An Introduction to Zoning for Towns

This article contains some basic information regarding town zoning laws in Wisconsin. Click here to view a more complete version.

Zoning is the regulation of the use of land. With many exceptions and usually subject to county approval, a town may enact its own zoning ordinances or adopt county zoning. Zoning is the most effective power that a local municipality has to regulate the location of industrial, agricultural and potentially incompatible or detrimental uses. It is the most effective power to regulate hours of operation, noise, dust, lighting, to require financial assurances, to protect property values, and to protect the health, safety and welfare of the town.

Town Zoning Options

Assuming a town currently has no zoning, in Wisconsin, a town has three choices:

  • Remain unzoned: For the town to remain unzoned, it need take no further action.
  • Adopt county zoning: town board must pass a resolution.
  • Adopt its own town zoning pursuant to Wisconsin Statute § 60.61 (only in counties without general county zoning) or Wis. Stat. § 60.62 (with village powers, subject to county approval).

Zoning Authority – The “Police Power”

The authority for local government to zone – that is, to regulate the use of land – comes from the state. Counties, cities, villages and, with exceptions towns, have statutory authority to create and enforce zoning.

Private Property and Public Welfare

Zoning entails balancing two policies: protection of private property rights and protection of the public. While there is some potential for conflict, long-range planning and zoning of various uses is a common, well-established, and generally well-accepted municipal power intended to promote the public welfare. Zoning ordinances and amendments and the application of zoning ordinances must be based on the public interest and must be reasonable. While zoning necessarily implicates some restriction on private property rights, zoning is also designed to protect property values and protect private investment in land by promoting the most appropriate use of land and by keeping incompatible uses and structures apart.

Zoning Ordinances

A zoning ordinance consists of two major components – a map and the text.

While there is no rule, and each municipality should have its own local rationale for defining districts, the following are examples of some typical zoning districts:

  • Industrial
  • Commercial/Business – sometimes further divided
  • Residential
  • Agricultural
  • Conservancy
  • Historic
  • Overlay Districts/Special Zoning
  • Extraterritorial Zoning

Municipalities may sometimes apply zoning to unincorporated land outside their borders, which is called extraterritorial zoning. Cities with populations of 10,000 or greater may be able to apply extraterritorial zoning within a 3-mile radius of their borders, while all villages and cities with less than 10,000 may be able to apply extraterritorial zoning within 1½ miles.

Uses

Generally, a zoning ordinance permits certain uses, allows some uses on a conditional or special exception basis, and prohibits other uses. For example, a residential district might allow only single family homes and maybe churches and parks. Two-family homes might be conditional uses – allowed only with a conditional use permit. All other uses would be prohibited.

Conditional Uses-Special Exceptions

Aside from uses that are simply allowed in a given district, municipal ordinances will often allow uses on a conditional basis, which are called conditional uses or special exceptions. In general, conditional uses or special exceptions have the same meaning (unless a particular ordinance gives them separate meanings).

For example, a convenience store may be considered a compatible use in a residential area under some circumstances. Making a convenience store a conditional use in a residential district would give the municipality discretion to allow the convenience store but with restrictions on items like lightning, signage or number of parking spaces. The municipality sets the conditions on each individual project, without the district simply allowing any (or as many) convenience stores as anyone would like to build.

Legal Nonconforming Uses and Nonconforming Structures/Buildings

Municipalities create zoning districts permitting and prohibiting various uses, such as residential, commercial, and industrial. Most municipalities also implement dimensional regulations, such as setbacks, heights and minimum widths and lot sizes. Uses and structures that do not meet these use and dimensional restrictions are called nonconforming uses and nonconforming structures/buildings. Usually uses and structures in existence at the time a zoning ordinance is enacted are allowed to continue for their useful life.

Alteration and Rebuilding Nonconforming Structures

Historically, the long term goal of zoning has been the eventual elimination of nonconforming uses and structures. Arguably, this goal was recently changed with the passage of Act 170 which provides a number of restrictions on the ability of units of local government to restrict the alteration, repair, rebuilding and maintenance of nonconforming structures.

Variance

A variance allows a prohibited use (unlike a conditional use, which is a permitted use with situationally unique restrictions).

Variances fall into two general categories:

  • Use Variance
  • Area (Dimensional) Variance

These categories somewhat mirror the nonconforming “use” and “structure” distinction. A use variance allows a use that is otherwise prohibited – for example, a prohibited retail use in a residential district. An area variance allows an exception from a dimensional requirement, for example, allowing a building to be closer to a property line than is normally allowed.

Conclusion

To learn more about town zoning, read a more detailed article here.

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