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Recent Land-Use Issues in Court
by Tom Larson
Comprehensive Planning/Smart Growth
Step Now Citizens Group v. Town of Utica Planning and Zoning, No. 02-2760 (Ct. App. April, 16, 2003)
To accommodate the siting of an ethanol plant, the town changed the zoning classification of a parcel from agricultural to manufacturing. The zoning change was later ratified by the county, as required by state law. A group of town residents who opposed the ethanol plant ("Step Now") filed a lawsuit claiming that the rezoning constituted an illegal spot zoning because, among other things, the rezoning was inconsistent with the town's comprehensive plan.
This case marks the first time a Wisconsin appellate court has had the opportunity to interpret Wisconsin's comprehensive planning law (a.k.a. "Smart Growth"). The court cited Wis. Stat. Sec. 66.1001(3)(b), "beginning on January 1, 2010, any program or action of a local governmental unit that affects land use shall be consistent with that local governmental unit's comprehensive plan." In rejecting the illegal spot zoning claim, the court correctly concluded that until Jan. 1, 2010, a local governmental unit's program or action affecting land-use does not need to be consistent with that local governmental unit's comprehensive plan and thus until that time a land-use plan is merely advisory.
Variances/"No Reasonable Use Standard"
State of Wisconsin ex rel. Richard W. Ziervogel & Maureen A. McGinnity v. Washington County Bd. Of Adjusters, No. 02-1618, (Ct. App. March 26, 2003)
A waterfront property owner applied for a variance to construct a 10-foot vertical expansion of a nonconforming structure in order to add a bedroom, bathroom, and office space. The house was located 26 feet from the ordinary high water mark (OHWM) and the county shoreland zoning ordinance prohibited the expansion of any portion of an existing structure within 50 feet of the OHWM. Unlike most variance cases, this property owner was not trying to expand the structure horizontally or alter its "footprint" in any way. Nevertheless, the county board of adjustment denied the variance request because the property had a reasonable use without the variance. The Court of Appeals upheld the denial of the variance, maintaining that "the purposes of zoning laws demand that variances be granted only sparingly and only when the applicant has demonstrated that he or she will have no reasonable use of the property, in the absence of a variance."
In arriving at this conclusion, the Court of Appeals ignored the two-part test outlined by the Supreme Court in State v. Outagamie Board Of Adjusters, 244 Wis. 2d 613 (2002) -- (1) whether the proposed variance violates the purpose of the zoning ordinance at issue; and (2) a determination of whether the property owners have any reasonable use of the property if the variance is denied, if it does violate the purpose. Instead of first considering whether the proposed variance would violate the purpose of the zoning ordinance, the Court of Appeals incorrectly held that no variance of any kind can ever be granted without showing that they can make no reasonable use of the property without one, regardless of the purpose of the ordinance.
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Land-Use Update
by Tom Larson
Shoreland Zoning
The DNR's Shoreland Advisory Committee continues to meet on a monthly basis in an effort to revise the state's shoreland zoning regulations (NR 115). The primary issue being discussed at this time is how the state should regulate nonconforming structures. While most committee members agree that these structures should be allowed to be maintained and repaired, significant disagreement exists as to whether these structures should be allowed to expand landward and whether these structures should eventually be eliminated. WRA staff will continue to actively participate in the Advisory Committee meetings and solicit input from members on all policy matters.
Shoreland zoning also continues to be hot local land-use issue. Counties such as Shawano and Burnett have made recent attempts to revise their shoreland zoning ordinances, but have encountered significant public resistance. In both Shawano and Burnett Counties, over 300 people attended public hearings in opposition to the proposed changes and requested that new, less-onerous provisions be adopted. Both county boards have responding by sending the proposed shoreland regulations back to committee for revisions.
Smart Growth Survey
Finishing touches are being made to the model Smart Growth community survey developed by the WRA and Wood Communications, with funding providing by WHEDA. The model survey is intended to provide local governments with educational materials on how to conduct a proper community survey and interpret the results. Community surveys are generally the first step in the comprehensive planning process and often play a significant role in the development of land-use policies and regulations for the community. Most community surveys are poorly drafted and have a strong internal bias against economic development and housing. By creating a model community survey that is balanced and unbiased, the quality of community surveys and related comprehensive plans in this state will hopefully improve.
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