Analysis by the Legislative Reference Bureau
introduction
This substitute amendment makes various changes to local government zoning
authority, navigable water permits, and the right to display the flag of the United
States.
substandard lots
Under this substitute amendment, a city, village, town, or county may generally
not prohibit a property owner from doing any of the following:
1. Conveying an ownership interest in a substandard lot.
2. Using a substandard lot as a building site if two conditions are met: the
substandard lot has not been developed with one or more of its structures placed
partly on an adjacent lot; and the substandard lot is developed to comply with all
other ordinances of the political subdivision.
Under the substitute amendment, a substandard lot is defined as a lot that met
any applicable lot size requirements when it was created, but does not meet current
lot size requirements.
merging lots
This substitute amendment prohibits a state agency, city, village, town, or
county from requiring that one or more lots be merged with another lot without the
consent of the owners of the lots that are to be merged.
conditional use permits
This substitute amendment requires a city, village, town, or county to issue a
conditional use permit to an applicant who meets, or agrees to meet, all of the
requirements and conditions specified by the political subdivision. Under the
substitute amendment, both the application, and the political subdivision's decision
on the permit application, must be based on substantial evidence. Once granted, a
conditional use permit may remain in effect as long as the conditions under which
it was granted are followed, except that a political subdivision may include
conditions relating to the permit's duration, and the ability of the applicant to
transfer or renew a permit.
variances
Under current law, a city, a village, or a town that is authorized to exercise
village powers (collectively, “municipality”) or a county is authorized to enact zoning
ordinances that regulate and restrict the height, number of stories, and size of
buildings and other structures; the percentage of lot that may be occupied; the size
of yards and other open spaces; the density of population; and the location and use
of buildings, structures, and land for various purposes.
A municipality's board of appeals or a county's board of adjustment is
authorized under current law to authorize a variance from the terms of a zoning
ordinance. A “use" variance grants permission for a use that is not permitted by the
zoning ordinance and an “area" variance relaxes restrictions on dimensions, such as
setback, frontage, height, bulk, density, and area. To grant a variance, a board of
appeals or board of adjustment must find four things:
1. The variance will not be contrary to the public interest.
2. Substantial justice will be done by granting the variance.
3. The variance is needed so that the spirit of the ordinance is observed.
4. Due to special conditions, a literal enforcement of the provisions of the zoning
ordinance will result in unnecessary hardship.
Under this substitute amendment, a property owner bears the burden of
proving “unnecessary hardship" by demonstrating either of the following:
1. For an area variance, that strict compliance with a zoning ordinance would
unreasonably prevent the property owner from using the property for a permitted
purpose or would render conformity with the zoning ordinance unnecessarily
burdensome.
2. For a use variance, that strict compliance with a zoning ordinance would
leave the property owner with no reasonable use of the property in the absence of a
variance. In both situations, the property owner bears the burden of proving that the
unnecessary hardship is based on conditions unique to the property, rather than
personal considerations, and that the unnecessary hardship was not created by the
property owner.
nonconforming structures
Under current law, zoning ordinances of cities, villages, towns, or counties may
not prohibit or limit based on cost the repair, maintenance, renovation, or remodeling
of a nonconforming structure. A nonconforming structure is “a dwelling or other
building that existed lawfully before the current zoning ordinance was enacted or
amended, but that does not conform with one or more of the development regulations
in the current zoning ordinance.”
This substitute amendment expands this prohibition, adding a prohibition on
requiring a variance, covering rebuilding, and specifying that a part of a
nonconforming structure is covered. With these modifications, no ordinance of a
political subdivision may prohibit, limit based on cost, or require a variance for the
repair, maintenance, renovation, rebuilding, or remodeling of a nonconforming
structure or any part of a nonconforming structure.
private ponds
This substitute amendment exempts certain small, private ponds from the
permitting requirements for removing material from the bed of a navigable body of
water and from shoreland zoning laws.
