Governor Signs Amendments to “Smart Growth” Statute into Law

While not making any radical changes to Wisconsin’s current comprehensive planning law, generally known as the “Smart Growth” law), Wisconsin 2009 Act 372 provides some clarification of a few of the more problematic terms in the law. The amendments also give some municipalities additional time to comply with the law, and eliminates the requirement that towns must have exercised “village powers” in order to adopt a comprehensive plan.

Under the existing law, beginning on January 1, 2010 a local government’s land use actions had to be “consistent with” their comprehensive plan. However, there was confusion regarding what actions this applied to, and just what “consistent with” actually meant. The new amendments provide some clarity. To begin with, the amendments provide a definition of a “comprehensive plan” – “a guide to the physical, social and economic development of a local governmental unit.” The amendments also define “consistent with” as “furthers or does not contradict the objectives, goals, and policies contained in the comprehensive plan.”

The amendments also specify which government actions must be consistent with the comprehensive plan – ordinances related to official mapping, local subdivision regulation, and zoning, including zoning of shorelands or wetlands in shorelands. The new law also clarifies that “enactment of a comprehensive plan by ordinance does not make the comprehensive plan by itself a regulation.” This had been an area of much discussion and confusion, as to whether simply having a comprehensive plan had any actual regulatory effect on landowners – the answer now appears to be no.

Finally, the law provides for a limited delay in the consistency requirement deadline of January 1, 2010 under certain limited circumstances. If your municipality is having difficulty meeting the deadline, you should consult your municipal attorney to see if the delay might apply to your circumstances.

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DNR Authority over Piers Preempts Town Ordinance

In a recent unpublished case, Lake Geneva Club v. Town of Linn, the appeals court upheld a circuit court ruling that the DNR has preemptive authority over piers pursuant to Wisconsin Statutes §§30.12 and 30.13. In this case, the Lake Geneva Club (LGC) owned property on Geneva Lake, and wanted to modify its existing pier and add a new pier. They applied to the DNR for a permit and, after a review of the circumstances and some modifications of the pier design, the DNR granted the permit. LGC then applied for a building permit from the Town of Linn. The Town’s building inspector recommended approval based on the town ordinance, but for reasons that aren’t well spelled out in the court opinion, the Town Board denied the permit. (There apparently was opposition to the permit from members of the public, but no details were discussed).

LGC appealed to the circuit court, which ruled that the Town did not have jurisdiction to deny the permit since the DNR had preeminent authority regulating piers. The court also noted that it appeared that LGC had met all the requirements of the town ordinance. “By fashioning a decision in disregard of the rules it promulgated, the Town Board acted beyond its authority.” The appeals court upheld what it called the “thorough written decision” of the circuit court.

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Proposed New DNR Rules on Phosphorous Levels Opposed by Municipal Groups

The Senate Committee on the Environment will hold a public hearing on July 28, 2010 on proposed revisions to NR 102 and NR 217. The proposed rule changes will require municipal wastewater treatment plants to take steps to reduce phosphorus levels. An editorial written by Jon Schellpfeffer, Chief Engineer and Director of the Madison Metropolitan Sewerage District. opposing certain of these proposed revisions can be found in the Wisconsin State Journal. See “DNR Shouldn’t Single out Treatment Plants,” in the Sunday, May 2, 2010 edition.

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Public Employees’ Private Emails Not Subject to Open Records Request

I wrote about Karen Schill v. Wisconsin Rapids School District in a previous article in the Municipal Alert – a citizen had made an open records request for private emails sent by public employees (a school district) on public computers. In a 5-2 decision, the Supreme Court ruled that private emails are not subject to open records requests even though they are sent using government computers (the appropriateness of the use of government computers for sending private emails was not an issue in this case). Essentially, the court said that government records are subject to the open meetings law, private emails are not because they are not “government business.”

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