AB760: Bill Text

LRB-3121/3

MES&MJL:lmk:pg

2005 - 2006 LEGISLATURE

2005 Assembly BILL 760

October 17, 2005 - Introduced by Representatives Albers, Musser, Ainsworth and Hahn. Referred to Committee on Property Rights and Land Management.

AB760,1,8 An Act to repeal 236.10 (1) (b) 1. to 3.; to renumber and amend 59.69 (3) (b) and 236.10 (1) (b) (intro.); to amend 59.69 (1), 59.69 (2) (a) 1., 59.69 (2) (e), 59.69 (3) (a), 59.69 (3) (e), 59.69 (5) (c), 59.69 (5) (d), 60.62 (3), 62.23 (7) (d) 1. b., 62.23 (7a) (intro.), 62.23 (7a) (a), 66.1001 (3) (intro.), 66.1001 (4) (a) and 236.13 (4); and to create 59.69 (3) (b) 1. to 4., 59.69 (3m), 59.694 (15), 60.23 (33), 60.23 (34), 60.62 (5), 60.62 (6), 62.23 (7a) (h) and (i), 66.1001 (3m), 66.1001 (4) (f) and 66.1001 (7) of the statutes; relating to: changes to the comprehensive planning statutes and authorizing towns to withdraw from county zoning.

Analysis by the Legislative Reference Bureau

Under current law, a county board may engage in zoning and land use planning by creating a county planning agency or by designating a previously constituted county committee or commission as the county planning agency. If a county board creates or designates such an agency, the agency is required to direct the preparation of a county development plan for the physical development of the towns within the county and for the cities and villages within the county whose governing bodies agree to have their areas included in the county plan.

Under this bill, the county board may only designate a single committee of the board to act in all matters pertaining to county planning and zoning. Except in counties which contain a city with a population of more than 500,000 (currently only Milwaukee County), the bill requires that the county zoning agency consist of a majority of county board supervisors who represent districts in which the majority of the residents of such districts reside in unincorporated, or town, territory.

Under the current law commonly known as the "Smart Growth" statute, if a local governmental unit (city, village, town, county, or regional planning commission) creates a comprehensive plan (a development plan or a master plan) or amends an existing comprehensive plan, the plan must contain certain planning elements. The required planning elements include the following: housing; transportation; utilities and community facilities; agricultural, natural, and cultural resources; economic development; and land use.

Beginning on January 1, 2010, current law requires that certain actions of a local governmental unit that affect land use must be consistent with that local governmental unit's comprehensive plan. The actions to which this requirement applies are official mapping, local subdivision regulation, and zoning ordinances, including zoning of shorelands or wetlands in shorelands. Also beginning on January 1, 2010, current law requires that if a local governmental unit engages in any program or action that affects land use, the comprehensive plan must contain at least all of the required planning elements. This bill makes a number of changes to the comprehensive planning statute.

Under the bill, the comprehensive planning statute applies only to a local governmental unit that has a population of more than 1,500 people, and requires a local governmental unit to issue written findings that indicate how the actions it undertakes are consistent with its own comprehensive plan. If a circuit court case challenges the validity of a comprehensive plan, including whether an allowable action is consistent with a local governmental unit's comprehensive plan, the bill requires a court to conclude that the plan is valid. The bill also requires a court to presume that the action is valid if the local governmental unit issues written findings that describe their reasons for its action. And the bill also requires a court to conclude that the action is consistent with the plan unless there is no rational basis for the action in any aspect of any of the elements of the comprehensive plan. Such actions must be commenced within 120 days of the action being adopted by the local governmental unit or it is barred. In addition, only property owners have standing to file an action.

The bill also requires a local governmental unit, at the initial stage of the preparation of a comprehensive plan, to invite and consider written comments from property owners on their proposed or contemplated uses for their property over the next ten years.

If a local governmental unit engages in any planning activity under its comprehensive plan, the bill requires it to attempt to determine which territory from an adjacent local governmental unit, which abuts territory in the local governmental unit that is taking action, may be affected and to so notify that other local governmental unit and consider any comments or plans submitted for review by the affected local governmental unit to the local governmental unit that is taking action.

Under current law, if a town board has been granted the authority to exercise village powers, the town board may adopt zoning ordinances under the zoning statutes that apply to cities and villages, subject to a number of conditions. If the county in which the town is located has enacted a county zoning ordinance, town zoning ordinances may not take effect until such ordinances are approved either by a town meeting or by a referendum vote of the electors of the town and are approved by the county board.

In addition, in counties having a zoning ordinance, no town zoning ordinance, or amendment of a zoning ordinance, may be adopted by the town unless approved by the county board. Under the bill, this provision does not apply to a master plan adopted or amended by a town that exercises village powers.

