114.136 Airport and spaceport approach protection.

(1) Powers of municipalities.

(a) Any county, city, village or town that is the owner of a site for an airport or spaceport which has been approved for such purpose by the appropriate agencies of the state and the federal government may protect the aerial approaches to such site by ordinance regulating, restricting and determining the use, location, height, number of stories and size of buildings and structures and objects of natural growth in the vicinity of such site and may divide the territory to be protected into several areas and impose different regulations and restrictions with respect to each area. The provisions of such ordinance shall be effective whether the site and the lands affected by such ordinance are located within or without the limits of such county, city, village or town, and whether or not such buildings, structures and objects of natural growth are in existence on the effective date of the ordinance. Such regulations, restrictions and determinations are declared to be for the purpose of promoting the public safety, welfare and convenience, and may be adopted, enforced and administered without the consent of any other governing body. Any ordinance adopted under this section may be amended from time to time in the same manner as is provided for the adoption of the original ordinance in sub. (2). The authority granted in this section shall be independent and exclusive of any other authority granted in the statutes.

(b) When an airport or spaceport site is owned jointly by 2 or more units of government, such ordinance may be adopted by joint action of the governing bodies of such units. In such case, such governing bodies shall meet jointly to select a joint commission consisting of one member from each governing body selected by that governing body and, if there be 2, the members so selected shall elect a third member. Such joint commission shall elect a chairperson and a secretary, and shall have authority to formulate a tentative ordinance and hold public hearings as provided in sub. (2). At least 15 days written notice of the meeting to select a joint commission shall be given to each governing body by filing a copy of such written notice with the clerk thereof. Such notice may be given on the initiative of one such governing body or jointly by more than one. The governing bodies that attend such meeting may proceed jointly. If one attends, or if only one favors an ordinance, it may proceed alone without appointing a commission, but no ordinance applicable to a jointly owned airport or spaceport shall be adopted by a governing body acting alone unless it has given notice of meeting to select a joint commission as provided by this subsection, and such ordinance shall be as effective as if adopted by the joint bodies.

(c) As an alternative to the procedure for the appointment of members of the joint commission provided in par. (b), the governing bodies of the units of government which jointly own an airport or spaceport site may by separate resolution of each governing body designate an existing subunit of any one of the governing bodies to act as the joint commission. In such case, the designated subunit shall elect a chairperson and secretary, formulate a tentative ordinance and hold public hearings as provided in sub. (2). No tentative ordinance formulated under this paragraph is effective unless it is adopted by all of the governing bodies of the units of government which jointly own the airport or spaceport site.

(d) An ordinance adopted under par. (b) or (c) may be amended in the same manner as is provided for the adoption of the original ordinance in par. (b) or (c).

(2) Formulation of ordinance, public hearing.

(a) Except as provided by sub. (1) (b) or (c), a committee of the governing body of the county, city, village, or town that owns the airport or spaceport site shall formulate a tentative ordinance under sub. (1) and hold a public hearing or hearings thereon in some public place within the county, city, village, or town. Notice of the hearings shall be given by publication of a class 3 notice, under ch. 985, in the area affected by the proposed ordinance.

(b)

1. The regulations, restrictions and determinations shall include, among other things, provisions for the limitation of the height of buildings, structures and objects of natural growth located not more than 3 miles from the boundaries of the airport site or located not more than 5 miles from the boundaries of the spaceport site. Such regulations, restrictions and determinations shall specify the maximum permissible height of buildings, structures and objects of natural growth and may specify such maximum permissible height as a ratio between the permissible maximum height of the building, structure or object of natural growth above the level of the airport or spaceport site and its distance from the nearest point on the boundary of the airport or spaceport site.

2. For the purposes of this section, buildings, structures and objects of natural growth shall not be restricted to a height above the level of the airport site which is less than one-thirtieth of its distance from the boundary of the airport site in the case of class I and II airports as classified by the civil aeronautics administration of the United States department of commerce and one-fiftieth of its distance from the boundary of the airport in the case of class III and larger airports as classified by said administration. Provided, however, that a building, structure, or object of natural growth within 3 miles of the airport site may be restricted to a height of 150 feet above the airport level, which is defined as the lowest point planned on any runway.

(c) Should a greater restriction be deemed necessary for the proper protection of any part of the area affected, such greater restriction shall be secured by purchase or by the exercise of the right of eminent domain in the manner provided by ch. 32.

(d) The height restrictions shall not apply to legal fences or to farm crops which are cut at least once each year.

(3) Nonconforming uses. The lawful use of land, buildings and structures existing at the time of the adoption or amendment of any ordinance under the authority of this section may be continued, although such use does not conform with the provisions of the ordinance. The expansion or enlargement of a nonconforming use shall be in conformity with the ordinance. The governing body of the owner of the airport or spaceport site may remove such nonconforming use or acquire the necessary air right over the same by purchase or exercise of the right of eminent domain in the manner provided by ch. 32.

(4) Board of appeals.

(a) Any ordinance enacted under this section shall provide for a board of appeals. If the county, city, village or town which is the owner of the airport or spaceport has enacted a zoning ordinance under provision of law other than this section, the board of adjustment or board of appeals set up by that ordinance shall also function as the board of appeals under the ordinance enacted under this section.

(b) If there is no such board of appeals or board of adjustment, any regulations adopted under this section shall provide for a board of appeals. Where the airport or spaceport is owned jointly, the ordinance shall provide for a joint board of appeals. Such board shall be constituted and have all the powers, duties and functions as provided in s. 62.23 (7) (e), but not more than 2 members of such board shall be owners or occupants of the area affected by the ordinance.

(5) Enforcement. The governing body of the county, city, village or town owning the airport or spaceport site may provide for the enforcement of any ordinance or regulations enacted pursuant to this section. Such enforcement may be by a system of permits or any other appropriate method. The governing body enacting the ordinance may provide for the punishment of a violation of the ordinance by fine or imprisonment, or both.

History: 1979 c. 221; 1985 a. 29; 1993 a. 184, 246; 2005 a. 335; 2013 a. 297.

This section is a limited grant of power to carry out a valid state police power to promote public safety along airport approaches. It does not violate the “one man, one vote" principle. Schmidt v. City of Kenosha, 214 Wis. 2d 527, 571 N.W.2d 892 (Ct. App. 1997), 96-2380.

The authority to regulate use and location of structures within the vicinity of airports is broad enough to encompass a restriction limiting individual residential units to a minimum of one acre. The restriction does not violate equal protection. Northwest Properties v. Outagamie County, 223 Wis. 2d 483, 589 N.W.2d 683 (Ct. App. 1998), 97-3653.