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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.