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  • November 07, 2018

    Municipal Zoning Authority Challenged by Building Permits

    In early 2018, the Wisconsin Supreme Court expanded the scope of the Building Permit Rule to encompass all land included in a building permit application, not just the buildings themselves. Adam Voskuil discusses what led to that decision and its potential effects moving forward.

    Adam Voskuil

    Many community members consider regulation of land use a crucial power used by their local government officials.

    Zoning ordinances are tied to police powers, which allow for local regulation in order to protect public health, safety, and welfare. A town does not inherently have the power to enact zoning ordinances; it is a process defined by statute.1 The town must first receive village powers from its electors. Once the town receives those powers, the board can enact zoning ordinances.

    A recent Wisconsin Supreme Court decision addressed the interplay between zoning ordinances and vested rights for landowners and developers. The decision seemingly increased the rights available to prospective developers seeking to build in rural areas that may not have fully implemented zoning ordinances.

    Golden Sands Dairy v. Town of Saratoga

    Golden Sands Dairy LLC v. Town of Saratoga analyzed the vested rights of an applicant for a building permit that conflicted with newly enacted zoning ordinances.2 To better understand the decision, a brief review of the facts is helpful.

    Zoning History
    Golden Sands Dairy is a proposed concentrated animal feeding operation located in Wood County. Golden Sands filed a building permit application in June 2012, proposing to build on 92 acres of a 6,388-acre plot of land.

    Adam Voskuil Adam Voskuil, Minnesota 2017, is a staff attorney at the Dane County Circuit Court. He has focused on Wisconsin environmental law as a volunteer for Midwest Environmental Advocates, Inc., for the past three years.

    In their building permit application, Golden Sands included a map of the proposed structures as well as shaded areas that indicated the anticipated farmland. This map was not necessary for the building permit application, which required only a description of the proposed building site. At the time they submitted their building permit application, there were no significant land use restrictions at the city or county level.

    On Sept. 24, 2012, Saratoga was granted village powers, and on Oct. 17, 2012, the town passed a permanent zoning ordinance stating that only 2 percent of the town was zoned for agricultural use. None of Golden Sand’s proposed agricultural land fell within the area zoned as agricultural use.

    Golden Sands filed suit asking the reviewing court to “declare that Golden Sands may use all the land specifically identified in the [Building Permit] Application for agricultural purposes.”3

    Building Permit Rule
    The Building Permit Rule is a bright line rule that creates a vested right to construct buildings consistent with the zoning regulations in place at the time an application is filed.4 The Building Permit Rule is a minority rule that creates rights early in the permitting process.5

    The majority of jurisdictions require not only the issuance of the building permit, but also substantial construction and/or expenditures before rights vest. The definition of substantial construction or expenditure varies by jurisdiction; however, the general understanding is that the owner needs to rely on the building permit and invest some time, money, and/or effort into the construction.

    Roughly 1 percent of Golden Sand’s total land is covered by building structures. While those structures received vested rights based on the time the permit was filed, the Building Permit Rule did not naturally extend to the land use of the remaining land.

    The question then is what rights does a landowner have to their land use when new zoning regulations are implemented?

    The Decision
    The Wisconsin Supreme Court noted that the intent of the Building Permit Rule is “predictability for land owners, purchasers, developers[,] and the courts.”6 The court further noted that Wisconsin prefers the bright-line rule, because it informs all parties of what rights they have and when those rights vest.7

    Relying on the stated purpose, the court found that the rule naturally extends beyond the structures and to the associated land uses. By extending the Building Permit Rule to land use, the court reasoned that there is a predicable result for all parties. Landowners and developers may now rely on zoning ordinances at the time the complete application is filed; they can then make expenditures and develop without fear of changing standards or requirements.

    Golden Sands provided a map during the application process which detailed the land at issue and its anticipated use. The map was unnecessary for the building permit application, and the original application described only the seven buildings located on 98 acres. Nonetheless, the court found that the map provided an “objective means to determine the specific land Golden Sands intends to use in order to build structures as well as . . . maintain the land it will use for agricultural purposes.”8

    The court did not define what constitutes an adequate submission to create vested land use rights, but it determined that there was sufficient information here to afford Golden Sands those rights.

    Wis. Stat. Section 66.10015

    The Wisconsin Legislature enacted Wis. Stat. section 66.10015 (Limitation on development regulation authority and down zoning) after Golden Sands began. The supreme court was clear that it did not consider the statute’s applicability in deciding the case.

    However, the statute will likely control similar cases going forward. The statute states in relevant part:

    (a) [I]f a person has submitted an application for an approval, the political subdivision shall approve, deny, or conditionally approve the application solely based on existing requirements ... . An application is filed under this section on the date that the political subdivision receives the application.
    (b) If a project requires more than one approval or approvals from one or more political subdivisions and the applicant identifies the full scope of the project at the time of filing the application for the first approval required for the project, the existing requirements applicable in each political subdivision at the time of filing the application for the first approval required for the project shall be applicable to all subsequent approvals required for the project.9

    This statute favors the court’s decision, noting that the existing requirements at the time an application is submitted dictate the ordinances or standards placed on the applicant.

    Under this statute, the pivotal moment when determining applicable zoning requirements is the submission of the first complete application. Assuming the full scope of the project is identified in the initial application, the relevant standards are set at that date.

    Remaining Uncertainty

    The key emphasis in Golden Sands was the need for predictability. However, even with the Golden Sands decision and section 66.10015, there are questions regarding when rights vest for land use.

    The court never fully defined what constitutes an adequate submission to fulfill the Golden Sands Rule expansion. Justice Shirley Abrahamson noted in her dissent that the expansion of the Building Permit Rule will now require a case-by-case analysis to determine whether an application provides enough specificity of the land and its anticipated use to ensure vested rights in the entire property.10 This issue was not resolved by section 66.10015, which requires only that the applicant identify the “full scope of the project.”

    There is no defined policy under the expanded rule, other than that a building permit applicant must specifically identify the land.11 Lower courts will be left to determine whether the materials sufficiently identified the land (under Golden Sands) or indicated the full scope of the project (under section 66.10015).

    Without a more definitive analysis of application requirements, the court’s decision may have decreased the predictability of the Building Permit Rule.

    Conclusion: A Shift of Autonomy

    Moving forward, both municipalities and building permit applicants need to be proactive and transparent. Incoming developers seeking to meet the Building Permit Rule extension requirements should provide overarching schematics that encompass not only the buildings they are seeking permits for, but maps and anticipated uses for the rest of their land.

    Communities with village powers should consider land use and zoning policies before being confronted with building permit applications.

    To an extent, the Building Permit Rule and the Golden Sands extension make sense. Businesses invest time and money into acquiring land, planning development, and constructing buildings. It would seem unfair or illogical to allow municipalities to ‘move the goal posts’ for those companies that have invested in the area.

    At the same time, this ruling shifts a significant amount of autonomy away from municipalities. Municipalities can no longer address community concerns as they arise; they must anticipate those concerns and zone accordingly.

    Finally, the extension creates uncertainty by creating a path to a vested right in land use without fully defining what is necessary to ensure that vested right.


    1 See Wis. Stat. sections 60.10(2) and 60.22(3).

    2 2018 WI 61, 381 Wis. 2d 704, 913 N.W.2d 118.

    3 Id. at ¶12.

    4 American Law of Zoning § 32:3.

    5 Id.

    6 Golden Sands Dairy, 2018 WI 61 at ¶24.

    7 Id. at ¶26.

    8 Id. at ¶31.

    9 Wis. Stat. §§ 66.10015(2)(a) and (b).

    10 Golden Sands Dairy, 2018 WI 61 at ¶37 (Abrahamson, J., dissenting).

    11 Id. ¶46 (Abrahamson, J., dissenting).

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