Local ordinances “zone” permissible land uses by establishing districts within the boundaries of the county or municipality, each of which has a set of specified permitted uses that are authorized as a matter of right. Local zoning ordinances further classify certain land uses within each district as conditional uses that are subject to case-by-case review.1 These include uses whose effects may vary widely depending on the scope of their operation (such as “home occupations”), and controversial or potentially nuisance-creating uses such as landfills, mines, and mobile home parks.
Conditional use permits (CUPs) allow a zoning board to approve a land use that may be compatible in the zoning district in which it is proposed, but that should not be permitted as a matter of right because of the range of potential conflicts that such a use may create. CUPs are attractive to local governments because they permit prior review of such uses and a means to impose customized conditions on development, often in response to the particularized concerns of the neighboring community. However, the flexibility that makes conditional use regulation a functional and highly versatile land use tool is also the source of extensive litigation. Further, there is scant statutory guidance for the issuance of CUPs in Wisconsin, and indeed the statutes contain no reference at all to conditional uses as such.
This article provides an overview of the standards for the issuance of a CUP, distilled from sometimes conflicting Wisconsin case law. The standards suggest a variety of strategies for lawyers representing the applicant or an opponent of a CUP in administrative and judicial proceedings. These consist of both legal strategies, those which take into consideration due process, evidentiary support, administrative procedure, and standards of review on appeal; and political strategies, including lobbying, community support, and methods of persuasively framing your case. Because local zoning boards are typically granted an enormous degree of discretion in acting on CUP applications, the legal strategy often will be overshadowed by the need to deploy an effective political strategy. The accompanying sidebar on page 25 suggests just a few strategies for applicants and opponents at each stage of the proceedings.
Statutory Authority for Conditional Use Permits
Wisconsin local governmental bodies are authorized to adopt a zoning ordinance under Wis. Stat. sections 60.61 (towns), 62.23(7) (cities and villages), and 59.694 (counties). Under that general authority, town boards of adjustment are authorized in Wis. Stat. section 60.65(3) to “permit special exceptions to the terms of the zoning ordinance … consistent with the ordinance’s general purpose and intent and with applicable provisions of the ordinance.” County and municipal zoning boards are authorized under Wis. Stat. sections 59.694(1) and 62.23(7)(e), respectively, to “make special exceptions to the terms of the ordinance in harmony with its general purpose and intent and in accordance with general or specific rules therein contained.”
The authority to make special exceptions is widely recognized as the basis to grant CUPs. However, the statutes are silent regarding the procedures for adopting and approving conditional uses. Nevertheless, CUPs “have long been accepted as a valid and successful tool of municipal planning on virtually a universal scale.”2
Conditional Use Permit Decisions and Appeal
The ordinance standards applied by zoning agencies for the grant of a CUP generally identify broad public interest criteria or factors, for example, “the prevention and control of water pollution, air pollution and noise.” In addition, the zoning agency is empowered to impose conditions to ensure that the proposed conditional use is compatible with surrounding uses. (Depending on the ordinance, the “zoning agency” may be a municipal plan commission or the common council, or the county planning and zoning committee or board of adjustment.)
com MPeranteau wheelerlaw Mary Beth Peranteau, U.W. 1996 cum laude, is with Wheeler, Van Sickle & Anderson S.C., Madison. She assists individuals, associations, businesses, and local governments in matters relating to real estate, land use, property rights disputes, and water law. She also represents cooperative electric utilities in corporate and transactional matters, regulatory proceedings, and litigation and appeals before administrative agencies and in state and federal courts.
