Amendment SSA1-SB387

LRBs0137/3

MS/EM/AM/KRP/ES:all

2017 - 2018 LEGISLATURE

SENATE SUBSTITUTE AMENDMENT 1, TO SENATE BILL 387

October 19, 2017 - Offered by Senator Tiffany.

SB387-SSA1,2,2 An Act to renumber and amend 59.694 (7) (c) and 62.23 (7) (e) 7.; to amend 59.69 (10e) (title), 59.69 (10e) (a) 1., 59.69 (10e) (b), 59.692 (1) (b) (intro.), 60.61 (5e) (title), 60.61 (5e) (a) 1., 60.61 (5e) (b), 62.23 (7) (hb) (title), 62.23 (7) (hb) 1. a. and 62.23 (7) (hb) 2.; and to create 30.20 (1g) (d), 59.69 (5e), 59.692 (1) (am), 59.694 (7) (c) 1., 59.694 (7) (c) 3., 60.61 (4e), 60.62 (4e), 62.23 (7) (de), 62.23 (7) (e) 7. a., 62.23 (7) (e) 7. d., 66.10015 (1) (e), 66.10015 (2) (e), 66.10015 (4), 227.10 (2p) and 710.17 of the statutes; relating to: limiting the authority of local governments to regulate development on substandard lots and require the merging of lots; requiring a political subdivision to issue a conditional use permit under certain circumstances; standards for granting certain zoning variances; local ordinances related to repair, rebuilding, and maintenance of certain nonconforming structures; shoreland zoning of, and the removal of material from the bed of, certain small, private ponds; and the right to display the flag of the United States.

Analysis by the Legislative Reference Bureau

introduction

This substitute amendment makes various changes to local government zoning authority, navigable water permits, and the right to display the flag of the United States.

substandard lots

Under this substitute amendment, 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 substitute amendment, 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 substitute amendment 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 substitute amendment 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 substitute amendment, both the application, and the political subdivision's decision on the permit application, must be based on substantial evidence. 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 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:

SB387-SSA1,1 Section 1. 30.20 (1g) (d) of the statutes is created to read:

SB387-SSA1,4,3 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:

SB387-SSA1,4,4 1. It has an area of 5 acres or less.

SB387-SSA1,4,6 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.

SB387-SSA1,4,7 3. It has no public access.

SB387-SSA1,4,8 4. It is entirely surrounded by land privately owned by the same person.

SB387-SSA1,2 Section 2 . 59.69 (5e) of the statutes is created to read:

SB387-SSA1,4,10 59.69 (5e) Conditional use permits. (a) In this subsection:

SB387-SSA1,5,3 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.

SB387-SSA1,5,7 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.

SB387-SSA1,5,12 (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.

SB387-SSA1,5,19 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.

SB387-SSA1,5,22 (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.

SB387-SSA1,6,2 (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.

SB387-SSA1,6,5 (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).

SB387-SSA1,3 Section 3. 59.69 (10e) (title) of the statutes is amended to read:

SB387-SSA1,6,8 59.69 (10e) (title) Repair , rebuilding, and maintenance of certain nonconforming structures.

SB387-SSA1,4 Section 4. 59.69 (10e) (a) 1. of the statutes is amended to read:

SB387-SSA1,6,12 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.

SB387-SSA1,5 Section 5. 59.69 (10e) (b) of the statutes is amended to read:

SB387-SSA1,6,17 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.

SB387-SSA1,6 Section 6. 59.692 (1) (am) of the statutes is created to read:

SB387-SSA1,6,21 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:

SB387-SSA1,6,22 1. It has an area of 5 acres or less.

SB387-SSA1,6,24 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.