July/August 2017 Issue

Also in this issue: Wisconsin Supreme Court Expands Fair Dealership Law to Municipalities     |     Limitations on Interior Property Inspections for Property Tax Assessments     |     Supreme Court Decides Wisconsin Regulatory Takings Case     |     County’s Courthouse Access Policy Violated First Amendment     |     Wisconsin Supreme Court Addresses Open Meetings Law And Committees

Conditional Use Zoning Law in Flux

08.06.17

The Wisconsin Supreme Court rejected an effort to substantially change the rules applicable to conditional use permits. AllEnergy Corp. v. Trempeleau County, 2017 WI 52 (4−3, January 11, 2017). What is noteworthy is the narrow majority upholding current law and that a bill circulating in the legislature would adopt the change proposed by the dissent.

AllEnergy involves an application for a conditional use permit for a frac sand mine. The county zoning agency conducted a hearing and denied the permit. The two most significant issues were: (a) whether the designation of a use as conditional within a zoning district conclusively establishes that the use is desirable and in the public interest, and (b) whether conditions may be imposed on a permit to address only those adverse effects that are beyond the normal and expected impacts that the particular use has. 

Justice Abrahamson wrote the lead opinion and was joined by one other justice. Two justices concurred in the result, but would have decided the case on narrower grounds; they would not have reached all the issues addressed by the majority and dissent. Three justices dissented. The case reflects the shift in the makeup of the court toward stronger property rights views and weaker local government control. 

The lead opinion upheld the existing rule that merely listing a use as conditional is not a legislative determination that the use is inherently in the public interest in that district. Current law allows the zoning agency to take into account all factors in the zoning code and to conclude that the particular proposed use is not in the public interest. The dissent would have adopted a rule that applies in some other states that the local governing body has already taken into consideration all of the normal and expected impacts inherent in the particular type of use and has declared that the use is nonetheless desirable. The dissent would have made it much harder for municipalities to reject or limit conditional use applications. The dissent would not have gone as far as AllEnergy proposed to create a rule that conditions could be imposed to address only adverse impacts above and beyond the usual, expected impacts inherent in the use. 

— Mark J. Steichen