HomeMy WebLinkAboutParkland Dedications FeesTO:
FROM:
DATE:
RE:
MEMORANDUM
Oshkosh Common Council and Oshkosh Planning and Zoning Dei ;ntment --
Jennifer Sunstrom, Governmental Affairs Director - REALTORS® Association of
Northeast Wisconsin
September 23, 2003
Response to Stockham Consulting Comments
The REALTORS® Association of Northeast Wisconsin (RANW) has reviewed Stockham
Consulting's response to our comments dated September 2, 2003. Although some
concerns and issues have been partially resolved, there are several items within the
proposed ordinance that remain concerns and need further clarification. RANW
appreciates your further consideration in this matter.
Expansion of Regulations to Condominium Plats
CSMs
Stockham Consulting (hereinafter "Stockham") maintains that "Wisconsin Statutes ss.
236.34 specifically states that dedications required for CSMs have the same force and
effect as dedications required from regular subdivisions." This is untrue. Section 236.34
specifies how CSMs can be prepared, recorded, and used for the purpose of
conveyancing. This statute provides no specific or general enabling authority for
municipalities to impose land dedications requirements as part of a CSM approval.
Although it has not been cited by Stockham or the Oshkosh Planning Department, we
have found that section 236.45 of the Wisconsin Statutes arguably provides
municipalities with the authority to impose land dedication requirements for CSMs.
Therefore, RANW will not pursue this issue further.
CONDOMINIUMS
Stockham is correct in noting that Wisconsin Statutes ss. 703.115 provides enabling
authority to review and regulate condominium instruments, but only for counties.
Under this statute, a count,/may adopt an ordinance requiring review of condominium
plats prior to the recording of the condominium plat in the county or city, village, or town
located within the county. However, this statute does not provide authority for cities,
villages, or towns to perform the review. Furthermore, while this statute provides
counties the authority to review and regulate condominium instruments, it does not
provide the authority for any local unit of government to impose parkland
dedication requirements.
Development Impact Fee and Public Needs Assessment
Stockham incorrectly states that "RANW contends that the City should prepare a Public
Facilities Needs Assessment, as required under... [the] Wisconsin Impact Fee Law." To
the contrary, RANW, In its written comments, specifically states that "[a]lthough the
statutes do not specificall¥ require a Development Impact Fee Study for parkland
dedication, the U.S. Supreme Court has articulated standards that all communities must
follow." (page 1 of its letter dated September 2, 2003, emphasis added)
However, upon further review of Oshkosh's Outdoor Recreation Plan, RANW believes
that the adoption of 10.5 acres/I,000 residents would reasonably maintain the existing
parkland ratio satisfying the "rational nexus" standard. It is important to note that
according to the city's Outdoor Recreation Plan, 7.28 acres for every 1,000 residents
is "other agency" land which is utilized by current citizens. Therefore, the 10.5
acres standard that will be required by new homeowners is a significantly higher
standard than what has been required of past development. Given that everyone in
the community will utilize and benefit from parkland acquired by the donations of
new development, perhaps the entire community should share the total cost as well.
Dedication and Reservation of Lands
Stockham indicates that "potential density under current zoning" will be used as the basis
for calculating park fees only if the "subdivider or developer does not specify the
proposed number of housing units on the plat or CSM." However, this is not stated in the
Staff Report dated August 5,200s (page 4). The StaffReport indicates that potential
density under current zoning will always be used as the basis for calculating park fees
even if the subdivider/developer proposes a subdivision with a lower density than
allowed under current zoning. We recommend further clarifying this provision to
clearly reflect Stoekham's interpretation.
Proportional Payment in Lieu of Dedication
Stockham indicates that it is "unreasonable" to provide a developer with an option of
making a land dedication or paying a fee in lieu of dedication. However, this policy
recognizes the economic and practical realities associated with developing real estate.
