ZONING CODE TECHNICAL COMMITTEE

200 E. Wells Street City of Milwaukee Milwaukee, Wisconsin 53202 Meeting Minutes ZONING CODE TECHNICAL COMMITTEE TEODROS MEDHIN, CHAIR Stuart Mukamal, Ed Richardson, Ronald Roberts Staff Assistant, Chris Lee, 286-2232 Fax: 286-3456, clee@milwaukee.gov Wednesday, December 11, 2013 3:00 PM Room 301-B, Third Floor, City Hall Meeting convened at 3:02 p.m. Present: Roberts, Richardson, Mukamal, Medhin Individuals also present: Jeff Osterman, Legislative Reference Bureau Chris Rute, Development Center 1. 130955 A substitute ordinance relating to floodplain zoning regulations. Sponsors: THE CHAIR Atty. Mukamal stated his initial concerns regarding the proposed ordinance. Although being mindful of the state suggestions, two provisions were illegal. Although not illegal, there were other problematic provisions that had feasibility concerns from the Board of Zoning Appeals (BOZA). The proposed ordinance appeared to be a mixture of suggestions from the State and what the City wanted to put into the zoning code. The proposal came from a model ordinance and not from a mandate from the State. Model ordinances can contain provisions that are illegal. Mr. Osterman said that the proposed ordinance in question was created to be consistent with the model floodplain ordinance from the State, and he did not add anything to it. Mr. Richardson said that the intent of the proposed ordinance was to put all zoning provisions relating to floodplains, shorelands, and wetlands into one new subchapter of the zoning code. Atty. Mukamal said that the two portions dealing with nonconforming uses, Sec. 295-1135-1-f and i, were illegal and needed to be eliminated. In addition, a third portion dealing with nonconforming uses, Chapter 295- 1135-1-e, was partially illegal and needed to be modified. Subsections “f” and “i” were illegal due to violating the state statute on nonconforming uses, particularly the ability to put caps on costs to improve or maintain nonconforming uses. Wisc. Stats. 62.23(7)(hb) and (hc), expanded the rights of nonconforming uses and prohibited certain restrictions on nonconforming uses contained in this proposal. Regarding subsection “e”, nonconforming structures should be distinguished from nonconforming uses. Wisc. Stats. 62.23(7)(h) allows the imposition of fifty percent of assessed value cap but only on structural items. This provision was not limited to structural items and mentioned modifications or additions. For subsection “e”, the word “structural” should be added City of Milwaukee Page 1 ZONING CODE TECHNICAL Meeting Minutes December 11, 2013 COMMITTEE after the word “no”. Also, the words “nonconforming structure or any” should be deleted from the first line. Mr. Richardson inquired the references of nonconforming use in a floodplain in subchapter 11 and to regular zoning. He also questioned the use of floodplain regulations to control nonpermitted uses. Mr. Mukamal replied that the terms would refer to the whole zoning code and pertain to any nonconforming use or structure in the underlying zoning district. The terms were directed at the underlying district and not just the overlay zone. Limiting the terms to the overlay zone standards would require one to state so explicitly. Additionally, floodplain regulations are on top of the underlying code and a departure from this would require one to state so explicitly to the contrary. Atty. Mukamal said that the definitions of “unnecessary hardship” and “variance”, under subsections 149 and 151of Sec. 295-1107, should be deleted due to being highly illegal and unnecessary. These two definitions should be replaced with the definitions of the underlying code. The current definitions would empower BOZA to issue only dimensional area variances and not use variances. BOZA always has the power to grant a use variance, which provides a safety valve and an effective means to avoid a constitutional problem with respect to the 5 th Amendment. Mr. Rute said that the text that has been moved into subchapter 11 as reflected this proposed ordinance existed already in the zoning code. There were only a few minor language changes to the text, which were predicated from the recent Department of National Resources (DNR) ordinance. Atty. Mukamal said that putting this matter into its own subchapter was fine so as long as the relationship between the subchapter and the rest of the code is made very explicit. Atty. Mukamal stated additional concerns of his and BOZA. The first concern relates to BOZA being the body to hear appeals of overlay zones . Appeals of overlay zones are generally heard by the City Plan Commission (CPC). He questioned BOZA’s caseload stemming from this provision. The second concern deals with vague standards, uses, terms, or provisions. Sec. 295-1123-6-c is an example. BOZA would have trouble adjudicating these open-ended standards. BOZA was most concerned with the uses and terms listed in Sec. 295-1121 since the board has no experience with them. However, this was an administrative and political issue and not a legal issue. The most troublesome vague provision is “structures with high flood damage potential”. He questioned the elimination of the use table on floodplain overlay zone standards. Mr. Richardson said that the overlay zone in question is a different type from the other overlay zones, which are design and land-use oriented. The model ordinance states that BOZA would hear these cases. CPC is not trained to review these kinds of cases. BOZA is used to thinking in a quasi judicial manner, and CPC is not. CPC is less able to handle cases as opposed to BOZA. There have been three or four floodplain cases in his twenty years under BOZA. There is no use table on floodplain overlay zone standards currently. He added that he would like to contact DNR before eliminating provisions from the proposed ordinance, which reflects DNR’s model code. Mr. Rute said there have been no significant changes made to what is already enumerated in the zoning code. Five or eight percent of the City is floodplain. It is City of Milwaukee Page 2 ZONING CODE TECHNICAL Meeting Minutes December 11, 2013 COMMITTEE cleaner and more reliable to have a single subchapter on floodplains for when the City needs it. There should not be any surge on cases impacting BOZA. Cases are rare. The City has become better at administrating and recognizing the need to deal with floodplain issues. Most cases have been dealt with by consulting with the developer to comply as opposed to the standard practice of going to BOZA. No hardships have been caused relating to these cases in the last five years. The City’s last revision in 2008 regarding floodplains was relatively significant but spread out through the zoning code. The floodplain regulations are being magnified now, as opposed to 2008, as a result of an effort to simply the zoning code. Mr. Osterman stated that BOZA is the proper body to hear floodplain variances , and surveys from other communities would indicate as such. Atty. Mukamal said that there should be a record saying that these provisions are already in the zoning code and are not substantial changes. Mr. Richardson said that he would like to suggest to the State to use the City’s definitions regarding manufacture housing, which are being brought over to this subchapter. Atty. Mukamal moved that the proposed ordinance meets the standards of legality and enforceability, administrative efficiency, and consistency with the format of the zoning code subject to the following revisions: 1. The definitions of “unnecessary hardship” and “variance”, under subsections 149 and 151of Sec. 295-1107 of the proposed ordinance, should be deleted and replaced with the current definitions of the same terms contained in Sec. 295-201 of the underlying zoning code. 2. The provisions contained in Sec. 295-1121-6-a and c of the proposed ordinance be eliminated. 3. The provisions contained in Sec. 295-1135-1-f and i of the proposed ordinance be eliminated. 4. The provision contained in sec. 295-1135-1-e be modified to read “No structural modification or addition to any structure with a nonconforming use, which over the life of the structure would equal or exceed 50% of its present equalized assessed value, shall be allowed unless the entire structure is permanently changed to a conforming structure with a conforming use in compliance with the applicable requirements of this section.” Mr. Roberts seconded. There were no objections. Atty. Mukamal said that other revisions to the proposed ordinance subsequent to the approval made by the Committee today would be independent to the Committee. Meeting adjourned at 3:48 p.m. Chris Lee, Staff Assistant City of Milwaukee Page 3