Zoning FAQ 8

Do Wisconsin municipalities have authority to deny a conditional use application or is their authority limited to imposing conditions on the proposed use?

It is the League’s opinion that the body considering a request for a conditional use permit (CUP) has discretion to deny a CUP request but cannot simply deny out of hand or deny in an arbitrary manner. This conclusion is supported by a leading zoning law treatise that states:

A zoning board decision on an application for a special exception is by definition and in essential character discretionary and not a matter of right. Otherwise, there would be no rationale for listing certain uses as the permitted ones in a zoning district and listing others as permissible only when authorized by the board as a special exception. Thus, it is generally accepted that zoning ordinances contemplate the exercise of some range of discretion in the consideration of conditional use applications and that it is proper to make approval of an application contingent on criteria beyond those required by the zone and the comprehensive plan.

. . .

[W]here the zoning ordinance fails to prescribe all the conditions which must be met in order to obtain a conditional use permit and instead leaves its issuance to the discretion of the governmental authority, an aggrieved applicant may then proceed by mandamus where no adequate remedy is provided, but must show that denial of such permit constituted a gross abuse of discretion by the issuing body. An ordinance, which attempts to clothe an administrative officer with arbitrary discretion, without a definite standard or rule for his guidance, is an unwarranted attempt to delegate legislative functions to a non-legislative officer and is therefore unconstitutional. . . . If a zoning board’s findings of fact are unsupported by substantial competent evidence of record, it will generally be found to have committed an abuse of discretion.

Rohan, Zoning Law and Practice, Ch. 44, secs. 44.03[4] and [5] (footnotes omitted).

The Wisconsin Supreme Court has also held that an ordinance standard governing special exceptions is not impermissible because it is general in nature. Edward Kraemer & Sons, Inc. v. Sauk County Bd. of Adjustment, 183 Wis.2d 1, 515 N.W.2d 256 (1994). The court cited 3 Edward H. Ziegler, Rathkopf’s The Law of Zoning and Planning sec. 41.11, at 41-49 (4th ed. 1993) as support:
[G]eneralized standards are acceptable in most jurisdictions. The purpose of the special exception-conditional use technique is to confer a degree of flexibility in the land use regulations. This would be lost if overly detailed standards covering each specific situation in which the use is to be granted or, conversely, each situation in which it is to be denied, were required to be placed in the ordinance.
515 N.W.2d at 261.
In Weber v. Town of Saukville, 209 Wis.2d 214, 562 N.W.2d 412, 416-17 (1997), the Wisconsin Supreme Court noted that conditional use standards often lack specificity, since their purpose is to “confer a degree of flexibility in the land use regulations.” Id., citing Edward Kraemer & Sons v. Sauk County Adjustment Bd., 183 Wis.2d 1, 14, 515 N.W.2d 256 (1994) and State ex rel. Skelly Oil Co. v. City of Delafield, 58 Wis.2d 695, 700-01, 207 N.W.2d 585 (1973) (noting that conditional uses are “flexibility devices.”) The court quoted 3 Edward H. Ziegler, Jr., Rathkopf’s The Law of Zoning and Planning sec. 41.11, at 49 (4th ed. 1996) for the following proposition:
[I]f it were possible to find a legislative draftsman capable of performing such a task of drafting standards to govern the likely as well as all possible contingencies relating to a conditional use there would be no need to make the use a conditional one. In that case, they could be made part of the zoning ordinance proper requiring no exercise of discretion on the part of anyone.... [I]f the purposes of zoning are to be accomplished, the master zoning restrictions or standards must be definite while the provisions pertaining to a conditional use . . .  must of necessity be broad and permit an exercise of discretion.