LRB-2630/1
MS/EM/AM/KRP/ES:all
2017 - 2018 LEGISLATURE
August 24, 2017 - Introduced by Representatives Jarchow, R. Brooks, Ballweg,
Edming, Felzkowski, Gannon, Horlacher, Hutton, Kremer, Murphy,
Sanfelippo, Stafsholt and Tusler, cosponsored by Senators Tiffany, Craig,
Darling, Lasee and Nass. Referred to Committee on Housing and Real Estate.
AB479,2,2
1An Act to renumber and amend 32.10, 59.694 (7) (c) and 62.23 (7) (e) 7.;
to
2amend 32.10 (title), 59.69 (10e) (title), 59.69 (10e) (a) 1., 59.69 (10e) (b), 59.692
3(1) (b) (intro.), 60.61 (5e) (title), 60.61 (5e) (a) 1., 60.61 (5e) (b), 62.23 (7) (hb)
4(title), 62.23 (7) (hb) 1. a. and 62.23 (7) (hb) 2.; and
to create 30.20 (1g) (d), 32.09
5(6c), 32.10 (1), 32.10 (5), 59.69 (5e), 59.692 (1) (am), 59.694 (7) (c) 1., 59.694 (7)
6(c) 3., 60.61 (4e), 60.62 (4e), 62.23 (7) (de), 62.23 (7) (e) 7. a., 62.23 (7) (e) 7. d.,
766.10015 (1) (e), 66.10015 (2) (e), 66.10015 (4), 227.10 (2p) and 710.17 of the
8statutes;
relating to: limiting the authority of local governments to regulate
9development on substandard lots and require the merging of lots; requiring a
10political subdivision to issue a conditional use permit under certain
11circumstances; standards for granting certain zoning variances; local
12ordinances related to repair, rebuilding, and maintenance of certain
13nonconforming structures; shoreland zoning of, and the removal of material
1from the bed of, certain small, private ponds; inverse condemnation
2proceedings; and the right to display the flag of the United States.
Analysis by the Legislative Reference Bureau
introduction
This bill makes various changes to local government zoning authority,
navigable water permits, inverse condemnation proceedings, and the right to display
the flag of the United States.
substandard lots
Under this bill, 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 bill, 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 bill 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 bill 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 bill, both the application, and the
political subdivision's decision on the permit application, must be based on
substantial evidence, although public testimony alone is not substantial evidence
and cannot be the sole basis for a political subdivision to deny a conditional use
permit. 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 bill, 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 bill 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 bill 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 bill 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 bill
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.
REGULATORY TAKINGS; EMINENT DOMAIN
This bill codifies the standard adopted by the Wisconsin Supreme Court in
Zealy v. City of Waukesha, 201 Wis. 2d 265, 548 N.W.2d 528 (1996), for evaluating
whether a regulation enacted by a governmental entity has the effect of taking a
person's property without paying just compensation.
Under current law, if a person's property is occupied by an entity that possesses
the power of eminent domain (a condemnor), but the condemnor has not exercised
that power (and has not, therefore, compensated the property owner), the owner may
commence an inverse condemnation action against the condemnor. If the property
owner is successful, the court may order the condemnor to acquire the owner's
interest in the affected property, resulting in compensation being paid by the
condemnor to the owner.
Currently, under Zealy, a property owner may receive compensation when a
government restriction imposed by a condemnor deprives that owner of all or
substantially all practical use of the property. In order to determine whether the
government-imposed restriction deprives the owner of all or substantially all
practical use of the property, the court considers three factors: 1) the nature and
character of the government action; 2) the severity of the economic impact of the
restriction on the plaintiff; and 3) the extent to which the regulation interferes with
the plaintiff's investment-backed expectations in the property.
The bill allows a property owner to bring an action under the inverse
condemnation law alleging that a restriction imposed by a governmental unit
deprives the owner of all or substantially all practical use of the owner's property.
If a court finds that the governmental unit has effected a regulatory taking, the court
must order the governmental unit to do one of the following:
1. Pay to the owner the amount of the reduction in fair market value of the
property.
2. Rescind the restriction that resulted in the regulatory taking.
Further, the bill specifies that, when a court determines the compensation that
is owed to an owner whose property is taken under the eminent domain law, the court
must determine the value of the property according to each individual tax parcel that
is determined to have been taken in whole or in part, regardless of whether the tax
parcel is under contiguous, common ownership with other tax parcels. Under
current law, in Spiegelberg v. State, 2006 WI 75, 291 Wis. 2d, 717 N.W.2d 641, in the
case of a partial taking that affects multiple contiguous, commonly-owned parcels,
a court may determine the fair market value of the whole property based on the sum
of the values of the individual tax parcels or the value of the tax parcels together as
one unit, whichever value more adequately reflects the property's most
advantageous use. Under the bill, the court must determine the fair market value
based on each individual tax parcel that is taken in whole or in part.
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 bill 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.
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:
AB479,1
1Section
1. 30.20 (1g) (d) of the statutes is created to read:
AB479,5,32
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:
AB479,5,44
1. It has an area of 5 acres or less.
AB479,5,65
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.
AB479,5,77
3. It has no public access.
AB479,5,88
4. It is entirely surrounded by land privately owned by the same person.
AB479,2
9Section 2
. 32.09 (6c) of the statutes is created to read:
AB479,6,4
132.09
(6c) In the case of a taking under subs. (5) and (6), the value of the
2property taken shall be evaluated based on each individual tax parcel taken, in whole
3or in part, regardless of whether the tax parcel is under contiguous, common
4ownership with other tax parcels.
AB479,3
5Section
3. 32.10 (title) of the statutes is amended to read:
AB479,6,7
632.10 (title)
Condemnation proceedings Proceedings instituted by
7property owner.
AB479,4
8Section
4. 32.10 of the statutes is renumbered 32.10 (2) and amended to read:
AB479,6,149
32.10
(2) If any property
has been occupied is taken by a restriction imposed
10by a governmental unit or by a person possessing the power of condemnation
and if
11the person that has not exercised the power, the owner
, to may institute
12condemnation proceedings
, shall present under this section by filing a verified
13petition
to with the circuit
judge court of the county
wherein in which the
land 14property is situated
asking that such proceedings be commenced.
AB479,6,25
15(3) The petition shall describe the
land property, state the person against which
16the
condemnation proceedings are instituted and
describe the
use to which it has
17been put or is designed to have been put action by the person against which the
18proceedings are instituted
that is alleged to constitute a taking. A copy of the petition
19shall be served upon the person
who has occupied petitioner's land, or interest in
20land. The petition shall be filed in the office of the clerk of the circuit court and
21thereupon the matter shall be deemed an action at law and at issue, with against
22which the proceedings are instituted. The petitioner
as shall be the plaintiff and the
23occupying person
as alleged to have taken the property shall be the defendant.
The
24court shall make a finding of whether the defendant is occupying property of the
25plaintiff without having the right to do so.
AB479,7,7
1(4) If the court determines that the defendant
is occupying such has taken the 2property of the plaintiff
under sub. (1) (b) 1. without
having the right to do so 3exercising the power of condemnation, it shall treat the matter in accordance with
4the provisions of this subchapter assuming the plaintiff has received from the
5defendant a jurisdictional offer and has failed to accept the
same offer and assuming
6the plaintiff is not questioning the right of the defendant to condemn the property
7so occupied.
AB479,5
8Section
5. 32.10 (1) of the statutes is created to read:
AB479,7,99
32.10
(1) In this section:
AB479,7,1110
(a) “Governmental unit” means the state or any department or agency thereof
11or any city, village, town, or county.
AB479,7,1212
(b) “Taking” means any of the following:
AB479,7,1413
1. The occupation of property by a person possessing the power of
14condemnation.
AB479,7,1615
2. Any restriction imposed by a governmental unit that deprives an owner of
16all or substantially all practical use of the owner's property.
AB479,6
17Section
6. 32.10 (5) of the statutes is created to read:
AB479,7,2018
32.10
(5) (a) In an action in which the plaintiff alleges that the defendant has
19taken plaintiff's property under sub. (1) (b) 2., the court shall evaluate whether the
20property has been taken according to the following factors:
AB479,7,2121
1. The nature and character of the government action.
AB479,7,2222
2. The severity of the economic impact of the restriction on the plaintiff.
AB479,7,2423
3. The extent to which the restriction interferes with the plaintiff's
24investment-backed expectations in the property.
AB479,8,4
1(b) If the court determines that the defendant has taken the property of the
2plaintiff under sub. (1) (b) 2. without exercising the power of condemnation, the court
3shall issue an order requiring the defendant to, at the defendant's option, do one of
4the following:
AB479,8,65
1. Pay damages to the plaintiff equal to the amount of the reduction in fair
6market value of the property that is attributable to the action under sub. (1) (b).