By Stephanie Johns
Staff Writer

The Madison Mayor and City Council as well as city staff members received zoning training during a special work session held last Thursday evening.

Frank Jenkins shared with those present a packet of information titled “Making Good Zoning and Land Use Decisions” and then gave a presentation.

He spoke about legislative and administrative or quasi-judicial zoning decisions.
Jenkins said these two decisions are distinguished by the type of decision being made.
Legislative decisions are laid out in Zoning Procedures Law (ZPL) as those dealing with adopting the zoning ordinance, amending the zoning ordinance, rezoning properties, issuing special use or conditional permits.
When it comes to legislative decisions, what the council says goes, mostly.
“Whatever you decide is the law unless the court tells you it’s not,” he said.

Legislative decisions usually affect a lot of people and do not require all due process, nor cross examination. Also, the council does not have to give reasons for their legislative decisions.
“Sometimes the less you say is best,” he said.

For rezoning requests, Jenkins said that the city’s comprehensive plan is “extremely important” in their consideration.
As to notification for legislative requests, Jenkins said that if the city makes a request, they must place a notice in the newspaper and it must be in the newspaper 15 to 45 days before the public hearing.
If an applicant other than the city makes a request, not only must that person run a notice in the newspaper, they also must post a sign on the property in question. 

Certain decisions are administrative: variances, subdivision plans, building in a particular zone.
He said these are “trial type” decisions in that they usually affect a single person or only a small group of people and that the property owner could present evidence.

Cross examination of the property owner by a party with an appropriate interest – someone with a property interest or someone who would be affected by the decision – is allowed.

Those who speak during these hearings must complete a campaign contribution disclosure form five days prior to the hearing, by state law. This requirement affects anyone who contributed more than $250 to an elected official’s campaign within the last two years.
Jenkins later clarified this point via e-mail.

“To knowingly violate this law is a misdemeanor,” he wrote. “Note that it is to knowingly violate the law that makes it a misdemeanor.”
In a later interview Planning Director Monica Callahan noted that an unintended consequence of this law is that it makes it difficult to let members of the public who gave campaign contributions speak.
“We certainly want to adhere to state law,” she said. “We just don’t know how to enforce it.”
Administrative zoning hearings have due process requirements. Jenkins detailed these in his packet. They include, “notice of a hearing, a right to present evidence, a right to representation by counsel, the right to cross-examine witnesses, and the right to a written decision based on the evidence presented at the hearing.”

“You are supposed to have a reason for your findings,” he said, adding that the council should make a finding to each one of the standards listed in their ZPL.
The city’s ZPL list several standards each for zoning amendment application decisions, conditional use application decisions, and variance approval.

Mayor Bruce Gilbert asked Jenkins if it might be difficult to grant a variance with so many standards – there are eight in Madison’s ZPL.

Jenkins replied yes and suggested that they consider reducing the number of variance standards to three or four.
City Manager David Nunn asked if a loss of economic return on a lot would be considered a hardship.
Jenkins agreed that it could but asked, “Did the applicant create (the hardship)?”

Printed in the January 24, 2013 edition.