Zoning FAQ 10
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).