Amendment ASA2-AB582

CORRECTED COPY

LRBs0222/1

EHS/MES/GMM:klm

2015 - 2016 LEGISLATURE

ASSEMBLY SUBSTITUTE AMENDMENT 2, TO ASSEMBLY BILL 582

January 19, 2016 - Offered by Representative Jarchow.

AB582-ASA2,2,5 An Act to renumber 66.1001 (2m), 706.22 (2) (a) 1., 706.22 (2) (a) 2. and 706.22 (2) (a) 3.; to renumber and amend 70.32 (2) (c) 4., 706.22 (2) (b) and 706.22 (3); to amend 59.69 (4) (intro.), 59.69 (4) (j), 59.69 (5) (f), 59.692 (1k) (a) 2., 59.692 (1k) (a) 4., 59.692 (1k) (b), 60.61 (2) (a) 6., 60.61 (4) (f), 62.23 (7) (am), 62.23 (7) (d) 4., 66.1001 (2m) (title), 66.1001 (4) (f), 66.10015 (title), 66.10015 (1) (a), 74.485 (4) (a), 227.57 (10), 236.45 (2) (am) (intro.), 706.22 (title), 706.22 (2) (title) and 706.22 (2) (a) (intro.); and to create 59.692 (1h), 59.692 (1k) (a) 6., 59.692 (1p), 59.692 (7), 66.1001 (2m) (b), 66.10015 (1) (as), 66.10015 (1) (bs), 66.10015 (3), 66.1036, 70.32 (2) (c) 4. b., 227.137 (3) (g), 227.445, 227.57 (11), 700.28, 706.22 (2) (a) 2m., 706.22 (2) (a) 3m., 706.22 (2) (b) 2., 706.22 (3) (b) and 895.463 of the statutes; relating to: government actions affecting rights to real property; the regulation of shoreland zoning; the contents of an economic impact analysis of a proposed administrative rule; the substitution of hearing examiners in Department of Natural Resources and Department of Agriculture, Trade and Consumer Protection contested cases; the standard for judicial review of a state agency action or decision affecting a property owner's use of the owner's property; and the property tax treatment of unoccupied property.

Analysis by the Legislative Reference Bureau

Introduction

This substitute amendment makes various changes to the regulation of property rights and shoreland zoning, requires an economic impact analysis of a proposed administrative rule to analyze any limitations that the rule would place on the free use of private property, allows for the substitution of hearing examiners in contested case hearings, and requires a court to accord no deference to a state agency's interpretation of law when reviewing an agency action or decision that restricts a property owner's free use of the owner's property.

property rights

Procedural protections

Restrictions on sale, purchase, development, or occupancy of real property

This substitute amendment does all of the following:

1. Prohibits a local governmental unit from requiring a person to take certain actions with respect to real property, or pay a related fee, before purchasing, taking title to, or occupying the property.

2. Provides that a local governmental unit may require a real property owner to take certain actions with respect to property that are not related to purchasing the property.

3. Invalidates any ordinance, resolution, or policy currently in effect that is inconsistent with the prohibitions in the substitute amendment.

4. Provides that the prohibitions in the substitute amendment, and related prohibitions under current law, do not affect the ability of a local governmental unit to enforce any state or federal requirement.

5. Specifically prohibits a county from enacting a development moratorium.

6. Prohibits a city, village, town, or county (political subdivision) from prohibiting or unreasonably restricting a real property owner from selling or transferring title to any interest in the real property.

Individual notice requirements

Current law requires a political subdivision to provide notice to a landowner, and the substitute amendment requires a political subdivision to provide annual notification to residents of the political subdivision that they may request such notice, that potential action by the political subdivision may affect the allowable use of the landowner's property. The substitute amendment also requires counties and towns to provide such notice if a proposed zoning ordinance will affect the size or density requirements of a landowner's property. In addition, the substitute amendment limits a political subdivision's authority under current law to impose a fee for providing notice to charges for 1st class mailings.

Shoreland zoning

Under current law, a county must enact a shoreland zoning ordinance for all shorelands in its unincorporated area and the ordinance must meet shoreland zoning standards established by DNR by rule. Current law defines shorelands to be the area within a certain distance from the OHWM of a navigable water. Current law requires a county to establish a shoreland setback area, which is an area within a certain distance of the OHWM in which the construction or placement of structures is limited or prohibited. Under this substitute amendment, if a professional land surveyor, in measuring a setback from an OHWM of a navigable water, relies on a map, plat, or survey that incorporates or approximates the OHWM, the setback measured is the setback with respect to a structure constructed on that property if the map, plat, or survey relied upon is prepared by a professional land surveyor and DNR has not identified the OHWM on its Internet site at the time the setback is measured.

Current law prohibits DNR from impairing the interest of a landowner in shoreland property by establishing a shoreland zoning standard, and prohibits a county from impairing the interest of a landowner in shoreland property by enacting or enforcing a shoreland zoning ordinance, that regulates certain activities in certain ways. These prohibited regulations include the prohibition or regulation of the maintenance, repair, replacement, restoration, rebuilding, or remodeling of all or any part of a nonconforming structure if that activity does not expand the structure's footprint and the prohibition or regulation of the vertical expansion of a nonconforming structure. This substitute amendment expands these prohibitions to a structure of which any part is legally located in the shoreland setback area by operation of a variance granted before July 13, 2015.

The substitute amendment also provides that if DNR or a county is prohibited from impairing the interest of a landowner in shoreland property by regulating an activity and if that activity requires a building permit, the city, village, or town that issues the building permit must send a copy of the building permit to the county clerk.

Under the substitute amendment, neither DNR nor a county shoreland zoning ordinance may prohibit the owner of a boathouse with a flat roof from using the roof as a deck if the roof has no side walls or screens or from having or installing a railing around the roof that is not inconsistent with Department of Safety and Professional Services standards.

This substitute amendment provides that a shoreland zoning standard or ordinance may not prohibit placement of a device or system that retains runoff in a shoreland setback area.

The substitute amendment also provides that the construction or maintenance of property or equipment used for the transmission, delivery, or furnishing of natural gas, heat, light, or power and owned by a public utility or cooperative association organized for the purpose of producing or furnishing heat, light, or power to its members only is considered to satisfy shoreland zoning laws and a county's shoreland zoning ordinance if DNR has issued all required navigable water, water and sewage, and pollution discharge permits or approvals authorizing the construction or maintenance or, if no such permits or approvals are required, if the construction and maintenance is conducted in a manner that employs best management practices to infiltrate or otherwise control storm water runoff from that infrastructure.

Resolution of challenge to zoning restrictions

This substitute amendment requires a court to resolve any ambiguity in a matter involving a word or phrase in a zoning ordinance or shoreland zoning ordinance in favor of the free use of private property.

Supermajority vote to down zone a property

The substitute amendment allows a political subdivision to enact a down zoning ordinance only if the ordinance is approved by at least two-thirds of the members of its governing body. The substitute amendment defines a down zoning ordinance as an ordinance that affects an area of land by either rezoning it to a usage that is less dense than its previous usage or by reducing permitted uses of the land.

Property tax treatment of undeveloped land

This substitute amendment defines, for property tax purposes, "undeveloped land" to include land that is platted and zoned for residential, commercial, or manufacturing use until such time that all approvals required for use of the land are issued. The substitute amendment also provides that such land may be subject to a conversion charge if its assessment changes from agricultural to unimproved. Other undeveloped land under current law is assessed at 50 percent of its full value. Generally, these provisions do not apply to land that is located in a tax incremental financing district.

Administrative rule-making and proceedings

Economic impact analyses

This substitute amendment requires an economic impact analysis of a proposed administrative rule to include an analysis of the ways in which and the extent to which the proposed rule would place any limitations on the free use of private property, including a discussion of alternatives to the proposed rule that would minimize any such limitations.

Contested case hearings

Under this substitute amendment, a person who has applied for a contract, permit, or other approval that is the subject of a contested case hearing for which the Division of Hearings and Appeals in the Department of Administration has assigned a hearing examiner may file one written request per hearing for a substitution of a new hearing examiner. If the request is timely and in proper form, the matter must be transferred to a new hearing examiner.

Judicial review of agency actions and decisions

This substitute amendment requires a court, on review of a state agency action or decision affecting a property owner's use of the owner's property, to accord no deference to the agency's interpretation of law if the agency action or decision restricts the property owner's free use of the owner's property.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB582-ASA2,1 Section 1. 59.69 (4) (intro.) of the statutes is amended to read:

AB582-ASA2,5,14 59.69 (4) Extent of power. (intro.) For the purpose of promoting the public health, safety and general welfare the board may by ordinance effective within the areas within such county outside the limits of incorporated villages and cities establish districts of such number, shape and area, and adopt such regulations for each such district as the board considers best suited to carry out the purposes of this section. The board may establish mixed-use districts that contain any combination of uses, such as industrial, commercial, public, or residential uses, in a compact urban form. The board may not enact a development moratorium, as defined in s. 66.1002 (1) (b), under this section or s. 59.03, by acting under ch. 236, or by acting under any other law, except that this prohibition does not limit any authority of the board to impose a moratorium that is not a development moratorium. The powers granted by this section shall be exercised through an ordinance which may, subject to sub. (4e), determine, establish, regulate and restrict:

AB582-ASA2,2 Section 2. 59.69 (4) (j) of the statutes is amended to read:

AB582-ASA2,5,17 59.69 (4) (j) The Subject to s. 66.10015 (3), the density and distribution of population.

AB582-ASA2,3 Section 3. 59.69 (5) (f) of the statutes is amended to read:

AB582-ASA2,6,19 59.69 (5) (f) The county zoning agency shall maintain a list of persons who submit a written or electronic request to receive notice of any proposed ordinance or amendment that affects the allowable use of the property owned by the person. Annually, the agency shall inform residents of the county that they may add their names to the list. The agency may satisfy this requirement to provide such information by any of the following means: publishing a 1st class notice under ch. 985; publishing on the county's Internet site; 1st class mail; or including the information in a mailing that is sent to all property owners. If the county zoning agency completes a draft of a proposed zoning ordinance under par. (a) or if the agency receives a petition under par. (e) 2., the agency shall send a notice, which contains a copy or summary of the proposed ordinance or petition, to each person on the list whose property, the allowable use or size or density requirements of which, may be affected by the proposed ordinance or amendment. The notice shall be by mail or in any reasonable form that is agreed to by the person and the agency, including electronic mail, voice mail, or text message. The agency may charge each person on the list who receives a notice by 1st class mail a fee that does not exceed the approximate cost of providing the notice to the person. An ordinance or amendment that is subject to this paragraph may take effect even if the agency fails to send the notice that is required by this paragraph.

AB582-ASA2,4 Section 4. 59.692 (1h) of the statutes is created to read:

AB582-ASA2,7,2 59.692 (1h) If a professional land surveyor licensed under ch. 443, in measuring a setback from an ordinary high-water mark of a navigable water as required by an ordinance enacted under this section, relies on a map, plat, or survey that incorporates or approximates the ordinary high-water mark in accordance with s. 236.025, the setback measured is the setback with respect to a structure constructed on that property if all of the following apply:

AB582-ASA2,7,6 (a) The map, plat, or survey is prepared by a professional land surveyor, licensed under ch. 443, after the effective date of this paragraph .... [LRB inserts date]. The same professional land surveyor may prepare the map, plat, or survey and measure the setback.

AB582-ASA2,7,8 (b) The department has not identified the ordinary high-water mark on its Internet site as is required under s. 30.102 at the time the setback is measured.

AB582-ASA2,5 Section 5. 59.692 (1k) (a) 2. of the statutes, as created by 2015 Wisconsin Act 55, is amended to read:

AB582-ASA2,7,16 59.692 (1k) (a) 2. Except as provided in par. (b), requires any approval or imposes any fee or mitigation requirement for, or otherwise prohibits or regulates, the maintenance, repair, replacement, restoration, rebuilding, or remodeling of all or any part of a nonconforming structure or a structure of which any part is legally located in the shoreland setback area by operation of a variance granted before July 13, 2015, if the activity does not expand the footprint of the nonconforming structure.

AB582-ASA2,6 Section 6. 59.692 (1k) (a) 4. of the statutes, as created by 2015 Wisconsin Act 55, is amended to read:

AB582-ASA2,7,23 59.692 (1k) (a) 4. Requires any approval or imposes any fee or mitigation requirement for, or otherwise prohibits or regulates, the vertical expansion of a nonconforming structure or a structure of which any part is legally located in the shoreland setback area by operation of a variance granted before July 13, 2015, unless the vertical expansion would extend more than 35 feet above grade level.

AB582-ASA2,7 Section 7. 59.692 (1k) (a) 6. of the statutes is created to read:

AB582-ASA2,8,2 59.692 (1k) (a) 6. Prohibits placement in a shoreland setback area of a device or system authorized under par. (a) 5.

AB582-ASA2,8 Section 8. 59.692 (1k) (b) of the statutes, as created by 2015 Wisconsin Act 55, is amended to read:

AB582-ASA2,8,9 59.692 (1k) (b) A county shoreland zoning ordinance shall allow an activity specified under par. (a) 2. to expand the footprint of a nonconforming structure or a structure of which any part is legally located in the shoreland setback area by operation of a variance granted before July 13, 2015, if the expansion is necessary for the structure to comply with applicable state or federal requirements.

AB582-ASA2,9 Section 9. 59.692 (1p) of the statutes is created to read:

AB582-ASA2,8,16 59.692 (1p) The department may not promulgate a standard and a county may not enact an ordinance under this section that prohibits the owner of a boathouse in the shoreland setback area that has a flat roof from using the roof as a deck if the roof has no side walls or screens or from having or installing a railing around that roof if the railing is not inconsistent with standards promulgated by the department of safety and professional services under ch. 101.

AB582-ASA2,10 Section 10. 59.692 (7) of the statutes is created to read: