AB893: Bill Text

1995 Assembly BILL 893

February 19, 1996 - Introduced by Representatives Skindrud, Hahn, Johnsrud, Musser, Ainsworth, Owens, Gronemus, Seratti, Lorge, Silbaugh, Gunderson, Albers, Grothman, Kaufert, Zukowski and Powers, cosponsored by Senators Schultz and A. Lasee. Referred to Committee on State Affairs.

AB893,1,12 An Act to amend 20.370 (3) (ma), 30.12 (4) (a), 30.202 (3), 30.204 (5), 30.44 (8) (a), 30.44 (8) (c) (intro.), 30.44 (9) (a), 30.44 (9) (c) (intro.), 41.41 (8), 59.97 (5) (c), 59.971 (1) (c), 59.971 (1m), 59.971 (1r) (intro.), 59.971 (2) (a), 60.62 (1), 60.62 (2), 62.23 (7a) (intro.), 66.012 (7) (b), 66.014 (10), 66.019 (2) (b), 66.021 (7) (a), 66.023 (3) (e), 66.024 (5m), 66.025, 66.032 (1) (g), 66.052 (1), 66.32, 70.32 (1g), 70.32 (2) (c) 4., 87.30 (1) (a), 87.30 (1) (b), 87.30 (1) (c), 87.30 (1m) (intro.), 87.30 (2), 87.31 (1), 87.31 (4) (intro.), 91.73 (3), 144.26 (2) (c) and (e) and (2m) (intro.), 144.26 (8), 144.44 (7) (f) 3., 144.46 and 236.10 (1) (intro.); to repeal and recreate 60.62 (3); and to create 59.97 (5m), 60.10 (1) (g), 60.61 (7), 60.625, 87.30 (1) (bm) and 236.10 (6) of the statutes; relating to: town withdrawal from county zoning, town zoning powers, zoning of shorelands and flood plains by towns, granting rule-making authority and making an appropriation.

Analysis by the Legislative Reference Bureau

Under current law, a county board may enact a county zoning ordinance that is effective in a town if the town board approves the ordinance. There is currently no statutory authority that enables a town to withdraw from the application of the county zoning ordinance once a town board approves a county ordinance, nor is there current statutory authority for a county to enable a town to withdraw from the application of the county zoning ordinance.

If a town is located in a county that has not enacted a comprehensive zoning ordinance, the town may, under current law, enact a zoning ordinance if the town petitions the county board in which the town is located to enact a comprehensive zoning ordinance and if the county board fails to enact such an ordinance within one year. Also under current law, a town board that is authorized by a town meeting to exercise village powers may enact a zoning ordinance if the town's ordinances are approved by the county board. Such a town must also obtain county board approval before the town may amend an existing ordinance.

Under this bill and without county board approval, if a town meeting authorizes the town board to do so, a town board may enact an ordinance rescinding the town board's approval of a county zoning ordinance. Also under this bill, the only way in which a town may enact a new zoning ordinance is for the town meeting to authorize the town board to exercise village powers, for the town board to rescind its approval of a county zoning ordinance and for the town board to then enact a zoning ordinance that is approved by a town meeting or a referendum. Under such a zoning ordinance, a town may exercise the same zoning authority, and is subject to the same zoning responsibilities, as a city or village, except that a town may not exercise extraterritorial zoning or the powers of a board of public land commissioners.

Under this bill, a town that has in effect any zoning ordinance is not subject to extraterritorial zoning, and a town, the town board of which rescinds its approval of a county zoning ordinance, is not subject to offensive industry regulation and extraterritorial plat approval. Such a town may enact its own shoreland zoning ordinance or flood plain zoning ordinance.

A town zoning ordinance that is enacted before the effective date of this bill by a town board that is not authorized to exercise village powers remains in effect until a town board repeals the ordinance, but such an ordinance may not be amended on after the effective date of the bill.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

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

AB893, s. 1 Section 1. 20.370 (3) (ma) of the statutes is amended to read:

AB893,3,2 20.370 (3) (ma) General program operations — state funds. From the general fund, the amounts in the schedule for regulatory and enforcement operations under chs. 30, 31, 144, 147, 159 and 162 and ss. 44.47, 59.971, 59.974, 60.625, 61.351, 61.354, 62.231, 62.234 and 87.30, for reimbursement of the conservation fund for expenses incurred for actions taken under s. 166.04; for review of environmental impact requirements under ss. 1.11 and 23.40; and for enforcement of the treaty-based, off-reservation rights to fish, hunt and gather held by members of federally recognized American Indian tribes or bands.

AB893, s. 2 Section 2. 30.12 (4) (a) of the statutes is amended to read:

AB893,3,12 30.12 (4) (a) Activities affecting waters of the state as defined in s. 144.01 that are carried out under the direction and supervision of the department of transportation in connection with highway and bridge design, location, construction, reconstruction, maintenance and repair are not subject to the prohibitions or permit or approval requirements specified under this section or s. 29.29, 30.11, 30.123, 30.195, 30.20, 59.971, 60.625, 61.351, 62.231, or 87.30 or ch. 144 or 147. However, at the earliest practical time prior to the commencement of these activities, the department of transportation shall notify the department of the location, nature and extent of the proposed work that may affect the waters of the state.

AB893, s. 3 Section 3. 30.202 (3) of the statutes is amended to read:

AB893,3,19 30.202 (3) Exemption from statutes and rules. Dredge spoil disposal activities authorized under sub. (2) are exempt from any prohibition, restriction, requirement, permit, license, approval, authorization, fee, notice, hearing, procedure or penalty specified under ss. 29.29, 30.01 to 30.20, 30.21 to 30.99, 59.971, 60.625 or 87.30 or ch. 144 or 147 or specified in any rule promulgated, order issued or ordinance adopted under those sections or chapters.

AB893, s. 4 Section 4. 30.204 (5) of the statutes is amended to read:

AB893,4,3 30.204 (5) Exemption from certain statutes and rules. Activities of the department in conducting the lake acidification experiment are exempt from any prohibition, restriction, requirement, permit, license, approval, authorization, fee, notice, hearing, procedure or penalty specified under ss. 29.29 (3), 30.01 to 30.03, 30.06 to 30.16, 30.18 to 30.29, 30.50 to 30.99, 59.971, 60.625, 87.30, 144.01 to 144.27, 144.43 to 144.79, 144.96 to 144.99 or 159.81 or ch. 147 or specified in any rule promulgated, order issued or ordinance adopted under any of those sections or that chapter.

AB893, s. 5 Section 5. 30.44 (8) (a) of the statutes is amended to read:

AB893,4,7 30.44 (8) (a) Except as provided under sub. (1) (f), a person shall apply for and be issued by the board a permit for an activity in subs. (1), (2) and (5) for land in the riverway that is not zoned shorelands under s. 59.971 or 60.625.

AB893, s. 6 Section 6. 30.44 (8) (c) (intro.) of the statutes is amended to read:

AB893,4,12 30.44 (8) (c) (intro.) The board may grant a waiver of a performance standard for an activity in sub. (1) (b) and issue a permit under par. (a) or may grant a waiver authorizing an activity prohibited under s. 30.45 (3) or (3m) for land in the riverway that is not zoned shorelands under s. 59.971 or 60.625 if one of the following applies:

AB893, s. 7 Section 7. 30.44 (9) (a) of the statutes is amended to read:

AB893,4,16 30.44 (9) (a) A person shall apply for and be issued by the county in which the land is located a permit for an activity in subs. (1), (2) and (5) for land in the riverway that is in the county and that is zoned shorelands under s. 59.971 or 60.625.

AB893, s. 8 Section 8. 30.44 (9) (c) (intro.) of the statutes is amended to read:

AB893,4,22 30.44 (9) (c) (intro.) The county may grant a waiver of a performance standard for an activity in sub. (1) (b) and issue a permit for the activity under par. (a) or may grant a waiver authorizing an activity prohibited under s. 30.45 (3) or (3m) for land in the riverway that is in the county and that is zoned shorelands under s. 59.971 or 60.625 if one of the following applies:

AB893, s. 9 Section 9. 41.41 (8) of the statutes, as affected by 1995 Wisconsin Act 27, is amended to read:

AB893,5,7 41.41 (8) Zoning. Notwithstanding ss. 13.48 (13) (a), 59.97 (4), 60.61 (2), 60.62 (1), 61.35 and 62.23 (7), the Kickapoo valley reserve is not subject to the zoning ordinance of any county or municipality, except that any ordinance enacted under s. 59.971, 60.625, 61.351, 62.231 or 87.30 governing the zoning of floodplains, shorelands or wetlands in shorelands and any ordinance that is required by law under s. 59.974, 61.354 or 62.324 62.234 governing construction site erosion control or storm water management applies in the reserve.

