AB737: Bill Text

LRB-1367/2

MES:wlj:km

1999 - 2000 LEGISLATURE

1999 Assembly BILL 737

February 10, 2000 - Introduced by Representatives Albers, Musser, Owens, Ainsworth and Skindrud, cosponsored by Senators Huelsman, Welch and Schultz. Referred to Committee on Conservation and Land Use.

AB737,1,4 An Act to amend 60.65 (3) and 62.23 (7) (e) 1.; and to create 59.694 (11) and 66.038 of the statutes; relating to: requiring a city, village, town or county to develop a procedure to mitigate the effects on landowners of certain zoning or land use decisions.

Analysis by the Legislative Reference Bureau

Under current law, a city, village, town that is authorized to exercise village powers (municipality) or 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 hear and decide appeals that allege that there is an error in the enforcement of a zoning ordinance, to hear and decide special exceptions to the terms of a zoning ordinance and 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.

Although the term "unnecessary hardship" is not defined in the statutes, a recent decision of the Wisconsin Supreme Court, State v. Kenosha County Board of Adjustment, 218 Wis. 2d 396, 398 (1998), held that the legal standard of unnecessary hardship requires that the property owner demonstrate that without the variance, he or she has no reasonable use of the property.

This bill requires political subdivisions (cities, villages, towns or counties) to develop a procedure to mitigate the effects on landowners of certain zoning or land use decisions. Under the bill, a political subdivision is required to create within six months of the bill's effective date a zoning mitigation committee (ZMC), which may be part of the political subdivision's governing body or a separate committee. If a landowner believes that an action taken by a political subdivision's governing body places an inordinate burden on the landowner, the landowner may file a mitigation request with the ZMC no later than one year after the action takes effect.

The bill defines "action" to be any zoning or land use ordinance, regulation or resolution of a political subdivision or a denial of a building permit, special exception or variance. An "inordinate burden" is defined as an action that directly restricts or limits a landowner's use of, or ability to develop, the landowner's real property such that the landowner can make little or no reasonable use of the real property, other than recreational use.

A ZMC must meet within 30 days after receiving a mitigation request, and must decide within 90 days of receiving the request whether a landowner is subject to an inordinate burden. Before reaching its decision, the ZMC must hold at least one public hearing on the mitigation request at which the landowner, the governing body responsible for the action that led to the request and any other interested party may appear. The factors that a ZMC is required to use in reaching its decision include the following:

1. The history of the development and the use of the real property.

2. The history of environmental protection, land use controls and other regulations that applied to the property.

3. The current land use restrictions, ordinances, regulations and resolutions that apply to each parcel of the property.

4. The reasonable expectations of the landowner for developing or using the property.

5. The public purpose to be achieved by the action, the nature and magnitude of the problem addressed by the action and whether alternate actions could achieve the public purpose.

6. The uses, density or development that could occur on the property under the current land use plans, regulations and ordinances.

7. Whether the assessed value of the real property declined in the current year compared to the previous year and if so, whether the decline is directly attributable to the action that caused the landowner to file the mitigation request.

If a ZMC finds that the landowner is subject to an inordinate burden, the political subdivision's governing body is required to mitigate in one of the following ways:

1. Enact or amend a zoning ordinance or regulation which allows the landowner to use or develop the property that is subject to the mitigation request.

2. Grant a special exception or variance which allows the landowner to proceed with the use or development of the property that is subject to the mitigation request.

3. Enter into a written development agreement with the landowner.

4. Enter into an agreement with the landowner to compensate the landowner for the inordinate burden.

If a ZMC finds that the landowner is subject to an inordinate burden or if a ZMC finds that the landowner is not subject to an inordinate burden, the landowner, a taxpayer who resides in the political subdivision or the governing body of the political subdivision may appeal the ZMC's decision to the circuit court.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB737, s. 1 Section 1. 59.694 (11) of the statutes is created to read:

AB737,3,4 59.694 (11) Required to act. If directed to do so by the county board under s. 66.038 (4), the board of adjustment shall grant a special exception or variance under this section to comply with the procedure described in s. 66.038 (4) (b).

AB737, s. 2 Section 2. 60.65 (3) of the statutes is amended to read:

AB737,4,2 60.65 (3) Powers and duties. The town board may authorize the board of adjustment to, in appropriate cases and subject to appropriate conditions and safeguards, permit special exceptions to the terms of the zoning ordinance under s. 60.61 consistent with the ordinance's general purpose and intent and with applicable provisions of the ordinance. This subsection does not preclude the granting of special exceptions by the town zoning committee designated under s. 60.61 (4) or the town board, in accordance with regulations and restrictions adopted under s. 60.61. The town board, under s. 66.038 (4), may also require the board of adjustment to grant a special exception or variance under this section to comply with the procedure described in s. 66.038 (4) (b).

AB737, s. 3 Section 3. 62.23 (7) (e) 1. of the statutes is amended to read:

AB737,4,15 62.23 (7) (e) 1. The council which enacts zoning regulations pursuant to this section shall by ordinance provide for the appointment of a board of appeals, and shall provide in such regulations that said board of appeals may, in appropriate cases and subject to appropriate conditions and safeguards, make special exceptions to the terms of the ordinance in harmony with its general purpose and intent and in accordance with general or specific rules therein contained. Nothing in this subdivision shall preclude the granting of special exceptions by the city plan commission or the common council in accordance with the zoning regulations adopted pursuant to this section which were in effect on July 7, 1973 or adopted after that date. The council, under s. 66.038 (4), may also require the board of appeals to grant a special exception or variance under this subsection to comply with the procedure described in s. 66.038 (4) (b).

AB737, s. 4 Section 4. 66.038 of the statutes is created to read:

AB737,4,17 66.038 Zoning mitigation. (1) Definitions. In this section:

AB737,4,22 (a) "Action" means any zoning or land use ordinance that is enacted or regulation or resolution that is adopted, or building permit that is denied, by a political subdivision under s. 59.69, 60.61, 60.62, 61.35 or 62.23; or any denial of a special exception or variance to a zoning ordinance by a board of appeals under s. 62.23 (7) (e) or by a board of adjustment under s. 59.694 or 60.65.

AB737,5,2 (b) "Chief executive officer" means the mayor or city manager of a city, the village president of a village, the town board chairperson of a town or the county executive of a county or, if the county does not have a county executive, the chairperson of the county board of supervisors.

AB737,5,4 (c) "Governing body" means the body in which the legislative powers of a political subdivision are vested.

AB737,5,8 (d) "Inordinate burden" means an action that directly restricts or limits a landowner's use of, or ability to develop, the landowner's real property such that the landowner can make little or no reasonable use of the real property, other than recreational use.

AB737,5,11 (e) "Landowner" means the owner of record of a parcel of land or the purchaser of land under a land contract who has the right to occupy and the right to use the land, except that "landowner" does not include any unit of government.

AB737,5,12 (f) "Parcel" means an identified section, fractional section or government lot.

AB737,5,13 (g) "Political subdivision" means a city, village, town or county.

AB737,5,14 (h) "Real property" means land and improvements on the land.

AB737,5,21 (2) Zoning mitigation committee. (a) Designation, creation. Not later than the first day of the 6th month beginning after publication .... [revisor inserts date], a political subdivision shall designate a zoning mitigation committee. The zoning mitigation committee shall be an existing or newly created committee of the political subdivision's governing body or a separate committee, other than a board of adjustment or appeals under s. 59.694, 60.65 or 62.23 (7) (e), that is not part of the political subdivision's governing body.