Comprehensive Planning Update; Town-County Zoning Relations Town Officials Workshops Spring 2005 presented by James H. Schneider, J. D. UW-Extension Local Government Center

Part I—Comprehensive Planning Update

Major Comprehensive Planning Legislation AB 435 to repeal the comp planning law died in committee. AB 551 to allow town board approval of county plan was vetoed by the governor..

AB 750 to exempt from consistency requirement town board exercise of disapproval authority over county general zoning not taken up in floor session and died. Act 233 (AB 608) narrowed consistency requirement.

Comprehensive Planning Law-- Review Created in 1999 budget act Applies to “local governmental units” –Counties –Cities, villages, towns –Regional planning commissions “Comprehensive plan” is the –county “development plan” –city, village, town “master plan” –RPC regional “master plan”

The cross-reference to existing terms means comprehensive plan is developed by planning body that develops & adopts the above plans.

Comprehensive Planning Body County “planning and zoning agency” “direct(s) the preparation” of the development plan/ comprehensive plan under the law. County board may –create a planning & zoning committee or commission; or –designate an existing committee or commission as the county planning & zoning agency.

Planning Body cont. City, village or town (with village powers) plan commission is the comprehensive planning body. A city, village or town, unlike a county, has no statutory authority to develop this plan by a committee. An advisory committee may also be involved.

Key Aspects of Law Public participation guidelines required 9 integrated elements required; must be updated at least every 10 years Intergovernmental aspects (element and sharing of plans) Grants provided

How Comprehensive Planning Law Relates to Prior Law Until the consistency requirement applies –county may develop and operate under a development plan (or other planning authority). –city, village, town may develop and operate under master plan (or other planning authority).

Consistency requirement is in effect a mandate: –Starting in 2010 –a local unit must have a comprehensive plan in place for its covered actions to be consistent with, or else it is at risk of having those actions challenged in court.

Consistency Requirement Applies as of Jan. 1, 2010 Former requirement: –General language: “any program or action of a local governmental unit that affects land use” must be consistent with that unit’s comprehensive plan. –Nonexclusive listing of actions subject to consistency includes zoning, subdivision regulation, official mapping, incorporation, annexation, boundary agreements, etc.

New Consistency Requirement (2003 Act 233) 2010 consistency requirement applies only to the following … --zoning ordinances --local subdivision regulation under a local ordinance --official mapping under local ordinance/resolution

Effect of Act 233 on local units –Narrows actions that must be consistent with plan and therefore reduces chances of lawsuits after 2010 challenging actions. –9 elements still must be covered in comprehensive plan. –Narrows the implied mandate to only those units engaging in 1 or more of the 3 types of covered activities (more below).

In other words… Towns are not required to have comprehensive plans by 2010, if they don’t engage in any of the actions covered by the consistency requirement: –zoning ordinances, –subdivision ordinances, –official mapping under local ordinance/resolution. This likely means, though, that a town board in a town without a comp plan would lose the authority to disapprove a county general zoning ordinance amendment (unless the law is changed).

Planning Grants Available for county, city, village, town & RPC comprehensive planning Competitive scoring of applications

Funding incentives (points & $) –for “multi-jurisdictional plans” a county and 2 local units an RPC and 2 local units 2 local units (city, village, town) –10% of base added for each city, village, town; plus, for a county, 10% of county base if all towns in county participate.

Comp Planning Grant Awards (millions) $ $ $ $ $ $1.0 (transportation planning grant) $12.8 (total)

Units Receiving Grants/# of Units Towns--466 (8)/1266 Villages--151 (1)/401 Cities--93 (6)/190 Counties--28 (3)/72 RPC’s--3 (1)/9 Tribes—2/11 (reservations) ( ) Refers to units that received a 2000 transportation planning grant and later received a comprehensive planning grant.

Multi-jurisdictional Grants 64 awards 643 communities covered

Some FAQs Is a comprehensive plan required? Is it necessary to have a plan commission to engage in comprehensive planning? May an advisory committee be involved? May a town base its actions on the county plan? Whose plan controls, if plans are in conflict?

Answers See “Comprehensive Planning and Smart Growth FAQs” On Local Government Center website: (scroll down to FAQs )

Comments Legislation has stimulated planning. Grant funding, the consistency requirement and extraterritorial authority will be continuing issues. Counties & RPCs play an important role in providing data & maps as a basis for plans. Counties working with local units, especially towns, may provide planning resources & help achieve consistent, cost- effective outcomes.

Part II—Town-County Zoning Relations A.Background—Local Planning authority B.Zoning

A. Background--Local Planning Authority County… –may prepare a development plan (comprehensive plan) for town territory. –may plan with towns and other local units. –must incorporate city & village master (comprehensive) plans into county plan. –may prepare city & village plans if requested.

Town planning authority… –is under city/village authority for master/comprehensive planning –Which requires that the town have village powers.

Town may plan with county or neighboring units under –the comprehensive planning law. –general intergovernmental cooperation law. –cooperative boundary agreement law (with “municipal” neighbors). –extraterritorial zoning law (with city or village neighbor).

Cities & villages may… –develop a master plan (comprehensive plan) for their own territory for adjacent town territory –plan cooperatively with towns and other units under various statutes (see previous slide)

Providers of planning services for town territory may include –town and county staff –regional plan commission –neighboring communities –consultants

Planning in Extraterritorial Area Under county law, the city and village master/comprehensive plan “controls” in the ET area. When the consistency requirement takes effect in 2010, this means that county actions in the ET area must be consistent with the city or village plan (if any) for that area (unless the law is changed).

In addition, the city or village may exercise ET subdivision review and (less commonly) ET zoning. This arrangement especially points out the importance of affected units working together to reach agreement for planning for the ET area.

B. Zoning

County-Town Zoning In general –County authority is to zone towns, not cities & villages, but –Certain minimum special zoning provisions (e.g., shoreland & floodplain zoning) survive annexation or incorporation. If no county general zoning is in effect –town may zone unilaterally under village powers; or –town may petition county to adopt general zoning, and then zone on own if county does not act within one year (rare).

If county general zoning is in effect… –town board may by resolution accept county zoning (sec (5)(c); or –town can zone under village powers under sec but town meeting (or referendum) must authorize town board to exercise zoning under village powers, county must approve ordinance & county must approve amendments before they can take effect.

Evidence of Town Going under County General Zoning See the town board minutes for the meeting at which the resolution was adopted. The town clerk is required to send a certified copy of the resolution to the county clerk, who must record the filing and print it in the county board’s proceedings. Sec (5)(c).

County Zoning Amendments (Town Role) Town may petition for amendment and be involved in reviewing proposed amendments Petition for amendment to county zoning may be made by –town board –affected property owners –county zoning agency –county board members

Town Role in County Comprehensive Revision If county general zoning is in effect in a town… –town board has to approve county comprehensive revision within a year to be in effect in town - or else town becomes unzoned. –“Comprehensive revision” is a complete rewriting which changes numerous zoning provisions and alters or adds zoning districts.

The ability of a town to “bail out” of a comprehensive zoning revision has contributed to outdated county zoning. However, due to the comprehensive planning law, it is expected that county zoning will be updated. Towns that have been involved in county planning and zoning revisions will more likely have a new county zoning ordinance that they like.

Town Role in County Zoning Amendment Process A proposed amendment must have a public hearing held by the county zoning agency. (Class 2 notice required.) Notice of the hearing must be mailed to the town clerk of each affected town 10 days prior to the hearing. The town board may file a certified copy of the resolution disapproving the proposed amendment with the county –before the public hearing –at the public hearing –or within 10 days (*30 days) after the public hearing.

Extending Town Review Period *The town board may extend the review period by 20 days so it has 30 days after the hearing to disapprove by adopting a resolution and filing a certified copy with the county clerk. The extended review period remains in effect until rescinded by resolution and filed with the county clerk.

Town Board Disapproval A district boundary change may be disapproved by the affected town. A text change may be disapproved by the majority of affected towns. It is important for towns to review proposed amendments and timely disapprove those they object to (see next slide).

Three Disapproval Scenarios First, if the proposed amendment makes only the change in the petition and it was not disapproved by the affected town(s) (i.e., the affected town for a district change, a majority of affected towns for text changes)… The amendment takes effect upon passage by the county board.

Second, if the proposed amendment is changed after referral to the towns and passed by the county board, the effective date is delayed and town boards may exercise disapproval authority as follows: –The ordinance must be submitted to affected town(s) within 7 days of passage by county board. –The town board has 40 days after enactment to approve or disapprove. Disapproval, as above, is effective if a majority disapproves a text amendment, or if the affected town disapproves a district boundary change.

Third, if (for some reason) the county board passes an amendment that was disapproved by a town (district boundary change) or a majority of affected towns (text change), the town board(s) may exercise disapproval within the 40 day period as in the previous slide.

Special Zoning Approval/Disapproval Limited Town authority is limited under certain special zoning statutes. County must enact shoreland & floodplain zoning, even if it does not have general zoning. Shoreland & floodplain zoning ordinance –effective in town without need of town approval, –and town disapproval does not apply to amendments to these ordinances.

County exclusive agricultural zoning has certain special provisions... –Town board may reject coverage, but in counties with density of at least 100 persons per square mile, it takes a majority of towns to reject coverage. –Town board may disapprove a text amendment, in which case the previous language remains in effect. –Town board, as under general county zoning, may veto a map amendment.

Recent act on livestock siting and expansion limits local regulatory authority but does not change underlying structural zoning relationship between the county and town. E.g., the town still has the same disapproval rights as before.

Town with zoning under village powers may regulate: –shorelands & floodplains if ordinance is at least as restrictive as county ordinance, resulting in concurrent jurisdiction. –exclusive agricultural zoning.

Comments Towns may resent lack of greater zoning authority... –As stated above, towns in general may plan with the county and their neighbors to try to achieve mutually beneficial results. –Under cooperative boundary law, city/village & neighboring town may reach agreement on general zoning, but town remains under county shoreland, floodplain & exclusive agricultural zoning. –Under extraterritorial zoning, city/village & town may displace general county general zoning.

Some Final Observations on Town- County Zoning Relationships Towns can play an important part in county zoning. Get to know county officials, staff & processes. Develop a town comprehensive plan to serve as a basis for your involvement in county decisions. Be involved in county planning and policy- making.

Take part in county administrative decisions, such as variances and conditional use permits (e.g., testify at a hearing; submit a letter, resolution or motion), but … –be clear on who’s being represented (e.g., yourself, the town), and –tailor your involvement to the forum (i.e., in quasi- judicial matters, such as CUPs and variances, address the legal standards and avoid outside contacts with members of the decision-making body).