Zoning and Subdivision Regulations Rebecca Roberts Center for Land Use Education UW Stevens Point/Extension
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.
Roles and Governing Body Responsibilities Staff Boards/Committees
Procedures Legally defensible decisions Impartial decision makers Findings of fact and records
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
Who does what? Policy-Making Zoning Subdivision Governing Body Plans, ordinances, amendments Conditional uses? Plat review? Planning/Zoning Staff or Consultant Technical support Permitted uses Plan Commission Policy recommendations Conditional uses? Plat review? Zoning Board Conditional uses? Variances Administrative appeals
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
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 1.5 3 miles beyond boundaries May have shoreland or floodplain zoning required in some circumstances Information self reported to Wisconsin Department of Administration, November 30, 2010
Residential Industrial A zoning ordinance contains 2 parts: Conservancy Commercial Airport Map divides the community into districts 30 Buildable Area 75 30 Text describes allowable uses and dimensional restrictions (i.e. lot size, density, setbacks, height, etc.)
Uses for each district: 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 or governing body) 3. Unlisted or Prohibited Use use is not listed for the district or is expressly prohibited
Ex. Residential District Permitted Uses Conditional Uses Prohibited Uses
Sample Use Table P Permitted C Conditional Prohibited 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 P P P C C Agricultural tourism C C C C Agriculture related business P P C C Roadside stand P P P C
Conditional Uses Must be listed for the zoning district Decision criteria also listed in the ordinance May be granted or denied Conditions may be attached
Conditional Uses AllEnergy v. Trempealeau County, 2017 WI 52 County identified 37 conditions for silica sand mine, then voted to deny permit based on public health, safety and aesthetic concerns. Wisconsin Supreme Court supported decision to deny. Dissenting opinion argued for less discretion for local governments.
Conditional Uses 2017 Wisconsin Act 67 created new rules for conditional use permits Counties Wis. Stat. 59.69(5e) Towns Wis. Stat. 60.61(4e), 60.62(4e) Cities and Villages Wis. Stat. 62.23(7)(de))
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.
Conditional Uses 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
Conditional Uses Local government responsibilities 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
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.
Conditional Uses Applicant responsibilities 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
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
Ordinance review Review list of conditional uses for each district. Review ordinance standards that apply to each use or district. Discretion Legislative plan ordinance amendment Permit review Apply ordinance standards. Provide substantial evidence supporting decision to approve, deny, or attach conditions. Quasi-judicial variance conditional use plat review Administrative permitted uses
Ordinance Review Review conditional uses listed in ordinance Review standards, requirements and conditions listed in ordinance Consider general standards and those specific to a use Review purpose statements to make sure they support conditions you are likely to attach Consider adding a requirement that conditional use must be consistent with the comprehensive plan
Do you always want to grant the listed uses if requirements are met? On most sensitive slopes, soils? Next to all other uses allowed in these zoning districts? On all existing lots? Ex. Dog Kennel set minimum distance to residences 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. Wedding Barn set minimum lot size to accommodate use and parking
Permit Review Review proposal against ordinance criteria Make sure conditions are reasonable, measurable and evidence based Determine credibility of information presented Create an adequate record of your decision Determine if you will grant or deny based on substantial evidence
Is this Reasonable, Measurable, Evidence based? Local government requires traffic impact analysis with projections based on ITE trip generation rates.
Is this Reasonable, Measurable, Evidence based? Local government requires that 100% of stormwater must be retained on site. 2017 WI Act 243 Construction site erosion control and stormwater management ordinances May not require more than 90% of predevelopment runoff to be retained on site.
Is this Reasonable, Measurable, Evidence based? Certified wetland delineator verifies location of wetland on the property.
Reasonable, Measurable, Evidence based? Local government requires building or landscaping to be harmonious with surrounding properties. Aesthetics are recognized public concern, but more powerful when tied to health and safety. Create measurable standards or guidelines.
Reasonable, Measurable, Evidence based? Neighbor appears in opposition at public hearing citing decreased property values. Property values are a legitimate public purpose, but are not guaranteed by zoning. How do you measure? Is loss speculative? Is it a taking? What can you do to minimize loss?
Application and Decision Forms (See Handout)
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)
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
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 ability to provide adequate public facilities or services 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.
Consistency Requirement 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)
Consistency Examples Village of Black Creek Future Land Use Maps 10 and 20 year future land use maps show location, intensity and timing of development. Text describes plans for special development area. 10 years 20 years 2015 2025
Consistency Examples 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
Consistency Examples Village of DeForest Future Land Use Map (2016) Future land uses extend beyond municipal boundaries to cooperative boundary lines.
Consistency Examples Village of DeForest text provides guidance for zoning
Sauk Prairie (Town and 2 Villages)
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
Consistency Examples Village of Hortonville Future Land Use Map Map drawn in bubble fashion showing priority areas for future development within village and extraterritorial jurisdiction.
Village of Hortonville
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.
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.
Recommendations
Land Division and Subdivision Ordinances
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!
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
Local Land Division Authority Counties, towns, cities, villages may also adopt local ordinances (Wis. Stat. 236.45) Most restrictive provision applies Terminology: State subdivision/plat County subdivision/plat Minor subdivision/csm
Local ordinances may have more restrictive surveying, monumenting, mapping and approval requirements. but may not have more restrictive time limits, deadlines, or notice requirements or alter other provisions that provide protections for the subdivider. (2009 Wisconsin Act 376)
Objecting Authorities The following agencies have authority to certify or 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. 236.12(2)(b))
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
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
Extraterritorial plat approval 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 equidistant point A 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)
Is a subdivision plat required? Scenario 2 Jack and Jill propose creating 25 lots ranging in size from 5-10 acres. 160 acre parcel
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 Dane 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
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
1 2 3 Pre Application Conference Informal review intended to spot problems upfront If requested or required by local ordinance Preliminary Plat Approval If required by local ordinance OR submitted by applicant Act within 90 days Final Plat Approval Submission of detailed engineering and design drawings that comply with Wis. Stat. Ch. 236 Act within 60 days 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.
Preliminary Plat drawn to scale including location of streets, utility lines, parks, storm drainage, sewer and water lines, etc.
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.
What can you review for? Layout, access and safety (sight lines, turning radius, emergency vehicle access, etc.) Public improvements (provision of street lights, curb, 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
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.
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. 62.23(5) and 236.10(3))
Certified Survey Maps 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 CSM dedicating streets or other land must be submitted to governing body 90 days to act CSM filed with county register of deeds
Expanded Use of CSMs (Wis. Stat. 236.34(1)(ar)) Local governments may allow more than 4 parcels on a CSM if they: Have an established planning agency Pass an ordinance or resolution Specify a maximum number of parcels Land is zoned commercial, industrial or mixed use
Homework Visit some sites post development and review against approved plans How would you amend your process or standards to provide better outcomes?
https://doa.wi.gov/pages/localgovtsgrants/wisconsinplattingmanual.aspx
Procedural Responsibilities Fair and Impartial Decision Making Findings of Fact and Records Legally Defensible Decisions
All officials must comply with the Open Meetings Law and Public Notice requirements, and avoid statutory Conflicts of Interest. Discretion Legislative plan ordinance amendment Refer to Plan Commission Handbook Chapter 2: Procedural Responsibilities Quasi-judicial variance conditional use plat review Administrative permitted use
Statutory Conflicts of Interest (Wis. Stat. s 19.59 and s. 946.13) A local official may not use a public position for the private benefit or financial gain of: the individual immediate family members organizations they are associated with
Quasi judicial Decision Makers 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
Bias of Local Officials Keen v. Dane County, 2004 WI App 26 Payne & Dolan applied for a conditional use permit for a gravel pit CUP was granted over the protests of neighbors Neighbors appealed
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 Had leased his land to Payne and Dolan for the operation of a gravel pit. Prior, independent business transaction
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
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
Ex parte Communication = discussion regarding a pending matter not included in the public record. Quasi judicial decisionmakers should: avoid it, disclose it, and encourage citizens to make important information part of the public record.
Recording Decisions Keen v. Dane County, 2004 WI App 26 Local ordinance listed 10 factors to consider when deciding a CUP Purpose of zoning district Availability of alternative locations Compatibility with existing or permitted use on adjacent lands
Recording Decisions Keen v. Dane County, 2004 WI App 26 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
Recording Decisions Lamar Central Outdoor v. Board of Zoning Appeals of the City of Milwaukee, 2005 Wisconsin Supreme Court Lamar applied for a variance to raise a billboard above the City s maximum sign height BOA denied variance stating that the variance criteria were not met
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
Decision Forms
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?
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? 4. Review decision standards and procedures Are they adequate? Do you follow them?
Recommended Resources Sample guides, checklists and forms in handbook
Recommended Resource Plan Commission Handbook (CLUE, 2012) www.uwsp.edu/cnr 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
Thank You! Rebecca Roberts Center for Land Use Education www.uwsp.edu/cnr ap/clue rroberts@uwsp.edu 715 346 4322