Zoning FAQ 5

May a municipality include a process in its zoning code by which property owners affected by a proposed rezone may file a protest petition triggering an extraordinary vote requirement for passage of the zoning change even though 2017 Wisconsin Act 243 repealed Wisconsin Statute § 62.23(7)(d)2m.a, the protest petition law?  

Yes. A municipality may create by ordinance a protest petition process like former Wis. Stat.  § 62.23(7)(d)2m.a, which was repealed by 2017 Wisconsin Act 243, effective April 5, 2018. The former statute had provided as follows:

In case of a protest against a [proposed zoning] amendment … duly signed and acknowledged by the owners of 20% or more either of the areas of the land included in such proposed amendment, or by the owners of 29% or more of the area of the land immediately adjacent extending 100 feet therefrom, or by the owners of 20% or more of the land directly opposite thereto extending 100 feet from the street frontage of such opposite land, such amendment shall not become effective except by the favorable vote of three-fourths of the members of the council voting on the proposed change.

Nothing in state law expressly prohibits a municipality from adopting by ordinance the same or a similar protest petition process triggering an extraordinary vote requirement for passing a zoning change. 
  
The ordinance should not refer to former Wis. Stat. § 62.23(7)(d)2m.a, since that statute no longer exists. Rather, a municipality may rely on its broad legislative home rule powers (Wis. Stat. § 61.34 for villages and Wis. Stat. § 62.11(5) for cities) and broad zoning powers under Wis. Stat. sec. 62.23(7) to adopt its own version of a protest petition process (per Wis. Stat. § 61.35, § 62.23 also applies to villages).  

A related question has come up as to whether a municipality that has an ordinance mirroring the repealed statute, must replace that ordinance with another establishing the same or a similar protest petition process. If the ordinance makes no reference to the old statute, there is no need to update it. However, any references in the ordinance to the previous statute should be repealed (and replaced, if desired). 

(rev. 11/19)