Rezoning Protest Petitions Under State Law Become a Thing of the Past as of January 1, 2019

As of January 1, 2019, rezoning protest petitions for cities will become a thing of the past, at least as required by the Wisconsin Statutes. 2017 Wisconsin Act 67 eliminated the statutory rezoning protest petition provisions.

Under existing law, cities may rezone property by a simple majority of the common council unless a proper protest petition is delivered to the city before the rezoning vote. A proper protest petition must be signed by 20% of adjoining or nearby landowners. Upon receipt of a petition by the appropriate number of adjacent or nearby landowners, the affirmative vote of three-quarters of the common council is required to rezone property.

As part of a significant set of changes enacted in the fall of 2017 to how municipalities govern land use, the legislature eliminated the protest petition provisions for cities from the statutes. However, this change first becomes effective on January 1, 2019.

Presumably, cities that have written the protest petition provisions into their ordinances will continue to be required to honor those provisions unless they amend the applicable ordinance. Generally, cities may establish their own rules unless the statutes specifically limit their powers. Nothing in 2017 Wisconsin Act 67 restricts cities from honoring protest petitions or creating protest petition ordinances, and nothing in the Wisconsin Statutes prohibits a city from requiring by ordinance a super majority vote for a rezoning.

Some cities have relied solely on the protest petition statute for rezoning requests but have adopted a protest petition ordinance to govern the granting of conditional uses. In those cities, applicants might find it easier to rezone property (generally considered to be a more significant change) than to seek a conditional use, and neighboring properties might find it easier to prevent the grant of a conditional use than to prevent a rezoning. However, as explained in an article in this blog posted on December 15, 2017, the legislature significantly limited the bases upon which communities may deny conditional use grants.

If you have any questions regarding this article, please contact its author, John Wirth, at jwirth@mzmilw.com or 414-727-6276.

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