President’s Message: from
I want to thank the Executive Committee with
special thanks to Dick Mace, Program Chair, for a fine spring convention. Some of the presentations from developers as
to what they deal with while going through the governmental process was
enlightening. The hands on session for
conservation design layouts also proved educational and likely helpful for the
particular client whose land we provided our collective wisdom.
The spring
convention had us saying our goodbyes to 3 members who have provided us with
their valuable experience and friendship for many years. Collectively they provided 91 years of
experience. Richard DeVriend, Eau Claire
County, DuWayne Klessig, Calumet County and Paul Flottum, Barron County each
served as president of the Wisconsin County Code Administrators, and were
members for several years of the Executive Committee and other state committees
as needed. We only hope that our current
membership will continue to provide the leadership shown by these individuals
and the many more that have retired before them. Leadership for the future will be critical to
insure that our organization continues to provide strong service to our
membership. At the time of this writing,
I also learned that Mike Dresen has retired.
His contributions to our organization through the DNR and UW-EX have
been extensive. His knowledge of
shoreland issues and the educational programming he provided our organization,
as well as individual counties, certainly made us all better in what we do. He
was a great supporter of our organization for many years and we hope his
counterparts continue his work with WCCA.
By the
time you receive this message, the NR115 Advisory Committee will have met on
May 18th to review an initial draft of proposed changes to
NR115. That draft is found on the DNR
web page. Further refinement will likely
occur as a result, with a final NR115 proposal ready sometime this summer. The Natural Resource Board will determine
when public hearings will be held, and DNR would then ask for the written
comments or public testimony on the proposal.
Additional refinements could again occur as a result of that
information. Stay tuned. I expect this process could take awhile.
I would also announce that Scott Rogalsky of
Green Lake County has been appointed to the Comm 83 Code Council replacing CeCe
Tesky, and will be serving along side Duane Gruel, chairman of that committee. He has big shoes to fill and, no CeCe, I’m
not implying you have big feet. If you
have suggestions for them on matters of concern with Comm 83 to be discussed
with the council, let them know. The
Comm 87 Code Committee has also met regarding Wisconsin Fund issues. Another one of our members has been appointed
chairman of that committee, Ted Rohloff of Calumet County. Lesley Roll of our Executive Committee also
was appointed to that committee from Outagamie County.
and I
believe the Packers play that weekend in Green Bay against Dallas.
The fall
convention will see us celebrate our 35th year, and we are well
underway for planning for that event. It
will be held in Green Bay on October 20 through the 22nd. Mark your calendars. Green Bay in October is always a good time,
and I believe the Packers play that weekend at home against Dallas.
Everyone
have a good summer!
Southern District Report
Submitted by Scott
Godfrey
The Spring building season is definitely upon us, as evidenced by the difficulty to hold district meetings. Who ever said government workers don’t work? Anyway, I do want to report, with much regret, the “retirement” of Diane Updike as Green County Zoning Administrator. Retirement is in quotes because, although she has held county positions for some twenty years, she is now holding the position of President, CEO and Chief Pit Digger of her own soil testing business. Diane has always been a lift to our spirits and, on behalf of the entire District, we wish her all the best! I’m sure she’ll give us a call some cold, snowy morning to remind us she doesn’t have to get out of bed!
I also want to throw out a BIG CONGRATULATIONS to Lance
Gurney of Sauk County. He and his wife
have recently adopted their first child.
Poor kid!
Central District Report
Submitted by Dustin Grant
The building season is picking up here in the Central District. We haven’t had a lot going on in the way of meetings, as we’re all starting to get a lot busier. Three of our counties: Marquette, Waushara, and Green Lake, joined together to create a Septic Tank Maintenance Agreement that would be accepted in all three counties. The plumbers that do work in the three counties really like the idea of being able to use the same form regardless of where the job site is. The three counties did this a couple of years ago with the POWTS Management Plan. After that form came out, the Department of Commerce started recommending that plumbers use it in all counties. If any other counties would like to get a copy of either form in electronic format, e-mail dgrant@co.marquette.wi.us
A Waushara County property was the topic of a Supreme Court hearing a couple months ago. It involved shoreland zoning and the Board of Adjustment. It is a very interesting case and I would strongly recommend reading through it.
