Regulations and Variances Ask the tough questions!

Regulations and Variances Ask the tough questions!

Getting enough information to make good land use decisions

Center for Land Use Education

Lynn MarkhamCooperative Extension and the College of Natural

Resources University of Wisconsin - Stevens Point

[email protected]

Healthy watersheds Healthy watersheds make healthy make healthy

waters & higher waters & higher property valuesproperty values

• When all other factors were equal, properties on lakes with clearer water commanded significantly higher property prices.

• People prefer clean water and will pay more to live on lakes with better water quality.

The zoning board is not meant to provide general flexibility to the zoning ordinance.

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).

Policy development & adoption are legislative functions reserved for the governing body & planning commission.

The zoning board acts The zoning board acts like a court…like a court…

The zoning The zoning board acts board acts like a court…like a court… • Like a court, zoning board decisions can

be appealed to higher courts.

• If state statutes, case law and local ordinances are followed, decisions will generally be upheld.

• A solid legal record minimizes legal costs and zoning board reconsideration.

Discretion…Discretion…Flexibility in decision-making

Administrative Administrative permitspermits

Quasi-judicialQuasi-judicial variancesvariances

conditional usesconditional usesadm. appealsadm. appeals

LegislativeLegislative policiespolicies

ordinancesordinances

Dis

creti

on

•Discussion only during the hearing.•Pre-determined standards apply.

•Conditions may be applied.

Conditional uses or Conditional uses or special exceptions special exceptions

Permitted usesPermitted uses Conditional usesConditional uses

(special exceptions)(special exceptions)

Where Where allowedallowed

Everywhere in Everywhere in districtdistrict

Tailored to site & Tailored to site & neighboring usesneighboring uses

Who Who decidesdecides

AdministratorAdministrator Commission/Commission/committee, BOA, committee, BOA, governing bodygoverning body

DiscretionDiscretion Must be granted Must be granted if standards are if standards are

metmet

May be granted or May be granted or denieddenied

Added Added conditionsconditions

None permittedNone permitted Added conditions OK Added conditions OK (design & (design &

performance)performance)

AppealAppeal BOABOA Court - BOA if decided Court - BOA if decided by P&Z committeeby P&Z committee

Special exceptions…Special exceptions…

1) Must be listed for the zoning district2) First, decide whether the standards listed in

the ordinance are met3) OK to require compliance reporting by owner4) OK to grant a phased permit5) Suggest limited-term permits for temporary

uses; otherwise permits run with the property6) Conditions generally cannot be changed

unless permit is revoked or expires

Conditions for variances or Conditions for variances or special exceptions…special exceptions…

Conditions must meet 2 tests:

1) address expected harmful project impacts (essential nexus)

2) be proportional to the extent of those impacts (rough proportionality).

VariancesVariances

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.

VariancesVariances

Special exceptions– Can only be granted if elected

governing body lists them in ordinance for the zoning district

– Decision standards are set locally

Variances– 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

VariancesVariances

Use variances “permit a landowner to put property to an otherwise prohibited use.” (not allowed in MN and many WI local governments)

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

Variances in WIVariances in WI

s. 59.694(7) (c) Wis. Stats.

Tests that must be met to grant a variance:

1.Hardship: the proposed use of the property and associated structures cannot be established under the conditions allowed by ordinance– Economic considerations alone shall not

constitute a hardship if a reasonable use for the property and associated structures exists under the conditions allowed by an ordinance.

Variances in MNVariances in MN

MN Rule 6105.0520


2.Hardship is due to circumstances unique to the property, not created by the landowner after May 1, 1974


MN Rule 6105.0520


3.The variance, if granted, will not alter the essential character of the locality.


MN Rule 6105.0520

Other variance requirements • No variance shall be granted that would

permit any use that is prohibited in an ordinance.

• Conditions may be imposed in the

granting of variances to ensure compliance and to protect adjacent properties and the public interest, especially in regard to the view from the river.


MN Rule 6105.0520

VariancesVariancesConditions unique to the property Conditions unique to the property

testtestConditions Conditions unique to the propertyunique to the property

include physical limitations of the include physical limitations of the property, such as steep slopes or property, such as steep slopes or wetlands must prevent compliance wetlands must prevent compliance with the ordinance.with the ordinance.

Does every small, steep or Does every small, steep or irregularly shaped parcel qualify irregularly shaped parcel qualify for a variance??for a variance??

• Limitations that prevent ordinance Limitations that prevent ordinance compliance & are common to a compliance & are common to a number of properties should be number of properties should be addressed by ordinance amendment.addressed by ordinance amendment.

• Circumstances of an applicant such as Circumstances of an applicant such as a growing family or need for a larger a growing family or need for a larger garage, are not a factor in deciding garage, are not a factor in deciding variances.variances.

VariancesVariancesConditions unique to the property Conditions unique to the property

testtest

VariancesVariancesPublic interest testPublic interest test

• A variance granted may not harm public A variance granted may not harm public interests but is not required to advance them.interests but is not required to advance them.

• ““Public interests” are the purpose and intent of Public interests” are the purpose and intent of the ordinance that were agreed upon by the the ordinance that were agreed upon by the county board, representing the community. county board, representing the community. Those who provide testimony may try to Those who provide testimony may try to convince you other factors are the “public convince you other factors are the “public interests.”interests.”

• Short-term, long-term and cumulative impacts of Short-term, long-term and cumulative impacts of variance requests must be considered. variance requests must be considered. Zoning Zoning staff should provide an impact analysis.staff should provide an impact analysis.

What does unnecessary What does unnecessary hardship mean for area hardship mean for area

variances?variances?

Ziervogel & area variances…Ziervogel & area variances…• House located 26 feet House located 26 feet

from the OHWM of Big from the OHWM of Big Cedar Lake in Cedar Lake in Washington CountyWashington County

• Owners wanted a 10-foot Owners wanted a 10-foot vertical expansion of vertical expansion of their house to add two their house to add two bedrooms, two bedrooms, two bathrooms, and an office bathrooms, and an office to the houseto the house

• Washington County's Washington County's Ordinance prohibited Ordinance prohibited expanding any structure expanding any structure within 50 feet of the within 50 feet of the OHWM of a lakeOHWM of a lake

• Washington County BOA denied variance request

• Circuit Court & Court of Appeals affirmed

• Supreme Court changed standard

WI case lawWI case law

Unnecessary hardship test Unnecessary hardship test for for areaarea variances… variances…

• Unnecessary hardship = whenUnnecessary hardship = when compliance compliance with the ordinance would: with the ordinance would: – unreasonably prevent the owner from using the unreasonably prevent the owner from using the

property for a permitted purpose, orproperty for a permitted purpose, or– be unnecessarily burdensome in view of be unnecessarily burdensome in view of

ordinance purposesordinance purposes

Ziervogel v. Washington County Board of Adjustment, 2004 WI Supreme Ct.

WI case lawWI case law

What does What does “unnecessarily “unnecessarily

burdensome” mean??burdensome” mean??• Should an after-the-fact

variance be granted for the red porch because its removal would be “unnecessarily burdensome”?

• The WI Supreme Court said NO because the “hardship was self-created and the porch no more than a personal convenience”.

Snyder v. Waukesha County Zoning Board, 1976

13 ft.

Current WI definitionCurrent WI definition

If you denied the variance, would it If you denied the variance, would it be…be…

A personal inconvenience?

A hardship that is necessary to achieve ordinance purposes?

If yes to either question, deny variance.

A hardship that is not necessary to achieve ordinance purposes?

If yes and other 2 variance standards are met, then grant variance.

Variances…Variances…• Loss of profit or financial difficulty do not constitute Loss of profit or financial difficulty do not constitute

hardship.hardship.

• A variance runs with the property.A variance runs with the property.

• A variance does A variance does notnot create a nonconforming create a nonconforming structure.structure.

• Lack of objections from neighbors does not justify a Lack of objections from neighbors does not justify a variancevariance. .

• Nor do nearby ordinance violations.Nor do nearby ordinance violations.

Zoning tools to preserve Zoning tools to preserve water quality in the riverwater quality in the river

1.1. Curb pollutants at their sourceCurb pollutants at their source such as such as eroding soils, malfunctioning septic systemseroding soils, malfunctioning septic systems

2.2. Cut runoffCut runoff that picks up pollutants and carries them that picks up pollutants and carries them to the waterway by minimizing the hard surfaces that to the waterway by minimizing the hard surfaces that create runoffcreate runoff

3.3. Capture and cleanseCapture and cleanse pollutant-carrying pollutant-carrying runoff before it reaches the waterway – with shoreland runoff before it reaches the waterway – with shoreland buffers, rain barrels or rain gardensbuffers, rain barrels or rain gardens

Source: Wisconsin Dept. of Natural Resources

Curb pollutantsCurb pollutants

Curb pollutantsCurb pollutantsLimit phosphorusLimit phosphorus

One pound of phosphorus in runoff can result in 500 One pound of phosphorus in runoff can result in 500 pounds of algae growth!pounds of algae growth!

Curb pollutantsCurb pollutantsMinimize erosionMinimize erosion

Curb pollutantsCurb pollutantsInspect & maintain your septic Inspect & maintain your septic

system regularlysystem regularly Pump or inspect your septic system every 3 Pump or inspect your septic system every 3

yearsyears

Divert surface water away from the drainfieldDivert surface water away from the drainfield

Avoid driving or parking on the drainfieldAvoid driving or parking on the drainfield

Keep the roots of trees and shrubs away from Keep the roots of trees and shrubs away from drainfield pipes drainfield pipes

When a replacement system is needed When a replacement system is needed consider aerobic digesters and recirculating consider aerobic digesters and recirculating sand filterssand filters

Curb pollutantsCurb pollutants Conditions that may be Conditions that may be

appliedapplied Limit the area of grading and other disturbance and Limit the area of grading and other disturbance and

make the remainder of the parcel off-limits to heavy make the remainder of the parcel off-limits to heavy equipment.equipment.

Maintain established trees and native plants with Maintain established trees and native plants with deep root systems to hold soil in place.deep root systems to hold soil in place.

Require a complete erosion control plan and Require a complete erosion control plan and inspection of erosion control measures prior to and inspection of erosion control measures prior to and during construction. Require bonding to repair during construction. Require bonding to repair damage if erosion control measures fail.damage if erosion control measures fail.


appliedapplied Require a list of the chemicals and the maximum Require a list of the chemicals and the maximum

quantities of them that will be used or stored in the quantities of them that will be used or stored in the shoreland zone. For instance, a nursery may use or shoreland zone. For instance, a nursery may use or store quantities of fertilizers and pesticides that could store quantities of fertilizers and pesticides that could have a large impact. Gasoline and other toxic have a large impact. Gasoline and other toxic chemicals should also be considered. Use this chemicals should also be considered. Use this information to decide whether the proposed use is information to decide whether the proposed use is reasonably suited for the location.reasonably suited for the location.

To ensure that conditions are met, require self-To ensure that conditions are met, require self-reporting or independent inspections and use bonding reporting or independent inspections and use bonding or specific predetermined fines.or specific predetermined fines.


appliedapplied Keeping phosphorus or any other chemical 100% Keeping phosphorus or any other chemical 100%

contained over a long timeframe is not feasible. contained over a long timeframe is not feasible. Thus, the local government may decide that the Thus, the local government may decide that the potential for water pollution is too great on a site potential for water pollution is too great on a site and deny the permit.and deny the permit.

Cut runoffCut runoffReduce hard surfaces like Reduce hard surfaces like

rooftops and drivewaysrooftops and driveways When considering When considering

additions, decide whether additions, decide whether living without the addition living without the addition is an unnecessary is an unnecessary hardship or a personal hardship or a personal inconvenienceinconvenience

Consider building up Consider building up instead of outinstead of out

Runoff from decks, Runoff from decks, sidewalks and parking sidewalks and parking areas also contributeareas also contribute

Cut runoffCut runoffReduce hard surfaces like Reduce hard surfaces like

rooftops and drivewaysrooftops and driveways Gravel areas are nearly as Gravel areas are nearly as

impervious as paved surfacesimpervious as paved surfaces

Pervious pavers are an option Pervious pavers are an option for areas that do not have heavy for areas that do not have heavy traffic – but they don’t provide traffic – but they don’t provide habitathabitat

Green roofs can reduce runoffGreen roofs can reduce runoff

Cut runoffCut runoffProtect wooded areas & Protect wooded areas & plant trees and shrubsplant trees and shrubs

Runoff from lawns carries 8 times more phosphorus than the Runoff from lawns carries 8 times more phosphorus than the same size wooded areas because lawns create much more same size wooded areas because lawns create much more

runoffrunoff

Total nutrients delivered to lakes

0.022

0.003

0.000

0.050

0.100

0.150

Lawn Forest

Nutri

ent y

ield

(lb/

ac/yr

)

Nitrogen (TKN)

Phosphorus (TP)

Less than 8% 8-12% Greater than 12%Increasing impervious surface in the watershedDecreasing number of fish & fish species

Less than 8% 8 - 12% Greater than 12%Iowa darter

Black crappieChannel catfish

Yellow perchRock bass

Hornyhead chubSand shiner

Southern redbelly dace

Golden shinerNorthern pike

Largemouth bassBluntnose minnow

Johnny darterCommon shiner

Creek chubFathead minnow

Green sunfishWhite sucker

Brook stickleback



Brook stickleback

Golden shinerNorthern pike

Largemouth bassBluntnose minnow

Johnny darterCommon shiner



Brook stickleback

Fish found in streams when impervious surface in the watershed was:

Wang et al. 2000

Cut runoffCut runoffDirect downspouts onto your Direct downspouts onto your lawn or landscaping, not hard lawn or landscaping, not hard

surfacessurfaces

Cut runoffCut runoff Conditions that may be Conditions that may be

appliedapplied Limit the area of impervious surfaces. This can be Limit the area of impervious surfaces. This can be

done by narrowing driveways and building up rather done by narrowing driveways and building up rather than out or by replacing conventional hard surfaces than out or by replacing conventional hard surfaces with alternatives such as green roofs and pervious with alternatives such as green roofs and pervious pavers.pavers.

Locate impervious surfaces as far as possible from Locate impervious surfaces as far as possible from the river and in locations where their runoff will soak the river and in locations where their runoff will soak into the ground or at least be substantially filtered into the ground or at least be substantially filtered prior to entering the water body.prior to entering the water body.


appliedapplied Maintain established trees and native plants whose Maintain established trees and native plants whose

deep root systems extend each year to create new deep root systems extend each year to create new pores in the soil that allow water to soak in.pores in the soil that allow water to soak in.

Limit the area of compacted soils that prevent water Limit the area of compacted soils that prevent water from soaking in. To do this, limit the area compacted from soaking in. To do this, limit the area compacted by heavy equipment and other vehicles.by heavy equipment and other vehicles.

Minimize grading that removes the natural divots Minimize grading that removes the natural divots where water naturally collects and has time to soak where water naturally collects and has time to soak in.in.


appliedapplied Consider requiring landowners to decompact soil Consider requiring landowners to decompact soil

after construction in areas where compaction is not after construction in areas where compaction is not necessary to support buildings, roads or driveways. necessary to support buildings, roads or driveways.

To ensure that conditions are met, require self-To ensure that conditions are met, require self-reporting or independent inspections and use reporting or independent inspections and use bonding or specific predetermined fines.bonding or specific predetermined fines.


appliedapplied A proposal may create more runoff than can soak in A proposal may create more runoff than can soak in

on the lot. To avoid adversely affecting neighboring on the lot. To avoid adversely affecting neighboring landowners, or the river, the local government may landowners, or the river, the local government may decide to deny the permit.decide to deny the permit.

Capture and cleanseCapture and cleanse

Capture and cleanseCapture and cleanse Protect or restore your Protect or restore your

shoreland buffershoreland buffer

If you have native vegetation along your shoreline, consider yourself and the local wildlife fortunate

Capture and Capture and cleansecleanse

If you have lawn to the water’s edge or to the blufftop:

A simple no-cost way to get started in restoring your shoreland is to stop mowing next to the water

You can replant native trees, shrubs, grasses and wildflowers to attract songbirds and butterflies.

Capture and cleanseCapture and cleanse Conditions that may be Conditions that may be

appliedapplied Require a storm water management plan with a Require a storm water management plan with a

defined performance standard (e.g., no net increase defined performance standard (e.g., no net increase in storm water runoff from a 50 year storm). in storm water runoff from a 50 year storm).

Maintain established plants, including trees and Maintain established plants, including trees and native plants with stiff stems to slow down and filter native plants with stiff stems to slow down and filter runoff. runoff.


appliedapplied Require rain gardens that are Require rain gardens that are of sufficient size of sufficient size to to

hold runoff.hold runoff.

Require shoreline buffer restoration or expansion Require shoreline buffer restoration or expansion to to a large enough sizea large enough size to effectively filter runoff. to effectively filter runoff.

To ensure that conditions are met, require self-To ensure that conditions are met, require self-reporting or independent inspections and use reporting or independent inspections and use bonding or specific predetermined fines.bonding or specific predetermined fines.


appliedapplied A proposal may create more runoff than can be A proposal may create more runoff than can be

captured and cleansed on the lot. To avoid adversely captured and cleansed on the lot. To avoid adversely affecting neighboring landowners, or the river the affecting neighboring landowners, or the river the local government may decide to deny the permit.local government may decide to deny the permit.

Zoning tools to preserveZoning tools to preservescenic and natural scenic and natural

characteristics of the St. characteristics of the St. CroixCroix

1.1. Bluffline setbacks Bluffline setbacks to to prevent disturbing natural prevent disturbing natural viewsviews

2.2. Maximum building Maximum building heights heights to prevent to prevent disturbing natural viewsdisturbing natural views

3.3. Natural vegetation Natural vegetation to maintain screening of to maintain screening of structuresstructures

ConclusionsConclusions

• Decision-makers for variances and conditional uses need to be unbiased and apply state statutes, case law and local ordinances in their hearings

• First, determine if the legal standards are met. If not, the variance or CUP must be denied.

• If a variance or CUP is being requested AND the standards are met, then add conditions to permits to ensure that the public interests, which include water quality and fisheries, are not harmed

Flourishing shorelands provide some of the most effective protection for

our rivers

Block v. Waupaca County Zoning Board, July 2007

50 ft.

New case lawNew case law

Would you grant a variance for the red deck?

• Steep slope under deck• Other lake properties

also have steep slopes• High value house• Current location of deck

is optimal spot

Court of Appeals decision Court of Appeals decision 20072007

From the zoning board members:• The property was not unique because it was like

all other lake properties with steep slopes that have structures too close to the water. It is the uniqueness of the land, not the owner, that must be taken into account.

• The intent of the ordinance was to maintain a The intent of the ordinance was to maintain a distance between the structures and the lake. distance between the structures and the lake. The fact that the house was worth a particular The fact that the house was worth a particular amount did not mean the owners were entitled amount did not mean the owners were entitled to retain the deck.to retain the deck.

Court of Appeals decision Court of Appeals decision 20072007

• The zoning board was justified in The zoning board was justified in determining the variance to retain the determining the variance to retain the deck was based on a deck was based on a personal personal inconvenience inconvenience rather than an unnecessary rather than an unnecessary hardship.hardship.

Documents

Regulations and Variances Ask the tough questions!