2015 - 2016 LEGISLATURE
ASSEMBLY SUBSTITUTE AMENDMENT 2,
TO ASSEMBLY BILL 582
January 19, 2016 - Offered by Representative Jarchow.
1An Act to renumber
66.1001 (2m), 706.22 (2) (a) 1., 706.22 (2) (a) 2. and 706.22 2
(2) (a) 3.; to renumber and amend
70.32 (2) (c) 4., 706.22 (2) (b) and 706.22 3
(3); to amend
59.69 (4) (intro.), 59.69 (4) (j), 59.69 (5) (f), 59.692 (1k) (a) 2., 4
59.692 (1k) (a) 4., 59.692 (1k) (b), 60.61 (2) (a) 6., 60.61 (4) (f), 62.23 (7) (am), 5
62.23 (7) (d) 4., 66.1001 (2m) (title), 66.1001 (4) (f), 66.10015 (title), 66.10015 (1) 6
(a), 74.485 (4) (a), 227.57 (10), 236.45 (2) (am) (intro.), 706.22 (title), 706.22 (2) 7
(title) and 706.22 (2) (a) (intro.); and to create
59.692 (1h), 59.692 (1k) (a) 6., 8
59.692 (1p), 59.692 (7), 66.1001 (2m) (b), 66.10015 (1) (as), 66.10015 (1) (bs), 9
66.10015 (3), 66.1036, 70.32 (2) (c) 4. b., 227.137 (3) (g), 227.445, 227.57 (11), 10
700.28, 706.22 (2) (a) 2m., 706.22 (2) (a) 3m., 706.22 (2) (b) 2., 706.22 (3) (b) and 11
895.463 of the statutes; relating to: government actions affecting rights to real
12property; the regulation of shoreland zoning; the contents of an economic
13impact analysis of a proposed administrative rule; the substitution of hearing
1examiners in Department of Natural Resources and Department of
2Agriculture, Trade and Consumer Protection contested cases; the standard for
3judicial review of a state agency action or decision affecting a property owner's
4use of the owner's property; and the property tax treatment of unoccupied
Analysis by the Legislative Reference Bureau
This substitute amendment makes various changes to the regulation of
property rights and shoreland zoning, requires an economic impact analysis of a
proposed administrative rule to analyze any limitations that the rule would place on
the free use of private property, allows for the substitution of hearing examiners in
contested case hearings, and requires a court to accord no deference to a state
agency's interpretation of law when reviewing an agency action or decision that
restricts a property owner's free use of the owner's property.
Restrictions on sale, purchase, development, or occupancy of real property
This substitute amendment does all of the following:
1. Prohibits a local governmental unit from requiring a person to take certain
actions with respect to real property, or pay a related fee, before purchasing, taking
title to, or occupying the property.
2. Provides that a local governmental unit may require a real property owner
to take certain actions with respect to property that are not related to purchasing the
3. Invalidates any ordinance, resolution, or policy currently in effect that is
inconsistent with the prohibitions in the substitute amendment.
4. Provides that the prohibitions in the substitute amendment, and related
prohibitions under current law, do not affect the ability of a local governmental unit
to enforce any state or federal requirement.
5. Specifically prohibits a county from enacting a development moratorium.
6. Prohibits a city, village, town, or county (political subdivision) from
prohibiting or unreasonably restricting a real property owner from selling or
transferring title to any interest in the real property.
Individual notice requirements
Current law requires a political subdivision to provide notice to a landowner,
and the substitute amendment requires a political subdivision to provide annual
notification to residents of the political subdivision that they may request such
notice, that potential action by the political subdivision may affect the allowable use
of the landowner's property. The substitute amendment also requires counties and
towns to provide such notice if a proposed zoning ordinance will affect the size or
density requirements of a landowner's property. In addition, the substitute
amendment limits a political subdivision's authority under current law to impose a
fee for providing notice to charges for 1st class mailings.
Under current law, a county must enact a shoreland zoning ordinance for all
shorelands in its unincorporated area and the ordinance must meet shoreland
zoning standards established by DNR by rule. Current law defines shorelands to be
the area within a certain distance from the OHWM of a navigable water. Current
law requires a county to establish a shoreland setback area, which is an area within
a certain distance of the OHWM in which the construction or placement of structures
is limited or prohibited. Under this substitute amendment, if a professional land
surveyor, in measuring a setback from an OHWM of a navigable water, relies on a
map, plat, or survey that incorporates or approximates the OHWM, the setback
measured is the setback with respect to a structure constructed on that property if
the map, plat, or survey relied upon is prepared by a professional land surveyor and
DNR has not identified the OHWM on its Internet site at the time the setback is
Current law prohibits DNR from impairing the interest of a landowner in
shoreland property by establishing a shoreland zoning standard, and prohibits a
county from impairing the interest of a landowner in shoreland property by enacting
or enforcing a shoreland zoning ordinance, that regulates certain activities in certain
ways. These prohibited regulations include the prohibition or regulation of the
maintenance, repair, replacement, restoration, rebuilding, or remodeling of all or
any part of a nonconforming structure if that activity does not expand the structure's
footprint and the prohibition or regulation of the vertical expansion of a
nonconforming structure. This substitute amendment expands these prohibitions
to a structure of which any part is legally located in the shoreland setback area by
operation of a variance granted before July 13, 2015.
The substitute amendment also provides that if DNR or a county is prohibited
from impairing the interest of a landowner in shoreland property by regulating an
activity and if that activity requires a building permit, the city, village, or town that
issues the building permit must send a copy of the building permit to the county
Under the substitute amendment, neither DNR nor a county shoreland zoning
ordinance may prohibit the owner of a boathouse with a flat roof from using the roof
as a deck if the roof has no side walls or screens or from having or installing a railing
around the roof that is not inconsistent with Department of Safety and Professional
This substitute amendment provides that a shoreland zoning standard or
ordinance may not prohibit placement of a device or system that retains runoff in a
shoreland setback area.
The substitute amendment also provides that the construction or maintenance
of property or equipment used for the transmission, delivery, or furnishing of natural
gas, heat, light, or power and owned by a public utility or cooperative association
organized for the purpose of producing or furnishing heat, light, or power to its
members only is considered to satisfy shoreland zoning laws and a county's
shoreland zoning ordinance if DNR has issued all required navigable water, water
and sewage, and pollution discharge permits or approvals authorizing the
construction or maintenance or, if no such permits or approvals are required, if the
construction and maintenance is conducted in a manner that employs best
management practices to infiltrate or otherwise control storm water runoff from that
Resolution of challenge to zoning restrictions
This substitute amendment requires a court to resolve any ambiguity in a
matter involving a word or phrase in a zoning ordinance or shoreland zoning
ordinance in favor of the free use of private property.
Supermajority vote to down zone a property
The substitute amendment allows a political subdivision to enact a down
zoning ordinance only if the ordinance is approved by at least two-thirds of the
members of its governing body. The substitute amendment defines a down zoning
ordinance as an ordinance that affects an area of land by either rezoning it to a usage
that is less dense than its previous usage or by reducing permitted uses of the land.
Property tax treatment of undeveloped land
This substitute amendment defines, for property tax purposes, "undeveloped
land" to include land that is platted and zoned for residential, commercial, or
manufacturing use until such time that all approvals required for use of the land are
issued. The substitute amendment also provides that such land may be subject to
a conversion charge if its assessment changes from agricultural to unimproved.
Other undeveloped land under current law is assessed at 50 percent of its full value.
Generally, these provisions do not apply to land that is located in a tax incremental
Administrative rule-making and proceedings
Economic impact analyses
This substitute amendment requires an economic impact analysis of a proposed
administrative rule to include an analysis of the ways in which and the extent to
which the proposed rule would place any limitations on the free use of private
property, including a discussion of alternatives to the proposed rule that would
minimize any such limitations.
Contested case hearings
Under this substitute amendment, a person who has applied for a contract,
permit, or other approval that is the subject of a contested case hearing for which the
Division of Hearings and Appeals in the Department of Administration has assigned
a hearing examiner may file one written request per hearing for a substitution of a
new hearing examiner. If the request is timely and in proper form, the matter must
be transferred to a new hearing examiner.
Judicial review of agency actions and decisions
This substitute amendment requires a court, on review of a state agency action
or decision affecting a property owner's use of the owner's property, to accord no
deference to the agency's interpretation of law if the agency action or decision
restricts the property owner's free use of the owner's property.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
59.69 (4) (intro.) of the statutes is amended to read:
59.69 (4) Extent of power.
(intro.) For the purpose of promoting the public 3
health, safety and general welfare the board may by ordinance effective within the 4
areas within such county outside the limits of incorporated villages and cities 5
establish districts of such number, shape and area, and adopt such regulations for 6
each such district as the board considers best suited to carry out the purposes of this 7
section. The board may establish mixed-use districts that contain any combination 8
of uses, such as industrial, commercial, public, or residential uses, in a compact 9
urban form. The board may not enact a development moratorium, as defined in s.
1066.1002 (1) (b), under this section or s. 59.03, by acting under ch. 236, or by acting
11under any other law, except that this prohibition does not limit any authority of the
12board to impose a moratorium that is not a development moratorium.
The powers 13
granted by this section shall be exercised through an ordinance which may, subject 14
to sub. (4e), determine, establish, regulate and restrict:
59.69 (4) (j) of the statutes is amended to read:
(j) The Subject to s. 66.10015 (3), the
density and distribution of 17
59.69 (5) (f) of the statutes is amended to read:
(f) The county zoning agency shall maintain a list of persons who 2
submit a written or electronic
request to receive notice of any proposed ordinance or 3
amendment that affects the allowable use of the property owned by the person. 4Annually, the agency shall inform residents of the county that they may add their
5names to the list. The agency may satisfy this requirement to provide such
6information by any of the following means: publishing a 1st class notice under ch.
7985; publishing on the county's Internet site; 1st class mail; or including the
8information in a mailing that is sent to all property owners.
If the county zoning 9
agency completes a draft of a proposed zoning ordinance under par. (a) or if the 10
agency receives a petition under par. (e) 2., the agency shall send a notice, which 11
contains a copy or summary
of the proposed ordinance or petition, to each person on 12
the list whose property, the allowable use or size or density requirements
of which, 13
may be affected by the proposed ordinance or amendment. The notice shall be by 14
mail or in any reasonable form that is agreed to by the person and the agency,
15including electronic mail, voice mail, or text message
. The agency may charge each 16
person on the list who receives a notice by 1st class mail
a fee that does not exceed 17
the approximate cost of providing the notice to the person. An ordinance or 18
amendment that is subject to this paragraph may take effect even if the agency fails 19
to send the notice that is required by this paragraph.