We would like to wish Ron Bartz of the Adams County Zoning Department a happy retirement. It is well deserved.
Have a Good Building Season.
East Central
District
Report
Submitted by Lesley Roll
Calumet County hosted the February 20, 2004, meeting in the big metropolis of Chilton, Wisconsin. Our topic of discussion was the implementation of the COMM 83 “fix-up package” that went into effect February 1, 2004. Mr. Karl Schultz, Department of Commerce - Waste Water Specialist, and Brad Johnson, Department of Commerce – Section Chief, Integrated Services, Green Bay, were the guest speakers.
On March 19, 2004 a joint meeting was held at Kelly Lake in Oconto County between the Northeast District and the East Central District. Guest speakers were Kristy Rogers, DNR, and Al Page and Dave Nielsen of Wisconsin D.O.T.
Kristy Rogers spoke about the Job Creation Act/Chapter 30. Kristy had a very informative presentation on major changes to Chapter 30 dealing with grading and dredging.
Al Page and Dave Nielsen reviewed Trans 233. The history of Trans 233 was discussed along with the present status for counties and the D.O.T.
Killer beef tips, chicken, fish, and cream puffs were enjoyed by all for lunch. Yours truly especially got into the cream puffs.
County updates were given after lunch with each County sharing what the winter projects brought about and items the 2004 building season would bring.
Congratulations to DuWayne Klessig, Calumet County Director of Planning, Zoning, and Sanitation, on his retirement of 30+ years on April 30, 2004. I believe no fish is safe in at least a 6 County-wide area.
West Central
District
Report
Submitted by Doug Clary
The West Central Zoning Administrators met on March 10th, 2004 at St. Croix County.
Diane Scherman, WDOT District 6 was invited to discuss the changes to Trans 233, which regulated all land divisions along state highways. The code took a severe hit due to many complaints from property owners who were “shocked’ at the restrictions placed on the newly created lots. Ms. Scherman was on hand to discuss the possible outcomes of the newly “gutted” code as well as the procedure for driveway applications and permits – post Trans 233.
St. Croix County gave a presentation relating to their programs for permit issuance, permit tracking, land division tracking, septic system inspections, etc. The system is a work in progress, but was very impressive. Other topics discussed were: UDC inspections, driveway ordinances, and current court cases.
On April 17th, 2004, a retirement dinner was held for Richard De Vriend (Eau Claire County) and Paul Flottum (Barron County). Yes, after many, many years of dedication to their respective counties as well as to this organization, these two Zoning Administrators have decided to hang up the armor for some peace and quite. Rich and Paul will be missed by the west central district as well as by the WCCA. Good luck to both of them.
In addition, Steve Fisher, St. Croix Zoning Director, has left his position to work for a private firm in the Twin Cities area. Once again, Steve will be missed by the west central district. In the meantime, Rod Eslinger has been appointed the interim director for St. Croix County.
NorthEast District
Report
No
report
How to Reach Your Representatives
Wisconsin
State Legislature:
Senators -
E-mail: <Sen.(last name)@legis.state.wi.us>
Representatives
-Last name beginning with A -L; P.O. Box 8952, Madison, WI, 53708-8952. Last Name beginning M - Z;
E-mail:<Rep.(last name)@legis.state.wi.us>
Legislative Hotline - (800) 362-9472
Northwest District
Submitted by Karl
Kastrosky
The Northwest District is alive and well. We have had some form of meeting on a monthly basis. Uniform Dwelling Code and campground issues created the best turnout ever in Ladysmith. Even Taylor County staff was present. Next meeting was in Ironwood where the usual discussion was again Uniform Dwelling Code inspections, NR 135 and a venting of general issues, which included DNR, Comm 83, etc.
The following month the district sponsored a secretaries meeting and appreciation day at the Pines Resort and Conference Center near Hayward. All, including the Rusk County staff, had a good time. Carl Lippert gave an update on code changes, John Haack taught us about frogs and turtles, and I emphasized the importance and appreciation for our hard working staff and office personnel. Without them our counties and districts could not do the difficult and demanding tasks we’re faced with. Many times we get the credit however; much of it is due to extra efforts by those who assist us or allow us to perform well. CeCe is still active and went over POWTS issues. Next time this group meets there will be a round table session for sharing ideas, solving problems and venting. It should be fun.
