New Law Limits Local Discretion in Conditional Use Process

Maybe you want to open a coffee shop down the street.
The area, however, may not be zoned for coffee shops.
You’ve hesitated because you would have to obtain special zoning approval through a conditional use permit (“CUP”), which allows a landowner to use land in a way not otherwise permitted under traditional zoning.
Now may be the time to apply.
New Wisconsin Act 67 may make it easier to obtain a CUP, by limiting local governments’ grip on the CUP through its ability to deny applications.
Before Act 67, local governments maintained vast discretion to determine whom, and under what circumstances, a CUP would be granted, even where all technical requirements were met.
The Act changes this by requiring that, if an applicant meets local ordinance requirements, the county shall (i.e. must) grant the CUP.
Approval is required even if the applicant only agrees to meet the requirements at some future date.
The Act also requires that local ordinance CUP conditions and requirements be “reasonable” and, if possible, “measurable.”
These new provisions are intended to limit local governments’ discretion to deny a CUP that otherwise meets the permitting requirements.
To ground CUP decisions on objective criteria, Act 67 newly defines what constitutes the “substantial evidence” upon which local governments rely on in determining whether to grant a permit.
“Substantial evidence” means “facts and information, other than merely personal preferences or speculation, directly pertaining to the requirements and conditions.”
This definition is important, because it requires that a CUP determination be based on directly relevant facts, not speculation or personal preferences.
Act 67 was a reaction to the Wisconsin Supreme Court decision in AllEnergy v. Trempealeau County, which approved the wide local governmental discretion used, after citizen complaints, to deny a CUP for a non-metallic mineral mining business.
Now it will take more than citizen complaints to prevent a technically complying landowner from obtaining a CUP.
Even under the new law, the CUP process is complicated. If you are contemplating a CUP petition, contact FOS attorneys for guidance.