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New Court Decisions Regarding Conditional Use Permits

By Lynn Markham, Land Use Specialist, CLUE

The Wisconsin Supreme Court and Courts of Appeal recently issued three decisions addressing conditional use permits (CUPs). This article describes the key points for local governments from these cases. Visit the websites for the full text of the Supreme Court and Court of Appeals decisions. See the Spring 2004 Tracker for a primer on CUPs.

As a brief background, review of CUP applications is assigned by ordinance to the planning and zoning committee/commission, the zoning board of adjustment/appeals or the governing body (county, village or town board or city council). Figure 1 illustrates which county government bodies can grant CUPs and where those decisions may be appealed.  

Conditional use permit (CUP): a use listed in the zoning ordinance for a specific location which is not suited to all locations in a zoning district but may be authorized if adaptable to the limitations of a particular site and adjacent uses. Synonymous with the term �special exception� under Wisconsin law.

Figure 1: Understanding who decides conditional use permits and appeals of those decisions

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1. What standards do boards of adjustment (BOAs) use when they review conditional use decisions made by the planning/zoning committee?

Answer: When reviewing a conditional use permit decision by the county zoning committee, a county BOA has the authority to conduct a de novo review of the record and substitute its judgment for the county zoning committee�s judgment. The BOA may take new evidence. This definition of the BOA�s authority is stated in Osterhues v. Board of Adjustment for Washburn County, 2005 WI 92 which reverses the 2004 Court of Appeals decision reported in the Spring 2004 Tracker.

Based on all of the evidence, the BOA decides whether to grant the CUP. We recommend the BOA use the following standards when reviewing CUP decisions originally made by the zoning committee:

  • Does the ordinance assign CUP decisions to the zoning committee? Is the conditional use in question listed in the ordinance for this location?

  • Were proper procedures followed?

  • Were the proper standards from the ordinance used?

  • Is there evidence that is new and relevant to ordinance standards?

  • Is there evidence in the record supporting the decision the zoning committee reached? The BOA may take additional evidence.

The BOA may reverse, affirm or modify a zoning committee decision, but does not have authority to remand a decision to the zoning committee.

2. Can a town board of adjustment issue a conditional use permit?

Answer: If a town (or county) board provides in its zoning ordinance that its BOA may grant CUPs, then � and not otherwise � does the BOA have the power to do so. This avoids arbitrary or politically driven assignment of CUPs to different decision-making bodies. Magnolia Township and Western Rock County Citizens Against Factory Farming v. Town of Magnolia. 2005 WI App 119

3. Can revoking a conditional use permit be considered an unconstitutional taking without just compensation?

Answer: A CUP is a type of zoning designation rather than property so revoking a CUP is not a taking of property. Rainbow Springs Golf Company, Inc. v. Waukesha County. 2005 WI App 163. n

 

These legal updates were reviewed for form and content by JoAnne Kloppenburg from the Wisconsin Department of Justice. Any errors, mistakes and omissions remain the responsibility of the authors.

 

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