Homeowner Not Entitled to Receive Building Permit After Zoning Ordinance Amendment

The Wisconsin Builders Association Hotline is a service provided for the Wisconsin Builders Association by the law firm of Axley Brynelson, LLP. Legal Hotline answers should be considered a general statement of applicable legal information. Given this format, it is impossible to fully address all potential legal issues which might apply in any particular situation. A determination of any individual’s legal rights in a transaction can only be obtained after a complete analysis of the law and its applicability to the particular fact situation. Please contact the author of the article if additional information is needed, or private counsel, if legal advice is needed.

Is a homeowner that failed to get a building permit before a municipal zoning ordinance was amended entitled to that permit, simply because he/she has a set of municipally approved plans that met the previous zoning ordinance?

A. Generally speaking, the homeowner is not entitled to receive a permit. The seminal case on this point is Lake Bluff Partners v. South Milwaukee, 197 Wis. 2d 157, 540 N.W.2d 189 (1995). In that case, a developer purchased a piece of property zone C-2, which allowed for multi-family development. Shortly after, the developer began the development process to construct a multi-family development, including meeting with the city in order to confirm that its project was allowed. The city confirmed that it was allowed. After that meeting, the developer made some changes to its plans, and applied to the city for a building permit. The city denied the permit application.

In the meantime, the city rezoned the subject property to only allow single-family residences. Thus, the multi-family project no longer complied with the zoning ordinance in effect. The developer sued the city in an attempt to force the city to issue the permit. Ultimately, the case went all the way to the Wisconsin Supreme Court.

In considering whether the city had to issue the permit, the Wisconsin Supreme Court clarified the circumstances under which a municipality has to allow a building project to go forward:

1. Once a building permit has already been issued that complies with the zoning at the time of application;
2. When the developer submits an application for a building permit that conforms to the zoning or building code requirement in effect at the time of application.

Generally speaking, in the case where a property owner or developer makes an application for a building permit that does not comply with the zoning in effect at the time of that application, the Wisconsin Supreme Court has made it clear – the municipality should not issue the permit.

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