Current law generally prohibits a person from removing material from the bed
of a navigable body of water unless the Department of Natural Resources has issued
an individual permit or a general permit authorizing the removal. This substitute
amendment adds an exception to these permitting requirements for the removal of
material from the bed of a self-contained pond that is five acres or less in size, has
no public access, and is located on and entirely surrounded by land privately owned
by the same person.
Current law requires each county to zone by ordinance all shorelands in its
unincorporated area. Shorelands are defined under current law as the area within
certain distances from the ordinary high-water mark of navigable waters.
Navigable waters are defined under current law as Lake Superior, Lake Michigan,
all natural inland lakes and all streams, ponds, sloughs, flowages, and other waters,
including the Wisconsin portion of boundary waters, that are navigable. This
substitute amendment excludes from the definition of navigable waters a pond that
is not hydrologically connected to a natural navigable waterway, does not discharge
into a natural navigable waterway except as a result of storm events, is five acres or
less in size, has no public access, and is entirely surrounded by land privately owned
by the same person.
right to display the flag of the united states
Currently, the federal Freedom to Display the American Flag Act of 2005
generally prohibits a condominium association, housing cooperative, or
homeowners' association (organization) from adopting or enforcing a policy, or
entering into an agreement, that would restrict or prevent a member of the
organization from displaying the flag of the United States on residential property
that the member owns or to which the member has the right to exclusive possession
and use. This substitute amendment creates a similar provision in Wisconsin law
with respect to housing cooperatives and homeowners' associations. Wisconsin law
currently prohibits including in any condominium documents a provision that
prohibits a condominium unit owner from displaying the flag.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB479-ASA1,1
1Section
1. 30.20 (1g) (d) of the statutes is created to read:
AB479-ASA1,4,32
30.20
(1g) (d) A removal of material from a pond is exempt from the permit and
3contract requirements under this section if all of the following apply to the pond:
AB479-ASA1,4,44
1. It has an area of 5 acres or less.
AB479-ASA1,4,65
2. It is not hydrologically connected to a natural navigable waterway and does
6not discharge into a natural navigable waterway except as a result of storm events.
AB479-ASA1,4,77
3. It has no public access.
AB479-ASA1,4,88
4. It is entirely surrounded by land privately owned by the same person.
AB479-ASA1,2
9Section 2
. 59.69 (5e) of the statutes is created to read:
AB479-ASA1,4,1010
59.69
(5e) Conditional use permits. (a) In this subsection:
AB479-ASA1,5,3
11. “Conditional use” means a use allowed under a conditional use permit,
2special exception, or other special zoning permission issued by a county, but does not
3include a variance.
AB479-ASA1,5,74
2. “Substantial evidence” means facts and information, other than merely
5personal preferences or speculation, directly pertaining to the requirements and
6conditions an applicant must meet to obtain a conditional use permit and that
7reasonable persons would accept in support of a conclusion.
AB479-ASA1,5,128
(b) 1. If an applicant for a conditional use permit meets or agrees to meet all
9of the requirements and conditions specified in the county ordinance or those
10imposed by the county zoning board, the county shall grant the conditional use
11permit. Any condition imposed must be related to the purpose of the ordinance and
12be based on substantial evidence.
AB479-ASA1,5,1913
2. The requirements and conditions described under subd. 1. must be
14reasonable and, to the extent practicable, measurable and may include conditions
15such as the permit's duration, transfer, or renewal. The applicant must demonstrate
16that the application and all requirements and conditions established by the county
17relating to the conditional use are or shall be satisfied, both of which must be
18supported by substantial evidence. The county's decision to approve or deny the
19permit must be supported by substantial evidence.
AB479-ASA1,5,2220
(c) Upon receipt of a conditional use permit application, and following
21publication in the county of a class 2 notice under ch. 985, the county shall hold a
22public hearing on the application.
AB479-ASA1,6,223
(d) Once granted, a conditional use permit shall remain in effect as long as the
24conditions upon which the permit was issued are followed, but the county may
1impose conditions such as the permit's duration, transfer, or renewal, in addition to
2any other conditions specified in the zoning ordinance or by the county zoning board.
