02-0902 Town of Cedarburg v. Shewczyk

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“Moreover, Wis. Stat. § 62.23(7)(a) vests a municipality with the authority to enact ordinances, resolutions or regulations related to the location and use of buildings. The statute easily incorporates the granting or denial of conditional use permits. In fact, in subsec. (7)(e) of this statute, municipalities are empowered to make special exceptions to the terms of a zoning ordinance. The conditional use permit issued to the Shewczyks falls under this statutory provision. This provision gives the Town the general authority to enact its CUP under the Zoning Chapter of its Code of Ordinances.

“In this case, the CUP was a special limited conditional use permit under sec. 10-1-11 of the Town’s zoning code. This section of the zoning code provides: ‘[l]imited conditional uses authorized by Town Board resolution shall be established for a period of time to a time certain or until a future happening or event at which the same shall terminate.’ Town of Cedarburg, Wis., Ordinance § 10-1-11(c)(4)a. This section further provides: ‘Limited conditional uses authorized by the Town Board shall not be subject to substitution with other conditional uses, either regular or limited, whether similar type or not, without Board approval ….’ Town of Cedarburg, Wis., Ordinance § 10-1-11(c)(4)b. In short, conditional use permits are governed by ordinances within the Town’s Zoning Chapter of the Code of Ordinances. Thus, noncompliance with the terms of a CUP is tantamount to noncompliance with a Town ordinance. …

“Furthermore, the CUP is not a contract because it was not bargained for. Rather, the CUP was issued under an ordinance. The law provides that the Town has discretion to issue such a permit and the right to seek enforcement of it. The circuit court did not err when it granted the Town’s request of an injunction and forfeitures for the Shewczyks’ noncompliance with the CUP issued under the zoning ordinance.”

Order affirmed.

Recommended for publication in the official reports.

Dist II, Ozaukee County, Wolfgram, J., Anderson, J.

Attorneys:

For Appellant: Mark S. Schmitt, Grafton

For Respondent: Ralph J. Huiras, Port Washington; Brad M. Hoeft, Port Washington