What are the legal requirements for valid conditional use permit conditions?

2017 Wis. Act 67 substantially changed municipalities’ conditional use permit (CUP) authority. Under Wis. Stat. § 62.23(7)(de)2.a, any CUP conditions imposed must relate to the purpose of the ordinance and be based on “substantial evidence.” Furthermore, CUP requirements and conditions must “be reasonable and, to the extent practicable, measurable. . . .” Wis. Stat. § 62.23(7) (de)2.b.

Prior to the change, general nonspecific CUP requirements in zoning ordinances were considered reasonable and, thus, legally permissible. Now, they must be based on substantial evidence and, where practicable, they must be measurable to be deemed reasonable.

“Substantial evidence means facts and information, other than merely personal preferences or speculation, directly pertaining to the requirements and conditions an applicant must meet to obtain a conditional use permit and that reasonable persons would accept in support of a conclusion.” Wis. Stat. § 62.23(7)(de)1.b. The facts and information must “directly pertain” to the requirements and conditions in the zoning ordinance or established by the zoning board.

Accordingly, general requirements for CUPs are now suspect and subject to legal challenge. Revised requirements should be information-based. Additionally, a city or village will need to show that revised requirements are measurable, unless impracticable. And, if impracticable, they will need to be able to demonstrate why.

Wisconsin Stat. § 62.23(7)(de) says that when a CUP applicant meets or agrees to meet all of the requirements and conditions specified in the municipal ordinance or those imposed by the zoning board, the municipality shall grant the CUP.

(rev. 1/22)