Can a municipality issue a valid
conditional use permit for a land use activity that is not specifically
permitted by the zoning code as a conditional use in the zoning district
in which it will be conducted?
No. The Wisconsin court of appeals has
noted the general zoning principle that "Zoning ordinances may be
permissive in form, permitting specified uses and buildings and
prohibiting all others within a district. The mention or listing of
things which may be done necessarily implies the
exclusion of others, unless the ordinance is vague or ambiguous."
Foresight, Inc. v. Babl, 211 Wis. 2d 599, 281-282, 565 N.W.2d 279 (Ct. App. 1997)(
citing 8 McQuillin,
Municipal Corporations,
sec. 25.124 at 492 (3d ed. 1991) (emphasis added)). In other words, a
proposed land use that is not specifically authorized as a conditional
use (or a permitted use) in a zoning district is prohibited in that
district. This means that a conditional use permit issued for a use that
is not specifically permitted by the zoning code as a conditional use
in the zoning district in which it will be conducted is invalid because a
conditional use permit only allows a property owner "to put his
property to a use which the ordinance
expressly permits when certain conditions have been met."
State ex rel. Skelly Oil Co. v. Common Council, 58 Wis. 2d 695, 701, 207 N.W.2d 585 (1973) (
quoting 2 Rathkopf,
The Law of Zoning & Planning, 54-4 n.3 (1968) (emphasis added).