Regulations and Variances Ask the tough questions!

1. Regulations and Variances Ask the tough questions! Getting enough information to make good land use decisions Center for Land Use Education Lynn Markham Cooperative Extension and the College of Natural Resources University of Wisconsin - Stevens Point 715-346-3879 lmarkham@uwsp.edu

2. Healthy watersheds make healthy waters & higher property values • When all other factors were equal, properties on lakes with clearer water commanded significantly higher property prices. • People prefer clean water and will pay more to live on lakes with better water quality.

3. The zoning board acts like a court… The zoning board is not meant to provide general flexibility to the zoning ordinance. • Decision-making criteria are outlined in state statutes, case law, and local ordinances. • The board applies these laws to particular fact situations (quasi-judicial decisions). • Policy development & adoptionare legislative functions reserved for the governing body & planning commission.

4. The zoning board acts like a court… • Like a court, zoning board decisions can be appealed to higher courts. • If state statutes, case law and local ordinances are followed, decisions will generally be upheld. • A solid legal record minimizes legal costs and zoning board reconsideration.

5. Discretion…Flexibility in decision-making • Discussion only during the hearing. • Pre-determined standards apply. • Conditions may be applied. Discretion Legislative policies ordinances Quasi-judicial variances conditional uses adm. appeals Administrative permits

6. Conditional uses or special exceptions

8. Special exceptions… • Must be listed for the zoning district • First, decide whether the standards listed in the ordinance are met • OK to require compliance reporting by owner • OK to grant a phased permit • Suggest limited-term permits for temporary uses; otherwise permits run with the property • Conditions generally cannot be changed unless permit is revoked or expires

9. Conditions for variances or special exceptions… Conditions must meet2 tests: • address expected harmful project impacts (essential nexus) • be proportional to the extent of those impacts (rough proportionality).

10. Variances

11. Variances Purpose: to preserve local regulatory standards, prevent regulatory takings, and avoid unnecessary burdens on property owners. • Variances not meant to provide general flexibility in ordinances. • Ordinance should provide some level of flexibility to preserve regulatory objectives while maintaining community support.

12. Special exceptions Can only be granted if elected governing body lists them in ordinance for the zoning district Decision standards are set locally Variances When granted, appointed BOA members allow landowners to violate the ordinance adopted by governing body Decision standards are set by the state legislature and courts

13. Variances Use variances “permit a landowner to put property to an otherwise prohibited use.” (not allowed in MN and many WI local governments) 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.

14. Variances in WI An applicant has burden of proof to show that all three statutory tests are met: • unnecessary hardship* • due to conditions unique to the property & • no harm to public interests s. 59.694(7) (c) Wis. Stats.

15. Variances in MN Tests that must be met to grant a variance: • Hardship: the proposed use of the property and associated structures cannot be established under the conditions allowed by ordinance • Economic considerations alone shall not constitute a hardship if a reasonable use for the property and associated structures exists under the conditions allowed by an ordinance. MN Rule 6105.0520

16. Variances in MN Tests that must be met to grant a variance: • Hardship is due to circumstances unique to the property, not created by the landowner after May 1, 1974 MN Rule 6105.0520

17. Variances in MN Tests that must be met to grant a variance: • The variance, if granted, will not alter the essential character of the locality. MN Rule 6105.0520

18. Variances in MN Other variance requirements • No variance shall be granted that would permit any use that is prohibited in an ordinance. • Conditions may be imposed in the granting of variances to ensure compliance and to protect adjacent properties and the public interest, especially in regard to the view from the river. MN Rule 6105.0520

19. VariancesConditions unique to the property test Conditions unique to the property include physical limitations of the property, such as steep slopes or wetlands must prevent compliance with the ordinance. Does every small, steep or irregularly shaped parcel qualify for a variance??

20. VariancesConditions unique to the property test • Limitations that prevent ordinance compliance & are common to a number of properties should be addressed by ordinance amendment. • Circumstances of an applicant such as a growing family or need for a larger garage, are not a factor in deciding variances.

21. VariancesPublic interest test • A variance granted may not harm public interests but is not required to advance them. • “Public interests” are the purpose and intent of the ordinance that were agreed upon by the county board, representing the community. Those who provide testimony may try to convince you other factors are the “public interests.” • Short-term, long-term and cumulative impacts of variance requests must be considered. Zoning staff should provide an impact analysis.

22. What does unnecessary hardship mean for area variances?

23. WI case law Ziervogel & area variances… • House located 26 feet from the OHWM of Big Cedar Lake in Washington County • Owners wanted a 10-foot vertical expansion of their house to add two bedrooms, two bathrooms, and an office to the house • Washington County's Ordinance prohibited expanding any structure within 50 feet of the OHWM of a lake • Washington County BOA denied variance request • Circuit Court & Court of Appeals affirmed • Supreme Court changed standard

24. WI case law Unnecessary hardship test for area variances… • Unnecessary hardship = whencompliance with the ordinance would: • unreasonably prevent the owner from using the property for a permitted purpose, or • be unnecessarily burdensome in view of ordinance purposes Ziervogel v. Washington County Board of Adjustment, 2004 WI Supreme Ct.

25. Current WI definition What does “unnecessarily burdensome” mean?? • Should an after-the-fact variance be granted for the red porch because its removal would be “unnecessarily burdensome”? • The WI Supreme Court said NO because the “hardship was self-created and the porch no more than a personal convenience”. 13 ft. Snyder v. Waukesha County Zoning Board, 1976

26. If you denied the variance, would it be… A personal inconvenience? A hardship that is necessary to achieve ordinance purposes? If yes to either question, deny variance. A hardship that is not necessary to achieve ordinance purposes? If yes and other 2 variance standards are met, then grant variance.

27. Variances… • Loss of profit or financial difficulty do not constitute hardship. • A variance runs with the property. • A variance does not create a nonconforming structure. • Lack of objections from neighbors does not justify a variance. • Nor do nearby ordinance violations.

28. Zoning tools to preserve water quality in the river • Curb pollutants at their sourcesuch as eroding soils, malfunctioning septic systems • Cut runoffthat picks up pollutants and carries them to the waterway by minimizing the hard surfaces that create runoff • Capture and cleansepollutant-carrying runoff before it reaches the waterway – with shoreland buffers, rain barrels or rain gardens

29. Curb pollutants Source: Wisconsin Dept. of Natural Resources

30. Curb pollutantsLimit phosphorus One pound of phosphorus in runoff can result in 500 pounds of algae growth!

31. Curb pollutantsMinimize erosion

32. Curb pollutantsInspect & maintain your septic system regularly • Pump or inspect your septic system every 3 years • Divert surface water away from the drainfield • Avoid driving or parking on the drainfield • Keep the roots of trees and shrubs away from drainfield pipes • When a replacement system is needed consider aerobic digesters and recirculating sand filters

33. Curb pollutants Conditions that may be applied • Limit the area of grading and other disturbance and make the remainder of the parcel off-limits to heavy equipment. • Maintain established trees and native plants with deep root systems to hold soil in place. • Require a complete erosion control plan and inspection of erosion control measures prior to and during construction. Require bonding to repair damage if erosion control measures fail.

34. Curb pollutantsConditions that may be applied • Require a list of the chemicals and the maximum quantities of them that will be used or stored in the shoreland zone. For instance, a nursery may use or store quantities of fertilizers and pesticides that could have a large impact. Gasoline and other toxic chemicals should also be considered. Use this information to decide whether the proposed use is reasonably suited for the location. • To ensure that conditions are met, require self-reporting or independent inspections and use bonding or specific predetermined fines.

35. Curb pollutants Conditions that may be applied • Keeping phosphorus or any other chemical 100% contained over a long timeframe is not feasible. Thus, the local government may decide that the potential for water pollution is too great on a site and deny the permit.

36. Cut runoffReduce hard surfaces like rooftops and driveways • When considering additions, decide whether living without the addition is an unnecessary hardship or a personal inconvenience • Consider building up instead of out • Runoff from decks, sidewalks and parking areas also contribute

37. Cut runoffReduce hard surfaces like rooftops and driveways • Gravel areas are nearly as impervious as paved surfaces • Pervious pavers are an option for areas that do not have heavy traffic – but they don’t provide habitat • Green roofs can reduce runoff

38. Cut runoffProtect wooded areas & plant trees and shrubs Runoff from lawns carries 8 times more phosphorus than the same size wooded areas because lawns create much more runoff

39. Increasing impervious surface in the watershed Decreasing number of fish & fish species 8-12% Greater than 12% Less than 8% Fish found in streams when impervious surface in the watershed was: Less than 8% 8 - 12% Greater than 12% Iowa darter Black crappie Channel catfish Yellow perch Rock bass Hornyhead chub Sand shiner Southern redbelly dace Golden shiner Northern pike Largemouth bass Bluntnose minnow Johnny darter Common shiner Creek chub Fathead minnow Green sunfish White sucker Brook stickleback Golden shiner Northern pike Largemouth bass Bluntnose minnow Johnny darter Common shiner Creek chub Fathead minnow Green sunfish White sucker Brook stickleback Creek chub Fathead minnow Green sunfish White sucker Brook stickleback Wang et al. 2000

40. Cut runoffDirect downspouts onto your lawn or landscaping, not hard surfaces

41. Cut runoff Conditions that may be applied • Limit the area of impervious surfaces. This can be done by narrowing driveways and building up rather than out or by replacing conventional hard surfaces with alternatives such as green roofs and pervious pavers. • Locate impervious surfaces as far as possible from the river and in locations where their runoff will soak into the ground or at least be substantially filtered prior to entering the water body.

42. Cut runoff Conditions that may be applied • Maintain established trees and native plants whose deep root systems extend each year to create new pores in the soil that allow water to soak in. • Limit the area of compacted soils that prevent water from soaking in. To do this, limit the area compacted by heavy equipment and other vehicles. • Minimize grading that removes the natural divots where water naturally collects and has time to soak in.

43. Cut runoff Conditions that may be applied • Consider requiring landowners to decompact soil after construction in areas where compaction is not necessary to support buildings, roads or driveways. • To ensure that conditions are met, require self-reporting or independent inspections and use bonding or specific predetermined fines.

44. Cut runoff Conditions that may be applied • A proposal may create more runoff than can soak in on the lot. To avoid adversely affecting neighboring landowners, or the river, the local government may decide to deny the permit.

45. Capture and cleanse

46. Capture and cleanseProtect or restore your shoreland buffer If you have native vegetation along your shoreline, consider yourself and the local wildlife fortunate

47. Capture and cleanse If you have lawn to the water’s edge or to the blufftop: A simple no-cost way to get started in restoring your shoreland is to stop mowing next to the water You can replant native trees, shrubs, grasses and wildflowers to attract songbirds and butterflies.

48. Capture and cleanse Conditions that may be applied • Require a storm water management plan with a defined performance standard (e.g., no net increase in storm water runoff from a 50 year storm). • Maintain established plants, including trees and native plants with stiff stems to slow down and filter runoff.

49. Capture and cleanse Conditions that may be applied • Require rain gardens that are of sufficient size to hold runoff. • Require shoreline buffer restoration or expansion to a large enough size to effectively filter runoff. • To ensure that conditions are met, require self-reporting or independent inspections and use bonding or specific predetermined fines.

50. Capture and cleanse Conditions that may be applied • A proposal may create more runoff than can be captured and cleansed on the lot. To avoid adversely affecting neighboring landowners, or the river the local government may decide to deny the permit.