Amendment SSA2-SB464

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

This substitute amendment requires a political subdivision to provide written notice to a landowner, and annual notification to residents of a 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 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 rezoning it to a usage that is less dense than its previous usage.

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 a permit is issued for constructing a building or other structure on the land. The substitute amendment provides that such land be assessed at its unimproved value, although the land is 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:

SB464-SSA2,1 Section 1. 59.69 (4) (intro.) of the statutes is amended to read:

SB464-SSA2,5,14 59.69 (4) Extent of power. (intro.) For the purpose of promoting the public health, safety and general welfare the board may by ordinance effective within the areas within such county outside the limits of incorporated villages and cities establish districts of such number, shape and area, and adopt such regulations for each such district as the board considers best suited to carry out the purposes of this section. The board may establish mixed-use districts that contain any combination of uses, such as industrial, commercial, public, or residential uses, in a compact urban form. The board may not enact a development moratorium, as defined in s. 66.1002 (1) (b), under this section or s. 59.03, by acting under ch. 236, or by acting under any other law, except that this prohibition does not limit any authority of the board to impose a moratorium that is not a development moratorium. The powers granted by this section shall be exercised through an ordinance which may, subject to sub. (4e), determine, establish, regulate and restrict:

SB464-SSA2,2 Section 2. 59.69 (4) (j) of the statutes is amended to read:

SB464-SSA2,5,17 59.69 (4) (j) The Subject to s. 66.10015 (3), the density and distribution of population.

SB464-SSA2,3 Section 3. 59.69 (5) (f) of the statutes is amended to read:

SB464-SSA2,6,19 59.69 (5) (f) The county zoning agency shall maintain a list of persons who submit a written or electronic request to receive notice of any proposed ordinance or amendment that affects the allowable use of the property owned by the person. Annually, the agency shall inform residents of the county that they may add their names to the list. The agency may satisfy this requirement to provide such information by any of the following means: publishing a 1st class notice under ch. 985; publishing on the county's Internet site; 1st class mail; or including the information in a mailing that is sent to all property owners. If the county zoning agency completes a draft of a proposed zoning ordinance under par. (a) or if the agency receives a petition under par. (e) 2., the agency shall send a notice, which contains a copy or summary of the proposed ordinance or petition, to each person on the list whose property, the allowable use or size or density requirements of which, may be affected by the proposed ordinance or amendment. The notice shall be by mail or in any reasonable form that is agreed to by the person and the agency, including electronic mail, voice mail, or text message. The agency may charge each person on the list who receives a notice by 1st class mail a fee that does not exceed the approximate cost of providing the notice to the person. An ordinance or amendment that is subject to this paragraph may take effect even if the agency fails to send the notice that is required by this paragraph.

SB464-SSA2,4 Section 4. 59.692 (1h) of the statutes is created to read:

SB464-SSA2,7,2 59.692 (1h) If a professional land surveyor licensed under ch. 443, in measuring a setback from an ordinary high-water mark of a navigable water as required by an ordinance enacted under this section, relies on a map, plat, or survey that incorporates or approximates the ordinary high-water mark in accordance with s. 236.025, the setback measured is the setback with respect to a structure constructed on that property if all of the following apply:

SB464-SSA2,7,6 (a) The map, plat, or survey is prepared by a professional land surveyor, licensed under ch. 443, after the effective date of this paragraph .... [LRB inserts date]. The same professional land surveyor may prepare the map, plat, or survey and measure the setback.

SB464-SSA2,7,8 (b) The department has not identified the ordinary high-water mark on its Internet site as is required under s. 30.102 at the time the setback is measured.

SB464-SSA2,5 Section 5. 59.692 (1k) (a) 2. of the statutes, as created by 2015 Wisconsin Act 55, is amended to read:

SB464-SSA2,7,16 59.692 (1k) (a) 2. Except as provided in par. (b), requires any approval or imposes any fee or mitigation requirement for, or otherwise prohibits or regulates, the maintenance, repair, replacement, restoration, rebuilding, or remodeling of all or any part of a nonconforming structure or a structure of which any part is legally located in the shoreland setback area by operation of a variance granted before July 13, 2015, if the activity does not expand the footprint of the nonconforming structure.

