Guide to Community Planning in Wisconsin by Brian W. Ohm

Chapter 6:  Zoning
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2.5.2  Conditional Zoning

Conditional zoning is the attachment, to a rezoning, of conditions that are not spelled out in the text of the zoning ordinance. The zoning authority makes no promises, but receives a binding agreement from the land owner. The actual agreement is usually a covenant or deed restriction that may be enforced by the local unit of government.

Conditional zoning differs from "true" contract zoning in that the conditions are placed on the property by the landowner in order to convince the local government to pass the rezoning, but the local government does not reciprocate by contracting to pass the rezoning. Conditional zoning is, therefore, legal.

In some instances, conditional zoning operates in the following way: The property owner puts the conditions on the property and then formally applies for the rezoning. The locality, seeing the conditions, passes the rezoning without being legally bound to do so.

But, what if the landowner doesn't trust the local government to match the placing of special conditions with the passing of the rezoning? In this situation, the local governing body can pass the rezoning amendment today, but give the amendment a delayed effective date. The delayed effective date is the future date on which the landowner puts the desired controls on the property by covenant. Exactly this form of conditional zoning, a delayed, contingent effective date, was approved by the Wisconsin Supreme Court. (101

Another variation on conditional zoning happens when the community takes the first step by passing the rezoning and putting it into effect immediately, but coupling it with a condition that the rezoning will be repealed if the applicant fails to carry out a condition such as imposing a covenant or making a dedication of land for a street. This arrangement has been treated by the Supreme Court twice. In the first case, (102 the court danced around the issue, wondering if the repealer would be legal without the notices and hearings normally accompanying a zoning change. In a later case, (103)  the court sanctioned a conditional rezoning with an automatic repealer mechanism. This leaves the legal status of the automatic repealer relatively secure in Wisconsin.

The following guidelines and suggestions should be considered by communities contemplating the use of contract or conditional zoning arrangements:

q The local zoning authority may not be party to a contract binding itself to rezone, although it is permissible for the zoning authority to recognize the conditions and be motivated to rezone because the conditions exist.
q
The conditional rezoning must meet the general test of all rezoning promoting the general safety, welfare, and health of the community and it must not constitute illegal spot zoning. The special conditions attached should be reasonable. To be sure they are reasonable, the special conditions could be based on a community plan. The argument that conditional rezoning disrupts the plan or represents spot zoning will be diminished if similar conditions are called for in the plan.
q The local zoning ordinance should contain a section explaining the intent and form of conditional zoning provisions. If the provisions contain an automatic repealer clause providing that the zoning reverts back to the original zoning if the conditions are not met within a set time limit, a specific time limit should be included. Also, if this form is to be used, notice should be given and a public hearing conducted on repeal to avoid a possible challenge on due process grounds. If the form of the provisions is that the zoning becomes effective only upon the conditions being met within a time limit, the time limit should be specified in the ordinance, and definite standards for compliance should be provided. 
q Conditional zoning should be used only to deal with particular circumstances that arise at the time of rezoning. If a unit of government wants to put conditions on certain uses of land whenever they arise, other methods which permit application of conditions are available, such as special exceptions and conditional uses.

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(101)  Konkel v. Delafield, 68 Wis.2d 574, 229 N.W.2d 606 (1975).
(102)  Konkel v. Delafield, 68 Wis.2d 574, 229 N.W.2d 606 (1975).
(103)  Howard v. Village of Elm Grove, 80 Wis.2d 33, 257 N.W.2d 850 (1977).