Zoning Basics: Nonconformance; Conditional Uses & Special Exceptions; Variances.

Municipal Law Alert, October 2007

Overview

There is considerable overlap and interaction among the zoning concepts listed above, both in their legal framework and their application in the real world. This can lead to confusion, misunderstanding and sometimes costly lawsuits between members of the public and municipalities.

The goal of this article is to help the reader understand these terms and concepts and clarify some of the relevant Wisconsin legislation and case law.

Zoning implicates two distinct public policies:

  • individual property rights; and
  • public safety, health, and general welfare.

While these public policy objectives are often complementary, they do sometimes conflict. The act of zoning necessarily limits what a property owner can do with his or her property. On the other hand, property owners in a residential district would support a restriction that prevents a slaughterhouse or waste disposal facility being located in their neighborhood. Thus, property owners are generally in favor of some restrictions on property rights.

Despite some inevitable conflict, long range planning and zoning are legitimate and well-established municipal powers intended to promote the community’s health, safety and general welfare.

Nonconforming Uses & Nonconforming Structures

Most municipalities create zoning districts permitting and prohibiting various uses. Common examples are residential, commercial and industrial. Sometimes there are subcategories within the broad areas. Most municipalities implement dimensional regulations, such as setbacks, minimum lot sizes and height restrictions.

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