City of Madison, Wisconsin | Legislative Information Center
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File #: 67074    Version: Name: Repeal and Recreate 28.185 Demolition
Type: Ordinance Status: Passed
File created: 8/23/2021 In control: Attorney's Office
On agenda: 10/5/2021 Final action: 10/5/2021
Enactment date: 10/19/2021 Enactment #: ORD-21-00065
Title: SECOND SUBSTITUTE - Repealing and recreating Section 28.185 to remove consideration of proposed future use for demolition applications and create limited administrative approval for some demolition categories.
Sponsors: Patrick W. Heck, Lindsay Lemmer, Satya V. Rhodes-Conway, Yannette Figueroa Cole
Attachments: 1. 67074 version 3 Second Substitute.pdf, 2. 67074 version 2 Substitute.pdf, 3. 67074 version 1.pdf, 4. Link_File_66545_July_PC_Discussion_and_Materials, 5. Zoning Text Memo 9-20-21.pdf
Fiscal Note
No City appropriation required.
Title
SECOND SUBSTITUTE - Repealing and recreating Section 28.185 to remove consideration of proposed future use for demolition applications and create limited administrative approval for some demolition categories.
Body
DRAFTER’S ANALYSIS: This ordinance repeals and recreates the existing demolition ordinance, maintaining most of the same approval process but with two notable differences:

First, the new ordinance retains the requirement that the Plan Commission approve the demolition, but removes consideration of the proposed future use. This change is because using a demolition ordinance to deny an otherwise permitted use is likely illegal and using the demolition ordinance to review an otherwise conditional use is redundant. Zoning is a legislative power.* Like other cities in Wisconsin, Madison regulates land use in districts through a mix of permitted and conditional uses. Madison’s Zoning Code defines a Permitted Use as one “which may be lawfully established in a particular district or districts, provided it conforms with all requirements and regulations of the district in which such use is located.”** Regarding permitted uses, the Wisconsin Supreme Court has recognized that “permitted uses…allow a landowner to use his or her land…as of right… and that rights of ownership and use of property have long been recognized by this state and constitutionally protected.”*** The Office of the City Attorney recommends the ordinance be changed to remove the consideration of proposed future permitted uses from the demolition ordinance in order to avoid future legal challenges.

The same constitutional analysis does not apply to the consideration of proposed future conditional uses because conditional uses are not “by right” uses. However, conditional uses are already separately reviewed by the Plan Commission pursuant to MGO § 28.183. Accordingly, providing for separate review of conditional uses under the demolition ...

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