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2017 ACT 67 Updates

2017 Wisconsin Act 67 adds new sections to the Wisconsin Statutes governing the issuance of conditional use permits to the general zoning enabling laws for cities, villages, towns, and counties.1 Conditional Uses After Act 67

It also applies a “substantial evidence” standard for three aspects of conditional use permit (CUP) practice.

ACT 67 Conditional Uses and the Substantial Evidence Standard

What is a conditional use?

A conditional use, also known as a special exception in Wisconsin case law, is any exception expressly listed in the zoning ordinance including land uses or dimensional changes. A conditional use is not suited to all locations in a zoning district, but may be allowed in some locations if it meets specific conditions set out in the zoning ordinance and is not contradictory to the ordinance’s general purpose statement. These conditions generally relate to site suitability and compatibility with neighboring land uses due to noise, odor, traffic, and other factors. In short, conditional uses must be custom tailored to a specific location. A conditional use must be listed as such in the zoning ordinance, along with the standards and conditions which it must meet.

Conditional uses in exclusive agricultural districts are limited to agricultural and other uses determined to be consistent with agricultural use and which require location in the district.

The decision to grant or deny a conditional use permit is discretionary.  In other words, a conditional use permit may be denied if the project cannot be tailored to a site to meet the specific conditional use standards listed in the ordinance and general purposes of the ordinance.

Who decides whether to grant conditional uses?

The local governing body determines by ordinance whether the zoning board, the governing body, or the planning commission/committee will decide conditional use permits. Once this is specified by local ordinance, a community may not alternate assignment of conditional uses among these bodies unless the ordinance is specifically amended to provide authority to a different body. This avoids arbitrary or politically driven assignment of conditional use permits to different decision-making bodies.

What conditions may be attached to a conditional use permit?

Performance and design standards

General performance standards and specific design standards for approval of conditional uses may be provided by local ordinance.2 An applicant must demonstrate that the proposed project complies with each of the standards. The permit review body may impose additional conditions on development consistent with standards for approval and ordinance objectives. The review body may require an applicant to develop a project plan to accomplish specified performance standards (e.g., meet with land conservation department staff to develop an erosion control plan that contains all sediment on the site). Permit conditions that are routinely imposed for similar projects should be adopted by ordinance as minimum standards for approval of conditional uses. Incorporating standards in an ordinance allows permit applicants to anticipate and plan for design, location, and construction requirements.

1Act 67 creates section 62.23 (7) (de) for cities, villages, and towns exercising zoning under village powers, section 60.61 (4e) for towns exercising zoning without village powers, and section 59.69 (5e) for counties. 2Kraemer & Sons v. Sauk County Bd. of Adjustment, 183 Wis. 2d 1, 515 N.W.2d 256 (1994)

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