ZONING BOARD WORKSHOP Lynn Markham and Becky Roberts UW-Extension

ZONING BOARD WORKSHOP Lynn Markham and Becky Roberts UW-Extension
Announce logistical information including: welcome and thanks for coming session name and intended audience (to ensure folks are in the right place) continuing ed credits for Wisconsin Bar (attorneys) presenters and their affiliations restroom locations refreshments survey collection written materials cover the same topics as this presentation and are organized with a table of contents to aid in their use during a board meeting ask questions as we go along question slides throughout presentation are meant to describe application of principles presented. How do you believe your zoning board would respond? optional introduction of participants (for smaller groups) For upcoming question slides: How would you answer the following questions? AND How confident are you of your answer? Consider tailoring the question slides to reflect the range of experience of participants (perhaps add some easy questions for the real beginners, so they don’t feel so overwhelmed) Lynn Markham and Becky Roberts UW-Extension University of Wisconsin - Stevens Point

Terminology State statutes define: Both are commonly referred to as:
Counties have boards of adjustment s , stats. for counties, s for towns Cities & villages have boards of appeal s (7)(e), stats. for cities, for villages & for towns with village powers Both are commonly referred to as: Zoning Board BOA Different from the ‘zoning committee’ State statutes = state law Local governmental bodies, including zoning boards, can only make those decisions designated to them in state statutes Names are different for county board of adjustment compared to the city, village or town board of appeals but their roles are very similar. We’ll point out the minor differences during the presentation. Both boards of adjustment and boards of appeal are referred to as ‘zoning boards’ or the BOA.

Who is here today? Zoning board of adjustment or board of appeals members? Members of the governing body? Zoning committee members? Planning or zoning staff? Others? Do you have specific questions about zoning that you want us to cover today? State statutes = state law Local governmental bodies, including zoning boards, can only make those decisions designated to them in state statutes Names are different for county board of adjustment compared to the city, village or town board of appeals but their roles are very similar. We’ll point out the minor differences during the presentation. Both boards of adjustment and boards of appeal are referred to as ‘zoning boards’ or the BOA.

Workshop Outline Part I: Organization and approach to keep you out of trouble Zoning board authority and organization Meeting management Impartial decision makers Voting and recording decisions Open meetings and public notice Break

Workshop Outline Part II: Variances Lunch Basics New case law
Exercise: Would you grant the variance? Lunch

Workshop Outline Part III: Other BOA decisions
Conditional Uses Administrative Appeals Improving Board Decisions Part IV: Open discussion

Why do we have zoning? It is one tool to achieve community goals such as: Public health, safety & welfare Natural resource protection Protection of investments Aesthetics Controlling costs of local government infrastructure and services? Let audience describe/brainstorm why they have zoning in their communities

Zoning operates on 2 scales
Landscape scale: Minimize conflicts between incompatible land uses Encourage mix of compatible uses Definitions of zoning and land division from The Practice of Local Government Planning by Charles J. Hoch, Linda C. Dalton and Frank S. So, 3rd ed. 2000, p.343 Map courtesy of Kevin Struck

Zoning operates on 2 scales
75’ Buildable area 30’ Parcel scale: Regulate intensity of development on a parcel Lot size Density Regulate size and location of buildings on parcel Setbacks Floor area ratios Building height standards 10’ Definitions of zoning and land division from The Practice of Local Government Planning by Charles J. Hoch, Linda C. Dalton and Frank S. So, 3rd ed. 2000, p.343 Map courtesy of Kevin Struck

Who has zoning? Counties
Required to administer shoreland/wetland zoning May adopt general zoning in unincorporated areas Towns May adopt general zoning if no county zoning or after adoption of village powers May adopt shoreland zoning if more restrictive than the county Cities/Villages May adopt general zoning and extra-territorial zoning (applies miles outside of boundaries) May have shoreland or floodplain zoning (required in some circumstances)

Who administers zoning?
Elected Appointed County Board County Board Chair County Executive (optional) OR County Administrator (optional) Appoint Planning & Zoning Committee Zoning Board of Adjustment Light blue positions are elected, generally have more discretion in their decision-making Yellow positions are appointed, and generally administer the ordinances. Appointed people can be removed by the same process and people that appointed them County info presented here is for counties with a population less than 500,000 - all counties except for Milwaukee county Organization is similar for cities, villages and towns; titles and statutory references are provided on back of handout 1. Governing body a. County – number of elected supervisors on county board is determined by county population (e.g. counties with population of 25,000-50,000 shall have no more than 31 supervisors). 2. Chief elected official a. County – Board elects chairperson and vice chairperson who acts in the absence of the chairperson. s The board may by resolution authorize their chairperson to appoint committees from the members of the board. s (1) It appears from this language that the full board could appoint committees, but this seems as though it would result in mayhem and Mike isn’t aware of it ever happening. 3. Municipal officers – becoming more common as local government issues become more numerous and complex a. County executive i. Elected for a 4 year term in April when county supervisors are elected. s.59.17(1) ii. Shall appoint and supervise the heads of all county departments except those elected by the people and except where the statutes provide that the appointment shall be made by other elected officials. These appointments must be confirmed by the board unless the board chooses to waive confirmation. Committees and their chairs are appointed by county board chair. iii. The county exec must approve or veto all resolutions or ordinances. If the exec vetoes a resolution or ordinance, it is returned to the board with the exec’s objections for reconsideration. The board can override the exec’s veto by a 2/3 vote. s.59.17(6) This gives the county exec legislative power and influence regarding issues where board members are almost evenly split in a vote. b. County administrator – less powerful than county exec, but can still provide administrative relief to elected officials i. Appointed by majority vote of the board. s.59.18(1) May be removed at any time by the board. s.59.17(7) ii. Shall appoint and supervise the heads of all county departments except those elected by the people and except where the statutes provide that the appointment shall be made by other elected officials. These appointments must be confirmed by the board unless the board chooses to waive confirmation. Committees and their chairs are appointed by county board chair. 4. Committees of County Board – a. Committees are subunits of governing body that bring recommendations to governing body; some governing bodies simply rubber stamp committee recommendations while others closely scrutinize the committee recommendations and may significantly modify or reject them 5. Planning and zoning committee/commission a. County – The board may create a P&Z committee or may create a P&Z commission consisting wholly or partially of persons who are not members of the board (which can also include parks & rec, solid waste, land conservation or other functions) or designate a previously established committee or commission as the county planning agency. If the board in a county with a county exec authorizes the creation of a county P&Z commission, the county exec shall appoint the commission subject to confirmation by the board. s (2)(a)1&2 6. Administrative staff a. County - The board shall designate an officer to administer the zoning ordinance, who may be the secretary of the zoning agency, a building inspector appointed under or other appropriate person. In a county with a county zoning agency and a county exec or county administrator, the county exec or county administrator shall appoint and supervise the head of the county zoning agency and the county building inspector. The appointment is subject to confirmation by the board unless the board elects to waive confirmation. s.59.69(10)(b) 7. Corporation counsel a. County – The board may employ a corporation counsel, and may terminate him/her at any time by a majority vote of all the members of the board. In the case of a county exec or county administrator, this person shall have the authority to appoint and supervise the corp counsel if the board authorizes the establishment of the office of corp counsel. Such appointment shall be subject to confirmation by the board unless the board elects to waive confirmation. b. If a county chooses to hire the corp counsel or other employee through the civil service system, the employee has greater protection from being fired by the governing body. Typically department heads are appointed by the governing body, and therefore have greater political accountability to the governing body who can fire them, whereas other department staff are civil service and have their employment protected as long as they follow personnel rules. 8. County Zoning Board of Adjustment s a. 3 to 5 members b. 2 additional alternate members may be appointed c. No more than 1 member from each town d. Appointed by the county board chair (except that, in counties with a county executive or administrator, that officer shall make appointments[i]) e. Subject to approval by the county board Board of appeals/adjustment (also known as zoning board) is not a subunit of the governing body, and therefore they make decisions which are not reviewed by the governing body, but rather by circuit court Supervise Zoning Administrator

Who administers zoning?
Elected Appointed Conditional use permits? Policy Recommendations New ordinances or amendments County Board Conditional use permits? Variances Conditional use permits? Administrative appeals Planning & Zoning Committee Zoning Board of Adjustment Light blue positions are elected, generally have more discretion in their decision-making Yellow positions are appointed, and generally administer the ordinances. Appointed people can be removed by the same process and people that appointed them County info presented here is for counties with a population less than 500,000 - all counties except for Milwaukee county Organization is similar for cities, villages and towns; titles and statutory references are provided on back of handout 1. Governing body a. County – number of elected supervisors on county board is determined by county population (e.g. counties with population of 25,000-50,000 shall have no more than 31 supervisors). 2. Chief elected official a. County – Board elects chairperson and vice chairperson who acts in the absence of the chairperson. s The board may by resolution authorize their chairperson to appoint committees from the members of the board. s (1) It appears from this language that the full board could appoint committees, but this seems as though it would result in mayhem and Mike isn’t aware of it ever happening. 3. Municipal officers – becoming more common as local government issues become more numerous and complex a. County executive i. Elected for a 4 year term in April when county supervisors are elected. s.59.17(1) ii. Shall appoint and supervise the heads of all county departments except those elected by the people and except where the statutes provide that the appointment shall be made by other elected officials. These appointments must be confirmed by the board unless the board chooses to waive confirmation. Committees and their chairs are appointed by county board chair. iii. The county exec must approve or veto all resolutions or ordinances. If the exec vetoes a resolution or ordinance, it is returned to the board with the exec’s objections for reconsideration. The board can override the exec’s veto by a 2/3 vote. s.59.17(6) This gives the county exec legislative power and influence regarding issues where board members are almost evenly split in a vote. b. County administrator – less powerful than county exec, but can still provide administrative relief to elected officials i. Appointed by majority vote of the board. s.59.18(1) May be removed at any time by the board. s.59.17(7) ii. Shall appoint and supervise the heads of all county departments except those elected by the people and except where the statutes provide that the appointment shall be made by other elected officials. These appointments must be confirmed by the board unless the board chooses to waive confirmation. Committees and their chairs are appointed by county board chair. 4. Committees of County Board – a. Committees are subunits of governing body that bring recommendations to governing body; some governing bodies simply rubber stamp committee recommendations while others closely scrutinize the committee recommendations and may significantly modify or reject them 5. Planning and zoning committee/commission a. County – The board may create a P&Z committee or may create a P&Z commission consisting wholly or partially of persons who are not members of the board (which can also include parks & rec, solid waste, land conservation or other functions) or designate a previously established committee or commission as the county planning agency. If the board in a county with a county exec authorizes the creation of a county P&Z commission, the county exec shall appoint the commission subject to confirmation by the board. s (2)(a)1&2 6. Administrative staff a. County - The board shall designate an officer to administer the zoning ordinance, who may be the secretary of the zoning agency, a building inspector appointed under or other appropriate person. In a county with a county zoning agency and a county exec or county administrator, the county exec or county administrator shall appoint and supervise the head of the county zoning agency and the county building inspector. The appointment is subject to confirmation by the board unless the board elects to waive confirmation. s.59.69(10)(b) 7. Corporation counsel a. County – The board may employ a corporation counsel, and may terminate him/her at any time by a majority vote of all the members of the board. In the case of a county exec or county administrator, this person shall have the authority to appoint and supervise the corp counsel if the board authorizes the establishment of the office of corp counsel. Such appointment shall be subject to confirmation by the board unless the board elects to waive confirmation. b. If a county chooses to hire the corp counsel or other employee through the civil service system, the employee has greater protection from being fired by the governing body. Typically department heads are appointed by the governing body, and therefore have greater political accountability to the governing body who can fire them, whereas other department staff are civil service and have their employment protected as long as they follow personnel rules. 8. County Zoning Board of Adjustment s a. 3 to 5 members b. 2 additional alternate members may be appointed c. No more than 1 member from each town d. Appointed by the county board chair (except that, in counties with a county executive or administrator, that officer shall make appointments[i]) e. Subject to approval by the county board Board of appeals/adjustment (also known as zoning board) is not a subunit of the governing body, and therefore they make decisions which are not reviewed by the governing body, but rather by circuit court Regular permits (permitted uses) Supervise Zoning Administrator

Zoning Board Authority, Organization and Procedures

Zoning Board Authority
State statutes define: Counties (and towns) have boards of adjustment Wis. Stat. s , stats. for counties, s for towns Cities, villages (and towns) have boards of appeal Wis. Stat. s (7)(e), stats. for cities, s for villages, s for towns with village powers Both are commonly referred to as: Zoning Board BOA, ZBA Different from the ‘zoning committee’ State statutes = state law Local governmental bodies, including zoning boards, can only make those decisions designated to them in state statutes Names are different for county board of adjustment compared to the city, village or town board of appeals but their roles are very similar. We’ll point out the minor differences during the presentation. Both boards of adjustment and boards of appeal are referred to as ‘zoning boards’ or the BOA.

Zoning Board Organization
County Board of Adjustment: 3-5 members Members must reside in an unincorporated area of the county No more than 1 member from each town Town Board of Adjustment: 3 members Members must reside in the town No more than 1 town board member City, Village or Town Board of Appeal: 5 members COMPOSITION OF THE ZONING BOARD County Zoning Board of Adjustment[i] 3 to 5 members 2 additional alternate members may be appointed No more than 1 member from each town Appointed by the county board chair (except that, in counties with a county executive or administrator, that officer shall make appointments[iv]) Subject to approval by the county board Members are appointed for 3-year staggered terms, starting July 1. City, Village or Town[ii] Zoning Board of Appeals[iii] 5 members Appointed by the chair of the governing body Subject to approval by the full governing body Members are appointed for 3-year staggered terms. The appointment of alternate members is advisable: Postponement of decisions due to absences, resignations or conflicts of interest are minimized; Alternates gain experience by serving a sort of apprenticeship before becoming regular zoning board members; and A full board optimizes critical review of applications/petitions. By statute the first alternate serves when a zoning board member cannot vote due to absence or a conflict of interest. The second alternate serves only if the first alternate is not available or is already in service. [i] s (2), Stats. [ii] Authority for zoning boards in towns with village powers. Where a town has not adopted village powers, s , Stats. applies. [iii] s (7)(e) [iv] ss (2)(c) & 59.18(2)(c), Stats. If there is a county executive or county administrator, that person makes the appointments, subject to approval of the county board. Though it may be common practice to alternate service between the first and second alternates, it is contrary to the statute. Appointment of alternates is a good idea for multiple reasons: prevents having to cancel zoning board meetings due to absences, resignations or conflicts of interest. provides training for upcoming zoning board members, and provides a full board to optimize critical review of applications/petitions. See Chapter 3 of the Zoning Board Handbook for more details

Counties, cities, villages and towns with village powers shall appoint 2 alternate members to the BOA Wisconsin Act 34 1st Alternate shall act with full power when a member cannot vote due to conflict of interest or absence 2nd Alternate only acts when 1st alternate or multiple BOA members cannot vote Having alternates serves as an apprenticeship program. Alternates only act when regular members cannot participate.

Members serve staggered 3-year terms Vacancies filled for the remainder of a term We recommend that members of the governing body not serve on the BOA Difficult to perform both legislative and quasi- judicial role Staggered terms prevent having an entirely new zoning board at any time. Allowing no more than one zoning board member from each town ensures representation of diverse geographic interests on the board. Removal from the zoning board is a rare occurrence. Appointing authority makes decisions regarding removal subject to approval by the governing body. Zoning board members may be removed only for cause, after written charges and opportunity for a public hearing. If a zoning board member cannot serve the full length of their term, the vacancy is filled for the unexpired portion of the term. Members of the local governing body probably should not be appointed to serve on the zoning board. This is not illegal by statute, but not a good practice. In such a dual position it would be very difficult for an individual to separate legislative from quasi-judicial roles. Wide discussion of public policy issues (such as land use laws) and constituent representation are encouraged in the legislative process but are prohibited or strictly limited by due process concerns in the quasi-judicial role of a zoning board member (see ex parte communication et al in Voting and Decisions). It would also be difficult in such a circumstance for an individual to maintain objectivity (and its appearance) in interpreting or applying a zoning policy he/she may have voted against as an elected official. What about having town board members on the County BOA? This is also not a good idea since it at least appears to be a conflict of interest since a town can veto ordinance adoption. It would be difficult to objectively apply an ordinance as a BOA member if you argued against adopting it as a town board member. How could you convince the applicant that you’re unbiased if you’ve already voted for or against it in a legislative capacity? An applicant can request that a BOA member recuse themselves from a given decision, but the BOA member themselves must make the call. According to s.19.59(1)(c) No local public official may: 1.Take any official action substantially affecting a matter in which the official, a member of his or her immediate family of an organization with which the official is associated has a substantial financial interest. 2. Use his or her office or position in a way that produces or assists in the production of a substantial benefit, direct or indirect, for the official, one or more members of the official’s immediate family either separately or together, or an organization with which the official is associated.

Chief elected official selects BOA members and chair, subject to governing body approval County board chair Town board chair Village president Mayor Exceptions: If present, the County Executive or Administrator appoints BOA members County BOA members choose their own chair and may also select vice chair and secretary Staggered terms prevent having an entirely new zoning board at any time. Allowing no more than one zoning board member from each town ensures representation of diverse geographic interests on the board. Removal from the zoning board is a rare occurrence. Appointing authority makes decisions regarding removal subject to approval by the governing body. Zoning board members may be removed only for cause, after written charges and opportunity for a public hearing. If a zoning board member cannot serve the full length of their term, the vacancy is filled for the unexpired portion of the term. Members of the local governing body probably should not be appointed to serve on the zoning board. This is not illegal by statute, but not a good practice. In such a dual position it would be very difficult for an individual to separate legislative from quasi-judicial roles. Wide discussion of public policy issues (such as land use laws) and constituent representation are encouraged in the legislative process but are prohibited or strictly limited by due process concerns in the quasi-judicial role of a zoning board member (see ex parte communication et al in Voting and Decisions). It would also be difficult in such a circumstance for an individual to maintain objectivity (and its appearance) in interpreting or applying a zoning policy he/she may have voted against as an elected official. What about having town board members on the County BOA? This is also not a good idea since it at least appears to be a conflict of interest since a town can veto ordinance adoption. It would be difficult to objectively apply an ordinance as a BOA member if you argued against adopting it as a town board member. How could you convince the applicant that you’re unbiased if you’ve already voted for or against it in a legislative capacity? An applicant can request that a BOA member recuse themselves from a given decision, but the BOA member themselves must make the call. According to s.19.59(1)(c) No local public official may: 1.Take any official action substantially affecting a matter in which the official, a member of his or her immediate family of an organization with which the official is associated has a substantial financial interest. 2. Use his or her office or position in a way that produces or assists in the production of a substantial benefit, direct or indirect, for the official, one or more members of the official’s immediate family either separately or together, or an organization with which the official is associated.

See Chapter 10 of the Zoning Board Handbook for a Hearing Checklist
Duties of Officers Chairperson It is important to have a skilled chair who knows how to run a meeting, not just someone who has seniority or is taking their turn. Open and close meeting and hearings Manage the agenda (and amend if necessary) Describe hearing procedures (role of zoning board, order of events, time limits on testimony, etc.) Manage input from applicant, staff and witnesses Manage discussion of zoning board Call for motions and votes See Chapter 10 of the Zoning Board Handbook for a Hearing Checklist

Duties of Officers Secretary
Perform record keeping and clerical duties Provide notice of public meetings and hearings Ensure compliance with Wisconsin’s Open Meetings Law, Public Records Law, etc. BOA may use zoning staff or retain its own clerical staff if authorized by governing body. ZA or other person who represents municipality and provides testimony should not serve as secretary.

Duties of Members Zoning Board Members
Be familiar with the material -- don't open your packet at the meeting Have a public discussion -- don't pass notes or whisper Explain yourself -- why are you voting this way? Make sure your input is meaningful

Meeting Management Balancing need to collect sufficient information with concern for making timely decisions The applicant has the burden of proof to show they meet the standards -- not the job of the zoning board! OK to deny incomplete applications OK to ask applicant or staff to respond to public comments or clarify other issues May postpone hearing if necessary to gather additional information OK to limit testimony to a reasonable time period Do not allow questions or comments on extraneous matters -- rule out of order Balance need to collect sufficient information with concern for making timely decisions

Postponing a Topic Under Robert’s Rules of Order, tabling is…
“Used to postpone discussion until the group decides by majority vote to resume discussion. By adopting the motion to ‘lay on the table,’ a majority has the power to halt consideration of the question immediately without debate.” This is a temporary means to gather additional information; it should not be used to avoid controversial decisions Same decision-makers should be present when taking the item back up To Lay On Or Take From The Table There are times when there is a reason to delay the decision on a motion. Perhaps there is not enough information to make a decision. The procedure to do this is called "laying on the table". This delays a decision until another time. During discussion of a motion, a member is recognized by the president and says, "I move to lay the motion on the table". Once again, a second is required. There is no discussion permitted. The group proceeds directly to vote whether to table the motion or not. A majority is needed. To bring back the motion so it can be discussed and acted upon, is called "taking from the table". While in old business, a member says, "I move to take from the table (motion's name)". A second is required. There is no discussion permitted. The group proceeds to vote whether to bring the motion from the table or not. A majority is needed. Once a motion has been brought back from the table, it is the next item of business. Tip: Generally, a tabled motion comes back for consideration at the next regular meeting. Don't use the motion to table as a way to "kill" a motion.

Time limits allowed during hearing
Case law Time limits allowed during hearing 5 minute time limit for comments at public hearing was not unreasonable Allowing greater time for applicant is also allowable Tip: Explain that BOA decision is based on evidence related to the decision standards, not how many people support a given viewpoint Supreme Court found BOA record inadequate because it did not explain the reasons for the decision Reinforce using decision forms to record reasons. e.g. If applicant claims they meet unique property limitation because lot is small, but provide no evidence that it is unique in being a small lot, then BOA can state that evidence is lacking to show that lot is unique. Roberts v. Manitowoc County BOA, Ct. Appeals, 2006

Impartial Decision Makers, Voting, and
Recording Decisions

See Chapter 6 of Zoning Board Handbook for more details
Conflicts of Interest Guidance from Wis. Stat. s and s A local official cannot use a public position for the private benefit or financial gain of: the individual immediate family members organizations they are associated with Statutory Conflicts of Interest In addition to common law notions of fairness and due process, Wisconsin Statutes contain specific conflict of interest provisions applicable to local officials. Code of ethics. State laws[i] prohibit public officials from taking official actions that substantially affect a matter in which the official, an immediate family member or an associated organization has a substantial financial interest. Similarly, an official may not use public office for financial gain or to gain anything of substantial value for the official, an immediate family member or an associated organization. Compliance with the statute will protect a member from prosecution under the statute but does not assure compliance with other fair play and due process requirements. Private interests in public contracts. State laws[ii] also provide for felony prosecution of a public official who engages in specified activities related to public contracts in which the official has an interest. This may be an issue where the zoning board decides conditional use permits or retains consulting services where members may have an interest. (In certain cases abstention will not prevent a violation of the law.) [i] s.19.59(1), Stats. [ii] s , Stats. Stats. s outlines a Code of Ethics for Local Government Officials. The State Ethics Board has information regarding the ethics law. Stats. s , a felony statute, prohibits certain activities by an official who has a private interest in a public contract. See Chapter 6 of Zoning Board Handbook for more details

Bias of local officials
Recent case law Bias of local officials Payne & Dolan applied for a conditional use permit (CUP) for a gravel pit CUP was granted over the protests of neighbors Neighbors appealed Keen v. Dane County, 2004 WI App 26

Prior, independent business transaction
Case law Biased? Advocate Risk of bias too high Decision maker #1 In a letter submitted as part of the CUP application: “Payne and Dolan has always stood out above the rest in their efforts and success in being a good corporate citizen and caretaker of the land.” Decision maker #2 Had leased his land to Payne and Dolan for the operation of a gravel pit. Prior, independent business transaction Decision maker 1 became an advocate when P&D submitted his letter as part of the CUP application. This advocacy surpasses merely forming an opinion about a subject and overcomes the presumption of integrity and honesty. The court concluded the letter evidences an impermissibly high risk of bias. The court concluded that decision maker 2’s lease with P&D does not constitute impermissible bias. The lease was an independent, prior business transaction unrelated to the property at issue. It is not necessary that the board members have no prior dealings with applicants; rather the court recognized the localized nature of county boards and that member can be expected to have opinions about local zoning issues. Morals of the story: You may want to recuse yourself to avoid the appearance of bias. You can have an opinion or a business relationship (??) with the applicant, it’s expressing your opinion publicly, especially in writing, that gets you in trouble (exhibits bias). Using your opinion to influence other BOA members is problematic. Keen v. Dane County, 2004 WI App 26 28

Bias of local officials
Case law Bias of local officials Local officials deciding on variances, CUPs and administrative appeals must not harbor bias, or an impermissibly high risk of bias, or prejudge the application Keen v. Dane County, 2004 WI App 26

Impartial Decision-Makers
“Recuse” yourself from decisions that present a conflict of interest or bias Not the same as abstaining (not voting) Do not participate in decision or discussion leading up to decision Physically separate yourself from the board If you need to provide testimony, do so as a member of the audience Statutory Conflicts of Interest In addition to common law notions of fairness and due process, Wisconsin Statutes contain specific conflict of interest provisions applicable to local officials. Code of ethics. State laws[i] prohibit public officials from taking official actions that substantially affect a matter in which the official, an immediate family member or an associated organization has a substantial financial interest. Similarly, an official may not use public office for financial gain or to gain anything of substantial value for the official, an immediate family member or an associated organization. Compliance with the statute will protect a member from prosecution under the statute but does not assure compliance with other fair play and due process requirements. Private interests in public contracts. State laws[ii] also provide for felony prosecution of a public official who engages in specified activities related to public contracts in which the official has an interest. This may be an issue where the zoning board decides conditional use permits or retains consulting services where members may have an interest. (In certain cases abstention will not prevent a violation of the law.) [i] s.19.59(1), Stats. [ii] s , Stats. Stats. s outlines a Code of Ethics for Local Government Officials. The State Ethics Board has information regarding the ethics law. Stats. s , a felony statute, prohibits certain activities by an official who has a private interest in a public contract. See Chapter 6 of Zoning Board Handbook for more details 30

When to vote and when to recuse yourself
BOA member should recuse themselves when they cannot be impartial decision-makers it’s up to each member to make this decision Ask yourself whether the nature of your relationship or dealings with a person or organization could bias your judgment avoid the appearance of bias as well BOA members are not required to state their reasons for recusal, but it’s a good idea to be upfront with the public Statutory Conflicts of Interest In addition to common law notions of fairness and due process, Wisconsin Statutes contain specific conflict of interest provisions applicable to local officials. Code of ethics. State laws[i] prohibit public officials from taking official actions that substantially affect a matter in which the official, an immediate family member or an associated organization has a substantial financial interest. Similarly, an official may not use public office for financial gain or to gain anything of substantial value for the official, an immediate family member or an associated organization. Compliance with the statute will protect a member from prosecution under the statute but does not assure compliance with other fair play and due process requirements. Private interests in public contracts. State laws[ii] also provide for felony prosecution of a public official who engages in specified activities related to public contracts in which the official has an interest. This may be an issue where the zoning board decides conditional use permits or retains consulting services where members may have an interest. (In certain cases abstention will not prevent a violation of the law.) [i] s.19.59(1), Stats. [ii] s , Stats. Stats. s outlines a Code of Ethics for Local Government Officials. The State Ethics Board has information regarding the ethics law. Stats. s , a felony statute, prohibits certain activities by an official who has a private interest in a public contract. Sniff test

When to vote and when to recuse yourself
Recusal too often may lead to a BOA without enough members to vote It should not be used as a way to avoid making tough decisions; that’s your job as a BOA member Consider strengthening local ordinances, rules and by-laws Consult with zoning board attorney if you have questions Statutory Conflicts of Interest In addition to common law notions of fairness and due process, Wisconsin Statutes contain specific conflict of interest provisions applicable to local officials. Code of ethics. State laws[i] prohibit public officials from taking official actions that substantially affect a matter in which the official, an immediate family member or an associated organization has a substantial financial interest. Similarly, an official may not use public office for financial gain or to gain anything of substantial value for the official, an immediate family member or an associated organization. Compliance with the statute will protect a member from prosecution under the statute but does not assure compliance with other fair play and due process requirements. Private interests in public contracts. State laws[ii] also provide for felony prosecution of a public official who engages in specified activities related to public contracts in which the official has an interest. This may be an issue where the zoning board decides conditional use permits or retains consulting services where members may have an interest. (In certain cases abstention will not prevent a violation of the law.) [i] s.19.59(1), Stats. [ii] s , Stats. Stats. s outlines a Code of Ethics for Local Government Officials. The State Ethics Board has information regarding the ethics law. Stats. s , a felony statute, prohibits certain activities by an official who has a private interest in a public contract.

Voting Requirements If a quorum is present, the BOA may take action by majority vote of the members present. – 2005 Wisconsin Act 34 Can be more restrictive – (i.e. 4 of 5 members or 3 of 5 members even in the case of an absence) Tip: Use local by-laws or ordinance to clarify how many BOA members must vote to take action. Previously, city, village and town board of appeals were required to have a supermajority vote (i.e. 4 of 5 members) and county boards of adjustment were required to have majority vote of total board (i.e. 3 of 5 even if some members were absent). From Jim Schneider: The question arises of whether these units may continue to require 4 votes. One view is that the governing body may by ordinance require 4 votes; another view is that the governing body may not so limit the BOA’s authority, but the BOA may decide (e.g., by rule) to use the 4 vote requirement; and another view is that communities cannot have an extraordinary vote requirement but must go with the majority vote. See Chapter 11 of Zoning Board Handbook for more details

Recording Decisions Case law
Back to the gravel pit case in Dane County… Local ordinance listed 10 factors to consider when deciding a CUP Purposes of zoning district Availability of alternative locations Compatibility with existing or permitted use on adjacent lands… Keen v. Dane County, 2004 WI App 26

After a very lengthy discussion…the CUP was granted with 61 conditions But the decision did not refer to the 10 factors in the ordinance A record without any reference to the factors in the ordinance is not sufficient Keen v. Dane County, 2004 WI App 26

Lamar applied for a variance to raise a billboard above the City’s max sign height BOA denied variance stating that the variance criteria were not met Lamar has a billboard along I-43. The billboard is now partially obstructed by trees planted by the DOT as a noise barrier. Lamar was unable to convince the DOT to trim the trees, so applied to the City of Milwaukee for a variance to raise the billboard. Lamar Central Outdoor v. Board of Zoning Appeals of the City of Milwaukee, 2005 WI Supreme Ct.

Courts will review the written and audio record if appealed and need to be able to follow the BOA’s reasoning BOA must express, on the record: the statutory or ordinance criteria under which the application is decided and the reasons the criteria are or are not satisfied The written decision is not required to include the reasons Supreme Court found BOA record inadequate because it did not explain the reasons for the decision Reinforce using decision forms to record reasons. e.g. If applicant claims they meet unique property limitation because lot is small, but provide no evidence that it is unique in being a small lot, then BOA can state that evidence is lacking to show that lot is unique. Lamar Central Outdoor v. Board of Zoning Appeals of the City of Milwaukee, 2005 WI Supreme Ct.

Recording Decisions Which motion would you prefer?
I move we recommend denial. I move we recommend denial because the petitioner did not meet the standards. I move we recommend denial because this guy isn’t from here and we don’t know him. I move we recommend denial because the petitioner failed to show increased traffic will not create a pedestrian hazard.

What should be included?
Findings of fact. The fact situation is described based on the record (proposal, site conditions, project impacts, language appealed, etc.). Conclusions of law. Ordinance or legal standards are applied to the fact situation (e.g., conditional use standards or 3-step test for variances). Order & determination, including conditions. A decision is rendered & any conditions on approval or administrative action to be taken are described (e.g., issuance of a permit). “The board must make appropriate findings supporting its conclusion so a meaningful judicial review is possible. The board is required to include findings on public interest, special conditions and unnecessary hardships…” [State v. Trudeau, 139 Wis. 2d 91, 408 N.W.2d 337 (1987)].

Open Meetings & Public Notification

Open Meetings Wisconsin’s Open Meetings Law requires: meetings are open & accessible to the public, including the disabled. the public is provided with advanced notice of meetings. closed sessions are limited to specified circumstances & procedures. Open Meetings Law – needed for public to trust local government All zoning board meetings and hearings must comply with the Wisconsin Open Meetings Law[i]. The law is intended to give the public prior notice of meetings of governmental bodies and to assure that they are held in places that are reasonably accessible and open to the public. Some meetings or portions of meetings are permitted to be held as closed sessions but, generally, discussion and decision-making at governmental meetings must be conducted in open session and motions and voting must be open and recorded. Though most meetings must be open to public attendance, the law does not require all meetings to provide a forum for public comment (working committee/board meetings are perfectly acceptable). The zoning board usually designates its secretary or a staff person to provide proper notice of board meetings and hearings. However, board members must individually determine compliance with all aspects of the Open Meetings Law in deciding whether to participate in a meeting. [i] ss , Stats. An information sheet detailing provisions of the Open Meetings Law is included in the conference materials. Only those parts of the law that directly affect zoning boards will be covered. [Stats. s ] See Chapter 5 of Zoning Board Handbook for more details

Open Meetings Purpose test = discussion, information gathering or decision-making on a matter within the jurisdiction of the body. Numbers test = enough members of a body are present to determine the outcome of an action. By statute, if one-half of the members of a body are present, there is a meeting unless the purpose test is not met. A lesser number of members may meet the numbers test if they can block a decision. The purpose test is met when discussion, information gathering or decision-making take place on a matter within the jurisdiction of the governmental body. The numbers test is met when enough members of the body are present to determine the outcome of an action. By statute, if one-half of the members of the body are present, there is presumed to be a meeting unless the purpose test is not met. A lesser number of members may also meet the numbers test (e.g. 2 members of a 5 member city/village/town zoning board where 4 votes are required to carry an issue). Another example is that a majority of the total county board members is necessary to approve a variance, so if only 3 of 5 members are present, one negative vote results in the variance not being granted. State ex rel. Newspapers Inc. v. Showers, 135 Wis. 2d 77, 398 N.W.2d 154 (1987)

Open Meetings Phone conferences, letters, s or faxes between members may constitute a meeting if the numbers and purpose test are met. Walking quorum - a series of phone calls or conversations to “line up votes” or conduct other business violates the law. Discussion of meeting scheduling and logistics is OK.

Closed Sessions Closed sessions are limited to those authorized by statute. Consideration of a “case.” Case = controversy between opposing parties, not a decision about granting a permit Conferring with legal counsel about current or likely litigation. Specified confidential personnel matters. Others listed at Wisc. Stat. §19.85 Permitted Exemptions for Closed Sessions Statutes provide specific exemptions from the Open Meetings Law. Those listed below are most likely to apply to zoning boards. 1) Deliberation concerning a case. Deliberation concerning a case that was the subject of a quasi-judicial hearing.[i] The courts have determined a case to be an adversarial proceeding with opposing parties, not merely a petition for appeal or variance or an application for a conditional use permit. What qualifies as a case for the closed session exemption is described in STATE EX REL. HODGE v. TURTLE LAKE, 180 Wis.2d 62 (1993) 508 N.W.2d It states “”case” contemplates a controversy between or among parties who are adverse to one another and a type of proceeding designed to redress wrongs or enforce rights. It does not connote the idea of mere application and granting of a permit” Later, “case, in legal terminology is a proceeding by which one party seeks to obtain relief against another named in the suit.” Later it states “The (zoning) Board, as the governmental decision-making body… was not “a party in interest in the adversarial sense”…. Furthermore, although the Board heard testimony from interested neighbors, the neighbors were not and could not have been made parties, they were not under oath and the rules of evidence did not apply to their testimony.” Can a contested case for a permit legally be a “case” if parties are under oath and rules of evidence do apply?? Here a case means litigation involving adversarial parties and does not include appeals, conditional uses or variances. For example, closed consultation between the board and its legal counsel regarding a decision appealed to court is a permissible closed session [State ex rel. Hodge v. Town of Turtle Lake, 180 Wis. 2d 62, 508 N.W.2d 603 (1993)]. 2) Actions concerning public employees. Consideration of dismissal, demotion, licensing or discipline of a public employee or licensee unless the employee or licensee requests that the meeting be held in open session.[ii] Consideration of employment, promotion, compensation or performance evaluation data of a public employee.[iii] 3) Potentially damaging personal information. Consideration of financial, medical, social or personal histories or disciplinary data of specific persons that would be likely to have a substantial adverse effect on the reputation of a person.[iv] 4) Conferring with legal counsel. Conferring with legal counsel about strategy regarding current or likely litigation.[v] 5) Request to an ethics board. Consideration of a request for confidential written advice from a local ethics board.[vi] Other narrow exemptions. Specified deliberation regarding unemployment and workers compensation, burial sites and other narrow exemptions provided by statute.[vii] [i] s (1)(a), Stats. [ii] s (1)(b), Stats. [iii] s (1)(c), Stats. [iv] s (1)(f), Stats. [v] s.19.85(1)(g), Stats. [vi] s (1)(h), Stats. [vii] ss (1)(ee, eg, em, i & j), Stats.

Conduct of Closed Sessions
Record individual votes to convene in closed session. Those who vote against may participate without liability. Attendance generally limited to Zoning Board Legal counsel and others essential to closed session may attend Consider only matters for which the session was closed. Motions & decisions must be recorded. Conduct Of Closed Sessions 1. Convene in open session. The body must initially convene in open session. 2. Move to closed session. To convene in closed session (from open session), the presiding officer must announce the specific subject matter and statutory authority for closure. A motion and recorded individual vote by a majority of the body are required to convene in closed session. 3. Attendance at closed sessions. Only members of the zoning board and those essential to the business for which the session was closed may attend a closed session. The zoning administrator or staff person who presented testimony and the municipal counsel (if he/she represented the zoning department at hearing) should not attend closed sessions. Generally, members of the local governing body may not attend closed sessions of the zoning board. The board is not a subunit of the governing body since the governing body does not review board decisions. Therefore the statutory exemption which allows a parent body to attend closed meetings of its subunits does not apply.

QUIZ The zoning board climbs in the county van & spends 4 hours driving all over the county conducting on-site inspections for upcoming hearings. Not a word is spoken by anyone during the 4 hours. Must they comply with Open Meetings Law requirements… ? Yes. The numbers and purpose (gathering information) tests are met and no exception applies. Therefore the inspections must be noticed and conducted under the provisions of the Open Meetings Law.

Open Meetings Yes. Both the numbers and purpose test (info gathering) have been met. They must comply with the notice and public accessibility requirements of the open meetings law. The purpose test is met when discussion, information gathering or decision-making take place on a matter within the jurisdiction of the governmental body. The numbers test is met when enough members of the body are present to determine the outcome of an action. By statute, if one-half of the members of the body are present, there is presumed to be a meeting unless the purpose test is not met. A lesser number of members may also meet the numbers test (e.g. 2 members of a 5 member city/village/town zoning board where 4 votes are required to carry an issue). Another example is that a majority of the total county board members is necessary to approve a variance, so if only 3 of 5 members are present, one negative vote results in the variance not being granted. State ex rel. Newspapers Inc. v. Showers, 135 Wis. 2d 77, 398 N.W.2d 154 (1987)

Site Inspections… Should decision-makers view the site as individuals? As a group? Either. Must have inspection authorization, which may be included on application. Group visits must be noticed as an open meeting. Obtain inspection authorization from the owner of the subject property. A common mechanism is a statement on the petition/application form: “By completing this petition I give my consent for entry on the subject premises for the purpose of inspecting the site and any subsequent construction.” Cases should not be discussed while board members are in transit to on-site inspections since such meetings are not accessible to the public. Similarly, board member discussions with an applicant should not take place in his/her residence unless it is made clear that members of the public are also welcome there. Many municipalities do not permit testimony during on-site inspections in order to minimize opportunities for due process violations. Some municipalities provide for inspections by individual zoning board members but not as a group.

Site Inspections… Can the public go on-site?
If the board/commission goes on-site as a group, the inspection is an open meeting and must include the public. Otherwise members of the public must obtain owner’s permission. Can decision-makers question the property owner on-site? How about staff? You can ask technical questions or clarifications. All other questioning and discussion should be saved for the hearing. Obtain inspection authorization from the owner of the subject property. A common mechanism is a statement on the petition/application form: “By completing this petition I give my consent for entry on the subject premises for the purpose of inspecting the site and any subsequent construction.” Cases should not be discussed while board members are in transit to on-site inspections since such meetings are not accessible to the public. Similarly, board member discussions with an applicant should not take place in his/her residence unless it is made clear that members of the public are also welcome there. Many municipalities do not permit testimony during on-site inspections in order to minimize opportunities for due process violations. Some municipalities provide for inspections by individual zoning board members but not as a group.

Published Hearing Notice
County (pop >250,000): Class 2 Notice – 2 publications in 2 consecutive weeks, the last at least 7 days prior to hearing (day of publication is excluded, day of hearing is counted). County (pop <250,000): Posting 2 weeks prior. Class 2 recommended. City: Class 1 notice. Posting recommended. Village/Town: Posting 1 week prior. Class 1 notice recommended. Combined Notices All zoning board meetings and hearings must comply with notice requirements of: the Wisconsin Open Meetings Law,[i] statutes governing procedures for zoning boards,[ii] DNR rules for shoreland, shoreland wetland and floodplain zoning matters,[iii] and other notice requirements imposed by local ordinance or bylaws. Local notification procedures must be crafted to include all of these requirements. Generally, the zoning board secretary or administrative staff of the zoning department perform meeting and hearing notification duties and provide evidence of compliance. The following information is provided for their information and so that board members can confirm compliance. [i] ss to 19.98, Stats. [ii] ss (6) & 62.23(7)(e)6, Stats. [iii] ss. NR (6)(h) & NR (2)(d), Wis. Adm. Code Statutory Notice Requirements For Zoning Board Hearings County-Population of 250,000 or more[i] Class 2 notice required. Posting recommended. County-Population less than 250,000[ii] Posting required (2 weeks prior complies). Class 2 notice recommended. City[iii] Class 1 notice required. Village or Town[iv] Posting one week prior required. [i] Section (6), Stats. provides that notice of the hearing of an appeal must be given by publication of a class 2 notice under ch It is somewhat unclear whether class 2 publication should also be made for variances and special exceptions/conditional uses. Requirements for designation of an official newspaper for counties with population of 250,000 or more is found in s (2)(a), Stats. [ii] See previous endnote. Counties with a population less than 250,000 do not have to have an official newspaper and apparently may elect to satisfy the class 2 publication requirement by posting. [s (1), Stats.] However, newspaper publication is strongly recommended. [iii] Subsection 62.23(7)(e)6, Stats. merely requires the city zoning board to give “public notice“ of the hearing on the “appeal or other matter referred to it“ (e.g. variance or special exception/conditional use). Chapter 985, Stats. applies to publication of “legal notices,“ which term includes “public hearings.“ The hearing before the city zoning board is merely called a “hearing,“ in contrast to a “public hearing“ as in the case of zoning amendments under s (7)(d), Stats. Because members of the public are typically allowed to testify at zoning board hearings, the conservative interpretation is that ch. 985 applies. In ch. 985, a class 1 notice is required for cities because the hearing requirement in s (7)(e)6 predates the date specified in s , Stats. [iv] Subsections (6) and 62.23(7)(e)6 Stats. refer to ch. 985, Stats. as described under cities. Under ch. 985 cities, but not villages or towns, must have official newspapers. Since villages and towns do not have official newspapers, the publication requirement may be satisfied by posting [ss (2), & (1), Stats.] Class 1 notice – 1 newspaper publication at least one week before the act or event.[i] Class 2 notice – 2 newspaper publications, at least once each week for consecutive weeks, the last at least one week before the act or event.[ii] Posting – Display of a notice in at least 3 public places public places likely to give notice to the public and those affected by a decision.[iii] In computing the time for publication the first day of publication is excluded and the day of the event/meeting is included.[iv] Newspaper publication must be in the community’s official newspaper or, if no official newspaper is designated, in a newspaper likely to give notice in the affected area.[v] Notice Contents The following information should be included in the notice: Name of the governmental body that will meet. Date, time and location of hearing. Name of the applicant, appellant or petitioner. Location of property involved. General description of the proposed project and nature of the request (variance, conditional use/special exception or appeal). Subject matter, statutory authority (recommended) and notice of any anticipated closed session and any intent to reconvene in open session within 12 hours after completion of a closed session.[vi] (Review the exemptions and procedures for closed sessions.) Notice that interested persons may present testimony regarding matters on the agenda at the meeting/hearing or in writing to the board. Contact information for further information about the petition or application. Proof of Notice An affidavit of publication by a newspaper editor or his/her designee showing the name of the newspaper and dates of publication affixed to a copy of the published notice is presumptive evidence of publication.[vii] A similar affidavit by a person posting legal notice showing the time, place and manner of posting serves the same function for posted notices.[viii] [i] ss & (1), Stats. [ii] ss & (1), Stats. [iii] s (2)(a), Stats. concerns requirements for an official newspaper; s (1), Stats. provides a posting option if there is no official newspaper; s (2), Stats. provides guidelines for posting & s (3), Stats. defines municipality. [iv] s , Stats. [v] ss & , Stats. [vi] s (2), Stats. [vii] s , Stats. [viii] s (2)(d), Stats. Published public notification is required for zoning board hearings in addition to posted notification under the Open Meetings Law. These notices are often combined in the published notice for efficiency. Proof of public notification is provided by affidavit of publication by a newspaper editor or of posting by the person posting. Notice must be published in the municipality’s designated official newspaper or, if none, in a newspaper likely to give notice in the affected area. If no newspaper is qualified (by statute) to give notice in the area, notice must be posted in 3 public places likely to give notice. In addition to the information required for Open Meetings Law notification, a combined notice should include: Applicant/appellant's name. General description of the proposal, its location & nature of the request (variance, conditional use or appeal). Notice to interested/affected persons of any opportunity for testimony.

Agency Notification Shoreland, shoreland wetland & floodplain zoning
Notice to DNR 10-days prior to hearings. Decisions must be provided within 10 days. Exclusive agricultural zoning districts Notice to DATCP of any approval of special exceptions or variances. Agency Notification Department of Natural Resources (DNR) notification. The appropriate local DNR office must be provided with10-day prior notice of hearings on shoreland, shoreland wetland and floodplain zoning appeals, variances and conditional uses/special exceptions and provided with copies of related decisions within 10 days.[i] Department of Agriculture, Trade and Consumer Protection (DATCP) notification. DATCP must be notified of any approval in the case of a conditional use/special exception or variance in an exclusive agricultural zoning district under the state farmland preservation program.[ii] [i] ss. NR (6)(h) & NR (2)(d) Wis. Adm. Code; DNR notification is usually accomplished by providing a written copy of the notice. [ii] s (5) Stats. Forms for notifying DATCP are available at Agency notification is usually provided by copy of public notice prior to first publication. The Court of Appeals held that the DNR has standing to appeal zoning decisions affecting shorelands. "The DNR is a "person aggrieved" by county decisions affecting shorelands because it is a trustee of the navigable waters of the state. The Wisconsin Supreme Court has recognized that the state has standing to appeal decisions which violate the public trust. Moreover, according to Just [Just v. Marinette County, 56 Wis. 2d 7], the DNR has a duty to appeal decisions which do not comply with shoreland zoning requirements." [State ex rel. DNR v. Walworth County Bd. of Adjustment, 170 Wis. 2d 406, 489 N.W.2d 631 (Ct. App. 1992)].

Notice to Other Parties…
To media requesting it. Mailed notice to parties in interest: the applicant/appellant/petitioner, adjacent property owners & also to town clerks. Media Notification The information provided in a published or posted notice must be provided by phone, fax or written copy to any media requesting it and to the community’s official newspaper. If an official newspaper is not designated, notice must be given to news media likely to give notice in the area.[i] Notice to Other Parties Notice must also be given by mail to the parties in interest.[ii] The parties include: the applicant/appellant/petitioner, a zoning officer whose decision is appealed and adjacent/nearby property owners as specified by ordinance. [i] ss (1)(b) & , Stats. [ii] ss (6) & 62.23(7)(e)6, Stats. Notification to media may be by phone, fax or written copy. Local ordinances specify which nearby property owners must be notified of hearings (e.g. abutters, those within 300 ft. of the project site, etc.).

Zoning Board Decisions

The zoning board functions like a court…
Decision-making criteria are outlined in state statutes, case law, and local ordinances. The board applies these laws to particular fact situations (quasi-judicial decisions). BOA decisions can be appealed to higher courts. Decisions will generally be upheld if proper decision making standards and procedures are followed. Due Process Since a zoning board makes quasi-judicial decisions, it must conduct its business as a court does following rules of fair play. These rules, known as due process, include: · giving notice of a pending decision to affected persons, providing an opportunity for a hearing, basing decisions on pre-existing standards and factual evidence in a record that is available for review, making written decisions, and remaining unbiased in their decision-making. A zoning board must apply ordinances as they are written and may not substitute its judgment for that of the elected local governing body. Ordinance proposal, adoption and revision are legislative functions reserved by state law for the planning and zoning committee/commission and the local governing body following prescribed procedures. [i] county – s , Stats., city – s (7), Stats., village – s , Stats., town – s , Stats. The zoning board also makes few legislative type decisions (e.g. adoption of its operating rules & recommendations to zoning committee about policy changes).

Role of the zoning board
Review and decide cases where there is an alleged error in a zoning decision or where a relaxation of the ordinance is sought 3 types of decisions: 1) Administrative appeal 2) Variance 3) Special exception/conditional use

Discretion… Flexibility in decision-making
Constitutional and reasonable. Public participation encouraged. Pre-determined standards apply. Conditions may be applied. Discussion only during the hearing. Discretion Legislative policies, plans ordinances The zoning board is not meant to provide general flexibility to the zoning ordinance. Policy development & adoption are legislative functions reserved for the governing body and plan commission. Legislative decisions only need to meet two criteria: constitutional (does this mean within your jurisdiction or something else?) and reasonable Quasi-judicial: discussion limited to the hearing and predetermined standards apply; conditions can be crafted Administrative: applying the ordinance standards as written; no additional conditions Apply ordinance as written. No additional conditions. Quasi-judicial variances conditional uses admin. appeals Administrative permits

How should the zoning board react to this information…
The town board polls every resident & determines that no one objects to Joe’s request for a variance to allow construction of a garage within the roadway setback. In fact, most would like the same opportunity. How should the zoning board react to this information… ? The legal standards for a variance do not include the fact that no one objects to the proposal. Therefore, this information should not carry any weight when the BOA decides whether or not to grant the variance. The BOA’s role is to apply the ordinance as currently written and use variances to avoid regulatory takings. However, if facts and the popular sentiment seem to support a view that such projects do not conflict with public interests, the zoning board may suggest that the planning committee/commission study the issue to determine if the regulation is warranted.

Variances Variance transfers with property
Because a property rather than its owner may qualify for a variance (unique property limitations test), a variance transfers with the property to subsequent owners.[i] [i] Goldberg v. City of Milwaukee Bd. of Zoning App., 115 Wis. 2d 517, , 340 N.W. 2d 458 (Ct. App. 1983) Nonconformity: To be nonconforming a structure must be legally constructed and predate the standard with which it does not comply. Nonconforming structure provisions should not be applied to structures granted variances (e.g. 50% rule and variations). Transfer: A variance transfers with a property to subsequent owners because, under the unique property limitations test, a property rather than its owner may qualify for a variance.

Variances Purpose: to preserve local regulatory standards, prevent regulatory takings, and avoid unnecessary burdens on property owners. Variances not meant to provide general flexibility in ordinances. Ordinance should provide some level of flexibility to preserve regulatory objectives while maintaining community support. Variances are meant to preserve local standards and ordinances while preventing regulatory takings. Variances are not meant to provide general flexibility in ordinances; ordinances should be revised through the legislative process to incorporate the level of flexibility that the community supports. A regulatory taking occurs when government restriction goes so far as to allow no reasonable use of the property (Pennsylvania Coal v. Mahon), which is quite different from the common meaning. Regulatory takings include physical occupation of land, allowing the public on land without the owners’ approval or severely limiting allowed uses

Variances Special exceptions
When granted, appointed BOA members allow landowners to violate the ordinance adopted by governing body Decision standards are set by the state legislature and courts Special exceptions Can only be granted if elected governing body lists them in ordinance for the zoning district Decision standards are set locally Permitted Uses Generally, two categories of land uses are allowed in each zoning district: permitted uses and conditional uses. A permitted use is allowed as a matter of right in all locations in a district provided it complies with general standards for the district, any overlay district or design standards and related building or construction codes. Authorization by the zoning administrator or building inspector is non-discretionary if a project meets the standards. Additional conditions on design or construction may not be imposed. A permitted use is authorized by a simple zoning or building permit. Conditional uses for each district The terms special exception and conditional use are used synonymously.[i] In designating conditional uses, a community has determined that such uses are not suited to all locations in a zoning district but may be authorized if adaptable to the limitations of a particular site and adjacent land uses. In short, they must be custom tailored to a specific location and if this is not possible they may be denied. Conditional uses are generally limited to those listed in an ordinance for each zoning district. (Only conditional uses listed for a zoning district may be granted. A few ordinances still contain a rather archaic provision stating that any use not listed for a zoning district may be considered. This type of provision seriously undermines zoning since it says that any use can be considered in any location without approval from the body of elected officials. This is a recipe for disaster since there are no standards on which to evaluate proposed projects. If you don’t have anything better to do with your nights, this is a good way to fill them up.) They may include both uses of land (e.g. a public safety facility in a residentially zoned area) and specified construction activities (e.g., filling and grading in excess of 10,000 square feet adjacent to water bodies). Review of applications is assigned by ordinance to the planning and zoning committee/commission, the zoning board of adjustment/appeals or the governing body. A public notice and hearing are customary (though not required by state law) in order to provide neighbors and the public an opportunity to voice concerns about potential effects of proposed conditional uses. The decision to grant or deny a conditional use permit (CUP) is discretionary i.e., a permit may be denied if the project cannot be tailored to a site without significant harm to ordinance objectives. [i] State ex rel. Skelly Oil Co. v. City of Delafield, 58 Wis.2d 695 (1973) Permitted uses are permissible throughout a district since project impacts are generally known and can be addressed with standardized practices. An example would be a single-family homes in a residential district. Conditional uses must be tailored to a specific location since project impacts vary with site conditions and adjacent uses. Examples would include a fire station in a residential area or extensive grading adjacent to a river or stream. Conditional uses may evolve to become permitted uses as the zoning board/committee gains understanding of impacts and appropriate design and performance standards which are then formalized and adopted as standards in the local ordinance.

Variances Use variances “permit a landowner to put property to an otherwise prohibited use.” Area variances “provide an increment of relief (normally small) from a physical dimensional restriction such as a building height, setback, and so forth.” Two types of zoning variances are generally recognized: use variances and area variances. Uses variances are rare and problematic for reasons discussed later. An area variance is a relaxation of a dimensional standard in a zoning ordinance (e.g., setbacks, lot area, height, etc.) that may be granted by a zoning board if procedural and substantive requirements are met. These requirements are specified in state statutes[i] and in local ordinances (usually in sections dealing with zoning board duties or administration). Few areas of land use law are as extensively litigated as the standards necessary to qualify for a variance. Published court cases provide guidance for board members and are cited in the endnotes (your county zoning department has been provided with a summary of related cases). [i] Counties s (7)(c), Stats.; cities, villages and towns s (7)(e), Stats. Variances are meant to preserve local standards and ordinances while preventing regulatory takings. Variances are not meant to provide general flexibility in ordinances; ordinances should be revised through the legislative process to incorporate the level of flexibility that the community supports. A regulatory taking occurs when government restriction goes so far as to allow no reasonable use of the property (Pennsylvania Coal v. Mahon), which is quite different from the common meaning. Use variance standard from Ziervogel, paragraph 21. Area variance from Ziervogel, paragraph 23. Ziervogel v. Washington County Board of Adjustment, 2004 WI Supreme Ct.

Variances An applicant has burden of proof to show that all three statutory tests are met: unnecessary hardship* due to conditions unique to the property & no harm to public interests Burden of proof To qualify for a variance, an applicant must demonstrate that all three criteria of the three-part test outlined below are met.[i] The zoning department can assist a petitioner in meeting this burden by providing clear application materials including detailed explanations of the process and standards for approval (see the application form and notice appended). [i] State v. Kenosha County Board of Adjustment, 218 Wis. 2d at 420, 577 N.W.2d 813 (1998); Arndorfer v. Board of Adjustment, 162 Wis. 2d at 254, 469 N.W.2d 831 (1991) “Unnecessary hardship must be based upon conditions unique to the property rather than considerations unique to the property owner and cannot be self-created.” Ziervogel, 269 Wis. 2d 549, ¶20. and as Dean points out, is different from “unique property conditions” as the former may include things like errors of the zoning staff

Variances Conditions unique to the property test
Conditions unique to the property include physical limitations of the property, such as steep slopes or wetlands must prevent compliance with the ordinance. Does every small, steep or irregularly shaped parcel qualify for a variance?? Hardship Due to Unique Property Limitations Unnecessary hardship must be due to unique limitations of the property i.e., physical features of the property prevent compliance with the ordinance (steep slopes, wetlands, etc.).[i] [i] State ex rel. Spinner v. Kenosha County Bd. of Adjustment, 223 Wis. 2d 99, 105-6, 588 N.W.2d 662 (1998); State v. Kenosha County Board of Adjustment, 218 Wis. 2d 396, 410, 577 N.W.2d 813 (1998); Arndorfer v. Board of Adjustment, 162 Wis. 2d 246, , 469 N.W.2d 831 (1991); Snyder v. Waukesha County Zoning Bd., 74 Wis. 2d 468, 478, 247 N.W.2d 98 (1976) The protection of magnificent old white pines is only taken into account if it’s written into the ordinance, otherwise there is no protection for them if they must be cut down to build in compliance with the ordinance. In seeking a variance, a property owner has a duty to demonstrate that no alternative site location would provide reasonable use and comply with ordinance requirements.

Variances Conditions unique to the property test
Limitations that prevent ordinance compliance & are common to a number of properties should be addressed by ordinance amendment. Circumstances of an applicant such as a growing family or need for a larger garage, are not a factor in deciding variances. Circumstances of an applicant not deciding. The circumstances of an applicant (growing family, need for a larger garage, etc.) are not factors in deciding variances.[i] Amendments for common limitations. Property limitations that prevent ordinance compliance and that are not unique but common to a number of properties should be addressed by amendment of the ordinance.[ii] For example, an ordinance may, in some cases, be amended to provide reduced setbacks for a subdivision that predates the current ordinance and where lots are not deep enough to accommodate current standards. [i] Snyder v. Waukesha County Zoning Bd., 74 Wis. 2d 468, , 247 N.W.2d 98 (1976) [ii] Arndorfer v. Board of Adjustment, 162 Wis. 2d 246, 256, 469 N.W.2d 831 (1991); State v. Winnebago County, 196 Wis. 2d 836, 846, 540 N.W.2d 6 (Ct. App. 1995) Common limitations: As an example, development limitations of a number of adjacent substandard lots could be addressed by providing: reduced dimensional standards (area and setback) and compensatory requirements designed to address public interests (a neighborhood stormwater management plan and facilities, dedication or funding for off-site open space or recreational facilities, shared access driveways, visual buffers, etc.).

Variances Public interest test
A variance granted may not harm public interests but is not required to advance them. “Public interests” are the purpose and intent of the ordinance that were agreed upon by the county board, representing the community. Those who provide testimony may try to convince you other factors are the “public interests.” Short-term, long-term and cumulative impacts of variance requests must be considered. Zoning staff should provide an impact analysis. No Harm to Public Interests A variance may not be granted which results in harm to public interests.[i] Purpose of ordinance. The zoning board should review the purpose statement of the ordinance and related statutes in order to identify public interests. This section of an ordinance is very important and should provide specific guidance regarding objectives for the zoning board while allowing for broad consideration of public interests as well. Statutes also provide that variances must observe the spirit of the ordinance, secure public safety and welfare and do substantial justice. In considering effects of a variance on public interests, the board should examine broad community and even statewide interests and should not confine itself to scrutiny of impacts on neighbors or residents in the vicinity of a project (e.g. if the patrons of a restaurant located on a shoreline lot support building a deck with a better view of the water which requires a variance, this does not constitute ‘public interest’). [i] State v. Winnebago County, 196 Wis. 2d 836, , 540 N.W.2d 6 (Ct. App. 1995); State v. Kenosha County Board of Adjustment, 218 Wis. 2d 396, 407-8, 577 N.W.2d 813 (1998) Cumulative impacts: Many of the impacts of development seem inconsequential viewed separately but they add up to significant problems, e.g. addition of a few children to an already overburdened school system, a seemingly small fill in a floodway, one small shopping center and its roofed and paved surfaces in a watershed with lakes and streams on the verge of becoming hypereutrophic.

Purposes of shoreland zoning include…
Prevent and control water pollution Protect spawning grounds, fish and aquatic life Reserve shore cover and natural beauty Variance transfers with property Because a property rather than its owner may qualify for a variance (unique property limitations test), a variance transfers with the property to subsequent owners.[i] [i] Goldberg v. City of Milwaukee Bd. of Zoning App., 115 Wis. 2d 517, , 340 N.W. 2d 458 (Ct. App. 1983) Nonconformity: To be nonconforming a structure must be legally constructed and predate the standard with which it does not comply. Nonconforming structure provisions should not be applied to structures granted variances (e.g. 50% rule and variations). Transfer: A variance transfers with a property to subsequent owners because, under the unique property limitations test, a property rather than its owner may qualify for a variance.

Adapted From: Wisconsin DNR
18x 5x 6x Phosphorus Inputs Runoff Volume Sediment Inputs 4x If we look at an undeveloped lakeshore lot based on a model simulation we understand that generally: there is a natural, baseline amount of stormwater, phosphorus, and sediment that enters the lake from that property. If you took the same lot and put a small, primitive cabin on it, leaving most of the vegetation intact, the amount of water runoff and phosphorus stays about the same, but sediment inputs from that lot increase by a factor of 4. Now, if you intensely develop that lot, removing much of the native vegetation and adding large amounts of impervious surface, Runoff volume increases by 5 times, phosphorus increases by 6 times, and there is 18 TIMES MORE SEDIMENT going into the lake as compared with an undeveloped lot of the same size. And remember, sediment is not only a pollutant in and of itself, it is the vehicle for pathogens, heavy metals, and nutrients. NOW, if this house on the right was the only house on the lake, its overall impact on the lake would most likely be negligible… But that’s not often the case, which means we are very concerned about a phenomenon we call… This is based on WI DNR slide show (‘Margin of Error’) graphic. – this does not include P inputs from septic systems – surface runoff only. be careful here…do the current zoning laws allow this? Things were actually worse in the 60s before we had zoning. Adapted From: Wisconsin DNR

Effects of Increased Impervious Surfaces
More runoff carrying more sediment and nutrients into the lake or stream Erosion Increased algae growth Fewer fish & insect species A strong national economy, growth in discretionary income and jobs that allow us to work away from our office have set in motion some exceptional circumstances. This trend has been building since World War II, but the impact has been particularly dramatic over the past three decades. So many people want to live away from cities and near the water that the demand is driving property prices sky-high. (Waupaca Chain of Lakes) In some northern counties, property values have increased as much as 400% in the past five years. In Vilas County, shoreland selling for $225 per foot of shoreline in 1990 is going for more than $1500 today. In 1973, a 10 bedroom, 6 bath resort with 200 feet of frontage on the great Manitowish Chain in Vilas County had a $45K asking price.

Southern redbelly dace
Increasing impervious surface in the watershed Decreasing number of fish & fish species Less than 8% 8-12% Greater than 12% Fish found in streams when impervious surface in the watershed was: Less than 8% 8 - 12% Greater than 12% Iowa darter Black crappie Channel catfish Yellow perch Rock bass Hornyhead chub Sand shiner Southern redbelly dace Golden shiner Northern pike Largemouth bass Bluntnose minnow Johnny darter Common shiner Creek chub Fathead minnow Green sunfish White sucker Brook stickleback Golden shiner Northern pike Largemouth bass Bluntnose minnow Johnny darter Common shiner Creek chub Fathead minnow Green sunfish White sucker Brook stickleback Creek chub Fathead minnow Green sunfish White sucker Brook stickleback From Wang, Lyons et al., JAWRA, 36:5, , 2000 From warmwater streams Wang et al. 2000

The Buffer Zone

How do buffers work? Deep-rooted native shoreline & upland plants are more effective than lawn grasses at stabilizing shorelines & halting erosion. Drawing by Steve Adams. Taken from Lakescaping for Wildlife and Water Quality. Carroll Henderson, etal. MN DNR Warm-season grasses are very deep-rooted & have high stem densities ( ex: bluestem, Indian grass, switchgrass ). Cool-season grasses (ex: brome, fescue, etc.) produce times less root mass and do not remain upright under the flow of water {Stewards of our Streams fact sheet series from Iowa State University Extension }. Native plants have deep roots that hold more soil in place and increase infiltration of water by creating more pore spaces. Native plants also have round or square stems (instead of flat like bluegrass) that slow runoff and filter out sediment and the P that’s bound to it. They also provide food and habitat for wildlife that depend on the water’s edge.

Buffer research has found
Larger buffers work better Lawns deliver phosphorus & nitrogen to lakes

Buffer research

Buffer zone functions:
Reduce runoff, erosion & sedimentation to preserve water quality/clarity Take up nutrients that feed algae Wildlife food, shelter and critical habitat Combat invasive species Preserve natural beauty

What does unnecessary hardship mean for area variances?
Two types of zoning variances are generally recognized: use variances and area variances. Uses variances are rare and problematic for reasons discussed later. An area variance is a relaxation of a dimensional standard in a zoning ordinance (e.g., setbacks, lot area, height, etc.) that may be granted by a zoning board if procedural and substantive requirements are met. These requirements are specified in state statutes[i] and in local ordinances (usually in sections dealing with zoning board duties or administration). Few areas of land use law are as extensively litigated as the standards necessary to qualify for a variance. Published court cases provide guidance for board members and are cited in the endnotes (your county zoning department has been provided with a summary of related cases). [i] Counties s (7)(c), Stats.; cities, villages and towns s (7)(e), Stats. Variances are meant to preserve local standards and ordinances while preventing regulatory takings. Variances are not meant to provide general flexibility in ordinances; ordinances should be revised through the legislative process to incorporate the level of flexibility that the community supports. A regulatory taking occurs when government restriction goes so far as to allow no reasonable use of the property (Pennsylvania Coal v. Mahon), which is quite different from the common meaning. Use variance standard from Ziervogel, paragraph 21. Area variance from Ziervogel, paragraph 23.

“Unnecessary hardship” for area variances means…
Timeline 1965 – Markdale 1976 – Snyder 1998 – Kenosha 2001 – Outagamie 2004 – Ziervogel & Waushara 2009 No reasonable use without a variance Unnecessarily burdensome in view of ordinance purposes No reasonable use without a variance ??? Unnecessarily burdensome in view of ordinance purposes

Ziervogel & area variances…
Case law Ziervogel & area variances… House located 26 feet from the OHWM of Big Cedar Lake in Washington County Owners wanted a 10-foot vertical expansion of their house to add two bedrooms, two bathrooms, and an office to the house Washington County's Ordinance prohibited expanding any structure within 50 feet of the OHWM of a lake Washington County BOA denied variance request Circuit Court & Court of Appeals affirmed Supreme Court changed standard Unnecessary Hardship The most difficult test for an applicant to meet is demonstrating unnecessary hardship. Unnecessary hardship is present where, in the absence of a variance, no reasonable use can be made of the property.[i] [i] State v. Kenosha County Board of Adjustment, 218 Wis. 2d 396, , 577 N.W.2d 813 (1998) The definition of unnecessary hardship is found in the 1976 case, Snyder v. Waukesha County Zoning Board, and it is affirmed in the 1998 case, State vs. Kenosha County Board of Adjustment. In the Kenosha County case, the owner argued that unnecessary hardship existed because the zoning ordinance prevented addition of a deck on the front of the house within the required shoreline setback. The court ruled that the owner, who had lived in that house for many years, already had reasonable use of the property without the deck and consequently approval of a variance to allow such construction was improper. See the DNR index of zoning case law. An example of a self-imposed hardship: splitting a property to produce a substandard parcel and later claiming hardship due to lot size requirements.

Unnecessary hardship test for area variances…
Case law Unnecessary hardship test for area variances… Unnecessary hardship = when compliance with the ordinance would: unreasonably prevent the owner from using the property for a permitted purpose, or be unnecessarily burdensome in view of ordinance purposes Unnecessary Hardship The most difficult test for an applicant to meet is demonstrating unnecessary hardship. Unnecessary hardship is present where, in the absence of a variance, no reasonable use can be made of the property.[i] [i] State v. Kenosha County Board of Adjustment, 218 Wis. 2d 396, , 577 N.W.2d 813 (1998) The definition of unnecessary hardship is found in the 1976 case, Snyder v. Waukesha County Zoning Board, and it is affirmed in the 1998 case, State vs. Kenosha County Board of Adjustment. In the Kenosha County case, the owner argued that unnecessary hardship existed because the zoning ordinance prevented addition of a deck on the front of the house within the required shoreline setback. The court ruled that the owner, who had lived in that house for many years, already had reasonable use of the property without the deck and consequently approval of a variance to allow such construction was improper. See the DNR index of zoning case law. An example of a self-imposed hardship: splitting a property to produce a substandard parcel and later claiming hardship due to lot size requirements. Ziervogel v. Washington County Board of Adjustment, 2004 WI Supreme Ct.

