Registration Deadline: September 27th! You only have a few days left to register for our 2019 conference at the Lismore Hotel in Eau Claire. Our theme is Innovation – Planning on the Edge. This year, sessions focus on practices that break the mold. Planners will tell us how they are innovating and experimenting. We know that innovation happens everywhere, not just in big cities. We found those stories in towns big and small.
The Thursday Night Reception and Awards Program at Eau Claire’s fabulous new Pablo Center, including food, drinks, fellowship and a participatory public art project created specifically for/by our event.
We’re serious about our theme: “Innovation: Planning on the Edge”. We’ve asked our speakers to show us new things, and to acknowledge their stumbles and lessons in innovation.
Bonus #1 – The first week of October should be close to peak fall foliage in Eau Claire County
Bonus #2 – Learn more about the APA-WI Equity and Diversity Initiative
See you there!
Wisconsin Planners Prepare their Housing Affordability Reports
By Forrest Elliott - APA-WI Student Editor
University of Wisconsin - Milwaukee
In April of 2018, Governor Scott Walker signed into law 2017 Wis. Act 243. Largely due to support from the Wisconsin Realtors and the Wisconsin Builders Associations, the bill is colloquially known as the “Developer’s Bill.”For municipalities and planners, it had widespread implications, changing a slew of laws regulating development. Among the changes was an increase in potential relocation benefits associated with condemnations, various limitations to the use and levying of impact fees, and the prohibition of inclusionary zoning and weekend work limitations.
Tucked within the larger bill, and less discussed at the time, was a requirement that municipalities with populations over 10,000 publish a “housing affordability” and “new housing fee” report by the end of 2019, each report to be updated annually. As the deadline approaches, municipalities and regional planning commissions across the state are beginning to assemble these reports. This article explores their experiences.
Wisconsin State Statute 66.10013details the requirements of the housing affordability report: communities with populations over 10,000 are to “prepare a report of the municipality's implementation of the housing element of the municipality's comprehensive plan.” The statute comes in at just under 300 words. Within those 300 words, however, are some mandates that have planning staffs around the state looking for outside assistance.
“There’s quite a bit of data that needs to be compiled,” said Ben McKay, Deputy Director of the Southeastern Wisconsin Regional Planning Commission (SEWRPC). According to McKay, SEWRPC staff knew that the reports might be daunting to some of the smaller communities in his region. Consequently, SEWRPC offered to assistmember municipalities in the production of the housing affordability reports.
“In March of 2013, the commission adopted a regional housing plan, so we saw assisting communities with doing the analysis in the housing affordability reports as an opportunity to look at the regional housing plan and potentially provide some information to communities about how they could implement recommendations,” said McKay.
Image Courtesy of SEWRPC, 2013.
The first two sections are the most straightforward, requiring municipalities to include the number of subdivision/condominium plats, certified survey maps, and building permit applications approved in the prior year, in addition to the number of new residential dwelling units proposed. It is the analysis sections that have some practitioners scratching their heads.
“Nobody has a clear vision of what kind of reports they want produced,” said Madison Smith, Environmental Planner with the Bay-Lake Regional Planning Commission (BLRPC). Her organization has also decided to offer a servicesimilar tothe one rolled out by SEWRPC. “You’re going to see some municipalities going all out while others without the finances or labor are going to be trying just to meet the basic requirements,” said Smith.
As of mid-September, BLRPC had begun the process of working with three municipalities in their district, all to varying degrees. “From an RPC perspective, this is a real opportunity to assist communities that are overworked or understaffed,” said Smith. The City of Marinette, whose population is 10,600, has contracted with BLRPC to assemble the entirety of the report. Other municipalities in the BLRPC region over 10,000 may have some or most of the data readily available, and will be potentially working alongside BLRPC staff in an arrangement that Smith calls “about 50-50.”
Copyright 2016 Carol Hu from the American Planning Association’s Image Library.
Smith says the reports present a great opportunity for the municipalities and RPCs to take stock of the housing in their district, but that there are sections that pose a challenge. Specifically, section 2b calls for a list of undeveloped parcels that are zoned for residential development, while 2c requires another list of undeveloped parcels that are “suitable for, but not zoned for, residential development.”
McKay believes that assembling the latter list may be one of the more confusing aspects of the report for planners. Though recommendations from comprehensive plans may act as guides, municipalities will have to make determinations over how to define ‘suitable.’ Additionally, many comprehensive plans are increasingly dated.
“This is a question we’ve been starting to go back and forth on,” said Kate Madison, Senior Planner with the City of Milwaukee. She has been leading staff efforts on the housing affordability report and explains that Milwaukee’s zoning code determines their approach to the section. “In the City of Milwaukee, the zoning code is fairly broad in that you can basically put housing in many industrial districts,” said Madison.
According to Madison, this isn’t the only reason that Milwaukee’s experience assembling the report will be different from other communities. “We are very much infill at this point,” she said. “Most municipalities in state of Wisconsin have land for subdividing. We don’t.”
Copyright 2018 J. Vincent Hustead, AICP, from the American Planning Association’s Image Library.
Subdivision regulation is the focus of section 2e, which requires an analysis of residential development regulations that “shall calculate the financial impact that each regulation has on the cost of each new subdivision.” More specifically, municipalities must “identify ways in which the municipality can modify its construction and development regulations, lot sizes, approval processes, and related fees” to both “meet existing and forecasted housing demand” and “reduce the time and cost necessary to approve and develop a new residential subdivision in the municipality by 20 percent.”
According to McKay, this section will pose another major challenge. McKay thinks that planners and administrators may decide to take this requirement in a few different directions, but looking at minimum lot sizes to cut down on costs and altering their review processes to reduce time will be popular tactics. “20% may be difficult to demonstrate,” McKaynotes.
McKay says he also has not been able to get clarity from the state about who exactly is reviewing the reports and whether the law anticipates a mechanism for punishing municipalities that fail to post them by the end of the year. Though the statute says that municipalities cannot charge a fee that is not included in their posted fee report, no such stipulation is in the housing affordability report.
Confusion with bill the extends beyond the housing reports. From its inception, critics, including the Wisconsin League of Municipalities, worried it would “preempt local powers and impose unfunded mandates on cities and villages.” According to Chapter VP for Legislative Affairs Drew Pennington, APA-WI opposed the bill on similar grounds. “Our position was, and still is, that unfunded mandates of this scale require funding, just like the Comp Plan law [that] was funded after adoption,” said Pennington. “I would characterize our current position as ‘fix or fund’ the housing affordability report requirements.”
Copyright 2016 Kelly Wilson (CC BY-NC 4.0), from the American Planning Association’s Image Library.
“What these reports will ultimately do,” says McKay, “is that they will make information about developable land, a lot of that being in suburban or outlying communities, more readily available to developers. It helps them identify areas that are ready to be developed without having to do some of the investigation they may have needed to do in the past.”
Nevertheless, he sees this as an opportunity for communities to reflect on their ordinances in a way that might be beneficial in the long run. “By going through this exercise, I think it could have a positive outcome in doing comp plan updates,” said McKay.
Madison Smith hopes that assembling all this related data into one place that is “usable, condensed, and simplified” will allow municipalities to govern better. Kate Madison sees a similar silver lining: “The big picture on this—I’m hoping—is that it gives an opportunity to put all this information in one area,” she said, “and it will give us a better idea of what has been happening over the last few years and where we need to go.”
In addition to the statutory requirements, McKay and SEWRPC are offering to conduct an analysis of the municipality’s residential development regulations as they relate to the development of multifamily housing. “We didn’t just want to look and analyze the cost of developing new single-family housing, which is largely what that subdivision analysis would achieve. We also wanted to have a similar analysis that would apply to multi-family housing even though it wasn’t called out in the state statute,” said McKay.
