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319 Communities Apply for 2003 Comprehensive Planning Grants
by Tom Larson
The demand for state comprehensive planning grants remains strong. This year, the State of Wisconsin's Office of Land Information Services (OLIS) received 41 total grant applications from 319 different communities. Twenty-five of the applications were multi-jurisdicational applications (consisting of two or more communities planning together), with some applications comprised of as many as 20 different communities. The applicants requested a total of $4.6 million, far exceeding the $3 million allocated for this year's funding cycle. The 319 communities represent a wide-range of local units of government, with a large majority consisting of towns. The breakdown of communities is as follows-32 cities, 56 villages, 221 towns, and 10 counties.
Each application will be evaluated and scored by a team of grant reviewers from around the state. The grant review teams are made up of representatives of various state agencies and private sector organizations, including the WRA. The grant review teams will submit their evaluations to OLIS by the first week in December, and the grant recipients will be announced during January 2003.
For a complete list of 2003 comprehensive planning grant applicants, please visit the WRA Web site at
www.doa.state.wi.us/dhir/documents/2003applicants.pdf.
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Local Communities Open Flood Gates on Development-Related Fees
by Tom Larson
In response to the state's current budget deficit and possible cuts to the shared revenue program, more communities are looking to generate additional revenues or cover increased costs by raising fees related to real estate development. The proposed increases cover a wide variety of fees, including those related to building permits, preliminary and final plat review, erosion control and stormwater management permits, zoning changes, conditional use permits, municipal sewer hook-up, septic permits, driveway permits, document recording, impact fees, park fees, annexation agreements, zoning appeals, neighborhood plans, zoning/floodplain verifications, variances, certified survey maps, developer agreements, lot line adjustments, replatting, and driveway permits.
Obviously, an increase in any of these fees has a direct impact on the costs of housing and economic development in the community. On the other hand, communities need to charge some fees or else such costs are funded solely by current residents, generally in the form of property taxes. Accordingly,
REALTORSŪ should not be opposed to fees or fee increases as long as those fees are "reasonable," which can only be determined on a case-by-case basis.
The Law
To help you better assess the reasonableness of fees and proposed fee increases, the following is a general overview of the legal parameters within which communities may charge fees.
Local units of government may impose fees for the purpose of regulating or discouraging a certain activity under their general police powers. However, when the fees charged by the local unit of government exceed the costs incurred by it, then those fees will likely be considered a tax for revenue purposes, which requires legislative authorization. To avoid being classified as a tax, a government fee must be fair and reasonable and bear a reasonable relationship to the benefits conferred on those receiving the services (i.e., it cannot be used to benefit the general public).
The burden of demonstrating the reasonableness of a fee rests with the local unit of government because it is in the best position to produce the calculations upon which the fee is based. This burden seems limited to a burden of production, simply requiring communities to produce the methodology used in making the calculation when someone challenges its reasonableness. Once the local government produces the methodology, the burden of showing that the fee is unreasonable rests with the person challenging the fee. Remember that courts give great deference to local units of government, and that a determination of reasonableness does not require communities to come up with a precise measurement or an exact mathematical calculation. It is also worth noting that most courts have held that the amount charged by other local units of government for similar fees is usually considered irrelevant and immaterial to determining whether this fee is reasonable.
Questions to Ask Local Officials
When a community proposes an increase in development-related fees, it may be helpful to ask them specific questions about why the increase is being proposed, how the fees were calculated, and what the additional revenues will be used for. The following are a list of some possible questions that you may want to raise:
- Was a needs assessment performed?
- What methodology/formula did the community use in calculating the proposed fees?
- What are the fees going to be used for?
- How do the fees compare with similar fees charged by neighboring communities?
- Has the community incurred an increase in costs proportional to the proposed increase in these fees?
- Are the amounts going to be segregated from the general fund? If not, will there be a separate accounting of these funds to track how they are used?
- Are other fees being increased for other services and licenses in the community? If so, are these fee increases roughly proportional to the proposed fee increases on the development community?
- Has the community studied the potential impact on housing prices or economic development?
Needless to say, REALTORSŪ need to be actively involved in discussions related to fees and work with communities to insure that such fees are reasonable. If you know of a community that is proposing increases to development-related fees, please feel free to contact
Tom Larson.
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Trans. 233 Lawsuit is Filed
by Tom Larson
The Wisconsin Builders Association has filed a lawsuit challenging recent changes to Trans. 233, an administrative rule regulating land divisions on land adjacent to state highways. The primary argument in the lawsuit is that the Wisconsin Department of Transportation ("DOT") did not have the legal authority to expand the scope of the rule to ALL land divisions (certified survey maps, condominium plats, etc.) because the DOT's review authority comes from Ch. 236 of the Wisconsin Statutes, which is limited to only "subdivisions" (defined as "five or more lots of 1.5 acres or less created within a period of five years"). The trial date has not been set, but should take place in early 2003.
The WRA raised the initial challenges to Trans. 233 over two years ago and will likely participate in the lawsuit in some manner. For more information, please contact
Tom Larson.
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DNR Issues Draft of Land Legacy Report, Seeks Public Comment
by Tom Larson
The Wisconsin Department of Natural Resources issued a draft of its Land Legacy Report, which identifies land that it believes is critical in meeting Wisconsin's conservation and recreation needs over the next 50 years. The report identifies 228 Legacy Places, which range in size, the amount of formal protection that has been initiated and how much potentially remains, and their relative conservation and recreation strengths.
The public review and comment period for the draft report runs through Jan. 24, 2002. Following public review, the DNR will compile and share public feedback on the report with the Natural Resources Board, request Board approval of the report with modifications as needed, and seek Board direction on developing a strategy for implementation.
To obtain a copy of the Wisconsin Land Legacy Report, please visit the DNR's Web site at
www.dnr.state.wi.us/master_planning/land_legacy/index.html
or contact the DNR at (608) 266-0823.
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Some Counties Are Adopting Onerous Septic Regulations
by Tom Larson
In preparation for the full implementation of the new changes to the state's private septic code (COMM 83), many counties throughout the state are in the process of revising their septic system codes (Note: Comm 83 allowed counties to delay implementation of the code until Jan. 1, 2003) Many of these codes contain onerous soil inspection requirements that will cost homeowners thousands of dollars. One county adopted a soil inspection requirement that required a backhoe to dig soil borings every time a house with a septic system was sold or remodeled, even if the house sold multiple times during the same year.
Please contact each of your county code administrators and ask if they have recently revised their septic system code, are in the process of revising it, or will be revising it in the near future.
If you have any questions, please contact Tom Larson
at (608) 240-8254.
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