SB371: Bill Text

The intent is not to shift the balance in the historic building code between preservation and restoration of historic buildings on one hand, and public health, safety and welfare on the other hand. The intent is to favor the preservation and restoration of historic buildings in questions involving close judgments.

SB371, s. 18 Section 18. 101.121 (4) (a) of the statutes is renumbered 101.121 (4) (a) 1.

SB371, s. 19 Section 19. 101.121 (4) (a) 2. of the statutes is created to read:

SB371,15,8 101.121 (4) (a) 2. Upon the request of the owner of a qualified historic building, the department shall review any decision of a city, village, town or county that requires the owner to comply with a provision of a county or municipal building code, or of any other local ordinance or regulation, to determine if the provision concerns a matter dealt with in the historic building code. The procedures in s. 101.02 (7) apply to any review conducted by the department under this subdivision.

Note: Section 101.121 (4) (a), stats., authorizes the owner of a "qualified historic building" to elect to be subject to the historic building code. A qualified historic building is a building that is listed on the national or state register of historic places or a certified local register of historic property, or is within a historic district on one of those lists and has been determined to contribute to the historic significance of the district. Under the historic building code, the owner of the historic building may use alternative standards that allow preservation of the historic aspects of the building while still providing for the health, safety and welfare of occupants and visitors in the building.

One of the consequences of the election to use the historic building code is that the owner of the historic building is not required to comply with any provision of a county or municipal building code or other local ordinance or regulation that concerns a "matter dealt with" in the historic building code (the phrase used in the statute). In the rules creating the historic building code, the department of commerce has elaborated on this statutory provision by providing explicitly that local regulations pertaining to land use, zoning, fire districts or "other similar requirements" are not affected by the historic building code. [s. Comm 70.04 (2), Wis. adm. code.]

The statutes contain a general procedure, in s. 101.02 (7), stats., to resolve conflicts between local standards, decisions and ordinances and the statutes and rules enforced by the department of commerce. The statute provides that local units of government continue to have authority to enact and enforce regulations for the protection of public health and safety. However, rules and decisions of the department of commerce are deemed by the statute to amend or modify conflicting local regulations. Any person who is affected by a local regulation that is in conflict with a state regulation or an order of the department may petition for a hearing by the department on whether there is a conflict, and the department may nullify a local regulation that conflicts with state regulations.

The appeal process in s. 101.02 (7), stats., focuses on conflicts between state and local safety or health regulations. This provision of the bill makes it clear that the department may determine the proper scope of local regulation with respect to buildings that are subject to the historic building code, including issues related to historic preservation and restoration.

SB371, s. 20 Section 20. 101.121 (5) of the statutes is created to read:

SB371,16,6 101.121 (5) Advisory opinion of state historical society. (a) The owner of a qualified historic building may submit to the state historical society a request for an advisory opinion with respect to any decision of the department, or of a city, village, town or county that is an agent of the department, if the decision pertains to any of the following:

SB371,16,8 1. This section or a rule promulgated under this section, except for a decision of the department under sub. (4) (a) 2.

SB371,16,9 2. A variance to a rule promulgated under this section.

SB371,16,11 3. The inspection of a qualified historic building for compliance with a rule promulgated under this section.

SB371,16,14 (b) Upon receiving a request under par. (a), the state historical society shall review all information related to the decision and shall render a written opinion on the following:

SB371,16,16 1. Whether the decision is consistent with this section and the rules promulgated under this section.

SB371,16,19 2. Whether the alternative decision requested by the owner of the qualified historic building, or any other alternative decision, is consistent with this section and the rules promulgated under this section.

SB371,17,6 (c) The state historical society may negotiate with the department or the city, village, town or county and the owner of the qualified historic building to seek agreement on an alternative decision that will allow the greatest possible degree of restoration and preservation of the qualified historic building, while continuing to meet the standards for the health, safety and welfare of occupants of and visitors to the qualified historic building.

SB371,17,8 (d) The department or a city, village, town or county may modify any decision described under par. (a) based on negotiations with the state historical society.

SB371,17,10 (e) This subsection does not modify any procedures for appeal of a decision of the department or of a city, village, town or county under this section.

Note: Current s. 101.02 (7) provides a formal appeals process for decisions of the department of commerce and local units of government acting as agents of the department with respect to building code issues. The review process involves a review within the department, followed by judicial review. The standards for judicial review require the court to uphold the decision of the department or the local unit of government if there is "substantial evidence" to support the decision, a difficult standard for a building owner to overcome. Also, judicial review is time-consuming and expensive.

This provision of the bill creates a new, informal process for review of a decision of the department or the local unit of government. The request for review must be submitted to the state historical society. The state historical society reviews all information related to the decision and renders an opinion on whether the decision of the department or the local unit of government is consistent with the historic building code and whether there are other ways to meet the requirements and objectives of the historic building code. The bill authorizes the historical society to negotiate with the department, the local unit of government and the historic building owner. The department or local unit of government may modify its decision based on the negotiations.

This new procedure does not change any time limits or procedures for formal review of any decisions.

SB371, s. 21 Section 21. 101.121 (7) of the statutes is created to read:

SB371,17,16 101.121 (7) Informational pamphlet. (a) In cooperation with the state historical society, the department shall develop an informational pamphlet designed to increase awareness and use of the historic building code. The pamphlet shall be updated as statutes and rules relating to the historic building code are amended. The pamphlet shall include the following information:

SB371,18,1 1. A description of the historic building code.

SB371,18,3 2. A description of the types and qualities of buildings that are subject to the historic building code.

SB371,18,6 3. An explanation of how the owner of a qualified historic building may elect to be subject to the historic building code and a description of the consequences of that election.

SB371,18,8 4. A description of other alternative building codes that a historic building owner may be eligible to use.

SB371,18,10 5. A description of where further information regarding historic buildings and the historic building code may be obtained.

SB371,18,13 (b) The department and the state historical society shall distribute the pamphlets as they consider necessary to increase awareness of the historic building code.

Note: This Section creates s. 101.121 (7), stats., which requires the department of commerce, in cooperation with the state historical society, to develop a pamphlet designed to inform owners of historic buildings of the scope and applicability of the historic building code and alternatives to using the historic building code. The pamphlet is also intended to increase awareness of the historic building code. The department of commerce must update the pamphlet as statutes and rules relating to the historic building code are amended. The provision requires the department of commerce and the state historical society to distribute the pamphlets as they consider necessary to increase awareness of the historic building code.

SB371, s. 22 Section 22. 101.122 (4) (b) 1. of the statutes is amended to read:

SB371,18,16 101.122 (4) (b) 1. Order Subject to s. 66.038, order demolition of the rental unit no sooner than 90 days after the order.

Note: This provision applies the requirements of s. 66.038, as created by this bill, to decisions of the department of commerce or a city, village or town to require demolition of a property that does not comply with the rental unit energy efficiency requirements of s. 101.122, stats.

SB371, s. 23 Section 23. 101.132 (1m) of the statutes is created to read:

SB371,19,5 101.132 (1m) Compliance with federal standards. All rules promulgated by the department under this section relating to qualified historic buildings, as defined in s. 101.121 (2) (c), shall comply with and not exceed the requirements of the Fair Housing Act under 42 USC 3601 to 3620 and the Americans with Disabilities Act under 42 USC 12181 and regulations adopted under those acts.

Note: This Section provides that all rules promulgated by the department of commerce relating to requirements that housing be accessible to physically disabled persons, as they relate to qualified historic buildings, must comply with and not exceed the requirements of the federal Fair Housing Law and the Americans with Disabilities Act and any regulations adopted under those acts. Under this requirement, the department of commerce would be required to amend its rules so that: (1) if an existing qualified historic building with mixed occupancies is remodeled or added to and the gross interior area of the building after the remodeling or addition is greater than 20,000 square feet, interior circulation between floor levels would not be required; and (2) the state fair housing law would not be applicable to existing qualified historic buildings undergoing a change of use if the building is changed to a covered multi-family housing use and the building is remodeled or added to.