What does “unnecessarily burdensome” mean??
Case law What does “unnecessarily burdensome” mean?? Should an after-the-fact variance be granted for the red porch because its removal would be “unnecessarily burdensome”? The WI Supreme Court said NO because the “hardship was self-created and the porch no more than a personal convenience”. 13 ft. The definition of unnecessary hardship is found in the 1976 case, Snyder v. Waukesha County Zoning Board, and it is affirmed in the 1998 case, State vs. Kenosha County Board of Adjustment. In the Kenosha County case, the owner argued that unnecessary hardship existed because the zoning ordinance prevented addition of a deck on the front of the house within the required shoreline setback. The court ruled that the owner, who had lived in that house for many years, already had reasonable use of the property without the deck and consequently approval of a variance to allow such construction was improper. See the DNR index of zoning case law. An example of a self-imposed hardship: splitting a property to produce a substandard parcel and later claiming hardship due to lot size requirements. Snyder v. Waukesha County Zoning Board, 1976

Unnecessary hardship Case law
Building inspector missed a setback violation for 2 duplexes The duplexes were built and the developer then applied for an after-the-fact variance, which the zoning board granted Hardship cannot be self-created or created by a prior owner Unnecessary Hardship The most difficult test for an applicant to meet is demonstrating unnecessary hardship. Unnecessary hardship is present where, in the absence of a variance, no reasonable use can be made of the property.[i] [i] State v. Kenosha County Board of Adjustment, 218 Wis. 2d 396, , 577 N.W.2d 813 (1998) The definition of unnecessary hardship is found in the 1976 case, Snyder v. Waukesha County Zoning Board, and it is affirmed in the 1998 case, State vs. Kenosha County Board of Adjustment. In the Kenosha County case, the owner argued that unnecessary hardship existed because the zoning ordinance prevented addition of a deck on the front of the house within the required shoreline setback. The court ruled that the owner, who had lived in that house for many years, already had reasonable use of the property without the deck and consequently approval of a variance to allow such construction was improper. See the DNR index of zoning case law. An example of a self-imposed hardship: splitting a property to produce a substandard parcel and later claiming hardship due to lot size requirements. Accent Developers, LLC v. City of Menomonie BOA and Timber Ridge Homes LLC, 2007 WI Court of Appeals

Unnecessary hardship Case law
The court noted there was ample evidence of external causes of the hardship and affirmed BOA’s grant of a variance because the hardship of removing the duplexes was not solely self-created A zoning board may consider an error of local government staff when deciding whether to grant a variance Unnecessary Hardship The most difficult test for an applicant to meet is demonstrating unnecessary hardship. Unnecessary hardship is present where, in the absence of a variance, no reasonable use can be made of the property.[i] [i] State v. Kenosha County Board of Adjustment, 218 Wis. 2d 396, , 577 N.W.2d 813 (1998) The definition of unnecessary hardship is found in the 1976 case, Snyder v. Waukesha County Zoning Board, and it is affirmed in the 1998 case, State vs. Kenosha County Board of Adjustment. In the Kenosha County case, the owner argued that unnecessary hardship existed because the zoning ordinance prevented addition of a deck on the front of the house within the required shoreline setback. The court ruled that the owner, who had lived in that house for many years, already had reasonable use of the property without the deck and consequently approval of a variance to allow such construction was improper. See the DNR index of zoning case law. An example of a self-imposed hardship: splitting a property to produce a substandard parcel and later claiming hardship due to lot size requirements. Accent Developers, LLC v. City of Menomonie BOA and Timber Ridge Homes LLC, 2007 WI Court of Appeals

Is the hardship… A personal inconvenience?
A hardship that is necessary to achieve ordinance purposes? If yes to either question, deny variance. A hardship that is not necessary to achieve ordinance purposes? If yes and other 2 variance standards are met, then grant variance. The definition of unnecessary hardship is found in the 1976 case, Snyder v. Waukesha County Zoning Board, and it is affirmed in the 1998 case, State vs. Kenosha County Board of Adjustment. In the Kenosha County case, the owner argued that unnecessary hardship existed because the zoning ordinance prevented addition of a deck on the front of the house within the required shoreline setback. The court ruled that the owner, who had lived in that house for many years, already had reasonable use of the property without the deck and consequently approval of a variance to allow such construction was improper. See the DNR index of zoning case law. An example of a self-imposed hardship: splitting a property to produce a substandard parcel and later claiming hardship due to lot size requirements.

Variances… Loss of profit or financial difficulty do not constitute hardship A variance runs with the property. A variance does not create a nonconforming structure. Lack of objections from neighbors does not justify a variance. Nor do nearby ordinance violations. Variance transfers with property Because a property rather than its owner may qualify for a variance (unique property limitations test), a variance transfers with the property to subsequent owners.[i] [i] Goldberg v. City of Milwaukee Bd. of Zoning App., 115 Wis. 2d 517, , 340 N.W. 2d 458 (Ct. App. 1983) Nonconformity: To be nonconforming a structure must be legally constructed and predate the standard with which it does not comply. Nonconforming structure provisions should not be applied to structures granted variances (e.g. 50% rule and variations). Transfer: A variance transfers with a property to subsequent owners because, under the unique property limitations test, a property rather than its owner may qualify for a variance.

Conditional uses or Special exceptions

Permitted uses Conditional uses (Special Exceptions) Where allowed
Everywhere in district Tailored to site & neighboring uses Who decides Administrator Commission/committee, BOA, governing body Discretion Must be granted if standards are met May be granted or denied Added conditions None permitted Added conditions OK (design & performance) Appeal BOA Court - BOA if decided by P&Z committee Permitted Uses Generally, two categories of land uses are allowed in each zoning district: permitted uses and conditional uses. A permitted use is allowed as a matter of right in all locations in a district provided it complies with general standards for the district, any overlay district or design standards and related building or construction codes. Authorization by the zoning administrator or building inspector is non-discretionary if a project meets the standards. Additional conditions on design or construction may not be imposed. A permitted use is authorized by a simple zoning or building permit. Conditional uses for each district The terms special exception and conditional use are used synonymously.[i] In designating conditional uses, a community has determined that such uses are not suited to all locations in a zoning district but may be authorized if adaptable to the limitations of a particular site and adjacent land uses. In short, they must be custom tailored to a specific location and if this is not possible they may be denied. Conditional uses are generally limited to those listed in an ordinance for each zoning district. (Only conditional uses listed for a zoning district may be granted. A few ordinances still contain a rather archaic provision stating that any use not listed for a zoning district may be considered. This type of provision seriously undermines zoning since it says that any use can be considered in any location without approval from the body of elected officials. This is a recipe for disaster since there are no standards on which to evaluate proposed projects. If you don’t have anything better to do with your nights, this is a good way to fill them up.) They may include both uses of land (e.g. a public safety facility in a residentially zoned area) and specified construction activities (e.g., filling and grading in excess of 10,000 square feet adjacent to water bodies). Review of applications is assigned by ordinance to the planning and zoning committee/commission, the zoning board of adjustment/appeals or the governing body. A public notice and hearing are customary (though not required by state law) in order to provide neighbors and the public an opportunity to voice concerns about potential effects of proposed conditional uses. The decision to grant or deny a conditional use permit (CUP) is discretionary i.e., a permit may be denied if the project cannot be tailored to a site without significant harm to ordinance objectives. [i] State ex rel. Skelly Oil Co. v. City of Delafield, 58 Wis.2d 695 (1973) Permitted uses are permissible throughout a district since project impacts are generally known and can be addressed with standardized practices. An example would be a single-family homes in a residential district. Conditional uses must be tailored to a specific location since project impacts vary with site conditions and adjacent uses. Examples would include a fire station in a residential area or extensive grading adjacent to a river or stream. Conditional uses may evolve to become permitted uses as the zoning board/committee gains understanding of impacts and appropriate design and performance standards which are then formalized and adopted as standards in the local ordinance.

Special exceptions… Must be listed for the zoning district
First, decide whether the standards listed in the ordinance are met OK to require compliance reporting by owner OK to grant a phased permit Suggest limited-term permits for temporary uses; otherwise permits run with the property Conditions generally cannot be changed unless permit is revoked or expires An expiration date on a CUP provides the municipality with the ability to change, add or delete conditions for the next CUP. Business owners may argue an expiration date takes away their vested rights or investment backed expectations. CUPs that run with the property may be revoked if the conditions are not met, but new conditions may not be added. Gravel pits are temporary uses which are commonly permitted with a CUP with an expiration date. City of Stevens Point sets expiration dates on CUPs for uses such as bars that they are leery of. Riviera Airport v. Pierce County Bd., Unpublished Decision (Ct. App. 2000) affirmed a two-year term on a CUP for an airport stating that the appellant offered no authority to support its contention that because people make financial decisions in reliance on a limited-term CUP, the term limitation is therefore arbitrary, unreasonable, oppressive or contrary to law. Moreover, the record demonstrates that the time limitation was designed to serve a legitimate purpose: to monitor Riviera’s compliance with the permit conditions.. The zoning board stated that the CUPs granted in Pierce County frequently have two-year renewable terms.

Conditions for variances or special exceptions…
Conditions must meet 2 tests: address expected harmful project impacts (essential nexus) be proportional to the extent of those impacts (rough proportionality). Exactions Exactions require a developer to dedicate land or provide public improvements (or fees in lieu) in order for a project to be approved. They are not unique to permitting of conditional uses. Exactions and other conditions on development are generally legal and acceptable provided: (essential nexus test)[i] they are designed to remedy a harm to public interests or to address a need for public services that is likely to result from the proposed development (e.g. a new turnout lane to service a new Wal-Mart would be acceptable, as would parkland dedication as part of a subdivision development; books for the library would not be appropriate in either of these cases; cannot be used to address current deficiencies in services) and (rough proportionality test)[ii] the exaction or limitation is commensurate with the extent of the resulting harm or need for services. For example, a developer could be required to dedicate 10 acres of parkland if the proposed development created a corresponding demand for recreational facilities in the community. If there were a greater need for recreational facilities, the new development should be charged only its proportional share. Exactions cannot be used to remedy existing deficiencies. A community must be able to document that an exaction is reasonable and to that end some local ordinances provide rationale and formulae for computing appropriate exactions and impact fees. [i] Nollan v. California Coastal Commission, 483 U.S. 825 (1987) [ii] Dolan v. City of Tigard, 114 S. Ct (1994) Additional limitations refer to limitations beyond those listed in the ordinance. Exactions are one type of limitation. An example of a limitation which is not a exaction would be limiting the location or size of a building. An example of an exaction would be requiring dedication of land for a playground within a subdivision development or other improvements that the community may desire for quality of life. Infrastructure such as roads, utilities, etc. are not generally considered exactions because they are necessary for development. “Essential nexus” test Exactions/permit conditions must address project impacts. Nollan v. California Coastal Commission, 483 U.S. 825 (1987) “Rough proportionality” test Exactions/permit conditions must be proportional to extent of project impact. Dolan v. City of Tigard, 114 S.Ct (1994)

Case law When conditional uses are decided by the planning and zoning committee, they can be appealed to the BOA. When BOAs hear appeals, they have the authority to: Conduct a de novo hearing, Take new evidence, and Substitute their judgment for the zoning committee or zoning administrator’s judgment Osterhues v. Board of Adjustment for Washburn County, 2005 WI Supreme Ct.

Administrative Appeals
Two types of zoning variances are generally recognized: use variances and area variances. Uses variances are rare and problematic for reasons discussed later. An area variance is a relaxation of a dimensional standard in a zoning ordinance (e.g., setbacks, lot area, height, etc.) that may be granted by a zoning board if procedural and substantive requirements are met. These requirements are specified in state statutes[i] and in local ordinances (usually in sections dealing with zoning board duties or administration). Few areas of land use law are as extensively litigated as the standards necessary to qualify for a variance. Published court cases provide guidance for board members and are cited in the endnotes (your county zoning department has been provided with a summary of related cases). [i] Counties s (7)(c), Stats.; cities, villages and towns s (7)(e), Stats. Variances are meant to preserve local standards and ordinances while preventing regulatory takings. Variances are not meant to provide general flexibility in ordinances; ordinances should be revised through the legislative process to incorporate the level of flexibility that the community supports. A regulatory taking occurs when government restriction goes so far as to allow no reasonable use of the property (Pennsylvania Coal v. Mahon), which is quite different from the common meaning. Use variance standard from Ziervogel, paragraph 21. Area variance from Ziervogel, paragraph 23.

