Local units of government control the use of private

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1 9 Land Use REEB Chapter Overview Land use issues are one of the hottest topics in the area of real estate. This chapter outlines the basics of land use regulation. Important Terminology conditional use/ special use deed condition deed restriction downzoning navigable waterway nonconforming use ordinary high water mark permitted use planned unit development (PUD) riparian right setback shoreland zoning spot zoning variance zoning WISCONSIN ZONING LAW BASICS Local units of government control the use of private lands through the government s police power. Police power refers to a government s capacity to regulate behavior and enforce order within the territory of the government. In Wisconsin, local governments may regulate and restrict private lands to: 1. Protect the public from natural hazards such as flooding; 2. Protect natural resources such as surface waters, groundwater, and wetlands; 3. Separate conflicting land uses; 4. Plan for orderly growth; and 5. Protect private property values. Legislative enabling acts and state statutes grant local governments the power and procedures to enact zoning ordinances that regulate and control the use of land and structures within the territory of the local government. Zoning provides for an area s orderly development and minimizes conflicts between incompatible land uses. For example, a rendering plant, a quarry, and large-scale commercial facilities are generally not compatible with residential uses. Local governments use zoning as a tool to fulfill their duties to protect health, safety, and welfare. To implement these duties, cities, villages, counties, and towns can adopt comprehensive zoning and land use regulations to carry out the municipality s master plan, which provides a backdrop and guide for the regulations. Wisconsin s Comprehensive Planning Law does not dictate how or where development occurs but grants that discretionary decision to local planning commissions. The purpose of a comprehensive plan is to guide the physical, social, and economic development of a local government. Through its comprehensive plan, a municipality tries to anticipate and plan for the physical needs of the community for the next 20 years. Comprehensive plans are not land use regulations but provide the basis for land use decisions. To learn more about comprehensive planning, visit the State of Wisconsin Department of Administration Web site at 123

2 REAL ESTATE SALES In Wisconsin, local governments have extraterritorial jurisdiction to regulate the division or subdivision of land outside of the incorporated boundary. Extraterritorial jurisdiction authorizes cities to zone lands within three miles of the corporate limits if the city is a first, second, or third class city or within one and one-half miles of the corporate limits if it is a fourth class city or village. A city s class is depends on its population. Because land for new development is often located outside the actual boundaries of a municipality, cities and villages use extraterritorial jurisdiction to regulate development in neighboring unincorporated communities. The city or village may later annex the unincorporated area or provide services to it and exercising extraterritorial jurisdiction to regulate development in the unincorporated areas allows a city or village to plan for these future needs. ZONING Zoning ordinances are land use planning tools that regulate and restrict the use of private property through a government s police powers. Zoning ordinances dictate land use, density of development, lot size, height limits for structures, and setbacks. A setback is the amount of space required between lot lines and improvements on a lot. Setbacks permit room for improvements such as sidewalks, dictate the space between structures on adjoining lot lines, and set limits for structure location in relationship to natural features such as shorelands and wetlands. A government bases zoning ordinances on the community s master plan and uses the ordinances to divide the government s territory into zoning districts. Zoning districts may include residential, commercial, industrial, agricultural, exclusive agricultural, conservancy, or green-space districts. Zoning ordinances may further regulate use within districts by regulating the height, size, shape, and placement of structures for each zone, or the number of occupants within any structure Permitted Uses A zoning ordinance permits certain land uses in each district. A property owner has the right to use the land for any permitted use listed in the applicable zoning ordinance for the district where the land is located. A property owner may still need to obtain a building permit to exercise a permitted use but using property for a permitted use is authorized for all property owners in that district and does not involve a discretionary decision by a zoning board. A building permit is written governmental permission for the construction of a new building or other improvement, the demolition or substantial repair of an existing structure, or the installation of factory built housing. Permitted uses in zoning districts vary depending on the municipality. For example, a permitted use in a city s residentially zoned district might not be a permitted use in another city s residentially zoned district. A property owner must review local zoning ordinances to determine permitted uses for local zoning districts. Property owners with questions about permitted uses or zoning districts should consult a city planner or local building inspector. Conditional Uses Zoning ordinances list the permitted uses for the zoning districts and may also specify additional uses called conditional uses. Conditional uses may require a special-use permit. A property owner can use land for a conditional use only when special conditions are met and the local zoning body approves the use. Unlike with a permitted use, granting permission to a property owner to use land for a conditional use is a discretionary decision. 124

3 Land-Use - 9 To use land for a conditional use, the property owner must show that the use will be compatible with neighboring land uses and that the use is tailored to the limitations of the property. A zoning board may require a property owner to meet additional conditions to use the property for a conditional use. A cemetery may be a conditional use for a residential area. To receive permission for the conditional use, the property owner may have to locate buildings and tombstones a certain distance from the lot lines. Prohibited Use A prohibited use is a use that is not permitted because it is either expressly prohibited or is not listed as a conditional or permitted use. Spot Zoning A zoning board may exercise spot zoning and grant permission to use a parcel of land in a way without extending permission for that use to other similarly situated property. Spot zoning is permissible only when it is in the public interest and not solely for the benefit of the property owner. Spot zoning is not common. The lot owners in a residential area want permission to zone their parcel to allow for a small grocery store. This spot zoning benefits the neighborhood because people do not have to drive across town for items like bread, milk, and toiletries. Variances A property owner may want use property in a way that conflicts with a local zoning ordinance. Land use regulations need to be flexible to adapt to unique circumstances and changing conditions. For example, a property owner may want to make improvements that extend past the setback lines. The owner needs to receive approval from the local zoning authorities before making the improvement. A zoning board can grant a variance, which is a relaxation of dimensions or other standards, such as setbacks, to protect an individual s property rights while continuing to protect public interests. A variance is a permanent deviation from the zoning ordinance and is not a favored land use tool because a variance is not in conformity with the area s overall development plans. A variance allows an owner to use the land in a manner not permitted by the current zoning ordinance. An applicant must show hardship because of the existing zoning ordinance. Granting a variance cannot conflict with the purpose of the zoning ordinance or result in a use that is detrimental to the neighborhood. A variance will specify exactly how a property owner can use the land. To qualify for a variance, a landowner must show: 1. The variance is consistent with the purpose and intent of the current zoning ordinance. 2. The requested variance is required for the enjoyment of the property. 3. Unique circumstances such as the size, steep slopes, wetlands, or lot topography affect the property. The purpose of this element is to make sure the granted variance does not suggest an amendment to current zoning. 4. Granting the variance does not harm any of the public interests listed as the objectives of the ordinance or harm adjacent property. 5. The hardship is not self-created and is not based solely on economic advancement. 125

4 REAL ESTATE SALES Downzoning Downzoning is a change from a more active to a less active zoning classification. With most downzoning, the government does not compensate affected property owners even if the owner experiences a loss in value due to the downzoning, because, unlike with eminent domain, the property owners still holds title to the property. John buys lake property to construct a cabin for when he retires. Before he retires, the parcel is downzoned to a scenic reserve, which does not allow for any improvements, including long-planned cabins. Nonconforming Use If a zoning body enacts a new zoning regulation, the zoning body may permit uses already in existence even though the uses violate the new regulation. These nonconforming uses have a special protected status limited by local ordinances in an attempt to eventually eliminate them. Nonconforming use status is usually transferable from one property owner to another but if a property owner deviates from the nonconforming use, the owner will lose the status and be forced to comply with current zoning regulations. For example, a municipality downzoned an industrial area to residential. The area still contained one operating factory. The municipality can allow the property owner to continue to operate the factory as a nonconforming use. If the factory owner turned the factory into a warehouse or even began producing a different good, the owner will lose the nonconforming use status and would not be able to use the property in a way that conflicted with the current zoning ordinance. Planned Unit Developments (PUD) Planned unit development is a zoning district written and negotiated specifically for the subject property. It may allow a developer to cluster buildings and services together in a way that would not be possible or permissible according to a municipality s regular zoning ordinances. In the United States, the popularity of PUDs grew significantly in the years following World War II with returning veterans heading to the new suburbs to settle down with families. The postwar Levittowns and similar suburbs are examples of PUDs. PUDs recently enjoyed a resurgence in popularity as a concept for managing urban sprawl, renewing community development, and reducing ecological impact. PUDs may have a nonprofit community association that provides maintenance of the common areas and residences may be owned individually, as condominiums, or even as cooperatives depending on plans and the communities. When creating a PUD, a developer may cluster homes near necessary retail shops and services, design streets to prevent traffic congestion, and encourage alternate forms of transportation. The design of the PUD will depend on the developer s purpose. For example, resorts and shopping destination communities may be PUDs but their plans will differ depending on the function that the developer was trying to achieve. As with condominiums, parties considering property in a PUD should consult the adopted documents for a complete description of permitted uses and restrictions. WATER RIGHTS According to the Wisconsin Department of Natural Resources (DNR), Wisconsin has almost 15,000 inland lakes covering an area of about 970,000 acres and about 50,000 miles of stream and river shoreline. Owning property on these extensive shorelines is generally attractive to homeowners, businesses, and thousands of vacationers. These waterfront properties are unique because of the rights enjoyed by and restrictions imposed upon waterfront property owners. Wisconsin recognizes the Public Trust Doctrine, which states that the state s lakes and rivers are owned in common by all state citizens. Wisconsin recognizes all navigable waters as public highways on which the public has the right to travel. People have an unrestricted right to use the 126

5 Land Use - 9 water as long as the flow is not interrupted, altered, or contaminated. The Doctrine provides that all Wisconsin citizens have the right to boat, fish, hunt, ice skate, and swim on navigable waters. Wisconsin also recognizes riparian rights, which are distinct rights that belong to waterfront property owners. Riparian rights govern navigable waters such as rivers, streams, and lakes and determine a property owner s right to use the shoreline as well as the water for domestic, agricultural, and recreational purposes. Riparian rights include: 1. Reasonable use of waters for domestic, agricultural, and recreational purposes; 2. The right to use the shoreline; 3. The right to access the water; 4. The right to lands formed by accretion (a gradual and natural accumulation of material on the shore); 5. The right to have water flow naturally to the land; 6. The right to create structures to avoid erosion; and 7. The right to construct a pier. A waterway is navigable if it has a bed and banks and it is possible to float a canoe or other small craft in it at some time during the year. Navigable waterways are open to the public for fishing, swimming, and other recreational pursuits. The DNR has jurisdiction over public, navigable waterways but does not have jurisdiction over artificially created waterways on private land. Because the citizens of Wisconsin own the state s lakes and rivers in trust, the citizens also own the beds of natural lakes. A waterfront property owner owns the land to the ordinary high water mark on a lake and land to the center of a river or a stream. The ordinary high water mark is defined as the point on the bank or shore where water is present often enough that it leaves a distinct mark and the uplands look different than the area near the water s edge. Generally, citizens have the right to use the waters below the ordinary high water mark as long as they keep their feet wet. Shoreland Zoning Lands within 1000 feet of the ordinary high water mark of a navigable lake or within 300 feet of a navigable river or stream are shoreland and are to subject to shoreland zoning restrictions. Shoreland zoning serves to protect water quality, habitats, recreation, and Wisconsin s natural beauty. Shoreland zoning controls developments around water and creates a buffer between developed and undeveloped areas. Municipalities adopt zoning to further these purposes. Shoreland zoning restrictions include: 1. Establishing minimum lot sizes for shoreland areas to protect health, safety, and welfare, and to guard against pollution of the adjacent water body. 2. Creating setbacks for buildings and structures on shoreland lots to conform to health, safety, and welfare requirements, preserve natural beauty, reduce flood hazards, and avoid water pollution. In Wisconsin, all buildings and structures, except piers, boat hoists, and boathouses, must be set back 75 feet from the ordinary high water mark. 3. Limiting vegetative cutting based on the effect that the cutting will have on water quality, sound forestry, and conservation practices. 4. Restricting filling, grading, lagooning, ditching, and excavating by permitting these activities only with state permits and demonstrated compliance with the county and local shoreland or wetland zoning requirements. 127

6 REAL ESTATE SALES PRIVATE LAND USE CONTROLS In addition to zoning laws, private individuals can also create land use restrictions to control and maintain a property s character. There are two major categories of private land use controls, deed restrictions and deed conditions. Deed Restrictions (Deed Covenants, Subdivision Restrictions) Deed restrictions are clauses in a deed limiting the future use of a property. Deed restrictions may impose a variety of limitations and conditions. They may limit the density of buildings, dictate the types of structures that can be erected, prevent buildings from being used for a specific purpose, or describe the color of siding or the type of shingle that must be used on a home. Violating a deed restriction may result in a fine, demolition of improvements, or both. Deed restrictions give each lot owner the right to apply to a court for an injunction to prevent a neighboring lot owner from violating the recorded restrictions. Residents of a deed-restricted subdivision can permit a property owner to violate recorded restrictions or could agree to amend the restrictions. Permitting a violation or agreeing to amend the conditions usually requires unanimous consent of all the residents. If a resident is violating a deed restriction and other residents do not seek relief through an injunction, fine, or other enforcement mechanism, the inaction may result in the residents losing the right to seek relief. Deed Conditions Deed conditions are contingencies, qualifications, or occurrences upon which an estate or property right is gained or lost. For example, a deed may require that a property be used only as a nature preserve and if the property is ever used in another way, ownership will revert back to the grantor. This kind of deed condition creates a fee simple defeasible estate. The penalties for violating a deed condition are stricter than the penalties for violating deed restrictions or covenants. Violating a deed condition may result in loss of title. Deed conditions and restrictions should be listed in a deed recorded in the public records and they run with the land. 128

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