Whether you like it or not, under Wisconsin law, municipalities can restrict how a property owner can use their property. The regulations imposing these restrictions are known as zoning ordinances. Zoning ordinances play an important role in the growth and personality of a community. Typically, a zoning ordinance categorizes property by type (such as residential, commercial, agricultural, and industrial), and for each type of property, the ordinance imposes various restrictions, such as limiting the types of uses allowed, requiring certain setbacks from neighboring properties, limiting the size and height of buildings, etc. It’s essential for property owners, developers, and municipalities to have a full understanding of the applicable zoning laws to ensure that land is used appropriately.
The heart of a zoning ordinance is its use restrictions. For each category of property (otherwise known as a zoning district), a zoning ordinance will usually provide two types of uses: permitted uses and conditional uses.
A permitted use is a use that is allowed to occur as a matter of right. There is no special permission or permit needed for a person to use their property for a permitted use. For example, if you are in the commercial zoning district, and the zoning ordinance says that a movie theater is a permitted use in the commercial zoning district, you can just open that movie theater (assuming you meet all other requirements in the municipality’s ordinances).
A conditional use is a type of use allowed with a permit from the municipality and subject to the conditions the municipality consider appropriate. For example, if a zoning ordinance states that a grocery store is a conditional use in a residential zoning district, then to open that grocery store, you would need to apply to the municipality for a permit to operate that grocery store, and the municipality can impose reasonable requirements on your operation in that district.
If a proposed use for a property is not a permitted or conditional use, the property owner is not allowed to engage in that type of activity on the property.
If you want to use your property for an activity that is neither a permitted use or a conditional use, you could consider applying to the municipality for a rezoning of your property. A request to rezone is a request to change the zoning district designation for your property. For example, if you want to open a gas station in a residential zoning district, but a gas station is neither a permitted or conditional use in the residential zoning district, you could apply to the municipality to request that your property be changed to the commercial zoning district (assuming the commercial zoning district allows gas stations as a permitted or conditional use).
State statutes and local ordinances govern the rezoning process. In general, a municipality must first submit the proposed rezoning request to the municipality’s plan commission for review and a recommendation. The municipality also must hold a public hearing on the proposed rezoning before they can make that change.
Municipalities cannot automatically grant a rezoning request either. There are a number of factors and matters municipalities must consider when presented with a rezoning application. Of particular importance, a municipality must review their comprehensive plan, as state law requires that any changes to a zoning ordinance be consistent with the comprehensive plan. If the comprehensive plan proposes a different use than the use request in the rezoning, the comprehensive plan will need to be updated before the rezoning could be approved. Some other matters a municipality should consider when reviewing a rezoning request are the impact on municipal resources and neighboring property owners.
Municipalities also need to be careful when considering a rezoning to ensure they are not engaging in illegal spot zoning. Spot zoning is “the practice of allowing a single lot or area special privileges which are not extended to other land in the vicinity in the same use district.” Bubolz v. Dane County, 159 Wis.2d 284, 297 (Ct. App. 1990). For example, if a municipality decided to approve a rezoning putting a parcel in the industrial zoning district when the rest of the area is in a residential zoning district, that would be spot zoning. Spot zoning is not automatically illegal, but it can be if the municipality does not take certain matters into consideration when it makes its zoning decision; in particular, a municipality must consider how the whole community will be affected by allowing that use in that area, the use of the surrounding land, the overall zoning plan, and public health and welfare.
Understanding a zoning ordinance and the rezoning process is essential for property owners to ensure that their desired development matches with local regulations. It is also essential for municipalities to understand their zoning ordinance to ensure it is properly enforced and matches the goals for their community.
Whether you are a municipality navigating through its zoning ordinance or a property owner trying to navigate this regulatory landscape, the experienced attorneys at Bakke Norman can help guide you through the process.