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Thread: Variances

  1. #1
    Cyburbian Cardinal's avatar
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    Variances

    One of the things the Wisconsin APA has started doing is providing its members with legal updates. This is particularly helpful. Here's an interesting issue, and I wonder how many communities might be impacted:

    The Wisconsin Supreme Court will shortly decide GPS, Inc. v. Town of St. Germain which presents the conflict between the application of the attorney-client privilege in advising public bodies on one hand and the statutory disclosure requirements of the Open Records Law. The Supreme Court decision could potentially alter the scope of the attorney-client privilege as it applies to proceedings of a Zoning Board of Appeals and could even affect the provision of legal services to other State and local governmental officers and employees in all branches of government.

    In January, 2000, the Town of St. Germain Zoning Board of Appeals rejected GPS, Inc.’s request for a variance from a zoning ordinance so that it could build a home 50 feet from the center line of an existing street. Town zoning required a 75-foot setback, so the Board decided that the requested variance was a significant deviation from the ordinance. The Town’s attorney insists that his letters to the Appeals Board Chairman should remain hidden from public view and that the attorney-client privilege of communicating in confidence is an exception to the public records law. After reviewing the attorney’s letter in silence summarizing why the variance should be denied, the Board then took that action with no discussion.

    The developer’s attorney argues that the Town intended to circumvent public meetings and records laws and that the Town’s position could undermine open government in Wisconsin if allowed to stand by the Supreme Court. However, when the Legislature created the Open Records Law, the Town’s attorney argues that the Legislature did not indicate that the law was intended to restrict attorney-client privilege.

    One of the key issues before the Supreme Court will be whether or not the correspondence in question is subject to the attorney-client privilege.



    Another interesting variance decision by our courts, summarized from the Capitol Times:

    The state appeals court ruled a judge was wrong to uphold a local board's decision toapprove a variance for a home built too close to a creek. A law requires that buildings be built at least 75 feet from rivers, streams and lakes. The house was constructed 18 feet into this area. The county subsequently granted a variance noting it would cost as much as $50,000 to move the house. The appeals court determined that the homeowners could have reasonably complied with the setbacks on the 1.3 acre lot, and "it is a fundemental element of zoning law that the cost of coming into compliance is not an unnecessary hardship that justifies a variance."
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  2. #2
    Cyburbian Emeritus Chet's avatar
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    I thought that first case was interesting as well. My thoughts:

    1. The correspondence should be subject to attorney client priviledge. At what point of its circulation or board members does it lose that status though? Surely a widely distributed letter cannot retain itsd priviledge.

    2. The Board was wrong to tka eaction without explaining its reasons for its decision. All deliberations should be on record with findings of fact. The case should have been remanded by the lower court for further review by the board prior to it ever advancing to the supreme court.

    IMHO these po-dunk town governments are not savvy enough to understand these things, and their legal council does them a dis-service by trying play C-Y-A games.

  3. #3
    Cyburbian Cardinal's avatar
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    Originally posted by Chet
    IMHO these po-dunk town governments are not savvy enough to understand these things, and their legal council does them a dis-service by trying play C-Y-A games.
    Exactly! In the second case, what kind of professional planner review did they have of the site plan? As discussed here on Cyburbia, a planner reviews a plan for things like setbacks. While the odd minor mistake may occur, it is unlikely that they would not notice an eighteen-foot incursion into the setback area. Of course, if you do not use a planner and the committee is simply made up of a bunch of local yahoos with no understanding of the law, it will happen. I am glad the DNR has pressed this case.
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  4. #4
    Cyburbian ludes98's avatar
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    Why did they not have a legal pre-session that is closed like so many other boards? Perhaps that is a state law issue though. If it is used in a public hearing, it should be public information. A denial with no findings? That is just plain bad.

  5. #5
    Cyburbian Streck's avatar
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    Thank you for the information.

    Sometimes a majority of our Planning Commission members seem to be too influenced by the potential cost of doing what is required. This will be helpful to point out at our next planning session.

  6. #6
    Cyburbian Zoning Goddess's avatar
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    Good lord! Down here, the attorney advising appointed bodies is a county or city employee. Anything they discuss/advise those commissions/boards on, is public record. 99% of the time, that occurs verbally during the public hearing. Any opinion rendered is part of the case file.

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