Smith thinks that as BLRPC produces a model for how these reports will look, it will become a new service they can market to their member communities. “At the time it might be burdensome, but when there is a clearer vision of what’s expected and you’re really just updating something annually, I think it will be really beneficial,” said Smith. “Like anything in planning, you don’t want to do it so it will sit on a bookshelf and collect cobwebs. You want to do it to progress something.” Disclaimer: The author is a Graduate Planning Intern at the City of Milwaukee
Events and CM Credits
Are you looking for CM credits this fall? Remember that your greatest resource is always our Events Page on the Chapter Website. We try to keep the page updated with fantastic and informative planning-related events from around the state. An example of a great upcoming event on our page:
October 29th -Design Coalition Institute: 'Missing Middle' of Housing" Webinar: This full day, live, peer-to-peer, webinar will include presentations, case studies, panel discussions, and moderated Q&A sessions with professionals who have participated in successful code update initiatives, and case studies of completed "missing middle" housing projects by award-winning design/build/development professionals.
Visiting Schools in Your Community A message from Chapter President Jason Valerius
Now that the school year is underway, please consider offering your time and talents to share what you do with children in your community. Many kids (well, many people!) don’t know much about what we do to guide the appearance, function and health of our communities. If you have the opportunity, especially if you have kids of your own in school now, consider volunteering to make a presentation in the classroom (pro tip – everyone loves maps of places they know!) or to lead a field trip around the neighborhood.
If you happen to live in Dane County, there is a program waiting for you: Terrace Town! Monona Terrace Community and Convention Center is seeking volunteer Classroom Mentors for their biennial “Terrace Town,” a program teaching architecture and city planning to elementary students. Mentors make several visits to Dane County classrooms in the months of November through January, with registration in September. Please click here to learn more.
Visit the Law Updates page any time to access the current and past issues of the Case Law Update.
United States Supreme Court
Cross Memorial Did Not Violate 1st Amendment’s Establishment Clause
In American Legion v. American Humanist Assn., the United States Supreme Court addressed the issue of whether the Bladensburg Peace Cross violated the Establishment Clause of the First Amendment to the United States Constitution. A committee of local residents first proposed the memorial in 1918 as a memorial to 49 soldiers from Prince George’s County, Maryland, who died in World War I. The local American Legion completed construction of the monument in 1925 after the committee ran out of funds. The cross is located on publically owned lands and public funds are used to maintain the monument.
The First Amendment includes the clause that “Congress shall make no law respecting an establishment of religion.” This is known as the Establishment Clause. Until 1947, the Clause only applied to the Federal Government. Since that time the Clause has applied to state and local governments but the U.S. Supreme Court has struggled to pin down the meaning of “a law respecting the establishment of religion.” The American Humanist Association sued the American Legion and the Maryland-National Capital Park and Planning Commission claiming the sight of the memorial on public land offended them and that the Cross violated the Establishment Clause.
In a 7-2 decision, the United States Supreme Court concluded that the Cross did not violate the Establishment Clause. The majority opinion, written by Justice Alito noted the shortcomings of the Establishment Clause test articulated by the Court in Lemon v. Kurtzman, 403 U.S. 602 (1971). Under the Lemon test, a court must ask whether a challenged government action (1) has a secular purpose; (2) has a “principal or primary effect” that “neither advances nor inhibits religion”; and (3) does not foster “an excessive government entanglement with religion.” In subsequent cases, the Supreme Court expressly declined to apply the test or ignored it. Alito counsels against applying the Lemon test in this case and states the Court should apply a presumption of constitutionality for longstanding monuments, symbols, and practices.
Alito identifies four considerations for when to apply the presumption of constitutionality. First, it applies to monuments, symbols, or practices that were established long ago and identifying the original purpose may be especially difficult. Second, as time goes by, the purposes associated with an established monument, symbol, or practice often multiply. Alito cites the example of monuments depicting the Ten Commandments on public buildings that have historical significance as one of the foundations of our legal system. Third, the message conveyed may change over time. Here Alito cites the recent tragic fire at Notre Dame in Paris. Notre Dame is a place of worship but it is also a symbol of national importance. Alito also mentions cities in the United States that bear religions names like Las Cruces, New Mexico; Corpus Christi, Texas; and Bethlehem, Pennsylvania. And fourth, when the passage of time imbues a religiously expressive monument, symbol, or practice with familiarity and historical significance, removing it may not appear neutral, especially to the local community for which it has taken on particular meaning.
