Local officials face new zoning laws
Permits must be approved despite protests

By Kelly Smith - Special to The Freeman

Feb. 11, 2018

 It may be easier for developers to gain conditional use permits for rural residential developments like this one in Lake Country because of a new state law.
Kelly Smith/Special to The Freeman

TOWN OF DELAFIELD — A state Supreme Court decision involving a mine in a small Western Wisconsin town has triggered the adoption of a new state zoning law that is impacting communities in Waukesha County, particularly in Lake Country.

Critics of the law, like former Delafield Town Chairman Paul Kanter, argue it cripples the ability of citizens and local governments to determine the character and landscape of their community by regulating residential and commercial developments.

But supporters of the law, like State Rep. Cindi Duchow, R-Town of Delafield, argue it protects private property rights by preventing local officials from denying permits because of public opposition even though the permit meets legal standards.

“We are a government of laws and not of men. Unless one is trying to obtain a conditional use permit from a municipality’s land use committee, in which case the opposite is true,” quipped Wisconsin Supreme Court Justice Daniel Kelly.

Kelly wrote the dissenting opinion when the court ruled that Trempealeau County zoning officials could deny a conditional use permit to a mining company even though the company presented evidence that it met county code permit requirements.

Citizens opposed to the proposed fracking sand mine persuaded the county’s Environment and Land Use Committee that the mine would have an adverse impact on the environment and ecology and posed a potential public health and safety threat.

The court’s decision and property rights advocates prompted the Republican-controlled state legislature to pass Act 67.

It requires municipalities to approve conditional use permits when there is evidence the permits meet standards established in the municipal code, according to Eric Larson, Town of Delafield attorney.

Larson added the law will make it more difficult for citizens to oppose the issuance of conditional use permits.

Citizens will also be required to present substantial evidence supporting such arguments as the proposed development would lower surrounding property values, threaten public health and safety, or is not compatible with surrounding properties.

According to Kanter, a member of the town plan commission, “Applicants will come in here with lawyers and experts” to prove they have met town permit standards.

Meanwhile, town residents, he added, “will come in here with no clue as to what has happened. They will have no idea what has hit them.”

Delafield City Planner Roger Dupler offered a different perspective.

“It is about time,” he said, “Fair is fair.”

“If the applicant has to present their case with substantial evidence, then I think objectors ought to be required to have substantial evidence,” he added.

“If property owners are meeting all the requirements and conditions within the permit ordinance, a municipality should not have the authority to tell these property owners ‘no,’” Duchow said.

Using CUPs to control growth, regulate development

Typically, conditional use permits are required when there is an unusual land use that may fit within a zoning district but requires special conditions, according to nearly a dozen zoning administrators and planners interviewed by The Freeman.

For example, an airport operating in a business district, a bed and breakfast operating in a residential district, or a gas station that requires special safety conditions.

However, there are communities in the county, particularly in scenic, rural, bucolic Lake Country, where local officials use the conditional use permit as a tool to control growth and regulate commercial and residential developments.

For example, the Town of Delafield has used conditional use permits during the past two decades to develop and protect its rural residential character, according to local officials.

Merton has used conditional use permits on commercial properties to help maintain its Main Street ambiance of the quintessential small Wisconsin village, according to Deputy Clerk Julie Ofori-Mattmuller.

The city of Delafield used a combination of conditional use permits and planned unit developments on nearly all its most recent and largest residential and commercial developments, according to Dupler.

The city, he said, will review how the new law impacts pending developments.

The Town of Delafield may have to rewrite its conditional use ordinance because of the new law, according to Larson.

Other communities like Oconomowoc, Hartland and Summit rely less on conditional use permits as planning tools, according to local zoning administrators.

However, those administrators add that they too intend to review their zoning codes with their municipal attorneys because of the new state law.

“There are going to be a lot of municipalities in Wisconsin who are going to be reviewing their ordinances,” added Larson.