AB92: Bill Text

LRB-1706/1

CS/MS/MG/GM/PH/JK/JTK:jld:ph

2009 - 2010 LEGISLATURE

2009 Assembly BILL 92

February 27, 2009 - Introduced by Representatives Shilling, Hintz, Molepske Jr., Lothian, Seidel, Dexter, Clark, Ballweg, Jorgensen, Bernard Schaber, Spanbauer, Strachota and Davis, cosponsored by Senators Lassa, Erpenbach, Risser, Taylor, Plale, Harsdorf, Vinehout, Lehman, Schultz, Darling and Leibham. Referred to Committee on Jobs, the Economy and Small Business.

AB92,2,2 An Act to renumber 44.02 (24) and 101.121 (4) (a); to renumber and amend 71.07 (9m) (a), 71.07 (9r) (a), 71.28 (6) (a) and 71.47 (6) (a); to amend 13.48 (7), 13.48 (15), 71.07 (9m) (c), 71.28 (6) (c), 71.47 (6) (c), 86.19 (1), 101.121 (4) (b), 101.19 (1) (intro.), 254.61 (1) (f) 2. and 823.21; and to create 13.48 (10) (c), 20.143 (1) (gb), 41.11 (1) (bm), 44.02 (24) (b), 44.02 (24d), 71.07 (9m) (a) 2., 71.07 (9m) (g), 71.07 (9m) (h), 71.07 (9r) (a) 2., 71.28 (6) (a) 2., 71.28 (6) (g), 71.28 (6) (h), 71.47 (6) (a) 2., 71.47 (6) (g), 71.47 (6) (h), 86.19 (4m), 86.37, 101.121 (3) (c), 101.121 (4) (a) 2., 101.121 (5), 101.975 (4), 227.01 (13) (zy), 560.03 (21m) and 560.083 of the statutes; relating to: the regulation, preservation, and restoration of historic buildings; the supplement to the federal historic rehabilitation tax credit and the state historic rehabilitation tax credit; requiring the certification of downtowns; promoting certain downtown areas in this state; highway projects involving business and downtown areas; granting rule-making authority; and making appropriations.

Analysis by the Legislative Reference Bureau

This bill makes numerous changes with regard to historic buildings and downtown development. Significant provisions include the following:

Historic buildings

State Historic Building Code

Current law authorizes the Department of Commerce (Commerce) to regulate the preservation and restoration of qualified historic buildings. 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 that is located in a district that is listed on the national or state register of historic places and is of historical significance to the district. Current law permits Commerce, in consultation with the Historic Building Code Council, to promulgate a historic building code that provides specific standards for the preservation or restoration of qualified historic buildings, while still providing for the health, safety, and welfare of occupants of and visitors to historic buildings. In addition, to permit the preservation or restoration of qualified historic buildings, Commerce may grant a variance from any rule promulgated under the chapters of the statutes relating to the regulation of industry, buildings, and safety or the regulation of plumbing, fire protection systems, and swimming pools.

With certain exceptions, the owner of a qualified historic building may elect to be subject to the State Historic Building Code. With limited exceptions, an owner who makes this election is exempt from any provision of any other building code, including a local building code, that concerns a matter that is dealt with in the State Historic Building Code. Although current law does not contain an administrative procedure designed specifically to determine whether an owner is entitled to this exemption, current law does contain a procedure that an owner may follow to resolve any conflicts between a local order and any order of Commerce that relates to the safety of places of employment or certain buildings that are open to the public (public buildings).

This bill specifies that the State Historic Building Code must be liberally interpreted to facilitate the preservation and restoration of qualified historic buildings. The bill also creates a specific administrative procedure for determining the extent to which a provision in a local building code applies to a qualified historic building. The bill permits the owner of a qualified historic building who has elected to be governed by the State Historic Building Code to request that Commerce review any decision of a local governmental unit that requires the owner to comply with a provision in a local ordinance. Commerce must review the decision to determine whether the provision in the ordinance concerns a matter dealt with in the State Historic Building Code, in which case the owner would be exempt from the provision. Commerce must consult with the State Historical Society (SHS) before making its determination. The bill specifies that, in performing this review, Commerce must follow the existing procedure for resolving conflicts between local orders and orders of Commerce that relate to the safety of places of employment or public buildings. In addition, the bill requires Commerce, in cooperation with the SHS, to develop an informational pamphlet to increase public awareness and use of the State Historic Building Code.

