June Municipal Law Alert

The June 2012 edition of the Municipal Law Alert is now available online. View the latest articles by clicking here or clicking the titles below. This month’s articles include a summary of a new case on requiring an open records requestor to pay staff time for redaction; a reminder of upcoming impact fee deadlines; and a primer on zoning for towns.

Archives of the Municipal Law Alert, including the ability to key word search, are also available.

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An Introduction to Zoning for Towns

This article contains some basic information regarding town zoning laws in Wisconsin. Click here to view a more complete version.

Zoning is the regulation of the use of land. With many exceptions and usually subject to county approval, a town may enact its own zoning ordinances or adopt county zoning. Zoning is the most effective power that a local municipality has to regulate the location of industrial, agricultural and potentially incompatible or detrimental uses. It is the most effective power to regulate hours of operation, noise, dust, lighting, to require financial assurances, to protect property values, and to protect the health, safety and welfare of the town.

Town Zoning Options

Assuming a town currently has no zoning, in Wisconsin, a town has three choices:

  • Remain unzoned: For the town to remain unzoned, it need take no further action.
  • Adopt county zoning: town board must pass a resolution.
  • Adopt its own town zoning pursuant to Wisconsin Statute § 60.61 (only in counties without general county zoning) or Wis. Stat. § 60.62 (with village powers, subject to county approval).

Zoning Authority – The “Police Power”

The authority for local government to zone – that is, to regulate the use of land – comes from the state. Counties, cities, villages and, with exceptions towns, have statutory authority to create and enforce zoning.

Private Property and Public Welfare

Zoning entails balancing two policies: protection of private property rights and protection of the public. While there is some potential for conflict, long-range planning and zoning of various uses is a common, well-established, and generally well-accepted municipal power intended to promote the public welfare. Zoning ordinances and amendments and the application of zoning ordinances must be based on the public interest and must be reasonable. While zoning necessarily implicates some restriction on private property rights, zoning is also designed to protect property values and protect private investment in land by promoting the most appropriate use of land and by keeping incompatible uses and structures apart.

Zoning Ordinances

A zoning ordinance consists of two major components – a map and the text.

While there is no rule, and each municipality should have its own local rationale for defining districts, the following are examples of some typical zoning districts:

  • Industrial
  • Commercial/Business – sometimes further divided
  • Residential
  • Agricultural
  • Conservancy
  • Historic
  • Overlay Districts/Special Zoning
  • Extraterritorial Zoning

Municipalities may sometimes apply zoning to unincorporated land outside their borders, which is called extraterritorial zoning. Cities with populations of 10,000 or greater may be able to apply extraterritorial zoning within a 3-mile radius of their borders, while all villages and cities with less than 10,000 may be able to apply extraterritorial zoning within 1½ miles.

Uses

Generally, a zoning ordinance permits certain uses, allows some uses on a conditional or special exception basis, and prohibits other uses. For example, a residential district might allow only single family homes and maybe churches and parks. Two-family homes might be conditional uses – allowed only with a conditional use permit. All other uses would be prohibited.

Conditional Uses-Special Exceptions

Aside from uses that are simply allowed in a given district, municipal ordinances will often allow uses on a conditional basis, which are called conditional uses or special exceptions. In general, conditional uses or special exceptions have the same meaning (unless a particular ordinance gives them separate meanings).

For example, a convenience store may be considered a compatible use in a residential area under some circumstances. Making a convenience store a conditional use in a residential district would give the municipality discretion to allow the convenience store but with restrictions on items like lightning, signage or number of parking spaces. The municipality sets the conditions on each individual project, without the district simply allowing any (or as many) convenience stores as anyone would like to build.

Legal Nonconforming Uses and Nonconforming Structures/Buildings

Municipalities create zoning districts permitting and prohibiting various uses, such as residential, commercial, and industrial. Most municipalities also implement dimensional regulations, such as setbacks, heights and minimum widths and lot sizes. Uses and structures that do not meet these use and dimensional restrictions are called nonconforming uses and nonconforming structures/buildings. Usually uses and structures in existence at the time a zoning ordinance is enacted are allowed to continue for their useful life.