The zoning agency’s application of fairly broad and generalized standards, together with its ability to impose site-specific conditions on the proposed development, concentrate a significant amount of discretion in the hands of its members. The permit decision is subject to judicial review but only under the highly deferential certiorari standard of review. Under that standard, the court limits its inquiry to whether 1) the municipality kept within its jurisdiction; 2) it proceeded under a correct theory of law; 3) its action was arbitrary, oppressive, or unreasonable and represented its will and not its judgment; and 4) the evidence was such that the municipality might reasonably make the order or determination in question.3 The local government’s zoning decision is accorded a presumption of correctness and validity, and the court will not disturb its findings if any reasonable view of the evidence supports them.4
Because of the substantial burden of proof on judicial review, a successful challenge to a CUP determination will often depend in large part on the availability of administrative appeal and the scope of the administrative appeal proceeding (in particular whether a de novo hearing is available). Under some ordinances, the zoning committee or plan commission conducts a public hearing and makes a nonbinding recommendation, but the actual decision to grant or deny the permit is made by the governing body. In others, the zoning agency determines whether to grant a CUP, and that decision can be appealed to the board of adjustment (or board of appeals), the governing body, or both.
Conditional Use vs. Permitted Use with Conditions
CUP applicants can find support in Wisconsin case law for the proposition that as long as a proposed development is identified as a conditional use for the zoning district in question,5 a permit should in most cases, and except in extraordinary circumstances, be granted. Under this theory, the fundamental determination that a land use is suitable in a particular zoning district is made when the ordinance is adopted.6 The focus of a contested CUP application then shifts to whether and to what extent site-specific conditions should be imposed to mitigate potentially problematic impacts of the use.
Step-by-Step Strategies and Recommendations for Applicants and Opponents of Conditional Use Permits
• Particularly for complex or controversial projects, a pre-application meeting with the zoning administrator or other staff is recommended to ensure that the application includes all information that will be the subject of the zoning agency’s inquiry.
• Confirm with staff the level of detail expected for the application.
• Is the application complete based on requirements set forth in the ordinance(s)? What additional information should be demanded?
• Are there any issues as to which expert testimony would inform the zoning agency and support denial of the CUP?
• Review the county or municipal comprehensive plan for any potential inconsistencies with application.
|Notice of Hearing
• Is the applicant required to send notice of public hearing to adjacent property owners?
• Due process requires that application be complete at the time of the hearing.
• Does publication of the notice comply with statutory and local ordinance requirements?
• Obtain any staff reports and supplemental application materials.
• Be prepared to address issues raised by opponents and concerns in any staff report prepared for purposes of the hearing.
• Be prepared to preemptively offer conditions to address those issues.
• Mobilize the opposition for
• Vet proposed testimony by your client and aligned groups. Well-meaning persons may have the potential to tarnish the perception of opponents before the zoning agency. Be civil and respectful; keep the focus on CUP standards.
||• Is the decision issued by the agency conducting the public hearing? If not, prepare a presentation for the public meeting at which the decision will be made.
||• There might be time limits on any subsequent comment in a public meeting, but you can continue to submit petitions and letters of opposition until the time of and at the decisional meeting.|
||• Emphasize the authority and discretion of the initial decision-maker and provide evidence to buttress its reasoning.
||• Does the appeal process allow for a de novo public hearing? Mobilize the opposition, contact appeal board members, and have experts available at the hearing.|
||• If the CUP is granted, the applicant is not a necessary party to an appeal by opponents. Consider intervention.
||• Obtain audio recordings of the hearing and meetings at which the application was considered. Meeting minutes typically will not assist in demonstrating flawed reasoning or lack of evidence.|
The alternative view, which should inform the strategy of CUP opponents, is that zoning boards have full discretion to deny the permit application if the standards for approval of the permit are not met.7 This viewpoint emphasizes the applicant’s burden of proof to provide evidence to satisfy each of the ordinance standards.8 However, it is common for zoning boards to operate under the assumption that the ordinance designation of the proposed development as a conditional use is prima facie evidence of its compatibility with surrounding land uses, implicitly shifting the burden of proof to opponents to refute that presumption.
The litigation strategy of an applicant for or opponent of a CUP is initially informed by competing theories concerning the scope of the issues and burden of proof as set forth above. CUP applicants will seek to convince the zoning body that all concerns can be adequately addressed by site-specific conditions. Opponents will offer evidence that the standards for the issuance of the permit cannot be met, given the characteristics of the development in the proposed location.
But local ordinance standards for the grant of a conditional use permit are very often stated in broad and general terms, such as a requirement that the use be “consistent with the general purpose and intent of this ordinance” or “avoid harm to the public health, safety and welfare.”9 Even where the ordinance contains more particularized standards, there remains substantial leeway for a zoning board to accept or reject conflicting evidence.
The zoning agency’s enormous fact-finding discretion in permit decisions often reduces the scope of arguments that can be developed on appeal. Therefore, it is crucial for applicants and opponents alike to extensively research the identity of key decision-makers and to identify points of controversy that can be leveraged by the opposition early in the proceedings.
Review of previous zoning board meeting and public hearing minutes and a telephone call to the city attorney or county corporation counsel can provide valuable insight for calibrating your argument to the most influential staff and board members. You may glean information from which to preemptively offer conditions (for example, buffer plantings, hours of operation) to mitigate staff or community concerns.
The influence of zoning and planning staff should never be underestimated. The CUP application will typically be subject to interpretation, criticism, or recommendations contained in the zoning administrator’s or municipal planner’s report and communicated to the members of the zoning board in or outside of meetings and hearings. Staff may fill in the gaps of an otherwise incomplete application, or conversely may conclude that substantial (and potentially costly) additional engineering, landscaping, or other plans must be submitted for the application to be deemed complete. Effective advocacy requires that the attorney identify and develop a relationship with those staff persons.
Once the final determination is made on the CUP application, the avenues for appeal are generally limited. As suggested by the certiorari review standard, in order to prevail on appeal, the appellant must generally construct an argument that the CUP was issued based on legal error. However, when an appeal is based on a denial of due process, the remedy is typically a remand for a “do-over” proceeding to correct the error in the notice or hearing procedure. Unless there is an intervening change in the makeup of the zoning board or an opportunity to swing votes, there might be no change in the ultimate outcome.
Because of the broad discretion granted to zoning agencies in CUP determinations and the highly deferential review standard on appeal, it is difficult to prevail on a theory that the zoning agency’s decision lacked substantial evidence.10 As such, the attorney’s focus must be on the administrative proceedings, in which the political strategy is key to success. That strategy should take into account a variety of issues, which might include the following: 1) public perceptions of the client based on previous interactions with the local government, media coverage, or otherwise; 2) the zoning board members’ predisposition concerning zoning restrictions or the particular land use in question; 3) the level of public support or opposition for the proposed land use that can be leveraged in the proceeding; 4) whether and to what extent professional zoning staff or legal counsel act as gatekeepers in advising the zoning board;11 and 5) any community-wide or statewide controversy or precedent that informs the board’s decision.
The latter issue is particularly relevant to zoning permits for concentrated animal feeding operations, mines, and renewable energy installations. Consideration of these issues will in turn inform the selection of which CUP standards to emphasize, framing of the argument, presentation of evidence, and contacts with decision-makers.
Lobbying in CUP Proceedings
Parties in zoning disputes have rights under common-law notions of due process and fair play, which include the right to have matters decided by an impartial board.12 The fairness and impartiality of zoning board members is implicated when ex parte lobbying contacts occur. “[Z]oning decisions are especially vulnerable to problems of bias and conflicts of interest because of the localized nature of the decisions, the fact that members of zoning boards are drawn from the immediate geographical area, and the adjudicative, legislative and political nature of the zoning process.”13
However, zoning board members are appointed from within the local jurisdiction and “reflect community values and preferences regarding land use.”14 They are expected to know people in the community, understand local conditions, and have opinions about local land use issues. Thus, ex parte communications are a common, perhaps even necessary, aspect of local zoning.
To avoid impropriety in ex parte contacts, lobbying should be confined to addressing information already provided. When new information is introduced without the other side’s knowledge, leaving no opportunity for response, common-law concepts of fairness and due process are violated. CUP applicants and their opponents generally are expected to present information at public hearings where all interested persons can hear it. Because CUP applicants have the burden of showing that the requested permit meets standards in the local ordinance, they have incentives to continue supplying additional information until a final decision is made. Advocacy should not be a pretext for a party to unilaterally supplement the record.
