Homeowners Bill of Rights Would Outlaw NIMBY

The preliminary draft of a bill dubbed the Homeowner’s Bill of Rights would make changes to the conditional use permit (CUP), taking away a neighborhood voice in new development. Rep. Joel Kitchens said the bill, authored by Rep. Adam Jarchow, is still in its early stages, but said the changes to conditional use permits would be concerning if implemented.

“I think it’s still a work in progress and in my discussion with Mariah [Goode, head of the Door County Planning Department] the part that was concerning is the CUP,” said Kitchens. “I think at times (CUPs) are not done fairly in [Jarchow’s] area and we see it around here too.”

The change would prohibit boards or commissions tasked with approving CUPs from denying the permit if the rejection is solely based on testimony from neighbors, colloquially known as NIMBY, which stands for Not In My Backyard. As long as the permit meets the zoning requirements, a board or commission would have no choice but to approve it.

“If an applicant has shown that they can or are willing to comply, then the county shall issue conditional use permits,” said Goode, adding that she sees permits denied a few times each year.

While permits requiring changes in zoning could still be denied, a property owner who shows a willingness to comply with everything outlined in the permit such as landscape screening, environmental remediation and parking requirements would be granted one.

Developments such as Gibraltar’s workforce housing proposal in Nov. 2016 and a winery proposed in Sevastopol last month needed changes in zoning to work, but the majority of those opposed to the projects said it interfered with the character of a neighborhood. That argument could no longer be the only reason to deny a permit.

Kitchens said the proposal is intended to give more consistency to someone applying for a permit.

“If you know the people on the board you get a little different treatment and [Jarchow] wants it to be concrete if you’re going to deny something,” said Kitchens.

CUPs are structured to provide flexibility in the zoning code while acting as a regulatory agent against certain uses that the community might not want. While eliminating the guesswork for a property owner applying for a CUP, Goode said the measure could backfire when municipalities and the counties make their zoning codes stricter.

“If this is to go through, we’re going to sit down and go through our ordinance and determine whether or not to pursue text amendments to disallow those uses,” said Goode. Certain land uses that were previously allowed with a CUP may be outlawed entirely, in effect making the zoning code stricter despite the intention of the bill to allow more uses of private land.

Other measures in the drafted bill include more flexibility with use of nonconforming lots, similar to changes made in the recently adopted shoreland zoning, and inverse condemnation, which requires a local government to pay a landowner if zoning restrictions decrease property value by more than 50 percent.

The Sister Bay village board unanimously passed a resolution opposing the bill, with village administrator Zeke Jackson saying at the Aug. 15 board meeting the bill is in its early stages but he would like to see the village get out ahead of its possible implementation.

“LRB-2630 [Homeowner’s Bill of Rights] is a continuation of this usurpation of local control, and spells out a plan to essentially eliminate many of the most powerful tools that local governments have wielded in determining the fates of their communities,” said Jackson in a letter to the board.

Kitchens said the bill is not an attempt to deteriorate local control, but rather preserves private property value and affords more certainty for a property owner, admitting there are still some changes that need to be made.

“Adam [Jarchow] admits it’s a work in progress and hopefully we can get there,” said Kitchens. “He wants to get a group of a few zoning administrators to help him write it.”

Kitchens said Jarchow plans on contacting Goode for recommendations on the bill.