In May we held Board of Adjustment training in Ashland. Forty plus attended this very informative session. It was helpful with the old and new standards. This should be something to watch in the future.
Lastly, our next meeting is scheduled for June 23rd at Dave Heath’s cabin around Loretta. Dave as you may know is a retired ZA from Sawyer County. He likes to sit back and listen to the issues we deal with. Usually he smiles and says, “I am so thankful for being retired.”
SouthEast District
Report
Submitted
by Michelle Staff
Spring has arrived and so has the building season. If you are like our office, zoning permits are coming in by the hundreds. On February 13, 2004, we had are district meeting at the Waukesha County Administrative Center in Waukesha. Items of discussion varied from revisions to Comm 81-87, NR116 proposed model ordinance, proposed consolidation of DNR grading permits and the WCCA 35th Anniversary. The district had discussions on the revisions of the plumbing code which came in effect on February 1, 2004. Roman Kaminski from the Department of Commerce was present to our meeting to answer any questions or concerns on the new code. Also, there was a discussion on the NR116 model ordinance with Gary Heinrichs, who also was present to answer any questions or concerns. Much of the information, which was related in this meeting was also discussed at the Spring Conference. We thank both Roman and Gary for their time to be present at our district meeting. Our next district meetings are May 21 and August 6. Mark your calendars.
A monumental Wisconsin Supreme Court decision was handed down on March 19, 2004, Ziervogel and McGinity vs. Washington County Board of Adjustment. The Court ruled that there is a distinct difference between use variances and area variances. The Court also ruled that “unnecessary hardship” be redefined as “whether compliance with the strict letter of the restrictions governing area set back, frontage, height, bulk or density would unreasonable prevent the owner from using the property for a permitted purpose or would render conformity with such restriction unnecessarily burdensome”. This was established by the Snyder Case, 74 Wis. 2d at 474. The Wisconsin Supreme court ruled that the case be referred back to the Washington County Board of Adjustment and reheard applying the new standards for area variance. This ruling reversed the standards of unnecessary hardship, not if this variance should have been granted. Our district has not yet discussed this case, but will in the future.
As always, it was a great Spring Conference and I am looking forward to the Fall Conference in Green Bay. Go Packers! Please visit the WCCA web site to view pictures from the Spring Conference. The quality of the pictures are not the best this year (breaking in a new camera) but are there for your enjoyment (http://www.wccadm.com/wholeconferencepage.htm). As always, if you have any questions or concerns, please contact me at michelles@co.jefferson.wi.us.
Aging U.S. Sewer Systems Threaten Public Health
From NDWC “On Tap”
An article in the spring issue of the National
Drinking Water Clearinghouse quarterly publication On Tap cited a recent
report describing the emerging environmental crisis related to the aging public
sewer infrastructure in many metropolitan areas. The report highlights increases in waterborne
disease outbreaks and beach closings as examples of the public health impacts
associated with the problems inherent to aging sewage collection and treatment
systems.
The
major obstacle to dealing with the problem is money. It is estimated it would take billions of dollars
to upgrade the systems. In the current
fiscal climate, there just does not appear to be the political will to provide
the funding that is needed.
A copy of the report is available at the NRDC web site at nrdc.org/water/pollution/sewage/contents.asp
NR 115 UPDATE
by Phil Gaudet (May 24, 2004)
The NR 115 Advisory Committee met on May 18, 2004 in Stevens Point.
Comments received from the DNR Listening sessions last fall were summarized by
the DNR staff and presented to the Advisory Committee. The first draft
of the new NR 115 code was also reviewed by the DNR staff at this meeting.
The Advisory Committee had very little time to review this draft prior
to the meeting since the draft was only sent out on May 13th. The draft
is 27 pages and the Committee did not even get through half of the draft at
this meeting.
It was concluded by the committee at the end of the meeting that much work and
discussion is still needed on the draft of NR 115. Another Advisory
Committee meeting has been scheduled for June 10th but the location of the
meeting has not been determined yet.
If you have had an opportunity to review the draft on the DNR website and you
have comments please send them to either Carmen Wagner at the DNR or myself at
Washington County. Carmen will be taking comments till about June 1st
and trying to put them in the second draft of NR 115 to be discussed at the
June 10th meeting. Even if you do not meet this deadline or do not see
this article by the date I listed please send comments.
LEGISLATIVE REPORT by Phil
Gaudet (May 24, 2004)
No legislative action has occurred since the
WCCA spring conference that effects WCCA. I have not seen any of the
bills that were "dead" being "resurrected" by the
legislature in extraordinary session. The DNR continues to work on
various codes related to the "job creations bill" or Wisconsin Act
118. The DNR did have emergency rules take effect on April 19, 2004 for
NR chapters 322, 320, 323, 325, 326, 328, 329, 343 and 345. NR 341
regarding grading on the banks of navigable waterways was also taken up by the
Natural Resources Board on April 28th and is effective as of May 19, 2004.
More information can be found on the DNR website under "Wetlands
and Waterway Permits".
The DNR did indicate at the meeting that since the Advisory Committee did not
finish review of the draft NR 115 that it is not likely to go the Natural
Resources Board or the Legislature this summer for public hearings. It
is possible that the public hearings may not occur until next summer.
Spring Seminar Includes Retirement Awards
The Spring seminar marked the retirement of several long-time members of the WCCA. Seen below are the awards presented to Rich DeVRiend of Eau Claire County, Paul Flottum of Barron County and DuWayne Klessig of Calumet County. While no one is irreplaceable, the resource represented by the knowledge of these three individuals will take a long time to replace. Congratulations to all of them
.
Rich DeVriend
Paul Flottum
DuWayne Klessig
Wisconsin Supreme Court distinguishes between area and
use variances and changes the standard for area variances.
by Lynn Markham,
Center for Land Use Education
This article summarizes two recent Wisconsin Supreme Court decisions regarding zoning variances, State ex rel. Ziervogel v. Washington County Board of Adjustment, 2004 WI 23 (filed March 19, 2004) and State v. Waushara County Board of Adjustment, 2004 WI 56 (filed May 18, 2004) and focuses on:
1) Distinguishing between area variances and use variances.
2) Redefining the meaning of “unnecessary hardship” for area variances.
3) Reviewing the three tests for deciding variance requests in light of the new Supreme Court decisions.
Distinguishing
between area variances and use variances
Before these cases were decided by the Wisconsin Supreme Court, it was doubtful that zoning boards of adjustment in Wisconsin had the authority to grant use variances. See State ex rel. Markdale v. Board of Appeals, 27 Wis. 2d 154 (1965). Now, the Supreme Court has determined that boards of adjustment do have the authority to issue use variances, though they can be problematic for reasons described in a note at the end of this article.
The Ziervogel decision defines the two types of
variances as:
Area variances “provide an increment
of relief (normally small) from a physical dimensional restriction such as
a building height, setback, and so forth.” Ziervogel, 23.;
Use variances “permit a landowner to
put property to an otherwise prohibited use.” Ziervogel, 21.
However, it may not always be easy to determine if an applicant is seeking an area variance or a use variance. It is arguable that a large deviation from a dimensional standard, or multiple deviations from several dimensional standards on the same lot, may constitute a use variance instead of an area variance. For example, allowing significantly reduced setbacks could have the same effect as changing the zoning from one residential zoning district that requires significant setbacks and open space to a second residential zoning district that has minimal setbacks and open space.
Based on the majority opinions in the Waushara County and Ziervogel cases, it appears that, in order to draw the line between area variances and use variances, boards of adjustment should consider the degree of the deviation from each dimensional standard for which a variance is sought, to determine if the requested variance would “permit wholesale deviation from the way in which land in the [specific] zone is used.” Ziervogel, ¶ 23. A proactive county seeking to consistently differentiate between area variances and use variances could adopt an ordinance provision similar to the following:
Unless
the board of adjustment finds that a property cannot be used for any permitted
purpose, area variances shall not be granted that allow for greater than a __%
(or __ foot) deviation in the area,
setback, height or density requirements specified in the ordinance.
Redefining the meaning of “unnecessary hardship” for area variances.
To qualify for either an area or a use variance, the applicant must still demonstrate that their property meets the following three requirements:
v Unique property limitations
v No harm to public interests
v Unnecessary hardship
In the Ziervogel and Waushara decisions, the Supreme Court redefines “unnecessary hardship” when applied to area variances as:
“‘whether compliance with the strict letter of
the restrictions governing area, setbacks, frontage, height, bulk or density
would unreasonably prevent the owner from using the property for a permitted
purpose or would render conformity with such restrictions unnecessarily
burdensome.’ ” Snyder v. Waukesha County
Zoning Board of Adjustment, 1976, 74
Wis. 2d at 475 (quoting 2 Rathkopf, The Law of Zoning & Planning, §
45-28, 3d ed. 1972)
In addition, the Court’s majority opinions in Ziervogel and Waushara County clearly state that a board of adjustment should focus on the purposes of the zoning law at issue. “Unnecessarily burdensome” may be interpreted in different ways depending on the purpose of the zoning law from which a variance is being sought. For example, the purpose of dimensional zoning requirements vary widely from a neighborhood scale purpose of promoting uniformity of development to a much farther-reaching purpose of protecting water quality, fish and wildlife habitat and natural scenic beauty for all navigable waters in Wisconsin. As a result of the increased focus on the purpose of the zoning restriction, zoning staff and boards of adjustment have a greater responsibility to explain and clarify the purposes behind dimensional zoning requirements.
So what does “unnecessarily burdensome” mean in practice? The Ziervogel and Waushara County decisions both discussed variance requests to expand nonconforming structures that did not meet the shoreland setback, yet neither decided whether the variance should be granted under the “unnecessarily burdensome” standard. However, the 1976 Snyder decision that also used the term “unnecessarily burdensome” does provide guidance. In Snyder, a porch had been built that did not comply with the sideyard setback of a shoreland lot. The question was whether a variance should be granted for the porch because living without it would be “unnecessarily burdensome.” The board of adjustment denied the variance and the Wisconsin Supreme Court affirmed its decision stating that the “difficulty or hardship relied upon for granting the variance” for the porch was either “self-created or no more than personal inconvenience.” Snyder v. Waukesha County Zoning Board of Adjustment, 74 Wis. 2d at 479 (1976).
Reviewing the three tests for deciding variance requests in light of the new Supreme Court decisions.
While the “unnecessary hardship” standard for area variances has changed, the other variance standards have remained the same. To qualify for a variance, the applicant must demonstrate that their property meets each of the following three requirements.
1)
Unique property limitations
Unique physical limitations of the property such as steep slopes or wetlands that are not generally shared by other properties must prevent compliance with ordinance requirements. The circumstances of an applicant (growing family, need for a larger garage, etc.) are not a factor in deciding variances. Nearby ordinance violations, prior variances or lack of objections from neighbors do not provide a basis for granting a variance. Property limitations that prevent ordinance compliance and are common to a number of properties should be addressed by amending the ordinance.
2)
No Harm to Public Interests
A variance may not be granted which results in harm to public interests. In applying this test, the zoning board must consider the impacts of the proposal and the cumulative impacts of similar projects on the interests of the neighbors, the entire community and the general public. These interests are listed as objectives in the purpose statement of an ordinance and may include:
v
Public
health, safety and welfare
v
Water
quality
v
Fish and
wildlife habitat
v
Natural
scenic beauty
v
Minimization
of property damages
v
Provision
of efficient public facilities and utilities
v
Achievement
of eventual compliance for nonconforming uses, structures and lots
v Any other public interest issues
3)
Unnecessary hardship
An
applicant may not claim unnecessary hardship because of conditions which are self-imposed
or created by a prior owner (for example, excavating a pond on a vacant lot and
then arguing that there is no suitable location for a home). Courts have also
determined that economic or financial hardship does not justify a variance.
When determining whether unnecessary hardship exists, the property as a whole
is considered rather than a portion of the parcel. The property owner bears the
burden of proving unnecessary hardship.
v For an area variance, unnecessary hardship exists when compliance would unreasonably prevent the owner from using the property for a permitted purpose (leaving the property owner without any use that is permitted for the property) or would render conformity with such restrictions unnecessarily burdensome. The board of adjustment must consider the purpose of the zoning restriction, the zoning restriction's effect on the property, and the short-term, long-term and cumulative effects of a variance on the neighborhood, the community and on the public interests. This standard reflects the new Ziervogel and Waushara County decisions.
v For a use variance, unnecessary hardship exists only if the property owner shows that they would have no reasonable use of the property without a variance.
The flow chart on the following page summarizes the standards for area variances and use variances. Application forms and decision forms for zoning variances are available on the Center for Land Use Education’s website at http://www.uwsp.edu/cnr/landcenter/zoningboards.html
Note: While
Wisconsin Statutes do not specifically prohibit use variances, there are a number of practical reasons why they
are not advisable: Unnecessary hardship must be established in order to qualify
for a variance. This means that
without the variance, no reasonable use can be made of the property. Many applications for use variances are in fact administrative appeals. Often the zoning board is asked to
determine whether a proposed use is included within the meaning of a
particular permitted or conditional use or whether it is sufficiently
distinct as to exclude it from the ordinance language. Such a decision is not a use variance but an appeal of the
administrator’s interpretation of ordinance text.
Zoning amendments are a more comprehensive approach than use variances. Elected officials consider the larger land
area to avoid piecemeal decisions that may lead to conflict between
adjacent incompatible uses or may undermine land use plan and ordinance
objectives. Towns have meaningful input (veto power) for zoning amendments
to general zoning ordinances.o
Zoning map amendments can
change zoning district boundaries so as to allow uses provided in other
zoning districts.
Zoning text amendments can add (or delete)
permitted or conditional uses allowed in each zoning district.
This article was reviewed for form and content by: Becky Roberts
from the Center for Land Use Education; Linda Meyer from the Wisconsin
Department of Natural Resources; Philip Peterson from the Wisconsin Department
of Justice; and Daniel Olson from the Wisconsin League of Municipalities. Any
errors, mistakes and omissions remain the responsibility of the author.
Other summaries (UW-Extension does not endorse the
viewpoints expressed in the articles below)
State ex. rel
Ziervogel v. Washington County Board of Adjustment
From Wisconsin Law Journal’s website: http://www.wislawjournal.com/archive/2004/0324/variance-0324.html and http://www.wislawjournal.com/archive/2004/0324/variance-analysis-0324.html
From the League of Wisconsin
Municipalities:
http://www.lwm-info.org/legal/2004/05may/comment.html
From the Wisconsin Chapter of the American Planning Association: http://www.wisconsinplanners.org/law/March2004SpecialAlert.htm
From Boardman Law Firm:
http://www.boardmanlawfirm.com/muni_newsletter/muniMay04.pdf
From Michael, Best and Friedrich:
http://www.mbf-law.com/pubs/client/LR_alert_3_04.pdf
From Godfrey & Kahn Attorneys at Law: http://www.gklaw.com/publication.cfm?publication_id=269
State v. Waushara
County Board of Adjustment
From Wisconsin Law Journal’s website: http://www.wislawjournal.com/archive/2004/0526/02-2400.html
From the Wisconsin Realtors’ Association: http://www.wra.org/pdf/government/landuse/Waushara_Cty_Case.pdf
From Boardman Law Firm:
http://www.boardmanlawfirm.com/muni_newsletter/muniJun04.pdf
When a conditional use decision of the Zoning Committee or Plan Commission is appealed to the Board of Adjustment, what standards of review apply?
By Lynn Markham,
Center for Land Use Education
In Osterhues v. Board of Adjustment for Washburn County, the Court of Appeals decided that the Board of Adjustment, when hearing an appeal of a zoning committee decision, does not have authority to review the case de novo.
The Osterhues decision is essentially an interpretation of the portion of Wisconsin Statutes listing the powers of the Board of Adjustment, which include §§ 59.694 (7) and (8). These subsections state that the Board of Adjustment has the power to:
v “hear and decide appeals where it is alleged there is error in an order” and
v reverse, affirm or modify the appealed decision, and “to that end shall have all of the powers of the officer from whom the appeal is taken.”
In interpreting §§ 59.694 (7) and (8) of Wisconsin Statutes, the Court of Appeals concluded:
v The use of the word “appeals” does not entitle an appellant to a de novo review.
v A de novo review is only permitted when state statutes specifically provide that authority, and Wisconsin Statutes do not specify any circumstances under which a Board of Adjustment may review a matter de novo.
v If the Board of Adjustment determines there is an error to be corrected then it may avoid remand of the decision by making a decision the Zoning Committee had the authority to make.
De
novo review: to hear the matter anew as though it had not
been heard before. Other
reviews are confined to consideration of the record with no new testimony
taken