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 Local Officials Land Use Decision Making Procedural Responsibilities

3 Roles and Responsibilities Governing Body Staff Boards/Committees

4 Land Use Tools Comprehensive Plans describe the future vision of the community and how to achieve that vision. Zoning Ordinances regulate land use, density, and dimensions of lots and structures. Subdivision Ordinances regulate the division of land, street and lot layout, and improvements.

5 Governing Body Role Policy makers Supervise staff Appoint plan commission and zoning board Prepare the budget Adopt and amend plans and ordinances 1. Rezones 2. Conditional uses 3. Land divisions

6 Plan Commission Role Land use advisors Prepare and recommend plans, policies and ordinances for adoption by governing body Monitor trends, think about the future Engage with the community 1. Rezones 2. Conditional uses 3. Land divisions

7 Zoning Board Role Zoning judge Review alleged errors in zoning decisions Consider relaxations to the zoning ordinance Operate independent of governing body 1. Variances 2. Conditional uses 3. Administrative appeals

8 Staff Role Land use advisor, administrator and enforcer Help public understand rationale for regulations and navigate application process Schedule hearings, prepare notice, may take minutes Provide technical data, maps, analyses and recommendations Facilitate public input and planning processes Administer and enforce code permitted uses

9 Legal Counsel Role Legal advisor Draft or review resolutions, ordinances, agreements, bylaws and other legal documents Provide guidance related to proper procedures, decision standards, case law, etc. Assist with appeals and code violations

10 Who does what? Policy-Making Zoning Land divisions 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

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

12 Comprehensive Plan (Wis. Stat ) Statement of future vision, including goals, objectives, policies, data and maps Implemented through various means Plan commission recommends adoption by resolution, governing body adopts by ordinance Image:

13 Plan does not translate directly to ordinance Plan provides roadmap for tomorrow. Ordinances regulate landscape today.

14 Plan does not translate directly to ordinance Visionary Future oriented Inventory of existing resources Goals, objectives, policies, tools Regulatory Force of law applies today Detailed regulations control location, density, use, etc.

15 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)

16 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

17 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

18 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

19 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

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

21 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 Non compliance = not meeting conditions Expiration dates appropriate for temporary uses such as gravel pits In the case of a zoning change, property becomes nonconforming and conditions cannot be enforced (Hussein v. Germantown BOA, 2011 WI Court of Appeals)

22 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

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

24 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)

25 Variance 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.

26 Variance The 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 3. no harm to public interests See Zoning Board Handbook, Chapter 15: Variances

27 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

28 Rezoning Considerations Is the change consistent with the comprehensive plan? Does it harm public health, safety, welfare? Other stated purposes in your 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?

29 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 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.

30 Recommendations

31 Consistency 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)

32 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

33 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

34 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

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

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

37 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

38 Village of Hortonville

39 Village of Hortonville downtown inset

40 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

41 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

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

43 Marathon County & 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.

44 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))

45 Ordinance Law passed by governing body Broad applicability, significant impact, and extended duration Examples: Zoning ordinance Subdivision ordinance Governing body adopts comprehensive plan by ordinance Resolution Formal recommendation or expression of will, opinion or intent Limited duration Examples: Town board resolution to disapprove of county zoning change Plan commission adopts resolution recommending comprehensive plan

46 Common Issues Junk and salvage Inoperable vehicles Overgrown vegetation Illegal dumping Animal issues Garage sales Unpermitted home based businesses Home conversions Lack of maintenance

47 Outreach/Enforcement Planning and Zoning Public Health Animal Control Fire Department Sheriff s Office Corporation Counsel Zoning Ordinance Nuisance Ordinance Building Code Other Codes

48 Community Outreach Inform residents of code requirements Provide an opportunity to report violations Seek voluntary compliance before legal action Communicate benefits Maintain public health, safety, and welfare Preserve property values Enhance quality of neighborhoods Residents are responsible for keeping the community clean and attractive

49 Identifying Violations Landowner violation identified prior to sale of property Complaint neighbor or interested citizen calls to complain Direct Observation violation identified during site visit or drive by (i.e. new porch or garage built without permit)

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51 Documentation Document what s allowed identify specific code language Document violation exists capture audio, video or photo evidence (include date and description) ask for proof of licensing, permits, title, etc. Document your process attempted contacts, written communication, etc.

52 Face to Face First Contact Identify yourself and why you re there Be diplomatic refer to code, describe violation, give them time to react, identify timeline and steps to bring into compliance Send follow up letter or have landowner sign statement verifying contact Mail Safety factor Non resident property owners Certified mail can be tracked

53 Notice and Order A formal written statement informing property owners of violation, what is needed to correct the violation, and when it needs to be completed. Property owner s name and location of the violation Description of the violation Remedial steps needed to correct the violation Compliance deadline Actions if landowner does not comply Opportunity to appeal Contact information for agent/department

54 Enforcement Actions Court order stop work or cease and desist File civil or criminal case Noncompliance fees

55 Sample Process Town of Grand Chute: 1. Town records complaint. 2. Code Enforcement Officer investigates complaint. 3. Owner notified of violation, responsibility to correct violation, and date to complete. (Attempt to contact, then provide written "Notice of Violation ) 4. Enforcement officer revisits site to check on compliance. 5. If not corrected, violation forwarded to Police Department. 6. Police Officer issues citations and fines until violation is corrected. 7. Town Attorney may also prosecute, resulting in trial before County Circuit Court.

56 Sample Process Portage County: 1. County records complaint. 2. Code Enforcement Officer drives by property and takes dated photos from public ROW. 3. Enforcement letter sent providing 2 weeks to respond. 4. If response, conduct onsite inspection and explain what needs to be done by when. Conduct final onsite when brought into compliance. 5. If no response, Corp Counsel sends out letter giving 2 weeks to respond. 6. If no action, request onsite inspection/obtain inspection warrant 7. If no action, take to small claims court.

57 Sample Process Portage County Court proceedings: 1. Corp counsel prepares summons and complaint 2. Stipulate compliance date, $500 1,000 forfeiture, $10,000 judgment if no compliance 3. Docket judgment $10,000 lien against property 4. Repeat small claims process 5. Corp counsel prepares long form summons and complaint seeking judgment for $50,000, order allowing county to clean up property Forms:

58 Procedural Responsibilities Developing an informative agenda Meeting and hearing conduct Impartial decision making Recording decisions

59 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

60 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.

61 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

62 Notice Requirements Public Meeting 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 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

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

64 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)

65 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)

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68 Setting the Stage for Successful Meetings The room sets the tone for the meeting Arrange based on meeting purpose and expected number of participants Be flexible have a backup plan!

69 Sign in Sheet Document participation Record those who wish to provide testimony Distribute materials / report back after meeting

70 Introductions Describe authority and purpose of meeting Establish ground rules Review agenda and handouts Document attendance, quorum, and compliance with open meetings law

71 Sample Ground Rules

72 Meeting Materials Provide print or electronic copy of important info to public Committee should review before meeting Materials may include: Application materials Maps, photos, exhibits Ordinance standards Staff recommendation Decision form

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74 Public Comment Register and qualify those offering testimony Refer back to agenda, time limits, ground rules, and decision standards as needed Strong chair/facilitator is key!

75 Sample Public Comment Structure

76 Rules for Decision Making Constitutional and reasonable. Public participation encouraged. Discretion Legislative policies, plans ordinances, amendments Pre-determined standards apply. Conditions may be applied. Procedural due process. (notice, public hearing, record, impartial decision-maker) Quasi-judicial variances conditional uses plat review Apply ordinance as written. No additional conditions. Administrative permits

77 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

78 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.

79 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

80 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

81 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.

82 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

83 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

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

85 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.

86 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?

87 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

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