A Local Government May Consider Conditional Uses in a Zoning Category In Reviewing a Rezoning Application
In a case recommended for publication (Dyersville Ready Mix Inc. v. Iowa Cnty. Bd. of Supervisors, No. 2024AP1091, 2025 WL 1078289 (Wis. Ct. App. 2025)), the Wisconsin Court of Appeals recently held that local governments may consider the allowed conditional uses in a zoning district when deciding a rezoning application.
What Did the Property Owner Propose?
Dyersville Ready Mix Inc. d/b/a BARD Materials applied to Iowa County to rezone a 100-acre property located in the Town of Brigham, Iowa County, from A-1 Exclusive Agricultural District to AB-1 Agricultural Business District. At the same time, BARD also applied for a conditional use permit to operate a nonmetallic mine on the property, which is an allowed conditional use in the AB-1 District, but not in the A-1 District. Therefore, the property first needed to be rezoned from A-1 to AB-1 for BARD’s conditional use permit application to be considered.
What is the Relevant Zoning Law?
Iowa County’s A-1 and AB-1 zoning districts do not differ substantially in permitted uses. Both identify farming uses as permitted as matter of right. However, the A-1 and AB-1 differ substantially in allowed conditional uses. The permissible uses in the AB-1 District are more intensive and industrial/commercial in nature, consistent with Iowa County’s classification of AB-1 as a business zoning district as opposed to an agricultural district.
Under Iowa County’s zoning ordinance, the County Board of Supervisors shall approve a rezoning application only if eight specific findings are made, one of which is that the rezoning is “consistent with the Iowa County Comprehensive Plan and the comprehensive plan of any Town affected by said petition.” The Town Board for the Town of Brigham recommended the County Board deny BARD’s rezoning application because it was not consistent with the Town’s comprehensive plan, which seeks to preserve agricultural uses and farmland.
How Did the County Board Address BARD’s Rezoning Application?
The County Board ultimately denied BARD’s rezoning application, determining that BARD’s proposed rezoning was not consistent with the Town’s comprehensive plan. The denial of BARD’s rezoning application foreclosed its conditional use permit application.
How Did BARD Challenge the County Board’s Decision?
BARD appealed the County Board’s denial of its rezoning application to the Iowa County Circuit Court by filing a declaratory judgment action. However, in a prior decision, the Court of Appeals determined that the proper method of review was common law certiorari (Dyersville Ready Mix Inc. v. Iowa Cnty. Bd. of Supervisors, No. 2021AP1608, 2022 WL 11555313 (Wis. Ct. App. Oct. 20, 2022) (unpublished). On remand, using certiorari standards, the Circuit Court affirmed the County Board’s denial of BARD’s rezoning application, and BARD then appealed to the Court of Appeals. Among its arguments on appeal, BARD asserted that when considering a rezoning application, the County Board could not consider the allowed conditional uses in the zoning district to which the rezoning would occur. BARD argued that because agricultural uses were permitted uses in both the A-1 and AB-1 Districts, there was no basis on which to deny its rezoning application.
What Did the Court of Appeals Decide?
The Court of Appeals rejected all of BARD’s arguments, but two specific arguments that were rejected apply globally to rezoning applications and are not based upon Iowa County’s Zoning Code. First, the Court of Appeals rejected BARD’s argument that the County Board erred by considering potential conditional uses in the A-1 and AB-1 zoning districts, such as BARD’s proposed nonmetallic mine. BARD posited that the County Board was required to rezone the property because the permitted uses in each district were substantially similar. In dismissing that argument, the Court of Appeals stated, “the Board had an ample basis to conclude that, when it comes to conditional uses, the zoning districts’ purposes diverge in a way that could implicate the agricultural-land rationale in connection with the proposed rezoning of the parcel” and that among these concerns were that the extent of allowed conditional uses in the AB-1 District “would be more likely to reduce available crop land than the conditional uses available in [the A-1 district].” The Court of Appeals held that a governmental body, such as the County, may take allowed conditional uses into account when considering whether to grant a rezoning application.
Second, the Court of Appeals also rejected BARD’s argument that the County Board applied conditional use permit approval standards to its rezoning application. While the Town Board and the County’s Planning and Zoning Committee, both of which advised the County Board on BARD’s application, may have comingled the rezoning and conditional use approval standards, the Court of Appeals observed that the record demonstrated the County Board, the body with the jurisdiction to grant the rezoning application, remained focused solely on the rezoning standards.
What Are the Key Takeaways for Local Governments and Land Use Practitioners?
Following Dyersville Ready Mix Inc. v. Iowa Cnty. Bd. of Supervisors, local governments may consider what conditional uses are allowed in zoning districts as part of a rezoning application, although they cannot consider the conditional use application itself. If a local government receives simultaneous rezoning and conditional use permit applications, while consideration of allowed conditional uses may inform the rezoning decision, it remains critical that the governmental body not comingle the required rezoning and conditional use decisions.
