Three petitions seek to amend zoning ordinance
By Robert Cloud
A proposed change to Waupaca County’s zoning ordinance would allow the county to issue conditional use permits for offsite commercial parking on any parcel, anywhere.
That’s how opponents view the proposed ordinance amendments.
They have taken unprecedented action by petitioning the county and proposing their own amendments.
The Waupaca County Planning and Zoning Committee will consider all three petitions to amend the ordinance at a public hearing set for 9:30 a.m. Thursday, May 5, at the courthouse in Waupaca.
All three petitions focus on how the county regulates offsite commercial parking.
In addition to the amendments proposed by the Waupaca County Zoning Office, the other two petitioners are the town of Dayton and two homeowners on the Chain O’ Lakes, Lorraine Koeper and Sharon Peterson.
Proposed parking lot sparks opposition
Koeper and Peterson live on Pleasant Park Lane in the town of Farmington, near a wooded, four-acre parcel where the Wheelhouse Restaurant cut down trees to build an offsite parking lot in September 2015.
In a Sept. 18, 2015, letter to Jeff Maiman, owner of the Wheelhouse, Waupaca County Planning and Zoning Director Ryan Brown indicated that his “project requires no authorization via the Waupaca County Planning and Zoning Office or administrative Committee’s permitting or rezone process in order to proceed.”
In the letter, Brown says the ordinance “does not clearly and unambiguously prohibit your intended project to be completed on the parcel, nor does it clearly indicate a permit is necessary for the intended project.”
For more than three months prior to Maiman removing the trees, Koeper and her attorney had been communicating with Brown regarding the parking lot.
“The use of residential property as a parking lot for a separate commercial business property is not listed as a permitted use for residential property and, therefore, that use would require a conditional use permit,” Koeper said in a June 17 email to Brown.
She asked that the Wheelhouse’s proposal go through the normal approval process for a conditional use permit and that there be a public hearing.
Brown responded by noting that the county’s ordinance “gives our department necessary latitude to apply some subjectivity where specific regulations do not exist,”
Work on the parking lot was halted on Dec. 22, 2015, after Brown sent a letter to Maiman, indicating that the county had retained outside counsel to assist in interpreting the ordinance. The outside counsel recommended against allowing the lot.
“While the zoning ordinance does not outright prohibit the proposed employee parking lot, the lot cannot be permitted as a matter of right,” Brown said in his letter.
The letter concludes by noting, “The Planning and Zoning Office is in the process of proposing amendments to the existing zoning ordinance, which would make uses such as you have proposed subject to a conditional use permit.”
Brown said the county reviews its zoning ordinance every year and makes amendments to resolve issues his office encountered during the previous building season.
Nearly eight pages of amendments to the zoning ordinance have been proposed. Changes include the creation of conservancy districts, adjusting side setbacks from 20 to 15 feet, redefining the height of a structure and not requiring permits to build hunting blinds under 32 square feet.
Opponents of the amendments related to offsite parking have a different view.
“It turns out that if the zoning director doesn’t like an outcome, he just changes the rules,” according to Koeper in a letter she sent in April to town officials throughout Waupaca County. “And that’s what he did when his office proposed an amendment to the zoning ordinance in January that would conditionally allow offsite commercial parking on any property in the county without regard to its zoning or how far away it might be from the property needing the parking.”
Permitted vs. conditional uses
On Wednesday, April 27, Andrew Phillips, the outside attorney advising the county, spoke to town officials and interested parties about the three petitions for amending the zoning ordinance.
For property owners to understand the countywide ramifications of these different proposals, it helps to know how zoning works.
What owners are allowed to do on their property, how they may use their land generally falls into one of two categories: permitted or conditional.
Whether or not a specific use – such as a single-family home or an apartment complex, a marina or a gas station – is permitted or conditional depends on the zoning district where the property is located.
For example, a tavern is classified as “Indoor Commercial Entertainment.” This land use is permitted in zoning districts identified as Rural Commercial-Neighborhood or Rural Commercial-General. That means a conditional land use permit will not be necessary because the use is automatically permitted, although other liquor licenses and building permits will be required.
On the other hand, opening a restaurant in a district zoned Hamlet means a property owner must obtain a conditional use permit from the county Planning and Zoning Committee.
Obtaining a conditional use permit requires documentation of what an owner plans to do on the property, notification of neighbors and a public hearing. The committee has the authority to grant or deny a conditional use permit.
The Waupaca County Zoning Ordinance includes a grid that shows defined land uses in the left column and zoning districts in the top row.
Using the grid, people can determine if a particular land use, say a retail store, is permitted or conditional in the zoning district where their property is located. If the use is permitted in that zone, there is a P in the appropriate box. If the use is conditional, there is a C.
Not all uses are marked as P or C in every box. Many of the boxes in the grid are blank, which leaves room for interpretation by the zoning director and the zoning committee.
The existing Waupaca County Zoning Ordinance, Section 6.01, reads: “Land uses that are not specifically listed are not necessarily excluded from locating within a given Zoning District.”
The zoning office proposes changing Section 6.01 to read: “Any use not identified as Permitted (P) or Conditional (C) within a Zoning District is prohibited.”
Zoning also proposes major changes to the land use/zoning district grid that directly impacts the offsite parking issue.
The existing grid does not define offsite parking as a land use. The new grid includes “Offsite Commerical Parking” as a defined land use. The new grid also makes offsite parking a conditional use in all 13 zoning districts except the newly created Conservancy District.
Three proposals
While the county’s proposed amendment sets no specific restrictions on offsite commercial parking other than requiring a conditional use permit, the other two proposals do set restrictions.
The Koeper/Peterson amendment would allow offsite parking in all 13 zoning districts, but it also requires that any offsite parking be located within the same zoning district as the property being served. If an apartment complex in a district zoned Hamlet wants to build offsite parking, the site must be in the same zoning district.
The Koeper/Peterson amendment also requires that the offsite parking be located within 500 feet of the property being served.
Dayton’s proposed amendment excludes offsite parking from the Rural Residential and Sewered Residential zoning districts.
Dayton proposes the same wording as the zoning office to prohibit any use not identified as permitted or conditional. Therefore, conditional use permits for offsite parking would be prohibited in those two districts.
The town of Dayton also requires that offsite parking be within the same zoning district and within 500 feet of the property being served.
Interpreting the ordinance
The zoning office has proposed creating a new Section 14.08 in the ordinance. Under this amendment, any person may submit a request for an interpretation of the ordinance. The request must be in writing and the zoning director or designee must consult with the county’s corporation counsel and provide a written response within 30 days.
Dayton modifies the zoning office’s proposed amendment to also require that the written interpretation be presented to the Planning and Zoning Committee for approval. If the interpretation is approved, then all property owners within 300 feet of the parcel involved in the interpretation must be notified by mail.
Keoper and Peterson do not address this issue.
Amendment approval process
Phillips explained to those present the process for amending the zoning ordinance.
Although it is a Waupaca County ordinance, the towns that are under the county’s zoning authority have veto power over any proposed amendment.
After the May 5 public hearing, the county Planning and Zoning Committee will deliberate and determine which proposed amendments they will recommend.
They can recommend a single proposal or they can rewrite the zoning office’s proposal to reflect concerns addressed by the town of Dayton and Koeper/Peterson proposals.
The committee’s recommendation will be sent to town officials.
Of 22 towns in Waupaca County, 19 are under county zoning authority.
If 10 of those town boards vote against the recommended amendments, the zoning committee has to rewrite it, hold another public hearing and seek approval again.
If the majority of towns do not go on record as opposing the amendment, it will go to the Waupaca County Board for final approval.
The board has the authority to make further changes to, even vote down the recommended amendment. If the board’s changes are significant enough, the amendment will require another public hearing before final approval.