Zoning Board PowerPoint Presentation

Lynn Markham and Becky Roberts
University of Wisconsin - Stevens Point
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
– Different from the ‘zoning committee’
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
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
Workshop Outline
Part II: Variances
• Basics
• New case law
• Exercise: Would you grant the variance?
Workshop Outline
Part III: Other BOA decisions
• Conditional Uses
• Administrative Appeals
• Improving Board Decisions
Part IV: Open discussion
Why do we have zoning?
It is one tool to achieve
community goals such as:
– Public health, safety &
– Natural resource
– Protection of investments
– Aesthetics
– Controlling costs of local
government infrastructure
and services?
Zoning operates on 2 scales
Landscape scale:
– Minimize conflicts
between incompatible
land uses
– Encourage mix of
compatible uses
Zoning operates on 2 scales
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
Who has zoning?
•Required to administer
shoreland/wetland zoning
•May adopt general zoning
in unincorporated areas
•May adopt general zoning
if no county zoning or after
adoption of village powers
•May adopt shoreland
zoning if more restrictive
than the county
•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)
Who administers zoning?
County Board
County Board Chair
County Executive
County Administrator (optional)
Planning & Zoning
Zoning Board
of Adjustment
Who administers zoning?
Conditional use
New ordinances
or amendments
County Board
Conditional use
Conditional use
Planning & Zoning
Regular permits
(permitted uses)
Zoning Board
of Adjustment
Zoning Board Authority,
Organization and Procedures
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
– Different from the ‘zoning committee’
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
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 Alternate only acts when 1st alternate or
multiple BOA members cannot vote
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 quasijudicial role
Zoning Board Organization
• Chief elected official selects BOA members
and chair, subject to governing body approval
County board chair
Town board chair
Village president
– 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
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
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.
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
– Explain yourself -- why are you voting this way?
– Make sure your input is meaningful
Meeting Management
Balancing 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
• OK to limit testimony to a reasonable time period
• Do not allow questions or comments on extraneous
matters -- rule out of order
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
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
• Tip: Explain that BOA decision is based on
evidence related to the decision standards,
not how many people support a given
Roberts v. Manitowoc County BOA,
Ct. Appeals, 2006
Impartial Decision Makers,
Voting, and
Recording Decisions
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
Recent case law
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 appealed
Keen v. Dane County, 2004 WI App 26
Case law
Decision maker #1
Risk of bias too high
• 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
Prior, independent
business transaction
• Had leased his land to Payne and Dolan for the
operation of a gravel pit.
Keen v. Dane County, 2004 WI App 26
Case law
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
Keen v. Dane County, 2004 WI App 26
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
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
Sniff test
• BOA members are not required to state their
reasons for recusal, but it’s a good idea to be
upfront with the public
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
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
See Chapter 11 of Zoning Board Handbook for more details
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
– Compatibility with existing
or permitted use on
adjacent lands…
Keen v. Dane County, 2004 WI App 26
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
Case law
Recording Decisions
• Lamar applied for a
variance to raise a
billboard above the
City’s max sign
• 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.
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.
Recording Decisions
• Which motion would you prefer?
1. I move we recommend denial.
2. I move we recommend denial because the
petitioner did not meet the standards.
3. I move we recommend denial because this guy
isn’t from here and we don’t know him.
4. I move we recommend denial because the
petitioner failed to show increased traffic will
not create a pedestrian hazard.
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).
Open Meetings &
Public Notification
Open Meetings
Wisconsin’s Open Meetings Law requires:
– 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
Open Meetings
1) Purpose test = discussion, information
gathering or decision-making on a matter
within the jurisdiction of the body.
2) 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.
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 business violates the law.
• Discussion of meeting scheduling and logistics
is OK.
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
– Others listed at Wisc. Stat. §19.85
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.
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
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.
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.
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.
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
Village/Town: Posting 1
week prior. Class 1
notice recommended.
Agency Notification
Shoreland, shoreland wetland & floodplain zoning
• Notice to DNR 10-days prior to hearings.
• Decisions must be provided within 10 days.
Exclusive agricultural zoning districts
• Notice to DATCP of any approval of special
exceptions or variances.
Notice to Other Parties…
To media requesting it.
Mailed notice to parties in interest:
– the applicant/appellant/petitioner,
– adjacent property owners &
– also to town clerks.
Zoning Board Decisions
The zoning board
functions like a court…
1) Decision-making criteria are outlined in state
statutes, case law, and local ordinances.
2) The board applies these laws to particular
fact situations (quasi-judicial decisions).
BOA decisions can be appealed to higher courts.
Decisions will generally be upheld if proper decision
making standards and procedures are followed.
Role of the zoning board
• Review and decide cases where there is an
alleged error in a zoning decision or where
a relaxation of the ordinance is sought
• 3 types of decisions:
1) Administrative appeal
2) Variance
3) Special exception/conditional use
Flexibility in decision-making
•Constitutional and reasonable.
•Public participation encouraged.
policies, plans
•Pre-determined standards apply.
•Conditions may be applied.
•Discussion only during the hearing.
conditional uses
admin. appeals
•Apply ordinance as written.
•No additional conditions.
The town board polls every resident &
determines that no one objects to Joe’s
request for a variance to allow
construction of a garage within the
roadway setback. In fact, most would
like the same opportunity.
How should the zoning board
react to this information…
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.
– 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
Special exceptions
– Can only be granted if elected governing
body lists them in ordinance for the
zoning district
– Decision standards are set locally
Use variances “permit a landowner to put
property to an otherwise prohibited
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.
An applicant has burden of proof to show
that all three statutory tests are met:
1. unnecessary hardship*
2. due to conditions unique to the
property &
3. no harm to public interests
Conditions unique to the property
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??
Conditions unique to the property
• 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
Public 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.
Purposes of shoreland zoning include…
• Prevent and control
water pollution
• Protect spawning
grounds, fish and
aquatic life
• Reserve shore
cover and natural
Runoff Volume
Phosphorus Inputs
Sediment Inputs
Adapted From: Wisconsin DNR
Effects of Increased Impervious Surfaces
More runoff carrying more sediment and
nutrients into the lake or stream
Increased algae growth
Fewer fish & insect species
Greater than 12%
Less than 8%
impervious surface in the watershed
Decreasing number of fish & fish species
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
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
Creek chub
Fathead minnow
Green sunfish
White sucker
Brook stickleback
Wang et al. 2000
The Buffer Zone
How do buffers work?
native shoreline
& upland plants
are more
effective than
lawn grasses at
shorelines &
halting erosion.
Buffer research has found
• Larger buffers work better
• Lawns deliver phosphorus & nitrogen
to lakes
Nutrie nt yie ld (lb/ac/yr)
Total nutrients delivered to lakes
Nitrogen (TKN)
Phosphorus (TP)
Buffer research
Recommended Shoreline Buffer Widths
A Research Summary
Nutrient control
Stormw ater runoff control
Fecal bacteria
Sediment control
Wildlife habitat
35 ft. 100
Range of recommended buffer w idths in feet based on (x) studies
Review of 52 U.S. studies by Aquatic Resource Consultants, Seattle WA
Buffer zone functions:
•Reduce runoff, erosion &
sedimentation to preserve
water quality/clarity
•Take up nutrients that
• feed algae
•Wildlife food, shelter and
critical habitat
•Combat invasive species
•Preserve natural beauty
What does unnecessary
hardship mean for area
“Unnecessary hardship” for area
variances means…
1965 – Markdale
No reasonable use
without a variance
1976 – Snyder
Unnecessarily burdensome
in view of ordinance
1998 – Kenosha
2001 –
2004 – Ziervogel
& Waushara
No reasonable use
without a variance
Unnecessarily burdensome
in view of ordinance
Case law
Ziervogel & area variances…
• House located 26 feet
from the OHWM of Big
Cedar Lake in Washington
• 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
Case law
Unnecessary hardship test
for area variances…
• Unnecessary hardship = when compliance with
the ordinance would:
– unreasonably prevent the owner from using the
property for a permitted purpose, or
– be unnecessarily burdensome in view of ordinance
Ziervogel v. Washington County Board of
Adjustment, 2004 WI Supreme Ct.
What does “unnecessarily
burdensome” mean??
Case law
• Should an after-the-fact
variance be granted for the red
porch because its removal would
be “unnecessarily burdensome”?
13 ft.
• The WI Supreme Court said NO
because the “hardship was selfcreated and the porch no more
than a personal convenience”.
Snyder v. Waukesha County Zoning Board, 1976
Case law
Unnecessary hardship
• Building inspector missed a setback violation
for 2 duplexes
• The duplexes were built and the developer
then applied for an after-the-fact variance,
which the zoning board granted
• Hardship cannot be self-created or created
by a prior owner
Accent Developers, LLC v. City of Menomonie BOA and
Timber Ridge Homes LLC, 2007 WI Court of Appeals
Case law
Unnecessary hardship
• The court noted there was ample evidence
of external causes of the hardship and
affirmed BOA’s grant of a variance because
the hardship of removing the duplexes was
not solely self-created
• A zoning board may consider an error of
local government staff when deciding
whether to grant a variance
Accent Developers, LLC v. City of Menomonie BOA and
Timber Ridge Homes LLC, 2007 WI Court of Appeals
Is the hardship…
A personal
A hardship that is
necessary to achieve
ordinance purposes?
If yes to either
question, deny
A hardship that is not
necessary to
achieve ordinance
If yes and other 2
variance standards
are met, then
grant variance.
• Loss of profit or financial difficulty do not
constitute hardship
• A variance runs with the property.
• A variance does not create a nonconforming
• Lack of objections from neighbors does not
justify a variance.
• Nor do nearby ordinance violations.
Conditional uses
Special exceptions
Permitted uses
Conditional uses
Everywhere in
(Special Exceptions)
Tailored to site &
neighboring uses
BOA, governing body
Must be granted if
May be granted or
standards are met
None permitted
Added conditions OK
(design & performance)
Court - BOA if decided
by P&Z committee
Special exceptions…
1) Must be listed for the zoning district
2) First, decide whether the standards listed in
the ordinance are met
3) OK to require compliance reporting by owner
4) OK to grant a phased permit
5) Suggest limited-term permits for temporary
uses; otherwise permits run with the
6) Conditions generally cannot be changed
unless permit is revoked or expires
Conditions for variances or
special exceptions…
Conditions must meet 2
1) address expected
harmful project impacts
(essential nexus)
2) be proportional to the
extent of those impacts
(rough proportionality).
Case law
When conditional uses are decided by
the planning and zoning committee, they
can be appealed to the BOA.
When BOAs hear appeals, they have
the authority to:
– Conduct a de novo hearing,
– Take new evidence, and
– Substitute their judgment for the zoning
committee or zoning administrator’s
Osterhues v. Board of Adjustment for
Washburn County, 2005 WI Supreme Ct.
Administrative Appeals
Administrative Appeals
• Legal process to resolve disputes
– Ordinance interpretation (text, maps,
jurisdiction, measurements, etc.)
– Reasonableness of zoning decision
(zoning permit, CUP)
Administrative Appeals
Who can file an appeal?
• Any aggrieved person:
– appellant/applicant given unfavorable decision
– Neighbors/property owners affected by decision
– state program oversight agencies (DNR, DATCP)
• Any officer, department, board or bureau
of the municipality affected by a decision
of an administrative officer
Administrative Appeals
When can an appeal be filed?
• Whenever there is an alleged error
(procedural, substantive or equitable)
Administrative Appeals
Time limits on appeal:
• State statutes do not specify time limit
• Limits can be set by local ordinance or rule
(e.g., within 30 days of notice of
administrative decision)
• If there is no time limit, clock begins
ticking when aggrieved parties find out
about decision
In some cases courts have decided that an appeal period
began when construction commenced
Administrative Appeals
Procedure for appeal:
• Notice of appeal filed with
administrative officer and BOA
• Action stayed
• BOA provided with record of decision
• Public notice
Case law
– Washburn County
applied for a CUP to
operate a gravel pit
– County zoning
committee granted
the permit over the
opposition of
– Osterhues appealed
to BOA
Osterhues v. Board of Adjustment for
Washburn County, 2005 WI Supreme Ct.
Decision standards when BOAs
hear appeals
It is up to the BOA to
decide whether it will:
• review the decision
based on the record at
hand OR
hold a de novo hearing
BOA may have
to defend its
action on an
record if
Appeal of
Planning & zoning committee
Governing body
Board of adjustment/appeals
Circuit court
Court of appeals
Wisconsin supreme court
Standards on judicial review…
Courts defer to local decision makers when these tests are met:
1) Subject matter jurisdiction
Did the body decide a matter that it is empowered by statute or
ordinance to act on?
2) Proper procedures
Did the body follow proper procedures (open meeting law, public
notice, hearing, record of decision, etc.)?
3) Proper standards
Did the body apply proper standards in making the decision (e.g.
3-step test for a variance)?
4) Rational basis for the decision
Could a reasonable person have reached this conclusion?
5) Evidence in the record
Do facts in the record of the proceedings support the decision?
Open Discussion
Center for Land Use Education

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