Wisconsin Has A “Smart Growth” Law To Encourage Housing, But No One Is Enforcing It

Th Milwaukee County suburb of River Hills — which has allowed only single-family homes, mostly on multi-acre lots, since its incorporation in 1930 — faced allegations of violating the Smart Growth law in a 2019 lawsuit, but the dispute was settled out of court.

Some local government officials initially thought the law also required decisions over conditional use permits — zoning exceptions granted to property owners — to comply with their comprehensive plans. But Gov. Scott Walker in 2016 signed a law stating: “A conditional use permit that may be issued by a political subdivision does not need to be consistent with the political subdivision’s comprehensive plan.”

Wisconsin still has a housing crunch, particularly for those with lower incomes. The state is short about 127,000 affordable rental units for its roughly 196,000 “extremely low-income” renter households — defined as a family of four making less than $26,500, according to the National Low Income Housing Coalition.

Kori Schneider-Peragine, senior administrator of the Metropolitan Milwaukee Fair Housing Council, said she once held “great hope” for the Smart Growth law, thinking it might prompt communities to loosen up zoning laws that put land off limits to multi-family rentals.

That hope has since waned, despite her attempts at optimism.

“I try to put hope behind whatever I can find because sometimes it’s really scarce,” Schneider-Peragine said.

Wauwatosa touts affordable housing commitment

Wauwatosa has a history of excluding people of color and low-income renters through zoning regulations that prohibited larger apartment complexes. That included some of the most prevalent uses of racial covenants back when many subdivisions were founded and before the U.S. Supreme Court ruled such practices unconstitutional, Palm said.

But the city has since embraced affordable housing and welcomed more developments offering subsidized units in the last five years than other nearby suburbs, said McBride, the mayor. That included two developments financed through the county’s initiative to add more affordable housing to its suburbs.

Palm wishes the 10 acres at the center of his lawsuit remained available for additional housing.

He tried to appeal the storage facility approval to the city’s Board of Zoning Appeals. Board officials refused to process the appeal, saying they lacked power to overturn the Common Council’s action. Palm countered that the council’s conditional use permit vote should be considered “administering and enforcing the zoning code” — an administrative action under the board’s jurisdiction.

When the board refused to budge, Palm sued in Milwaukee County Circuit Court.

Granting the storage company a permit conflicted with the city’s 2008-2030 comprehensive plan, whose “Future Land Use” section classifies that 10 acres as “Multi Family-Urban Density,” required for most multi-unit affordable housing projects, according to Palm’s lawsuit. It’s the only parcel listed in that category.

Milwaukee Circuit Court Judge J.D. Watts dismissed the suit after an August hearing, agreeing with Wauwatosa officials that it lacked merit.

Courts were not the appropriate venue to make Palm’s case, Watts said from the bench. The Legislature never intended for people to flood the courts whenever local officials did something with which they simply disagreed.

Palm requested Watts to reconsider the dismissal and argued that the case rests solely on whether  the zoning administrator was authorized to deny his application to appeal the permitting decision. Watts scheduled a hearing for Jan. 31.

McBride expects the hearing will yield the same result as the first one.

“There is no merit to Mr. Palm’s lawsuit or his request for reconsideration, and his time for appeal has passed,” McBride wrote in an email.

City leaders wanted to add housing on the 10 acres, McBride said. It houses buildings formerly used by Western Building Products, which distributes millwork products. But redevelopment would be too pricey, requiring building teardowns and soil remediation. The city and the developer searched for financing for a year and a half without success, McBride added.

“Everybody wanted affordable housing there. So it’s a ridiculous lawsuit,” he said of Palm’s challenge.

Alderperson Joel Tilleson, one of five council members to oppose the permit for the storage company, said the previous housing development was consistent with the city’s comprehensive plan and Life Sciences District Master Plan, an area of Wauwatosa that has seen exponential growth over the last 20 years and has a demand for housing.

“Master plans are only worth their weight if we honor them, and we honor the time and the effort and money that we put into them,” Tilleson said in March before the Common Council approved a plan to permit Hansen Storage Co. to build warehouses and offices at the site.

Alderperson John Dubinski said he was disappointed the housing project fell through, but he worried about the consequences of leaving the property vacant.

“Being on a railroad line, being along the river, it’s nothing but trouble looking at us,” he said at the March meeting.

Palm sees it differently. He thinks the council should have waited until another housing developer arrived to try again.

“This property is worth fighting for,” he said.

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