28.183 - CONDITIONAL USES.
(1) Statement of Purpose.
This Chapter divides the City into districts where the design, use, bulk and location of buildings and structures are compatible. However, some uses, and in some cases, design, bulk, and building location, have unique characteristics, and therefore cannot be properly allowed as unrestricted permitted uses. The City requires consideration, in each case, of their impact on neighboring land or public facilities, and of the public need for the particular use at a particular location. These uses may be necessary or desirable in a particular district if sufficient consideration is given to their location, development and operation.
(2) Applicability and Initiation.
This section applies to those uses that are enumerated as conditional uses in the zoning district regulations (Subchapters 28C through 28I).
Any Eligible Applicant (See Sec. 28.181(2)) may file an application for a conditional use permit with the Zoning Administrator.
(3) Completeness Review.
See Sec. 28.181(4).
(4) Notice.
A conditional use permit application requires the following type of notice (See Sec. 28.181(5)):
(a) Preapplication. Failure to provide notice does not invalidate any action taken on the application by the Plan Commission or Common Council. The notice requirement may be waived, if approved by the Alderperson, and Director of Planning and Community and Economic Development.
(b) Mail. Notice of the required public hearing shall be sent at least ten (10) days before the public hearing.
(c) Publication.
(5) Decision.
(a) City Plan Commission.
1. The Plan Commission shall hold a public hearing on each complete application. The hearing shall be conducted and recorded in accordance with the Plan Commission's Policies and Procedures Manual.
2. The Plan Commission shall approve, approve with conditions, deny, or place on file any application for a conditional use.
3. The Plan Commission shall render its decision within a reasonable time.
4. The concurring vote of a majority of quorum of the Plan Commission is required to approve a conditional use.
5. The decision of the Plan Commission shall include findings of fact. When a conditional use application is denied, the findings of fact shall list the standard(s) that have not been met and the reasons such standard(s) was not met.
6. When reviewing a conditional use application that involves any new construction of a building or an addition to an existing building, the Plan Commission may require the applicant to submit plans to the Urban Design Commission for comments and recommendations. Alternatively, an applicant may choose to go to the Urban Design Commission for an advisory recommendation and comment prior to going to the Plan Commission if advised by the Plan Commission Secretary or District Alder. (Am. by ORD-22-00103, 10-21-22)
(b) Appeal From Action by Plan Commission.
1. The Plan Commission's decision is appealable to the Common Council.
2. The appeal may be filed by:
a. The applicant, or
b. The Alderperson of the district in which the use is located, or
c. Twenty percent (20%) or more of the property owners entitled to notice who object to the establishment of the conditional use. (Am. by ORD-12-00147, 12-5-12)
3. The appeal shall specify the grounds with specific reference to the findings of the Plan Commission.
4. The appeal shall be filed with the Secretary of the Plan Commission within ten (10) days of the final action of the Plan Commission.
5. The Secretary of the Plan Commission or their designee shall transmit the appeal to the City Clerk, who shall file the appeal with the Common Council.
6. The Common Council shall fix a reasonable time for hearing the appeal, and decide the appeal within a reasonable time.
7. The Common Council shall give public notice and due notice to the parties in interest.
8. The action of the Plan Commission shall be upheld unless it is reversed or modified by a favorable vote of two-thirds (⅔) of the members of the Common Council.
9. Any person aggrieved by the decision of the Common Council or any alderperson, officer, department, board or bureau of the City, may, within thirty (30) days after the decision is published in the proceedings of the Common Council, commence an action seeking the remedy available by certiorari. (Am. by ORD-14-00165, 10-29-14)
(6) Approval Standards.
(a) The City Plan Commission shall not approve a conditional use without due consideration of the recommendations in the City of Madison Comprehensive Plan and any applicable, neighborhood, neighborhood development, or special area plan, including design guidelines adopted as supplements to these plans. No application for a conditional use shall be granted by the Plan Commission unless it finds that all of the following conditions are present:
1. The establishment, maintenance or operation of the conditional use will not be detrimental to or endanger the public health, safety, or general welfare.
