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Baraboo plans to strengthen zoning code

August 3, 2018

Responding to a change in state law and a challenge from a local business, Baraboo is looking to revamp its zoning code by prohibiting unwanted activity along the riverfront and South Boulevard.

Last year the Legislature enacted limits on municipalities’ ability to restrict activity on private property. The change shifted the burden from permit applicants to municipalities.

It had a local impact last month when the Baraboo Common Council, on advice from the city attorney, reversed a ruling from its Plan Commission and granted Devine Custom Truck & Auto Repair a permit to sell used cars on South Boulevard.

Concerned about their weakened control, Baraboo leaders are discussing strategies for ensuring certain key districts – the riverfront and South Boulevard, a main entry point to the city – aren’t overrun with unwanted property uses.

“It certainly appears the Legislature has tied our hands to some degree,” City Engineer Tom Pinion told the Plan Commission on Tuesday.

One solution would be to restrict certain types of uses altogether, rather than allowing them by permit. State law now requires municipalities to provide “substantial evidence” when placing conditions on a proposed land use, but it doesn’t stop communities from barring specific unwanted activities entirely.

“That would be the fastest way to get it done,” said Commissioner Phil Wedekind.

Pinion provided the Plan Commission with a list of land uses that could be prohibited in the zoning code governing the riverfront and South Boulevard. It included blacksmith shops, photographic studios using chemicals and other operations that might create waste issues.

The commission, which handles zoning and conditional use permits for the city, agreed to review the list and take up the matter at its next meeting Aug. 21. “It does seem to me time is of the essence,” said Commissioner Patrick Liston. “We’ve got a meeting in three weeks. I’d like to take a look at this.”

The city previously had broad latitude in evaluating conditional use permit requests. But under current state law, any requirements or conditions imposed must “be related to the purpose of the ordinance and be based on substantial evidence,” where “substantial evidence” means “facts and information, other than merely personal preferences or speculation.” Requirements or conditions must be “reasonable and, to the extent practicable, measurable.”

Current city code doesn’t specify any requirements or conditions that must be met by an applicant seeking a permit. Given the change to state law, and the fact that Baraboo’s zoning code hasn’t undergone an overhaul in 12 years, city leaders plan to rewrite their rules. Any zoning change would get a public hearing and would require Common Council approval.

“It’s a dated zoning code,” Pinion said.

Daniel Olson addressed the issue in the League of Wisconsin Municipalities newsletter earlier this year, when he served as that organization’s assistant legal counsel. He recently was hired as Sauk County’s corporation counsel.

Olson wrote the change to state law was promoted by developers but labeled by supporters as a homeowner’s bill of rights. Because the impact of a proposed land use varies on its location, flexibility is paramount to communities in evaluating permit requests. The Legislature greatly restricted that flexibility last year.

“Drafting an ordinance with reasonable requirements to govern the likely as well as all possible contingencies relating to a conditional use will be a very difficult task,” Olson wrote.

One potential response, he said, is for municipalities to restrict unwanted uses across the board. Cities and villages aren’t required to allow conditional uses.

“With the new laws, the Legislature eliminated much of the prior legal authority cities and villages used to accommodate conditional uses while protecting property interests of adjoining landowners, the stability of neighborhoods, and the well-being of the whole community,” Olson wrote.

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