Also under this bill, a town board that is authorized to exercise village powers may enact an ordinance withdrawing from coverage of a county zoning ordinance and a county development plan. The ordinance may not take effect unless the town clerk notifies the county clerk of the proposed ordinance and the town enacts, and sends copies to the county clerk, a town zoning ordinance, a comprehensive plan, and an official map. If a town does withdraw from county zoning, however, it is still subject to a county shorelands zoning ordinance. In addition, a town must provide the same level of enforcement of its zoning ordinance that the county formerly provided. County board approval of a town zoning ordinance is not required if the town has withdrawn from county zoning.

Currently, the county development plan may be adopted, and amended, by the county board and may be endorsed by the governing bodies of the incorporated jurisdictions (cities and villages) included in the plan. Under the bill, the plan may be adopted by a majority of the members-elect of the county board, but the plan may be so amended only if the proposed amendment is endorsed by the governing bodies of the unincorporated and incorporated jurisdictions included in the plan.

Current law authorizes a county board to repeal an existing county zoning ordinance and reenact a comprehensive revision by a single ordinance. Under this bill, a county is required, approximately every ten years, to repeal an existing county zoning ordinance and reenact a comprehensive revision by a single ordinance.

Current law requires that the county development plan include the master plan and official map of a city or village in the county, and that a city or village master plan and official map control in the city's or village's extraterritorial zoning jurisdiction over a county development plan that affects that same area. A city's or village's extraterritorial zoning jurisdiction consists of unincorporated areas (town or county territory) within three miles of the corporate limits of a first, second, or third class city or within one and a half miles of a fourth class city or a village. Under the bill, a town and a city or village may agree that the city or village may exercise extraterritorial zoning jurisdiction over the entire town. This bill also limits a city's and village's extraterritorial zoning jurisdiction to those towns that have not enacted a master plan and to town territory that is not covered by a cooperative boundary agreement to which the town and the city or village are parties.

Also under the bill, if a territory has received final plat approval from a town or county and if after that approval the territory comes within the extraterritorial zoning jurisdiction of a city or village, no city or village zoning ordinances may apply to the territory if the application of the ordinances would preclude the developer from developing his or her land in accordance with the final plat approval for five years after the territory received town or county final plat approval. Current law also allows a town to adopt an official map under certain situations if the town is located in a county that has not enacted a county zoning ordinance.

This bill authorizes a town that may exercise village powers to adopt an official map at any time. The bill requires that a county development plan include both the official map of any town in the county that has adopted a comprehensive plan and the comprehensive plan. Also under the bill, a city's or village's master plan and official map control in the city's or village's extraterritorial zoning jurisdiction only if an official town map is not part of the county development plan.

This bill authorizes the creation of a joint planning body (JPB) to approve or reject an applicant's request for a zoning permit or other zoning approval in areas that are subject to both town and county zoning ordinances and not subject to a cooperative boundary agreement. A JPB is convened upon the request of such an applicant. The JPB consists of three members appointed by the county and three members appointed by the town. After issuing its written decision to approve or reject the applicant's request, the JPB is disbanded. An approval of the request constitutes final approval of the county and the town.

The bill also requires, to the greatest extent possible, that at least one member of a county board of adjustment attend each meeting in the county of a town plan commission, and requires the plan commission to provide board of adjustment members with as much advance notice of its meetings as possible.

Under current law if two or more governing bodies or agencies have the authority to approve or object to a plat and the requirements of the bodies or agencies conflict, the plat must comply with the most restrictive requirement. This bill qualifies this provision by allowing a county to object to a town plat only if the plat is subject to a county plan or a boundary agreement to which the county is a party.

For further information see the 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:

AB760, s. 1 Section 1. 59.69 (1) of the statutes is amended to read:

AB760,5,15 59.69 (1) Purpose. It is the purpose of this section to promote the public health, safety, convenience, and general welfare; to encourage planned and orderly land use development; to protect property values, individual property rights, and the property tax base; to permit the careful planning and efficient maintenance of highway systems; to ensure adequate highway, utility, health, educational , and recreational facilities; to recognize the needs of agriculture, forestry, industry , and business in future growth; to encourage uses of land and other natural resources which are in accordance with their character and adaptability; to provide adequate light and air, including access to sunlight for solar collectors and to wind for wind energy systems; to encourage the protection of groundwater resources; to preserve wetlands; to conserve soil, water, and forest resources; to protect the beauty and amenities of landscape and man-made developments; to provide healthy surroundings for family life; and to promote the efficient and economical use of public funds. To accomplish this purpose, the board may plan for the physical development and zoning of territory within the county as set forth in this section and shall incorporate therein the master plan adopted under s. 62.23 (2) or (3) and, the official map of any city or village in the county adopted under s. 62.23 (6), and the official map, adopted under s. 60.23 (33), of any town in the county that has adopted a comprehensive plan, as defined in s. 66.1001 (1) (a) 2.

AB760, s. 2 Section 2. 59.69 (2) (a) 1. of the statutes is amended to read:

AB760,6,2 59.69 (2) (a) 1. Except as provided under subd. 2., the board may create a planning and zoning committee as a county board agency or may create a planning and zoning commission consisting wholly or partially of persons who are not members of the board, designated the county zoning agency. In lieu of creating a committee or commission for this purpose, the board may designate a previously established single committee or commission as the county zoning agency, which shall be the sole committee authorized to act in all matters pertaining to county planning and zoning. Except in counties which contain a city with a population of more than 500,000, the county zoning agency shall consist of a majority of county board supervisors, each of whose districts contain individuals a majority of whom reside in unincorporated territory.

AB760, s. 3 Section 3. 59.69 (2) (e) of the statutes, as affected by 2005 Wisconsin Act 26, is amended to read:

AB760,6,15 59.69 (2) (e) Wherever a public hearing is specified under this section, the hearing shall be conducted by the county zoning agency in the county courthouse or in such other appropriate place as may be selected by the county zoning agency. The county zoning agency shall give notice of the public hearing by publication in the county as a class 2 notice under ch. 985, and shall consider any comments made, or submitted by, the commanding officer, or the officer's designee, of a military base or installation, with at least 200 assigned military personnel or that contains at least 2,000 acres, that is located in or near the county. If the county zoning agency or the board plans to hold a public hearing on a proposal to amend a county development plan and a zoning ordinance, it may provide notice of both proposals in the same class 2 notice under ch. 985.

AB760, s. 4 Section 4. 59.69 (3) (a) of the statutes is amended to read:

AB760,7,4 59.69 (3) (a) The Subject to s. 60.23 (34), the county zoning agency may direct the preparation of a county development plan or parts of the plan for the physical development of the unincorporated territory within the county and shall have jurisdiction over areas within incorporated jurisdictions whose governing bodies by resolution agree to having their areas included in the county's development plan. The plan may be adopted in whole or in part and may be amended by a majority vote of the members-elect of the board and if the proposed amendment is endorsed by the governing bodies of the unincorporated and incorporated jurisdictions included in the plan. The county development plan, in whole or in part, in its original form or as amended, is hereafter referred to as the development plan. Beginning on January 1, 2010, if the county engages in any program or action described in s. 66.1001 (3), the development plan shall contain at least all of the elements specified in s. 66.1001 (2).

AB760, s. 5 Section 5. 59.69 (3) (b) of the statutes is renumbered 59.69 (3) (b) (intro.) and amended to read:

AB760,7,10 59.69 (3) (b) (intro.) The development plan shall include the master plan, if any, of any city or village, that was adopted under s. 62.23 (2) or (3) and the official map, if any, of such city or village, that was adopted under s. 62.23 (6) in the county, without change., without change, all of the following:

AB760, s. 6 Section 6. 59.69 (3) (b) 1. to 4. of the statutes are created to read:

AB760,7,13 59.69 (3) (b) 1. The master plan, if any, of any city or village, that was adopted under s. 62.23 (2) or (3).

AB760,7,15 2. The official map, if any, of a city or village described under subd. 1., that was adopted under s. 62.23 (6) in the county.

AB760,7,17 3. The official map, as adopted under s. 60.23 (33), of any town in the county that has adopted a comprehensive plan, as defined in s. 66.1001 (1) (a) 2.

AB760,7,19 4. The comprehensive plan of a town described under subd. 3., that was adopted under s. 62.23 (2) or (3).

AB760, s. 7 Section 7. 59.69 (3) (e) of the statutes is amended to read:

AB760,8,2 59.69 (3) (e) A master plan adopted by a city or village under s. 62.23 (2) and (3) and an official map that is established by a city or village under s. 62.23 (6) shall control in unincorporated territory in a county affected thereby, whether or not such action occurs before the adoption of a development plan, except that if the county development plan includes an official town map as described under par. (b) the town map shall control in its territory.

AB760, s. 8 Section 8. 59.69 (3m) of the statutes is created to read:

AB760,8,4 59.69 (3m) Joint planning body. (a) In this subsection:

AB760,8,8 1. "Applicant" means a person who applies for a permit or approval from a county to comply with a zoning ordinance adopted under this section or a permit or approval from a town to comply with a zoning ordinance adopted under s. 60.62, or both.

AB760,8,10 2. "Overlapping jurisdiction" means territory that is subject to a county ordinance adopted under this section and a town ordinance adopted under s. 60.62.

AB760,8,15 (b) 1. Except as provided in subd. 2., if any territory in the county is subject to overlapping jurisdiction, any applicant who is subject to such overlapping jurisdiction may request the creation of a joint planning body, as described in par. (c), to ensure that the applicant receives a timely decision on the applicant's request for the necessary permit or approval from both the county and the town.