Plan Commission Workshop. Rebecca Roberts Center for Land Use Education UW-Stevens Point/Extension

Transcription

1 Plan Commission Workshop Rebecca Roberts Center for Land Use Education UW-Stevens Point/Extension

2 Tonight s Presentation Role of the plan commission, governing body, and other land use officials Community planning Development review Rezones Conditional uses and special exceptions Land divisions and certified survey maps

3 Tonight s Presentation Procedural Responsibilities Conducting public meetings and hearings Fair and impartial decision-makers Making and recording legally defensible decisions Procedures for Winnebago County Towns under county zoning

4 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

5 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

6 3 Types of Decisions High level of discretion. Reasonable and constitutional. Discretion Legislative policies, plans ordinances, amendments Apply ordinance as written. Conditions may be applied. Quasi-judicial variances conditional uses plat review Apply ordinance as written. No additional conditions. Administrative permitted uses

7 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

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

9 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

10 How do you use the plan? Consult your plan when considering: Zoning, subdivision, and other land use approvals Decisions about major public investments (roads, public buildings, etc.) Annexation decisions Ordinance adoption or amendment

11 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)

12 Consistency Not a literal, exact translation from plan to ordinance Ordinance usually includes more detailed maps/text Absence of policy does not create an inconsistency Plan and supporting ordinances not contradictory Example: Town of Wilson, Lincoln County

13 A Guide for Decision-Making Village of Black Creek Future Land Use Maps 10 years 10 and 20 year future land use maps show location, intensity and timing of development years 2025

14 Consistency Example 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

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

16 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.

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

18 Consistency Example Village of Hortonville Future Land Use Map Map drawn in bubble fashion showing priority areas for future development within village and extraterritorial jurisdiction

19 Village of Hortonville

20 Village of Hortonville downtown inset

21 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

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 From Marathon County and Town Comprehensive Plans: Each local jurisdiction must make land use decisions that are consistent with their own comprehensive plan. The decision to approve a zoning change must be based on the adopted comprehensive plan, and specifically, the future land use map. If the requested zoning is consistent with the land use designation on the property it should be approved, unless unique circumstances indicate the rezoning would negatively impact surrounding properties or the community. If the requested zoning is not consistent, the community should consider denying the request. If the community believes the requested zoning is appropriate in the specific location and would benefit the community, the change can be approved, but the land use map should be amended to establish land use and zoning consistency.

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

26 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

27 Monitoring Progress Performance Measures (Austin Bicycle Master Plan)

28 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)

29 Continuous Improvement

30 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))

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

32 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

33 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

34 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 plan commission, zoning board or governing body) 3. Unlisted or Prohibited Use use is not listed for the district or is expressly prohibited

35 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

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

37 Conditional Use / Special Exception Permit generally assigned to property, not owner Conditions cannot be changed unless permit expires or is revoked due to non-compliance (Expiration date appropriate for temporary use such as gravel pit) In the case of a zoning change, property becomes nonconforming and conditions cannot be enforced (Hussein v. Germantown BOA, 2011 WI Court of Appeals)

38 Options for Developing Conditions 1. Standard conditions specific to each use are listed in the ordinance 2. Zoning staff recommends conditions specific to permit request as part of staff report 3. Local officials develop conditions specific to permit following public hearing Usually some combination of the above

39 Conditions Must Meet 2 Tests 1. Essential nexus address expected harmful project impacts 2. Rough proportionality conditions proportional to impact

40 Compliance Options Compliance reporting by owner as condition of permit (required on periodic basis or upon sale of property) Conditions recorded on deed Zoning staff maintains database and periodically checks for enforcement Cash or surety bond for projects involving significant capital outlay (i.e. mitigation, construction, etc.) Do nothing -- wait for complaints

41 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)

42 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

43 Rezoning Considerations Is the change consistent with the comprehensive plan? (i.e. plan generally supports the change) Does the change advance or at least not harm a stated public purpose (found in the plan/ordinance)? Is there a need for more uses like this in the community? Would you allow other similarly situated properties to do the same thing? What are the short-term, long-term, and cumulative impacts on surrounding property, the community, and the environment?

44 Petition for ordinance amendment Veto Authority for towns under county zoning 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 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.

45 Recommendations

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47 Homework 1. Review application forms Do they prompt applicant to prove they meet the standards? 2. Review town recommendation forms Do they prompt towns to address the standards? 3. Review county decision forms Do they prompt decision-makers to follow the standards?

48 Land Division and Subdivision Ordinances

49 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!

50 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

51 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

52 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))

53 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

54 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

55 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)

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

57 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 Winnebago Co. 5 or more 5 acres or less 5 years Dodge Co. 5 or more Any size 5 years Fond du Lac Co. 5 or more Any size 5 years No Maybe Yes Yes

58 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

59 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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61 Preliminary Plat drawn to scale including location of streets, utility lines, parks, storm drainage, sewer and water lines, etc.

62 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.

63 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

64 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.

65 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))

66 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

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

68 Part II Procedures Conducting Public Meetings and Hearings Fair and Impartial Decision-Makers Making and Recording Legally Defensible Decisions

69 Public Hearing Formal proceeding designed to receive public comment Required in the case of rezones, conditional uses, adoption of plans/ordinances, etc. Not an ideal forum for communication If you desire dialogue, discussion or negotiation, schedule a public meeting first

70 Public Meeting A gathering designed to conduct public business May include period of public comment (not required) Public has right to attend and observe Can be a good forum for public participation if the right techniques are used

71 Managing Public Input Limit comments to items on agenda Discourage repetition Encourage testimony related to standards Discourage applause and demonstrations Prohibit dialogs Enforce time limits Encourage written submittals

72 Ground Rules for Interaction From: City of Green Bay, University Avenue Corridor Redevelopment Plan

73 Public Comment Structure From: City of Green Bay, University Avenue Corridor Redevelopment Plan

74 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

75 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.

76 Open Meetings Phone conferences, letters, s or faxes between board members may constitute a meeting if the numbers and purpose tests are met. 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.

77 Closed Sessions Closed sessions are limited by statute: Deliberations concerning a judicial or quasi judicial case with opposing parties Legal consultation for current/likely litigation Deliberations regarding property acquisition and other bargaining issues Personnel matters including employee performance, compensation, discipline, etc. Damaging personal information Others listed at Wisc. Stat

78 Conduct of Closed Sessions Record individual votes to convene in closed session Those who vote against may participate without liability Attendance limited to body, parent body, and those essential to closed session (ex. legal counsel) Consider only matters for which session is closed Motions and decisions must be recorded

79 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

80 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

81 Procedural Requirements All officials must comply with the Open Meetings Law and avoid statutory Conflicts of Interest. Discretion Legislative policies, plans ordinances, amendments Impartial decision-makers may not prejudge or exhibit bias. Use professional judgment to apply ordinance standards. Record your rationale. Quasi-judicial variances conditional uses plat review Administrative permitted uses

82 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

83 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.

84 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

85 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

86 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.

87 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

88 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

89 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

90 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

91 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.

92 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?

93 Recommended Resources Sample guides, checklists and forms in handbook

94 Recommended Resource Plan Commission Handbook (CLUE, 2012) 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

95 Thank You! Rebecca Roberts Center for Land Use Education