CONSISTENCY UNDER COMPREHENSIVE PLANNING

CONSISTENCY UNDER COMPREHENSIVE PLANNING Comprehensive Planning NCWRPC Seminar November 9, 2006 - Wausau Presented by Thomas W. Harnisch WTA Education Director 11/10/2006 1

I. INTRODUCTION. A. What does consistency mean between the Local Land Use Regulations under Wis Stats 66.1001(3) and the Local Comprehensive Plan adopted under Wis Stats 6.1001(2)? Does consistency between the Comprehensive Plan and the Land Use Regulations mean they must be exactly the same? Do the planning maps need similarity with the text of the plan? 11/10/2006 2

INTRODUCTION (CONT). B. Wisconsin has had a few cases that have addressed the meaning of consistency for land. (See Lake City Corp. vs. City of Mequon 115 Wis2d 155, 558 NW2d 100 (1997)). (See also Step New Citizen Group vs. Town of Utica Planning and Zoning Committee 264 Wis2d 262, 663 NW2d 833 (2003)). (See also Barnes vs. Village of Lannon 287 Wis2d 133, 703 NW2d 383 (2005)). (unpublished). 11/10/2006 3

I. INTRODUCTION (CONT). (B.) (cont). Step New and Barnes cases both state that the Comprehensive Plan is advisory until January 1, 2010. Lake City Corp states that the land use actions are not to be contradictory to the Comprehensive Plan. 11/10/2006 4

I. INTRODUCTION (CONT). C. Any better consistency definition for Wisconsin that will interpret the consistency definition in Wis Stats 66.1001(3) may be up to future cases in our State and Federal Courts. Certain foreign Court jurisdictions, like California, have interpreted consistency between Land Use Regulations and Comprehensive Plans. 11/10/2006 5

I. INTRODUCTION (CONT). (C.) (cont). For California, is the proposed action, program or project consistent with the Comprehensive Plan? Will it further the objectives and policies of the Comprehensive Plan and will it not obstruct the attachment of these policies and objectives? Again, these Courts in other States may serve to guide our future State and Federal decisions. 11/10/2006 6

I. INTRODUCTION (CONT). (C.) (cont). See Minnesota case Mendota Golf LLP vs. City of Mendota Heights 708 NW2d 162 (2006). (Comprehensive Plan in conflict with zoning). 11/10/2006 7

I. INTRODUCTION (CONT). D. This consistency requirement can be found in the 1926 Standard State Zoning Enabling Act, where it was stated that Zoning Regulations shall be made in accordance with a Comprehensive Plan. This meant the Land Use Regulations or actions must be amended or altered to be consistent with the Comprehensive Plan. Wisconsin never required such Comprehensive Plan for such zoning. 11/10/2006 8

I. INTRODUCTION (CONT). E. Wisconsin currently has had this consistency requirement only under its Farmland Preservation law since 1977. No lawsuits to date. (See Wis Stats 91.73(2)). Exclusive Agricultural Zoning Ordinances were to be consistent with the County Agricultural Plan. (See also, TIF Districts - Wis Stats 66.1105, Architectural Conservancy Districts Wis Stats 66.1107 and Business Improvement Districts Wis Stats 66.1109). 11/10/2006 9

I. INTRODUCTION (CONT). F. Wisconsin did not, beyond noted Law, in the past, require that the Comprehensive Plan and Land Use Regulations to be consistent. (See Bell vs. City of Elkhorn 122 Wis2d 558, 364 NW2d 144 (1985)). However, a Municipality in its land use decisions not following the Municipal Comprehensive Plan was strong evidence of Municipal arbitrary action in zoning and other land use decisions. (See Peterson vs. Dane County 136 Wis2d 501, 402 NW2d 376 (1987)). 11/10/2006 10

II. QUESTIONS TO GUIDE ANY CONSISTENCY DETERMINATION. A. Is the Comprehensive Plan sufficiently complete and adequate to allow for a Court determination of consistency? 1. Does the Comprehensive Plan adequately address the nine (9) statutory elements in Wis Stats 66.1001(2)? If not, why not? 11/10/2006 11

