During the 2023-24 legislative session, the League worked with a group of partners on a series of housing bills aimed at addressing the many housing challenges communities across the state are experiencing. On June 22, 2023, the governor signed 2023 Wis. Act 16 into law. Act 16 is a housing bill that addressed the procedure for amending zoning ordinances, approval of "permits" for residential housing developments, judicial review of local residential development decisions, and planned development district zoning.
Certain provisions of Act 16 went into effect immediately and other provisions had a delayed effective date of January 1, 2025. With that time now here, municipalities should ensure they are up to speed with the Act's requirements.
Amending Zoning Ordinances
2017 Wis. Act 243 repealed Wis. Stat. § 62.23(7)(d)2m.a, which required a three-fourths vote by the governing body to approve a proposed zoning amendment when a protest petition was filed. Although the statutory protest petition was eliminated, the League had opined that municipalities could still enact local ordinances that established a protest petition process like the former Wis. Stat.§ 62.23(7)(d)2m.a., because nothing in the law prohibited such ordinances. Under Act 16, state law now prohibits municipalities from establishing such a process at the local level. Wisconsin Stat.§ 66.10015(3)(a) provides that a zoning amendment only requires approval by a simple majority of a quorum of the members-elect. However, a two-thirds vote will still be required for a down zoning ordinance pursuant to Wis. Stat.§ 66.10015(3)(6) and for a zoning amendment when an airport protest petition is brought pursuant to Wis. Stat.§ 62.23(7)(d)2m.
This new provision took effect on January 1, 2025. The delayed effective date was intended to give municipalities time to update any local ordinances that require a now-prohibited super-majority vote for proposed zoning amendments. If your municipality has such an ordinance that has not been amended to comply with § 66.10015(3)(a), it should make the necessary changes now and work with the municipal attorney, if needed, to do so.
Approval of Residential Housing Developments
Zoning is used to regulate how property owners may use their land. Zoning ordinances generally identify permitted uses, conditional uses, and prohibited uses. When a use is permitted, the property owner is entitled to use land in that manner as a matter of right. Act 16 addressed administrative approvals related to permitted uses for residential housing developments. The Act created Wis. Stat.§ 66.10016, which requires municipalities to grant applications for a "permit" related to a "residential housing development" if the application for the permit is complete when submitted and meets all existing requirements that must be satisfied to obtain the permit at the time the application is filed.
The statute defines "permit" to mean any permit or administrative approval required to proceed with a residential housing development. "Permit" does not include a change to an existing zoning ordinance or zoning classification of land or an approval of a conditional use as defined under Wis. Stat. § 62.23(7)(de)l.a. "Residential housing development" means a development for single-family or multifamily housing for sale or rent.
While § 66.10016 is a new statute, it does not require municipalities to do anything they were not previously required to do. Rather, the law emphasizes that once a permitted use for a residential housing development is established, municipalities must grant related permits and administrative approvals when the applications meet all existing requirements the municipality has identified prior to submission. This requirement only applies in the context of permitted uses and does not apply to legislative decisions (e.g., rezoning requests) or quasi-judicial decisions (e.g., conditional use permit applications).
If a municipality fails to approve a complete permit application that meets all existing requirements when submitted, the aggrieved applicant may seek relief through an action for mandamus. If the court finds the municipality improperly failed to approve the application, the court must issue a writ of mandamus ordering the municipality to approve the application.
Section 66.10016 took effect on January 1, 2025. Despite the delayed effective date, municipalities have nonetheless been required to grant permit applications for permitted uses when all existing requirements are met. However, municipalities may want to consider reviewing their zoning codes and local ordinances immediately to ensure they are satisfied with the current permitted uses for residential housing developments and related requirements that must be met for approval. The League encourages members to work with their municipal attorney, if needed, to make any necessary changes.
Judicial Review of Residential Development
Act 16 also created Wis. Stat.§ 781.10, which established a new statutory certiorari review procedure for decisions on applications for a permit or authorization for building, zoning, driveway, stormwater, or other activity related to "residential development."Under § 781.10, "residential development" means the development or redevelopment of land or buildings for the primary purpose of providing housing.
Section 781.10 limits the pool of parties that have standing to appeal such decisions to:
(1) The person who submitted the application.
(2) A person with an ownership interest in the real property that is the subject of an application for an approval.
(3) A person that, as a result of the final decision on the application for an approval, sustains actual damages or will imminently sustain actual damages that are personal to the person and distinct from damages that impact the public generally. A person under this subdivision may not seek review under this section unless, prior to the final decision on the approval, the person provided a statement in writing on the approval to the political subdivision or agency of the political subdivision or appeared and provided an oral statement at a public proceeding held by the political subdivision or agency of the political subdivision at which the approval was considered.
(4) Certain corporate bodies affiliated with a person under (1),(2), or (3).
(5) A local governmental unit, as defined in Wis. Stat. § 66.0131(1)(a).
(6) To the extent authorized by law, a state agency, as defined in Wis. Stat.§ 20.931(1)(c), that is aggrieved by the final decision on the application for approval.
Section 781.10 also establishes an expedited timeframe for judicial review. An individual must file a complaint within 30 days of the municipality's final decision. Municipalities will have 45 days to file an answer or other responsive pleading to the complaint and must also transmit the record under
Wis. Stat.§ 781.03(1) no later than 30 days after an answer or other responsive pleading is filed. The court must require any additional pleadings, motions, and supporting papers to be filed within 90 days after the municipality's deadline to file an answer or other responsive pleading to the complaint. Additionally, the court may only supplement the record on review upon motion of a party for good cause. After the 90-day deadline, the court has 60 days to issue its decision.
The § 781.10 certiorari review procedure took effect on June 23, 2023, and applies to any complaint filed in response to a decision on an application for a permit or authorization for building, zoning, driveway, stormwater, or other activity related to "residential development." However, effective January 1, 2025, § 781.10(2)(a) was amended to reflect that persons aggrieved by a political subdivision's failure to approve a residential housing development application under Wis. Stat. § 66.10016(3) may seek relief through an action for mandamus, not via§ 781.10. Due to the expedited timeline for review established by§ 781.10, municipalities should become familiar with the new procedures if they haven't already. Municipalities should also ensure there are adequate processes in place for developing full and complete records related to any decision subject to certiorari review under§ 781.10, because the court will only supplement the record upon a showing of good cause.
The Court of Appeals District III recently addressed one of the first appeals brought under this new certiorari review procedure in St. Croix Scenic Coalition, Inc. v. Village of Osceola, 2024 WI App 73.
Planned Development Districts
A planned development district (PDD), also known as planned unit development, is a type of zoning district designed to encourage the efficient and optimal use ofland. Prior to Act 16, Wis. Stat.§ 62.23(7)(b) ostensibly required a PDD to promote each of three specific purposes: (1) coordinated area site planning, (2) diversified location of structures, and (3) mixed compatible uses. Requiring a PDD to meet each purpose impaired the flexibility PDDs were intended to provide. Act 16 clarified that a PDD may be established even if it does not contain mixed compatible uses.
Conclusion
2023 Wisconsin Act 16 made several notable changes to Wisconsin's housing laws. With all of its provisions now in effect, municipalities must confirm their ordinances and practices are in compliance with the Act's requirements. The League encourages municipalities to consult with their municipal attorneys, if needed, to adapt to these new legal frameworks and ensure they are well-positioned to meet housing and development goals.
This article was orginally published in the February issue of The Municipality, published by the League of Wisconsin Municipalities. Republished with permission.
