Smart growth challenges local governments

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By Paul Snyder

The possibility of a lawsuit against Clark County hangs over Steve Kunze’s head every time he grants a development permit.

But Kunze, the county’s administrator in the Department of Planning, Zoning, Surveying and Land Information, said he will not stop issuing permits or doing business the way he always has.

Clark County missed the state’s Jan. 1 deadline to have an approved smart growth, or comprehensive, plan. The plans use community-specific information to set a planning course in such areas as transportation, housing, land use and economic development.

“So let’s say some developer comes in here, wants to buy 40 acres and subdivide the land into 1-acre lots,” Kunze said. “I say no because our county ordinance requires a 2 1/2-acre lot minimum. What stops him from saying, ‘That’s not consistent with a comprehensive plan, and, hey, you don’t even have a comprehensive plan to back that up’?”

Brad Ziegler, president of Hartland-based Della Properties LLC, said he has not yet proposed a project in a community without a smart growth plan. He did not say he would sue if a local government lacking such a plan rejected his development, but he said it would raise issues.

“I’d certainly ask a lot more questions if I knew they didn’t have a plan in place,” he said.

State lawmakers in 1999 enacted a law requiring Wisconsin counties, municipalities and towns by Jan. 1, 2010, adopt smart growth plans. The plans are required if local governments have ordinances relating to zoning and subdivision development.

But not all local governments reached that deadline, prompting state Rep. Mary Hubler, D-Rice Lake, and state Sen. Pat Kreitlow, D-Chippewa Falls, to introduce identical bills in the Assembly and Senate that would clarify the law and extend the adoption deadline to Jan. 1, 2012, for governments still trying to finish their plans.

Neither Kreitlow nor Hubler was available for comment.

Still, the problem in Clark County is not that planners dallied. Kunze said political pressure suspended adoption.

“We finished it in 2006,” he said. “But there were a lot of municipalities in the county that thought the whole thing was a power grab at the state level or that the county would be usurping their power.”

It’s difficult to fault governments that failed to adopt a comprehensive plan by Jan. 1 because of political pressure, said Todd Violante, Dane County’s director of planning and development. Dane County finished and adopted its smart growth plan in 2007.

But it’s easier to blame governments who simply ignored the deadline, Violante said. “They had ample lead time to put these things together, and everybody’s known about it for many years.”

Pat Stevens, general counsel for the Wisconsin Builders Association, called the bills by Hubler and Kreitlow important because if counties, cities, villages or towns are rezoning or issuing development permits without a smart growth plan, they are susceptible to lawsuits.

“I think you’re going to see a lot of people trying to play a game of ‘gotcha’ with comprehensive plans in place,” he said. “And (the lack of a plan) is one thing that could be challenged by developers.”

The makeup of the Clark County Board of Supervisors will change after next month’s election, and that could lead to adoption of the county’s four-year-old comprehensive plan, Kunze said. Until then, he said, he will continue ruling on permit requests in a “legal minefield.”

“Although if you’re sued and you lose,” he said, “I guess it does matter.”