Alteration and Rebuilding Nonconforming Structures

Historically, the long term goal of zoning has been the eventual elimination of nonconforming uses and structures. Arguably, this goal was recently changed with the passage of Act 170 which provides a number of restrictions on the ability of units of local government to restrict the alteration, repair, rebuilding and maintenance of nonconforming structures.

Variance

A variance allows a prohibited use (unlike a conditional use, which is a permitted use with situationally unique restrictions).

Variances fall into two general categories:

  • Use Variance
  • Area (Dimensional) Variance

These categories somewhat mirror the nonconforming “use” and “structure” distinction. A use variance allows a use that is otherwise prohibited – for example, a prohibited retail use in a residential district. An area variance allows an exception from a dimensional requirement, for example, allowing a building to be closer to a property line than is normally allowed.

Conclusion

To learn more about town zoning, read a more detailed article here.

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Introduction to Zoning for Towns

Introduction

Goal.

The goal of this document is to give the reader a basic understanding of town zoning law in Wisconsin, of the principles and procedures of zoning, and the options available to towns.

Overview.

With many exceptions and usually subject to county approval, a town may enact its own zoning ordinances or adopt county zoning. A town may also be subject to extra-territorial zoning of adjacent villages and cities.

Zoning ordinances can vary significantly in what they cover and in how they are applied. For example, zoning in a rural county or town away from the pressures of urban sprawl will likely differ from zoning in a county or town that is fast becoming a bedroom community for a larger city, which in turn will be different from zoning in a large city. Nonetheless, zoning has common features across most municipalities, and indeed across much of the United States.

As a general rule, the goal of zoning is to permit compatible uses near each other, and not permit incompatible uses near each other. For example, a residential district will allow residential uses, schools, churches. An agricultural zoning district will allow typical farming and related uses. An industrial district will allow industry. But a major industry would not be allowed in a residential district.

Summary.

Zoning is the most effective power that a local municipality has to regulate the location of industrial, agricultural and potentially incompatible or detrimental uses. It is the most effective power to regulate hours of operation, noise, dust, lighting, to require financial assurances, to protect property values, and to protect the health, safety and welfare of the town.

Zoning Defined.

Zoning is the regulation of the use of land.

It is generally applied by the local governmental entity, the city, village, town or county. Generally, zoning consists of the division of land into zones, and within these zones, the regulation and control of both the nature of land usage and the physical dimensions of uses and structures.

There will be two major components to a zoning ordinance:

  • A map which defines the boundaries of the zoning districts (for example, these parcels are zoned agricultural, those parcels are zoned commercial, etc.).
  • The written text describing what is permitted within the zoning districts.

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Impact Fee Deadline Approaching

Municipal Law Alert, June 2012

Impact fees collected before January 1, 2003 must be used no later than December 31 of this year. If a municipality had an impact fee ordinance in effect prior to 2003 and it collected any funds, those funds must either be used for the purpose for which they were collected, or any remaining funds must be refunded to the present owner of the property on which the impact fees were imposed.

This deadline is the result of changes made to Wisconsin statutes when, on January 4, 2008, then-Governor Doyle signed into law 2007 Act 44 (which became effective on January 19, 2008). This law made changes to Wisconsin Statute § 66.0617, titled “Impact fees.” You can review Act 44 and its legislative history here.

One of the more significant of these changes was to establish a relatively complicated series of deadlines by which a municipality must either (a) use impact fees; or (b) refund the money to the present owner of the property on which the fee was imposed.

