Amendment ASA1-AB479

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 Section 1. 30.20 (1g) (d) of the statutes is created to read:

AB479-ASA1,4,3 30.20 (1g) (d) A removal of material from a pond is exempt from the permit and contract requirements under this section if all of the following apply to the pond:

AB479-ASA1,4,4 1. It has an area of 5 acres or less.

AB479-ASA1,4,6 2. It is not hydrologically connected to a natural navigable waterway and does not discharge into a natural navigable waterway except as a result of storm events.

AB479-ASA1,4,7 3. It has no public access.

AB479-ASA1,4,8 4. It is entirely surrounded by land privately owned by the same person.

AB479-ASA1,2 Section 2 . 59.69 (5e) of the statutes is created to read:

AB479-ASA1,4,10 59.69 (5e) Conditional use permits. (a) In this subsection:

AB479-ASA1,5,3 1. “Conditional use” means a use allowed under a conditional use permit, special exception, or other special zoning permission issued by a county, but does not include a variance.

AB479-ASA1,5,7 2. “Substantial evidence” means facts and information, other than merely personal preferences or speculation, directly pertaining to the requirements and conditions an applicant must meet to obtain a conditional use permit and that reasonable persons would accept in support of a conclusion.

AB479-ASA1,5,12 (b) 1. If an applicant for a conditional use permit meets or agrees to meet all of the requirements and conditions specified in the county ordinance or those imposed by the county zoning board, the county shall grant the conditional use permit. Any condition imposed must be related to the purpose of the ordinance and be based on substantial evidence.

AB479-ASA1,5,19 2. The requirements and conditions described under subd. 1. must be reasonable and, to the extent practicable, measurable and may include conditions such as the permit's duration, transfer, or renewal. The applicant must demonstrate that the application and all requirements and conditions established by the county relating to the conditional use are or shall be satisfied, both of which must be supported by substantial evidence. The county's decision to approve or deny the permit must be supported by substantial evidence.

AB479-ASA1,5,22 (c) Upon receipt of a conditional use permit application, and following publication in the county of a class 2 notice under ch. 985, the county shall hold a public hearing on the application.

AB479-ASA1,6,2 (d) Once granted, a conditional use permit shall remain in effect as long as the conditions upon which the permit was issued are followed, but the county may impose conditions such as the permit's duration, transfer, or renewal, in addition to any other conditions specified in the zoning ordinance or by the county zoning board.

AB479-ASA1,6,5 (e) If a county denies a person's conditional use permit application, the person may appeal the decision to the circuit court under the procedures contained in s. 59.694 (10).

AB479-ASA1,3 Section 3. 59.69 (10e) (title) of the statutes is amended to read:

AB479-ASA1,6,8 59.69 (10e) (title) Repair , rebuilding, and maintenance of certain nonconforming structures.

AB479-ASA1,4 Section 4. 59.69 (10e) (a) 1. of the statutes is amended to read:

AB479-ASA1,6,12 59.69 (10e) (a) 1. “Development regulations" means the part of a zoning ordinance enacted under this section that applies to elements including setback, height, lot coverage, and side yard.

AB479-ASA1,5 Section 5. 59.69 (10e) (b) of the statutes is amended to read:

AB479-ASA1,6,17 59.69 (10e) (b) An ordinance enacted under this section may not prohibit, or 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.

AB479-ASA1,6 Section 6. 59.692 (1) (am) of the statutes is created to read:

AB479-ASA1,6,21 59.692 (1) (am) “Navigable waters” has the meaning given in s. 281.31 (2) (d), except that “navigable waters” does not include a pond to which all of the following apply:

AB479-ASA1,6,22 1. It has an area of 5 acres or less.

AB479-ASA1,6,24 2. It is not hydrologically connected to a natural navigable waterway and does not discharge into a natural navigable waterway except as a result of storm events.

AB479-ASA1,6,25 3. It has no public access.

AB479-ASA1,7,1 4. It is entirely surrounded by land privately owned by the same person.

AB479-ASA1,7 Section 7. 59.692 (1) (b) (intro.) of the statutes is amended to read:

AB479-ASA1,7,5 59.692 (1) (b) (intro.) “Shorelands" means the area within the following distances from the ordinary high-water mark of navigable waters , as defined under s. 281.31 (2) (d):

AB479-ASA1,8 Section 8. 59.694 (7) (c) of the statutes is renumbered 59.694 (7) (c) 2. and amended to read:

AB479-ASA1,7,12 59.694 (7) (c) 2. To authorize upon appeal in specific cases variances from the terms of the ordinance that will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done.