Legal process to resolve disputes regarding: Ordinance interpretation (text, maps, jurisdiction, measurements, etc.) Reasonableness of zoning decision (zoning permit, CUP)

Who can file an appeal? Any aggrieved person: appellant/applicant given unfavorable decision Neighbors/property owners affected by decision state program oversight agencies (DNR, DATCP) Any officer, department, board or bureau of the municipality affected by a decision of an administrative officer

When can an appeal be filed? Whenever there is an alleged error (procedural, substantive or equitable)

Time limits on appeal: State statutes do not specify time limit Limits can be set by local ordinance or rule (e.g., within 30 days of notice of administrative decision) If there is no time limit, clock begins ticking when aggrieved parties find out about decision In some cases courts have decided that an appeal period began when construction commenced

Procedure for appeal: Notice of appeal filed with administrative officer and BOA Action stayed BOA provided with record of decision Public notice

Case law Washburn County applied for a CUP to operate a gravel pit
County zoning committee granted the permit over the opposition of neighbors Osterhues appealed to BOA Osterhues v. Board of Adjustment for Washburn County, 2005 WI Supreme Ct.

Decision standards when BOAs hear appeals
WARNING BOA may have to defend its action on an incomplete record if challenged It is up to the BOA to decide whether it will: review the decision based on the record at hand OR hold a de novo hearing When to collect new evidence? When the BOA feels like the evidence in the record is insufficient to for the BOA to make a decision. OR When people claim to have evidence which was not presented to the zoning board AND is relevant to the CUP standards. BOA may want to hear all potentially new evidence because it is hard to determine whether evidence will really be new or relevant and it is politically difficult to prevent people from telling their story. You can (and perhaps should) tell the audience at the BOA hearing that there is no need to represent the evidence that was presented to the zoning committee. We recommend the BOA hearing notice say something along the lines of: This hearing will provide the opportunity for people with new, relevant evidence to present on this matter. The BOA may or may not choose to hear new evidence. Parties should come prepared to present testimony that is relevant to the ordinance standards and does not replicate testimony presented to the zoning committee.

Appeal of zoning decisions
Planning & zoning committee Governing body Board of adjustment/appeals Circuit court Class 2 notice is required by 59.69(5) for formation of zoning ordinances and 59.69(5)(e)2 for map or text amendment of zoning ordinances in counties and 62.23(7)(d) for cities (and referenced for villages and towns) (5) states public hearings shall be conducted by the county zoning agency (defined as either a planning and zoning committee or the county board or a planning and zoning commission consisting wholly or partially of persons who are not members of the board) (7)(d) states public hearings shall be held by, at the council’s option, the council, the plan commission, the board of public land commissioners or the plan committee 59.69(2)(f) states whenever a zoning ordinance or amendment is enacted by the board a copy shall be sent to clerks of cities, villages and towns affected The following criteria should be used when developing recommendations about an ordinance amendment. A. Consistency with community/land use plan. B. Meets criteria for proposed district. This includes environmental suitability for intended use, including soils, septic suitability, wetlands and adjacent waters. C. Compatible with adjacent uses to avoid potential conflicts with neighbors such as noise, litter, lighting, aesthetics, construction erosion and stormwater runoff. D. Not illegal spot zoning. Shoreland, shoreland-wetland and floodplain ordinances not subject to town dis/approval s (2) for shoreland and shoreland-wetland To Play the Game You Need to Know the Rules Town-County Relationships In Zoning Administration By Michael D. Dresen It is understandable that each municipality would want to plan for and determine uses of land within its jurisdiction. It is also commonly recognized that each community is strongly influenced by uses of land in neighboring communities and throughout their region. This is true for economic development, environmental quality and fiscal issues. For example, a new industrial park may provide employment opportunities for a number of neighboring communities. It may also result in discharges of pollutants to air or waters and increased costs for highways or schools as new workers move to those same neighboring communities. It is also true that land use activities acceptable in some communities or even necessary for modern society (such as power generating stations or landfills) may not be welcome in every community. The State legislature has adopted a system of zoning for unincorporated rural areas that recognizes both a need for some local town control of land uses and a more regional county-wide approach that balances potentially competing interests of neighboring towns. The strategy, known as county-wide comprehensive zoning, provides a balance of powers between a county and its towns (s , Stats.). General zoning is a regulatory land use plan implementation tool. It divides lands within a jurisdiction into zoning districts by adoption of a zoning map. Within each district some land uses are permitted in every location as a matter of right (permitted uses). Another class of land uses must be custom tailored to a particular site by modifying their location, design or operational characteristics (conditional uses also called special exceptions). In both cases the general strategy is to assign land use activities to areas with compatible environmental features, adjacent land uses and public infrastructure. The zoning ordinance text designates permitted and conditional uses and describes dimensional and other development standards that apply in each district. Dimensional standards may be relaxed in special cases by a zoning board of adjustment/appeals through a variance procedure and disagreements about administrative orders or ordinance interpretation may be resolved by the same body through administrative appeals. Town and county roles under county-wide comprehensive zoning This discussion concerns county-wide comprehensive zoning adopted under the authority of s , Stats. Towns do not have a similar role in county adoption of state mandated shoreland or floodplain zoning or other types of land regulations though they may have political influence if they exercise it effectively. Generally, towns are an “approving agency” under county administered land division (subdivision) regulations. Ordinance adoption The town board must have initially approved a general county zoning ordinance for it to be effective in the town (s (5)(c), Stats.). Failing that approval, the town remains unzoned except for regulations administered by the county related to shorelands, wetlands, floodplains and similar programs not requiring town approval or adoption. Ordinance amendment Some towns may not understand or do not effectively exercise their prerogatives regarding amendment of county zoning provisions. Chief among these is legal standing for the town board to seek changes to the regulations to accommodate unique circumstances, updated planning or changing conditions. The town board of any town in which the county ordinance is in effect may petition the county for an amendment to the zoning map or ordinance text (s (5)(e)(1), Stats.). Towns also have significant powers in reacting to ordinance changes proposed by landowners and the county. It may be useful, from a town’s perspective, to view this process as consisting of two stages. The first stage involves development and referral of a proposed amendment to the county board for action (s (5)(e)(3), Stats.). A copy of the public notice announcing the county zoning agency’s hearing on an amendment must be provided by registered mail to the clerk of an affected town at least 10 days prior to the hearing. If the town board files a resolution with the agency disapproving the petition within 10 days after the hearing (a 20-day extension is possible), the agency must modify the petition in response to the town comments or must recommend disapproval to the county board. The second stage of ordinance amendment involves town reaction to amendments recently adopted by the county (s (5)(e)(6), Stats.). Once the county board adopts a zoning amendment, a copy of the ordinance or notification of adoption must be forwarded to the clerks of affected towns. A majority of affected town boards may prevent a general amendment from taking effect by filing a disapproving resolutions with the county clerk. A single town may veto a zone change (map amendment) that affects only the town. Town withdrawal from county zoning Once under county zoning, a town may not withdraw unless the county adopts a comprehensive revision (s (5)(d), Stats.). A comprehensive revision is “a complete rewriting of an existing zoning ordinance which changes numerous zoning provisions and alters or adds zoning districts” accomplished by a single ordinance. The revision ordinance may allow the existing ordinance to remain in effect in a town for up to one year. If the town board fails to approve the comprehensive revision within a year, neither the existing ordinance nor the comprehensive revision will be in force in that town. Appeals, conditional uses and variances Most counties provide notification of pending appeals, conditional uses and variances to their towns. They often struggle to provide a timely response for petitioning property owners while allowing sufficient time for town plan commissions and/or town boards to meet to review petitions. One option is to extend the county review period. Another is town board delegation of authority in these matters to the town plan commission. This should not present a significant concern since one or more town board members are included on the commission. The town board could rescind commission authority if commission members were not sensitive to town board concerns. Greater impediments to effective town participation in these county decisions result from failure of some towns to appoint plan commissions or committees or from insufficient understanding of procedural and substantive requirements related to administrative appeals, conditional uses and variances (see the Zoning Board and Plan Commission Handbooks on our website). Town zoning in counties comprehensively zoned A town board may be granted village powers by electors at an annual or special town meeting (s , Stats.). Subsequently, the town board may adopt zoning if: approved by the town meeting or in a referendum, a plan commission is established, and the ordinance and any later amendments are approved by the county board. In such cases ordinance administration and enforcement are a town responsibility. These generally require a plan commission, zoning administrator, zoning board of appeals, municipal attorney and such facilities and funding as are necessary to support their functions. A town without village powers may only exercise its role in county zoning in counties that are comprehensively zoned (s , Stats.). It may not adopt its own zoning even with county approval. Town zoning in counties not comprehensively zoned A town in a county that is not comprehensively zoned must petition the county to adopt county-wide comprehensive zoning. If the county zoning agency does not develop a plan and ordinance within a year or if the county board fails to adopt the ordinance at its first meeting after the year has expired, the town may proceed to adopt, administer and enforce its own zoning (s , Stats.). Consequences of Comprehensive Community Planning law The State Comprehensive Community Planning Law (improperly labeled the Smart Growth law) does not change the basic authorities or relationships between counties and towns in adoption and administration of zoning. While the law encourages coordinated planning between jurisdictions and regional approaches to land use issues, it does not require consistency between plans. The most important requirement is that each jurisdiction’s land use decisions must be consistent with its own comprehensive plan. Accordingly, it is possible (though not desirable) that a county and town may disagree about acceptable uses of particular lands within the town and that their respective plans will reflect this disagreement. Similarly, county and town plans may initially agree for a particular parcel. Subsequently the county may amend its plan to allow a zoning map amendment while the town may refuse to amend its plan and exercise its disapproval of the county amendment consistent with the town plan. While the planning law is not a panacea, an orderly and rational approach to resolving land use issues coupled with wide stakeholder and public participation in the process should promote coordination and consistency in planning and land use law administration. Any errors, mistakes or omissions remain the responsibility of the author. Court of appeals Wisconsin supreme court

Standards on judicial review…
Courts defer to local decision makers when these tests are met: Subject matter jurisdiction Did the body decide a matter that it is empowered by statute or ordinance to act on? Proper procedures Did the body follow proper procedures (open meeting law, public notice, hearing, record of decision, etc.)? Proper standards Did the body apply proper standards in making the decision (e.g. 3-step test for a variance)? Rational basis for the decision Could a reasonable person have reached this conclusion? Evidence in the record Do facts in the record of the proceedings support the decision?

Center for Land Use Education
Open Discussion Announce logistical information including: welcome and thanks for coming session name and intended audience (to ensure folks are in the right place) continuing ed credits for Wisconsin Bar (attorneys) presenters and their affiliations restroom locations refreshments survey collection written materials cover the same topics as this presentation and are organized with a table of contents to aid in their use during a board meeting ask questions as we go along question slides throughout presentation are meant to describe application of principles presented. How do you believe your zoning board would respond? optional introduction of participants (for smaller groups) For upcoming question slides: How would you answer the following questions? AND How confident are you of your answer? Consider tailoring the question slides to reflect the range of experience of participants (perhaps add some easy questions for the real beginners, so they don’t feel so overwhelmed) Center for Land Use Education

ZONING BOARD WORKSHOP Lynn Markham and Becky Roberts UW-Extension

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ZONING BOARD WORKSHOP Lynn Markham and Becky Roberts UW-Extension

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