For example, it is extremely difficult to dedicate land as part of a re-development effort
because most redevelopment sites are small to begin with and it is unfeasible for a
developer to acquire additional land for the sole purpose of creating a park. On the other
hand, land dedications are much easier and more feasible on vacant parcels of land being
used for a larger development. The developer is in the best position to evaluate which
option is the most reasonable given the circumstances related to this particular
development. Furthermore, the City has been following this "unreasonable" policy for
years. If the city is determined to remove all flexibility from the developer, we
request that at a minimum, the city should establish clear criteria within the
ordinance that must be used to determine whether a land dedication or a fee in lieu
of dedication will be required.
Fund Accountability
Audit of Segregated Account
Although we are encouraged to hear that the fimds will be placed in a non-lapsing fund to
be used for neighborhood parks and recreation purposes, we are discouraged to hear that
Stockham does not feel that it is responsible for the City to perform an audit to determine
how those funds were spent. Stockham suggests that this would be "unduly or overly
restrictive in terms of the potential use of funds." Such a statement ignores the clearly
established legal parameters on land dedications and impact fees - THEY MAY NOT BE
USED FOR GENERAL REVENUE PURPOSES OR TO PAY FOR PARKS THAT
ARE NOT DIRECTLY RELATED TO THE IMPACT CAUSED BY THE
PARTICULAR DEVELOPMENT ON WHICH THEY WERE IMPOSED. They may
not be used to fund "trail improvements or other types of park improvements" on trails or
parks that are not created to service the new development. Failure to perform an audit of
this account to insure the funds are being used properly would be both irresponsible and a
potential violation of the City's fiduciary obligations to the citizens of Oshkosh.
Expenditure Time Limit
Stockham states that a five year time limit would be "overly restrictive." One of the
principal arguments for imposing an impact fee or land dedication requirement is that
new development, in theory, creates an immediate impact on the community that carmot
be addressed by the general property taxes generated by the new development in the short
tenn. The longer it takes a community to spend these funds, the less likely it is that the
fees were necessary to address the impact the new development actually had on the
community. In other words, the less time it takes a community to spend the impact fees,
the more the fees look like an illegal tax on new development. Furthermore, the longer
the funds are held, the less likely the new homeowners that paid the fees will see any
direct benefit from the fees they paid.. RANW would be agreeable to an amendment
to the ordinance which requires that any funds held for longer than five years
should trigger an individual subdivision park plan be developed. The plan should
outline why funds need to be held for an extended period of time and how they will
be used to benefit the development from which the money has been collected.
Conclusion
RANW fully supports the city's proactive effort to maintain a healthy parks system. An
adequate supply of recreational land is critical to a prosperous housing market. However,
the real estate community believes that ordinances, which require parkland dedication
from new development, should strike a balance between the contributions of previous and
new homeowners. Requirements that put the entire burden of future parkland needs on
new development are not only onerous, but also inequitable.
Further RANW Comments on Subdivision Ordinance Page 1 of 1
Ubrig, Pam
From: Burich, Darryn
Sent: Tuesday, September 23, 2003 1:51 PM
To: Ubrig, Pam
Subject: FW: Further RANW Comments on Subdivision Ordinance
Pam, this came in to me regarding the Common Council meeting tonight. Do you handle this?
..... Original Message .....
From: Jennifer Sunstrom [mailto:jsunstrom~ranw.org]
Sent: Tuesday, September 23, 2003 11:35 AM
To: dburich~ci.oshkosh.wi.us
Subject: Further RANW Conwaents on Subdivision Ordinance
Hi, Darryn,
I apologize for not getting you this memo earlier. It has taken longer than I thought to coordinate our
communications with our office, our Madison office and our Oshkosh members as well. I would greatly appreciate
it if you would distribute this memo to the Common Council for tonight's meeting, if you have any questions,
please do not hesitate to contact me.
<<RANW2.doc>>
Jennifer M. Sunstrom, Governmental Affairs Director
REALTORS® Association of Northeast Wisconsin
P.O. Box 2637, Appleton, WT 54912
920.739.9108
mobile: 920.470.9110
fax:920.739.9157
jsunstrom@ranw.org
9/23/2003