Zoning Basics: Nonconformance; Conditional Uses & Special Exceptions; Variances.

Municipal Law Alert, October 2007

Overview

There is considerable overlap and interaction among the zoning concepts listed above, both in their legal framework and their application in the real world. This can lead to confusion, misunderstanding and sometimes costly lawsuits between members of the public and municipalities.

The goal of this article is to help the reader understand these terms and concepts and clarify some of the relevant Wisconsin legislation and case law.

Zoning implicates two distinct public policies:

  • individual property rights; and
  • public safety, health, and general welfare.

While these public policy objectives are often complementary, they do sometimes conflict. The act of zoning necessarily limits what a property owner can do with his or her property. On the other hand, property owners in a residential district would support a restriction that prevents a slaughterhouse or waste disposal facility being located in their neighborhood. Thus, property owners are generally in favor of some restrictions on property rights.

Despite some inevitable conflict, long range planning and zoning are legitimate and well-established municipal powers intended to promote the community’s health, safety and general welfare.

Nonconforming Uses & Nonconforming Structures

Most municipalities create zoning districts permitting and prohibiting various uses. Common examples are residential, commercial and industrial. Sometimes there are subcategories within the broad areas. Most municipalities implement dimensional regulations, such as setbacks, minimum lot sizes and height restrictions.

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I’ve always heard fireworks are illegal in Wisconsin. Then why are there so many fireworks stores in this state?

Municipal Law Alert, October 2007

The quick and simple answer to this frequent question: because it is a local enforcement issue. This means that municipalities – cities, villages or towns – have the responsibility to enforce the law on this issue. Some municipalities choose to do so, and others take a “hands off” approach and allow fireworks stores to conduct business within their boundaries. Whether the “hands off” approach is advisable is a question that should be given careful consideration by municipal officials.

The Law: Wisconsin Statute Section 167.10

Recommended reading for those interested in this issue is Wisconsin Statute section 167.10, entitled “Regulation of fireworks.” It is a quick and easy read and will make it clear that fireworks are intended to be a highly regulated commodity in Wisconsin. The term “fireworks” is broadly defined under Wisconsin law to essentially include every item one would commonly think of in regard to that term except sparklers, caps, and toy snakes. This means that firecrackers, bottle rockets, and nearly all of the other explosive items commonly found at fireworks retailers are intended to be included within the strict regulations of section 167.10.

Briefly summarized (readers should consult the statute for specific details), section 167.10 states that no person may use or possess fireworks without a user’s

permit from the mayor, president, or chairperson of the city, village or town in which the use is to occur. The “user’s permit” may only be issued to the following:

  1. a public authority;
  2. a fair association;
  3. an amusement park;
  4. a park board;
  5. a civic organization;
  6. a group of resident or nonresident individuals; and
  7. an agricultural producer for the protection of crops.

The intent behind number “6” above – a “group of resident or nonresident individuals” – was meant to encompass a group holding an organized formal gathering, such as a class reunion, wedding or anniversary party.

The permit must contain the following information:

  1. name and address of the permit holder;
  2. the date on and after which fireworks may be purchased;
  3. the kind and quantity of fireworks which may be purchased;
  4. the date and location of permitted use; and
  5. other special conditions required by local ordinance.

A copy of the fireworks permit must be given to the municipal fire or law enforcement official at least two days before the date of authorized use. The municipal entity is further empowered to require an indemnity bond or proof of liability insurance as part of the permit.

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Pit Bull Ordinance: Should A Municipality Have One?

Municipal Law Alert, October 2007

Dog attacks have recently received a great deal of media attention, and pit bulls have taken center stage in the controversy. Not surprisingly, pit bull ordinances are a hot topic in local municipalities. Pit bulls are commonly depicted as being different than other dog breeds, bred to be violent and designed to inflict maximum damage on their victims. However, according to a study published in the Journal of the American Veterinary Medical Association (JAVMA), pit bulls are only one of twenty-five dog breeds responsible for fatal attacks in the United States. A frequent question is: should a municipality ban the breed or the deed?

Pit bulls were originally bred to herd bulls in England. Their job was to subdue a bull that attempted to gore a farmer. A dog would typically subdue the bull by biting it on the nose and holding on until it stopped fighting. The dogs were bred to have powerful jaws and muscular bodies to endure the bull’s thrashing during this violent struggle. These same historical traits make pit bulls successful dog fighters in modern times. Dog fighting controversies, such as the one surrounding National Football League quarterback Michael Vick, only fuel discussion and concern over pit bull regulation.

Pit bulls’ powerful jaws have led to widespread belief that pit bulls have so-called “locking jaws” that cannot be disengaged even after the animal is tranquilized or killed. However, Dr. I. Lehr Brisbin and other experts testified in a recent Ohio lawsuit, City of Toledo v. Tellings, that pit bulls do not have locking jaws. Evidence gathered from “actual dog dissections and measurement of their skulls … demonstrated that pit bull jaw muscles and bone structure are the same as other similarly sized dogs.” The myths about the pit bull’s bite likely stem from the breed’s trait of staying committed to a task, even when enduring severe pain and discomfort.

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