AB479-ASA1,7,22 4. A county board may enact an ordinance specifying an expiration date for a variance granted under this paragraph if that date relates to a specific date by which the action authorized by the variance must be commenced or completed. If no such ordinance is in effect at the time a variance is granted, or if the board of adjustment does not specify an expiration date for the variance, a variance granted under this paragraph does not expire unless, at the time it is granted, the board of adjustment specifies in the variance a specific date by which the action authorized by the variance must be commenced or completed. An ordinance enacted after April 5, 2012, may not specify an expiration date for a variance that was granted before April 5, 2012.

AB479-ASA1,7,23 5. A variance granted under this paragraph runs with the land.

AB479-ASA1,9 Section 9 . 59.694 (7) (c) 1. of the statutes is created to read:

AB479-ASA1,7,25 59.694 (7) (c) 1. In this paragraph:

AB479-ASA1,8,4 a. “Area variance” means a modification to a dimensional, physical, or locational requirement such as the setback, frontage, height, bulk, or density restriction for a structure that is granted by the board of adjustment under this subsection.

AB479-ASA1,8,7 b. “Use variance” means an authorization by the board of adjustment under this subsection for the use of land for a purpose that is otherwise not allowed or is prohibited by the applicable zoning ordinance.

AB479-ASA1,10 Section 10. 59.694 (7) (c) 3. of the statutes is created to read:

AB479-ASA1,8,19 59.694 (7) (c) 3. A property owner bears the burden of proving “unnecessary hardship," as that term is used in this paragraph, for an area variance, by demonstrating that strict compliance with a zoning ordinance would unreasonably prevent the property owner from using the property owner's property for a permitted purpose or would render conformity with the zoning ordinance unnecessarily burdensome or, for a use variance, by demonstrating that strict compliance with the zoning ordinance would leave the property owner with no reasonable use of the property in the absence of a variance. In all circumstances, a property owner bears the burden of proving that the unnecessary hardship is based on conditions unique to the property, rather than considerations personal to the property owner, and that the unnecessary hardship was not created by the property owner.

AB479-ASA1,11 Section 11 . 60.61 (4e) of the statutes is created to read:

AB479-ASA1,8,21 60.61 (4e) Conditional use permits. (a) In this subsection:

AB479-ASA1,8,24 1. “Conditional use” means a use allowed under a conditional use permit, special exception, or other special zoning permission issued by a town, but does not include a variance.

AB479-ASA1,9,4 2. “Substantial evidence” means facts and information, other than merely personal preferences or speculation, directly pertaining to the requirements and conditions an applicant must meet to obtain a conditional use permit and that reasonable persons would accept in support of a conclusion.

AB479-ASA1,9,9 (b) 1. If an applicant for a conditional use permit meets or agrees to meet all of the requirements and conditions specified in the town ordinance or those imposed by the town zoning board, the town shall grant the conditional use permit. Any condition imposed must be related to the purpose of the ordinance and be based on substantial evidence.

AB479-ASA1,9,16 2. The requirements and conditions described under subd. 1. must be reasonable and, to the extent practicable, measurable and may include conditions such as the permit's duration, transfer, or renewal. The applicant must demonstrate that the application and all requirements and conditions established by the town relating to the conditional use are or shall be satisfied, both of which must be supported by substantial evidence. The town's decision to approve or deny the permit must be supported by substantial evidence.

AB479-ASA1,9,19 (c) Upon receipt of a conditional use permit application, and following publication in the town of a class 2 notice under ch. 985, the town shall hold a public hearing on the application.

AB479-ASA1,9,23 (d) Once granted, a conditional use permit shall remain in effect as long as the conditions upon which the permit was issued are followed, but the town may impose conditions such as the permit's duration, transfer, or renewal, in addition to any other conditions specified in the zoning ordinance or by the town zoning board.

AB479-ASA1,10,3 (e) If a town denies a person's conditional use permit application, the person may appeal the decision to the circuit court under the procedures described in s. 59.694 (10).

AB479-ASA1,12 Section 12. 60.61 (5e) (title) of the statutes is amended to read:

AB479-ASA1,10,6 60.61 (5e) (title) Repair, rebuilding, and maintenance of certain nonconforming structures.

AB479-ASA1,13 Section 13. 60.61 (5e) (a) 1. of the statutes is amended to read:

AB479-ASA1,10,10 60.61 (5e) (a) 1. “Development regulations" means the part of a zoning ordinance enacted under this section that applies to elements including setback, height, lot coverage, and side yard.

AB479-ASA1,14 Section 14. 60.61 (5e) (b) of the statutes is amended to read:

AB479-ASA1,10,15 60.61 (5e) (b) An ordinance enacted under this section may not prohibit, or 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.

AB479-ASA1,15 Section 15 . 60.62 (4e) of the statutes is created to read:

AB479-ASA1,10,17 60.62 (4e) (a) In this subsection:

AB479-ASA1,10,20 1. “Conditional use” means a use allowed under a conditional use permit, special exception, or other special zoning permission issued by a town, but does not include a variance.

AB479-ASA1,10,24 2. “Substantial evidence” means facts and information, other than merely personal preferences or speculation, directly pertaining to the requirements and conditions an applicant must meet to obtain a conditional use permit and that reasonable persons would accept in support of a conclusion.

AB479-ASA1,11,5 (b) 1. If an applicant for a conditional use permit meets or agrees to meet all of the requirements and conditions specified in the town ordinance or those imposed by the town zoning board, the town shall grant the conditional use permit. Any condition imposed must be related to the purpose of the ordinance and be based on substantial evidence.

AB479-ASA1,11,12 2. The requirements and conditions described under subd. 1. must be reasonable and, to the extent practicable, measurable and may include conditions such as the permit's duration, transfer, or renewal. The applicant must demonstrate that the application and all requirements and conditions established by the town relating to the conditional use are or shall be satisfied, both of which must be supported by substantial evidence. The town's decision to approve or deny the permit must be supported by substantial evidence.

AB479-ASA1,11,15 (c) Upon receipt of a conditional use permit application, and following publication in the town of a class 2 notice under ch. 985, the town shall hold a public hearing on the application.

AB479-ASA1,11,19 (d) Once granted, a conditional use permit shall remain in effect as long as the conditions upon which the permit was issued are followed, but the town may impose conditions such as the permit's duration, transfer, or renewal, in addition to any other conditions specified in the zoning ordinance or by the town zoning board.

AB479-ASA1,11,22 (e) If a town denies a person's conditional use permit application, the person may appeal the decision to the circuit court under the procedures described in s. 61.35.

AB479-ASA1,16 Section 16 . 62.23 (7) (de) of the statutes is created to read:

AB479-ASA1,11,24 62.23 (7) (de) Conditional use permits. 1. In this paragraph:

AB479-ASA1,12,3 a. “Conditional use” means a use allowed under a conditional use permit, special exception, or other special zoning permission issued by a city, but does not include a variance.

AB479-ASA1,12,7 b. “Substantial evidence” means facts and information, other than merely personal preferences or speculation, directly pertaining to the requirements and conditions an applicant must meet to obtain a conditional use permit and that reasonable persons would accept in support of a conclusion.

AB479-ASA1,12,12 2. a. If an applicant for a conditional use permit meets or agrees to meet all of the requirements and conditions specified in the city ordinance or those imposed by the city zoning board, the city shall grant the conditional use permit. Any condition imposed must be related to the purpose of the ordinance and be based on substantial evidence.

AB479-ASA1,12,19 b. The requirements and conditions described under subd. 2. a. must be reasonable and, to the extent practicable, measurable and may include conditions such as the permit's duration, transfer, or renewal. The applicant must demonstrate that the application and all requirements and conditions established by the city relating to the conditional use are or shall be satisfied, both of which must be supported by substantial evidence. The city's decision to approve or deny the permit must be supported by substantial evidence.

AB479-ASA1,12,22 3. Upon receipt of a conditional use permit application, and following publication in the city of a class 2 notice under ch. 985, the city shall hold a public hearing on the application.

AB479-ASA1,13,2 4. Once granted, a conditional use permit shall remain in effect as long as the conditions upon which the permit was issued are followed, but the city may impose conditions such as the permit's duration, transfer, or renewal, in addition to any other conditions specified in the zoning ordinance or by the city zoning board.

AB479-ASA1,13,4 5. If a city denies a person's conditional use permit application, the person may appeal the decision to the circuit court under the procedures contained in par. (e) 10.

AB479-ASA1,17 Section 17. 62.23 (7) (e) 7. of the statutes is renumbered 62.23 (7) (e) 7. b. and amended to read:

AB479-ASA1,13,17 62.23 (7) (e) 7. b. The board of appeals shall have the following powers: To hear and decide appeals where it is alleged there is error in any order, requirement, decision, or determination made by an administrative official in the enforcement of this section or of any ordinance adopted pursuant thereto; to hear and decide special exception to the terms of the ordinance upon which such board is required to pass under such ordinance; to authorize upon appeal in specific cases such variance from the terms of the ordinance as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in practical difficulty or unnecessary hardship, so that the spirit of the ordinance shall be observed, public safety and welfare secured, and substantial justice done.