Gibraltar Explores Separation from County Zoning

On Sept. 27, the Gibraltar plan commission held a meeting to hear from residents about their struggles with county zoning and to explore the possibility of the town adopting its own zoning ordinance. But Mariah Goode, department head at the Door County Planning Department, explained that state law dictates the town could not opt out of Door County zoning in the foreseeable future.

“Once you’re in county zoning, the only way you can get out is when the county does a comprehensive revision. [The county] has not done one since 1995 and we don’t have plans to do one,” said Goode.

But the Gibraltar Plan Commission and Town Board believe there are ways around Goode’s claim, a belief that refutes the opinion of the county, state law and the opinion of the Wisconsin Attorney General.

“Isn’t the law a living breathing document that changes and it changes interpretation too?” said Brian Hackbarth, member of the Gibraltar Plan Commission and Town Board. “If Gibraltar comes forward and feels that way and the board feels that way, then I would be open to pursuing whatever avenues need to be pursued to achieve what’s in the community’s best interest.”

Hackbarth said that the town is still deciding whether it wants to be a part of county zoning. The listening session was the first step in determining whether the town could administer zoning duties better than the county.

Under county comprehensive zoning, which Gibraltar and most other towns in Door County adopted, any conditional use permits or variances to properties within the township must go through both the town and the county, often requiring several months of presenting in front of different boards and committees. If Gibraltar were able to adopt its own zoning ordinance, most zoning concerns would only need approval of the local town board rather than the county. Many Gibraltar business owners voiced that arduous approval process as their primary complaint against county-level zoning at the Sept. 27 meeting.

“It was a very cumbersome process having to sit in front of six different boards or commissions in order to get the same answer,” said Shane Solomon, owner of Julie’s Park Café and Motel, on his second-story expansion earlier this year. “If the building was built according to setbacks, I would have a pretty tiny shed that I would call my motel. Gibraltar knows best what they want to see in their community and what their delegates want to see. If the county was not involved… I would have had that building there a couple of years ago.”

Greg Stillman, owner of the Parkwood Lodge, also had problems building a residential unit on their commercially zoned property.

“We approached the county to build a home that would have been part of the business, an extension of the business and that was difficult,” said Stillman. “It was kind of a moving target. We ended up parceling off over half an acre and doing the house as a residential property instead of a commercial endeavor. Any time you go back to the drawing board, it costs time and money.”

Stillman also ran into problems with a driveway that he learned was not conforming to the changing state standards after being approved by the county, forcing him to redraw the driveway at his own expense. Although, as a standard set forth by the Department of Transportation on the distance between driveways on state highways, a town ordinance would have done little to prevent his driveway issue.

Goode added that Gibraltar’s own zoning overlay in regard to multiple occupancy developments contributed to the problems faced by Stillman and Solomon.

Local control is the primary argument in support of a town zoning ordinance. When the approval ends at the town board, residents feel as though the local elected officials have the best concept of what works within a municipality.

“I’m not too excited about someone in Clay Banks deciding our fate here in Fish Creek because they don’t understand what’s going on in this town,” said Britt Unkefer, owner of Wild Tomato Wood Fired Pizza and Grille. “I would much rather have someone in this community deciding the fate of the properties here.”

Unkefer, who also owns restaurants in Sister Bay, appreciates the village’s separation from the county when it comes to zoning. Incorporated cities and villages, including Sturgeon Bay, Ephraim, Sister Bay and Forestville, adopt their own zoning code that is separate from the county.

“I know exactly who to go talk to, his [Zeke Jackson, Sister Bay village administrator] door is always open, I have his cell phone number. As a business owner, it makes life a lot easier,” said Unkefer.

Typically, towns that have vibrant downtown districts are in favor of their own zoning. With many commercial businesses moving and expanding, it’s a burden to always send things up to the county level. But rural towns are in favor of county zoning. They can share the cost for a zoning administrator, the legal fees in writing and updating the zoning code, and they don’t to worry about staffing more committees.

Comprehensive revision and power of the county

Withdrawing from county comprehensive zoning isn’t easy, according to state law. Currently, the only way that a town in Door County can withdraw and create their own zoning ordinance after adopting the county’s is when the county decides to go through a “comprehensive revision” of its own zoning ordinance.

Comprehensive revision is a vague term, described in state law as, “complete rewriting of an existing zoning ordinance which changes numerous zoning provisions and alters or adds zoning districts.”

In a letter from Gibraltar Town Board Chair Dick Skare to Goode on Sep. 13, Skare believed that the Sept. 20 adoption of the shoreland zoning ordinance constituted a comprehensive revision.

“In reviewing the proposed text amendments… it is believed that the changes are substantive in nature,” wrote Skare. “The text amendments are substantive ‘clean-up’ matters that constitute a ‘comprehensive revision’ to the ordinance.”

Hackbarth added in an interview that numerous individual amendments to the zoning ordinance over a period of time may constitute a comprehensive revision, even though the entire zoning code was not revised all at once.

The county felt that the changes to shoreland zoning forced by the state, which pulled the shoreland zoning ordinance out of the zoning code to function as a stand-alone ordinance, did not constitute a comprehensive revision. Goode said that since the amendment only dealt with one portion of the zoning code it is not a comprehensive revision. The amendment did not change numerous parts of the zoning ordinance and it did not alter or add a zoning district.

Former Wisconsin Attorney General Jim Doyle felt the same way in a 1994 opinion on a similar question in Richland Center, Wis.

“All or a substantial portion of a county’s zoning ordinance would have to be repealed or amended in order to constitute a comprehensive revision,” wrote Doyle. “If such an amendment requires little alteration of the existing ordinance, such an amendment is unlikely to be found to be a comprehensive revision.”

While the county has not undergone a comprehensive revision since 1995 and does not have plans to do so, Hackbarth said that asking the county to do a comprehensive revision is another option the town can pursue.

The legal counsel that Gibraltar officials spoke to thought it is possible for the county to simply make a motion to release Gibraltar from county comprehensive zoning as easily as it adopted it. Once the motion is made, Gibraltar can go forth in adopting its own zoning ordinance.

But another legal opinion, this time from Attorney General Bronson C. La Follette, stated in a 1978 opinion to Calumet County that the county doesn’t have that power.

Calumet county asked La Follette if a county can enact a provision for towns to withdraw from the zoning ordinance.

“There is no express statutory provision authorizing the county to permit a town to withdraw or rescind its prior approval of the county zoning ordinance nor is there any provision from which such authority could be reasonably implied,” wrote La Follette. “Thus, it is apparent on the face of the statute that a county lacks the authority to enact a provision.”

While a motion by the county to release a town and a provision allowing a town to withdraw may result in the same end, Hackbarth said they could be interpreted as different means that gives Gibraltar flexibility.

While legal interpretations by the Attorney General are not binding in court, they do have a significant amount of influence if the question comes up.

“To look at the world as black and white and, you can do this or can’t do that because of an opinion… that’s not going to stop me from realistic ways that things can change,” said Hackbarth.

A Dane County case study

It’s not uncommon for towns to resist this stranglehold on separate zoning enforced by the county under state law. Earlier this year, townships in Dane County were successful in rewriting legislation to allow them a way out.

The Dane County Towns Association successfully lobbied the state legislature to pass Wisconsin Act 178 on Feb. 29, which gives towns the ability to withdraw from county zoning whenever they want, as long as their county has a population of more than 485,000. The population minimum is tailored to apply only to Dane County, since the only other Wisconsin county with more than 485,000 people is Milwaukee County, which does not have any townships.

Similar to Gibraltar, some Dane County towns wanted local control over their development while rural towns such as Oregon and Cross Plains, enjoyed the shared cost and responsibility of county-level zoning.

Dane County began a comprehensive revision of its zoning ordinance before the law passed to encourage unsatisfied towns to opt out of county zoning without turning to legislation.

In the Dane County case, rural towns were worried that if enough of the big towns leave county zoning, their costs would increase to support the department’s lost revenue in fees.

Gibraltar contributes roughly 10 percent of combined regular zoning permits and conditional use permits to the county planning department, the third most after Liberty Grove and Sevastopol. If Gibraltar left county zoning and did not have to pay those fees to the county, the Planning Department would lose less than 10 percent of its revenue from fees, while 75 to 80 percent of the department’s budget comes from the tax levy. Sevastopol and Liberty Grove contribute the most in fees for the Planning Department.

To support its own zoning ordinance, Gibraltar would need to hire a zoning administrator or give those duties to a current staff member. The town could then collect the revenue from permits and fees. Zoning departments, both county and municipal, rarely make enough money in permits and fees to cover expenses.

The idea of splitting from county zoning is not exclusive to Gibraltar and Dane County. Legislation in the 2013 budget cycle that would have given towns statewide the ability to opt out of county zoning every couple of years failed to pass.

When towns began growing their own business districts outside of rural farms, it also grew the need for control on their development and land use. Besides incorporation into a village, Gibraltar’s only hope at local control is through a change in state law, a unique interpretation of the current state law or convincing the county to undergo a comprehensive revision.

“Something has to be changed. Taking a path like this, maybe even if we don’t leave county zoning, maybe at bare minimum, the administration of county zoning within our community is improved,” said Hackbarth. “We have a zoning issue in Gibraltar. I don’t think there’s any disagreement on that.”