Wisconsin’s Act 67 Could be a Game-Changer For Conditional Use Permit Applicants

The conditional use permitting process received a significant overhaul by the Wisconsin Legislature last year in ways that should be welcomed by property owners seeking such permits. Wisconsin Act 67 (Act 67), effective Nov. 28, 2017, mandates that a conditional use permit (CUP) sought from any local zoning authority – be it county, city, village or town – must issue where the applicant meets or agrees to meet standards specified in a local ordinance. The new law also requires “substantial evidence” in the record to support a denial of the CUP and specifies that the “personal preference” or “speculation” of a person opposed to the CUP is not substantial evidence. The overall impact of Act 67 will be to impose more measurable standards upon local government decision making to ensure the exercise of reasonable discretion in granting or denying CUPs.

Before Act 67 was adopted, Wisconsin’s statutes included no definition of a CUP, stated no standards for substantial evidence sufficient to support denial of a CUP and provided no right of an applicant to receive a CUP if all local standards were met.

Act 67 defines “conditional use” as “a use allowed under a conditional use permit, special exception, or other special zoning permission issued by a [local zoning authority], but does not include a variance.” “Substantial evidence” under the law “means facts and information, other than merely personal preferences or speculation, directly pertaining to the requirements and conditions an applicant must meet to obtain a conditional use permit and that reasonable persons would accept in support of a conclusion.” Additionally, there is now a statutory right for the applicant to receive the CUP, “If an applicant … meets or agrees to meet all of the requirements and conditions specified in the … ordinance or those imposed by the [zoning authority] …” Under these circumstances, the law directs that the zoning authority “shall grant the conditional use permit.”

Further guidance in Act 67 directs that conditions imposed by the zoning authority “must be reasonable and, to the extent practicable, measurable and may include conditions such as the permit’s duration, transfer, or renewal.”

The new CUP standards codified in Act 67 provide new potential bases for judicially challenging the denial of a CUP in Wisconsin. For example:

• If the record shows that the applicant is able to meet or agrees to meet all requirements and standards, but is denied the CUP, a challenge would likely be successful.
• If a CUP denial is based on public comments in opposition to the permit that express nothing more than the personal opinions or preferences of the opponents or speculation about negative consequences of the proposed use, then a challenge would likely be successful.
• If a CUP is denied based on a general finding that the proposed use is contrary to the public welfare, then the denial would be susceptible to a challenge that the finding is vague and unreasonable, given that the law in Wisconsin now requires “reasonable and … measurable” conditions and further requires facts and information “directly pertaining to the requirements and conditions an applicant must meet …”

Wisconsin’s new CUP law is sure to spawn new judicial challenges and it will be interesting to see how Wisconsin’s courts interpret and apply the new law when faced with a challenge to a CUP denial.

 

Note: The provisions of Act 67 are codified in Wis. Stat. § 59.69(5e) for counties, Wis. Stat. § 62.23(7)(de) for cities and villages, and Wis. Stat. § 60.61(4e) for towns.