2017 - 2018 LEGISLATURE
SENATE SUBSTITUTE AMENDMENT 1,
TO SENATE BILL 387
October 19, 2017 - Offered by Senator Tiffany.
1An Act to renumber and amend
59.694 (7) (c) and 62.23 (7) (e) 7.; to amend
59.69 (10e) (title), 59.69 (10e) (a) 1., 59.69 (10e) (b), 59.692 (1) (b) (intro.), 60.61 3
(5e) (title), 60.61 (5e) (a) 1., 60.61 (5e) (b), 62.23 (7) (hb) (title), 62.23 (7) (hb) 1. 4
a. and 62.23 (7) (hb) 2.; and to create
30.20 (1g) (d), 59.69 (5e), 59.692 (1) (am), 5
59.694 (7) (c) 1., 59.694 (7) (c) 3., 60.61 (4e), 60.62 (4e), 62.23 (7) (de), 62.23 (7) 6
(e) 7. a., 62.23 (7) (e) 7. d., 66.10015 (1) (e), 66.10015 (2) (e), 66.10015 (4), 227.10 7
(2p) and 710.17 of the statutes;
relating to: limiting the authority of local
8governments to regulate development on substandard lots and require the
9merging of lots; requiring a political subdivision to issue a conditional use
10permit under certain circumstances; standards for granting certain zoning
11variances; local ordinances related to repair, rebuilding, and maintenance of
12certain nonconforming structures; shoreland zoning of, and the removal of
1material from the bed of, certain small, private ponds; and the right to display
2the flag of the United States.
Analysis by the Legislative Reference Bureau
This substitute amendment makes various changes to local government zoning
authority, navigable water permits, and the right to display the flag of the United
Under this substitute amendment, a city, village, town, or county may generally
not prohibit a property owner from doing any of the following:
1. Conveying an ownership interest in a substandard lot.
2. Using a substandard lot as a building site if two conditions are met: the
substandard lot has not been developed with one or more of its structures placed
partly on an adjacent lot; and the substandard lot is developed to comply with all
other ordinances of the political subdivision.
Under the substitute amendment, a substandard lot is defined as a lot that met
any applicable lot size requirements when it was created, but does not meet current
lot size requirements.
This substitute amendment prohibits a state agency, city, village, town, or
county from requiring that one or more lots be merged with another lot without the
consent of the owners of the lots that are to be merged.
conditional use permits
This substitute amendment requires a city, village, town, or county to issue a
conditional use permit to an applicant who meets, or agrees to meet, all of the
requirements and conditions specified by the political subdivision. Under the
substitute amendment, both the application, and the political subdivision's decision
on the permit application, must be based on substantial evidence. Once granted, a
conditional use permit may remain in effect as long as the conditions under which
it was granted are followed, except that a political subdivision may include
conditions relating to the permit's duration, and the ability of the applicant to
transfer or renew a permit.
Under current law, a city, a village, or a town that is authorized to exercise
village powers (collectively, “municipality”) or a county is authorized to enact zoning
ordinances that regulate and restrict the height, number of stories, and size of
buildings and other structures; the percentage of lot that may be occupied; the size
of yards and other open spaces; the density of population; and the location and use
of buildings, structures, and land for various purposes.
A municipality's board of appeals or a county's board of adjustment is
authorized under current law to authorize a variance from the terms of a zoning
ordinance. A “use" variance grants permission for a use that is not permitted by the
zoning ordinance and an “area" variance relaxes restrictions on dimensions, such as
setback, frontage, height, bulk, density, and area. To grant a variance, a board of
appeals or board of adjustment must find four things:
1. The variance will not be contrary to the public interest.
2. Substantial justice will be done by granting the variance.
3. The variance is needed so that the spirit of the ordinance is observed.
4. Due to special conditions, a literal enforcement of the provisions of the zoning
ordinance will result in unnecessary hardship.
Under this substitute amendment, a property owner bears the burden of
proving “unnecessary hardship" by demonstrating either of the following:
1. For an area variance, that strict compliance with a zoning ordinance would
unreasonably prevent the property owner from using the property for a permitted
purpose or would render conformity with the zoning ordinance unnecessarily
2. For a use variance, that strict compliance with a zoning ordinance would
leave the property owner with no reasonable use of the property in the absence of a
variance. In both situations, the property owner bears the burden of proving that the
unnecessary hardship is based on conditions unique to the property, rather than
personal considerations, and that the unnecessary hardship was not created by the
Under current law, zoning ordinances of cities, villages, towns, or counties may
not prohibit or limit based on cost the repair, maintenance, renovation, or remodeling
of a nonconforming structure. A nonconforming structure is “a dwelling or other
building that existed lawfully before the current zoning ordinance was enacted or
amended, but that does not conform with one or more of the development regulations
in the current zoning ordinance.”
This substitute amendment expands this prohibition, adding a prohibition on
requiring a variance, covering rebuilding, and specifying that a part of a
nonconforming structure is covered. With these modifications, no ordinance of a
political subdivision may prohibit, limit based on cost, or require a variance for the
repair, maintenance, renovation, rebuilding, or remodeling of a nonconforming
structure or any part of a nonconforming structure.
This substitute amendment exempts certain small, private ponds from the
permitting requirements for removing material from the bed of a navigable body of
water and from shoreland zoning laws.
Current law generally prohibits a person from removing material from the bed
of a navigable body of water unless the Department of Natural Resources has issued
an individual permit or a general permit authorizing the removal. This substitute
amendment adds an exception to these permitting requirements for the removal of
material from the bed of a self-contained pond that is five acres or less in size, has
no public access, and is located on and entirely surrounded by land privately owned
by the same person.
Current law requires each county to zone by ordinance all shorelands in its
unincorporated area. Shorelands are defined under current law as the area within
certain distances from the ordinary high-water mark of navigable waters.
Navigable waters are defined under current law as Lake Superior, Lake Michigan,
all natural inland lakes and all streams, ponds, sloughs, flowages, and other waters,
including the Wisconsin portion of boundary waters, that are navigable. This
substitute amendment excludes from the definition of navigable waters a pond that
is not hydrologically connected to a natural navigable waterway, does not discharge
into a natural navigable waterway except as a result of storm events, is five acres or
less in size, has no public access, and is entirely surrounded by land privately owned
by the same person.
right to display the flag of the united states
Currently, the federal Freedom to Display the American Flag Act of 2005
generally prohibits a condominium association, housing cooperative, or
homeowners' association (organization) from adopting or enforcing a policy, or
entering into an agreement, that would restrict or prevent a member of the
organization from displaying the flag of the United States on residential property
that the member owns or to which the member has the right to exclusive possession
and use. This substitute amendment creates a similar provision in Wisconsin law
with respect to housing cooperatives and homeowners' associations. Wisconsin law
currently prohibits including in any condominium documents a provision that
prohibits a condominium unit owner from displaying the flag.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
30.20 (1g) (d) of the statutes is created to read:
(d) A removal of material from a pond is exempt from the permit and 3
contract requirements under this section if all of the following apply to the pond:
1. It has an area of 5 acres or less.
2. It is not hydrologically connected to a natural navigable waterway and does 6
not discharge into a natural navigable waterway except as a result of storm events.
3. It has no public access.
4. It is entirely surrounded by land privately owned by the same person.
59.69 (5e) of the statutes is created to read:
59.69 (5e) Conditional use permits.
(a) In this subsection:
1. “Conditional use” means a use allowed under a conditional use permit, 2
special exception, or other special zoning permission issued by a county, but does not 3
include a variance.
2. “Substantial evidence” means facts and information, other than merely 5
personal preferences or speculation, directly pertaining to the requirements and 6
conditions an applicant must meet to obtain a conditional use permit and that 7
reasonable persons would accept in support of a conclusion.
(b) 1. If an applicant for a conditional use permit meets or agrees to meet all 9
of the requirements and conditions specified in the county ordinance or those 10
imposed by the county zoning board, the county shall grant the conditional use 11
permit. Any condition imposed must be related to the purpose of the ordinance and 12
be based on substantial evidence.