SB464-SSA2,6 Section 6. 59.692 (1k) (a) 4. of the statutes, as created by 2015 Wisconsin Act 55, is amended to read:

SB464-SSA2,7,23 59.692 (1k) (a) 4. Requires any approval or imposes any fee or mitigation requirement for, or otherwise prohibits or regulates, the vertical expansion of a nonconforming structure or a structure of which any part is legally located in the shoreland setback area by operation of a variance granted before July 13, 2015, unless the vertical expansion would extend more than 35 feet above grade level.

SB464-SSA2,7 Section 7. 59.692 (1k) (a) 6. of the statutes is created to read:

SB464-SSA2,8,2 59.692 (1k) (a) 6. Prohibits placement in a shoreland setback area of a device or system authorized under par. (a) 5.

SB464-SSA2,8 Section 8. 59.692 (1k) (b) of the statutes, as created by 2015 Wisconsin Act 55, is amended to read:

SB464-SSA2,8,9 59.692 (1k) (b) A county shoreland zoning ordinance shall allow an activity specified under par. (a) 2. to expand the footprint of a nonconforming structure or a structure of which any part is legally located in the shoreland setback area by operation of a variance granted before July 13, 2015, if the expansion is necessary for the structure to comply with applicable state or federal requirements.

SB464-SSA2,9 Section 9. 59.692 (1p) of the statutes is created to read:

SB464-SSA2,8,16 59.692 (1p) The department may not promulgate a standard and a county may not enact an ordinance under this section that prohibits the owner of a boathouse in the shoreland setback area that has 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 that roof if the railing is not inconsistent with standards promulgated by the department of safety and professional services under ch. 101.

SB464-SSA2,10 Section 10. 59.692 (7) of the statutes is created to read:

SB464-SSA2,8,22 59.692 (7) (a) In this subsection, "facility" means any property or equipment of a public utility, as defined in s. 196.01 (5), or a cooperative association organized under ch. 185 for the purpose of producing or furnishing heat, light, or power to its members only, that is used for the transmission, delivery, or furnishing of natural gas, heat, light, or power.

SB464-SSA2,8,25 (b) The construction and maintenance of a facility is considered to satisfy the requirements of this section and any county ordinance enacted under this section if any of the following applies:

SB464-SSA2,9,2 1. The department has issued all required permits or approvals authorizing the construction or maintenance under ch. 30, 31, 281, or 283.

SB464-SSA2,9,6 2. No department permit or approval under subd. 1. is required for the construction or maintenance and the construction or maintenance is conducted in a manner that employs best management practices to infiltrate or otherwise control storm water runoff from the facility.

SB464-SSA2,11 Section 11. 60.61 (2) (a) 6. of the statutes is amended to read:

SB464-SSA2,9,9 60.61 (2) (a) 6. The Subject to s. 66.10015 (3), the density and distribution of population.

SB464-SSA2,12 Section 12. 60.61 (4) (f) of the statutes is amended to read:

SB464-SSA2,9,25 60.61 (4) (f) The town board shall maintain a list of persons who submit a written or electronic request to receive notice of any proposed ordinance or amendment that affects the allowable use of the property owned by the person. Annually, the town board shall inform residents of the town that they may add their names to the list. The town board may satisfy this requirement to provide such information by any of the following means: publishing a 1st class notice under ch. 985; publishing on the town's Internet site; 1st class mail; or including the information in a mailing that is sent to all property owners. If the town zoning committee completes a final report on a proposed zoning ordinance and the town board is prepared to vote on the proposed ordinance under par. (b) or if the town board is prepared to vote on a proposed amendment under par. (c) 1., the town board shall send a notice, which contains a copy or summary of the proposed ordinance or amendment, to each person on the list whose property, the allowable use or size or density requirements of which, may be affected by the proposed ordinance or amendment. The notice shall be by mail or in any reasonable form that is agreed to by the person and the town board, including electronic mail, voice mail, or text message. The town board may charge each person on the list who receives a notice by 1st class mail a fee that does not exceed the approximate cost of providing the notice to the person. An ordinance or amendment that is subject to this paragraph may take effect even if the town board fails to send the notice that is required by this paragraph.

SB464-SSA2,13 Section 13. 62.23 (7) (am) of the statutes is amended to read:

SB464-SSA2,10,18 62.23 (7) (am) Grant of power. For the purpose of promoting health, safety, morals or the general welfare of the community, the council may regulate and restrict by ordinance, subject to par. (hm), the height, number of stories and size of buildings and other structures, the percentage of lot that may be occupied, the size of yards, courts and other open spaces, subject to s. 66.10015 (3) the density of population, and the location and use of buildings, structures and land for trade, industry, mining, residence or other purposes if there is no discrimination against temporary structures. This subsection and any ordinance, resolution or regulation enacted or adopted under this section, shall be liberally construed in favor of the city and as minimum requirements adopted for the purposes stated. This subsection may not be deemed a limitation of any power granted elsewhere.

SB464-SSA2,14 Section 14. 62.23 (7) (d) 4. of the statutes is amended to read:

SB464-SSA2,11,19 62.23 (7) (d) 4. The city council shall maintain a list of persons who submit a written or electronic request to receive notice of any proposed zoning action that may be taken under subd. 1. a. or b. or 2. that affects the allowable use of the person's property. Annually, the city council shall inform residents of the city that they may add their names to the list. The city council may satisfy this requirement to provide such information by any of the following means: publishing a 1st class notice under ch. 985; publishing on the city's Internet site; 1st class mail; or including the information in a mailing that is sent to all property owners. If the plan commission, the board of public land commissioners, or city plan committee of the city council completes action on any tentative recommendations that are noticed under subd. 1. a., proposed changes to a proposed district plan and regulations that are submitted under subd. 1. b., or proposed amendments that are submitted under subd. 2., and the city council is prepared to vote on the tentative recommendations, proposed changes to a proposed district plan, and regulations or proposed amendments, the city council shall send a notice, which contains a copy or summary of the tentative recommendations, proposed changes to a proposed district plan, and regulations or proposed amendments, to each person on the list whose property, the allowable use of which, may be affected by the tentative recommendations or proposed changes or amendments. The notice shall be by mail or in any reasonable form that is agreed to by the person and the city council, including electronic mail, voice mail, or text message. The city council may charge each person on the list who receives a notice by 1st class mail a fee that does not exceed the approximate cost of providing the notice to the person. An ordinance or amendment that is subject to this subdivision may take effect even if the city council fails to send the notice that is required by this subdivision.

SB464-SSA2,15 Section 15. 66.1001 (2m) (title) of the statutes is amended to read:

SB464-SSA2,11,22 66.1001 (2m) (title) Effect of enactment of a comprehensive plan, consistency requirements.

SB464-SSA2,16 Section 16. 66.1001 (2m) of the statutes is renumbered 66.1001 (2m) (a).

SB464-SSA2,17 Section 17. 66.1001 (2m) (b) of the statutes is created to read:

SB464-SSA2,12,3 66.1001 (2m) (b) A conditional use permit that may be issued by a political subdivision does not need to be consistent with the political subdivision's comprehensive plan.

SB464-SSA2,18 Section 18. 66.1001 (4) (f) of the statutes is amended to read:

SB464-SSA2,12,20 66.1001 (4) (f) A political subdivision shall maintain a list of persons who submit a written or electronic request to receive notice of any proposed ordinance, described under par. (c), that affects the allowable use of the property owned by the person. Annually, the political subdivision shall inform residents of the political subdivision that they may add their names to the list. The political subdivision may satisfy this requirement to provide such information by any of the following means: publishing a 1st class notice under ch. 985; publishing on the political subdivision's Internet site; 1st class mail; or including the information in a mailing that is sent to all property owners. At least 30 days before the hearing described in par. (d) is held a political subdivision shall provide written notice, including a copy or summary of the proposed ordinance, to all such persons whose property, the allowable use of which, may be affected by the proposed ordinance. The notice shall be by mail or in any reasonable form that is agreed to by the person and the political subdivision, including electronic mail, voice mail, or text message. The political subdivision may charge each person on the list who receives a notice by 1st class mail a fee that does not exceed the approximate cost of providing the notice to the person.

SB464-SSA2,19 Section 19. 66.10015 (title) of the statutes is amended to read:

SB464-SSA2,12,23 66.10015 (title) Limitation on development regulation authority and down zoning.

SB464-SSA2,20 Section 20. 66.10015 (1) (a) of the statutes is amended to read:

SB464-SSA2,13,2 66.10015 (1) (a) "Approval" means a permit or authorization for building, zoning, driveway, stormwater, or other activity related to land development a project.

SB464-SSA2,21 Section 21. 66.10015 (1) (as) of the statutes is created to read:

SB464-SSA2,13,5 66.10015 (1) (as) "Down zoning ordinance" means a zoning ordinance that affects an area of land in one of the following ways:

SB464-SSA2,13,7 1. By decreasing the development density of the land to be less dense than was allowed under its previous usage.

SB464-SSA2,13,10 2. By reducing the permitted uses of the land, that are specified in a zoning ordinance or other land use regulation, to fewer uses than were allowed under its previous usage.

SB464-SSA2,22 Section 22. 66.10015 (1) (bs) of the statutes is created to read:

SB464-SSA2,13,15 66.10015 (1) (bs) "Members-elect" means those members of the governing body of a political subdivision, at a particular time, who have been duly elected or appointed for a current regular or unexpired term and whose service has not terminated by death, resignation, or removal from office.

SB464-SSA2,23 Section 23. 66.10015 (3) of the statutes is created to read:

SB464-SSA2,13,21 66.10015 (3) Down zoning. A political subdivision may enact a down zoning ordinance only if the ordinance is approved by at least two-thirds of the members-elect, except that if the down zoning ordinance is requested, or agreed to, by the person who owns the land affected by the proposed ordinance, the ordinance may be enacted by a simple majority of the members-elect.

SB464-SSA2,24 Section 24. 66.1036 of the statutes is created to read:

SB464-SSA2,14,2 66.1036 Building permit for a shoreland structure. If an activity in a shoreland setback area to which s. 59.692 (1k) (a) or (b) applies requires a building permit, the city, village, or town that issues the building permit for that activity shall provide a copy of the building permit to the county clerk.

SB464-SSA2,25 Section 25. 70.32 (2) (c) 4. of the statutes is renumbered 70.32 (2) (c) 4. (intro.) and amended to read:

SB464-SSA2,14,5 70.32 (2) (c) 4. (intro.) "Undeveloped land" means bog all of the following:

SB464-SSA2,14,8 a. Bog, marsh, lowland brush, uncultivated land zoned as shoreland under s. 59.692 and shown as a wetland on a final map under s. 23.32, or other nonproductive lands not otherwise classified under this subsection.

SB464-SSA2,26 Section 26. 70.32 (2) (c) 4. b. of the statutes is created to read:

SB464-SSA2,14,24 70.32 (2) (c) 4. b. Land not used for agricultural purposes that is platted and zoned for residential, commercial, or manufacturing use, and improvements on that land, until such time that all approvals, including post-construction inspection approvals and occupancy permits, required before the initial use of the land for a residential, commercial, or manufacturing use are issued. This subd. 4. b. applies only to land that was assessed as agricultural land for the 2 consecutive years immediately prior to being converted to residential, commercial, or manufacturing use. With regard to a parcel that is located in a tax incremental district on the effective date of this subd. 4. b. .... [LRB inserts date], this subd. 4. b. first applies on January 1 of the year following the year in which either the tax incremental district terminates or the parcel is subtracted from the district as described in s. 66.1105 (4) (h) 2. With regard to a parcel that is not located in a tax incremental district on the effective date of this subd. 4. b. .... [LRB inserts date], this subd. 4. b. first applies on January 1 of the 2nd year beginning after the effective date of this subd. 4. b. .... [LRB inserts date].

SB464-SSA2,27 Section 27. 74.485 (4) (a) of the statutes is amended to read: