In a zoning ordinance, each zoning district generally allows two categories of land uses: permitted uses and conditional uses. A permitted use is allowed as a matter of right in all locations in a district and is authorized by a simple zoning or building permit.

A conditional use, also known as a special exception,¹ is a land use or activity that is not suited to all locations in a zoning district, but is allowed if it meets specific conditions set out in the zoning ordinance as well as the ordinance�s general purpose.² These conditions generally relate to site suitability and compatibility with neighboring land uses due to noise, odor, traffic and other factors. In short, conditional uses must be custom tailored to a specific location. A conditional use must be listed as such in the zoning ordinance, along with the standards and conditions which it must meet.

Conditional uses are distinct from variances. Conditional uses allow a property to be used in a way expressly listed in the ordinance, whereas a variance allows a property to be used in a manner forbidden by the zoning ordinance.³ More specifically, variances in Wisconsin typically allow a property owner to construct buildings that do not meet dimensional standards limits in the ordinance such as setbacks or height.

To allow a conditional use, a public notice and hearing are customary and may be required by ordinance (though not specifically required by state law) in order to provide neighbors and the public an opportunity to voice concerns about potential effects of proposed conditional uses. The decision to grant or deny a conditional use permit (CUP) is discretionary. In other words, a conditional use permit may be denied if the project cannot be tailored to a site to meet the specific conditional use standards and general purposes of the ordinance. Once a conditional use is granted, subsequent owners of a property are entitled to continue the conditional use subject to the limitations imposed in the original permit.

When deciding which body is best suited to decide on conditional uses, consider the following factors:

There are drawbacks to the PC deciding CUPs. Their biases about ordinance provisions may be on record from the time of ordinance adoption/amendment. In addition, there could be a conflict between the role of being an unbiased decision maker when deciding CUPs and the fact that some PC members are elected and may be tempted to represent their constituents rather than make objective decisions based on the applicable standards and evidence in the record.

� Governing body. The GB typically does not know the ordinance as thoroughly as the PC and often already has a full workload. Sometimes, the PC makes a recommendation to the GB on CUPs. The GB has the same drawbacks as the PC in deciding CUPs by having recorded biases and being elected officials. Additionally, the total amount of time invested in CUP decisions will likely increase significantly if assigned to the governing body as it has many more members than either of the other two bodies.

General performance standards and specific design standards for approval may be provided by ordinance for conditional uses.⁶ An applicant must demonstrate that the proposed project complies with each of the standards. The permit review body may impose additional limitations (conditions) on development consistent with standards for approval and ordinance objectives. The review body may require an applicant to develop a project plan to accomplish specified performance standards (e.g., meet with land conservation department staff to develop an erosion control plan that contains all sediment on the site). This approach can achieve a high level of compliance with ordinance objectives if the parties can reach agreement. Permit conditions that are routinely imposed for similar projects should be adopted by ordinance as additional standards for approval of specified conditional uses. Incorporating standards in an ordinance allows permit applicants to anticipate and plan for design, location and construction requirements.

Exactions require a developer to dedicate land or provide public improvements (or fees in lieu) in order for a project to be approved. They are not unique to permitting of conditional uses. Exactions and other conditions on development are generally legal and acceptable provided they meet the:

For example, a developer could be required to dedicate ten acres of parkland if the proposed development created a corresponding demand for recreational facilities in the community. If there were a greater need for recreational facilities, the new development should be charged only its proportional share. Exactions cannot be used to remedy existing deficiencies. A community must be able to document that an exaction is reasonable and to that end some local ordinances provide rationale and formulae for computing appropriate exactions and impact fees.

If conditional uses are decided by the BOA, they may be appealed to Circuit Court by any aggrieved person, taxpayer, officer or body of the municipality within 30 days of filing of the decision in the office of the BOA.⁹

A conditional use decided by the GB may be appealed to Circuit Court¹⁰ as provided by the applicable ordinance, or if the ordinance is silent, to Circuit Court within six months of the decision.¹¹ To achieve a reasonable balance between a short appeal period for landowners and developers that want to get started on their project and a long enough appeal period for neighbors and other affected people to react, we suggest including a 30 day appeal period in local ordinances where the GB makes CUP decisions.

If the local ordinance authorizes the PC to decide conditional uses, the decisions may be appealed to the BOA¹² by any aggrieved person or by an officer or body of the county, city, village or town subject to time limits specified by local ordinance or rules.¹³

Courts may interpret ordinance language de novo if the language is similar to that used in communities across the state.¹⁹

Published case law does not state what review standards are to be used when the BOA hears appeals of conditional use decisions made by PCs. Two recent unpublished cases, though they do not set legal precedent, do provide preliminary interpretations of the relevant statutes and ordinances.

The Court of Appeals decision, Wolff v. Grant County Board of Adjustment, states that sections 59.694(7) & (8) of Wisconsin statutes provide the BOA with the authority to hear conditional use appeals de novo because the BOA has all of the powers of the PC.²¹ Though this case refers to the statute for counties, the statute for cities, villages and towns has parallel wording.²² Therefore, the author of this article concludes that the BOA may also hear CUP appeals de novo in cities, villages and towns with village powers.

The Wolff decision, however, is limited by the 2003 case, Town of Dayton v. Waupaca County Zoning. In this case, the Court of Appeals upheld the Waupaca County ordinance authorizing the PC to decide conditional uses. Based on local ordinance provisions, this case also limited the authority of the BOA hearing conditional use appeals to the correction of erroneous interpretations of the terms of the ordinance (certiorari review standards).²³

To summarize these two unpublished cases: Wisconsin statutes provide authority for the BOA to hear conditional use appeals de novo,²⁴ but this statutory authority may be limited by local ordinances stating that BOA will hear appeals using certiorari standards.²⁵ While these legal decisions are not binding because they were not published, they do show how a local government can set the standard of review for BOA reviews of conditional use decisions made by the PC.

You can argue that a BOA should apply certiorari standards when hearing an appeal of a CUP decision. From an administrative efficiency standpoint, it doesn�t make sense to hear the same case twice. In addition, the goal is for the PC to make legally defensible decisions, not give applicants the opportunity to appeal their case for an additional de novo hearing if they don�t like the PC�s decision.

If you have a PC that repeatedly makes decisions that fail to meet the certiorari standards, consider providing training on legal standards for conditional use decisions or reassign the authority to decide conditional uses to the BOA.

• Review ordinance appeal provisions and clarify whether de novo or certiorari standards apply.
• If CUPs are decided by the GB, clearly state the appeal period in the ordinance.
• Consult with municipal counsel.
• Advise BOA of proper standards to use when hearing conditional use appeals.
• Promote well documented decisions by providing decision forms listing the appropriate decision standards. Forms should provide space for the BOA to note whether the standards are met and note the relevant evidence.
• If needed, schedule a training session for new BOA members or a refresher for more experienced members. The Center for Land Use Education offers these training sessions upon request.

Dresen, Michael D. and Lynn Markham. Zoning Board Handbook for Zoning Boards of Adjustment/Appeals, The Land Use Education Center, July 2001.

Lindberg, Neil. Special Permits: What They Are & How They Are Used. Planning Commissioners Journal, Issue 3, March/April 1992.

Ohm, Brian Guide to Land Use Planning in Wisconsin, University of Wisconsin- Extension, 1999.