CORRECTED COPY
LRBs0222/1
EHS/MES/GMM:klm
2015 - 2016 LEGISLATURE
ASSEMBLY SUBSTITUTE AMENDMENT 2,
TO ASSEMBLY BILL 582
January 19, 2016 - Offered by Representative Jarchow.
AB582-ASA2,2,5
1An Act to renumber 66.1001 (2m), 706.22 (2) (a) 1., 706.22 (2) (a) 2. and 706.22
2(2) (a) 3.;
to renumber and amend 70.32 (2) (c) 4., 706.22 (2) (b) and 706.22
3(3);
to amend 59.69 (4) (intro.), 59.69 (4) (j), 59.69 (5) (f), 59.692 (1k) (a) 2.,
459.692 (1k) (a) 4., 59.692 (1k) (b), 60.61 (2) (a) 6., 60.61 (4) (f), 62.23 (7) (am),
562.23 (7) (d) 4., 66.1001 (2m) (title), 66.1001 (4) (f), 66.10015 (title), 66.10015 (1)
6(a), 74.485 (4) (a), 227.57 (10), 236.45 (2) (am) (intro.), 706.22 (title), 706.22 (2)
7(title) and 706.22 (2) (a) (intro.); and
to create 59.692 (1h), 59.692 (1k) (a) 6.,
859.692 (1p), 59.692 (7), 66.1001 (2m) (b), 66.10015 (1) (as), 66.10015 (1) (bs),
966.10015 (3), 66.1036, 70.32 (2) (c) 4. b., 227.137 (3) (g), 227.445, 227.57 (11),
10700.28, 706.22 (2) (a) 2m., 706.22 (2) (a) 3m., 706.22 (2) (b) 2., 706.22 (3) (b) and
11895.463 of the statutes;
relating to: government actions affecting rights to real
12property; the regulation of shoreland zoning; the contents of an economic
13impact analysis of a proposed administrative rule; the substitution of hearing
1examiners in Department of Natural Resources and Department of
2Agriculture, Trade and Consumer Protection contested cases; the standard for
3judicial review of a state agency action or decision affecting a property owner's
4use of the owner's property; and the property tax treatment of unoccupied
5property.
Analysis by the Legislative Reference Bureau
Introduction
This substitute amendment makes various changes to the regulation of
property rights and shoreland zoning, requires an economic impact analysis of a
proposed administrative rule to analyze any limitations that the rule would place on
the free use of private property, allows for the substitution of hearing examiners in
contested case hearings, and requires a court to accord no deference to a state
agency's interpretation of law when reviewing an agency action or decision that
restricts a property owner's free use of the owner's property.
property rights
Procedural protections
Restrictions on sale, purchase, development, or occupancy of real property
This substitute amendment 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 the
property.
3. Invalidates any ordinance, resolution, or policy currently in effect that is
inconsistent with the prohibitions in the substitute amendment.
4. Provides that the prohibitions in the substitute amendment, 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
Current law requires a political subdivision to provide notice to a landowner,
and the substitute amendment requires a political subdivision to provide annual
notification to residents of the political subdivision that they may request such
notice, that potential action by the political subdivision may affect the allowable use
of the landowner's property. The substitute amendment 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 substitute
amendment limits a political subdivision's authority under current law to impose a
fee for providing notice to charges for 1st class mailings.
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 substitute amendment, 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 prohibits DNR from impairing the interest of a landowner in
shoreland property by establishing a shoreland zoning standard, and prohibits a
county from impairing the interest of a landowner in shoreland property by enacting
or enforcing a shoreland zoning ordinance, that regulates certain activities in certain
ways. These prohibited regulations include the prohibition or regulation of 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 the prohibition or regulation of the vertical expansion of a
nonconforming structure. This substitute amendment expands these prohibitions
to a structure of which any part is legally located in the shoreland setback area by
operation of a variance granted before July 13, 2015.
The substitute amendment also provides that if DNR or a county is prohibited
from impairing the interest of a landowner in shoreland property by regulating an
activity and if that activity requires a building permit, the city, village, or town that
issues the building permit must send a copy of the building permit to the county
clerk.
Under the substitute amendment, 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 not inconsistent with Department of Safety and Professional
Services standards.
This substitute amendment 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 substitute amendment 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 substitute amendment requires a court to resolve any ambiguity in a
matter involving a word or phrase in a zoning ordinance or shoreland zoning
ordinance in favor of the free use of private property.
Supermajority vote to down zone a property
The substitute amendment 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 substitute amendment defines a down zoning
ordinance as an ordinance that affects an area of land by either rezoning it to a usage
that is less dense than its previous usage or by reducing permitted uses of the land.
Property tax treatment of undeveloped land
This substitute amendment 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 all approvals required for use of the land are
issued. The substitute amendment also provides that such land may be subject to
a conversion charge if its assessment changes from agricultural to unimproved.
Other undeveloped land under current law is assessed at 50 percent of its full value.
Generally, these provisions do not apply to land that is located in a tax incremental
financing district.
Administrative rule-making and proceedings
Economic impact analyses
This substitute amendment requires an economic impact analysis of a proposed
administrative rule to include an analysis of the ways in which and the extent to
which the proposed rule would place any limitations on the free use of private
property, including a discussion of alternatives to the proposed rule that would
minimize any such limitations.
Contested case hearings
Under this substitute amendment, 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.
Judicial review of agency actions and decisions
This substitute amendment requires a court, on review of a state agency action
or decision affecting a property owner's use of the owner's property, to accord no
deference to the agency's interpretation of law if the agency action or decision
restricts the property owner's free use of the owner's property.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB582-ASA2,1
1Section
1. 59.69 (4) (intro.) of the statutes is amended to read:
AB582-ASA2,5,142
59.69
(4) Extent of power. (intro.) For the purpose of promoting the public
3health, safety and general welfare the board may by ordinance effective within the
4areas within such county outside the limits of incorporated villages and cities
5establish districts of such number, shape and area, and adopt such regulations for
6each such district as the board considers best suited to carry out the purposes of this
7section. The board may establish mixed-use districts that contain any combination
8of uses, such as industrial, commercial, public, or residential uses, in a compact
9urban form.
The board may not enact a development moratorium, as defined in s.
1066.1002 (1) (b), under this section or s. 59.03, by acting under ch. 236, or by acting
11under any other law, except that this prohibition does not limit any authority of the
12board to impose a moratorium that is not a development moratorium. The powers
13granted by this section shall be exercised through an ordinance which may, subject
14to sub. (4e), determine, establish, regulate and restrict:
AB582-ASA2,2
15Section
2. 59.69 (4) (j) of the statutes is amended to read:
AB582-ASA2,5,1716
59.69
(4) (j)
The Subject to s. 66.10015 (3), the density and distribution of
17population.
AB582-ASA2,3
18Section
3. 59.69 (5) (f) of the statutes is amended to read:
AB582-ASA2,6,19
159.69
(5) (f) The county zoning agency shall maintain a list of persons who
2submit a written
or electronic request to receive notice of any proposed ordinance or
3amendment that affects the allowable use of the property owned by the person.
4Annually, the agency shall inform residents of the county that they may add their
5names to the list. The agency may satisfy this requirement to provide such
6information by any of the following means: publishing a 1st class notice under ch.
7985; publishing on the county's Internet site; 1st class mail; or including the
8information in a mailing that is sent to all property owners. If the county zoning
9agency completes a draft of a proposed zoning ordinance under par. (a) or if the
10agency receives a petition under par. (e) 2., the agency shall send a notice, which
11contains a copy
or summary of the proposed ordinance or petition, to each person on
12the list whose property, the allowable use
or size or density requirements of which,
13may be affected by the proposed ordinance or amendment. The notice shall be by
14mail or in any reasonable form that is agreed to by the person and the agency
,
15including electronic mail, voice mail, or text message. The agency may charge each
16person on the list who receives a notice
by 1st class mail a fee that does not exceed
17the approximate cost of providing the notice to the person. An ordinance or
18amendment that is subject to this paragraph may take effect even if the agency fails
19to send the notice that is required by this paragraph.
AB582-ASA2,4
20Section
4. 59.692 (1h) of the statutes is created to read:
AB582-ASA2,7,221
59.692
(1h) If a professional land surveyor licensed under ch. 443, in
22measuring a setback from an ordinary high-water mark of a navigable water as
23required by an ordinance enacted under this section, relies on a map, plat, or survey
24that incorporates or approximates the ordinary high-water mark in accordance with
1s. 236.025, the setback measured is the setback with respect to a structure
2constructed on that property if all of the following apply:
AB582-ASA2,7,63
(a) The map, plat, or survey is prepared by a professional land surveyor,
4licensed under ch. 443, after the effective date of this paragraph .... [LRB inserts
5date]. The same professional land surveyor may prepare the map, plat, or survey and
6measure the setback.
AB582-ASA2,7,87
(b) The department has not identified the ordinary high-water mark on its
8Internet site as is required under s. 30.102 at the time the setback is measured.
AB582-ASA2,7,1611
59.692
(1k) (a) 2. Except as provided in par. (b), requires any approval or
12imposes any fee or mitigation requirement for, or otherwise prohibits or regulates,
13the maintenance, repair, replacement, restoration, rebuilding, or remodeling of all
14or any part of a nonconforming structure
or a structure of which any part is legally
15
located in the shoreland setback area by operation of a variance granted before July
1613, 2015, if the activity does not expand the footprint of the
nonconforming structure.
AB582-ASA2,7,2319
59.692
(1k) (a) 4. Requires any approval or imposes any fee or mitigation
20requirement for, or otherwise prohibits or regulates, the vertical expansion of a
21nonconforming structure
or a structure of which any part is legally located in the
22shoreland setback area by operation of a variance granted before July 13, 2015, 23unless the vertical expansion would extend more than 35 feet above grade level.
AB582-ASA2,7
24Section
7. 59.692 (1k) (a) 6. of the statutes is created to read:
AB582-ASA2,8,2
159.692
(1k) (a) 6. Prohibits placement in a shoreland setback area of a device
2or system authorized under par. (a) 5.
AB582-ASA2,8,95
59.692
(1k) (b) A county shoreland zoning ordinance shall allow an activity
6specified under par. (a) 2. to expand the footprint of a nonconforming structure
or a
7structure of which any part is legally located in the shoreland setback area by
8operation of a variance granted before July 13, 2015, if the expansion is necessary
9for the structure to comply with applicable state or federal requirements.
AB582-ASA2,9
10Section
9. 59.692 (1p) of the statutes is created to read:
AB582-ASA2,8,1611
59.692
(1p) The department may not promulgate a standard and a county may
12not enact an ordinance under this section that prohibits the owner of a boathouse in
13the shoreland setback area that has a flat roof from using the roof as a deck if the roof
14has no side walls or screens or from having or installing a railing around that roof
15if the railing is not inconsistent with standards promulgated by the department of
16safety and professional services under ch. 101.
AB582-ASA2,10
17Section
10. 59.692 (7) of the statutes is created to read:
AB582-ASA2,8,2218
59.692
(7) (a) In this subsection, "facility" means any property or equipment
19of a public utility, as defined in s. 196.01 (5), or a cooperative association organized
20under ch. 185 for the purpose of producing or furnishing heat, light, or power to its
21members only, that is used for the transmission, delivery, or furnishing of natural
22gas, heat, light, or power.
AB582-ASA2,8,2523
(b) The construction and maintenance of a facility is considered to satisfy the
24requirements of this section and any county ordinance enacted under this section if
25any of the following applies:
AB582-ASA2,9,2
11. The department has issued all required permits or approvals authorizing the
2construction or maintenance under ch. 30, 31, 281, or 283.
AB582-ASA2,9,63
2. No department permit or approval under subd. 1. is required for the
4construction or maintenance and the construction or maintenance is conducted in a
5manner that employs best management practices to infiltrate or otherwise control
6storm water runoff from the facility.
AB582-ASA2,11
7Section
11. 60.61 (2) (a) 6. of the statutes is amended to read:
AB582-ASA2,9,98
60.61
(2) (a) 6.
The Subject to s. 66.10015 (3), the density and distribution of
9population.
AB582-ASA2,12
10Section
12. 60.61 (4) (f) of the statutes is amended to read:
AB582-ASA2,9,2511
60.61
(4) (f) The town board shall maintain a list of persons who submit a
12written
or electronic request to receive notice of any proposed ordinance or
13amendment that affects the allowable use of the property owned by the person.
14Annually, the town board shall inform residents of the town that they may add their
15names to the list. The town board may satisfy this requirement to provide such
16information by any of the following means: publishing a 1st class notice under ch.
17985; publishing on the town's Internet site; 1st class mail; or including the
18information in a mailing that is sent to all property owners. If the town zoning
19committee completes a final report on a proposed zoning ordinance and the town
20board is prepared to vote on the proposed ordinance under par. (b) or if the town board
21is prepared to vote on a proposed amendment under par. (c) 1., the town board shall
22send a notice, which contains a copy
or summary of the proposed ordinance or
23amendment, to each person on the list whose property, the allowable use
or size or
24density requirements of which, may be affected by the proposed ordinance or
25amendment. The notice shall be by mail or in any reasonable form that is agreed to
1by the person and the town board
, including electronic mail, voice mail, or text
2message. The town board may charge each person on the list who receives a notice
3by 1st class mail a fee that does not exceed the approximate cost of providing the
4notice to the person. An ordinance or amendment that is subject to this paragraph
5may take effect even if the town board fails to send the notice that is required by this
6paragraph.
AB582-ASA2,13
7Section
13. 62.23 (7) (am) of the statutes is amended to read:
AB582-ASA2,10,188
62.23
(7) (am)
Grant of power. For the purpose of promoting health, safety,
9morals or the general welfare of the community, the council may regulate and restrict
10by ordinance, subject to par. (hm), the height, number of stories and size of buildings
11and other structures, the percentage of lot that may be occupied, the size of yards,
12courts and other open spaces,
subject to s. 66.10015 (3) the density of population, and
13the location and use of buildings, structures and land for trade, industry, mining,
14residence or other purposes if there is no discrimination against temporary
15structures. This subsection and any ordinance, resolution or regulation enacted or
16adopted under this section, shall be liberally construed in favor of the city and as
17minimum requirements adopted for the purposes stated. This subsection may not
18be deemed a limitation of any power granted elsewhere.
AB582-ASA2,14
19Section
14. 62.23 (7) (d) 4. of the statutes is amended to read: