Rule-Making Notices (Hearing Notices)

This rule makes minor changes to the wording of the provisions relating to withholding a tenant's security deposit to conform with Act 143, but does not substantially change the requirements from the current rule.

Prohibited rental agreement provisions

The current rule describes provisions that a landlord is prohibited from placing in a rental agreement, such as:

•   Authorizing eviction by other than judicial procedure.

•   Acceleration of rent payments if tenant breaches obligations.

•   Requiring the tenant to pay landlord's attorney's fees in the event of a dispute.

•   Relieving the landlord from liability for damage or injury caused by negligent acts or omissions of the landlord.

•   Imposing liability on the tenant for personal injury arising from causes clearly beyond the tenant's control.

Act 143 creates portions of s. 704.44, Stats., which describe prohibited rental agreement provisions that are similar, but not identical, to provisions in the current rule. Further, Act 143 states that the entire rental agreement is void and unenforceable if it contains any of the prohibited provisions. The current rule does not have such a provision, but instead relies on a test established by the courts to determine whether the entire rental agreement is void based on the inclusion of a prohibited provision.

This rule makes minor changes in wording related to prohibited rental agreement provisions so that the rule is identical to the new statute. This rule also incorporates the provision in s. 704.44, Stats., that declares the entire rental agreement is void and unenforceable if it contains any of the prohibited rental agreement provisions.

Confiscating personal property left behind by the tenant

The current rule prohibits the landlord from confiscating the tenant's personal property except as authorized by law or in accordance with a written lien agreement. The current rule also prescribes the form and manner in which the landlord and tenant may execute the lien agreement.

Act 143 allows a landlord to dispose of personal property left behind by the tenant at the landlord's discretion as long as certain conditions are met. For example, there must not be a written agreement to the contrary, and the landlord must provide notice to the tenant of his or her intent not to store the property before the tenant enters into or renews a rental agreement.

This rule amends the current rule so that provisions relating to abandoned personal property are identical to the statute.

Small Businesses Affected

The current rule and the proposed rule regulate transactions between landlords and tenants. Many landlords are small businesses. However, this proposed rule does not have any material effect on any small business. The proposed rule does not change the duties and responsibilities of landlords in relation to their tenants. Instead, the proposed rule states the duties and responsibilities of the landlord and eliminates inconsistencies between the Ch. 704, Stats., and Ch. ATCP 134, Wis. Admin. Code.

Reporting, Bookkeeping and other Procedures

The proposed rule does not create any new reporting, bookkeeping or other procedures for small businesses.

Professional Skills Required

The proposed rule does not require any new professional skills by small businesses.

Accommodation for Small Business

Many of the businesses affected by this rule are “small businesses." For the most part, this rule does not make special exceptions for “small businesses". The nature of the subject matter does not lend itself to differentiating between types of businesses.

Conclusion

This rule will not have a significant adverse effect on “small business," and is not subject to the delayed “small business" effective date provided in s. 227.22 (2) (e), Stats.

DATCP will, to the maximum extent feasible, seek voluntary compliance with this rule.

Agency contact

Kevin LeRoy, Division of Trade and Consumer Protection, P.O. Box 8911, Madison, WI 53708-8911; email [e-mail]; telephone [phone].

ADMINISTRATIVE RULES FISCAL ESTIMATE AND ECONOMIC IMPACT ANALYSIS
Type of Estimate and Analysis
X Original ⍽ Updated ⍽ Corrected
Administrative Rule Chapter, Title and Number
Ch. ATCP 134, Residential Rental Practices
Subject
Residential Rental Practices
Fund Sources Affected			Chapter 20 , Stats. Appropriations Affected
X GPR ⍽ FED ⍽ PRO ⍽ PRS ⍽ SEG ⍽ SEG-S			20.115(1)(a)
Fiscal Effect of Implementing the Rule
X No Fiscal Effect ⍽ Indeterminate	⍽ Increase Existing Revenues ⍽ Decrease Existing Revenues		⍽ Increase Costs ⍽ Could Absorb Within Agency's Budget ⍽ Decrease Costs
The Rule Will Impact the Following (Check All That Apply)
⍽ State's Economy ⍽ Local Government Units		X Specific Businesses/Sectors ⍽ Public Utility Rate Payers
Would Implementation and Compliance Costs Be Greater Than $20 million? ⍽ Yes X No
Policy Problem Addressed by the Rule
Ch. ATCP 134, Wis. Adm. Code, was enacted in 1980 and the rule was revised in 1998. The current rule regulates rental transactions between landlords and residential tenants as follows: •   Requires disclosure of rental agreement and earnest money receipts to the tenant. •   Requires disclosures to tenant prior to lease relating to the identity of the landlord, conditions affecting habitability, and utility charges. •   Prescribes procedures for accepting and withholding earnest money fees and credit check fees. •   Prescribes procedures for handling security deposits. •   Prescribes procedures for promises to repair. •   Prohibits a landlord from including in rental agreements provisions that do the following: •   Authorize unlawful eviction. •   Accelerate rent payments in event of tenant default. •   Require the tenant to pay attorney's fees. •   Authorize the landlord to confess judgment against the tenant. •   Relieve the landlord from liability for property damage or personal injury caused by the landlord. •   Impose liability on the tenant for property damage or personal injury not caused by the tenant. •   Waive statutory or legal obligations of the landlord. •   Prohibits a landlord from: •   Advertising or renting condemned premises. •   Unauthorized entries. •   Automatically renewing a lease without notice. •   Unlawfully confiscating personal property. •   Engaging in retaliatory or self-help eviction. •   Charging late rental fees and other penalties not set out in the lease. •   Misrepresenting the dwelling units offered or the amount of all rent and non-rent charges. •   Failing to disclose all non-rent charges in connection with the representation of any rent amount. Chapter 704, Stats., relating to Landlord Tenant, regulates transactions between landlords and both residential and non-residential tenants. The department does not administer ch. 704, Stats. The Wisconsin legislature enacted Act 143 on March 21, 2012 that made changes to ch. 704, Stats that also affect some provisions of current rule. This rule would modify the current rule to conform to the new statutory requirements.
Summary of Rule's Economic and Fiscal Impact on Specific Businesses, Business Sectors, Public Utility Rate Payers, Local Governmental Units and the State's Economy as a Whole (Include Implementation and Compliance Costs Expected to be Incurred)
This rule makes minor changes to the existing rule and does not represent any significant shift in policy. It does not pose any significant fiscal or economic impact on specific businesses, business sectors, public utility rate payers, local governments or the state's economy as a whole.
Benefits of Implementing the Rule and Alternative(s) to Implementing the Rule
Benefits This rule will benefit renters and landlords. Generally, it continues policies that have been in place for a number of years. Alternatives The passage of Act 143 leaves no real alternative. The newly created s. 704.95, Stats., prohibits DATCP from promulgating rules that change any right or duty described in ch. 704, Stats. There are a number of provisions where the existing rule is similar, but not identical to ch. 704, Stats. If this rule is not adopted, it is questionable that those rule provisions are enforceable. This is significant because DATCP, the Department of Justice, and district attorneys have the authority to enforce ch. ATCP 134 (as an Unfair Trade Practice under s. 100.20, Stats.) but do not have authority to enforce ch. 704, Stats.
Long Range Implications of Implementing the Rule
There are no long term implications of implementing this rule. This rule modifies the current rule to conform to policies dictated by a change in Wisconsin statutes.
Compare With Approaches Being Used by Federal Government
Federal law does not generally regulate landlord and tenant relationships or residential rental practices. The Federal Fair Housing Act of 1968 makes it illegal for a landlord to discriminate against a potential tenant because of a person's race, sex, national origin, or religion, and it prohibits certain discriminatory conduct.
Compare With Approaches Being Used by Neighboring States (Illinois, Iowa, Michigan and Minnesota)
Illinois, Iowa, Michigan, and Minnesota all have statutes or administrative rules governing residential rental practices. These statutes and rules address common topics such as rental agreements, security deposits and other duties of landlords and tenants. Comments Received in Response to Web Posting and DATCP Response No comments were received in response either to the posting on the DATCP external website or the statewide administrative rules website.

Notice of Hearing

Agriculture, Trade and Consumer Protection

rulemaking_notices CR 13-003 CR 13-003

(DATCP DOCKET # 12-R-03)

The Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) announces that it will hold public hearings on a proposed rule to create chapter ATCP 49, relating to the farmland preservation program.

DATCP will hold four public hearings at the time and place shown below.

Hearing Information

Date:   Thursday, February 14, 2013

Time:   2:30 p.m to 4:30 p.m. and 6:30 p.m. to 8:30 p.m.

Location:   Outagamie County Highway Department
  Conference Room
  1313 Holland Road
  Appleton, WI 54911

Date:   Thursday, February 21, 2013

Time:   2:30 p.m to 4:30 p.m. and 6:30 p.m. to 8:30 p.m.

Location:   DNR Service Center
  Conference Rooms 158/185
  1300 W. Clairemont Avenue
  Eau Claire, WI 54701

Date:   Tuesday, February 26, 2013

Time:   2:30 p.m to 4:30 p.m. and 6:30 p.m. to 8:30 p.m.

Location:   Marathon County UW-Extension Office
  Conference Room #5
  212 River Drive
  Wausau, WI 54403

Date:   Thursday, February 28, 2013

Time:   2:30 p.m to 4:30 p.m. and 6:30 p.m. to 8:30 p.m.

Location:   Board Room (1st Floor)
  Department of Agriculture, Trade and Consumer Protection
  2811 Agriculture Drive
  Madison, WI 53718-6777

Hearing impaired persons may request an interpreter for this hearing. Please make reservations for a hearing interpreter by February 5, 2013, by writing to Alison Volk, Division of Agricultural Resource Management, P.O. Box 8911, Madison, WI 53708-8911; or by emailing [e-mail]; or by telephone at [phone]. Alternatively, you may contact the DATCP TDD at [phone]. The hearing facility is handicap accessible.

Availability of Rules and Submitting Comments

DATCP invites the public to attend the hearings and comment on the proposed rule. Following the public hearings, the hearing record will remain open until March 15, 2013 for additional written comments. Comments may be sent to the Division of Agricultural Resource Management at the address below, or to [e-mail], or to http://adminrules.wisconsin.gov.

You can obtain a free copy of this hearing draft rule and related documents including the economic impact analysis by contacting the Wisconsin Department of Agriculture, Trade and Consumer Protection, Division of Agricultural Resource Management, 2811 Agriculture Drive, P.O. Box 8911, Madison, WI 53708. You can also obtain a copy by calling [phone] or by emailing [e-mail]. Copies will also be available at the hearing. To view the hearing draft rule online, go to: http://adminrules. wisconsin.gov.

Comments or concerns relating to small business may also be addressed to DATCP's small business regulatory coordinator Keeley Moll at the address above, or by email to [e-mail], or by telephone at [phone].

Analysis Prepared by the Department of Agriculture, Trade and Consumer Protection

Statutes interpreted

Chapter. 91, Stats.

Statutory authority

Sections 91.02 and 93.07 (1), Stats.

Explanation of statutory authority

DATCP has specific and general authority to establish rules interpreting and clarifying provisions of ch. 91, Stats., the farmland preservation program. DATCP has general authority for promulgating rules under s. 93.07 (1), Stats., for all of its program areas, and under s. 91.02 for the administration of ch. 91, Stats. Under s. 91.02 (1), DATCP has specific authority to set forth technical specifications for farmland preservation zoning maps under s. 91.38 (1) (d), Stats. DATCP has specific authority under s. 91.02 (2), Stats., to identify additional uses that would qualify as accessory uses, agricultural uses, agriculture-related uses, and base farm tracts. DATCP also has specific authority under s. 91.02 (2), Stats., to specify requirements for certifications of farmland preservation plans under s. 91.18 (1) (b), Stats., as well as farmland preservation zoning ordinances under s. 91.38 (1) (i), Stats. Section 91.02 (2), Stats., also gives DATCP specific authority to require information in an application for certification of a farmland preservation plan or amendment under s. 91.20 (4), Stats., or zoning ordinance under s. 91.40 (5), Stats., and to specify the types of ordinance amendments for which certification is required under s. 91.36 (8) (b) 3, Stats. DATCP has authority under s. 91.02 (2), Stats., to authorize additional uses in a farmland preservation zoning district under s. 91.42 (4), including additional uses allowed as permitted uses under s. 91.44 (1) (g), Stats., and as conditional uses under s. 91.46 (1) (j), Stats. Finally, DATCP has the authority under s. 91.02 (2), Stats., to require information in an application for a farmland preservation agreement under s. 91.64 (2) (h), Stats.

Related statutes and rules

Chapter 91, Stats., governs the state's farmland preservation program. Landowners who participate in the zoning or farmland preservation agreement provisions of the program are eligible for farmland preservation tax credits under s. 71.613, Stats. Under ss. 91.80 and 91.82, Stats., landowners claiming those tax credits are required to comply with soil and water conservation standards promulgated by the department under ss. 92.05 (3) (c) and (k), 92.14 (8), and 281.16 (3) (b) and (c), Stats. Those standards are found primarily in ch. ATCP 50, Wis. Adm. Code, as well as the Department of Natural Resources performance standards under ss. NR 151.02 to 151.08, Wis. Adm. Code.

Plain language analysis

Background

Wisconsin's Farmland Preservation Program (FPP), ch. 91, Stats., was repealed and recreated under 2009 Wis. Act 28. Chapter 91, Stats., was updated to acknowledge the growing pressures on farmland across the state and to curb the increasing conversion of farmland out of agricultural use.

The farmland preservation law requires all counties to update their farmland preservation plans before January 1, 2016. The farmland preservation planning process ensures that local governments evaluate the agricultural land within their boundaries and consider the role that agriculture plays in their local economy. Counties must submit farmland preservation plans to DATCP for certification. In order to be certified by DATCP, the plan must meet certain requirements under ch. 91, Stats. Once a plan is certified, land that is identified as part of a farmland preservation area is then eligible for other parts of the FPP.

One such part of the FPP is farmland preservation zoning. Local governments may choose to adopt farmland preservation zoning ordinances to protect farmland. Similar to farmland preservation plans, zoning ordinances must also be submitted to the department for certification. To be certified, the ordinance must meet certain requirements under ch. 91, Stats. The certification process ensures that only compatible uses are allowed in the farmland preservation district to limit pressures on active agriculture created by the presence of incompatible uses. Once certified, landowners are eligible to claim farmland preservation tax credits.

Another component of the FPP is the farmland preservation agreement. Under ch. 91., Stats., any new agreement must cover land located in a landowner-initiated and state-designated Agricultural Enterprise Area (AEA). Landowners with farmland preservation agreements are eligible to collect farmland preservation tax credits. By clustering agreements in areas that are primarily devoted to agricultural use, farmland can be better protected because a concentration of agriculture provides landowners with the confidence that the surrounding land will remain in agriculture. This confidence encourages landowners not only to continue farming, but to make additional investments in their agricultural operations.

Rule Content

GENERAL

This rule does all of the following:

•   Creates ch. ATCP 49.

•   Adds to definitions listed under s. 91.01, Stats., and further clarifies certain terms in ch. 91.

•   Provides guidance for applying for and receiving certification of farmland preservation plans and ordinances.

•   Specifies types of ordinance amendments for which certification is required under s. 91.36 (8) (b) 3, Stats.

•   Authorizes additional uses allowed in a farmland preservation zoning district.

•   Specifies information required in an application for a farmland preservation agreement under s. 91.64 (2) (h), Stats.

DEFINITIONS

This rule:

•   Clarifies types of uses that may be listed by a political subdivision as accessory uses and agriculture-related uses.

•   Defines crops and forest management.

•   Adds a definition of base farm tract to provide political subdivisions flexibility in administering this density restriction if they choose to utilize it.

Farmland Preservation Plans

This rule:

•   Clarifies that a county has one year after the expiration date to have its farmland preservation plan certified by the department.

•   Clarifies when counties may request an extension to the expiration of their farmland preservation plan to facilitate coordination with other planning and zoning efforts that may be occurring in the county.

•   Clarifies that any amendment to a certified farmland preservation plan must be submitted to the department for certification.

•   Clarifies that the rationale used for identifying the farmland preservation area must be based on objective criteria. Describes the relationship between the farmland preservation plan and any county's comprehensive plan.

•   Provides technical specifications for the farmland preservation plan map and states that the county must provide the department with the data used to create the map.

Farmland Preservation Zoning

This rule: