OA222003

Residences in the Exclusive Ag Zoning Area

Sponsor: Supervisor Anderson for the Zoning Committee

Recommendation of DCTA Executive Committee:

All towns are strongly urged to disapprove OA22 and pursuant to 59.69(5)(e)3, to file a certified copy of the resolution of disapproval with the county zoning agency prior to Dec. 16, 2003.

Status of OA22.

OA22 was given its public hearing by ZNR on Nov. 18, 2003.
Thus, if towns do not disapprove OA22 by Dec. 16, the county can enact it as written.
Therefore, the only way towns can stop OA22, or can compel the county to amend OA22, is for towns to disapprove OA22 before Dec. 16, 2003.

Synopsis:

In the 30 Towns in Dane County which have adopted exclusive agricultural zoning, residences are not a permitted use in the Ag 1 – Exclusive zone. In order to build a new house in that zone, the owner of the land must prove that the residence will be occupied by a person who earns “substantial income” from the land. The requirement was created to control development of additional residences on farmland.

For many years, the County administered the ordinance by requiring that applicants for an additional farm residence demonstrate that the farm generated or could generate $6,000 per year of income, which was the standard used to qualify for farmland preservation credits. More recently, the Zoning Administrator issued memorandum interpreting the “substantial income” requirement as requiring at least $10,400 in gross annual farm income.

Of course, many residences have been built in towns with exclusive agricultural zoning without any showing of substantial income. Almost all of these residences were built after the landowner rezoned a small portion of the farm to one of the residential zones. The County has been approving rezones based on the allowable number of residences per acre. Most town plans call for no more than one residence per 35 acres in the exclusive agricultural zone. These rezonings involve the use of what has come to be called the property’s “splits.” Under the existing system, a 140-acre farm would have 4 splits, since the acreage divided by 35 equals 4.

With the “substantial income” test, landowners can obtain approval of additional residences even if all of the land’s splits have been exhausted. They need only show that the land can generate the required amount of farm income.

Under the current process, if a landowner applies for a permit to construct an additional farm residence, the owner must present detailed information outlining the farm’s crops, income and projected use. The County Zoning Administrator, and the Land Conservation Department review the application to determine whether or not the proposed residence is a genuine farm residence. The Town Board is notified of the request, and can advise the Zoning Administrator. But the decision is ultimately the Administrator’s to make.

If a farm plan is approved, the County will issue a zoning permit authorizing construction of a house. Interestingly, while the residence cannot be authorized unless it appears that the residence will be used as a farm residence, once it has been approved, there is nothing to require that the residence actually be used as such. The residence can be rented to a non-farmer, sold or otherwise used by non-farmers.

Ordinance Amendment 22 proposes to eliminate the farm plan approval process. The proponents believe that the farm plan process does not promote farming because many of the residences approved under the process are not genuinely farm residences. The proponents also believe that the farm plan review process consumes a great deal of time and effort by County and Town staff in proportion to the number of residences involved.

Currently, only 20 or so residences per year are authorized under the farm income and farm plan process. The process is extremely labor intensive and cumbersome. It requires the town and county both to review whether a proposed farm operation will really generate a particular amount of income. Further, issuance of the permit is premised on the notion that a residence is needed for an additional farm laborer or operator, but the number of active farmers in Dane County is steadily decreasing. It would seem that there would be an abundance of farm residences, rather than a shortage. Finally, residences for people to live in the country could still be provided through rezoning to the residential zone.

While the number of residences authorized by the farm plan process is minimal, the 20 which are authorized every year are critical to the individuals who need them. The opportunity to establish residences to meet farm needs is an important tool of flexibility to maintain specific farming operations. For example, a farm residence may be needed to authorize the creation of a second residence for the son or daughter of a current farm owner so that the farm can be transitioned from one generation to the next. There is no guarantee if the farm plan and income requirement is repealed that the county will agree to grant additional farm residences through rezoning.

Repealing the farm plan requirement would eliminate one of the few sources of additional residences available. Further, as drafted, the ordinance does not make existing residences a permitted use, so there could be a question about whether or not the residences could be replaced if damaged or destroyed.

OA22, by requiring a rezone for a farmhouse, gives the county the absolute authority to prevent the building of any and all new farmhouses, even including farmhouses the town wants. The county has already threatened towns with its intent to stop rural residential development, even including development that the town might want.

OA22, as drafted, states that existing residences are a permitted use in exclusive agricultural zoning. The language is designed to prevent existing residences from becoming “nonconforming uses” which cannot be replaced or repaired if they are damaged by fire or other casualty. However, OA22 restricts that permitted use to the exact location of the existing house and does not allow expansion or replacement of the house. Those restrictions will greatly diminish the market value of all such existing farmhouses of farmers, and also for any and all residences built on land zoned exclusive agriculture, thereby affecting many town residents, including non-farmers. OA22 may thereby threaten the conforming status of existing houses on substandard parcels zoned exclusive agriculture, by restricting the ability to expand or replace those houses.

In sum, OA22, as written, has extremely severe consequences for towns and town residents. Town boards must not fail to protect the residential property values of such a large number of its residents.

This ordinance is before the towns currently for first consideration. We recommend that it be vetoed because the issues it raises should be part of a comprehensive revision of the County ordinance which addresses the entire range of problems with farmland preservation zoning, At a minimum, the ordinance needs to be amended to assure that all existing residences in the Ag-1 exclusive zone remain legal residences. We believe also that there is a need for substantial additional work to deal with the issues contained in this proposal. Therefore, we recommend vetoing OA-22 so that we can continue to work on the same.