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Unwrapping Wisconsin’s difficult land-use code

Jerry Deschane is the president and owner of Deschane Communications LLC, a lobbying, consulting and communications firm specializing in the construction industry.

By Jerry Deschane

The Court of Appeals has peeled a layer off Wisconsin’s thick and smelly land-use onion.

A Sept. 25 decision written by 2nd District Appeals Court Judge Mark Gundrum will eliminate one of the many steps landowners have to endure when trying to improve and enjoy their homes. The decision states that a town does not share (and duplicate) county enforcement of shoreland zoning.

In 2011, Stephen Hegwood built an outdoor fireplace and a pergola in Eagle. After they were up, Hegwood realized he’d made a mistake.

He built both too close to a side lot line. Hegwood applied for and was granted a variance by Waukesha County. When Hegwood went before the town, requesting precisely the same variance from its lookalike shoreland zoning ordinance, the town board of appeals said no.

With one yes and one no, Hegwood appealed to the court for help. A Waukesha County Circuit Court judge agreed with Hegwood that one set of permission was sufficient, but the town appealed that decision. The 2nd Circuit Court of Appeals not only denied the town’s request, it said towns do not have shoreland zoning authority, except in certain rare circumstances. The town probably will appeal.

Setting aside all of the legal shilly-shallying, the Hegwood decision illustrates a very real problem for property owners: Wisconsin’s land-use onion has too many layers.

Why should a town waste its time and taxpayer’s dollars repeating decisions that already have been made at the county level, and vice-versa? Isn’t one “yea” or “nay” enough?

Having two local approval processes is like each NFL team bringing their own referees and allowing both to call the game at the same time. It’s a recipe for frustration, delay and added expense.

Sadly, the Hegwood case is not unique.

Wisconsin policy makers have been adding layers to the land-use code since statehood was granted, and seldom have they been willing to remove any.

In the beginning it was towns and cities. Counties were added, then regional planning commissions came along, followed by lake districts, sanitary districts, etc., etc., etc.

As new responsibilities were added, shifting political compromises created differing and conflicting overlaps in jurisdiction that the Legislature never has resolved.

Here’s hoping that Gundrum’s decision will start a new trend. Property owners still need permission from city hall and have to follow the rules, but maybe there will come a day when one “yes” is enough.

If that day ever arrives, I suspect Hegwood would invite us over for a barbecue.

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