SECTION 2. ATCP 10.63(1m) is created to read:
ATCP 10.63(1m) Implied warranty. Section 95.195, Stats., covers paratuberculosis in goats and applies to sales of goats.
Fiscal Estimate
The department does not expect this emergency rule to have any fiscal effect on state or local governments.
Initial Regulatory Flexibility Analysis
This emergency rule will have little or no impact on small businesses. It does not change the extent of coverage of the implied warranty rule. It merely makes explicit the coverage which was previously only implied in the Johne's disease rules.
Notice of Hearing
Public Service Commission
The Commission proposes to create a new chapter of rules pursuant to provisions of 1999 Wis. Act 9, in order to establish a renewable resource credits (RRC) trading program. The renewable resource requirement legislation, s. 196.378, Stats., requires electric energy providers to meet increasing percentages of their retail energy sales with renewable resources. An RRC program. must be established, allowing electric providers that supply more retail renewable energy than the minimum statutory requirements to sell credits to other providers, or to bank credits for future use. Rules promulgated will perform several functions basic to the creation of an RRC program, as specified in s. 196.378 (3), Stats.
Notice is further given that a hearing will be held beginning on Wednesday, July 26, 2000, at 9:30 a.m. in the Amnicon Falls Hearing Room at the Public Service Commission Building, 610 North Whitney Way, Madison, Wisconsin, and continuing at times to be set by the presiding Administrative Law Judge. This building is accessible to people in wheelchairs through the Whitney Way first floor (lobby) entrance. Parking for people with disabilities is available on the south side of the building. Any person with a disability who needs additional accommodations should contact the case coordinator listed below.
Summary and Analysis of Rules
Statutory authority: ss. 196.02(1) and (3), 196.378(3), and 227.22
Statute interpreted: s. 196.378
1999 Wis. Act 9 created a renewable portfolio standard, requiring electric providers to meet certain minimum percentages of their retail sales with renewable resources. These minimum percentages gradually increase over time. In lieu of providing renewable energy to its customers, an electric provider can obtain an RRC. The proposed rules address the requirements and procedures for creation and use of RRCs.
The proposed rules require a program administrator to implement and supervise an RRC trading program for participants. Beginning on January 1, 2001, RRCs for use in the trading program may be created by the energy output of a renewable facility. The energy output must be physically metered and sold at retail and the program administrator must verify the accuracy of the metering. The renewable facility must also register with, and be certified by, the Commission.
The program administrator will create an RRC account to track RRCs for each program participant. The program administrator will also credit RRCs to RRC accounts. When an RRC is credited to an account, the account owner may sell or transfer the RRC to any person. An RRC may continue to be sold or traded as long as each buyer or transferee reports the transaction to the program administrator within 10 days of its consummation. The program administrator retires the RRCs upon their use to satisfy the electric providers minimum renewable energy requirement. If an RRC is not used within five years of its creation, the program administrator will retire it.
The rules require that a renewable facility creating RRCs be certified by the Commission. To accomplish this, the owner of a renewable facility, or its designated representative, must provide registration information to the Commission. This information includes the renewable facility's location, owner, and technology; date placed in service; and rated capacity. Information that demonstrates that the renewable facility meets the resource eligibility criteria must also be provided.
Initial Regulatory Flexibility Analysis
The proposed rules would apply to electric public utilities and retail electric cooperatives. The proposed rules do not affect small businesses as defined in s. 227.114, Stats.
Environmental Analysis
This is a Type III action under s. PSC 4.10(3), Wis. Adm. Code. No unusual circumstances suggesting the likelihood of significant environmental consequences have come to the Commission's attention. Neither an environmental impact statement under s. 1.11, Wis. Stats., nor an environmental assessment is required.
Fiscal Estimate
It has not been determined how the program administrator will be created. A collaborative report to the Commission will be part of the rulemaking process. The report will address this issue, among others, and make a recommendation to the Commission for action. Until the report is received and action is taken by the Commission, it would be speculative to provide cost data. A new fiscal note will be developed after the Commission has acted on the collaborative report.
Questions from the media should be directed to Jeff Butson, Public Affairs Director, at (608) 267-0912.
Questions or requests for a free copy of the proposed rules regarding this matter should be directed to case coordinator Carol A. Stemrich at (608) 266-8174.
Notice of Hearing
Transportation
Notice is hereby given that pursuant to ss. 15.04 (1) (g), 85.16 (1), 86.07 (2), 85.025, 85.05, 84.01 (15), 84.015, 84.03 (1), 84.01 (2), 85.02, 88.87 (3), 20.395 (9) (qx), 236.12 (2) (a) and (7), 236.13 (1) (e) and (3), 1.11 (1), 1.12 (2); 1.13 (3), as created by 1999 Wis. Act 9; 114.31 (1), 84.01 (17), 66.30 (2); and 86.31 (6), Stats., as affected by 1999 Wis. Act 9; and interpreting ss. 1.13 (2), 16.9651 (2) and 66.0295 (2) (c), Stats., all as created by 1999 Wis. Act 9; 15.04 (1) (g), 1.11. 1.12, 32.035, 88.87, 703.11, Stats; 84.01 (15), 84.015, 84.03 (1), Stats., and the federal laws and regulations thereby expressly endorsed and adopted by the Legislature, including 23 USC 109, 134, 135, 138, and 315; and 236.12 (2) (a), 236.34, 236.45 and 703.11, Stats., the Department of Transportation will hold a public hearing at the time and place indicated below to consider the amendment of ch. Trans 233, Wis. Adm. Code, relating to division of land abutting a state trunk or connecting highway.
Hearing Information
Date & Time Location
August 4, 2000 Room 421, Hill Farms
Friday State Transportation Bldg.
9:00 a.m. 4802 Sheboygan Ave.
MADISON, WI
Parking for persons with disabilities and an accessible entrance are available on the north and south sides of the Hill Farms State Transportation Building.
An interpreter for the hearing-impaired will be available on request for this hearing. Please make reservations for a hearing interpreter at least 10 days prior to the hearing.
Written Comments
The public record on this proposed rule-making will be held open until close of business Friday, August 11, 2000, to permit the submission of written comments from persons unable to attend the public hearing or who wish to supplement testimony offered at the hearing. Any such comments should be submitted to Julie Johnson, Administrative Rules Coordinator, Department of Transportation, Office of General Counsel, Room 115-B, P. O. Box 7910, Madison, WI 53707-7910.
Analysis Prepared by the Wis. Dept. of Transportation
Statutory authority: ss. 15.04(1)(g), 85.16(1), 86.07(2), 85.025, 85.05, 84.01(15), 84.015, 84.03(1), 84.01(2), 85.02, 88.87(3), 20.395(9)(qx), 236.12(2)(a) and (7), 236.13(1)(e) and (3), 1.11(1), 1.12(2); 1.13(3), as created by 1999 Wis. Act 9; 114.31(1), 84.01(17), 66.30(2); and 86.31(6), Stats., as affected by 1999 Wis. Act 9
Statutes interpreted: ss. 1.13(2), 16.9651(2), 66.0295(2)(c), and 86.255, Stats., all as created by 1999 Wis. Act 9; 15.04(1)(g), 1.11. 1.12, 32.035, 88.87, Stats; 84.01(15), 84.015, 84.03(1), Stats., and the federal laws and regulations thereby expressly endorsed and adopted by the Legislature, including 23 USC 109, 134, 135, 138, and 315; and 236.12(2)(a), 236.34, 236.45 and 703.11, Stats.
General Summary of Proposed Rule
THREE OBJECTIVES:
This proposed revision to ch. Trans 233 attempts to accomplish three objectives. First, it implements agreements reached through a broad-based, participative process for consideration of improvements to the 1999 rule, sponsored by the Subcommittee on Review of ch. Trans 233 of the Assembly Committee on Transportation. Second, it attempts to strike a proper balance between individual and governmental highway setback concerns through a combination of specific analysis and applicability of different setback provisions to defined portions of the state trunk and connecting highway system. The proposal reflects the testimony and discussion at the hearing before the Joint Committee for Review of Administrative Rules on June 21, 2000. Third, it recognizes and reflects recent changes in state and federal laws regarding land use that affect highway and transportation planning and development.
BRIEF HISTORY:
Chapter Trans 233, relating to land divisions abutting state trunk highways and connecting streets, was established in 1956 and required amendments for consistency with existing laws, new developments in land use and transportation planning principles, and for clarification and uniformity. Chapter Trans 233 was first revised effective February 1, 1999.
WISDOT has gained about a year and half experience with the revised rule and has been working cooperatively with many affected interests and legislators to refine the implementation of the new provisions of ch. Trans 233 through a four step process, in brief:
1. Education, Training, Meetings.
2. Specific Responses to Questions.
3. Uniform Implementation.
4. Refine Rule As Necessary.
Through this process, WISDOT and others have reached numerous agreements to amend ch. Trans 233, Wis. Adm. Code, in conjunction with the Subcommittee on Review of ch. Trans 233 of the Assembly Committee on Transportation. These agreements have been memorialized in the Wisconsin Legislative Council Staff Memorandum of William Ford to Representative David Brandemuehl dated February 18, 2000 and an attached memo from James S. Thiel of February 14, 2000 to former Secretary of Transportation Thompson.
1. IMPLEMENT AGREEMENTS:
The first purpose of this proposed rule revision is to implement these conceptual agreements for clarification or modification of the rule as part of this continuing cooperative process “for the safety of entrance and departure from the abutting [highways] and for the preservation of the public interest and investment in the [highways]." Further details of these improvements are provided in notes following each section of the proposed rule revision.
The legislative Subcommittee asked WISDOT and other interested parties to continue to work together to develop amendments to s. Trans 233.08, relating to setback requirements and restrictions. There has been a setback provision in the rule since 1956 that has always contained language limiting structures and improvements within the setback.
WISDOT followed-up with several conceptual meetings and discussions with affected interests and exchanges of various drafts and correspondence relating to setbacks. A hearing was held before the Joint Committee for Review of Administrative Rules (JCRAR) on June 21, 2000, at which further concepts and ideas were advanced or clarified.
2. ADDRESS SETBACK ISSUES:
The second purpose of this proposed rule revision is to address these competing setback and related issues that came forward at the JCRAR hearing on June 21, in a manner consistent with the Committee's continuing oversight.
The proposed resolution of these concerns is discussed in some detail in this general summary of the rule. There are about 11,800 miles of state trunk highways. There are about 520 miles of connecting highways in 112 cities and 4 villages.
The statutes and the setback provisions of the current rule apply in full to all state trunk highways and connecting highways in all 72 counties with one modification: in Milwaukee County, the City of Milwaukee is excluded.
The U.S. Supreme Court has determined that the constitutionality of highway setbacks is well-established. Gorieb v. Fox, 274 US 603, 608-610, 47 S. Ct. 675, 677, 71 L. Ed. 1228, 53 A.L.R. 1210 (1927); Euclid v. Ambler, 272 US 365, 47 S. Ct. 114, 71 L. Ed. 303 (1926); See also “Validity of front setback provisions in zoning ordinance or regulation", 93 A.L.R.2d 1223; and 83 Am. Jur. 2d Zoning and Planning, sec. 191 (2000):
“Setback regulations are widely upheld as an appropriate use of zoning power, although, of course, such regulations must be reasonable and not confiscatory."
In a recent Wisconsin case upholding the validity of a highway setback requirement, the Wisconsin Court stated that setbacks:
“promote a variety of public purposes...provision for light and air, fire protection, traffic safety, prevention of overcrowding, rest and recreation, solving drainage problems, protecting the appearance and character of a neighborhood, conserving property values, and may, in particular cases, promote a variety of aesthetic and psychological values as well as ecological and environmental interests." (citing 3 The Law of Zoning and Planning sec. 34B.02[2] (1995). Town of Portland v. WEPCO, 198 Wis. 2d 775, 779, 543 N.W.2d 559, 560-61 (1996)
Not all traffic safety reasons for setbacks are apparent. Setbacks from freeways and expressways and other major through highways also serve to enhance traffic safety by making it possible for workers and equipment to access the many light, water, sewer, power, communication and other public utilities in or across highways for maintenance and construction from the back of the highway right of way line. Without setbacks highway and law enforcement authorities would be required to allow access from the highway lanes themselves or close traffic lanes, or both, on these higher speed and higher traffic volume highways. By their very nature these actions would impede traffic, increase congestion and increase the crash and injury risk to the motorists on the highway, highway and law enforcement personnel, and the public utility workers.
A recent Wisconsin Legislative Council analysis of the law of regulatory takings generally concludes that the ongoing judicial goal is to find an appropriate balance between two conflicting principles: the property rights of individuals and the government's authority on behalf of all citizens to regulate an owner's use of the land.
The general rule is that a regulation is only a “taking" requiring compensation if it deprives the owner of “all or substantially all" of the value of a constitutionally protected property interest. It is not enough for the property owner to show that the regulation denies the owner of the expected use of the property. To make this determination, the courts have adopted an ad hoc, case-by-case, specific analysis of each situation, because there is no clear “set formula."
Requiring the dedication of property for public use, including the dedication of private property for public highway and transportation purposes, as part of a land division approval process is not a taking of private property for public use without just compensation. This issue was decided by the Wisconsin Supreme Court in Jordan v. Village of Menomonee Falls, 28 Wis. 2d 608, 137 N.W.2d 442, 446-448 (1965) and confirmed recently in Hoepker v. City of Madison Plan Commission, 209 Wis. 2d 633, 649-650, par. 21, 563 N.W.2d 145, 152 (1997). Additionally, the Legislature has established a procedure for inverse condemnation through which an individual may seek compensation for a regulatory taking, s. 32.10, Stats.
It is important to distinguish the above land division situations initiated by private owners from those where WISDOT does acquire property from one private property owner to provide to another private owner as a result of WISDOT's actions. For example, WISDOT has the authority to condemn lands of one property owner to provide a public access road to another property owner who would otherwise be landlocked by the highway construction actions initiated by WISDOT. Section 84.09, Stats; 61 OAG 36 (1972). Another example is where WISDOT's highway construction actions initiated by WISDOT require the taking of the parking lot of a small grocery store. If no relocation of the grocery store to serve the community is reasonably possible and the grocery store is critical to the community, WISDOT has authority to condemn lands of an adjacent private owner to provide a functional parking lot for the other private owner and thereby preserve the facility for the community. In all of these cases WISDOT pays compensation for an actual taking. Section 84.09, Stats; 61 OAG 36 (1972).
On May 26 WISDOT proposed to conduct a specific setback analysis when requested of land divisions abutting a state trunk of connecting highway to determine whether WISDOT can responsibly adjust the setback line or allow a specific structure or improvement within the setback, in a timely manner, with a reasonable appeal process.
The May 26 WISDOT proposal had a 20-year horizon for analysis.
In response, one group of interests proposed that any setback analysis be tied to WISDOT's 6-year plan adopted under s. 84.01 (17), Stats. WISDOT and others rejected this suggestion because the 6-year plan is too short a period, is both under-inclusive and over-inclusive, is constrained by financial resources rather than public need, and is inconsistent with federal law.
Also in response, another group of interests generally indicated that WISDOT's 20-year specific analysis proposal had gone too far in striking the balance in favor of addressing private, individual concerns to the detriment of sound transportation planning in the interest of safety, convenience and investment of the public. WISDOT had been too short-sighted in its 20-year specific analysis proposal and ought to consider a broader set of criteria.
Finally, the hearing before the Joint Committee for Review of Administrative Rules on June 21 brought out further testimony and suggestions regarding setbacks from additional legislators, from the existing interest groups, and from new groups and individuals.
Therefore, WISDOT proposes a separate setback portion of this proposed rule revision to balance individual, private concerns while preserving the public interest as follows:
A. HIGHWAYS AND MAPS FOR “NORMAL" SETBACK. The normal setback associated with land divisions that has been in existence since 1956 is 110 feet from the center line of the highway or 50 feet from the nearest right of way line, whichever is greater. This normal setback provision will be made applicable to a reduced system of highways. This will consist of those state trunk and connecting highways identified as part of the National Highway System (NHS), [the NHS includes all of Wisconsin's Corridors 2020 as a subset], as well as all other principal arterials, and all other state trunk highways with current average daily traffic of 5,000 or more, and all other state trunk and connecting highways within incorporated areas and within one mile of those corporate boundaries, and those highways with current and forecasted congestion projected to be worse than Level of Service “C" within the following 20 years. [***INSERT MILEAGE NUMBERS****] The rule calls for updating reference maps that identify this system at least every two years. Persons may still seek special exceptions to this normal setback requirement through a specific analysis process.
B. OTHER HIGHWAYS. The remaining state trunk and connecting highways will have a reduced setback of 15 feet from the nearest right of way line, unless local ordinances require a greater setback. Persons may still seek special exceptions to this reduced setback requirement through a specific analysis process.
3. IMPLEMENT CHANGES IN STATE AND FEDERAL LAW:
The third purpose of this proposed rule provision is to recognize and reflect recent changes in state and federal laws and regulations regarding land use that affect highway and transportation planning and development.
Human Equality:
Section 15.04 (1) (g), Stats., requires the head of each Wisconsin agency to examine and assess the statutes under which the head has powers or regulatory responsibilities, the procedures by which those statutes are administered and the rules promulgated under those statutes to determine whether they have any arbitrary discriminatory effect on the basis of race, religion, national origin, sex, marital status or sexual orientation. If WISDOT or agency head finds any such discrimination, he or she shall take remedial action, including making recommendations to the appropriate executive, legislative or administrative authority.
Similarly, Title VI of the Civil Rights Act of 1964 states that “no person in the United States shall, on the ground of race, color, or national origin be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance." 42 USC 2000d. It bars intentional discrimination as well as disparate impact on protected groups. The federal government has taken steps to require the implementation of these laws at the earliest possible time in the transportation planning process.
Highway building projects that require the destruction of downtown areas due to lack of corridor preservation and lack of adequate setbacks and lack of concern for the affected populace have allegedly had a disparate impact on low income and minority populations. WISDOT believes that it cannot fulfill the mandates of these laws without a comprehensive system of review of land divisions abutting state trunk and connecting highways.