Representing clients in contested CUP proceedings requires an extra bit of creativity (and sometimes sheer luck in being retained in a timely fashion) to most effectively advocate for your clients’ interests. More so than in many other areas of the law, you have the opportunity to advocate for your client informally and in settings outside of a formal administrative or judicial proceeding. Successful strategies go beyond a basic review of the ordinance requirements, the applicable statutes, and case law.
1 SeeTown of Rhine v. Bizzell, 2008 WI 76, ¶¶ 15-21, 311 Wis. 2d 1, 751 N.W.2d 780.
2 State ex rel. Skelly Oil Co. v. Common Council, 58 Wis. 2d 695, 700-01, 207 N.W.2d 585 (1973) (using terms “conditional use” and “special exception use” interchangeably).
3 Oneida Seven Generations Corp. v. City of Green Bay, 2015 WI 50, ¶ 41, 362 Wis. 2d 290, 865 N.W.2d 162.
4 Id. ¶ 90.
5 Note that it is not always clear whether a proposed use is within the scope of conditional uses listed in the ordinance. See, e.g., Meyer v. Town of Milton, No. 02-3210, 2003 WL 22799569 (Wis. Ct. App. Nov. 26, 2003) (unpublished limited precedent opinion) (affirming town board’s conclusion that “parks and recreational areas” does not encompass for-profit entertainment such as a corn maze, and that “agri-business” conditional use allowed the sale of agricultural inputs, not retail sales of all items having a connection to agriculture).
6 See Sills v. Walworth Cnty. Land Mgmt. Comm., 2002 WI App 111, ¶ 17, 254 Wis. 2d 538, 648 N.W.2d 878 (“fundamental tenet” of zoning law “that inclusion of a conditional use in an ordinance is equivalent to a legislative finding that the prescribed use is one that is in harmony with the other uses permitted in the district”); Town of Rhine, 2008 WI 76, ¶ 20, 311 Wis. 2d 1 (“Conditional uses are for those particular uses that a community recognizes as desirable or necessary but which the community will sanction only in a controlled manner.”).
7 See, e.g., Kraemer & Sons Inc. v. Sauk Cnty. Adjust. Bd., 183 Wis. 2d 1, 13, 515 N.W.2d 256 (1994) (holding that zoning board required to consider all CUP standards); CFS LLC v. Bayfield Cty. Bd. of Adj., No. 2012AP1830, 2013 WL 3884151 (Wis. Ct. App. July 13, 2013) (upholding denial of CUP for private airstrip based on findings under conditional use factors); Gage Inc. LLP v. Village of Sister Bay, No. 2010AP1778, 2011 WL 2623521 (Wis. Ct. App. July 6, 2011) (unpublished limited precedent opinion) (upholding denial of CUP for condominium-hotel development in business district).
8 See Delta Biological Resources v. Board of Appeal, 106 Wis. 2d 905, 911-14, 467 N.W.2d 164 (Ct. App. 1991).
9 Kraemer & Sons Inc., 183 Wis. 2d 3, 14-15 (affirming denial of permit based on generalized standards).
10See Oneida Seven Generations Corp., 2015 WI 50, ¶¶ 82-116, 362 Wis. 2d 290 (Roggensack, J. dissenting).
11 See, e.g., Roberts v. Manitowoc Cnty. Bd. of Adj., 2006 WI App 169, 295 Wis. 2d 522, 721 N.W.2d 499 (discussing staff involvement in proceedings for issuance of CUP for wind farm); Odness v. Dunn Cnty. Bd. of Adj., No. 2005AP1091, 2006 WL 618803, ¶ 2 (Wis. Ct. App. March 14, 2006) (unpublished limited precedent opinion) (county planning department prepared report and provided testimony that contested landfill would be a substantial improvement over its current use).
12 See Marris v. City of Cedarburg, 176 Wis. 2d 14, 26, 498 N.W.2d 842 (1993).