July/August 2020 Issue

Also in this issue: Navigating Disability Accommodations and Discrimination in the Age of COVID-19

Wisconsin Court of Appeals Holds Municipalities Do Not Get a Second Chance at Conditional Use Permit Denial

Eric B. Hagen | 07.29.20

On June 17, 2020, the Wisconsin Court of Appeals, District II upheld a conditional use permit (CUP) for a sport shooting range in the City of Delafield, Hartland Sportsmen’s Club, Inc. v. City of Delafield, 2019AP740. The court’s decision was the latest development in Hartland Sportsmen’s Club’s (HSC) request for a CUP, from the City of Delafield (City or Delafield), to continue operating a shooting range. In the previous case HSC I, the Court of Appeals found that the City could not show a factual basis for its denial of HSC’s CUP, so the court reversed the denial for being arbitrary and capricious. See Hartland Sportsmen’s Club, Inc. v. City of Delafield (HSC I), No. 2016AP666 (WI App Aug. 30, 2017), review denied, 2018 WI 20, 389 Wis. 2d 106, 909 N.W.2d 175.

After that ruling, HSC did not request, nor did the court remand, the case to the municipality for further proceedings. However, rather than issuing the CUP, Delafield instead reconsidered the permit by holding new hearings, issuing new findings and ultimately again denying the permit. HSC then brought a new action for a writ of mandamus, arguing that the prior court rulings in HSC I required the City to issue the CUP based on HSC’s previous application. The Court of Appeals sided with HSC, finding that the ruling in HSC I reversed the City’s denial for being arbitrary and capricious, thus requiring the City to issue the CUP.

The court stated that the purpose of certiorari judicial review of municipal and administrative decisions, such as the denial of a CUP, is to ensure procedural due process. After review, a certiorari court has three options – affirm, reverse, or remand for further proceedings consistent with the court’s decision. The court noted that remand to the municipality or administrative tribunal for further hearings is appropriate only when the defect in the proceedings is one that can be cured. However, supplementation of the record by the government decision maker with new evidence or to assert new grounds is not permitted. Outright reversal is appropriate when due process violations cannot be cured on remand, which includes cases in which the evidence failed to support the government’s decision.

The court found that the outright reversal of the City’s denial in HSC I was appropriate because the violation of due process would not be cured by remanding for further proceedings on the permit. In HSC I, the court found that the City could not show a factual basis for its denial of the CUP, and invalidated the denial for being arbitrary and capricious. Municipalities do not have the authority to revisit a previously denied permit when a court has invalidated the denial on a factual basis.

For municipalities, this case shows that it is crucial to get these permit decisions right the first time by ensuring that any denial is supported by a factual basis. If not, municipalities will not get a second chance when a court reverses a denial for being arbitrary and capricious.

This case should also serve as a reminder for municipalities to update their CUP processes to comply with the relatively recent changes to CUP requirements. As discussed above, after a certiorari judicial review, municipalities will not be able to supplement the record with new hearings and further fact finding because of due process concerns. This inability to supplement the record means that municipalities will effectively forego their opportunity to decide CUPs if their CUP processes do not comply with the changes to CUP requirements — especially the requirement for ​“substantial evidence” in the record to support denial.