ZONING BOARD WORKSHOP

1. ZONING BOARD WORKSHOP Lynn Markham and Becky Roberts UW-Extension University of Wisconsin - Stevens Point

2. Terminology State statutes define: • Counties have boards of adjustment s. 59.694, stats. for counties, s. 60.65 for towns • Cities & villages have boards of appeal s. 62.23(7)(e), stats. for cities, 61.35 for villages & 60.62 for towns with village powers Both are commonly referred to as: • Zoning Board • BOA • Different from the ‘zoning committee’

3. Who is here today? • Zoning board of adjustment or board of appeals members? • Members of the governing body? • Zoning committee members? • Planning or zoning staff? • Others? Do you have specific questions about zoning that you want us to cover today?

4. Workshop Outline Part I: Organization and approach to keep you out of trouble • Zoning board authority and organization • Meeting management • Impartial decision makers • Voting and recording decisions • Open meetings and public notice • Break

5. Workshop Outline Part II: Variances • Basics • New case law • Exercise: Would you grant the variance? Lunch

6. Workshop Outline Part III: Other BOA decisions • Conditional Uses • Administrative Appeals • Improving Board Decisions Part IV: Open discussion

7. Why do we have zoning? It is one tool to achieve community goals such as: • Public health, safety & welfare • Natural resource protection • Protection of investments • Aesthetics • Controlling costs of local government infrastructure and services?

8. Zoning operates on 2 scales • Landscape scale: • Minimize conflicts between incompatible land uses • Encourage mix of compatible uses

9. Zoning operates on 2 scales 30’ Buildable area Parcel scale: • Regulate intensity of development on a parcel • Lot size • Density • Regulate size and location of buildings on parcel • Setbacks • Floor area ratios • Building height standards 10’ 75’

10. Who has zoning? • Counties • Required to administer shoreland/wetland zoning • May adopt general zoning in unincorporated areas • Towns • May adopt general zoning if no county zoning or after adoption of village powers • May adopt shoreland zoning if more restrictive than the county • Cities/Villages • May adopt general zoning and extra-territorial zoning (applies 1.5-3 miles outside of boundaries) • May have shoreland or floodplain zoning (required in some circumstances)

11. Elected Who administers zoning? Appointed County Board County Board Chair County Executive (optional) OR County Administrator (optional) Appoint Planning & Zoning Committee Zoning Board of Adjustment Supervise Zoning Administrator

12. New ordinances or amendments Policy Recommendations Elected Who administers zoning? Appointed Conditional use permits? County Board Conditional use permits? Variances Conditional use permits? Administrative appeals Planning & Zoning Committee Zoning Board of Adjustment Regular permits (permitted uses) Supervise Zoning Administrator

13. Zoning Board Authority, Organization and Procedures

14. Zoning Board Authority State statutes define: • Counties (and towns) have boards of adjustment Wis. Stat. s. 59.694, stats. for counties, s. 60.65 for towns • Cities, villages (and towns) have boards of appeal Wis. Stat. s. 62.23(7)(e), stats. for cities, s. 61.35 for villages, s. 60.62 for towns with village powers Both are commonly referred to as: • Zoning Board • BOA, ZBA • Different from the ‘zoning committee’

15. Zoning Board Organization County Board of Adjustment: 3-5 members • Members must reside in an unincorporated area of the county • No more than 1 member from each town Town Board of Adjustment: 3 members • Members must reside in the town • No more than 1 town board member City, Village or Town Board of Appeal: 5 members See Chapter 3 of the Zoning Board Handbook for more details

16. Zoning Board Organization • Counties, cities, villages and towns with village powers shall appoint 2 alternate members to the BOA- 2005 Wisconsin Act 34 • 1st Alternate shall act with full power when a member cannot vote due to conflict of interest or absence • 2nd Alternateonly acts when 1st alternate or multiple BOA members cannot vote

17. Zoning Board Organization • Members serve staggered 3-year terms • Vacancies filled for the remainder of a term • We recommend that members of the governing body not serve on the BOA • Difficult to perform both legislative and quasi- judicial role

18. Zoning Board Organization • Chief elected official selects BOA members and chair, subject to governing body approval • County board chair • Town board chair • Village president • Mayor Exceptions: • If present, the County Executive or Administrator appoints BOA members • County BOA members choose their own chair and may also select vice chair and secretary

19. Duties of Officers • Chairperson • It is important to have a skilled chair who knows how to run a meeting, not just someone who has seniority or is taking their turn. • Open and close meeting and hearings • Manage the agenda (and amend if necessary) • Describe hearing procedures (role of zoning board, order of events, time limits on testimony, etc.) • Manage input from applicant, staff and witnesses • Manage discussion of zoning board • Call for motions and votes See Chapter 10 of the Zoning Board Handbook for a Hearing Checklist

20. Duties of Officers • Secretary • Perform record keeping and clerical duties • Provide notice of public meetings and hearings • Ensure compliance with Wisconsin’s Open Meetings Law, Public Records Law, etc. • BOA may use zoning staff or retain its own clerical staff if authorized by governing body. • ZA or other person who represents municipality and provides testimony should not serve as secretary.

21. Duties of Members • Zoning Board Members • Be familiar with the material -- don't open your packet at the meeting • Have a public discussion -- don't pass notes or whisper • Explain yourself -- why are you voting this way? • Make sure your input is meaningful

22. Meeting ManagementBalancing need to collect sufficient information with concern for making timely decisions • The applicant has the burden of proof to show they meet the standards -- not the job of the zoning board! • OK to deny incomplete applications • OK to ask applicant or staff to respond to public comments or clarify other issues • May postpone hearing if necessary to gather additional information • OK to limit testimony to a reasonable time period • Do not allow questions or comments on extraneous matters -- rule out of order

23. Postponing a Topic • Under Robert’s Rules of Order, tabling is… “Used to postpone discussion until the group decides by majority vote to resume discussion. By adopting the motion to ‘lay on the table,’ a majority has the power to halt consideration of the question immediately without debate.” • This is a temporary means to gather additional information; it should not be used to avoid controversial decisions • Same decision-makers should be present when taking the item back up

24. Case law Time limits allowed during hearing • 5 minute time limit for comments at public hearing was not unreasonable • Allowing greater time for applicant is also allowable • Tip: Explain that BOA decision is based on evidence related to the decision standards, not how many people support a given viewpoint Roberts v. Manitowoc County BOA, Ct. Appeals, 2006

25. Impartial Decision Makers, Voting, and • Recording Decisions

26. Conflicts of Interest • Guidance from Wis. Stat. s 19.59 and s. 946.13 • 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 See Chapter 6 of Zoning Board Handbook for more details

27. Bias of local officials Payne & Dolan applied for a conditional use permit (CUP) for a gravel pit CUP was granted over the protests of neighbors Neighbors appealed Recent case law Keen v. Dane County, 2004 WI App 26

28. Biased? Decision maker #1 In a letter submitted as part of the CUP application: “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 Had leased his land to Payne and Dolan for the operation of a gravel pit. Case law Advocate Risk of bias too high Prior, independent business transaction Keen v. Dane County, 2004 WI App 26

29. Bias of local officials Local officials deciding on variances, CUPs and administrative appeals must not harbor bias, or an impermissibly high risk of bias, or prejudge the application Case law Keen v. Dane County, 2004 WI App 26

30. Impartial Decision-Makers “Recuse” yourself from decisions that present a conflict of interest or bias Not the same as abstaining (not voting) Do not participate in decision or discussion leading up to decision Physically separate yourself from the board If you need to provide testimony, do so as a member of the audience See Chapter 6 of Zoning Board Handbook for more details

31. When to vote and when to recuse yourself • BOA member should recuse themselves when they cannot be impartial decision-makers • it’s up to each member to make this decision • Ask yourself whether the nature of your relationship or dealings with a person or organization could bias your judgment • avoid the appearance of bias as well • BOA members are not required to state their reasons for recusal, but it’s a good idea to be upfront with the public Sniff test

32. When to vote and when to recuse yourself • Recusal too often may lead to a BOA without enough members to vote • It should not be used as a way to avoid making tough decisions; that’s your job as a BOA member • Consider strengthening local ordinances, rules and by-laws • Consult with zoning board attorney if you have questions

33. Voting Requirements • If a quorum is present, the BOA may take action by majority vote of the members present. – 2005 Wisconsin Act 34 • Can be more restrictive – (i.e. 4 of 5 members or 3 of 5 members even in the case of an absence) • Tip: Use local by-laws or ordinance to clarify how many BOA members must vote to take action. See Chapter 11 of Zoning Board Handbook for more details

34. Case law 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

35. Case law 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

36. Case law 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 WI Supreme Ct.

37. Case law Recording Decisions • Courts will review the written and audio record if appealed and need to be able to follow the BOA’s reasoning • BOA must express, on the record: • the statutory or ordinance criteria under which the application is decided and • the reasons the criteria are or are not satisfied • The written decision is not required to include the reasons Lamar Central Outdoor v. Board of Zoning Appeals of the City of Milwaukee, 2005 WI Supreme Ct.

38. Recording Decisions • Which motion would you prefer? • I move we recommend denial. • I move we recommend denial because the petitioner did not meet the standards. • I move we recommend denial because this guy isn’t from here and we don’t know him. • I move we recommend denial because the petitioner failed to show increased traffic will not create a pedestrian hazard.

39. What should be included? Findings of fact. The fact situation is described based on the record (proposal, site conditions, project impacts, language appealed, etc.). Conclusions of law. Ordinance or legal standards are applied to the fact situation (e.g., conditional use standards or 3-step test for variances). Order & determination, including conditions. A decision is rendered & any conditions on approval or administrative action to be taken are described (e.g., issuance of a permit).

40. Open Meetings & • Public Notification

41. Open Meetings Wisconsin’sOpen Meetings Lawrequires: • meetings are open & accessible to the public, including the disabled. • the public is provided with advanced notice of meetings. • closed sessions are limited to specified circumstances & procedures. See Chapter 5 of Zoning Board Handbook for more details

42. Open Meetings • Purpose test = discussion, information gathering or decision-making on a matter within the jurisdiction of the body. • Numbers test = enough members of a body are present to determine the outcome of an action. • By statute, if one-half of the members of a body are present, there is a meeting unless the purpose test is not met. • A lesser number of members may meet the numbers test if they can block a decision.

43. Open Meetings • Phone conferences, letters, e-mails or faxes between members may constitute a meeting if the numbers and purpose test are met. • Walking quorum - a series of phone calls or conversations to “line up votes” or conduct other businessviolatesthe law. • Discussion of meeting scheduling and logistics is OK.

44. Closed Sessions Closed sessions are limited to those authorized by statute. • Consideration of a “case.” Case = controversy between opposing parties, not a decision about granting a permit • Conferring with legal counsel about current or likely litigation. • Specified confidential personnel matters. • Others listed at Wisc. Stat. §19.85

45. Conduct of Closed Sessions • Record individual votes to convene in closed session. Those who vote against may participate without liability. • Attendance generally limited to Zoning Board • Legal counsel and others essential to closed session may attend • Consider only matters for which the session was closed. • Motions & decisions must be recorded.

46. QUIZ The zoning board climbs in the county van & spends 4 hours driving all over the county conducting on-site inspections for upcoming hearings. Not a word is spoken by anyone during the 4 hours. Must they comply with Open Meetings Law requirements… ?

47. Open Meetings • Yes. • Both the numbers and purpose test (info gathering) have been met. • They must comply with the notice and public accessibility requirements of the open meetings law.

48. Site Inspections… • Should decision-makers view the site as individuals? As a group? Either. Must have inspection authorization, which may be included on application. Group visits must be noticed as an open meeting.

49. Site Inspections… • Can the public go on-site? If the board/commission goes on-site as a group, the inspection is an open meeting and must include the public. Otherwise members of the public must obtain owner’s permission. • Can decision-makers question the property owner on-site? How about staff? You can ask technical questions or clarifications. All other questioning and discussion should be saved for the hearing.

50. Published Hearing Notice County (pop >250,000): Class 2 Notice – 2 publications in 2 consecutive weeks, the last at least 7 days prior to hearing (day of publication is excluded, day of hearing is counted). County (pop <250,000): Posting 2 weeks prior. Class 2 recommended. City: Class 1 notice. Posting recommended. Village/Town: Posting 1 week prior. Class 1 notice recommended.