Amendment SSA1-SB464

LRBs0212/1

EHS&MES:klm

2015 - 2016 LEGISLATURE

SENATE SUBSTITUTE AMENDMENT 1, TO SENATE BILL 464

January 4, 2016 - Offered by Senator Lasee.

SB464-SSA1,2,2 An Act to renumber 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), 60.23 (33), 60.61 (2) (a) 6., 60.61 (4) (f), 62.23 (7) (am), 62.23 (7) (d) 4., 66.1001 (4) (f), 66.10015 (title), 66.10015 (1) (a), 74.485 (4) (a), 236.45 (2) (am) (intro.), 706.22 (title), 706.22 (2) (title) and 706.22 (2) (a) (intro.); and to create 20.932, 59.692 (1h), 59.692 (1k) (a) 6., 59.692 (1p), 59.692 (7), 66.10015 (1) (as), 66.10015 (1) (bs), 66.10015 (3), 66.1105 (5) (bu), 70.32 (2) (c) 4. b., 227.445, 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 substitution of hearing examiners in contested cases; 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 and allows for the substitution of hearing examiners in contested case hearings.

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 or occupying 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

This substitute amendment requires a political subdivision to provide written notice to a landowner, and annual notification to residents of a 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.

Vested rights

If a specific and identifiable land development or use requires multiple approvals from one or more state agencies, the substitute amendment requires a state agency, in making its determinations with regard to any approval for that project, to apply the law that is in effect on the date on which the applicant applies for the first approval from any state agency for that project if the applicant identifies the full scope of the project at that time. The substitute amendment allows an applicant and a state agency to agree with respect to an approval from that state agency that the law at the time of application for the approval applies.

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 generally prohibits the enactment of a county shoreland zoning ordinance that prohibits or regulates 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 a county shoreland zoning ordinance that requires any approval or imposes any fee or mitigation requirement for, or otherwise prohibits or regulates, 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.

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 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 rezoning it to a usage that is less dense than its previous usage.

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 a permit is issued for constructing a building or other structure on the land. The substitute amendment provides that such land be assessed at its unimproved value, although the land is 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.

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.

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

SB464-SSA1,1 Section 1. 20.932 of the statutes is created to read:

SB464-SSA1,4,2 20.932 Multiple approvals for a single project. (1) In this section:

SB464-SSA1,4,4 (a) "Approval" means a license, permit, authorization, or other approval issued by a state agency.

SB464-SSA1,4,6 (b) "Project" means a specific and identifiable land development, improvement activity, or use that occurs on defined parcels of land.

SB464-SSA1,5,3 (2) Except as provided in sub. (3), if a project requires multiple approvals from one or more state agencies, a state agency shall, in making its determinations with regard to any approval for that project, apply the law that is in effect on the date on which the person proposing the project applies for the first approval from any state agency for that project if the person proposing the project identifies the full scope of the project at the time of submitting the first application for an approval for the project.

SB464-SSA1,5,5 (3) An applicant and a state agency may agree with respect to an approval from that state agency that the law at the time of application for the approval applies.

SB464-SSA1,2 Section 2. 59.69 (4) (intro.) of the statutes is amended to read:

SB464-SSA1,5,19 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, or by acting under ch. 236, except that this prohibition does not limit the board's authority 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:

SB464-SSA1,3 Section 3. 59.69 (4) (j) of the statutes is amended to read:

SB464-SSA1,5,22 59.69 (4) (j) The Subject to s. 66.10015 (3), the density and distribution of population.

SB464-SSA1,4 Section 4. 59.69 (5) (f) of the statutes is amended to read:

SB464-SSA1,6,16 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 publish a class 1 notice, under ch. 985, to inform residents of the county that they may add their names to the list. The agency may also inform residents of the county about adding their names to the list by posting the notice on the county's Internet site. 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, text message, or inclusion in the person's property tax. 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.