Wisconsin Legislative Council
ACT MEMO
One Ea st Ma in Stre e t, Suite 401 • Ma dison, W I 53703 • (608) 266-1304 • le g.council@le gis.wisconsin.gov • http://www.le gis.wisconsin.gov/lc
Prepared by: Ethan Lauer, Senior Staff Attorney August 1, 2023
2023 Wisconsin Act 16
[2023 Assembly Bill 266]
Local Regulation of
Property Development
2023 Wisconsin Act 16 addresses the following topics: (1) judicial review of local residential
development decisions; (2) approval of permits for residential housing developments; (3) the procedure
for amending a zoning ordinance; (4) appeal of county conditional use permit decisions; and (5)
planned development district zoning.
JUDICIAL REVIEW OF LOCAL RESIDENTIAL DEVELOPMENT DECISIONS
Background
The following land use decisions of a local governing body may be challenged by an action for certiorari
review
1
in circuit court under specified statutory procedures: the denial of a conditional use permit; a
decision by a zoning board of appeals or zoning board of adjustment; a decision relating to, or in
reliance on, an official map; and an objection to a plat or a failure to approve a plat.
The action may be commenced only by one of the following parties:
A person aggrieved by a decision of a zoning board of appeals or zoning board of adjustment.
A person aggrieved by an objection to a plat or a failure to approve a plat.
A taxpayer.
Any officer, department, board, or bureau of the municipality.
The action may be commenced only within 30 days after the land use decision is filed in the office of the
relevant governing body. The reviewing court may reverse or affirm the decision, wholly or partly, or
may modify it.
2023 Wisconsin Act 16
The act establishes a new form of certiorari review for any final decision of a local governing body
regarding an application for a permit or authorization for building, zoning, driveway, stormwater, or
other activity related to residential development.
2
The act requires that the action may be filed only within 30 days of the final decision, and it specifies
timelines within which other steps in the action must proceed. The act authorizes the court to reverse or
1
Certiorari review is a limited review of another entity’s decision. The scope of review includes such matters as whether
the entity stayed within its jurisdiction, whether it proceeded on a correct theory of law, whether its action was
arbitrary, oppressive, or unreasonable, and whether the evidence reasonably supported its decision.
2
“Residential development” means the development or redevelopment of land or buildings for the primary purpose of
providing housing. - 2 -
affirm the final decision, remand the final decision to the local governing body, or take any other action
that the court deems appropriate in the interests of justice that is consistent with certiorari review.
The act specifies that the action may be commenced only by one of the following:
The person who submitted the application.
A person with an ownership interest in the real property that is the subject of the application.
A person who, as a result of the final decision, sustains or will imminently sustain actual damages
that are personal to the person and distinct from damages that impact the public generally, but only
if the person either provided a statement in writing to the governing body before it issued the final
decision or appeared and provided an oral statement at a public proceeding at which the permit or
authorization was considered.
Certain corporate bodies affiliated with any person belonging to the above-three categories.
A local governmental unit.
3
To the extent authorized by law, a state agency that is aggrieved by the final decision.
The act provides that the new form of certiorari review generally is the only review available for a final
decision on this type of application. However, effective January 1, 2025, a person aggrieved by the
failure of a local governing body to approve certain residential housing developments may seek relief
through an action for mandamus, as described below.
APPROVAL OF RESIDENTIAL HOUSING DEVELOPMENTS
Background
A zoning ordinance generally may specify permitted uses, conditional uses, and prohibited uses. A
permitted use allows a landowner to use land in the specified manner as a matter of right. A conditional
use allows a landowner to use land only under conditions specified in a conditional use permit. A
prohibited use is not allowed under any conditions.
2023 Wisconsin Act 16
The act requires a local governing body to grant an application for any permit or administrative
approval required to proceed with a residential housing development
4
if the application is complete and
meets all existing requirements for the permit or approval.
5
A person aggrieved by the failure of a local
governing body to approve an application may seek relief through an action for mandamus. If the court
finds that the local governing body improperly failed to approve the application, the court must order
the local governing body to approve it.
These provisions take effect on January 1, 2025.
3
“Local governmental unit” means a political subdivision of this state, a special purpose district in this state, an agency
or corporation of a political subdivision or special purpose district, or a combination or subunit of any of the foregoing.
4
A “residential housing development” means a development for single- or multi-family housing for sale or rent.
5
For these purposes, a local governing body is not required to change existing zoning or to issue a conditional use
permit. - 3 -
PROCEDURE FOR AMENDING A ZONING ORDINANCE
Background
Prior law required a supermajority vote by the relevant governing body to amend a zoning ordinance in
three instances. One of those instances was as follows:
If 50 percent of certain affected landowners protested a proposed change to a county zoning
ordinance or to a town zoning ordinance, the change could be adopted only if approved by a three-
fourths vote.
6
The other two instances, unaffected by the act, are as follows:
A city, village, county, or town may enact a down zoning ordinance
7
only by a two-thirds vote, unless
the affected landowner requested or agreed to the ordinance, in which case it may be adopted by a
simple majority vote.
If the owner or operator of an airport protests a proposed change to a zoning ordinance affecting
land within a certain distance from the airport, the change may be adopted only if approved by a
two-thirds vote.
Beyond those three instances, prior law did not specify the minimum vote required to amend a zoning
ordinance.
2023 Wisconsin Act 16
The act repeals the supermajority vote requirement listed in the first bullet, above.
While leaving in place the supermajority vote requirements listed in the second and third bullets, above,
the act specifies that—effective January 1, 2025—the enactment of a zoning amendment requires only a
simple majority vote by the relevant governing body.
APPEAL OF COUNTY CONDITIONAL USE PERMIT DECISIONS
Background
Under prior law, if a county denied an application for a conditional use permit, the applicant could have
appealed either to the county board of adjustment or to circuit court for certiorari review.
2023 Wisconsin Act 16
Under the act, a county may, by ordinance, provide that such a decision can be appealed only to circuit
court for certiorari review.
6
A similar supermajority requirement regarding a protest by 20 percent of affected landowners to a change in city
zoning was repealed by 2017 Wisconsin Act 243.
7
A “down zoning ordinance” decreases allowable development density or reduces permitted uses. [s. 66.10015 (1) (as),
Stats.] - 4 -
PLANNED DEVELOPMENT DISTRICT ZONING
Background
A municipality may exercise a type of zoning known as a planned development district, sometimes also
called a planned unit development. Under prior law, a planned development district was one that would
tend to promote the maximum benefit from each of the following:
Coordinated area site planning.
Diversified location of structures.
Mixed compatible uses.
2023 Wisconsin Act 16
The act allows the establishment of a planned development district even if it does not contain mixed
compatible uses.
Effective date: The act generally took effect on June 24, 2023, and initially applies to a final decision
made by a local governing body on that date. Provisions relating to the requirement that a local
governing body approve a residential housing development that meets all existing requirements, and
relating to the establishment of a simple majority vote requirement for a zoning amendment, take effect
on January 1, 2025.
For a full history of the bill, visit the Legislature’s bill history page.
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