62 Op. Att’y Gen. 139 (1973)


CHARLES A. POLLEX, District Attorney, Adams County.

Attorney General of Wisconsin — Opinion.
July 16, 1973.

County BoardZoningMunicipalities — A town board, granted village powers under sec. 60.18 (12), Stats., is not required to petition its county board prior to adopting a town zoning ordinance. Sec. 60.74 (1) (am) and (7), Stats. However, where the county has adopted a zoning ordinance under sec. 59.97, Stats., such town zoning ordinance will not become effective and cannot be enforced unless and until the county takes positive action approving such town ordinance.

ROBERT W. WARREN, Attorney General

CHARLES A. POLLEX, District Attorney, Adams County

You have asked whether a town board, which is granted village powers by resolution pursuant to sec. 60.18 (12), Stats., must petition a county board in accordance with sec. 60.74 (1) (am),

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Stats., prior to adopting a town zoning ordinance. In the event sec. 60.74 (1) (am), Stats., does require such petition, you further inquire whether the enforceability of a town zoning ordinance is affected by the failure of such a town to so petition the county board.

Section 60.74 (1) (a), Stats., authorizes towns to enact zoning ordinances in counties which have not adopted a county zoning ordinance pursuant to sec. 59.97, Stats. Section 60.74 (1) (am), Stats., further provides in part as follows:

“(am) A town board may not proceed as provided in this section unless it petitions the county board, at any regular or special meeting to adopt a county zoning ordinance as provided by s. 59.97. * * *”

However, sec. 60.74 (7), Stats., provides that:

“Town boards granted village powers by resolution adopted pursuant to section 60.18 (12) shall have power to adopt town zoning ordinances in the manner provided in section 61.35
notwithstanding any provision of this section or section 60.75 * * *.”

Subsection (7) of sec. 60.74, Stats., appears fully dispositive of your first question. It is a clear grant of authority which is intended to control over the remaining provisions of the section. Hence, your first question must be answered in the negative.

Although my answer to your first question renders your second inquiry moot, it should be pointed out that towns adopting zoning ordinances under sec. 60.74 (7), Stats., are subject to the following limitations, set forth in the latter subsection:

“* * * provided, however, that in counties which have adopted a zoning ordinance under section 59.97 the exercise of the power to adopt a town zoning ordinance shall be subject to approval by a referendum vote of the electors of the town held at the time of any regular annual town meeting. Any zoning ordinance adopted by a town board and any amendment thereof under this subsection shall be subject to the approval of the county board in counties having a county zoning ordinance.”

Under this statutory language, it is clear that where the county has adopted a zoning ordinance under sec. 59.97, Stats., a zoning

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ordinance adopted by one of its towns, under sec. 60.74 (7), Stats., will not become effective and cannot be enforced unless and until the county board of such county takes positive action approving such town zoning ordinance.

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