2. The City is able to provide municipal services to the property where the conditional use is proposed, given due consideration of the cost of providing those services.
3. The uses, values and enjoyment of other property in the neighborhood for purposes already established will not be substantially impaired or diminished in any foreseeable manner.
4. The establishment of the conditional use will not impede the normal and orderly development and improvement of the surrounding property for uses permitted in the district.
5. Adequate utilities, access roads, drainage, internal circulation improvements for pedestrians, bicyclists, public transit and vehicles, parking supply (in cases with minimum parking requirements) and other necessary site improvements have been or are being provided. (Am. by ORD-23-00013, 1-25-23)
6. The conditional use conforms to all applicable regulations of the district in which it is located.
7. When applying the above standards to an application by a community living arrangement, the Plan Commission shall:
a. Bear in mind the City general intent to accommodate community living arrangements.
b. Exercise care to avoid an over-concentration of community living arrangements, which could created an institutional setting and seriously strain the existing social structure of a community. Considerations relevant for this determination are the distance between the proposed facility and other such facilities, the capacity of the proposed facility and the percentage by which the facility will increase the population of the community, the total capacity of all community living arrangements in the community, the impact on the community of other community living arrangements, the success or failure of integration into communities of other such facilities operated by the individual or group seeking approval, and the ability of the community to meet the special needs, if any, of the applicant facility.
8. When applying the above standards to any new construction of a building or an addition to an existing building the Plan Commission shall find that the project creates an environment of sustained aesthetic desirability compatible with the existing or intended character of the area and the statement of purpose for the zoning district. In order to find that this standard is met, the Plan Commission may require the applicant to submit plans to the Urban Design Commission for comment and recommendation. (Am. by ORD-14-00030, 2-18-14)
9. When applying the above standards to an application for a reduction in off-street parking requirements, the Plan Commission shall consider and give decisive weight to all relevant facts, including but not limited to, the availability and accessibility of alternative parking; impact on adjacent residential neighborhoods; existing or potential shared parking arrangements; number of residential parking permits issued for the area; proximity to transit routes and/or bicycle paths and provision of bicycle racks; the proportion of the total parking required that is represented by the requested reduction; the proportion of the total parking required that is decreased by Sec. 28.141. The characteristics of the use, including hours of operation and peak parking demand times design and maintenance of off-street parking that will be provided; and whether the proposed use is now or a small addition to an existing use.
10. When applying the above standards to telecommunication facilities, the Plan Commission shall consider the review of the application by a professional engineer required by Sec. 28.143.
11. When applying the above standards to an application for height in excess of that allowed in the district, the Plan Commission shall consider recommendations in adopted plans; the impact on surrounding properties, including height, mass, orientation, shadows and view; architectural quality and amenities; the relationship of the proposed building(s) with adjoining streets, alleys, and public rights of ways; and the public interest in exceeding the district height limits.
12. When applying the above standards to lakefront development under Sec. 28.138, the Plan Commission shall consider the height and bulk of principal buildings on the five (5) developed lots or three hundred (300) feet on either side of the lot with the proposed development.
13. When applying the above standards to an application for height in excess of that allowed by Section 28.071(2)(a) Downtown Height Map for a development located within the Additional Height Areas identified in Section 28.071(2)(b), the Plan Commission shall consider the recommendations in adopted plans, and no application for excess height shall be granted by the Plan Commission unless it finds that all of the following conditions are present:
a. The excess height is compatible with the existing or planned (if the recommendations in the Downtown Plan call for changes) character of the surrounding area, including but not limited to the scale, mass, rhythm, and setbacks of buildings and relationships to street frontages and public spaces.
b. The excess height allows for a demonstrated higher quality building than could be achieved without the additional stories.
c. The scale, massing and design of new buildings complement and positively contribute to the setting of any landmark buildings within or adjacent to the projects and create a pleasing visual relationship with them.
d. For projects proposed in priority viewsheds and other views and vistas identified on the Views and Vistas Map in the City of Madison Downtown Plan, there are no negative impacts on the viewshed as demonstrated by viewshed studies prepared by the applicant.
14. When applying the above standards to an application to redevelop a site that was occupied on January 1, 2013 by a building taller than the maximum building height allowed by Section 28.071(2)(a) Downtown Height Map, as provided by Section 28.071(2)(a)1., no application for excess height shall be granted by the Plan Commission unless it finds that all the following additional conditions are also present:
a. The new building is entirely located on the same parcel as the building being replaced.
b. The new building is not taller in stories or in feet than the building being replaced.
c. The new building is not larger in total volume than the building being replaced.
d. The new building is consistent with the design standards in Section 28.071(3) and meets all of the dimensional standards of the zoning district other than height.
e. The Urban Design Commission shall review the proposed development and make a recommendation to the Plan Commission.
15. When applying the above standards to an application for limited production and processing use, the Plan Commission shall consider the effect of such a use on the surrounding properties, including the effects of odors, noise, vibration, glare, hours of operation, and other potential side effects of a manufacturing process. (Cr. by ORD-15-00124, 11-11-15)
16. When applying the above standards to an application for allowable projections into the capitol view height area, the Plan Commission shall only approve the projection if it determines the encroachment is the minimum necessary and does not significantly impact the long views of the State Capitol building. (Cr. by ORD-19-00090, 12-12-19)
(b) Conditions.
1. Before granting a conditional use, the Plan Commission may stipulate conditions and restrictions on the establishment, location, construction, maintenance and operation of the conditional use. In doing so, the Plan Commission may consider overdue taxes and/or fees and the applicant's history of compliance with relevant ordinances and approvals, including but not limited to, building and minimum housing code, zoning code and zoning approvals, and alcohol license provisions and approvals.
2. The commission shall require evidence and guarantees of compliance with the conditions.
3. For property in the Wetland Overlay District, the Plan Commission shall attach conditions that will further the purposes of the Wetland Overlay District.
a. Such conditions may include but are not limited to: type of shore cover; erosion control measures; increased setbacks; specific sewage disposal and water supply facilities; wetland restoration; landscaping and planting screens; period of operation; operational control; sureties; deed restrictions; location of piers, docks, parking areas and signs; and type of construction.
b. The Plan Commission may require additional information as needed to determine if the proposed use is consistent with the purposes of the Wetland Overlay District.
4. For residential development allowed as a conditional use, the Plan Commission shall require dedication of land for park and recreation purposes or a fee in lieu of land dedication in accordance with the current standards for plat, land divisions and planned developments in Sec. 16.23(6)(f), MGO, and Park Impact Fees in Sec. 20.08, MGO. Credit shall be given for any prior dedication or fee paid under those sections. (Am by ORD-16-00073, 9-15-16)
(7) Subsequent Applications.
No application for a conditional use that is denied wholly or in part by the Plan Commission (or, on appeal, by the Common Council) shall be resubmitted for a period of one (1) year from the date of the final decision, unless:
(a) The decision expressly states that it is placed on file without prejudice, and
(b) The applicant provides substantial new evidence or proof of a change of conditions that would support approval or conditional approval of the application.
(8) Alterations.
No alteration of a conditional use shall be permitted unless approved by the Plan Commission provided, however, the Zoning Administrator following consideration by the alderperson of the district, may approve minor alterations or additions which are approved by the Director of Planning and Community and Economic Development and are compatible with the concept approved by the Plan Commission and the standards in sub. (6), above. If the alderperson of the district and the Director of Planning and Community and Economic Development do not agree that a request for minor alteration should be approved, then the request for minor alteration shall be decided by the Plan Commission after payment of the applicable minor alteration to a conditional use fee in Sec. 28.206, MGO. Telecommunications towers, Class 1 Collocations, Class 2 Collocations and Radio Broadcast Service Facilities shall be considered minor alterations under this section. Criteria for review are provided in Sections 28.143 and 28.148. See Wis. Stat §§ 66.0404(3)(a)1 and (4)(gm) and 66.0406 (2013). A conditional use alteration is not required for the installation of Solar Energy Systems. See Section 28.151 and Wis. Stat. §§ 62.23(7)(c) and 66.0401 (2018). (Am. by ORD-13-00189, 11-26-13; Am. by ORD-18-00054, 5-25-18; Am. by ORD-19-00063, 9-16-19)
(9) Scope of Approval.