Along with the December 31, 2012 deadline mentioned above, Act 44 also established other deadlines for fees collected after January 1, 2003. (2009 Act 180, a “correction bill,” modified those deadlines to clear up an ambiguity with respect to certain deadlines). A rule of thumb would be that, in general, there is a ten year deadline to use impact fees, but this rule of thumb is subject to exceptions. The following somewhat complicated series of deadlines currently apply:

  • Impact fees collected after December 31, 2002 and before April 11, 2006, must be used not later than the first day of the 120th month beginning after the date on which the fee was collected. For example, pursuant to Wis. Stat. § 66.0617(9)(c)2, impact fees collected after December 31, 2002, and before April 11, 2006 will be on a rolling ten year deadline, so if an impact fee was collected on, say, January 10 of 2003, its deadline would be Feb 1, 2013.
  • Impact fees collected after April 10, 2006 and collected within seven years of the effective date of the ordinance imposing the fee must be used within 10 years after the effective date of the ordinance. The 10-year limit may be extended for three years if the municipality passes a resolution that includes detailed written findings specifying the extenuating circumstances or hardship supporting the need for the extension.
  • Impact fees collected after April 10, 2006 and collected more than seven years after the effective date of the ordinance imposing the fees must be used within a reasonable period of time after collected.

As mentioned above, watch out for the complicated exceptions. For example, impact fees collected after April 10, 2006 and more than seven years after passage of the local impact fee ordinance must be used within a “reasonable” time. Of course “reasonable” may vary depending on the circumstances. A reasonable time to build a water tower will almost certainly be considerably longer than a reasonable time to install playground equipment in a park. These determinations will have to be made on a case by case basis (unless the law changes).

Speaking of parks, Wisconsin 2007 Act 44 also reauthorized collecting fees in lieu of parkland dedications as a condition of approval of plats and subdivisions. This was not a change to the impact fee laws under 66.0617. Instead, this authorization is found in the platting and subdivision statute, Wis. Stat. §§ 236.45(6)(am) & (b). This law has changed several times since 2001, but appears to have stabilized. Municipalities should check their ordinances to make sure they comply with current state law concerning collecting fees for parkland development in lieu of requiring land dedications.

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Wisconsin Supreme Court Decides Important Public Records Case

Municipal Law Alert, June 2012

On June 27, 2012, the Wisconsin Supreme Court reaffirmed Wisconsin’s long-standing commitment to open and transparent government. In Milwaukee Journal Sentinel v. City of Milwaukee, 2012 WI 65, the Court held that the Milwaukee Police Department could not charge the Milwaukee Journal Sentinel for time spent by police department employees redacting non-public information from documents that were subject to the Journal’s open records request.

This case began in 2010, when the Journal requested a significant number of incident reports from the police department. At first, the police department provided the records without charging for staff time spent redacting non-public information. Then, in response to additional, voluminous requests, the police department informed the Journal that it would need to make an advance payment of $3,390 for staff time spent reviewing and redacting the records. The Journal refused to pay the requested charges and commenced an action against the City of Milwaukee and the Milwaukee Police Department.

The parties stipulated that the police department’s estimates of time required to review and redact the requested records were made in good faith and were not intended to generate a profit. By the time the case came before the Supreme Court, the question was whether, under the Wisconsin Public Records Law, the police department could charge for staff time spent reviewing and redacting the requested records. The Court noted that the Public Records Law empowers a governmental body to impose a fee that does not “exceed, the actual, necessary, and direct” cost of the following four tasks: (1) reproduction and transcription of the record, (2) photographing and photographic processing, (3) locating a record, and (4) mailing or shipping of any copy or photograph of a record.

The Court reasoned that, even though the Legislature knew that certain items would need to be redacted, it did not list redaction as one of the items for which cost could be recovered. Therefore, the absence of “redaction costs” must have been intentional. Additionally, Justice Abrahamson’s lead opinion relied heavily on the Declaration of Policy in the Public Records Law that “all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of those officers and employees who represent them.” Taken together, the lead opinion refused to read an additional cost hurdle into the Public Records Law. To emphasize this point, the lead opinion said, “If the legislature had wanted to allow an authority to impose fees for a broad range of tasks, or if it had wanted to include the task of redaction as a task for which fees may be imposed, it would have said so.”

Based on this language, it is probably safe to say that a municipality may only charge for the four items listed above and nothing more. In addition, based on this case, it would appear that the Court will read those four items narrowly to include only what is set forth in the plain language and not items that may be ancillary to the listed items (such as redaction).

Apparently understanding that the reading of the law poses significant problems for governmental bodies faced with voluminous records requests, the majority opinion, and a separate concurring opinion by Justice Prosser, urged the legislature to consider amending the Public Records Law to include a cost-recovery mechanism for items like staff time spent redacting records.

In summary, if your municipality receives a public records request, and your municipality wishes to charge the requesting party making the request, this case makes clear that you may do so, but only with respect to: (1) reproduction and transcription of the record, (2) photographing and photographic processing, (3) locating a record, and (4) mailing or shipping of any copy or photograph of a record.

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Open Records Law Decision Regarding the Costs of Redacting

In a unanimous decision in the case of the Milwaukee Journal Sentinal vs. the City of Milwaukee, the Wisconsin Supreme Court ruled that the City of Milwaukee cannot charge the costs of redacting information from records to a record requester. The Wisconsin Public Records Law, Wis. Stat. 19.35 et al, allows anyone to request government records, and in general most government records need to be released to the requester. There are some important exceptions, and occasionally a document may contain some information that would need to be released, and some information that would need to be kept confidential. In such a case, the municipality must release the document after redacting the confidential information. The statute allows municipalities to charge the requestor for certain costs.

In what appears to be a fairly narrow decision, the Supreme Court said that the cost to the municipality for redacting information is not chargeable back to the requester. Of course, if the requestor cannot be charged, and the municipality must release the document, that leaves the municipality – i.e. the taxpayers – to foot the bill. This was pointed out by several of the Justices, who nevertheless decided that the plain language of the statute does not permit charging for redaction. Although the holding appears to be fairly narrow, the ramifications may be broader, in that municipalities must now be very careful to only charge what the statute plainly permits. However, that language, while supposedly “plain” still leaves room for interpretation.

The key language is: “An authority may impose a fee upon the requester of a copy of a record which may not exceed the actual, necessary and direct cost of reproduction and transcription of the record, unless a fee is otherwise specifically established or authorized to be established by law.” However there have been, and will continue to be, arguments over just what is included in the “…actual, necessary and direct cost of reprodoction…”

Here’s a link to a Milwaukee Journal Sentinal article on the case.

Town Trustees Fined for Open Meeting Violation

The following article is a reminder to all municipal board members that talking municipal business with other board members outside of a duly noticed meeting is a violation of the open records law. I often hear arguments from town board members regarding the inefficiency and difficulty it presents to not be able to talk to other board members outside of meetings. But for small boards, and many are three member boards, that’s the reality of the law. No talking shop to other board members. Town board members also say “we’ve been doing it that way for thirty years!” That may be so, but when a municipality is faced with something controversial, the board members will face increased scrutiny for sure, and may face some unhappy constituants depending on the stand they take on an issue. That’s when the argument that “we’ve always done it that way” fails pretty quickly.

Here’s a link to the article from the Dunn County News.

Pete Reinhardt and David Schoenberger to Speak to School Administrators

Bakke Norman attorneys Pete Reinhardt and David Schoenberger will be speaking on June 25, 2012, at the Summer Legal Seminar for the Association of Wisconsin School Administrators (AWSA). Their session is titled, “Employment Law Changes that Affect School Administrators.”

Due to the recent legislative developments affecting schools in Wisconsin, Pete and David will share details about the collective bargaining changes and how these changes could be impacting school districts. Impacts include changes in the manner that the Wisconsin Fair Employment Act and various state and federal employment laws will apply and affect schools.

To learn more about the seminar, visit the AWSA website here.

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Adam Jarchow Speaks on Frac Sand Issues

At Bakke Norman’s Municipal Seminar held April 5, 2012, attorney Adam Jarchow spoke to the group about the latest issues and information pertaining to frac sand mining. Frac sand has been a “hot topic” in northwestern Wisconsin, whether it be municipal boards seeking to impose regulations or impose moratoriums against frac sand mining in order to explore options for regulation; mining companies seeking approval to commence operations; citizens with sand on their land seeking to assist interested mining companies; or citizens in municipalities opposed to mining operations.

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