Alito acknowledges these four considerations that give rise to a strong presumption of constitutionality for retaining established monument, symbols, and practices do not apply to erecting or adopting new ones.
Court Overrules State-Litigation Requirement in Takings Cases
The Takings Clause of the Fifth Amendment to the United States Constitution allows private property to be taken upon the payment of just compensation. In Knick v. Township of Scott, Pennsylvania, the United States Supreme Court overruled the requirement from the Court’s 1985 decision in Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, that held a property owner alleging a taking claim could not bring the claim in federal court until a state court had denied the taking claim for just compensation under state law. The claim would not be “ripe” for federal court review until after the property owner had exhausted state court remedies to secure just compensation. Compounding the issue was the U.S. Supreme Court’s decision in San Remo Hotel, L.P. v. City and County of San Francisco, 545 U.S. 323 (2005), in which the Supreme Court held that a state court’s resolution of a claim for just compensation under state law precluded any subsequent federal lawsuit. As noted by the Court in Knick, this created a Catch-22. The property owner cannot go to federal court without going to state court first; but if they go to state court and lose, the claim will be barred in federal court.
The Township of Scott, Pennsylvania, adopted an ordinance requiring that all cemeteries be kept open and accessible to the general public during daylight hours. Rose Mary Knick owns 90 acres in the Township that includes a small graveyard where the ancestors of Knick’s neighbors are allegedly buried. The Township cited Knick for violating the ordinance and she sued the Township in state court. In response to the lawsuit, the Township agreed to stay enforcement of the ordinance during the court proceedings. The court declined to rule on Knick’s motion for injunctive relief because without an ongoing enforcement action she could not demonstrate irreparable harm. Knick then filed a lawsuit in federal district court alleging a taking but the federal court dismissed the takings claim on the basis of the Williamson County case. The federal Third Circuit Court of Appeals affirmed the district court’s decision applying the Williamson County case. The U.S. Supreme Court granted the petition to hear the case so it could reconsider the holding of Williamson County.
In a 5-4 decision, the U.S. Supreme Court overruled the state-litigation requirement of the Williamson County case. Justice Roberts wrote the Court’s opinion. According to Roberts, takings claims against local government should be handled the same as other claims under the Bill of Rights. Claims that local governments violated the First Amendment, for example, are not required to go to state court first.
Roberts acknowledges that the holding does not expose governments to new liability; it only allows takings claims against local government to begin in federal court rather than state court. As a result, we will likely see more takings cases brought in federal court that in the past would have started in state court.
Roberts also states that the decision does not mean that government regulation cannot proceed in the absence of contemporaneous compensation. The Takings Clause does not bar government from acting, it requires compensation. The focus of the lawsuit is on the availability of post-taking compensation.
Wisconsin Supreme Court Opinions
Village Immune From Negligence Suit For Wastewater Back-up
In Pinter v. Village of Stetsonville, 2019 WI 74, the Wisconsin Supreme Court held that the Village of Stetsonville in Taylor County was immune from suit for negligence under section 893.80(4) of the Wisconsin Statutes. The Village owns and operates a wastewater disposal system that serves approximately 500 people. The system has two lift stations and is subject to stormwater infiltration. The main lift station has a pit with a ladder that extends down the length of the pit. Village employees used the rungs on the ladder as a guide for determining when to bypass the wastewater disposal system during storm events. The oral “rule of thumb” was to bypass when the water reached the fourth rung. Wastewater began to back-up into the Pinters’ basement during a storm event. The water had reached the second rung of the ladder before the Village began to bypass the system.
Pinter subsequently sued the Village for negligence and private nuisance. The Village claimed it was immune from the lawsuit. Pinter contended that the “rule of thumb” to pump when water reached the fourth rung created a ministerial duty to act thereby falling within one of the exemptions under Wisconsin’s governmental immunity law. Under Wisconsin law, governmental immunity applies to discretionary actions, not ministerial actions. The Wisconsin Supreme Court, in a 4-3 decision, held that the rule of thumb did not create a ministerial action. Rather, the decision regarding whether to bypass was discretionary so the Village was immune from suit. The majority opinion was written by Justice Ann Walsh Bradley.
Striking Insurance Conditions From Permit Was Proper
Enbridge Energy Co., Inc., v. Dane County, 2019 WI 78, involved a conditional use permit (CUP) issued by Dane County to expand a pipeline pump station for an interstate pipeline operated by Enbridge Energy in Dane County. The County issued a CUP for the project that included two conditions requiring Enbridge to procure additional insurance prior to expanding the pump station. The Wisconsin Legislature then passed 2015 Wisconsin Act 55 that prohibits counties from requiring an interstate pipeline operator to obtain additional insurance when the operating company carries comprehensive general liability insurance with coverage for “sudden and accidental” pollution liability. Although Dane County recognized the impact of Act 55 on the enforceability of the conditions, it nevertheless issued the CUP with the conditions. Enbridge then filed suit. The circuit court struck the insurance conditions but the Court of Appeals reversed. The Wisconsin Supreme Court accepted review of the case. In a 4-1 decision (Justices Abrahamson and Dallet did not participate), the Wisconsin Supreme Court reversed the decision of the Court of Appeals. The majority opinion was written by Justice Rebecca Bradley concluded that Act 55 rendered the insurance conditions unenforceable and the proper remedy was to strike the conditions from the CUP.
Wisconsin Court of Appeals Opinions
Denial of Cell Tower Permit Upheld
Eco-Site, LLC, v. Town of Cedarburg, involved a challenge to the denial of a conditional use permit for a wireless communication tower proposed for a rural area in the Town of Cedarburg. T-Mobile sought to move their cellular equipment from the Village of Grafton water tower to a tower to be built by Eco-Site on a site about 1300 feet away in the Town of Cedarburg. The site was zoned as A-1 Agricultural District under the Town’s zoning ordinance. Telecommunication towers are allowed as a conditional use in the District. The proposed tower site is surrounded by land zoned as residential.
The Town Board ultimately voted unanimously to deny the application for failure to meet three of six standards in the Town’s zoning ordinance and a requirement under Wisconsin’s mobile tower siting regulations found in Wis. Stat. § 66.0404. The reasons given by the Town were: “(1) the considerable and foreseeable loss in value to the surrounding properties particularly given the rural and rustic nature of the property, and the loss of property sales in the area as a result of the prospect of the tower; (2) the incompatibility of the 120-foot monopole with the adjacent land, which the Town is struggling to keep rural and rustic; (3) the ‘dropping a metal tower in the middle of’ a ‘beautiful and scenic area’ would be detrimental the public health, safety, and general welfare; and (4) Eco-Site’s failure to explain why its ‘search ring’ for other locations was so small, therefore failing to provide an application that was complete under Wis. Stat. § 66.0404(2)(b)6.”
Eco-Site sued the Town over the denial but the circuit court upheld the Town’s decision. Eco-Site then appealed to the Wisconsin Court of Appeals. Eco-Site argued that the Town misapplied its zoning ordinances in determining that the tower would be incompatible with the adjacent land and that Wis. Stat. § 66.0404(4)(g) prohibits local governments from denying mobile telecommunication towers “solely on aesthetic concerns.” The Court of Appeals noted that even though the tower was allowed as a conditional use in the A-1 district, “there is no presumption that a ‘conditional use is ipso facto consistent with the public interest or that a conditional use is a use as of right at a particular site within an area zoned to permit that conditional use.’” According to the Court, testimony at the public hearings supported the Town’s conclusion the tower would be incompatible with adjacent land. Residents presented sufficient evidence of the “substantial diminishment” in the value of adjacent properties if the tower is built. One resident cited two studies showing loss in property values near towers and a developer stated he lost a potential sale due to the tower proposal.
While the stated reasons for Town’s decision included comments on the aesthetic impact, the Court of Appeals distinguished these comments from the economic impact of decreased property values on adjacent property values. The Court noted that the language in the mobile tower siting Statutes prohibit basing a denial of a proposed tower “solely” on aesthetic concerns. Since the Town also based its denial on the economic impacts of the tower, the Town did not base its decision “solely” on aesthetic concerns.
The Court of Appeals determined that substantial evidence supported the Town’s decision to deny the permit for the tower. The Court noted that property owners could give an opinion as to the value of property they own. The Court further noted that substantial evidence is evidence where reasonable persons could decide as the Town did. It is less than a preponderance of the evidence but more that a mere scintilla of evidence and more than conjecture and speculation. Finally, the Court acknowledged that reviewing courts generally defer to a Town’s weighing of the evidence in the matter.
The case is recommended for publication in the official reports.
Enforcement of County Uniform Addressing System Ordinance Upheld
Vilas County v. Bowler involved an action brought by Vilas County to enforce its ordinance establishing a uniform addressing system in the unincorporated areas of the County. The Bowlers owned a resort consisting of their residence and 9 cabins available for short-term rental. In 2008, Vilas County adopted a Uniform Addressing System Ordinance in accordance with Wis. Stat. § 59.54(4). The Ordinance required that all structures for human habitation shall be assigned a uniform addressing number and that where more than one principal structure exists, each structure shall be assigned an address. In 2015 the County informed the Bowers that they had to name the private road located on their property and address numbers would be assigned to the 10 structures on their property. The Bowers objected and refused to allow the County with access to their property. The County initiated this enforcement action. The circuit court concluded that the rental structures could be considered “residences” so it was proper to provide addresses for those structures. The Bowlers appealed to the Wisconsin Court of Appeals and the Court affirmed the County’s actions. The Court of Appeals concluded that the Bowlers’ residence and each of the 9 rental units is a “principal structure” under the Ordinance so naming the private road and providing addresses for each cabin was appropriate. The Court noted that the term “residence” included lodging structures for short-term rental.
The case is recommended for publication in the official reports.
Emails Need to Be Provided in Electronic Form Under Open Records Request
In Lueders v. Krug, the Wisconsin Court of Appeals upheld a circuit court order requiring State Representative Scott Krug to produce electronic copies of emails Lueders sought through an open records request. Krug provided paper copies of the emails but declined to provide them in electronic form. The Court concluded that because the electronic format includes metadata that is not available with paper copies, the paper copies do not contain the same information as the electronic format. To comply with the Wisconsin Open Records law it was appropriate to provide the emails in electronic format.
The case is recommended for publication in the official reports.
Granting of CUP Upheld
Stop the Ongoing Mine Permit v. Town of Ashford Board of Appeals involved a challenge by a citizens group (STOMP) to a conditional use permit (CUP) for a sand mine in the Town of Ashford in Fond du Lac County. While the permit was issued prior to the effective date of 2017 Wis. Act 67 (Wisconsin’s new conditional use permit law), the Court of Appeals addressed the application of the new law and held the Town’s granting of the CUP was proper.
STOMP claimed the evidence in support of granting the permit was based on “pure opinion” and cited the language in Act 67 that defines substantial evidence as “facts and information, other than merely personal preferences or speculation.” The Court of Appeals cites the dictionary definition of “merely” (meaning “only as specified and nothing more” or “simply”) and concludes that based on the Legislature’s use of that term in conjunction with the phrase “other than,” the Legislature did not intend to prohibit the use of personal preference, speculation, or personal knowledge completely. Rather, the Legislature meant to curb the use of that information as the only support for the CUP. In this case the Court of Appeals found other sufficient evidence in the record to support the decision to issue the CUP.
The case is notrecommended for publication in the official reports.