By Christopher J. Jaekels & Michael Van Someren
Property Owners Are Not Entitled to Notice of Rezoning Unless They Request it in Writing
Under Wisconsin law, municipalities are not required to directly notify the owners of properties subject to rezoning. Generally, public notice (posting and newspaper publication) is sufficient notice under Section 62.23, Wis. Stats. to allow zoning change ordinances to be effective.
Municipalities Must Keep a List of Those Who Request Notice
Despite the general language of Section 62.23, Wis. Stats., under Section 62.23(7)(d)4, municipalities are required to “maintain a list of persons who submit a written request to receive notice of any proposed rezoning action that affects the allowable use of the person’s property.”
How it Works
Wherever the Municipality is poised to make an amendment to zoning of a particular property (i.e. Plan Commission has already made its recommendation) the Board or Council:
Shall send a notice, which contains a copy of the tentative recommendations, proposed changes to a proposed district plan, and regulations or proposed amendments, to each person on the list who’s property, the allowable use of which, may be affected by the tentative recommendation or proposed changes or amendments. The notice shall be by mail or any reasonable form that is agreed to by the person with the (Municipality). The (Municipality) may charge each person on the list to receive the notice a fee that does not exceed the approximate cost of providing the notice to the person.
Even though municipalities are required by law to maintain the list and to provide notice, a failure to provide notice will not invalidate a rezoning:
An ordinance or amendment that is subject to this subdivision may take affect even if the (municipality) fails to send the notice that is required by this subdivision.¹
In some cases failure to maintain the list or to notify might still have consequences. The failure to maintain the list or to provide notice could invalidate an act of rezoning upon challenge if the failure to maintain the list or the failure to notify was intentional, arbitrary and capricious, or the result of gross negligence or conduct in reckless disregard of the rights of property owners. The legislative history of Section 62.23(7)(d)4 supports the premise that an intentional failure to provide notice to property owners that have requested such notice will invalidate zoning ordinance changes. The Legislative Reference Bureau provided an analysis of the 2005 Assembly Bill 620, which created the current form of Section 62.23(7)(d)4. The Legislative Reference Bureau’s analysis stated:
Under the bill, an ordinance may take effect even if the political subdivision does not comply with the bill’s notice requirements, unless the political subdivision intentionally fails to provide the notice. (emphasis added)
Recommendation for Municipalities
Municipalities should maintain a list of property owners who have made this request and document the maintenance of that list (even if it is blank). It would be best to have such a list maintained by the Municipal Clerk’s office together with the official map and to post a notice of the availability of the list and the requirements for submittal on the Municipality’s website. The requirements for maintaining and checking the list should be included in the job description for the Municipal Clerk and in the Municipal records retention policy. Legal counsel can help ensure this is done properly. Failure to maintain such a list and include its maintenance and checking in the job description of the Municipal Clerk and in the Municipal records retention policy may open the door to a claim of intentional failure to provide notice of zoning changes to those owners who have requested such notice.
Recommendation for Property Owners
Property owners should submit a written request to the governing municipality to be notified of impending zoning changes for each property owned. The statute does not honor such requests from tenants or from buyers under contract, however owners should work with tenants and buyers to ensure such notice rights are preserved. There are no statutory standards that the written request must meet in order to obligate the municipality to provide notice of any proposed zoning changes. Legal counsel can not only help draft the request for notice and establish entitlement to notice, but can also help defend against unwanted zoning changes when such a notice is received.
If you have any questions regarding this article, please contact your Davis & Kuelthau attorney, or the authors, Christopher J. Jaekels at 414.225.1409 / cjaekels@dkattorneys.com or Michael Van Someren at 414.225.1433 / mvansomeren@dkattorneys.com.