Historic buildings used as multifamily dwellings

Current law requires Commerce to promulgate rules that provide uniform standards for the construction of multifamily dwellings and their components. With certain exceptions, a multifamily dwelling is an apartment building, row house, town house, condominium, or manufactured building that does not exceed 60 feet in height or six stories and that consists of three or more attached dwelling units. These rules currently apply to any building or portion of a building that 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 State Historic Building Code. Rules promulgated by Commerce also permit a local governmental unit to exercise jurisdiction over the construction and inspection of multifamily dwellings by adopting ordinances that are consistent with Commerce's rules on multifamily dwellings. Currently, these rules contain specific requirements relating to the type, height, and design of handrails and guardrails that are required to be used in multifamily dwellings.

This bill permits a local governmental unit to adopt an ordinance that requires the local governmental unit to grant a variance from these handrail and guardrail requirements, as they apply to a qualified historic building that is converted from a single-family dwelling to a multifamily dwelling, if the owner of the qualified historic building shows that the type, height, and design of the handrail or guardrail proposed for installation is historically appropriate and if the handrail or guardrail is at least as protective of public safety as the rail that is otherwise required.

Historic rehabilitation tax credit

Under current law, a person who is eligible to claim a federal income tax credit equal to either 10 percent of qualified expenses related to rehabilitating a qualified building in this state or 20 percent of qualified expenses related to rehabilitating historic property in this state may also claim a supplemental state income or franchise tax credit that is equal to 5 percent of such qualified expenses.

Under the bill, for taxable years beginning in 2010, a person who is eligible to claim the federal rehabilitation tax credit may claim the supplemental state rehabilitation credit in an amount equal to 20 percent of qualified expenses, if the rehabilitated property is located in this state and the SHS certifies the rehabilitation. In addition, under the bill, a person who is not eligible to claim the federal rehabilitation tax credit because the person's qualified expenses do not satisfy the adjusted-basis requirement under federal law may claim the supplemental state rehabilitation credit in an amount equal to 20 percent of qualified expenses, if the qualified expenses are at least $10,000, the rehabilitated property is located in this state and the SHS certifies the rehabilitation. The SHS may charge and collect a fee for the certifications described in this paragraph in an amount equal to 2 percent of the qualified expenses, but not less than $300 nor more than $20,000. Fifty percent of the amount of such fees collected by the SHS will be used to provide additional staffing for the administration of the State Main Street Program, which is a program that promotes revitalization efforts in certain business areas.

Under current law, a person may claim an income tax credit equal to 25 percent of the qualified expenses to preserve or rehabilitate historic property that is used as an owner-occupied personal residence. The SHS certifies those expenses.

Under this bill, for taxable years beginning in 2010, a person who is eligible to claim the state income tax credit for preserving or rehabilitating historic property may claim the state income tax credit in an amount equal to 30 percent of qualified expenses, if the preserved or rehabilitated property is located in this state and the SHS approves the preservation or rehabilitation. The SHS may charge and collect a fee of $150 for certifying such expenses.

Under current law, if a person who claims the income tax credit for qualified expenses to preserve or rehabilitate an owner-occupied personal residence sells the property within five years from the date on which the preservation or rehabilitation is completed, or if the SHS determines that the preservation or rehabilitation does not comply with the standards established by the SHS, the person who claimed the tax credit must pay to the state all, or a portion, of the amount of the credit that the person received, depending on the date on which the person sold the property or on the date on which the preservation or rehabilitation does not comply with SHS standards.

Under this bill, if a person who claims the supplemental state income or franchise tax credit for qualified expenses related to preserving or rehabilitating historic property in this state sells the property within five years from the date on which the preservation or rehabilitation is completed, or if the SHS determines that the preservation or rehabilitation does not comply with the standards established by the SHS, the person who claimed the tax credit must pay to the state all, or a portion, of the amount of the credit that the person received, depending on the date on which the person sold the property or the date on which the preservation or rehabilitation does not comply with SHS standards.

Downtown development

Certification and promotion of downtowns

This bill requires Commerce to develop and publish guidelines to aid communities in reconstructing central business districts that are destroyed or severely damaged in major disasters. The bill also requires Commerce to promulgate rules pursuant to which Commerce will certify downtowns. In addition, under the bill, the Department of Tourism must promote travel to these certified downtowns and to business areas that are or have been the subject of revitalization efforts under the State Main Street Program.

Currently, the Building Commission (commission) submits biennial recommendations to the legislature for revisions to the long-range state building program. No state agency or authority may engage any person to undertake construction of a building for the agency costing more than $100,000 without prior approval of the commission. In addition, the commission has authority to lease land and buildings to be used for state purposes unless that authority is granted by law to another state agency.

This bill provides that the commission shall not authorize construction of any state office building to be located outside of a downtown area certified by Commerce, as required under the bill, unless the cost of locating the building inside such a downtown area is more than 10 percent greater than the average cost of locating the building outside the downtown areas of the territory that is served by the functions to be performed in the building on the date of initial occupancy outside of such a downtown area, as determined by the Department of Administration (DOA). The bill also provides that the commission, in preparing its recommendations for the long-range state building program, shall not recommend construction of a state office building to be located outside of such a downtown area, unless the commission would be authorized to permit construction of that building in the recommended location. In addition, the bill prohibits the commission from approving the lease of any building for state office facilities to be located outside of such a downtown area unless the cost of locating the facilities inside such a downtown area is more than 10 percent greater than the average cost of locating the facilities outside the downtown areas of the territory that is served by the functions to be performed in the facilities on the date of initial occupancy under the lease outside of such a downtown area, as determined by DOA.

This bill imposes additional requirements relating to highway projects that are funded by the Department of Transportation (DOT) and that involve a highway in a business area included in the State Main Street Program or in a downtown certified by Commerce. First, DOT must consult, during preliminary stages of a proposed highway project, on issues concerning the proposed project and its effect on the business or certified downtown area with Commerce and, unless none exists, with a local board or downtown planning organization of that municipality. Second, DOT must, during the concept definition phase of the project, recognize the high visual and aesthetic significance of, and impact related to, these types of highway projects in evaluating the aesthetic and visual impact of the project.

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:

AB92, s. 1 Section 1. 13.48 (7) of the statutes is amended to read:

AB92,6,12 13.48 (7) Biennial recommendations. The building commission shall prepare and formally adopt recommendations for the long-range state building program on a biennial basis. The building commission shall include in its report any projects proposed by the state fair park board involving a cost of not more than $250,000, together with the method of financing those projects proposed by the board, without recommendation. Unless a later date is requested by the building commission and approved by the joint committee on finance, the building commission shall, no later than the first Tuesday in April of each odd-numbered year, transmit the report prepared by the department of administration under s. 16.40 (20) and the commission's recommendations for the succeeding fiscal biennium that require legislative approval to the joint committee on finance in the form of proposed legislation prepared in proper form. If the building commission includes any recommendation for construction of a state office building, the commission shall ensure that the recommended location of the building is consistent with construction requirements under sub. (10) (c).

AB92, s. 2 Section 2. 13.48 (10) (c) of the statutes is created to read:

AB92,6,21 13.48 (10) (c) Unless otherwise required by law, the building commission shall not authorize the construction of any state office building, whether for utilization by a single agency or otherwise, to be located outside of a downtown area, as certified under s. 560.03 (21m), unless the cost of locating the building inside a downtown area is more than 10 percent greater than the average cost of locating the building in that portion of the territory that is served by the functions to be performed in the building on the date of initial occupancy outside of any downtown area, as determined by the department of administration.

AB92, s. 3 Section 3. 13.48 (15) of the statutes is amended to read:

AB92,7,8 13.48 (15) Acquisition of leasehold interests. Subject to the requirements of s. 20.924 (1) (i), the building commission shall have the authority to acquire leasehold interests in land and buildings where such authority is not otherwise provided to an agency by law. The building commission shall not approve any lease for state office facilities, whether for utilization by a single agency or otherwise, to be located outside of a downtown area, as certified under s. 560.03 (21m), unless the cost of locating the facilities inside a downtown area is more than 10 percent greater than the average cost of locating the facilities in that portion of the territory that is served by the functions to be performed in the facilities on the date of initial occupancy under the lease outside of any downtown area, as determined by the department of administration.

AB92, s. 4 Section 4. 20.143 (1) (gb) of the statutes is created to read:

AB92,7,12 20.143 (1) (gb) Certified downtowns and business district reconstruction. All moneys received from the historical society under s. 44.02 (24d) (b) for the purpose of providing staff for the administration of ss. 560.03 (21m) and 560.083.

AB92, s. 5 Section 5. 41.11 (1) (bm) of the statutes is created to read:

AB92,7,16 41.11 (1) (bm) Promote travel to business areas that are or have been the subject of revitalization efforts under the State Main Street Program under s. 560.081 or that are certified downtowns under s. 560.03 (21m).

AB92, s. 6 Section 6. 44.02 (24) of the statutes is renumbered 44.02 (24) (a).

AB92, s. 7 Section 7. 44.02 (24) (b) of the statutes is created to read:

AB92,7,21 44.02 (24) (b) Charge a fee of $150 for a certification under par. (a). The historical society shall collect the fee under this paragraph when an applicant applies for certification under par. (a).

AB92, s. 8 Section 8. 44.02 (24d) of the statutes is created to read:

AB92,8,2 44.02 (24d) (a) Promulgate by rule procedures, standards, and forms necessary to certify, and shall certify, expenditures for preservation or rehabilitation of historic property for the purposes of ss. 71.07 (9m), 71.28 (6), and 71.47 (6). Those standards shall be substantially similar to the standards used by the secretary of the interior to certify rehabilitations under 26 USC 47 (c) (2).

AB92,8,9 (b) Charge a fee for a certification under par. (a) equal to 2 percent of the qualified rehabilitation expenditures for the historic property that is the subject of the certification, except that no fee under this paragraph may be less than $300 nor more than $20,000. The historical society shall collect the fee under this paragraph when an applicant applies for certification under par. (a). Fifty percent of the amount collected under this paragraph shall be deposited into the appropriation account under s. 20.143 (1) (gb).

AB92, s. 9 Section 9. 71.07 (9m) (a) of the statutes is renumbered 71.07 (9m) (a) 1. and amended to read:

AB92,8,19 71.07 (9m) (a) 1. Any person may claim as a credit against the taxes otherwise due imposed under this chapter s. 71.02, up to the amount of those taxes, an amount equal to 5% 5 percent of the costs of qualified rehabilitation expenditures, as defined in section 47 (c) (2) of the internal revenue code Internal Revenue Code, for certified historic structures on property located in this state, if the physical work of construction or destruction in preparation for construction begins after December 31, 1988, and before January 1, 2010, and the rehabilitated property is placed in service after June 30, 1989.

AB92, s. 10 Section 10. 71.07 (9m) (a) 2. of the statutes is created to read:

AB92,9,2 71.07 (9m) (a) 2. a. Any person may claim as a credit against the taxes imposed under s. 71.02, up to the amount of those taxes, an amount equal to 20 percent of the costs of qualified rehabilitation expenditures, as defined in section 47 (c) (2) of the Internal Revenue Code, for certified historic structures on property located in this state, if the physical work of construction or destruction in preparation for construction begins after December 31, 2009.

AB92,9,17 b. A person whose qualified rehabilitation expenditures do not satisfy the adjusted basis requirement under section 47 (c) (1) of the Internal Revenue Code, but who otherwise would be eligible to claim the rehabilitation credit under section 47 of the Internal Revenue Code, may claim as a credit against the taxes imposed under s. 71.02, up to the amount of those taxes, an amount equal to 20 percent of the costs of qualified rehabilitation expenditures, as defined in section 47 (c) (2) of the Internal Revenue Code, if the property is located in this state; if the person's qualified rehabilitation expenditures, as defined in section 47 (c) (2) of the Internal Revenue Code, are at least $10,000; if the rehabilitation is approved by the state historical society before the physical work of construction, or destruction in preparation for construction, begins; if the person includes evidence of such approval with the person's return; if the physical work of construction, or destruction in preparation for construction, begins after December 31, 2009; and if the person claims the credit for the same taxable year in which the person would have claimed the credit for federal purposes.

AB92, s. 11 Section 11. 71.07 (9m) (c) of the statutes is amended to read:

AB92,9,25 71.07 (9m) (c) No person may claim the a credit under this subsection unless the claimant includes with the claimant's return evidence that the rehabilitation was approved recommended by the state historic preservation officer for approval by the secretary of the interior under 36 CFR 67.6 before the physical work of construction, or destruction in preparation for construction, began, and the claimant claims the credit for the same taxable year in which the claimant would have claimed the credit for federal purposes.

AB92, s. 12 Section 12. 71.07 (9m) (g) of the statutes is created to read:

AB92,10,9 71.07 (9m) (g) A person who has incurred qualified rehabilitation expenditures, as defined in section 47 (c) (2) of the Internal Revenue Code, for certified historic structures located in this state, as described in par. (a), but who is not a resident of this state and who is not required to file a return under this chapter, may enter into an agreement with another person, with the department's approval and in the manner prescribed by the department, so that the other person may claim the credit under this subsection, if the other person is subject to the taxes imposed under s. 71.02.

AB92, s. 13 Section 13. 71.07 (9m) (h) of the statutes is created to read:

AB92,10,19 71.07 (9m) (h) A person who receives a credit under this subsection shall add to the person's liability for taxes imposed under s. 71.02 one of the following percentages of the amount of the credits received under this subsection for rehabilitating or preserving the property if, within 5 years after the date on which the preservation or rehabilitation work that was the basis of the credit is completed, the person either sells or conveys the property by deed or land contract or the state historical society certifies to the department of revenue that the historic property has been altered to the extent that it does not comply with the standards promulgated under s. 44.02 (24d):

AB92,10,21 1. If the sale, conveyance, or noncompliance occurs during the first year after the date on which the preservation or rehabilitation is completed, 100 percent.

AB92,10,23 2. If the sale, conveyance, or noncompliance occurs during the 2nd year after the date on which the preservation or rehabilitation is completed, 80 percent.

AB92,10,25 3. If the sale, conveyance, or noncompliance occurs during the 3rd year after the date on which the preservation or rehabilitation is completed, 60 percent.

AB92,11,2 4. If the sale, conveyance, or noncompliance occurs during the 4th year after the date on which the preservation or rehabilitation is completed, 40 percent.

AB92,11,4 5. If the sale, conveyance, or noncompliance occurs during the 5th year after the date on which the preservation or rehabilitation is completed, 20 percent.

AB92, s. 14 Section 14. 71.07 (9r) (a) of the statutes is renumbered 71.07 (9r) (a) 1. and amended to read:

AB92,11,18 71.07 (9r) (a) 1. For taxable years beginning on or after August 1, 1988 July 31, 1988, and before January 1, 2010, any natural person may claim as a credit against the taxes otherwise due imposed under s. 71.02, up to the amount of those taxes, an amount equal to 25% 25 percent of the costs of preservation or rehabilitation of historic property located in this state, including architectural fees and costs incurred in preparing nomination forms for listing in the national register of historic places in Wisconsin or the state register of historic places, if the nomination is made within 5 years prior to submission of a preservation or rehabilitation plan under par. (b) 3. b., and if the physical work of construction or destruction in preparation for construction begins after December 31, 1988, except that the credit may not exceed $10,000, or $5,000 for married persons filing separately, for any preservation or rehabilitation project.

AB92, s. 15 Section 15. 71.07 (9r) (a) 2. of the statutes is created to read:

AB92,12,5 71.07 (9r) (a) 2. For taxable years beginning after December 31, 2009, any natural person may claim as a credit against the taxes imposed under s. 71.02, up to the amount of those taxes, an amount equal to 30 percent of the costs of preservation or rehabilitation of historic property that is located in this state, including architectural fees and costs incurred in preparing nomination forms for listing in the national register of historic places in Wisconsin or the state register of historic places, if the nomination is made within 5 years prior to submission of a preservation or rehabilitation plan under par. (b) 3. b., and if the physical work of construction or destruction in preparation for construction begins after December 31, 2009, except that the credit may not exceed $10,000, or $5,000 for married persons filing separately, for any preservation or rehabilitation project.