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<br />designation or the zoning designation or per-
<br />mits for the property. Doing so would be
<br />anoth~r effective way of involving citizens in
<br />planning and zoning issues more effectively.
<br />The final two innovations have seen
<br />almost no progress. None of the 10 surveyed
<br />cities had a map- or addres~-based system to
<br />'explain the difference between planning and
<br />zoning designations-one of the major areas
<br />of confusion for many property owners. In
<br />addition, almost none had made progress in
<br />organizing their GIS and mapping systems so
<br />that they could automatically map for property
<br />owners the notification area,s around their
<br />properties necessary for differeht types of
<br />zoning permits and approvals.
<br />Nevertheless, this is an area where tl1e
<br />technological foundations are already in
<br />place: The time is ripe for developing new
<br />linkages and tailoring our massive abilities
<br />to colled and organize to begin answering
<br />planning and zoning questions for property
<br />owners. As the survey above shows, 10 large
<br />North American cities are on their way to
<br />doing just that. It is probably only a matter
<br />oftime.
<br />
<br />-- ~N~'!Y~CT~M~J~E~
<br />
<br />IIiiI PERMlmO USES
<br />
<br />By Brian W. Ohm
<br />
<br />In July 2008, the Wisconsin Supreme Court
<br />addressed the basic issue of whether a zoning
<br />district must include some permitted uses. The
<br />case involved the unincorporated community of
<br />the Town of Rhine in Sh,eboygan County, north of
<br />Milwaukee. The town had a zoning ordinance
<br />that included a "B-2 Commercial Manufacturing
<br />or Processing" district that expressly stated
<br />"[t]hereare no permitted uses" and "[a]l! uses'
<br />are conditional." The ordinance listed six cate-
<br />gories of conditional uses for the district: (1) fab-
<br />rication of consumer or industrial commodities;
<br />(2) garbage, rubbish, offal, industrial waste, and
<br />dead animal reduction or disposal; C3) quarry-
<br />ing: (4) mining and ore processing; (s) salvage .
<br />yards for wood, metals, paper, and clothing; and
<br />(6) stockyards.
<br />The case arose after a private off-highway
<br />vehicle club purchased 77;2 acres of land zoned
<br />B-2 in 2003 and used the property for riding all-
<br />terrain vehicles. At the time of the purchase, the
<br />land had been zoned B-2 for 20 years; In 2004,
<br />the town informed the club that it needed a con-
<br />
<br />ditional use permit to use the land. The club
<br />applied for a conditional use permit but the
<br />town'denied it. The club applied to rezone the
<br />property but that request was also denied. The
<br />town then sued to stop the AN use. The town
<br />alleged that the AN uses violated Rhine's public
<br />nuisance ordinance and asked fora determinac
<br />tion of ~heth~r the club was violating its zoning
<br />ordinance.
<br />, The trial court held that the town lacked
<br />standing to raise the public nuisanCe claim
<br />beca~se the property at issue was not a pub-
<br />lic place. The trial court also determined that
<br />Rhine's zoning ordinance was unconstitu-
<br />tional. The town appealed the trial court's
<br />decision to the Wisconsin Court of Appeals.
<br />Because of the importance ofthe fundamental
<br />question presented in the case, the Wisconsin
<br />Court of Appeals did not issue an opinion in
<br />the case anq certified the case to the
<br />Wisconsin Supreme Court, which accepted it.
<br />The Wisconsin S':1pr~me Court agreed with
<br />the trial court that the B-2 zoning district was
<br />unconstitutional, finding that that the town's
<br />zoning district was arbitrary and unreasonable
<br />because it precluded any uses in the district as,
<br />a matter of right. According to the court, this
<br />practice bore no substantial relation to the pub-
<br />lic health, safety, morals, or general welfare and
<br />hence was a violation ofthe constitutional guar-
<br />'aritee of substantive due process. The court
<br />noted that the town's exclusive reliance on con-
<br />ditional use perinits"opens the door to
<br />favoritism and discrimination." However, the
<br />court did state that there may be limited circum-
<br />stances, such in the case of floodplain zoning,
<br />in which not allowing any permitted uses is
<br />valid because the restriction bears substantial
<br />relation to public health, safety, morals, orwel-
<br />fare. The Wisconsin court also held that the trial
<br />court had applied the wrong definition in the
<br />public nuisance claim and sent that issue back
<br />to the trial court for a new hearing.
<br />To support its decision on the need for per-
<br />mitted 'uses in tlie zoning district, the Wisconsin
<br />Supreme Court cited several zoning treatises and
<br />publications of the American Planning
<br />Association including Zoning Practice and its
<br />predecessor, Zoning News. Several issues of
<br />Zaning Practice playa prominent role in the
<br />courfs opinion. It cited S. Mark White,
<br />"Classifying and Defining Uses and Building
<br />Forms: Land-Use Coding for Zoriing Regulatibns,"
<br />Zoning Practice (September 2005), to note that
<br />. conditional uses are different than permitted
<br />uses: 'While a permitted use is as of right, a con-
<br />
<br />ditional use does not provide that certainty with
<br />respect toland use." In addition, the court
<br />qUbted extensively from Gail Easley,
<br />"Conditional Uses: Using Discretion, Hoping for
<br />Certainty," Zoning Practice (May 2006), to sup-
<br />port its conclusion that "accepted i10ning prac-
<br />tice is to prOVide permitted uses as of right and
<br />then, in addition to permitted uses, the ordi-
<br />nance may provide for conditional uses." Later in
<br />the opinion, Easley's piece is used to support
<br />the courfs statement that "Conditional uses may
<br />be expressly permitted by the ordinance so long
<br />, as the conditions are met, but this does not ren-
<br />der them 'permitted uses.'" The court also
<br />quoted from John B. Bredin's Zoning News con-
<br />tribution entitled "Common Problems with
<br />Zoning Ordinances" (November 2002) to note
<br />the problems that arise when ordinances rely too
<br />heavily on conditional use permits. (Town of
<br />Rhine v. Bizzell,Wisconsin Supreme Court,
<br />Decided July 1, 2008, 2008 WI 76)
<br />
<br />Brian w., Ohm is professor and chair of the
<br />Department of Urban & Regional Planning atthe
<br />UniversityofWiscolJsin-Madison and reports (In
<br />recent court cases for the Wisconsin Chapter of
<br />the American Planning Association.
<br />
<br />. Cove; phof;~ Hendel5o~, Nevad~:s F~ture. - _.- -.
<br />- Land U~e f!!apping portaL @City of - - - ~"'__
<br />-' Henderson, _~eva_da. DfS!gn coii~l=pt lJy Li7a -
<br />: Barton:- _,_:', - . _ . .. -. _ __ _ ,_ <
<br />
<br />Vol. 25, No. 10
<br />_ Zoning Practice is a monthly publication or the
<br />American Planning Association. Subscriptions
<br />are available for $75 (U.S.) and $100 (foreign).
<br />W., Paul Farmer, FAICP, Executive Director:
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<br />
<br />Zoning Practice (ISSN 1548-0135) is produced
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<br />
<br />Copyright @2008 by American Planning
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<br />ZONING PRACTICE 10.08
<br />AMERICAN PUlNNING ASSOCIATION I pag9'9
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