David Michael Miller
Tim Roehl is sick and tired of being bossed around by big-city folks.
“It’s a no-brainer,” says Roehl, a former town of Middleton board member. “City people should not have rights over townspeople.”
As a town board member, Roehl had pushed for Middleton to “opt out” of Dane County’s zoning laws. Currently Dane County controls all zoning in the county outside of villages and cities. That means if a resident of Berry wants to extend a driveway or build a garage, he or she has to get permits from both the town of Berry and Dane County. And that has Roehl fired up.
“People that are against [opt-out] are against people’s personal property rights,” Roehl says.
This month, eight of Dane County’s 33 townships considered opting out of Dane County’s zoning laws. Six of these towns — Bristol, Berry, Sun Prairie, Springfield, Westport and Blue Mounds — voted to control their own zoning. Black Earth did not hold a vote after missing a legal deadline.
But it turns out Roehl’s anti-city sentiment, while fierce in some parts, is not universal. His own town of Middleton voted overwhelmingly April 18 to stay under Dane County control during a contentious annual town meeting. The issue was so divisive that it had already cost Roehl his town board seat — he was one of two incumbents who lost to write-in candidates in the April 4 election, an unheard of phenomenon.
The Middleton board election, which also ousted Bill Kolar, turned into a war over opt-out.
“I would say that there are frankly decades of simmering discontent between some of the towns and Dane County,” says Mark Hazelbaker, senior counsel to the Dane County Towns Association. Over the past 30 years, he adds, “some of the towns in Dane County have grown significantly, and they deserve to have the opportunity to decide for themselves how they are going to manage their own land use.”
But opponents of opt-out say private real estate and construction interests are behind the effort and are hoping to profit from deregulation. Campaign documents show Roehl, a real estate agent with Coldwell Banker Success, received $550 from real estate executives for his re-election bid. He is also the chair of the lobbying arm of the Realtors Association of South Central Wisconsin.
At the April 18 town of Middleton meeting, residents expressed concern that opting out would give too much zoning power to a few board members and a private company. Resident Tom Wise called it “a recipe for corruption.”
The battle over zoning control heated up in 2015 when the Legislature passed a law — designed specifically for Dane County — giving townships here the power to opt out for the first time in 50 years.
“Out of Wisconsin’s 72 counties, Dane County was one of the only counties that did not allow towns to opt out,” says Hazelbaker. “The county didn’t update its zoning laws since 1938 in order to keep towns from opting out.”
The 2015 bill allowed townships to hold an opt-out vote during the town’s annual meeting or during an election. Townships are required to notify Dane County six months before they hold an opt-out vote and fulfill a long list of requirements. However, towns are only allowed to go through the process once every three years, and 2017 was the first chance to exit.
Dane County is now reviewing its zoning ordinance, but some town officials say it’s too little too late.
“The real story is the fact that this required an act of legislation at the state level to prompt the county board to initiate a comprehensive review,” says Brent Renteria, a Middletown town board member who compares the movement to “Brexit,” when voters in the United Kingdom narrowly voted to leave the European Union. “I wish this hadn’t become such a hot-button issue.”
Roehl says the county created the problem. “The county had the opportunity [to change its zoning laws],” he says. “Now their hand is forced, and they’re acting like spoiled children that aren’t gonna get their way.”
In February, Roehl lobbied on behalf of the Dane County Towns Association for Assembly Bill 109, which would have eliminated the need for a public vote and put the power to opt out solely in the hands of town board members.
It’s one of the reasons that Cynthia Richson, a town plan commission member, ran a write-in campaign for the town of Middleton board. She is irked that Roehl said at a town meeting that a public vote should not be required because board members understood zoning laws better than residents— Roehl made similar comments to Isthmus.
“There was an audible gasp in the room,” says Richson. “He said a mere advisory vote would be sufficient because he knew more. He didn’t think residents had the right to decide for themselves.”
After significant pushback, AB 109 was amended to require a public vote through a “special meeting” or “special election,” with only 30 days of notification. Opponents still cried foul.
State Rep. Scott Allen (R-Waukesha) was one of only three Republicans to vote against the bill. He says opt-out proponents might not have wanted to do the hard work of convincing voters. “In my opinion it was seen by some individuals as easier to bring the issue to the state Legislature and modify the rules.”
Allen supports a town’s right to control its zoning laws, but was opposed to how the bill undermined the democratic process. “Turnout at elections is oftentimes low; for the spring election, it was only 15 percent statewide,” Allen says. “At a special election, it would probably be lower than that. Zoning impacts people’s lives, it impacts their quality of life, and I wanted to make sure that the electors in those towns that would withdraw are in the best position to participate.”
The bill passed the Assembly 57 to 34 and now awaits a Senate vote. If the bill passes, five more towns may vote to opt out this year. If the bill fails, Dane County townships would have to wait until 2020 before being allowed to consider opting out again.
When the Legislature voted to allow towns to opt out of county zoning regulations, Dane County officials argued that it would lead to more urban sprawl and the loss of valuable farmland. County officials also say that townships that opt out will see a drop in the quality of services. They will have to manage their own zoning and planning services. This could be done by hiring staff, creating co-ops with other towns or contracting with private companies to do it.
Todd Violante, director of Dane County Planning and Development, doesn’t see the upside. “The only distinction in the decision-making process that towns will gain by opting out is that they will be able to approve projects that Dane County opposes or wants to impose conditions on that the applicant may or may not support,” Violante says. “But that’s a very rare occurrence. It occurs in about 1 percent of zoning petitions. Most of the time the towns and the county see eye to eye on developments.”
Towns could also lose money, Violante argues. Townships contribute about 20 percent of the county’s tax revenues, while cities and villages pay the other 80 percent. Yet townships use more funding since cities and villages provide their own zoning management. The county management includes covering legal fees at no extra cost to towns when development projects run into trouble. A report by Dane County estimated towns would need to raise taxes significantly to cover new costs, with half the towns requiring tax levy increases upwards of $90,000.
Roehl dismisses the county’s numbers as a “scare tactic.” Berry town board chair Anthony Varda says townships will now keep 15 percent of rezoning fees when it partners with General Engineering Company, a private zoning company out of Portage. According to Varda, towns will also be able to raise their town tax levy in exchange for residents no longer paying a tax levy to the county.
Just as with Brexit, Renteria worries that the opt-out debate has become an emotional battle clouding the real issues.
“To put it bluntly, it has to do with power and money,” he says. “Governments don’t like to give up power or money.”
Editor's note: An earlier version of this story had the incorrect first name for Rep. Scott Allen.
