidence upon which it denied the application for a nonmetallic mining conditional use permit, it was not necessary for the court of appeals to decide whether the more restrictive scope of review for a zoning change applied.101

F. Enforcement
Violations of zoning ordinances are unlawful and can lead to serious
consequences. Cities, villages, and towns exercising village powers may seek to enjoin the erection, construction, reconstruction, or demolition of an unlawful structure, and they may seek fines of not more than $500 per day of continuing violation.102 They, as well as adjacent or neighboring property owners, may seek special damages and any other remedy provided by law.103 County zoning boards are authorized to impose appropriate forfeitures, and they, along with an owner of real estate within the district affected by the regulation, may seek injunctive relief in circuit court.104 Towns acting without village powers are authorized to impose forfeitures and other penalties.105 They and landowners within the affected district may seek a court order to compel compliance.106 In any of these circumstances, a conditional use permit can, by definition, be revoked upon violation of the conditions that apply to that permit.

An aggrieved landowner upon whom enforcement has been made may challenge the municipality’s determination that a zoning violation exists in a certiorari proceeding in circuit court. The scope of the circuit court’s review is restricted, however, to the four common law criteria noted above (exercise of jurisdictional authority, action upon the correct theory of law, absence of arbitrariness, and substantial evidence in support of its determination). Equitable factors are not material to certiorari review.107 In actions seeking to enforce compliance, however, the circuit court may deny injunctive relief on equitable grounds.108 In exercising its discretion whether, and in what form, to grant injunctive relief, the circuit court must take into account all equitable factors under the totality of the circumstances.109 The circuit court should grant the injunction except when it is presented with “compelling equitable reasons to deny it.”110 While the judicial system generally does not allow estoppel to be invoked against the government for the erroneous acts or representation of its officials,111 the role that government played in contributing to a violation is just one of the equitable factors that a circuit court may take into account in determining injunctive relief.112

Zoning Board Handbook For Wisconsin Zoning Boards of Adjustment and Appeals, 2nd Edition, 2006, Lynn Markham and Rebecca Roberts. Center for Land Use Education,

Handbook for Wisconsin Municipal Officials, 2002, League of Wisconsin Municipalities Wisconsin Department of Administration, Division of Intergovernmental Relations,= webpages

1 Lake Bluff Hous. Partners v. City of South Milwaukee, 2001 WI App 150, ¶ 25, 246 Wis. 2d 785, 632 N.W.2d 485 (citing Vill. of Belle Terre v. Borass, 416 U.S. 1, 13, 94 S. Ct. 1536, 39 L. Ed. 2d 797 (1974)).
2 State ex rel. Carter v. Harper, 182 Wis. 148, 196 N.W. 451 (1923).
3 State ex rel. Carter, 196 N.W. at 453.
4 State ex rel. Carter, 196 N.W. at 454.
5 State ex rel. Carter, 196 N.W. at 457.
6 Id.
7 See Vill. of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S. Ct. 114, 71 L. Ed. 303 (1926).
8 Wis. Stat. § 59.69(1).
9 Wis. Stat. § 62.23(7)(c).
10 122 Wis. 2d 558, 364 N.W.2d 144 (1985).
11 Bell, 122 Wis. 2d at 564 (citations omitted).
12 Bell, 122 Wis. 2d at 564 (citations omitted)..
13 Bell, 122 Wis. 2d at 566-67.
14 Wis. Stat. § 66.1001(1)(b).
15 Wis. Stat. § 66.1001(3).
16 Wis. Stat. § 66.1001(2).
17 2003 WI App 109, 264 Wis. 2d 662, 663 N.W.2d 833.
18 Step Now, 2003 WI App 109, ¶ 46.
19 For cities, villages, and towns, the term for comprehensive plans is “master plan.” See Wis. Stat. § 66.1001(1)(a)2. For counties, the term is “development plan.” See Wis. Stat. § 66.1001(1)(a)1.
20 Wis. Stat. § 66.1001(1)(am).
21 Wis. Stat. § 66.0217(8).
22 Wis. Stat. § 62.23(7a).
23 Wis. Stat. § 62.23(7a)(c).
24 Wis. Stat. § 62.23(7a)(c).
25 Wis. Stat. § 87.30(1)(a).
26 Wis. Stat. § 87.30(1)(b).
27 Wis. Stat. § 59.692(1)(b).
28 Wis. Stat. § 59.692(1m).
29 Wis. Stat. § 59.692(2)(a).
30 Wis. Stat. § 92.17(2)(a).
31 Wis. Stat. § 92.17(2)(ar).
32 Wis. Stat. § 59.692(7)(a).
33 2013 WI App 118, 351 Wis. 2d. 196, 839 N.W.2d 111.
34 Hegwood, 2013 WI App 118, ¶¶ 13-17.
35 Wis. Stat. §§ 281.31, 62.231, and 61.351.
36 Wis. Stat. § 91.30.
37 Wis. Stat. § 91.46.
38 Wis. Stat. §§ 91.84 and 91.86.
39 Wis. Stat. § 91.84(3).
40 Wis. Stat. § 60.62(1).
41 Wis. Stat. § 60.62(2).
42 Wis. Stat. § 60.62(3).
43 Wis. Stat. § 60.61(3).
44 Dept. of Admin, Div. of Intergov. Relations, Zoning in Cities, Villages, and Towns (Nov. 30, 2010) (last visited
February 4, 2014).
45 Id.
46 State ex rel. Skelly Oil Co. v. Common Council, City of Delafield, 58 Wis. 2d 695, 702, 207 N.W.2d 585 (1973).
47 Cushman v. City of Racine, 39 Wis. 2d 303, 306, 159 N.W.2d 67 (1968); Step Now, 2003 WI App 109, ¶ 26.
48 Snyder v. Waukesha Cnty. Zoning Bd. of Adjustment, 74 Wis. 2d 468, 477, 247 N.W.2d 98 (1976); Foresight, Inc. v. Babl, 211 Wis. 2d 599, 605, 565 N.W.2d 279 (1997).
49 See State ex rel. Ziervogel v. Washington Cnty. Bd. of Adjustment, 2004 WI 23, 269 Wis. 2d 549, 676 N.W.2d 401 (the Wisconsin Supreme Court retained the “no reasonable use” standard for use variances and re-established the “unreasonable hardship” standard for area variances).
51 2012 WI 7, 338 Wis. 2d 488, 809 N.W.2d 362.
52 Zwiefelhofer, 2012 WI 7, ¶ 28.
53 Zwiefelhofer, 2012 WI 7, ¶ 29.
54 Zwiefelhofer, 2012 WI 7, ¶ 4.
55 Zwiefelhofer, 2012 WI 7, ¶ 30.
50 Ziervogel, 2004 WI 23, ¶¶ 4-8.
56 Zwiefelhofer, 2012 WI 7, ¶ 80.
57 Id.
58 Zwiefelhofer, 2012 WI 7, ¶ 8.
59 Id.
60 Zwiefelhofer, 2012 WI 7, ¶ 9.
