Workshop for Local Planning and Zoning Officials. Rebecca Roberts Center for Land Use Education UW Stevens Point/Extension

Transcription

1 Workshop for Local Planning and Zoning Officials Rebecca Roberts Center for Land Use Education UW Stevens Point/Extension

2 Roles and Governing Body Responsibilities Staff Boards/Committees

3 Land Use Tools Comprehensive Plan describes the future vision of the community and how to achieve that vision. Zoning Ordinance regulates land use, density, and dimensions of lots and structures. Land / Subdivision Ordinance regulates the division of land, street and lot layout, and improvements.

4 Procedures Legally defensible decisions Impartial decision makers Findings of fact and records

5 Local Government Structure Elected Appointed Governing Body County/Town/Village Board, City Council County Exec/Admin, Mayor, President Staff Boards/Commissions Planning Director Supervise Appoint Plan Commission Zoning Administrator Zoning Committee Legal Counsel Zoning Board of Adjustment/Appeals

6 Who does what? Policy-Making Zoning Subdivision Governing Body Plans, ordinances, amendments Conditional uses? Plat review? Planning and Zoning Staff Technical support Permitted uses Plan Commission Policy recommendations Conditional uses? Plat review? Zoning Board Conditional uses? Variances Administrative appeals

7 3 Types of Decisions High level of discretion. Reasonable and constitutional. Discretion Legislative plan ordinance amendment Apply ordinance as written. Conditions may be applied. Quasi-judicial variance conditional use plat review Apply ordinance as written. No additional conditions. Administrative permitted use

8 When we plan at village hall, we re deciding how we want our community to look, function, and feel. We create a comprehensive plan, but this is not just the title of a document, it s the description of a process, too. Village of Little Chute

9 67% of local governments have zoning, land division or official mapping functions which require consistency with a comprehensive plan. 84% have adopted a plan or started planning. Comprehensive Plans ( ) 9 elements Public participation Adopt by ordinance Update at least once every 10 years

10 Nine Required Elements Issues & Opportunities Housing Transportation Utilities & Community Facilities Agricultural, Natural & Cultural Resources Economic Development Intergovernmental Cooperation Land Use Implementation

11 Planning allows a community to anticipate, balance and decide how to meet its needs: Protection of community resources and character Targeted economic development and public investments Cost effective delivery of services Intergovernmental communication and cooperation Balance of community interests and private rights

12 Planning is a process in which a community examines its past, envisions its future, and plans how to get there. Image:

13 How do you use the plan? Reference your plan when considering: Ordinance adoption or amendment Zoning, subdivision, other land use approvals Capital improvement planning and budgeting (transportation, utilities, public buildings, etc.) Intergovernmental relations (annexation, cooperative boundary agreement, service sharing) Support for grant applications

14 A Guide for Decision Making Consistency Review Beginning Jan. 1, 2010, new or amended zoning, land division and official mapping ordinances must be consistent with an adopted comprehensive plan Consistent means furthers or does not contradict the objectives, goals and policies contained in the comprehensive plan (2009 Wisconsin Act 372)

15 Plan does not translate directly to ordinance Future land use map Zoning map Plan provides roadmap for tomorrow. Ordinance regulates landscape today.

16 Plan does not translate directly to ordinance

17 A Guide for Decision Making Village of Black Creek Future Land Use Maps 10 and 20 year future land use maps show location, intensity and timing of development 10 years 20 years

18 A Guide for Decision Making Village of Mount Horeb Future Land Use Map Plan specifies conditions under which growth may occur: development of this area is conditioned on the improvement of a new north south collector road

19 A Guide for Decision Making Village of DeForest Growth Phasing Map (2011) Growth phasing map specifies desired timing of development

20 A Guide for Decision Making Village of DeForest Future Land Use Map (2016) Cooperative boundary lines and growth phasing reflected on future land use map.

21 A Guide for Decision Making Village of DeForest Text provides guidance for zoning.

22 Consistency Matrix Future Land Use Category: Residential Low to Medium Density (1 4 DU/Acre) Compatible Zoning Districts Potentially Compatible Incompatible Low Density Residential (R1) Moderate Density Residential (R2) Rural Residential (RR) Agricultural (AG) Natural Areas (NA) Multi Family (R3), Commercial, Industrial Served by public sewer/water and immediately adjacent to areas planned and zoned for medium density residential Not served by public sewer/water Not served by public sewer/water and characterized by high quality farmlands Not served by public sewer/water and immediately adjacent to areas planned and zoned as natural areas

23 Decision Tree Future Land Use Category Low to Medium Density Residential Served by sewer/water Not served by sewer/water Immediately adjacent to area planned and zoned for R2 Characterized by high quality farmland Immediately adjacent to areas planned and zoned as NA Potential Zoning Districts Low Density Residential (R1) Med Density Residential (R2) Rural Residential (RR) Agricultural (AG) Natural Area (NA)

24 T. Fond du Lac Future Land Use 2040 Priority Mixed Use (88% growth) Single family Multi family Commercial Industrial Sewer/Water Rural Residential (8% growth) Single family Well/Septic Farmland Preservation (4% growth) Limited residential Large lots

25 A Guide for Decision Making Village of Hortonville Future Land Use Map Map drawn in bubble fashion showing priority areas for future development within village and extraterritorial jurisdiction

26 Village of Hortonville

27 Village of Hortonville downtown inset

28 Sauk Prairie Town Prairie du Sac Village Prairie du Sac Village Sauk City

29 Sauk Prairie (Town and 2 Villages)

30 Sauk Prairie (Conceptual Development Plan) (Town and 2 Villages)

31 Plan Implementation Refer to implementation element for a list of programs, policies, tools, actions and other recommendations to implement the plan Image:

32 Prioritize and Assign Resources Plan Implementation Element should identify: Timeline for implementation Resources required Party responsible for implementing each item Indicators or measures of success

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34 Monitoring Progress Performance Measures (Austin Bicycle Master Plan)

35 Monitoring Progress Annual Self Audit Hold joint meeting with governing body, plan commission, zoning board and staff Summarize number and types of rezones, conditional uses, variances, appeals, etc. Make recommendations to update plan or ordinance language that is unclear, inadequate, overly restrictive or otherwise problematic Monitor progress towards plan implementation See PC Handbook (chapter 6, pg. 11) or BOA Handbook (chapter 19)

36 Continuous Improvement

37 Legal Process to Adopt/Amend Plan 1. Written public participation procedures 2. Distribution for review/comment 3. Class 1 notice 30 days prior to public hearing 4. Plan commission recommends plan by resolution / governing body adopts plan by ordinance 5. Copy of adopted plan filed with local units of government, RPC, DOA, library (Wis Stat (4))

38 Recommended Resource Comprehensive Plan Amendment Forms Sample public participation procedures Sample public hearing notice Sample resolution and ordinance for adopting plan

39 Zoning Counties Required to administer shoreland/wetland zoning May adopt general zoning in unincorporated areas Towns May adopt general zoning following adoption of village powers or if no county zoning Cities/Villages May adopt general zoning May adopt extra territorial zoning extending miles beyond boundaries May have shoreland or floodplain zoning required in some circumstances Information self reported to Wisconsin Department of Administration, November 30, 2010

40 Zoning A zoning ordinance contains 2 parts: Map divides the community into districts Text describes allowable uses and dimensional restrictions (i.e. lot size, density, setbacks, height, etc.) 30 Residential Buildable Area 30 Industrial Conservancy Commercial Airport 75

41 Zoning Allowable Uses 1. Permitted Use use is listed and allowed by right in all parts of a zoning district (granted by zoning administrator) 2. Conditional Use / Special Exception use is listed for a district and may be allowed if suited to the location (decided by zoning board, plan commission? governing body?) 3. Unlisted or Prohibited Use use is not listed for the district or is expressly prohibited

42 Sample Use Table Zoning District A1 Intense Agriculture A2 Light Agriculture RR Rural Residential R1 Single Family R2 Multi Family C1 Commercial Livestock facility P C Residential poultry and beekeeping Agricultural tourism P P P C C C C C C Agriculture related business P P C C Roadside stand P P P C P Permitted C Conditional Prohibited

43 Conditional Use / Special Exception Must be listed for the zoning district Decision criteria also listed in the ordinance May be granted or denied Conditions may be attached

44 Conditional Uses 2017 Wisconsin Act 67 Parallel language applies to Counties (Wis. Stat (5e)), Towns (Wis. Stat (4e), 60.62(4e)), Cities and Villages (Wis. Stat (7)(de)) Response to AllEnergy Corp. v. Trempealeau County, 2017 WI 52 County identified 37 conditions for silica sand mine, then voted to deny permit based on concerns related to public health, safety and aesthetics. WI Supreme Court affirmed decision. Dissenting opinion argued for less discretion for local governments.

45 Conditional Uses Definition Conditional use means a use allowed under a conditional use permit, special exception, or other special zoning permission, but does not include a variance.

46 Conditional Uses Local government findings Ordinance requirements and conditions must be reasonable, and to the extent practicable, measurable Conditions must relate to the ordinance purpose May limit permit duration, transfer, or renewal Decision to approve or deny the permit, and to attach conditions, must be supported by substantial evidence

47 Conditional Uses Applicant burden of proof Must demonstrate that the application and all requirements and conditions established by the local government relating to the conditional use are or shall be satisfied Must provide substantial evidence supporting the application and demonstrating that the requirements and conditions will be met

48 Conditional Uses Substantial evidence Substantial evidence means facts and information, other than merely personal preferences or speculation, directly pertaining to the requirements and conditions an applicant must meet to obtain a conditional use permit, and that reasonable persons would accept in support of a conclusion.

49 Conditional Uses Permit decision If an applicant for a conditional use permit meets or agrees to meet all requirements and conditions specified in the ordinance or imposed by the zoning board, the local government shall grant the conditional use permit

50 High level of discretion Review list of conditional uses for each district. Review ordinance standards that apply to each use or district. Discretion Legislative plan ordinance amendment Lower level of discretion Apply ordinance standards. Provide substantial evidence supporting decision to approve, deny, or attach conditions. Quasi-judicial variance conditional use plat review Administrative permitted uses

51 Review Ordinance Review conditional uses listed in ordinance Review conditional use standards, requirements and conditions contained in ordinance Review purpose statements to make sure they support conditions you are likely to attach Consider requirement that a conditional use furthers or does not conflict with the comprehensive plan

52 Review conditional uses: Do you always want to grant these uses if the requirements are met? On most sensitive slopes, soils? Next to all other uses allowed in these zoning districts? On all existing lots? If not, add additional requirements OR remove them from the list of CUPs in districts where you don t always want to grant them Do you have standards for rezoning? Are they sufficient? Ex. dog kennel set minimum distance to residences Ex. wedding barn set minimum lot size to accommodate use and parking

53 Process Class 2 notice, public hearing Decision by zoning board, appeal to circuit court Ordinance may specify alternate route: plan commission appeal to zoning board governing body appeal to circuit court Review application and decision forms See decision outline provided in handouts

54 Zoning Relief Mechanisms 1. Variance allowed violation of an ordinance standard (decided by zoning board of adjustment/appeals) 2. Appeal contested decision or interpretation of the zoning ordinance (decided by zoning board or circuit court) 3. Zoning Amendment change to the zoning ordinance map or text (adopted by governing body with advisory recommendation from plan commission)

55 Zoning Amendments Map amendment change to district boundaries Text amendment change to district regulations (i.e. allowed uses, setback, etc.) Legislative decision Must be reasonable and constitutional Consistent with Comprehensive Plan Other standards found in Zoning Ordinance

56 Sample Rezoning Standards The amendment is consistent with the comprehensive plan. The amendment will not be detrimental to property in the immediate vicinity or to the community as a whole. The amendment will not have a significant adverse impact on the natural environment (i.e. air, water, noise, stormwater management, soils, wildlife, vegetation, etc.), or the impact could be mitigated by improvements on the site or in the immediate vicinity. The amendment will not have a significant adverse impact on the ability to provide adequate public facilities or services The amendment will not result in illegal spot zoning (i.e. use is inconsistent with surrounding properties and serves only a private, rather than public interests).

57 Petition for ordinance amendment Notice of public hearing & notice to affected towns Public hearing on map and/or text amendment Zoning committee recommendation to county board Governing body vote to modify, adopt or deny Amendment goes into effect and is published Rezone Process Towns under county zoning: Recommended: Towns provide recommendation to county prior to public hearing. Within 10 days of public hearing: Towns may object to changes outside shoreland/floodplain areas. If town disapproves, zoning committee must revise proposal or recommend denial. Within 40 days of county vote: If majority of affected towns disapprove, amendment does not take effect.

58 Recommendations

59 Homework 1. Review application forms Do they prompt applicant to prove they meet the standards? 2. Review recommendation forms Do they prompt the town or plan commission to address the ordinance standards? 3. Review decision forms Do they prompt decision makers to follow the standards?

60 Land Division and Subdivision Ordinances

61 Is a subdivision plat required? Scenario 1 Jack and Jill propose creating 5 lots that are each 1.5 acres in size. 160 acre parcel YES!

62 State Subdivision Law State provides minimum standards for subdivisions (Wis. Stat. ch. 236) Subdivision = creation of 5 or more parcels of 1½ acre or less within a 5 year period State reviews for surveying, layout, mapping and plat submittal requirements

63 Local Land Division Authority Counties, towns, cities, villages may also adopt local ordinances (Wis. Stat ) Most restrictive provision applies Terminology: State subdivision/plat County subdivision/plat Minor subdivision/csm

64 Objecting Authorities The following agencies have authority to object to state defined subdivision plats: WI Department of Administration all state defined subdivisions are reviewed for compliance with surveying, layout, mapping and plat submittal requirements. (Wis. Stat. 236) WI Department of Transportation subdivisions that abut a state trunk or connecting highway are reviewed for public safety issues and preservation of public interests/investments. (Trans 233) County Planning Agency 18 counties review plats located in cities/villages for conflicts with parks, highways, airports, schools, and other planned public developments. (Wis. Stat (2)(b))

65 Approving Authorities The following units of government have authority to approve of state defined subdivision plats: County Planning Agency if the subdivision is located in an unincorporated area of the county Town Board if the subdivision is located in the town or an area whose annexation is being contested by the town City Council/Village Board if the subdivision is located in a city/village or its extraterritorial plat review jurisdiction

66 Who has plat review authority? Scenario 1 revisited The subdivision is located in a town approximately 1 mile from the nearest village. The county has a subdivision ordinance. 160 acre parcel The town and village do not. Answer: state, county and town

67 Extraterritorial Plat Review The extraterritorial plat approval jurisdiction extends: 3 miles from a first, second, or third class city 1.5 miles from a fourth class city or village Overlapping jurisdiction divided at an equidistant point The city or village must have an adopted subdivision ordinance or official map to exercise this authority It may not require public improvements or deny approval on the basis of use (Extraterritorial Zoning)

68 Is a subdivision plat required? Scenario 2 Jack and Jill propose creating 25 lots ranging in size from 5-10 acres. 160 acre parcel

69 Is a subdivision plat required? It depends on local regulations No. parcels Parcel size Time State 5 or more 1.5 acres or less 5 years Calumet Co. 5 or more 1.5 acres or less 5 years Winnebago Co. 5 or more 5 acres or less 5 years Outagamie Co. 5 or more Any size 5 years No No Maybe Yes

70 Local Plat Review Options The county asks Jack and Jill to meet informally with staff prior to submitting a final plat. They do not require a preliminary plat. Is this allowed? Yes

71 Local Plat Review Options 1. Pre Application Conference Informal review intended to spot problems upfront If requested/required by local ordinance 2. Preliminary Plat Approval If required by local ordinance OR submitted by applicant 3. Final Plat Approval (minimum requirement) Submission of detailed engineering and design drawings that meet requirements of Ch. 236 Final plat entitled to approval if it complies with local plans/ordinance, meets objections of state agencies, and substantially conforms with an approved preliminary plat

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73 Preliminary Plat drawn to scale including location of streets, utility lines, parks, storm drainage, sewer and water lines, etc.

74 Final Plat including subdivision name, legal description, street names, boundaries, measurements and other engineering data. Must follow accepted printing, layout and binding standards. Accompanied by: Surveyor s certificate of compliance, Owner s certificate of dedication, Consent of mortgagee, Certificate of taxes paid, Description of easements, and Local government approvals.

75 What can you review for? Layout, access and safety (sight lines, turning radius, emergency vehicle access, etc.) Provision of public improvements (street lights, curb and gutter, etc.) Efficient use of public facilities/services (road length, proximity to existing utilities, etc.) Preservation of natural features (steep slopes, shorelands, wetlands, forests, etc.) Compatibility with adjacent uses (use, intensity, scale, etc.) 160 acre parcel

76 What can you review for? Plat approval may only be conditioned on: Compliance with local ordinances in place at time of submittal Consistency with comprehensive plan or official map Provision of public improvements or financial guarantees (contained in a town/village/city subdivision ordinance) Satisfaction of objections raised by state agencies Other requirements of Wis. Stat. Ch. 236 Short answer items contained in an adopted comprehensive plan, ordinance or official map.

77 Who does what? Subdivision plats must be referred to the plan commission for review and recommendation. The governing body may delegate preliminary or final plat approval authority to the plan commission. Final plats dedicating streets, highways or other lands must be approved by the governing body. (Wis. Stat (5) and (3))

78 Certified Survey Map Expedited process for land divisions that do not meet state or local definition of subdivision (based on number or size): Survey, monument, and map by professional land surveyor Approved certified survey map filed with county register of deeds

79 Homework Visit some sites post development and review against approved plans How would you amend your process or standards to provide better outcomes?

80 Procedural Responsibilities Fair and Impartial Decision Making Findings of Fact and Records Legally Defensible Decisions

81 Procedural Requirements All officials must comply with the Open Meetings law, Public Notice requirements, and avoid statutory Conflicts of Interest. Discretion Legislative plan ordinance amendment Quasi-judicial variance conditional use plat review Administrative permitted use

82 Open Meetings Wisconsin s Open Meetings Law requires: meetings are open and accessible to the public, including disabled public is provided with advanced notice of meetings closed sessions are limited to specified circumstances and procedures WISCONSIN OPEN MEETINGS LAW A COMPLIANCE GUIDE August 2010 DEPARTMENT OF JUSTICE ATTORNEY GENERAL J.B. VAN HOLLEN

83 Open Meetings 1) Purpose test = discussion, information gathering or decisionmaking 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. Generally, one half of members. Less than one half if they can block a decision.

84 Public Meeting Public Hearing Meeting designed to conduct public business Public has a right to attend and observe, not comment (unless specifically allowed) Effective means to engage public with the right techniques Formal proceeding designed to gather public input Required when reviewing land use proposals (conditional use, variance) and adopting plans and ordinances

85 Notice Requirements Public Meeting Notice At least 24 hours prior (2 hours for good cause) Paid, published notice not required Post in 3 locations OR post on government website and 1 physical location (2015 WI Act 79) Public Hearing Notice 1 newspaper publication at least 30 days prior to comprehensive plan adoption or amendment 2 consecutive newspaper publications in 2 weeks prior to ordinance adoption or amendment Other decisions as specified by ordinance

86 Public Notice (Wis. Stat ) Time Date Place Subject matter

87 Subject Matter Specificity Describe subject matter in sufficient detail to reasonably inform the public and news media of what is going to happen Would a person interested in the subject be aware it might be discussed based on reading the notice? Do they have enough information to determine the importance of the meeting and whether they should attend? (Open Meetings Law Compliance Guide, 2015)

88 Subject Matter Specificity Avoid generic agenda items Old or new business Miscellaneous business Agenda revisions Other matters authorized by law Mayor or staff comments (Open Meetings Law Compliance Guide, 2015)

89 Conflicts of Interest Statutory Conflicts of Interest (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

90 Procedural Requirements Discretion Legislative plan ordinance amendment Impartial decision-makers may not prejudge or exhibit bias. Use professional judgment to apply ordinance standards. Record your rationale. Quasi-judicial variance conditional use plat review Administrative permitted use

91 Impartial Decision Makers Bias of Local Officials (Keen v. Dane County, 2004 WI App 26) Payne & Dolan applied for a conditional use permit (CUP) for a gravel pit CUP was granted over the protests of neighbors Neighbors appealed

92 Impartial Decision Makers Biased?? Decision maker #1 A letter was submitted as part of the CUP application stating: 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 Advocate Risk of bias too high Prior, independent business transaction Had leased his land to Payne and Dolan for the operation of a gravel pit.

93 Impartial Decision Makers Local officials deciding on quasi judicial matters (i.e. conditional use, variance, etc.) must not harbor bias, or an impermissibly high risk of bias, or prejudge the application Keen v. Dane County, 2004 WI App 26

94 Impartial Decision Makers Recuse yourself from decisions that present a conflict of interest or bias (or appearance of bias) Not the same as abstaining (not voting) Do not participate in decision or discussion leading up to decision Physically separate yourself from the decisionmaking body if possible If you want to provide testimony, do so as a member of the audience

95 Impartial Decision Makers Ex parte Communication = discussion regarding a pending matter not included in the public record. Quasi judicial decision makers should avoid it, disclose it, and encourage citizens to make important information part of the public record.

96 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 Keen v. Dane County, 2004 WI App 26

97 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 Keen v. Dane County, 2004 WI App 26

98 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 Lamar Central Outdoor v. Board of Zoning Appeals of the City of Milwaukee, 2005 Wisconsin Supreme Court

99 Recording Decisions Decision makers must express, on the record: 1. the statutory or ordinance criteria under which the application is decided and 2. the reasons the criteria are or are not satisfied The reasons do not need to appear in a written decision but should appear somewhere in the public record (meeting minutes, transcript, recording, etc.) If appealed, a judge will review the record and needs to be able to follow your reasoning

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101 Legally Defensible Decisions 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? (refer to standards for rezonings, CUPs, plat review) 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?

102 Recommended Resources Sample guides, checklists and forms in handbook

103 Recommended Resource Plan Commission Handbook (CLUE, 2012) ap/clue/pages/publications resources/plancommissions.aspx I. Introduction to the Plan Commission II. Procedural Responsibilities III. Community Planning IV. Public Participation V. Plan Implementation V. Ordinance Administration VI. Zoning Regulations VII. Subdivision Regulations Includes forms, worksheets, glossaries and recommended resources

104 Thank You! Rebecca Roberts Center for Land Use Education ap/clue