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State bill limits local control

Senator says proposed law could hamper zoning


By State Sen. Kathleen Vinehout

A recently introduced bill could have profound implications on the ability of local government to protect its residents from unexpected developments including sand mines and industrial sites.

Assembly Bill 582, written by Sen. Frank Lasee and Rep. Adam Jarchow, expands the legal concept of “vested property rights” to limit the actions of local government. Some argue that property owners should have the right to do anything they want on that property.

The problem comes when my use of my property impinges on everyone else’s rights to “Domestic Tranquility” or interferes with promoting the “General Welfare,” to quote the U.S. Constitution.

The bill builds on changes made to state law in 2013. Lasee wrote a bill related to “development-related permits,” that became Act 74.

As I understand it, Wisconsin law previously said that a person has no “vested right” to existing zoning. But, under limited circumstances, a person’s rights have been vested so that zoning and other regulations cannot be changed.

Act 74 expanded “vested rights” to include a variety of local permits, not just a building permit, and extended “vested rights” to other political subdivisions. The new law stated the “vesting” occurred upon the filing of an application.

The law shifted the burden of determining compliance with the existing ordinance from the developer to local government – which was given 10 days to notify the applicant of any noncompliance.

Act 74 set some limits on this new “vested right.” The right was only on a “project” defined as a “specific and identifiable land development that occurs on defined and adjacent parcels of land.” Local government could identify an expiration date for the approval.

During the Senate debate on Act 74, I asked Lasee if the bill applied to sand mines. After consultation with our legislative attorneys, he said the bill only applied to subdivisions and housing development.

However, Act 74 went much farther to include “a permit or authorization for building, zoning, driveway, stormwater or other activity related to land development.”

Assembly Bill 582 goes even further than Act 74.

The bill seems to freeze the requirements and prohibitions of all levels of government at the time of the first application.

For example, on the date a person applies for a driveway permit and discloses the proposed project, the ordinances, and rules of all levels of government are frozen on that date provided the driveway is constructed within any stated deadline – even though some aspects of the project may not be completed for many years.

There is no way a town could set an expiration date for a permit for a driveway if the granting of that permit allowed the developer to proceed with an industrial operation – like a sand mine – that involved approval across political subdivisions and could include the state. And if the developer first sought permission for a minor permit from the state, local government might not even know the granting of that permit would mean the entire project had become a “vested right” of the developer.

The bill changes the definition of the words “approval” and “project.” A project is clearly not limited to a housing development. A project is any “improvement activity or use” and could include a sand mine or a fireworks factory.

Conceivably a developer could file an application for a state culvert permit to be used as part of a frac sand mine, attach a map of the potential land and prevent any additional local regulation for any of the parcels of land used for that purpose.

AB 582 eliminates the requirement that the parcels be adjacent – meaning the developer could seek a culvert or driveway permit and develop several thousand acres scattered in another town and freeze zoning for all those parcels. The bill also gives “vested rights” retroactively.

If passed into law, AB 582 would apply to any project not yet been finally approved by the time the bill is passed. The bill would also apply to any “pending” court cases.

The bill also directs the courts “to resolve any ambiguity in a matter involving a zoning ordinance or shoreland zoning ordinance in favor of the free use of private property.” Can the legislature direct the courts how to resolve a case?

There are a few more provisions in AB 582 related to local authority.

The bill would prohibit a county from taking a breather (development moratorium) while a comprehensive zoning amendment or a burgeoning development previously unanticipated is studied and thoughtfully considered.

Local government must notify every landowner of every property affected by a zoning change. They no longer have to keep a list of people who asked to be notified of zoning changes. The county cannot charge the developer or anyone else for the cost of providing the notification.

A town’s comprehensive plan may not prohibit any use specified as a conditional use in a zoning ordinance enacted by a town. Here I think of a town acting to prohibit sand mines allowed by conditional use permits.

The bill makes “down zoning” more difficult by requiring a three-quarters vote. Because most towns have only three supervisors, it is actually a unanimous vote. Requiring a unanimous vote is unprecedented in town government and likely all local government.

Land awaiting development would be taxed according to its prior use (agriculture, forest, etc.) rather than an assessment of its true value.

One consequence of this bill is to create a race between a developer, builder or contractor against local government. If the developer can get the project started before the final action is taken on a change made by local government, an inappropriate “non-conforming use” is created and may continue indefinitely.

The filing of a seemingly minor permit can trigger a freeze in all local regulation. This bill would eliminate the ability of local government to respond to an unanticipated major development or change in land use. All I can think is that few, if any of us, anticipated in 2008 the “sand rush” beginning in 2010. What new use for land might emerge that is not now codified in existing zoning ordinances?

Land use ordinances, zoning, subdivision regulations, shoreland zoning restrictions all came about to protect our communities from willy-nilly development. We wanted a nice place to live and raise our families. People do not want industrial sites like fireworks factories next door to their piece of paradise.

This bill takes away the collective rights of the community and the individual rights of landowners adjacent to developers. The bill gives rights to developers who may not live anywhere near the development from which they will profit.

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