(a) An order granting a conditional use is valid for three (3) years from the date of the approval. During this time, the applicant must either lawfully commence the use or obtain a building permit and begin erecting or altering the building. If the applicant obtains a valid building permit, construction must commence within six (6) months of the date of issuance. The building permit shall not be renewed unless construction has commenced and is being diligently prosecuted. (Am. by ORD-23-00005, 1-12-23; ORD-25-00069, 10-7-25)
(b) Where the conditional use has expired, the Director of Planning and Community and Development may, after consultation with the Alderperson of the District, approve an extension for up to one (1) year from the expiration date. (Am. by ORD-23-00005, 1-12-23; Am. by ORD-25-00038, 6-27-25)
(c) If the conditional use one (1) year extension has expired, an additional extension of up to one (1) year may be approved by the Director of Planning and Community and Development after consultation with the Alderperson of the district. If the Alderperson of the district and the Director of Planning and Community and Economic Development do not agree that the request should be approved, then the request shall be decided by the Plan Commission. (Cr. by ORD-25-00069, 10-7-25)
(d) Dormant Conditional Use. A conditional use permit shall be deemed to authorize only one particular conditional use and shall expire if the conditional use shall cease for more than one (1) year for any reason. (Cr. by ORD-14-00133, 8-13-14; ORD-25-00069, 10-7-25)
(e) Continuing Jurisdiction.
1. The Plan Commission retains continuing jurisdiction over all conditional uses for the purpose of resolving complaints against all previously approved conditional uses. This authority is in addition to the Zoning Administrator's authority under Sec. 28.202.
2. Any person, the Zoning Administrator, or other official may file a written complaint with the Plan Commission that one or more conditions of a conditional use permit have not been completed, or are being violated. (Am. by ORD-17-00030, 3-8-17)
3. The Plan Commission shall initially determine whether the complaint indicates a reasonable probability that the subject conditional use is in violation of a condition of approval. If the Plan Commission determines there is a reasonable probability of a violation, it shall conduct a hearing after giving notice as provided in Subsection (4), above.
4. The Plan Commission may, in order to bring the subject conditional use into compliance with the conditions previously imposed by the Plan Commission, modify the existing conditions and impose additional reasonable conditions. If no reasonable modification of the conditional use can be made that are consistent with the standards in Subsection (6), above, the Plan Commission may revoke the conditional use permit and direct the Zoning Administrator and the City Attorney to seek elimination of the subject use.
5. An appeal from a decision of the Plan Commission under this paragraph may be taken to the Common Council as provided by Subsection (5)(b), above.
(10) Changes in Use.
(a) On any zoning lot where a conditional use is established, any alteration, expansion or establishment of any other use(s), including permitted uses, except structures and buildings serving as synagogues, mosques, temples, churches, parish houses, rectories, and other places of worship, telecommunications towers, Class 1 Collocations, Class 2 Collocations and Radio Broadcast Service Facilities, shall be subject to conditional use approval. A conditional use alteration is not required for the installation of Solar Energy Systems. See Section 28.151 and Wis. Stat. §§ 62.23(7)(c) and 66.0401 (2018). (Am. by ORD-13-00189, 11-26-13; Am. by ORD-19-00063, 9-16-19)
(b) However, within existing buildings, a change in use from one permitted use to another permitted use without any addition in square footage shall be exempted from this provision; provided that any exterior alterations to existing structures or the lot shall require approval as a conditional use.
(Am. by ORD-24-00001, 1-17-24) (Renum. by ORD-14-00133, 8-13-14)
