New State Law Alters Mequon’s Zoning Powers

The Wisconsin legislature recently made significant changes to the rules regarding conditional use permits. The changes are likely, over time, to have profound impacts on Mequon’s planning and zoning authority. Based on these changes, it is time for a comprehensive review of Mequon’s conditional use ordinances.

Zoning Classifications

Under most zoning codes, including Mequon’s, uses in a zoning district fall within three basic categories: permitted uses, conditional uses and accessory uses. A permitted use is a use that is automatically, without discretion, allowed in the zoning district. So, for example, professional and business offices are allowed as a matter of right in Mequon’s B-3 zoning district. Accessory uses are uses that are allowed in conjunction with a permitted or allowed conditional use. So, for example, a parking garage is not allowed as a standalone use in the B-3 district but is allowed to be built with an office building.

A conditional use is a use that might be allowed in a district under certain conditions. Mequon’s zoning code lists various conditional uses for its zoning districts. The Planning Commission reviews applications for conditional uses and determines whether the particular proposed conditional use is appropriate in the particular location.

So, for example, restaurants are allowed in certain zoning districts as conditional uses. When the City receives an application for a restaurant in one of those districts, it reviews whether the use is compatible with surrounding uses (e.g., is it next to single-family homes), whether noise or light will bother adjoining uses, hours of operation, and so forth. The City approves, denies or conditions the application.

Mequon’s ordinances contain a wide variety of conditional uses: agricultural uses in residential districts; commercial hatcheries and greenhouses in agricultural districts; houses of worship in many zoning classifications; residential quarters for owners in some business districts; warehousing and distribution centers; and a myriad of other uses.

Law Change

Under the new statute, it is virtually impossible to deny a conditional use application. The statute provides that  “if an applicant for a conditional use permit meets or agrees to meet all of the requirements and conditions specified in the city ordinance or those imposed by the city zoning board, the city shall grant the conditional use permit.” In the past, the Planning Commission denied some applications because the particular use did not fit the particular property. Now, the Planning Commission may only impose conditions. If the applicant is willing to accept those conditions, the applicant is entitled to the conditional use permit.

However, the law does not stop there. It significantly limits the conditions that can be imposed by the Planning Commission.

First, the new law requires that standards governing conditional uses be “reasonable and, to the extent practicable, measurable….” This requirement is certain to lead to  litigation. Mequon has considered all sorts of factors, including odors, aesthetics, safety and similar factors when considering conditional uses. Most of these factors are not measurable. The statute does not clarify what is intended by “to the extent practicable.”

Second, any conditions imposed by the Planning Commission must be reasonable and the decision to approve or deny must be based on “substantial evidence.” The Planning Commission cannot impose conditions that are not mandated by our ordinances, such as hours of operation, ventilation or other conditions, unless there is “substantial evidence” that such conditions are necessary and reasonable. It is no longer enough that the City always requires such conditions.

Third, the new law prohibits the Planning Commission from deciding an application for a conditional use on “personal preferences or speculation.” Although we allow and require public testimony, the Planning Commission cannot, under the new law, make its decision based on that testimony unless, perhaps, the person providing the testimony is an acknowledged expert. It might be common sense that a particular use will harm adjoining property values (and our ordinances allow a denial based on such harm); however, under the new law, and the court decision that prompted it, denying a use based on common sense is likely to end up in a court challenge, and unless the decision is based on “measurable” standards with “substantial evidence,” the City would likely lose such a challenge.

Arguably, the changes are in large part a good thing. They prevent communities from being arbitrary. However, Mequon’s conditional use process, when fairly applied, has avoided bad uses and one property owner from harming another.

Again, the City should comprehensively review its conditional use ordinances. Mequon’s ordinances were written under the old statue. Unless we tighten those ordinances, we will likely face expensive litigation and may have unanticipated uses forced on the community that might harm and change the nature of our commercial and residential districts.

The City could consider eliminating some conditional uses in some districts; changing some conditional uses to permitted uses with more exact standards; establishing precise standards for conditional uses that have proven to be problematic; eliminating criteria that are no longer enforceable; establishing evidence that applicants must provide with applications; and requiring grants to be in writing with specific findings of fact that have been reviewed and approved by the Planning Commission.