In the Dirt: A Real Estate Legal Update

Developers in Wisconsin should watch closely for any municipal zoning requirements that still reference protest petitions or super‑majority votes, which are now unenforceable. At the same time, municipalities should update their ordinances to avoid applying outdated standards.

Because these changes affect both sides of the development process, this article is intended to help municipalities and developers alike ensure their zoning ordinances remain accurate, updated, and fully enforceable.

For many years in Wisconsin, property owners neighboring a proposed development had a statutory tool to try and prevent said development: filing a Zoning Amendment Protest Petition under Wis. Stat. § 62.23(7)(d)2m.a. This process allowed 20 percent of nearby property owners to file a petition in opposition to a zoning amendment with the governing municipality. If the municipality certified that petition, the zoning amendment could only pass with a super-majority vote by three-fourths of the voting members.

2017 Wisconsin Act 243 repealed protest petitions at the state level, but it did not explicitly prohibit municipalities from retaining or enacting their own versions. To end this inconsistency, 2023 Wisconsin Act 16 created Wis. Stat. § 66.10015(3)(a), which applies to zoning amendments in counties, cities, villages, and towns. The new legislation states that a zoning amendment only needs a “simple majority of a quorum of the members-elect” to pass.

Wisconsin has not only removed protest petitions as a statutory tool to slow development, but it also made any remaining local protest petition provisions unenforceable as of January 1, 2025. Yet many municipalities still have these provisions in their codes.

Understanding the New Simple Majority Requirement in Wisconsin Zoning

To apply the simple majority rule correctly, you need to know the governing body’s quorum requirement and then consider the number of members who attend the meeting and vote. The simple majority vote requirement could be less than a majority of the members-elect.

Wis. Stat. § 66.10015(3)(a) states: “the enactment of a zoning amendment shall be approved by a simple majority of a quorum of the members-elect.” The statute only defines the term “members-elect,” and it means those members currently elected or appointed whose service has not ended by death, resignation, or removal. The remaining words in the phrase can be ascribed their plain meaning:

• “Simple majority” is a majority of those who actually vote.
• “Quorum” is the minimum number of members who must be present to convene a meeting and transact business.

Practical Example: Applying Wisconsin’s Simple Majority Zoning Standard

A hypothetical zoning amendment before the Marathon County Board illustrates the simple majority rule in practice: the 38 supervisors constitute the “members-elect.” The County Board Rules of Procedure define a “quorum” as a majority of the entire membership (a common definition of the term).

When all 38 members are serving, a quorum is 19 supervisors. If all 38 members attend the meeting and vote, 20 affirmative votes will be the simple majority required by the statute to pass a zoning amendment. However, if only 19 members attend the meeting (satisfying the quorum requirement) and vote, only 10 affirmative votes will meet the simple majority requirement to pass a zoning amendment.

Consider the same hypothetical, but with 34 members due to a vacancy. The quorum is 17 supervisors. If all 34 members attend the meeting and vote, 18 affirmative votes will satisfy the simple majority requirement. However, if only 17 members attend the meeting and vote, only nine affirmative votes are sufficient.

When Wisconsin Zoning Still Requires a Super‑Majority Vote

Importantly, there are two situations where Wisconsin law requires a two-thirds vote:

1. Down zoning ordinance under Wis. Stat. 66.10015(3)(a), unless the ordinance is requested or agreed to by the person who owns the land affected by the proposed ordinance; and
2. Zoning amendment to an airport if the airport owner or operator protests the amendment pursuant to Wis. Stat. 59.69(5)(e)5m. (counties), § 60.61(4)(c)3. (towns), and § 62.23(7)(d)2m (cities and as applicable to villages).

Next Steps for Wisconsin Developers and Municipalities

Developers should be vigilant and ensure that their Wisconsin projects are not facing unlawful rezoning obstacles such as a super-majority vote requirement of the governing body triggered by a protest petition. Municipalities should affirm their ordinances are in compliance with Act 16 by repealing any protest petition ordinances that are unenforceable.

If you have questions regarding this article or need further information about zoning laws, please contact your Amundsen Davis attorney.