61 Zwiefelhofer, 2012 WI 7, ¶¶ 36-42.
62 Zwiefelhofer, 2012 WI 7, ¶ 48.
63 Zwiefelhofer, 2012 WI 7, ¶¶ 50-66.
64 Zwiefelhofer, 2012 WI 7, ¶ 70.
65 Wis. Stat. § 295.20(1)(a)1-3.
66 Wis. Stat. § 295.20(1)(c).
67 Wis. Stat. § 295.20(1)(2).
68 Wis. Admin. Code § NR 135.54.
69 Wis. Stat. § 295.20(4)(c); Wis. Admin. Code § NR 135.58(1).
70 Wis. Admin. Code § NR 135.58(3).
71 Wis. Admin. Code § NR 135.58(1).
72 The term “zoning board of appeals” applies to cities, villages, and towns acting with village powers (i.e. the town board of appeals). See Wis. Stat. §§ 62.23(7)(e), 61.35, and 60.62. The term “zoning board of adjustment” applies to counties and towns not acting with village powers (i.e. the town board of adjustment). See Wis. Stat. §§ 59.694 and 60.65.
73 Wis. Stat. § 59.694(2).
74 Wis. Stat. § 60.65(2).
75 Wis. Stat. § 62.23(7)(e)2.
76 176 Wis. 2d 14, 498 N.W.2d 842 (1993).
77 Marris, 176 Wis. 2d at 25.
78 Marris, 176 Wis. 2d at 25-31.
79 Id.
80 See Weber v. Town of Saukville, 209 Wis. 2d 214, 236-240, 562 N.W.2d 412 (1997) (excellent discussion of the requirement that a complete application for a conditional use permit for nonmetallic mining be made by the first notification of the final hearing).
81 Wis. Stat. §§ 19.81-19.98.
82 Weber, 209 Wis. 2d at 240.
83 Wis. Stat. § 19.97(3).
84 See Delta Biological Res., Inc. v. Bd. of Zoning Appeals of the City of Milwaukee, 160 Wis. 2d 905, 910- 914, 467 N.W.2d 164 (1991).
85 183 Wis.2d 1, 16-17, 515 N.W.2d 256 (1994).
86 Kraemer I, 183 Wis. 2d at 12-13.
87 Kraemer I, 183 Wis. 2d at 6 (emphasis supplied).
88 Kraemer I, 183 Wis. 2d at 10.
89 Kraemer I, 183 Wis. 2d at 11.
90 Kraemer Company, LLC v. Sauk Cnty. Bd. of Adjustment, 2001 WI App 254, 248 Wis. 2d 527, 635 N.W.2d 905.
91 Kraemer II, 2001 WI App 254, ¶ 31.
92 Kraemer II, 2001 WI App 254, ¶ 33.
93 Id.
94 Kraemer II, 2001 WI App 254, ¶ 36.
95 Klinger v. Oneida Cnty., 149 Wis. 2d 838, 843, 440 N.W.2d 348 (1989).
96 Ottman v. Town of Primrose, 2011 WI 18, ¶ 48, 332 Wis. 2d 3, 796 N.W.2d 411.
97 Clark v. Waupaca Cnty. Bd. of Adjustment, 186 Wis. 2d 300, 304-05, 519 N.W.2d 782 (Ct. App. 1994).
98 2008 WI App 17, 307 Wis. 2d 445, 745 N.W.2d 89.
99 Beverly Materials, 2008 WI App 17, ¶¶ 33-37.
100 Beverly Materials, 2008 WI App 17, ¶ 34.
101 Beverly Materials, 2008 WI App 17, ¶ 37.
102 Wis. Stat. § 62.23(8).
103 Wis. Stat. § 62.23(8).
104 Wis. Stat. § 59.69(11).
105 Wis. Stat. § 60.61(6).
106 Wis. Stat. § 60.61(6).
107 Town of Delafield v. Winkelman, 2004 WI 17, ¶ 30, 269 Wis. 2d 109, 675 N.W.2d 470
108 Winkelman, 2004 WI at ¶ 37; Vill. of Hobart v. Brown Cnty., 2005 WI 78, ¶ 32, 281 Wis. 2d 628, 698 N.W.2d 83.
109 Vill. of Hobart, 2005 WI 78, ¶ 32-33.
110 Vill. of Hobart, 2005 WI 78, ¶ 34 (citing Forest Cnty. v. Goode, 219 Wis. 2d 654, 684, 579 N.W.2d 715
111 Vill. of Hobart, 2005 WI 78, ¶ 30.
112 Vill. of Hobart, 2005 WI at ¶ 34 (citing Goode, 219 Wis.2d at 669).

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