SB371, s. 24 Section 24 . 101.132 (2) (b) 3m. of the statutes is created to read:

SB371,19,8 101.132 (2) (b) 3m. The requirements under this paragraph do not apply to qualified historic buildings, as defined in s. 101.121 (2) (c).

Note: This Section provides that s. 101.132 (2) (b), stats., relating to making housing accessible to physically disabled persons when the housing is remodeled, does not apply to qualified historic buildings. Current s. 101.132 (2) (b), stats., provides as follows:

"101.132 (2) (b) Remodeling. 1. If more than 50% of the interior square footage of any housing with 3 or more dwelling units is to be remodeled, the entire housing shall conform to the standards in par. (a), regardless of when the housing was first intended for occupancy.

2. If 25% to 50% of the interior square footage of any housing with 3 or more dwelling units is to be remodeled, that part of the housing that is to be remodeled shall conform to the standards in par. (a), regardless of when the housing was first intended for occupancy.

3. If less than 25% of the interior square footage of any housing with 3 or more dwelling units is to be remodeled, the remodeling is not subject to the standards in par. (a) unless the alteration involves work on doors, entrances, exits or toilet rooms, in which case the doors, entrances, exits or toilet rooms shall conform to the standards in par. (a) regardless of when the housing was first intended for occupancy.

4. The department may grant a variance or waiver from the requirements under this paragraph relating to exterior accessibility using the standards and procedures under par. (c).".

The intent of this change is to make Wisconsin statutes relating to qualified historic buildings consistent with the federal fair housing law. The federal Fair Housing Law applies only to buildings which are first occupied after March 31, 1991.

SB371, s. 25 Section 25. 101.19 (1) (intro.) of the statutes is amended to read:

SB371,20,5 101.19 (1) (intro.) The Except as provided in sub. (1m), the department, by rule promulgated under ch. 227, shall fix and collect promulgate rules establishing and providing for the collection of fees which shall, as closely as possible, equal the cost of providing the following services:

SB371, s. 26 Section 26. 101.19 (1m) of the statutes is created to read:

SB371,20,10 101.19 (1m) The department shall waive the fees under sub. (1) (a), (am), (b), (d) and (i) for any preservation or restoration of a building or structure that is more than 100 years old if the state historic preservation officer certifies to the department all of the following:

SB371,20,12 (a) That the plan for the preservation or restoration of the building or structure complies with the standards promulgated under s. 44.02 (24).

SB371,20,19 (b) That the building or structure is listed on the national register of historic places in Wisconsin or the state register of historic places, is determined by the state historical society to be eligible for listing on the national register of historic places in Wisconsin or the state register of historic places, or is located in a historic district which is listed in the national register of historic places in Wisconsin or the state register of historic places and is certified by the state historic preservation officer as being of historic significance to the district.

Note: Under current s. 101.19, stats., the department of commerce is required to charge fees to recover the costs of services it provides related to plan review and inspection of construction projects that are subject to regulation by the department. The fees include fees for plan review, inspections, variances and copying.

This bill requires the department of commerce to waive those fees for a preservation or restoration project affecting a building or structure that is more than 100 years old. To qualify for the waiver of fees, the state historic preservation officer must certify to the department of commerce that the building or structure is listed on or eligible for listing on the national or state register of historic places and the plans for the preservation or restoration comply with the standards that are applicable to projects that qualify for the income tax credit for historic property renovations.

SB371, s. 27 Section 27 . 101.63 (1) of the statutes is renumbered 101.63 (1) (intro.) and amended to read:

SB371,21,12 101.63 (1) (intro.) Adopt rules which establish standards for the construction and inspection of one- and 2-family dwellings and components thereof. Where feasible, the standards used shall be those nationally recognized and shall apply to the dwelling and to its electrical, heating, ventilating, air conditioning and other systems, including plumbing, as defined in s. 145.01 (10). No set of rules may be adopted which has not taken into account the conservation of energy in construction and maintenance of dwellings and the costs of specific code provisions to home buyers in relationship to the benefits derived from the provisions. Rules promulgated under this subsection do not apply to a bed and breakfast establishment, as defined in s. 254.61 (1), except that the rules apply to all of the following:

SB371, s. 28 Section 28 . 101.63 (1) (a) and (b) of the statutes are created to read:

SB371,21,15 101.63 (1) (a) The 3rd floor level of a bed and breakfast establishment that uses that level other than as storage.

SB371,21,16 (b) A structural addition that is specified under s. 254.61 (1) (f) 2.

SB371, s. 29 Section 29. 101.63 (1m) of the statutes is amended to read:

SB371,21,21 101.63 (1m) Adopt a rule which requires any one- and 2-family dwelling which uses electricity for space heating to be superinsulated. A rule promulgated under this subsection does not apply to a bed and breakfast establishment, as defined in s. 254.61 (1), except as specified in sub. (1) (a) and (b).

Note: The provision in Section 28 regarding structural additions to bed and breakfast establishments is new and relates to the new provision in Section 32 that allows a structural addition to a bed and breakfast establishment that is more than 50 years old if the addition complies with the uniform one- and 2-family dwelling code. The other provisions of Sections 16 , 27 and 28 and this Section merely reorganize the statutes that exempt certain bed and breakfast establishments from various building codes.

SB371, s. 30 Section 30. 101.975 (4) of the statutes is created to read:

SB371,22,12 101.975 (4) A political subdivision may adopt an ordinance that permits it to grant a variance to the uniform multifamily dwelling code relating to handrails and guardrails of qualified historic buildings, as defined in s. 101.121 (2) (c), that are converted from single-family dwellings to multifamily dwellings. The ordinance shall require the owner of a qualified historic building who seeks a variance to provide the political subdivision with evidence that the type, height and design of the handrail or guardrail proposed for installation is historically appropriate for the owner's building. Upon the provision of such evidence, the political subdivision may grant a variance to the uniform multifamily dwelling code that permits the owner to install a handrail or guardrail that is at least as protective of public safety as the historically appropriate handrail or guardrail.

Note: Under current law, the uniform multifamily dwelling code [ch. Comm 66] applies to any building or portion of a building which is converted to a multifamily dwelling after April 1, 1995 unless the building is a qualified historic building and the owner elects to be subject to the historic building code. Under s. 101.971 (2), stats., a multifamily dwelling is defined as an apartment building, row house, town house, condominium or manufactured building that does not exceed 60 feet in height or 6 stories and that consists of 3 or more attached dwelling units.

This Section creates s. 101.975 (4) to permit a political subdivision to adopt an ordinance that allows it to grant a variance to the uniform multifamily dwelling code relating to handrails and guardrails of qualified historic buildings that are converted from single-family dwellings to multifamily dwellings. Under the uniform multifamily dwelling code, the top of a handrail must be mounted between 34 and 38 inches above the nosing of the treads on stairways or above the surface of ramps. Guardrails in dwelling units must extend to at least 36 inches above the upper surface of the floor. In nondwelling unit portions, the guardrails must extend at least 42 inches above the upper surface of the floor.

Under the bill, the ordinance must require the owner of the building who is seeking the variance to provide the political subdivision with evidence that the type, height and design of the handrail or guardrail proposed for installation is historically appropriate for the building. Upon the provision of that evidence, the bill provides that the political subdivision may grant a variance to the uniform multifamily dwelling code that permits the owner to install a handrail or guardrail that is at least as protective of public safety as the historically appropriate handrail or guardrail.

SB371, s. 31 Section 31. 254.61 (1) (f) of the statutes is renumbered 254.61 (1) (f) (intro.) and amended to read:

SB371,23,3 254.61 (1) (f) (intro.) Has had completed, before May 11, 1990, any structural additions to the dimensions of the original structure, including by renovation, except that a this limit does not apply to any of the following:

SB371,23,6 1. A structural addition, including a renovation, that is made to the structure may, after May 11, 1990, be made and that is within the dimensions of the original structure.

SB371, s. 32 Section 32 . 254.61 (1) (f) 2. of the statutes is created to read:

SB371,23,12 254.61 (1) (f) 2. A structural addition, including a renovation, that complies with the uniform dwelling code adopted in rules promulgated under s. 101.63 (1) and (1m) and that is made to a structure that was originally constructed at least 50 years before an application for a permit is made under s. 254.64 (1) (b) and for which no use other than as a bed and breakfast establishment is proposed by the owner.

Note: The current statutes define "bed and breakfast establishment" for the purposes of determining the applicability of environmental health regulations, building code requirements and other regulatory provisions. The basic purpose of this definition is to set limits on the kinds of establishments that are deemed to be bed and breakfast establishments and thus are subject to those specific regulations. Establishments that provide food and lodging beyond the scope of the definition of a bed and breakfast establishment are subject to regulation as hotels, restaurants or other similar types of establishments, which in general means that the establishments are subject to the commercial building code and the commercial restaurant regulations.

The definition of bed and breakfast establishment has 6 elements. The first 5 elements of the definition provide that a bed and breakfast establishment is any place of lodging that:

"(a) Provides 8 or fewer rooms for rent to no more than a total of 20 tourists or transients.

(b) Provides no meals other than breakfast and provides the breakfast only to renters of the place.

(c) Is the owner's personal residence.

(d) Is occupied by the owner at the time of rental.

(e) Was originally built and occupied as a single-family residence, or, prior to use as a place of lodging, was converted to use and occupied as a single-family residence.".

The special committee focused its attention on the 6th element of the definition, which is modified by this bill. The current definition of bed and breakfast establishment in s. 254.61 (1) (f), stats., provides that a bed and breakfast establishment is a place of lodging that:

"Has had completed, before May 11, 1990, any structural additions to the dimensions of the original structure, including by renovation, except that a structural addition, including a renovation, to the structure may, after May 11, 1990, be made within the dimensions of the original structure.".

The May 11, 1990 date is the date that this provision first took effect. At that time, when this restriction was created, the intent was to avoid situations in which a one- or 2-family home is constructed and shortly thereafter is substantially expanded as a bed and breakfast establishment. The restriction allows structural additions or renovations within the "dimensions" of the original structure, but does not allow additions to a structure after May 11, 1990, if that structure is to be used as a bed and breakfast establishment.

A consequence of this restriction is that older buildings, which often have attractive historic features and are desirable as bed and breakfast establishments, cannot be expanded to provide suitable facilities for the bed and breakfast establishment. This bill authorizes structural additions or renovation to the structure if the structure is more than 50 years old, if no other use than as a bed and breakfast establishment is proposed and if the structural addition complies with the uniform one- and 2-family dwelling code.

SB371, s. 33 Section 33. 823.21 of the statutes is amended to read:

SB371,24,6 823.21 Dilapidated buildings declared nuisances. Any building which, under s. 66.05 (1m), has been declared so old, dilapidated or out of repair as to be dangerous, unsafe, unsanitary or otherwise unfit for human habitation or has been determined to be unreasonable to repair under s. 66.05 (1m) is a public nuisance and may be proceeded against under this chapter.

Note: The amendment corresponds with the amendment in this bill to s. 66.05 (1m), which includes an explanatory note.

SB371, s. 34 Section 34. Nonstatutory provisions; legislature.

SB371,24,11 (1) Study of rural historic preservation. The joint legislative council is requested to study methods to promote rural historic preservation. If the council undertakes such a study, the council shall report its findings, conclusions and recommendations to the 2001 legislature when it convenes.

SB371, s. 35 Section 35. Appropriation changes; historical society.

SB371,25,2 (1) Survey of rural historic buildings. In the schedule under section 20.005 (3) of the statutes for the appropriation to the state historical society under section 20.245 (3) (a) of the statutes, as affected by the acts of 1999, the dollar amount is increased by $75,000 for fiscal year 1999-00 and the dollar amount is increased by $75,000 for fiscal year 2000-01 for the purpose of entering into a contract for a survey under section 44.34 (1) of the statutes to identify and document historic properties in rural areas of the state.