AB479-ASA1,6,53
(e) If a county denies a person's conditional use permit application, the person
4may appeal the decision to the circuit court under the procedures contained in s.
559.694 (10).
AB479-ASA1,3
6Section
3. 59.69 (10e) (title) of the statutes is amended to read:
AB479-ASA1,6,87
59.69
(10e) (title)
Repair
, rebuilding, and maintenance of certain
8nonconforming structures.
AB479-ASA1,4
9Section
4. 59.69 (10e) (a) 1. of the statutes is amended to read:
AB479-ASA1,6,1210
59.69
(10e) (a) 1. “Development regulations" means the part of a zoning
11ordinance
enacted under this section that applies to elements including setback,
12height, lot coverage, and side yard.
AB479-ASA1,5
13Section
5. 59.69 (10e) (b) of the statutes is amended to read:
AB479-ASA1,6,1714
59.69
(10e) (b) An ordinance
enacted under this section may not prohibit,
or 15limit based on cost,
or require a variance for the repair, maintenance, renovation,
16rebuilding, or remodeling of a nonconforming structure
or any part of a
17nonconforming structure.
AB479-ASA1,6
18Section
6. 59.692 (1) (am) of the statutes is created to read:
AB479-ASA1,6,2119
59.692
(1) (am) “Navigable waters” has the meaning given in s. 281.31 (2) (d),
20except that “navigable waters” does not include a pond to which all of the following
21apply:
AB479-ASA1,6,2222
1. It has an area of 5 acres or less.
AB479-ASA1,6,2423
2. It is not hydrologically connected to a natural navigable waterway and does
24not discharge into a natural navigable waterway except as a result of storm events.
AB479-ASA1,6,2525
3. It has no public access.
AB479-ASA1,7,1
14. It is entirely surrounded by land privately owned by the same person.
AB479-ASA1,7
2Section
7. 59.692 (1) (b) (intro.) of the statutes is amended to read:
AB479-ASA1,7,53
59.692
(1) (b) (intro.) “Shorelands" means the area within the following
4distances from the ordinary high-water mark of navigable waters
, as defined under
5s. 281.31 (2) (d):
AB479-ASA1,8
6Section
8. 59.694 (7) (c) of the statutes is renumbered 59.694 (7) (c) 2. and
7amended to read:
AB479-ASA1,7,128
59.694
(7) (c) 2. To authorize upon appeal in specific cases variances from the
9terms of the ordinance that will not be contrary to the public interest, where, owing
10to special conditions, a literal enforcement of the provisions of the ordinance will
11result in unnecessary hardship, and so that the spirit of the ordinance shall be
12observed and substantial justice done.
AB479-ASA1,7,22
134. A county board may enact an ordinance specifying an expiration date for a
14variance granted under this paragraph if that date relates to a specific date by which
15the action authorized by the variance must be commenced or completed. If no such
16ordinance is in effect at the time a variance is granted, or if the board of adjustment
17does not specify an expiration date for the variance, a variance granted under this
18paragraph does not expire unless, at the time it is granted, the board of adjustment
19specifies in the variance a specific date by which the action authorized by the
20variance must be commenced or completed. An ordinance enacted after April 5,
212012, may not specify an expiration date for a variance that was granted before April
225, 2012.
AB479-ASA1,7,23
235. A variance granted under this paragraph runs with the land.
AB479-ASA1,9
24Section 9
. 59.694 (7) (c) 1. of the statutes is created to read:
AB479-ASA1,7,2525
59.694
(7) (c) 1. In this paragraph:
AB479-ASA1,8,4
1a. “Area variance” means a modification to a dimensional, physical, or
2locational requirement such as the setback, frontage, height, bulk, or density
3restriction for a structure that is granted by the board of adjustment under this
4subsection.
AB479-ASA1,8,75
b. “Use variance” means an authorization by the board of adjustment under
6this subsection for the use of land for a purpose that is otherwise not allowed or is
7prohibited by the applicable zoning ordinance.
AB479-ASA1,10
8Section
10. 59.694 (7) (c) 3. of the statutes is created to read:
AB479-ASA1,8,199
59.694
(7) (c) 3. A property owner bears the burden of proving “unnecessary
10hardship," as that term is used in this paragraph, for an area variance, by
11demonstrating that strict compliance with a zoning ordinance would unreasonably
12prevent the property owner from using the property owner's property for a permitted
13purpose or would render conformity with the zoning ordinance unnecessarily
14burdensome or, for a use variance, by demonstrating that strict compliance with the
15zoning ordinance would leave the property owner with no reasonable use of the
16property in the absence of a variance. In all circumstances, a property owner bears
17the burden of proving that the unnecessary hardship is based on conditions unique
18to the property, rather than considerations personal to the property owner, and that
19the unnecessary hardship was not created by the property owner.
AB479-ASA1,11
20Section 11
. 60.61 (4e) of the statutes is created to read:
AB479-ASA1,8,2121
60.61
(4e) Conditional use permits. (a) In this subsection:
AB479-ASA1,8,2422
1. “Conditional use” means a use allowed under a conditional use permit,
23special exception, or other special zoning permission issued by a town, but does not
24include a variance.
AB479-ASA1,9,4
12. “Substantial evidence” means facts and information, other than merely
2personal preferences or speculation, directly pertaining to the requirements and
3conditions an applicant must meet to obtain a conditional use permit and that
4reasonable persons would accept in support of a conclusion.
AB479-ASA1,9,95
(b) 1. If an applicant for a conditional use permit meets or agrees to meet all
6of the requirements and conditions specified in the town ordinance or those imposed
7by the town zoning board, the town shall grant the conditional use permit. Any
8condition imposed must be related to the purpose of the ordinance and be based on
9substantial evidence.
AB479-ASA1,9,1610
2. The requirements and conditions described under subd. 1. must be
11reasonable and, to the extent practicable, measurable and may include conditions
12such as the permit's duration, transfer, or renewal. The applicant must demonstrate
13that the application and all requirements and conditions established by the town
14relating to the conditional use are or shall be satisfied, both of which must be
15supported by substantial evidence. The town's decision to approve or deny the permit
16must be supported by substantial evidence.
AB479-ASA1,9,1917
(c) Upon receipt of a conditional use permit application, and following
18publication in the town of a class 2 notice under ch. 985, the town shall hold a public
19hearing on the application.
AB479-ASA1,9,2320
(d) Once granted, a conditional use permit shall remain in effect as long as the
21conditions upon which the permit was issued are followed, but the town may impose
22conditions such as the permit's duration, transfer, or renewal, in addition to any
23other conditions specified in the zoning ordinance or by the town zoning board.
AB479-ASA1,10,3
1(e) If a town denies a person's conditional use permit application, the person
2may appeal the decision to the circuit court under the procedures described in s.
359.694 (10).
AB479-ASA1,12
4Section
12. 60.61 (5e) (title) of the statutes is amended to read:
AB479-ASA1,10,65
60.61
(5e) (title)
Repair, rebuilding, and maintenance of certain
6nonconforming structures.
AB479-ASA1,13
7Section
13. 60.61 (5e) (a) 1. of the statutes is amended to read:
AB479-ASA1,10,108
60.61
(5e) (a) 1. “Development regulations" means the part of a zoning
9ordinance
enacted under this section that applies to elements including setback,
10height, lot coverage, and side yard.
AB479-ASA1,14
11Section
14. 60.61 (5e) (b) of the statutes is amended to read:
AB479-ASA1,10,1512
60.61
(5e) (b) An ordinance
enacted under this section may not prohibit,
or 13limit based on cost,
or require a variance for the repair, maintenance, renovation,
14rebuilding, or remodeling of a nonconforming structure
or any part of a
15nonconforming structure.
AB479-ASA1,15
16Section 15
. 60.62 (4e) of the statutes is created to read: