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
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
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.
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.
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
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.
court’s decision and property rights advocates prompted
the Republican-controlled state legislature to pass Act
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
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
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
is about time,” he said, “Fair is fair.”
the applicant has to present their case with substantial
evidence, then I think objectors ought to be required to
have substantial evidence,” he added.
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.
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.
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
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
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
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.
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.
city, he said, will review how the new law impacts
Town of Delafield may have to rewrite its conditional
use ordinance because of the new law, according to
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.