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.
Environment:
Sections 1.11, 1.12, 32.035 and 1.13, 16.9651(2), and 66.0295 (2) (c), Stats., as created by 1999 Wis. Act 9, direct, authorize, and encourage Wisconsin state agencies, including WISDOT, to the fullest extent possible, to consider the effect of their actions on the environment (air, water, noise, endangered plants and animals, parklands, historic, scenic, etc.), the use of energy, the impact on agriculture and to balance the mission of the agency and local, comprehensive planning goals, including building of community identity by revitalizing main streets and enforcing design standards, encouragement of neighborhood designs that support a range of transportation options, and providing an integrated, efficient and economical transportation system that affords mobility, convenience and safety that meets the needs of all citizens, including transit-dependent and disabled citizens, and implements transportation corridor plans.
Similarly, federal laws require WISDOT to abide by federal design and construction standards while also considering, for example, the impact of WISDOT's actions on air, noise, water pollution, man-made and natural resources, community cohesion and injurious displacement of people, businesses and farms, and implementing federal regulations that require a minimum 20-year transportation planning horizon. WISDOT is authorized and directed by Wisconsin law to carry out all of these federal mandates by ss. 84.01 (15), 84.015, and 84.03 (1), Stats.
In order to achieve these objectives, WISDOT must do specific analyses looking forward for at least 20 years as required by federal law. 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.
RESTRICTIONS REQUIRING USE OF EXISTING CORRIDORS:
The Wisconsin Supreme Court has determined that WISDOT cannot expand its authority to acquire property by agreeing to environmental and human impact mitigation demands of other state and federal authorities in order to get their concurrence to proceed with a project. Mitton v. Transportation Dept., 184 Wis. 2d 738, 516 N.W.2d 709 (1994). Subsequent to this decision, the Wisconsin Legislature enacted s. 86.255, Stats., in 1999 Wis. Act 9, that places further restrictions on WISDOT's authority to acquire property. These judicial and legislative restrictions have made it necessary for WISDOT to rely on farther, long-range planning and corridor preservation.
CONCLUSION:
Within the rigorous expectations placed upon and expected of WISDOT in providing a transportation system for the public, the ultimate objective of this proposed rule revision is to recognize state and local economic and land use goals, enhance the effectiveness of the rule “as may be deemed necessary and proper for the preservation of highways, or for the safety of the public, and to make the granting of any highway access permit conditional thereon," to provide reasonable flexibility and clarity that does not jeopardize public investments or safety now or in the future, and to provide for “the safety of entrance upon and departure from the abutting state trunk highways or connecting highways and for the preservation of the public interest and investment in such highways." The rule is intended to ensure adequate setbacks and access controls, with sufficient flexibility to provide for locally planned traditional streetscapes and setbacks in existing and planned urban areas, and to ensure the maximum practical use of existing highway facilities and rights of way to minimize the need for new alignments or expansion of lower function facilities. WISDOT believes that it cannot achieve these legal mandates and expectations without a comprehensive system of review of land divisions abutting state trunk and connecting highways.
Fiscal Estimate
There will be an insubstantial reduction in revenues from the fee for the services provided by WISDOT in conjunction with review of land divisions. The change should not have an effect upon any county, city, village, town, school district, vocational, technical and adult education district and sewerage district liability unless they are assuming the role of developer. That situation occurs approximately five to ten times per year statewide. Developers will see a slight reduction in costs related to some condominium plat reviews. Surveyors who submit maps for review will pay less in total fees for the same reason, but those savings could be passed onto the developer. There will also be a slight reduction in costs of surveys passed on to developers or owners.
Several of WISDOT's transportation districts may use existing personnel to review more or less land divisions than in the past. There will be fewer reviews by WISDOT's Central Office staff, but there may be greater involvement with delegations of reviews to local units of government. It is expected that some of the District costs will be defrayed by WISDOT delegating the review for some developments of land abutting connecting highways to the local municipality as allowed in s. 236.12 (2) (a), Stats. Since, in general, local officials do review these documents now, there would be no additional costs to any reviewing authority, except to the extent they may voluntarily wish to also review developments of land abutting state trunk highways within their geographic jurisdiction.
In the long-term, there will in all likelihood be state, local and private savings that can be attributed to better long-range transportation planning and less adverse and more positive effects upon communities, businesses, residents, and the environment. An efficient and safe transportation system will have a positive, but hard-to-quantify, fiscal effect.
Initial Regulatory Flexibility Analysis
Section 236.12 (7), Stats., allows WISDOT to establish by rule the reasonable service fees for all or part of the costs of the activities and services provided by WISDOT under that chapter of the statutes. The rule revision eliminates fees to cover the costs of WISDOT for reviewing condominium plats where there is only a change from lease to ownership without a change in property use that affects transportation systems. There is also a delegation to district offices and municipalities that will provide greater access and flexibility in verifying and field reviewing documents. The setback requirements are also reduced on defined highways where consistent with safety and sound transportation planning. Finally, there is a provision for specific analysis and review of requests for special exceptions that does not have to meet the strict, restrictive legal standards for granting variances announced by the Wisconsin Court in State v. Kenosha County Bd. of Adjust., 218 Wis. 2d 396, 577 N.W.2d 813 (1998). The rule also makes new exceptions for locating residential swimming pools within the setback at the owner's option.
Copies of Proposed Rule and Contact Information
Copies of the rule may be obtained upon request, without cost, by writing to Julie Johnson, Administrative Rules Coordinator, Department of Transportation, Office of General Counsel, Room 115-B, P. O. Box 7910, Madison, WI 53707-7910, or by calling (608) 267-3703. Alternate formats of the proposed rule will be provided to individuals at their request.
Notice of Hearings
Workforce Development
(Economic Support,
Chs. DWD 11 to 59)
Notice is hereby given that pursuant to ss. 103.005 (1), 108.04 (2) (b), and 227.11 (2), Stats., the Department of Workforce Development will hold four public hearings to consider the creation of ch. DWD 42, relating to the state directory of new hires.
Hearing Information
Date & Time Location
August 7, 2000 Room 371, G.E.F. #1
Monday 201 E. Washington Ave.
1:00 p.m. MADISON, WI
August 8, 2000 Room 136
Tuesday Waukesha State Office Bldg.
10:30 a.m. 141 N. W. Barstow St.
WAUKESHA, WI
August 10, 2000 Suite B
Thursday Fox Valley Hearing Office
10:30 a.m. 2900 N. Mason St.
APPLETON, WI
August 22, 2000 Suite 1 (Hearing Room 2)
Tuesday Eau Claire Hearing Office
11:00 a.m. 715 S. Barstow St.
EAU CLAIRE, WI
Interested persons are invited to appear at the hearings and will be afforded the opportunity to make oral presentations of their positions. Persons making oral presentations are requested to submit their facts, views, and suggested rewording in writing.
If you have special needs or circumstances that may make communication or accessibility difficult at the hearing, please call (608) 267-9403 at least 10 days prior to the hearing date. Accommodations such as ASL interpreters, English translators, or materials in audiotape format will be made available on request to the fullest extent possible.
Analysis Prepared by the Dept. of Workforce Development
Statutory authority: ss. 103.05 (3), 103.005 and 227.11
Statute interpreted by the rule: s. 103.05
Relevant federal law: 42 USC 653a (a) (1) (A)