AB893, s. 10 Section 10. 59.97 (5) (c) of the statutes is amended to read:

AB893,5,19 59.97 (5) (c) A county ordinance enacted as provided by this section shall not be effective in any town until it has been approved by the town board. If the town board approves an ordinance enacted by the county board, as provided by this section, a certified copy of the approving resolution attached to one of the copies of such ordinance submitted to the town board shall promptly be filed with the county clerk by the town clerk. Such ordinance shall become effective in such town as of the date of such filing, which filing shall be recorded by the county clerk in the clerk's office, reported to the town board and the county board, and printed in the proceedings of the county board. Such ordinance shall supersede any prior town ordinance in conflict therewith or which is concerned with zoning, except as provided by in sub. (5m) or s. 60.62.

AB893, s. 11 Section 11. 59.97 (5m) of the statutes is created to read:

AB893,6,5 59.97 (5m) Town withdrawal from county zoning. (a) A town board may, without county board approval, enact an ordinance rescinding the town board's approval of a county zoning ordinance under sub. (5) (c) if the town meeting authorizes the rescission under s. 60.10 (1) (g). A rescission of approval under this paragraph takes effect on the effective date of a town zoning ordinance that is enacted under this paragraph and s. 60.61 (2) or 61.35. A town zoning ordinance that is enacted under this paragraph and s. 60.61 (2) or 61.35 shall contain a provision that continues the effect of a county exclusive agricultural use zoning ordinance that was enacted under ss. 59.97 to 59.99, and that provision may be amended under s. 91.77.

AB893,6,9 (b) A town, the town board of which enacts a rescission ordinance under par. (a), is not subject to extraterritorial zoning under s. 62.23 (7a) or 66.32, offensive industry regulation under s. 66.052 (1) and extraterritorial plat approval under s. 236.10.

AB893,6,12 (c) A town, the town board of which enacts a rescission ordinance under par. (a), is not subject to a county shoreland zoning ordinance enacted under s. 59.971 if the town board enacts a shoreland zoning ordinance under s. 60.625.

AB893, s. 12 Section 12. 59.971 (1) (c) of the statutes is amended to read:

AB893,6,15 59.971 (1) (c) "Shoreland zoning standard" means a standard for ordinances enacted under this section that are is promulgated as rules a rule by the department.

AB893, s. 13 Section 13. 59.971 (1m) of the statutes is amended to read:

AB893,6,20 59.971 (1m) To effect the purposes of s. 144.26 and to promote the public health, safety and general welfare, each county shall zone by ordinance all shorelands in its unincorporated area, subject to s. 60.625 (2) (b). This ordinance may be enacted separately from ordinances enacted under s. 59.97.

AB893, s. 14 Section 14. 59.971 (1r) (intro.) of the statutes is amended to read:

AB893,6,24 59.971 (1r) (intro.) An ordinance enacted under this section or s. 60.625 may not prohibit the maintenance of stairs, platforms or decks that were constructed before August 15, 1991, and that are located in any of the following shorelands:

AB893, s. 15 Section 15. 59.971 (2) (a) of the statutes is amended to read:

AB893,7,6 59.971 (2) (a) Except as otherwise specified, all provisions of s. 59.97 apply to ordinances and their amendments enacted under this section whether or not enacted separately from ordinances enacted under s. 59.97, but . Except as provided in ss. 59.97 (5m) and 60.625 (2) (b) and as otherwise specified, the ordinances and amendments shall not require approval or be subject to disapproval by any town or town board.

AB893, s. 16 Section 16. 60.10 (1) (g) of the statutes is created to read:

AB893,7,9 60.10 (1) (g) Withdrawal from county zoning. Authorize the town board to rescind approval of a county zoning ordinance under s. 59.97 (5m) (a).

AB893, s. 17 Section 17. 60.61 (7) of the statutes is created to read:

AB893,7,13 60.61 (7) Sunset; grandfather clause. (a) No ordinance may be enacted or amended, nor may a resolution be adopted or amended, under this section on or after the effective date of this paragraph .... [revisor inserts date].

AB893,7,16 (b) An ordinance enacted or amended, or a resolution adopted or amended, under this section before the effective date of this paragraph .... [revisor inserts date], shall remain in effect until repealed by the town board.

AB893, s. 18 Section 18. 60.62 (1) of the statutes is amended to read:

AB893,7,20 60.62 (1) Subject to subs. (2) and (3), if a town board has been granted authority to exercise village powers under s. 60.10 (2) (c), the board may adopt zoning ordinances under s. 61.35, except that a board may not act under s. 62.23 (7a) or (9a).

AB893, s. 19 Section 19. 60.62 (2) of the statutes is amended to read:

AB893,7,25 60.62 (2) If the county in which the town is located has adopted a zoning ordinance under s. 59.97, the The exercise of the authority under sub. (1) is subject to approval by the town meeting or by a referendum vote of the electors of the town held at the time of any regular or special election.

AB893, s. 20 Section 20. 60.62 (3) of the statutes is repealed and recreated to read:

AB893,8,5 60.62 (3) The exercise of the authority under sub. (1) is subject to a town board's rescission of its approval of a county zoning ordinance under s. 59.97 (5m) (a). An ordinance enacted under sub. (1) takes effect upon the enactment by the town board of a rescission ordinance under s. 59.97 (5m) (a).

AB893, s. 21 Section 21. 60.625 of the statutes is created to read:

AB893,8,7 60.625 Zoning of shorelands. (1) Definitions. In this section:

AB893,8,8 (a) "Department" means the department of natural resources.

AB893,8,9 (b) "Shorelands" has the meaning given in s. 59.971 (1) (b).

AB893,8,10 (c) "Shoreland zoning standard" has the meaning given in s. 59.971 (1) (c).

AB893,8,16 (2) Enactment and effect of ordinance. (a) To effect the purposes of s. 144.26 and to promote the public health, safety and general welfare, if a town may enact zoning ordinances under s. 60.62, the town may zone by ordinance all shorelands that are within the town's boundaries. An ordinance enacted under this section shall be at least as restrictive as the county shoreland zoning ordinance to which the town was subject.

AB893,8,18 (b) A county ordinance enacted under s. 59.971 does not apply and has no effect in a town in which an ordinance enacted under this section is in effect.

AB893,8,22 (c) If an existing town ordinance relating to shorelands is more restrictive than an ordinance later enacted under this section affecting the same shorelands, it continues as a town ordinance in all respects to the extent of the greater restrictions, but not otherwise.

AB893,9,2 (3) Applicability of comprehensive zoning plan or general zoning ordinance. An ordinance enacted under this section shall accord and be consistent with any comprehensive zoning plan or general zoning ordinance applicable to the enacting town, so far as practicable.

AB893,9,5 (4) Applicability of local subdivision regulation. All powers granted to a town under s. 236.45 may be exercised by it with respect to shorelands, if the town has or provides a planning commission or agency.

AB893,9,8 (5) Intergovernmental cooperation. (a) Section 66.30 applies to this section, but for the purposes of this section any agreement under s. 66.30 shall be effected by ordinance.

AB893,9,12 (b) If a town is served by a regional planning commission under s. 66.945 and if the commission consents, the town may empower the commission by ordinance to administer the ordinance enacted under this section throughout the town, whether or not the area otherwise served by the commission includes all of that town.

AB893,9,16 (6) Variances and appeals. Variances and appeals regarding a shoreland zoning ordinance enacted under this section are to be determined by the board of appeals or similar agency for the town. To the extent specified under s. 61.35, procedures under s. 62.23 (7) (e) apply to these determinations.

AB893,9,20 (7) Department review. If the department, after notice and hearing, determines that a town has enacted an ordinance that fails to meet the shoreland zoning standards, the department shall issue an order declaring the town ordinance void and reinstating the applicability of the county shoreland zoning ordinance.

AB893,9,24 (8) Annexation. (a) Provisions of a town shoreland zoning ordinance enacted under this section that are applicable, prior to annexation, to any shorelands annexed by a city or village shall continue in effect and shall be enforced after annexation by the annexing city or village unless any of the following occurs:

AB893,10,3 1. The city or village enacts, administers and enforces a zoning ordinance, for the annexed area, that complies with the shoreland zoning standards and that is at least as restrictive as the town shoreland zoning ordinance.

AB893,10,8 2. After annexation, the city or village requests the town to amend the town shoreland zoning ordinance as it applies to the annexed area to delete or modify provisions that meet the specifications under par. (ag), the town enacts the amendment and the city or village administers and enforces the amended ordinance as it applies to the annexed area.

AB893,10,11 3. After annexation, the city or village requests that the town shoreland zoning ordinance, as it applies to the annexed area, continue to be in effect and enforced by the town and the town agrees to enforce the ordinance.

AB893,10,16 (ad) Provisions of a town shoreland zoning ordinance enacted under this section that were applicable, prior to incorporation, to any shorelands that are part of a town that incorporates as a city or village under s. 66.012, 66.014, 66.018 or 66.019 shall continue in effect and shall be enforced after incorporation by the incorporated city or village unless any of the following occurs:

AB893,10,19 1. The city or village enacts, administers and enforces a zoning ordinance that complies with the shoreland zoning standards and that is at least as restrictive as the town shoreland zoning ordinance.

AB893,10,23 2. After incorporation, the city or village requests the town to amend the town shoreland zoning ordinance as it applies to the incorporated area to delete or modify provisions that meet the specifications under par. (ag), the town enacts the amendment and the city or village administers and enforces the amended ordinance.

AB893,11,3 3. After incorporation, the city or village requests that the town shoreland zoning ordinance, as it applies to the incorporated area, continue to be in effect and enforced by the town and the town agrees to enforce the ordinance.

AB893,11,7 (ag) For purposes of pars. (a) 2. and (ad) 2., the types of provisions that may be deleted or modified are those that establish specified land uses or requirements associated with those uses and that are not necessary to effect the purposes of s. 144.26 (1) that relate to the protection of navigable waters.

AB893,11,9 (ar) The town may not enact an amendment under par. (a) 2. or (ad) 2. that is less restrictive than the shoreland zoning standards.

AB893,11,11 (aw) Any amendment enacted under par. (a) 2. shall apply only to the annexed area of the city or village requesting the amendment.

AB893,11,21 (b) If the department determines that a zoning ordinance enacted by a city or village under par. (a) 1. or (ad) 1. does not meet the shoreland zoning standards or is not as restrictive as the town shoreland zoning ordinance, the department shall, after providing notice and conducting a hearing on the matter, either issue an order declaring the city or village ordinance void and reinstating the applicability of the town shoreland zoning ordinance to the annexed or incorporated area or issue an order declaring the city or village ordinance void and adopting an ordinance for the annexed or incorporated area for the city or village that does meet the shoreland zoning standards and that is at least as restrictive as the town shoreland zoning ordinance.

AB893,12,2 (c) If the department determines that an amendment enacted by a town under par. (a) 2. or (ad) 2. does not meet the shoreland zoning standards, the department, after providing notice and conducting a hearing on the matter, shall issue an order declaring the amendment void and shall reinstate the applicability of the town shoreland zoning ordinance, that was in effect prior to amending the ordinance, to the annexed or incorporated area.

AB893,12,4 (d) As far as applicable, the procedures set forth in s. 87.30 apply to this subsection.

AB893,12,7 (e) Paragraphs (a) and (ad) and ss. 66.012 (7) (b), 66.014 (10) and 66.019 (2) (b) do not apply to wetlands in shorelands that are governed by the provisions in s. 61.351 or 62.231.

AB893, s. 22 Section 22. 62.23 (7a) (intro.) of the statutes is amended to read:

AB893,12,14 62.23 (7a) Extraterritorial zoning. (intro.) The Subject to s. 59.97 (5m) (b), the governing body of any city which has created a city plan commission under sub. (1) and has adopted a zoning ordinance under sub. (7) may exercise extraterritorial zoning power as set forth in this subsection. Insofar as applicable sub. (7) (a), (b), (c), (ea), (h) and (i) shall apply to extraterritorial zoning ordinances enacted under this subsection. This subsection shall also apply to the governing body of any village.

AB893, s. 23 Section 23. 66.012 (7) (b) of the statutes is amended to read: