December 23, 2021 at 1:50 p.m.
Jennrich sends letter to towns warning against rogue permit conditions
Towns have no authority to impose conditions, zoning director cautions
Jennrich sends letter to towns warning against rogue permit conditions
Oneida County zoning director Karl Jennrich has followed through with a directive from the county's zoning committee, sending a letter to each town chairperson reminding them that they have no power to place any conditions on zoning permits, only to advise and recommend to the county.
The directive to send the letter came after the committee discovered that some town officials were attaching conditions to administrative review permits (ARPs) and conditional use permits (CUPs) that were unrelated to the development project at issue and who further believed they had a right to impose rather than merely suggest that the county adopt those conditions.
What's more, Jennrich had stunningly told the committee that he and his staff went ahead and imposed most town conditions, even in circumstances when staff did not think they were appropriate.
On October 6, the zoning committee not only instructed Jennrich to send a letter to the towns advising them of their lack of authority but ordered the zoning department to cease its virtually automatic approval of town board and plan commission conditions placed on administrative review zoning permits.
Jennrich began his November 9 letter by reminding the town chairpersons that they had agreed to participate in the county's zoning ordinance - and to confer zoning authority to the county - rather than go it alone.
"Currently the Oneida County planning and zoning department administers a county zoning ordinance pursuant to [the statute] within your town," Jennrich wrote in the November 9 letter. "At this time, your town does not have its own zoning authority."
Jennrich reminded the towns that because they participate in the county's zoning ordinance, by statute that ordinance supersedes any prior town ordinance in conflict with the county ordinance or which is concerned with zoning. The statutes do allow town boards to withdraw from the county's zoning ordinance.
But the zoning director also advised the towns that they were free to provide suggestions and recommendations on development projects within the town.
"Oneida County zoning sends your town administrative review permits (ARPs) and conditional use permits (CUPs), along with subdivisions for your review and consideration regarding the development project within your town," he wrote. "Oneida County planning and zoning staff along with the planning and development committee welcomes and appreciates your input on these projects."
Still, Jennrich wrote, it had come to the department's and committee's attention that there were conditions being requested from towns that were being included in permit conditions that might not be reasonable or enforceable by the county.
"Conditions proposed as part of an ARP or CUP shall be achievable, practicable, and to the extent possible, measurable," he wrote. "Any conditions imposed must be related to the purpose of the ordinance and be based on substantial evidence. Some of the conditions received from towns do not meet these criteria. Acceptable conditions must be directly related to the ARP or CUP."
Examples of things that Jennrich said the towns could recommend included conditions related to landscaping; the type of construction; sureties; lighting; fencing; planting; screening; operational control; period of operation; improved traffic circulation; parking requirements; erosion control; stormwater management; signage; and the construction schedule.
Finally, Jennrich reminded the town that the recommendations were just that - recommendations.
"Please be advised that planning and zoning staff and the planning and development committee may not include suggested conditions by the town board or town planning commission if they are not achievable, practicable, and to the extent possible, measurable," he wrote.
From Here to Minocqua
The directives to staff came after a dust-up in Minocqua in which the town's plan commission voted to impose a condition that a town resident seeking a tourist rooming house ARP prove that a pier on the property was DNR compliant.
In the case, Amy Davis had applied for a tourist rooming house ARP, but the town's plan commission approved the permit only if she produced a letter within 60 days from the DNR that the pier extending from the property was in legal compliance.
The problem is, conditions placed on ARPs and CUPs must be related to the project's impact upon neighboring land or public facilities and, specifically, related to its location, development, and operation - the purpose of the ordinance, as Jennrich pointed out in his letter.
There were three issues raised with the condition requiring Davis to provide a letter of compliance from the DNR.
One, neither the county nor the town have any jurisdiction over piers, there was no evidence at the time of the vote that the pier was noncompliant, only speculation, and the pier was not related to the tourist rooming house's operation as a compatible use within the district.
Second, there arose allegations that the condition was being imposed on the property owner when no such conditions were imposed on properties in similar situations.
And third, again as Jennrich pointed out, towns can only recommend conditions or identify concerns, not impose them.
Since then other issues have emerged, namely, from where does the county derive its authority to place such things as landscaping conditions on permits issued in the shoreland zone?
The Lakeland Times asked that question of Jennrich, but he did not respond by press time.
Landscaping regulation is a common feature of conditional use permits in Wisconsin, and there are no apparent or major landscaping litigation decisions in case law. Still, landscaping regulations could be problematic.
For one thing, Oneida County's ordinance does not define landscaping, so that gives government authorities a lot of wiggle room to define it - and accompanying regulatory requirements - case by case. That could turn out to be too much wiggle room for a court, which could rule that the challenged regulations are arbitrary.
Most often, zoning codes set conditions for building foundation landscaping, site landscaping (required planting and vegetation within a lot, or conditions on parking lots), and perimeter landscaping.
In some places, mandated rain gardens, or the planting of wildflowers and native vegetation to replace areas of lawn, are considered a landscaping regulation, as well as mitigation of impervious surface requirements. Even the placement of lights is considered landscaping in some places.
On the other hand, some places define landscaping generally as the removal or alteration of topsoil. Without clear definitions, authorities are free to use subjective judgment to define and measure landscaping requirements as they relate to the purpose of the ordinance.
Then there is the ability to regulate landscaping within the shoreland zone. On its face, assuming landscaping is defined so as to be as specific as possible about what the county regulates, NR115, the state's shoreland administrative rule, appears to allow counties to broadly regulate landscaping within the shoreland zone, just as they can outside the zone.
(Whether landscaping regulations are constitutional per se is another, separate issue.)
That is to say, state statute prohibits counties from being more restrictive than state shoreland standards, but, if state shoreland standards don't exist on a certain matter, they can regulate it to their heart's content.
"An ordinance enacted under this section may not regulate a matter more restrictively than the matter is regulated by a shoreland zoning standard," the statute states. "[The previous sentence] does not prohibit a county from enacting a shoreland zoning ordinance that regulates a matter that is not regulated by a shoreland zoning standard."
That language was written by Republican property rights activists and so to many it seems counterintuitive.
Indeed, one would think that, while property rights advocates would indeed want to prohibit counties from being more restrictive than a state shoreland regulatory standard, they would also insist - again, looking through the property rights lens - that counties not be allowed to regulate matters that the state chose not to regulate itself, being that counties are administrative arms of the state.
Instead, they turned counties loose.
Still, trying to impose landscaping conditions within the shoreland zone is problematic for officials anyway. While they are free to apply landscaping conditions, those conditions certainly could not conflict with shoreland standards the DNR has established, such as buffer zones, boathouses, viewing corridors, and more.
Practically speaking, then, there's not much left to regulate, at least within the 75-foot setback.
The problem is, there's plenty of room to regulate beyond that - the shoreland extends 300 feet beyond the ordinary high water mark of a river and 1,000 feet of a lake - making the applicability and constitutionality of landscaping ripe for challenge.
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