Guide to Community Planning in Wisconsin by Brian W. Ohm
|Chapter 6: Zoning|
|Last Page Table of Contents Next Page|
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passing the rezoning and putting it into effect immediately, but coupling it with a condition that the rezoning will be repealed if the applicant fails to carry out a condition such as imposing a covenant or making a dedication of land for a street.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:
qThe 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.
(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).