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ZONING BOARD WORKSHOP Lynn Markham and Becky Roberts UW-Extension University of Wisconsin - Stevens Point.

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Presentation on theme: "ZONING BOARD WORKSHOP Lynn Markham and Becky Roberts UW-Extension University of Wisconsin - Stevens Point."— Presentation transcript:

1 ZONING BOARD WORKSHOP Lynn Markham and Becky Roberts UW-Extension University of Wisconsin - Stevens Point

2 Terminology State statutes define: –Counties have boards of adjustment s. 59.694, stats. for counties, s. 60.65 for towns –Cities & villages have boards of appeal s. 62.23(7)(e), stats. for cities, 61.35 for villages & 60.62 for towns with village powers Both are commonly referred to as: –Zoning Board –BOA –Different from the ‘zoning committee’

3 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?

4 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

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

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

7 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?

8 Zoning operates on 2 scales Landscape scale: –Minimize conflicts between incompatible land uses –Encourage mix of compatible uses

9 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 75’ Buildable area 30’ 10’ Zoning operates on 2 scales

10 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 1.5-3 miles outside of boundaries) May have shoreland or floodplain zoning (required in some circumstances) Who has zoning?

11 County Board Planning & Zoning Committee Zoning Board of Adjustment Zoning Administrator County Board Chair Supervise Appoint Elected Appointed County Executive County Administrator OR (optional) Who administers zoning?

12 County Board Planning & Zoning Committee Zoning Board of Adjustment Zoning Administrator Supervise Elected Appointed Regular permits (permitted uses) Conditional use permits? Policy Recommendations New ordinances or amendments Variances Administrative appeals Who administers zoning?

13 Zoning Board Authority, Organization and Procedures

14 Zoning Board Authority State statutes define: –Counties (and towns) have boards of adjustment Wis. Stat. s. 59.694, stats. for counties, s. 60.65 for towns –Cities, villages (and towns) have boards of appeal Wis. Stat. s. 62.23(7)(e), stats. for cities, s. 61.35 for villages, s. 60.62 for towns with village powers Both are commonly referred to as: –Zoning Board –BOA, ZBA –Different from the ‘zoning committee’

15 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 See Chapter 3 of the Zoning Board Handbook for more details

16 Counties, cities, villages and towns with village powers shall appoint 2 alternate members to the BOA - 2005 Wisconsin Act 34 –1 st Alternate shall act with full power when a member cannot vote due to conflict of interest or absence –2 nd Alternate only acts when 1 st alternate or multiple BOA members cannot vote Zoning Board Organization

17 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

18 Zoning Board Organization 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

19 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

20 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.

21 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

22 Meeting Management 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

23 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

24 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 Time limits allowed during hearing Case law Roberts v. Manitowoc County BOA, Ct. Appeals, 2006

25 Impartial Decision Makers, Voting, and Recording Decisions

26 Conflicts of Interest Guidance from Wis. Stat. s 19.59 and s. 946.13 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 See Chapter 6 of Zoning Board Handbook for more details

27 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 Recent case law Recent case law Keen v. Dane County, 2004 WI App 26

28 Biased? 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. Case law Advocate Risk of bias too high Prior, independent business transaction Keen v. Dane County, 2004 WI App 26

29 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 Case law Keen v. Dane County, 2004 WI App 26

30 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 See Chapter 6 of Zoning Board Handbook for more details

31 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 Sniff test

32 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

33 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. Voting Requirements See Chapter 11 of Zoning Board Handbook for more details

34 Recording Decisions 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… Case law Keen v. Dane County, 2004 WI App 26

35 Recording Decisions 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 Case law Keen v. Dane County, 2004 WI App 26

36 Recording Decisions 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 Case law Lamar Central Outdoor v. Board of Zoning Appeals of the City of Milwaukee, 2005 WI Supreme Ct.

37 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 Recording Decisions Case law Lamar Central Outdoor v. Board of Zoning Appeals of the City of Milwaukee, 2005 WI Supreme Ct.

38 Recording Decisions Which motion would you prefer? 1.I move we recommend denial. 2.I move we recommend denial because the petitioner did not meet the standards. 3.I move we recommend denial because this guy isn’t from here and we don’t know him. 4.I move we recommend denial because the petitioner failed to show increased traffic will not create a pedestrian hazard.

39 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).

40 Open Meetings & Public Notification

41 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 See Chapter 5 of Zoning Board Handbook for more details

42 Open Meetings 1)Purpose test = discussion, information gathering or decision-making on a matter within the jurisdiction of the body. 2)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.

43 Open Meetings Phone conferences, letters, e-mails 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.

44 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

45 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

46 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… ? QUIZ

47 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.

48 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.

49 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.

50 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.

51 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.

52 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.

53 Zoning Board Decisions

54 1)Decision-making criteria are outlined in state statutes, case law, and local ordinances. 2)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. The zoning board functions like a court…

55 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

56 Discretion… Flexibility in decision-making Administrativepermits Quasi-judicialvariances conditional uses admin. appeals Legislative policies, plans ordinances Discretion Pre-determined standards apply. Conditions may be applied. Discussion only during the hearing. Constitutional and reasonable. Public participation encouraged. Apply ordinance as written. No additional conditions.

57 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… ?

58 Variances

59 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

60 Special exceptions –Can only be granted if elected governing body lists them in ordinance for the zoning district –Decision standards are set locally Variances –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

61 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.” Ziervogel v. Washington County Board of Adjustment, 2004 WI Supreme Ct.

62 An applicant has burden of proof to show that all three statutory tests are met: 1.unnecessary hardship* 2.due to conditions unique to the property & harm to public interests Variances

63 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??

64 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. Variances Conditions unique to the property test

65 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.

66 Purposes of shoreland zoning include… Prevent and control water pollution Protect spawning grounds, fish and aquatic life Reserve shore cover and natural beauty

67 Adapted From: Wisconsin DNR 4x 18x 5x 6x Phosphorus Inputs Runoff Volume Sediment Inputs

68 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

69 Less than 8% 8-12% Greater than 12% Increasing impervious surface in the watershed Decreasing number of fish & fish species 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 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 Fish found in streams when impervious surface in the watershed was: Wang et al. 2000

70 The Buffer Zone

71 How do buffers work? Deep-rooted native shoreline & upland plants are more effective than lawn grasses at stabilizing shorelines & halting erosion.

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

73 Buffer research

74 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

75 What does unnecessary hardship mean for area variances? What does unnecessary hardship mean for area variances?

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

77 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 Case law

78 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 Ziervogel v. Washington County Board of Adjustment, 2004 WI Supreme Ct. Case law

79 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”. Snyder v. Waukesha County Zoning Board, 1976 13 ft. Case law

80 Unnecessary hardship 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 Case law Accent Developers, LLC v. City of Menomonie BOA and Timber Ridge Homes LLC, 2007 WI Court of Appeals

81 Unnecessary hardship 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 Case law Accent Developers, LLC v. City of Menomonie BOA and Timber Ridge Homes LLC, 2007 WI Court of Appeals

82 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.

83 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.

84 Conditional uses or Special exceptions

85 Permitted uses Conditional uses (Special Exceptions) Where allowed Everywhere in district Tailored to site & neighboring uses Who decides AdministratorCommission/committee, BOA, governing body DiscretionMust be granted if standards are met May be granted or denied Added conditions None permittedAdded conditions OK (design & performance) AppealBOACourt - BOA if decided by P&Z committee

86 Special exceptions… 1)Must be listed for the zoning district 2)First, decide whether the standards listed in the ordinance are met 3)OK to require compliance reporting by owner 4)OK to grant a phased permit 5)Suggest limited-term permits for temporary uses; otherwise permits run with the property 6)Conditions generally cannot be changed unless permit is revoked or expires

87 Conditions for variances or special exceptions… Conditions must meet 2 tests: 1)address expected harmful project impacts (essential nexus) 2)be proportional to the extent of those impacts (rough proportionality).

88 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 Case law Osterhues v. Board of Adjustment for Washburn County, 2005 WI Supreme Ct.

89 Administrative Appeals

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

91 Administrative Appeals 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

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

93 Administrative Appeals 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

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

95 –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 Case law Osterhues v. Board of Adjustment for Washburn County, 2005 WI Supreme Ct.

96 Decision standards when BOAs hear appeals 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 WARNING BOA may have to defend its action on an incomplete record if challenged

97 Court of appeals Wisconsin supreme court Planning & zoning committee Board of adjustment/appeals Appeal of zoning decisions Circuit court Governing body

98 Standards on judicial review… Courts defer to local decision makers when these tests are met: 1)Subject matter jurisdiction Did the body decide a matter that it is empowered by statute or ordinance to act on? 2)Proper procedures Did the body follow proper procedures (open meeting law, public notice, hearing, record of decision, etc.)? 3)Proper standards Did the body apply proper standards in making the decision (e.g. 3-step test for a variance)? 4)Rational basis for the decision Could a reasonable person have reached this conclusion? 5)Evidence in the record Do facts in the record of the proceedings support the decision?

99 Center for Land Use Education 715-346-3783 Open Discussion

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