AB586: Bill Text

LRB-2110/1

TKK/MGG/PJK:nwn&wlj:jf

2011 - 2012 LEGISLATURE

2011 Assembly BILL 586

February 20, 2012 - Introduced by Representatives Rivard, Tranel, Brooks, Krug, Marklein, A. Ott and Van Roy, cosponsored by Senators Schultz, Olsen, Hansen and Holperin. Referred to Committee on Housing.

AB586,2,18 An Act to repeal 236.12 (4), 236.12 (5), 236.20 (1) (b), 443.01 (4), 443.06 (2) (a), 443.06 (2) (b), 443.06 (2) (c), 443.06 (2) (cm), 443.06 (2) (e), 443.06 (2) (em), 443.14 (8) (b) and 443.14 (8) (c); to renumber and amend 60.84 (1), 236.11 (2), 236.12 (8), 236.15 (1) (intro.), 236.15 (1) (a), 236.21 (1) (b), 236.32 (except 236.32 (title)) and 443.06 (3); to consolidate, renumber and amend 236.12 (2) (intro.) and (a) and 236.12 (3) and (6); to amend 15.405 (2) (intro.), (a) and (b), 20.165 (2) (j), 26.09 (3) (b) 1., 30.11 (3), 30.13 (3) (a), 59.20 (2) (c), 59.43 (8), 59.45 (1) (a) 2., 59.45 (1) (b), 59.45 (3), 59.46, 59.72 (3m) (a) 4m., 59.73 (2), 59.74 (2) (b) 1., 59.74 (2) (c), 59.74 (2) (g), 59.74 (2) (h), 59.74 (2) (j), 59.75, 60.84 (2), 60.84 (3) (a), 60.84 (3) (c) (intro.) and 1., 60.84 (4), 66.0309 (11), 70.27 (2), 70.27 (5), 70.27 (6), 70.27 (7) (intro.), 70.27 (7) (d), 84.095 (5), 157.07 (1), 157.07 (2), 157.07 (3), 236.02 (2m), 236.03 (2), 236.12 (2) (b), 236.13 (2) (a), 236.13 (2m), 236.15 (1) (b), 236.15 (1) (d), 236.15 (2), 236.16 (3) (title), 236.16 (3) (a), 236.16 (3) (b), 236.16 (4), 236.20 (1) (a), 236.20 (2) (g), 236.20 (2) (k), 236.20 (3) (b), 236.20 (4) (b), 236.20 (5) (c), 236.21 (1) (intro.), 236.21 (1) (a), 236.21 (1) (d), 236.25 (2) (a), 236.25 (2) (c), 236.25 (2) (d), 236.34 (1) (a), 236.34 (1) (b), 236.34 (1) (c), 236.34 (1) (d) (intro.), 236.34 (1) (d) 1., 236.34 (1) (d) 2., 236.34 (1) (d) 4., 236.34 (1) (e), 236.34 (2) (b) 1., 440.03 (13) (b) 34., 440.08 (2) (a) 39., chapter 443 (title), 443.01 (3), 443.01 (3r) (c), 443.02 (4), 443.06 (title), 443.06 (1) (title), 443.06 (1) (a), 443.06 (1) (b), 443.06 (2) (intro.), 443.06 (2) (am), 443.06 (2) (bm), 443.06 (2) (d), 443.10 (title), 443.10 (2) (b), 443.10 (5), 443.12 (title), 443.12 (1), 443.12 (3), 443.14 (8) (a), 443.14 (8) (d), 443.14 (9), 443.14 (11), 443.18 (2) (a), 443.18 (2) (b), 470.025 (7), 703.02 (6m), 703.11 (2) (intro.), 703.11 (2) (b), 703.11 (4), 703.115 (1) (b), 703.13 (6) (e), 703.13 (7) (c), 703.13 (8) (c), 707.215 (2) (intro.), 707.215 (3), 707.215 (5) (intro.), 709.02 (1), 709.07 and 893.37; to create 59.001 (3r), 60.84 (1g), 60.84 (3) (c) 3., 157.061 (13m), 236.02 (9b), 236.025, 236.11 (2) (b), 236.12 (2) (ac), 236.20 (6), 236.32 (2m), 236.34 (4), 443.01 (1m), 443.01 (3b), 443.01 (6s), 443.01 (7m), 443.06 (3) (a) 3., 443.135, 703.02 (13r) and 710.09 of the statutes; and to affect 2009 Wisconsin Act 376, section 13 (1); relating to: professional land surveyors; the practice of professional land surveying; surveying land abutting navigable waters; various changes regarding platting, surveying, and certified survey maps; and granting rule-making authority.

Analysis by the Legislative Reference Bureau

Under current law, with certain exceptions, a person may not practice land surveying or represent that he or she is a land surveyor unless the land surveyor section (section) of the examining board of architects, landscape architects, professional engineers, designers and land surveyors (board) has issued a certificate of registration or permit to the person. "Land surveying" is defined as determining the location of land boundaries and boundary corners; preparing maps that show the shape and area of tracts of land or subdivisions or the layout of roads, streets, or rights-of-way; or preparing official plats or maps of land in this state.

This bill replaces "land surveying" with the term "practice of professional land surveying" and defines the term as any of the following:

1. Any service comprising the establishment or reestablishment of the boundaries of one or more tracts of land or the boundaries of any of the following interests in real property: a) the layout and rights-of-way of roads or streets; b) air or subsurface property rights; or c) public or private easements.

2. Designing or coordinating designs for the purpose of platting or subdividing land into smaller tracts.

3. Placing, replacing, restoring, or perpetuating monuments in or on the ground to evidence the location of a point that is necessary to describe the shape, area, and boundaries of one or more tracts of land or the subdivision or consolidation of one or more tracts of land or that is necessary to describe the boundaries of any interest in real property identified in item 1.

4. Preparing maps that depict any interest in real property identified in item 1. for the purpose of establishing the boundaries of any such interest in real property.

5. Preparing any of the following: a) an official map established or amended by a city, established or amended by a village, or adopted by a town; b) an assessor's plat; c) a map or plat of cemetery lands; d) a subdivision plat, certified survey map, or correction instrument; e) a condominium plat or correction instrument; or f) a project and time-share plat.

6. Performing construction or geodetic surveying in connection with any of the practices specified in items 1. to 5.

The bill also replaces the certificate of registration requirement under current law with a licensure requirement. Therefore, under the bill with certain exceptions, a person may not engage in the practice of professional land surveying or represent that he or she is a professional land surveyor unless the person is issued a license or permit by the section.

In addition, the bill changes the name of the section to the professional land surveyor section and changes the name of the board to the examining board of architects, landscape architects, professional engineers, designers and professional land surveyors. The bill also replaces various references under current law to "registered land surveyor," "land surveyor," and "surveyor" with "professional land surveyor."

Under current law, a person who has engaged in land surveying with a specified level of competence for at least ten years and who has passed oral and written examinations may be certified as a land surveyor. Similarly, current law permits a person who has completed an apprenticeship training course in land surveying, engaged in land surveying for eight years, and passed oral and written examinations may be certified as a land surveyor. This bill eliminates these two pathways for licensure.

Current law authorizes the section to grant a permit to practice land surveying to a person while the application is pending if the person has paid a fee and holds an unexpired certification that satisfies the one of the requirements for certification in this state. Such a permit may be revoked by the section at any time. This law modifies the permitting authority granted to the section by restricting the permit to one discrete project and requiring the applicant to demonstrate to the satisfaction of the section that failure to obtain a permit will result in delay of the discrete project and financial loss to the person for whom the applicant seeks to engage in the practice of professional land surveying.

Current law offers several exemptions from certification as a land surveyor; current law exempts officers and employees of the federal government and employees of this state from certification while the individuals are engaged in land surveying for the federal or state government, respectively. This bill eliminates these exemptions from licensure. Current law also exempts employees of public utilities who are engaged in land surveying from certification until July 1, 2018. This bill changes the date at which the exemption applies to July 1, 2013.

Current law permits a town board to contract with the county surveyor or any registered professional land surveyor to survey all or some of the sections of the town and to erect monuments. Currently, the surveyor retained by the town must prepare a certificate that provides a record of any survey created and that documents actions taken by the county surveyor. The certificate must include the bearings of and distance between monuments and must be recorded in the office of the county register of deeds. This bill requires, instead, that a surveyor retained by the town prepare a U.S. Public Land Survey monument record (monument record) that documents the actions taken by the surveyor, including every monument erected on section and quarter section corners. The monument record must be either recorded with the register of deeds or filed in the office of the county surveyor in which the land is located. Current law permits the town board to determine the nature of the monument, but the monument must be either a stone or other durable material of certain dimensions or a three-inch diameter iron pipe of certain dimensions. This bill permits the town board and the surveyor to agree upon an equivalent monument.

Under current law, a survey and plat must be prepared for lands required to be used for burial, into cemetery lots, drives, and walks by a cemetery authority. The plat or map must show the location of the land being subdivided with reference to a corner or corners established by the U.S. Public Land Survey by bearings and distances. This bill requires, instead, that the location of the lands be indicated on the plat or map by bearing and distance from the boundary line of a government lot, quarter section, recorded private claim, or federal reservation in which the subdivision is located and the monumentation at the ends of the boundary line must be described and the bearing and distance shown.

Under current law, a professional surveyor who prepares a lake or stream shore plat must show certain dimensions as measured from the ordinary high water mark (OHWM) of the lake or stream. The bill authorizes a professional land surveyor to incorporate an OHWM that has been determined by the DNR or that has otherwise been determined by law or to approximate the OHWM. The bill requires that statements be included on the face of certain plats or maps that explain that the land below the OHWM of a navigable water is subject to the public trust doctrine for navigable waters and that exposed land between the OHWM and the water's edge is to be used exclusively by the owner of the adjacent waterfront property, unless otherwise provided by law or by the owner's title.

The bill makes a number of changes to the laws relating to subdivision plats, certified survey maps, and the recording of certain plats, including the following:

1. Under current law, a subdivision plat may not be recorded unless it is approved by, depending on the location of the subdivision that is the subject of the plat, the governing body of a town, city, or village and, in some circumstances, a county planning agency (approving authorities). The plat must also be approved by a county planning agency, county park commission, or county park manager to determine whether there is a conflict with parks, parkways, or other planned public developments; the Department of Administration (DOA); if the subdivision abuts or adjoins a state highway, the Department of Transportation (DOT); and, if the subdivision is not served by a public sewer and provision for that service has not been made, the Department of Safety and Professional Services (DSPS) (approving agencies). Current law specifies the number of copies of the plat that must be submitted, to whom they must be submitted, and the time limits within which the approving authorities and approving agencies must act and provides two different procedures that may be used by a subdivider. The bill simplifies the approval process by limiting it to a single procedure, which is, for the most part, one of the two procedures under current law.

Under the bill, the subdivider or subdivider's agent must submit an electronic copy of the preliminary or final plat, or a copy that is capable of legible reproduction, to the approving authority or authorities and to DOA. DOA must examine the plat for compliance with certain statutory requirements and, within two days, transmit an electronic copy or two legible hard copies of the plat to DOT or DSPS or both, based on the criteria under current law. Also within two days after receiving the copy of the plat, DOA must transmit copies of the plat to the county planning agency, county park commission, or county park manager for making the determinations required under current law. Each approving agency has 20 days after receiving a copy of the plat to notify the subdivider and all other approving agencies of any objection to the plat, or to certify on the face of a copy of the plat that it has no objection and to return that copy to DOA. DOA, then, must certify on the face of the plat that each approving agency has certified that it has no objection or that its objection has been satisfied. If an approving agency other than DOA fails to act within 20 days of receiving a copy of the plat, or if DOA fails to act within 30 days of receiving a copy of the plat, the plat is deemed to be approved and, upon demand, DOA must so certify on the face of the plat.

As under current law, the approving authority or authorities have 60 days after receiving the plat to approve or reject it, but no approving authority may inscribe its final approval on the plat before DOA has certified that all approving agencies have approved the plat.

2. Current law provides that public access to a navigable lake or stream that is established when a subdivision is platted may be vacated only by court action. The bill specifies that such public access may, in addition, be discontinued through a process that exists under current law in which a city, village, town, or county may, by resolution, discontinue a public way upon the written petition of the requisite number of landowners abutting the public way. Current law also provides that the Department of Natural Resources must approve of any such discontinuation by a town or county if the public way provides public access to a navigable lake or stream.

3. Current law specifies where monuments must be placed when a subdivision is surveyed and provides that, if a monument would have to be placed in a street when the external boundaries of a subdivision are surveyed, the monument may be placed in the side line of the street. The bill expands this provision to surveys of all parts of a subdivision, not just the external boundaries.

4. Current law provides that a subdivider's project may be constructed in phases and that the amount of any security required by the municipality in which the project is located must be limited to the phase of the project currently being constructed. The bill makes this provision retroaction to all subdivision plats, regardless of when submitted for approval.

5. Under current law, a subdivision plat must have a margin that is binding and one and one-half inches on the left side and a one-inch margin on all other sides; all lands dedicated to public use, except roads and streets, must be clearly marked on the plat as dedicated to the public; and the location of the subdivision must be indicated by bearing and distance from a boundary line of a quarter section, recorded private claim, or federal reservation. The bill changes the plat margin requirements to one inch on all sides, requires roads and streets that are dedicated to public use also to be marked as dedicated to the public, and adds that the location of the subdivision may be indicated by bearing and distance from a boundary line of a government lot monumented in the original survey or resurvey of Wisconsin.

6. The bill clarifies that if land shown in a subdivision plat or certified survey map that is to be recorded is shown in a previously recorded plat or certified survey map, it may be described in the new plat or certified survey map by the subdivision name or previous certified survey map number rather than requiring a metes-and-bounds description of the land.

7. Under current law, a certified survey map may not be recorded unless it is offered for record within 6 months after the last approval and within 24 months after the first approval. The bill increases this timeline to within 12 months after the last approval and within 36 months after the first approval.

8. The bill explicitly allows certified survey maps to be used to grant easements to the public or any person, society, or corporation.

9. Current law provides a procedure for vacation of a subdivision plat by a circuit court. The bill establishes a similar procedure for vacation of a certified survey map by a circuit court.

10. The bill provides that the following documents may be produced for recording on any material that is capable of clearly legible reproduction or other media that is acceptable to the register of deeds: a subdivision plat, a certified survey map, an assessor's plat, a cemetery plat, a condominium plat, and a time-share plat.

11. Current law provides a penalty of not more than $250 or imprisonment for not more than one year in the county jail for various violations related to the placement of monuments by a surveyor. The bill provides that each monument to which a violation applies is a separate violation and therefore subject to a separate penalty.

The bill codifies the holding of the Wisconsin Supreme Court in FAS, LLC v. Town of Bass Lake, 2007 WI 73, 301 Wis. 2d 321, 733 N.W. 2d 287, by specifying that, unless a local ordinance provides otherwise, a navigable stream running through a parcel of property does not, in and of itself, divide the parcel into two lots if the same person holds title to the property on both sides of the stream.

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:

AB586, s. 1 Section 1. 15.405 (2) (intro.), (a) and (b) of the statutes, as affected by 2011 Wisconsin Act 32, are amended to read:

AB586,7,13 15.405 (2) Examining board of architects, landscape architects, professional engineers, designers, and professional land surveyors. (intro.) There is created an examining board of architects, landscape architects, professional engineers, designers, and professional land surveyors in the department of safety and professional services. Any professional member appointed to the examining board shall be registered or licensed to practice architecture, landscape architecture, professional engineering, the design of engineering systems, or professional land surveying under ch. 443. The examining board shall consist of the following members appointed for 4-year terms: 3 architects, 3 landscape architects, 3 professional engineers, 3 designers, 3 professional land surveyors, and 10 public members.

AB586,8,2 (a) In operation, the examining board shall be divided into an architect section, a landscape architect section, an engineer section, a designer section , and a professional land surveyor section. Each section shall consist of the 3 members of the named profession appointed to the examining board and 2 public members appointed to the section. The examining board shall elect its own officers, and shall meet at least twice annually.

AB586,8,7 (b) All matters pertaining to passing upon the qualifications of applicants for and the granting or revocation of registration or licensure, and all other matters of interest to either the architect, landscape architect, engineer, designer, or professional land surveyor section shall be acted upon solely by the interested section.

AB586, s. 2 Section 2. 20.165 (2) (j) of the statutes, as affected by 2011 Wisconsin Act 32, is amended to read:

AB586,8,19 20.165 (2) (j) Safety and building operations. The amounts in the schedule for the purposes of chs. 101, 145, and 168 and ss. 167.35, 236.12 (2) (a) (ap), 236.13 (1) (d) and (2m), and 236.335, for the purpose of transferring the amounts in the schedule under par. (kg) to the appropriation account under par. (kg), and for the purpose of transferring the amounts in the schedule under par. (km) to the appropriation account under par. (km). All moneys received under ch. 145, ss. 101.177 (4) (a) 4., 101.178, 101.19, 101.63 (9), 101.654 (3), 101.73 (12), 101.82 (4), 101.955 (2), 101.973 (7), 167.35 (2) (f), and 236.12 (7) and all moneys transferred under 2005 Wisconsin Act 45, section 76 (6), shall be credited to this appropriation account.

AB586, s. 3 Section 3. 26.09 (3) (b) 1. of the statutes is amended to read:

AB586,9,2 26.09 (3) (b) 1. A court shall award damages that equal the stumpage value of the raw forest products harvested if the person harvesting the raw forest products or the person giving consent for the harvesting reasonably relied upon a recorded survey that was done by a person who is registered licensed under ch. 443 as a professional land surveyor or who is issued a permit to engage in the practice of professional land surveying under s. 443.06 even if the recorded survey is determined, after the harvesting, to be in error.

AB586, s. 4 Section 4. 30.11 (3) of the statutes is amended to read: