Amendment ASA1-AB760

LRBs0509/1

MES:lmk:rs

2005 - 2006 LEGISLATURE

ASSEMBLY SUBSTITUTE AMENDMENT 1, TO 2005 ASSEMBLY BILL 760

March 2, 2006 - Offered by Committee on Property Rights and Land Management.

AB760-ASA1,1,7 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), 62.23 (7) (d) 1. b., 66.1001 (3) (intro.), 66.1001 (4) (a) and 236.13 (4); and to create 59.69 (3) (b) 1. to 5., 60.23 (33), 60.23 (34), 60.62 (5), 60.62 (6), 66.1001 (3m), 66.1001 (4) (f) and 66.1001 (4) (g) 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 substitute amendment, the county board may only designate a single committee of the board to act in all matters pertaining to county planning and zoning.

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 substitute amendment makes a number of changes to the comprehensive planning statute.

Under the substitute amendment, the comprehensive planning statute requires a local governmental unit to issue written findings, that include its reasons and its reasoning, 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 substitute amendment requires a court to conclude that the plan is valid. The substitute amendment 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 substitute amendment 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. In addition, only property owners have standing to file an action.

The substitute amendment 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.

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.

Current law authorizes a county board to repeal an existing county zoning ordinance and reenact a comprehensive revision by a single ordinance. Under this substitute amendment, a county is required, approximately every two years, to repeal an existing county zoning ordinance and reenact a comprehensive revision by a single ordinance. The bill requires the repeal and reenactment to occur within approximately 24 months after the county's comprehensive plan is updated, which current law requires every 10 years.

Also under this substitute amendment, a town board that is authorized to exercise village powers may enact an ordinance withdrawing completely, or partially, from coverage of a county zoning ordinance and a county development plan. The withdrawal may occur only during the 24-month period during which a county is required to repeal and reenact a comprehensive zoning ordinance. 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.

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 substitute amendment, the development plan includes the master plan and official map of a city or village only up to their incorporated limits, unless the city or village has entered into a cooperative boundary agreement with the adjacent town. The substitute amendment also requires that the county development plan include the official map of any town in the county that has adopted a comprehensive plan. Also under the substitute amendment, 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.

Current law 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 substitute amendment authorizes a town that may exercise village powers to adopt an official map at any time.

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 substitute amendment 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.

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

AB760-ASA1, s. 1 Section 1. 59.69 (1) of the statutes is amended to read:

AB760-ASA1,4,19 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-ASA1, s. 2 Section 2. 59.69 (2) (a) 1. of the statutes is amended to read:

AB760-ASA1,5,3 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.

AB760-ASA1, s. 3 Section 3. 59.69 (2) (e) of the statutes, as affected by 2005 Wisconsin Act 26, is amended to read:

AB760-ASA1,5,18 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. The county zoning agency shall also give advance notice to the media of the name of any person the agency knows of who is planning to appear and speak at any noticed public hearing. 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-ASA1, s. 4 Section 4. 59.69 (3) (a) of the statutes is amended to read:

AB760-ASA1,6,5 59.69 (3) (a) 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 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 the board and endorsed by the governing bodies of 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-ASA1, s. 5 Section 5. 59.69 (3) (b) of the statutes is renumbered 59.69 (3) (b) (intro.) and amended to read:

AB760-ASA1,6,11 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-ASA1, s. 6 Section 6. 59.69 (3) (b) 1. to 5. of the statutes are created to read:

AB760-ASA1,6,14 59.69 (3) (b) 1. The master plan, if any, up to the incorporated limits of any city or village, that was adopted under s. 62.23 (2) or (3).

AB760-ASA1,6,16 2. The official map, if any, up to the incorporated limits of a city or village described under subd. 1., that was adopted under s. 62.23 (6) in the county.

AB760-ASA1,6,18 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-ASA1,6,22 4. Any part of a city or village master plan, that was adopted under s. 62.23 (2) or (3), and that consists of territory outside of the corporate limits of the city or village, but only if the territory is covered by a cooperative plan under s. 66.0307 entered into by the city or village and the town in which the territory is located.

AB760-ASA1,7,2 5. Any part of the official map of a city or village described under subd. 1., that was adopted under s. 62.23 (6), and that consists of territory outside of the corporate limits of the city or village, but only if the territory is covered by a cooperative plan under s. 66.0307 entered into by the city or village and the town in which the territory is located.

AB760-ASA1, s. 7 Section 7. 59.69 (3) (e) of the statutes is amended to read:

AB760-ASA1,7,9 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-ASA1, s. 8 Section 8. 59.69 (5) (c) of the statutes is amended to read:

AB760-ASA1,7,21 59.69 (5) (c) A county ordinance enacted under 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, under 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. The ordinance shall become effective in the town as of the date of the 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. The ordinance shall supersede any prior town ordinance in conflict therewith or which is concerned with zoning, except as provided by s. 60.62. A town board may withdraw from coverage of a county zoning ordinance as provided under s. 60.23 (34).

AB760-ASA1, s. 9 Section 9. 59.69 (5) (d) of the statutes is amended to read:

AB760-ASA1,8,13 59.69 (5) (d) The board may shall by a single ordinance, not later than the 1st day of the 24th month beginning after the effective date of the most recently enacted update of a comprehensive plan under s. 66.1001 (2) (i), unless additional time is required to obtain the certification described under s. 91.06, repeal an existing county zoning ordinance and reenact a comprehensive revision thereto in accordance with this section. Except as otherwise provided in this paragraph, the repeal of the existing ordinance and reenactment of the comprehensive revision shall take effect on the same day. "Comprehensive revision", in this paragraph, means a complete rewriting of an existing zoning ordinance which changes numerous zoning provisions and alters or adds zoning districts. The comprehensive revision may provide that the existing ordinance shall remain in effect in a town for a period of up to one year or until the comprehensive revision is approved by the town board, whichever period is shorter. If the town board fails to approve the comprehensive revision within a year neither the existing ordinance nor the comprehensive revision shall be in force in that town. Any repeal and reenactment prior to November 12, 1965, which would be valid under this paragraph is hereby validated.

AB760-ASA1, s. 10 Section 10. 60.23 (33) of the statutes is created to read:

AB760-ASA1,8,19 60.23 (33) Official town map. Adopt an official map. A town board that is authorized to exercise village powers under s. 60.10 (2) (c) may adopt an official map under this subsection only by acting under s. 62.23 (6), and the town board and town officers have the same authority and responsibilities as a common council and city officers acting under that s. 62.23 (6).

AB760-ASA1, s. 11 Section 11. 60.23 (34) of the statutes is created to read:

AB760-ASA1,9,5 60.23 (34) Town withdrawal from county zoning. (a) Subject to pars. (b), (c), and (d), and if authorized to exercise village powers under s. 60.10 (2) (c), during the 24-month period described in s. 59.69 (5) (d), enact an ordinance withdrawing the town from coverage of a county zoning ordinance that had previously been approved under s. 59.69 (5) (c) and from coverage by a county development plan that has been enacted under s. 59.69 (3) (a). A town acting under this paragraph may withdraw completely, or only partially, from coverage of a county zoning ordinance, but the town may withdraw partially only if the county and town agree on the extent to which the town withdraws from, and the extent to which the town remains covered by, the county zoning ordinance.

AB760-ASA1,9,7 (b) Subject to par. (c), an ordinance enacted under par. (a) may not take effect until all of the following occur:

AB760-ASA1,9,10 1. Not later than 60 days before enacting an ordinance under par. (a), the town clerk notifies the county clerk, in writing, of the town's intent to enact an ordinance under par. (a).