AB582: Bill Text

CORRECTED COPY

LRB-3974/1

ES/MS/EM/PK:all

2015 - 2016 LEGISLATURE

2015 Assembly BILL 582

December 7, 2015 - Introduced by Representatives Jarchow, Allen, Craig, Czaja, Knodl, Nygren, Petersen and Tauchen, cosponsored by Senators Lasee, LeMahieu and Nass. Referred to Committee on Housing and Real Estate.

AB582,2,2 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., 70.32 (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), 66.10015 (1) (b), 66.10015 (1) (d), 66.10015 (2) (b), 66.10015 (2) (d), 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), 66.10015 (1) (as), 66.10015 (1) (bs), 66.10015 (3), 70.32 (2) (c) 4. b., 70.32 (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 bill 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 bill 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 bill.

4. Provides that the prohibitions in the bill, 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 bill requires a political subdivision to provide written notice to a landowner that potential action by the political subdivision may affect the allowable use of the landowner's property. The bill 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 bill eliminates a political subdivision's authority under current law to impose a fee for providing notice.

Vested rights

This bill requires a political subdivision to deny or approve a permit for activity related to a specific and identifiable land development based on regulations and ordinances in effect at the time that the permit application was submitted for approval. Also, if a project requires an approval from a state agency and a political subdivision, the existing requirements applicable at the time of filing the first application, whether filed with the state agency or political subdivision, are applicable to all subsequent approvals required for the project. The bill also provides that any deadline set by the political subdivision for approving a permit application must be extended so that it coincides with the period in which other related applications are being decided on, including the duration of any proceedings contesting the approval of such applications.

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 bill, 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 bill expands these prohibitions to a structure of which any part is legally located in the shoreland setback area only by operation of a variance.

Under the bill, 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 consistent with Department of Safety and Professional Services standards.

This bill 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 bill 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 bill 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 bill 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 bill 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 bill 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 bill provides that such land be assessed at its unimproved value. Other undeveloped land under current law is assessed at 50 percent of its full value.

Contested case hearings

Under this bill, 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.

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:

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

AB582,5,4 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 by acting under ch. 236. The powers granted by this section shall be exercised through an ordinance which may, subject to sub. (4e), determine, establish, regulate and restrict:

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

AB582,5,7 59.69 (4) (j) The Subject to s. 66.10015 (3), the density and distribution of population.

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

AB582,5,21 59.69 (5) (f) The county zoning agency shall maintain a list of persons who submit a written request to receive notice of any proposed ordinance or amendment that affects the allowable use of the property owned by the person. 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. The agency may charge each person on the list who receives a notice 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.

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

AB582,6,3 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:

AB582,6,7 (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.

AB582,6,9 (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.

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

AB582,6,17 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 only by operation of a variance if the activity does not expand the footprint of the nonconforming structure.

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

AB582,6,24 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 only by operation of a variance unless the vertical expansion would extend more than 35 feet above grade level.

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

AB582,7,2 59.692 (1k) (a) 6. Prohibits placement in a shoreland setback area of a device or system authorized under par. (a) 5.

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

AB582,7,9 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 only by operation of a variance if the expansion is necessary for the structure to comply with applicable state or federal requirements.

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

AB582,7,16 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 consistent with standards promulgated by the department of safety and professional services under ch. 101.

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

AB582,7,22 59.692 (7) (a) In this subsection, "facility" means any property or equipment of a public utility, as defined in s. 196.01 (5), or a cooperative association organized under ch. 185 for the purpose of producing or furnishing heat, light, or power to its members only, that is used for the transmission, delivery, or furnishing of natural gas, heat, light, or power.

AB582,7,25 (b) The construction and maintenance of a facility is considered to satisfy the requirements of this section and any county ordinance enacted under this section if any of the following applies: