AB266: Bill Text

LRB-0585/1

EVM&KRP:emw&amn

2023 - 2024 LEGISLATURE

2023 Assembly BILL 266

May 16, 2023 - Introduced by Representatives Krug, Brooks, Allen, Edming, Moses, Murphy, O'Connor, Penterman, Schraa, Snyder, Sortwell and Spiros, cosponsored by Senators Stroebel, Quinn, Jagler and Testin. Referred to Committee on Housing and Real Estate.

AB266,1,9 An Act to repeal 59.69 (5) (e) 5g., 60.61 (4) (c) 2. and 62.23 (7) (e) 15.; to renumber 66.10015 (3); to amend 59.69 (5e) (e), 60.61 (4e) (e), 62.23 (6) (g), 62.23 (6) (h), 62.23 (7) (b), 62.23 (7) (de) 5., 66.10015 (title), 236.13 (5) and 781.10 (2) (a); to repeal and recreate 59.694 (10), 62.23 (7) (e) 10. and 66.10015 (3) (title); and to create 60.65 (6), 66.10015 (1m), 66.10015 (3) (a), 66.10016, 781.10, 808.04 (1s) and 809.108 of the statutes; relating to: judicial review of local governmental decisions related to certain land development, local approval of residential housing development, and amendment of zoning ordinances.

Analysis by the Legislative Reference Bureau

This bill requires political subdivisions to approve certain permit applications related to residential housing developments that are consistent with certain local requirements and limits the authority of a political subdivision to impose a supermajority requirement for a zoning ordinance amendment. The bill also specifies procedures that apply to judicial review of certain local determinations related to land use.

Under the bill, a political subdivision must approve an application for a permit or administrative approval required to proceed with a residential housing development if the application is complete and the development meets the political subdivision's existing requirements that must be satisfied to obtain the permit. The bill also provides that, with limited exceptions, only a simple majority of a quorum of the members-elect of the governing body of a political subdivision is required to amend the political subdivision's zoning ordinance.

Under current law, decisions of political subdivisions related to land use are often judicially reviewed using a common law procedure known as “certiorari” review. In general, under this type of review, a court receives the record created by the political subdivision and performs a limited review to test the validity of the decision. On certiorari review, a court is generally limited to determining whether 1) the political subdivision's decision was within its jurisdiction; 2) the political subdivision acted according to law; 3) the decision was arbitrary, oppressive, or unreasonable; and 4) the evidence presented was such that the political subdivision might reasonably make the decision it did. There is a presumption of correctness and validity to the political subdivision's decision.

The bill specifies certain details regarding the conduct of certiorari review of certain decisions of political subdivisions relating to zoning and residential land use. First, the bill limits the persons who may seek review of these decisions to those that 1) submitted the application for approval; 2) have an ownership interest in the real property that is the subject of the application for an approval; 3) sustain actual damages or will imminently sustain actual damages that are personal to the person and distinct from damages that impact the public generally; or 4) are certain governmental actors. In addition, persons under item 3 must have provided a statement or appeared at a public proceeding and testified before the political subdivision on the approval proposed to be reviewed. Second, the bill requires that the certiorari action be filed within 30 days of the final decision of the political subdivision. Third, the bill specifies that a court must decide the action based only on the record provided by the political subdivision and may only affirm or reverse the decision or remand for further proceedings. Finally, the bill specifies deadlines for various steps in the review process to expedite the court's review and directs the court to give the action preference over other civil actions and proceedings.

Currently, s. 66.10015, stats., includes several definitions. The bill specifies that the definitions that apply to s. 66.10015, stats., do not apply to s. 66.10016, stats., a new provision created in the bill.

Because this bill may increase or decrease, directly or indirectly, the cost of the development, construction, financing, purchasing, sale, ownership, or availability of housing in this state, the Department of Administration, as required by law, will prepare a report to be printed as an appendix to this bill.

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:

AB266,1 Section 1. 59.69 (5) (e) 5g. of the statutes is repealed.

AB266,2 Section 2. 59.69 (5e) (e) of the statutes is amended to read:

AB266,3,8 59.69 (5e) (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) 781.10. Notwithstanding s. 59.694 (4), a county may provide by ordinance that the county's decision on a conditional use permit application is not reviewable by the board of adjustment and may be appealed directly to the circuit court under the procedures contained in s. 781.10.

AB266,3 Section 3. 59.694 (10) of the statutes is repealed and recreated to read:

AB266,3,11 59.694 (10) Judicial review. A decision of the board of adjustment under this section is subject to review by certiorari under s. 781.10.

AB266,4 Section 4. 60.61 (4) (c) 2. of the statutes is repealed.

AB266,5 Section 5. 60.61 (4e) (e) of the statutes is amended to read:

AB266,3,16 60.61 (4e) (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) 781.10.

AB266,6 Section 6. 60.65 (6) of the statutes is created to read:

AB266,3,19 60.65 (6) Judicial review. A decision of a board of adjustment under this section is subject to review by certiorari under s. 781.10.

AB266,7 Section 7. 62.23 (6) (g) of the statutes is amended to read:

AB266,4,3 62.23 (6) (g) Before taking any action authorized in this subsection, the board of appeals or city council shall hold a hearing at which parties in interest and others shall have an opportunity to be heard. At least 15 days before the hearing notice of the time and place of the hearing shall be published as a class 1 notice, under ch. 985. Any such decision under this paragraph shall be subject to review by certiorari issued by a court of record in the same manner and pursuant to the same provisions as in appeals from the decisions of a board of appeals upon zoning regulations under s. 781.10.

AB266,8 Section 8. 62.23 (6) (h) of the statutes is amended to read:

AB266,5,4 62.23 (6) (h) In any city which that has established an official map as herein authorized, no public sewer or other municipal street utility or improvement shall may be constructed in any street, highway, or parkway until such the street, highway, or parkway is duly placed on the official map. No permit for the erection of any building shall may be issued unless a street, highway, or parkway giving access to such the proposed structure has been duly placed on the official map. Where the enforcement of the provisions of this section would entail practical difficulty or unnecessary hardship, and where the circumstances of the case do not require the structure to be related to existing or proposed streets, highways , or parkways, the applicant for such a permit may appeal from the decision of the administrative officer having charge of the issue of permits to the board of appeals in any city which that has established a board having power to make variances or exceptions in zoning regulations, and the same provisions are applied to such appeals under this paragraph and to such boards as are provided in cases of appeals on zoning regulations. The board may in passing on such an appeal under this paragraph make any reasonable exception, and issue the permit subject to conditions that will protect any future street, highway, or parkway layout. Any such decision under this paragraph shall be subject to review by certiorari issued by a court of record in the same manner and pursuant to the same provisions as in appeals from the decision of such board upon zoning regulations under s. 781.10. In any city in which there is no such board of appeals the city council shall have the same powers and be subject to the same restrictions, and the same method of court review shall be available. For such purpose such of appeal under this paragraph, the council is authorized to act as a discretionary administrative or quasi-judicial body. When so acting it shall not sit as a legislative body, but in a separate meeting and with separate minutes kept.

AB266,9 Section 9. 62.23 (7) (b) of the statutes is amended to read:

AB266,6,3 62.23 (7) (b) Districts. For any and all of said purposes the council may divide the city into districts of such number, shape, and area as may be deemed best suited to carry out the purposes of this section; and within such districts it may regulate and restrict the erection, construction, reconstruction, alteration or use of buildings, structures or land. All such regulations shall be uniform for each class or kind of buildings and for the use of land throughout each district, but the regulations in one district may differ from those in other districts. No ordinance enacted or regulation adopted under this subsection may prohibit forestry operations that are in accordance with generally accepted forestry management practices, as defined under s. 823.075 (1) (d). The council 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 council may with the consent of the owners establish special districts, to be called planned development districts, with regulations in each, which in addition to those provided in par. (c), will over a period of time tend to promote the maximum benefit from coordinated area site planning, and diversified location of structures and which may have mixed compatible uses. Such regulations shall provide for a safe and efficient system for pedestrian and vehicular traffic, attractive recreation and landscaped open spaces, economic design and location of public and private utilities and community facilities and insure ensure adequate standards of construction and planning. Such regulations may also provide for the development of the land in such districts with one or more principal structures and related accessory uses, and in planned development districts and mixed-use districts the regulations need not be uniform.

AB266,10 Section 10. 62.23 (7) (de) 5. of the statutes is amended to read:

AB266,6,7 62.23 (7) (de) 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. s. 781.10.

AB266,11 Section 11. 62.23 (7) (e) 10. of the statutes is repealed and recreated to read:

AB266,6,10 62.23 (7) (e) 10. A decision under this paragraph is subject to review by certiorari under s. 781.10.

AB266,12 Section 12. 62.23 (7) (e) 15. of the statutes is repealed.

AB266,13 Section 13. 66.10015 (title) of the statutes is amended to read:

AB266,6,14 66.10015 (title) Limitation on development regulation authority and down zoning.

AB266,14 Section 14. 66.10015 (1m) of the statutes is created to read:

AB266,6,17 66.10015 (1m) Applicability of definitions. The definitions under sub. (1) do not apply to s. 66.10016.

AB266,15 Section 15. 66.10015 (3) (title) of the statutes is repealed and recreated to read:

AB266,6,20 66.10015 (3) (title) Zoning ordinance amendments.

AB266,16 Section 16. 66.10015 (3) of the statutes is renumbered 66.10015 (3) (b).

AB266,17 Section 17. 66.10015 (3) (a) of the statutes is created to read:

AB266,6,25 66.10015 (3) (a) Except as provided in par. (b) and ss. 59.69 (5) (e) 5m., 60.61 (4) (c) 3., and 62.23 (7) (d) 2m., the enactment of a zoning amendment shall be approved by a simple majority of a quorum of the members-elect.

AB266,18 Section 18. 66.10016 of the statutes is created to read:

AB266,7,3 66.10016 Permits for residential housing developments. (1) In this section:

AB266,7,7 (a) “Permit” means any permit or administrative approval required to proceed with a residential housing development. “Permit” does not include a change to an existing ordinance or zoning classification of land or an approval of a conditional use as defined under s. 59.69 (5e) (a) 1., 60.61 (4e) (a) 1., or 62.23 (7) (de) 1. a.

AB266,7,8 (b) “Political subdivision” means a city, village, town, or county.