Strategies for Conditional Use Permits
Attorney Mary Beth Peranteau offered helpful guidance in her article, “Conditional Use Permits: Strategies for Local Zoning Proceedings” (Wisconsin Lawyer, Sept. 2015). Permitting of conditional uses is a rather murky area involving both legal and lobbying talents and she did an excellent job of pointing out that duality and the importance of counsel in dealing with both.
Ms. Peranteau’s comments apply in a broader context, as many land use and municipal permitting have similar considerations. The standards and their statutory basis vary but the strategies are pretty much the same.
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On the conditional use issue specifically, Wisconsin case law requires that there be at least one permitted use in each zoning category. This prevents a municipality from requiring a conditional use permit for any-use real estate. It also raises the point that in this permitting process, there is a third interest at work: the proponent of the proposed use, the opponent of that use, and the municipality, which may wish to steer development in a particular area to its preferred use. This emphasizes the importance of the lobbying (and in connection with that the understanding of the municipality’s goals).
Another defensive technique not explicitly covered in Ms. Peranteau’s article is cost. By driving up expenses (often through delay), a proposed conditional use may be priced out of feasibility. Often this occurs when the battle gets to litigation and a court with a crowded calendar and relatively little background in the area (judges are seldom drawn from the real estate bar, and appropriately so) chooses to move the case to the bottom of the pile. This may be reason to consider broader use of special masters in fields where particular expertise would be helpful.
Atty. Wm. Pharis Horton
Horton Law Office, Madison