II. QUESTIONS TO GUIDE ANY CONSISTENCY DETERMINATION (CONT). (A.) (cont). 2. Are certain of the elements required in the Comprehensive Plan, as enacted, in conflict (e.g. housing element vs. agricultural preservation element)? Which element should be subordinate, if any? 11/10/2006 12

II. QUESTIONS TO GUIDE ANY CONSISTENCY DETERMINATION (CONT). (A.) (cont). 3. Are the policy statements and directives in the Comprehensive Plan mandatory or simply suggestions or recommendations (shall vs. should)? Are the Plans general or specific in their nature? Use of may provides for discretion, while shall establishes greater weight for directive policy. 11/10/2006 13

II. QUESTIONS TO GUIDE ANY CONSISTENCY DETERMINATION (CONT). (A.) (cont). 4. Is the absence of a specific policy in the Comprehensive Plan grounds for a finding of inconsistency? Possibly not, if no specific contradictory policy exists. 5. Is there compatibility or harmony between the proposed land use actions taken and the Comprehensive Plan? Perfect conformity or harmony need not exist. 11/10/2006 14

II. QUESTIONS TO GUIDE ANY CONSISTENCY DETERMINATION (CONT). (A.) (cont). 6. Was the final land use action of the Municipality reasonable when there may be multiple goals or policies in the Comprehensive Plan that might suggest other types of distinct land use actions? 11/10/2006 15

II. QUESTIONS TO GUIDE ANY CONSISTENCY DETERMINATION (CONT). (A.) (cont). 7. When the Comprehensive Plan was finally adopted or amended, why was the appropriate Zoning and other Land Use Ordinances not timely updated to be consistent actions? What about the statutory ten (1) year Comprehensive Plan update requirements in Wis Stats 66.1001(2)? 11/10/2006 16

II. QUESTIONS TO GUIDE ANY CONSISTENCY DETERMINATION (CONT). (A.) (cont). (7.) (cont). Does a proposed land use action, including any rezoning, mean such action should be authorized if consistent with the current Comprehensive Plan? Not necessarily. Any existing zoning or re-zoning must have legitimate public purpose, even if the regulatory action and Comprehensive Plan are consistent. 11/10/2006 17

II. QUESTIONS TO GUIDE ANY CONSISTENCY DETERMINATION (CONT). (A). (cont). 8. How general can the Comprehensive Plan maps be? How are specific parcels in the Comprehensive Plan to be mapped to be consistent with zoning and other land use maps? What data, text, maps and timeline should be in the Comprehensive Plan to provide specific guidelines for the land use actions in certain areas. 11/10/2006 18

II. QUESTIONS TO GUIDE ANY CONSISTENCY DETERMINATION (CONT). (A.) (cont). (8.) (cont). What about reference in Comprehensive Plan to other more specific plans? (e.g. Farmland Preservation, Neighborhood, Managed Forest Plan). Will this reference legally be sufficient? 11/10/2006 19

III. SPECIFIC ACTIONS THAT MUST BE CONSISTENT WITH THE COMPREHENSIVE PLAN UNDER WIS STATS 66.1101(3). A. Specific Actions. 1. Official Maps Wis Stats 62.23 applies to Towns See Wis Stats 82.12 regarding Highway Order into Official Map. 2. Town, City, County or Village Zoning See Wis Stats 60.61/ 60.62, Wis Stats 62.23(7) or Wis Stats 59.69 and Wis Stats 59.692 (shoreland). 11/10/2006 20

III. SPECIFIC ACTIONS THAT MUST BE CONSISTENT WITH THE COMPREHENSIVE PLAN UNDER WIS STATS 66.1101(3) (CONT). (A.) (cont). 3. Town, City, County or Village Subdivision Regulations on land use actions See Wis Stats 236.45 and 236.46. 4. What about any Variances being consistent? Should not the Comprehensive Plan cited purpose or purposes be a major factor in the Board of Appeals granting or not granting a Variance? 11/10/2006 21

III. SPECIFIC ACTIONS THAT MUST BE CONSISTENT WITH THE COMPREHENSIVE PLAN UNDER WIS STATS 66.1101(3) (CONT). B. Questions that may cause concern regarding these specific land use actions after January 1, 2010, with or without a complete Comprehensive Plan. 1. Will a Town need its own Comprehensive Plan consistent with its land use actions to disapprove any proposed County zoning action, where Town land is under County Zoning? (See Wis Stats 59.69(5)(e)(3). Does not apply to approval of conditional uses. 11/10/2006 22

III. SPECIFIC ACTIONS THAT MUST BE CONSISTENT WITH THE COMPREHENSIVE PLAN UNDER WIS STATS 66.1101(3) (CONT). (B.) (cont). 2. Will a Town need its own Comprehensive Plan consistent with its land use actions to have its Town members act on any proposed extraterritorial zoning action, where the Town land is proposed to be under extraterritorial zoning? (See Wis Stats 62.23(7a)). Wis Stats 66.1001(3) does not, with the consistency requirement, list extraterritorial zoning as an action. 11/10/2006 23

III. SPECIFIC ACTIONS THAT MUST BE CONSISTENT WITH THE COMPREHENSIVE PLAN UNDER WIS STATS 66.1101(3) (CONT). (B.) (cont). 3. Will the majority of the Towns in the County need their own Comprehensive Plans consistent with its action to reject adoption or reject amendment of a County Exclusive Agricultural Use Zoning Ordinance? (See Wis Stats 91.73(3)). (See Wis Stats 91.77). Again, Wis Stats 66.1001 does not list Exclusive Agricultural Zoning as an action. 11/10/2006 24

III. SPECIFIC ACTIONS THAT MUST BE CONSISTENT WITH THE COMPREHENSIVE PLAN UNDER WIS STATS 66.1101(3) (CONT). (B.) (cont). 4. Will the Town need its own Comprehensive Plan consistent with its land use actions to petition for an amendment to the County Zoning Ordinance, where the Town land is under County Zoning? (See Wis Stats 59.69(e)(1). 11/10/2006 25

III. SPECIFIC ACTIONS THAT MUST BE CONSISTENT WITH THE COMPREHENSIVE PLAN UNDER WIS STATS 66.1101(3) (CONT). (B.) (cont). 5. Will the Town need its own Comprehensive Plan consistent with its land use actions to enact a Town Construction Site Erosion Control and Storm Water Management Zoning Ordinance? (See Wis Stats 60.627(2)). (See Wis Stats 60.622(5)). (See Wis Stats 60.62 (2) conditions). Again, Wis Stats 66.1001(3) does not list these Ordinances as actions. 11/10/2006 26

III. SPECIFIC ACTIONS THAT MUST BE CONSISTENT WITH THE COMPREHENSIVE PLAN UNDER WIS STATS 66.1101(3) (CONT). (B.) (cont). 6. Will the Town need its own Comprehensive Plan consistent with its land use actions to approve a Subdivision under Wis Stats 236.13? Again, Wis Stats 66.1001(3) does not list the Wis Stats 236.13 approvals as actions. 11/10/2006 27

III. SPECIFIC ACTIONS THAT MUST BE CONSISTENT WITH THE COMPREHENSIVE PLAN UNDER WIS STATS 66.1101(3) (CONT). (B.) (cont). 7. Will the Town need its own Comprehensive Plan consistent with its land use actions to decide to not adopt a revised County Zoning Ordinance? (See Wis Stats 59.69(5)(d). Is the lack of action to adopt the ordinance regulated by the Comprehensive Plan? 11/10/2006 28

IV. OTHER CONSISTENCY ISSUES AFTER JANUARY 1, 2010. A. The conflict between Town and County Comprehensive Plans. 1. How consistent can or will these two (2) unique Comprehensive Plans be initially and then when later one (1) or both of the Comprehensive Plans are amended? 11/10/2006 29

IV. OTHER CONSISTENCY ISSUES AFTER JANUARY 1, 2010 (CONT). (A.) (cont). 2. If the more stringent Land Division or Subdivision Ordinance Regulations must apply between the Town and County, then the more stringent Municipality land use action must be consistent with its Comprehensive Plan. 11/10/2006 30

IV. OTHER CONSISTENCY ISSUES AFTER JANUARY 1, 2010 (CONT). (A.) (cont). 3. The Public Improvement Controls by a County in a Town with a County Land Division Ordinance are limited. The Public Improvement Controls are to be by the Town. (See Rogers Development vs. Rock County Planning and Development Committee 265 Wis2d 214, 666 NW2d 504 (2003). 11/10/2006 31

IV. OTHER CONSISTENCY ISSUES AFTER JANUARY 1, 2010 (CONT). (A.) (cont). 4. However, the County mapping of lands and the location of streets, highways or parkways under Wis Stats 236.46 in the Town must be consistent with the County Comprehensive Plan. However, the Town and County Comprehensive Plans may be inconsistent. 11/10/2006 32

IV. OTHER CONSISTENCY ISSUES AFTER JANUARY 1, 2010 (CONT). (A.) (cont), 5. The Town Land Division Ordinance may override the County Zoning Ordinance regarding lot sizes. (See Town of Sun Prairie vs. Storm 110 Wis2d 58, 319 NW2d 179 (1982)). Again, inconsistent Comprehensive Plans regarding lot sizes may exist between Town and County, but the Town Land Division Ordinance action must be consistent with the Town Comprehensive Plan. 11/10/2006 33

IV. OTHER CONSISTENCY ISSUES AFTER JANUARY 1, 2010 (CONT). B. The conflict between Town and Extraterritorial Plans. 1. In the extraterritorial area, the extraterritorial zoning need not be consistent with any Town, Village, City or County Plan. The Town should have its own Comprehensive Plan to apply to this area. 11/10/2006 34

IV. OTHER CONSISTENCY ISSUES AFTER JANUARY 1, 2010 (CONT). (B.) (cont). 2. In the extraterritorial Town area, if a Town has agreed with a City or Village to adopt extraterritorial zoning, then the Town and the City or the Town and the Village should (but not required) have their Land Use Regulations and actions consistent with both the Town and the City or Village Comprehensive Plan. 11/10/2006 35

IV. OTHER CONSISTENCY ISSUES AFTER JANUARY 1, 2010 (CONT). (B.) (cont). 3. In the extraterritorial Town area, if a City or Village has a Subdivision or Land Division Ordinance and the County and Town have a Subdivision or Land Division Ordinance, the most restrictive Ordinance applies. Thus, the most restrictive Comprehensive Plan is the one that should control under the consistency requirement. 11/10/2006 36

IV. OTHER CONSISTENCY ISSUES AFTER JANUARY 1, 2010 (CONT). (B.) (cont) (3.) (cont). Possibly, an Intergovernmental Agreement between the Town, County and the City or Village in the extraterritorial area may help resolve the conflict and control problems. Also,the City or Village controls will not apply to any needed public improvements in the Town (See Rice vs. Oshkosh 148 Wis2d 78, 435 NW2d 252 (1989)). 11/10/2006 37

IV. OTHER CONSISTENCY ISSUES AFTER JANUARY 1, 2010 (CONT). (B.) (cont). (3.) (cont). Thus, the Subdivision or Land Division Ordinance in the Town will apply and the the Town land use actions related thereto would need to be consistent with only the Town Comprehensive Plan. 11/10/2006 38

IV. OTHER CONSISTENCY ISSUES AFTER JANUARY 1, 2010 (CONT). (B.) (cont). 4. In the extraterritorial Town area, the impact of Wood vs. City of Madison 260 Wis2d 71, 659 NW2d 31 (2005) may allow the City or Village Subdivision or Land Division Ordinance actions to apply and control to the proposed uses in the Town. 11/10/2006 39

IV. OTHER CONSISTENCY ISSUES AFTER JANUARY 1, 2010 (CONT). (B.) (cont). (4.) (cont). The City or Village regulatory authority must be consistent with the City or Village Comprehensive Plan. The City or Village Comprehensive Plan prevails over the Zoning Ordinance. 11/10/2006 40

IV. OTHER CONSISTENCY ISSUES AFTER JANUARY 1, 2010 (CONT). (B.) (cont). 5. In the extraterritorial Town area, the City or Village official map of potential or existing public facilities will apply under Wis Stats 62.23(6)(e) and the map will need to be consistent with the City or Village Comprehensive Plan. 11/10/2006 41

IV. OTHER CONSISTENCY ISSUES AFTER JANUARY 1, 2010 (CONT). (B.) (cont). (5.) (cont). Counties, under Wis Stats 236.46, may, in the extraterritorial area, establish official maps for future platting of lands and locations of streets, highways or parkways. Again, the plat map must be consistent with the County Comprehensive Plan. 11/10/2006 42

IV. OTHER CONSISTENCY ISSUES AFTER JANUARY 1, 2010 (CONT). (B.) (cont). (5.) (cont). Towns with Village Powers can have official maps. Again, such official maps must be consistent with Town Comprehensive Plan. Quare: Does the most restrictive map apply between Towns, Counties, Cities or Villages? What about the Rice vs. Oshkosh case limitations on City, Village or County controls on public streets and improvements in the Town? 11/10/2006 43

IV. OTHER CONSISTENCY ISSUES AFTER JANUARY 1, 2010 (CONT). C. The consistency concerns in addressing and not addressing likely prospective future uses in the Comprehensive Plan. 1. How detailed should the Comprehensive Plan be in its address of acceptable and non-acceptable locally undesirable land use (lulus)? What about specific lulus addressed by Statute? (e.g. nonmetallic mining). (e.g. expansion agricultural facilities). 11/10/2006 44

IV. OTHER CONSISTENCY ISSUES AFTER JANUARY 1, 2010 (CONT). (C.) (cont). (1.) (cont). a. Should the Comprehensive Plan address, but not approve certain lulus for uses in the future? b. Should the Comprehensive Plan suggest timelines for legal consideration of specific lulus in the future? 11/10/2006 45

IV. OTHER CONSISTENCY ISSUES AFTER JANUARY 1, 2010 (CONT). (C.) (cont). 2. How detailed should the Comprehensive Plan be in addressing potential land use conflicts among landowners in the Municipality? (See Wis Stats 66.1001(2)(h)). Should the Town Comprehensive Plan address certain buffer areas or transition areas to limit conflicts? Should timelines be established in Comprehensive Plan? 11/10/2006 46

IV. OTHER CONSISTENCY ISSUES AFTER JANUARY 1, 2010 (CONT). (C.) (cont). 3. How detailed should the Comprehensive Plan be in addressing potential land use conflicts with adjacent Municipalities and the County? (See Wis Stats 66.1001(2)(g)). Should intergovernmental elements address such conflicts? Should intergovernmental contracts be implemented to limit conflicts? 11/10/2006 47

IV. OTHER CONSISTENCY ISSUES AFTER JANUARY 1, 2010 (CONT). (C.) (cont). 4. How detailed, for future implementation of the Comprehensive Plan, should be the Comprehensive Plan, including possible or potential land use amendment actions, such as specific zoning or rezoning that will be likely necessary in the future? How detailed should the implementation element be in the Comprehensive Plan describing these possible or potential land use amendment actions? 11/10/2006 48

IV. OTHER CONSISTENCY ISSUES AFTER JANUARY 1, 2010 (CONT). (C.) (cont). (4.) (cont). a. What specific Zoning, Land Division or Subdivision Ordinances and Official Map Ordinance actions need to be taken to implement the Comprehensive Plan? 11/10/2006 49

IV. OTHER CONSISTENCY ISSUES AFTER JANUARY 1, 2010 (CONT). (C.) (cont). (4.) (cont). b. What other Land Use Regulations (beyond the statutory three (3) consistency ordinance requirements in Wis Stats 6.1001(3)) should be or could be taken to implement the Comprehensive Plan? (e.g. Driveway Ordinance, Public Nuisance Ordinance, Building Code Ordinances, Licensing Ordinance). 11/10/2006 50

IV. OTHER CONSISTENCY ISSUES AFTER JANUARY 1, 2010 (CONT). (C.) (cont). 5. How detailed, for future implementation of the Comprehensive Plan, should the Comprehensive Plan be in addressing potential tax, infrastructure construction and community facility construction actions that will be likely necessary in the future? 11/10/2006 51

IV. OTHER CONSISTENCY ISSUES AFTER JANUARY 1, 2010 (CONT). (C.) (cont). 6. How detailed, for future implementation of the Comprehensive Plan, should the Comprehensive Plan be in addressing the need for economic development, specifically describing the Town s strengths and weaknesses with respect to attracting and retaining business and industry? (See Wis Stats 66.1001(2)(f)). What, if not addressed? 11/10/2006 52

IV. OTHER CONSISTENCY ISSUES AFTER January 1, 2010 (CONT). (C.) (cont). (6.) (cont). Should not the economic development include specifically, for most rural areas, the agricultural, tourism and the forestry impacts? 11/10/2006 53

IV. OTHER CONSISTENCY ISSUES AFTER JANUARY 1, 2010 (CONT). (C.) (cont). 7. How detailed, for future implementation of the Comprehensive Plan, should the Comprehensive Plan be in addressing likely or necessary amended, new or expanded implementation actions, including official maps, land division controls and specific zoning actions? Should not such proposed or probable actions have a timeline? 11/10/2006 54

IV. OTHER CONSISTENCY ISSUES AFTER JANUARY 1, 2010 (CONT). (C.) (cont). (7.) (cont). Again, what if not timely addressed? What about Moratorium Ordinance on change in uses while Comprehensive Plan and possible Land Use Regulation actions are enacted to be consistent? 11/10/2006 55

IV. OTHER CONSISTENCY ISSUES AFTER JANUARY 1, 2010 (CONT). (C.) (cont). (7.) (cont). Specifically, what land use actions need to be adopted or amended to implement the Comprehensive Plan and to create consistency between the Comprehensive Plan and these implementation action tools. 11/10/2006 56

V. POSSIBLE LEGAL ACTIONS AFTER JANUARY 1, 2010. A. Declaratory Judgment action (with injunction) to determine consistency between Municipality Comprehensive Plan and the existing Land Use Regulations. B. Writ of Mandamus to direct the Municipality to reconcile the inconsistent Comprehensive Plan with the Land Use Regulations. 11/10/2006 57

V. POSSIBLE LEGAL ACTIONS AFTER JANUARY 1, 2010 (CONT). C. Writ of Mandamus to direct the Municipality to commence inverse condemnation actions under a Constitutional claim of taking of property without just compensation, with actual damages to be claimed for such taking. D. Certiorari action in Circuit Court to test the validity of the Zoning or other Land Use Ordinances with the Comprehensive Plan from the decision of the Board of Appeals (Board of Adjustment). 11/10/2006 58

V. POSSIBLE LEGAL ACTIONS AFTER JANUARY 1, 2010 (CONT). E. Legal complaint actions challenging procedural actions in enactment and enforcement of either the Land Use Regulations or the Comprehensive Plan, or both. Examples: 1. Violation of Open Meeting Law. 2. Ethical violations. 3. Failure to provide timely due process in the implementation and in the enforcement of the Land Use Regulations. 11/10/2006 59

V. POSSIBLE LEGAL ACTIONS AFTER JANUARY 1, 2010 (CONT). (E.) (cont). 4. Failure to follow statutory requirement in the enactment of the Comprehensive Plan Ordinance or Land Use Regulations, or both, including public hearing and adoption of ordinance. 11/10/2006 60