Chapter ATCP 49

ATCP 49.22   Permitted uses.

ATCP 49.23   Conditional uses.

ATCP 49.24   Zoning ordinance certification expiration.

ATCP 49.25   Certification standards.

ATCP 49.26   Applying for ordinance certification.

ATCP 49.27   Applying for certification of an ordinance amendment.

ATCP 49.29   Withdrawal of certification.

Subchapter IV – Farmland Preservation Agreements

ATCP 49.30   Farmland preservation agreements; denial of application.

Ch. ATCP 49 Note Note: This chapter implements Wisconsin’s farmland preservation program under ch. 91, Stats. The purposes of the farmland preservation program are to preserve agricultural lands, to promote soil and water conservation, to promote orderly land use planning and development, and to provide tax credits for owners of farmland covered by the program. This chapter is adopted under ss. 91.02 and 93.07 (1), Stats.

subch. I of ch. ATCP 49 Subchapter I — Definitions and General Provisions

ATCP 49.01 ATCP 49.01 Definitions. In this chapter:

ATCP 49.01(1) (1) “Accessory use” has the meaning given in s. 91.01 (1), Stats.

ATCP 49.01 Note Note: A building, structure, or improvement that is an integral part of, or is incidental to, an agricultural use under s. 91.01 (1) (a) includes facilities on the farm used to: store or process raw agricultural commodities primarily produced on the farm, keep livestock, keep or service vehicles or equipment primarily used on the farm, provide veterinary services to livestock on the farm, or store or process inputs for agricultural uses primarily on the farm. Such buildings and structures may also include greenhouses, roadside stands, and agricultural research facilities selling or utilizing agricultural products produced primarily on the farm, as well as facilities to produce energy primarily from the farm’s products, or primarily for use on the farm, such as wind turbines, solar energy structures, manure digesters, or bio-fuel facilities. A waste storage or processing facility to store or process animal waste produced on the farm may also be considered an accessory use.

ATCP 49.01 Note Note: An activity or business operation that is an integral part of, or incidental to, an agricultural use under s. 91.01 (1) (b), Stats., could include activities such as: direct sales from farm to customer, “you-pick” operations, crop mazes, and agricultural tourism operations.

ATCP 49.01(2) (2) “Agriculture-related use” means any of the following:

ATCP 49.01(2)(a) (a) An agriculture-related use as defined in s. 91.01 (3), Stats.

ATCP 49.01(2)(b) (b) A facility integral to an agricultural use, regardless of whether the facility is located on a farm, that relies on agricultural uses conducted primarily off-site.

ATCP 49.01 Note Note: These “agriculture-related uses” may include facilities to: provide agricultural supplies, equipment, fertilizers, pesticides, or other agricultural inputs or services to farms; store, process, handle, or market raw agricultural commodities; slaughter or process livestock that were primarily kept off-site; or process agricultural by-products or wastes produced primarily off-site. A manure digester, bio-fuel facility, or other facility that produces energy for use primarily off-site may also be considered an agriculture-related use.

ATCP 49.01(2)(c) (c) A facility used for providing veterinary services primarily to livestock, including the sale of supplies and pharmaceuticals related to animal husbandry.

ATCP 49.01(3) (3) “Base farm tract” means one of the following:

ATCP 49.01(3)(a) (a) A tract of land as defined in s. 91.01 (5) (a), Stats.

ATCP 49.01(3)(b) (b) All land, whether or not the parcels are contiguous, that is in a farmland preservation zoning district under the same zoning ordinance and that is part of a single farm on the date that the owner of the farm first creates a new lot or parcel from that farm, regardless of any subsequent changes in the size of the farm. All land, at the time of the creation of the new lot or parcel by the owner, is considered part of the same base farm tract, including the newly created lot or parcel.

ATCP 49.01 Note Note: Under this provision, the political subdivision may now choose to define “base farm tract” in any of the following ways: 1) all contiguous parcels in single ownership under the same zoning ordinance, on the date the department first certifies the ordinance, 2) all contiguous parcels in single ownership under the same zoning ordinance on a date, specified in the ordinance, which occurred before the department first certifies the ordinance, or 3) all parcels in single ownership under the same zoning ordinance on the date the owner first creates a new lot or parcel, which occurs after the department first certifies the ordinance. The political subdivision must choose one of these ways of defining “base farm tract” in its ordinance, and any further subdividing or ownership transfers does not affect that determination.

ATCP 49.01(4) (4) “Communications use,” as used in s. 91.46 (1) (f), Stats., includes transmission lines, cell towers, antennae, and broadcast towers.

ATCP 49.01(5) (5) “Consistent with” means furthers or does not contradict objectives, goals, and policies in a relevant document.

ATCP 49.01 Note Note: This definition is similar to that found in s. 66.1001 (1) (am), Stats., for the comprehensive planning program. Under s. 91.10 (2), Stats., the farmland preservation plan is required to be “consistent with” the county’s comprehensive plan.

ATCP 49.01(6) (6) “Contiguous” means adjacent to or sharing a common boundary.

ATCP 49.01 Note Note: A political subdivision may choose to define “contiguous” lands as including lands separated by a road, stream, or section line, or as not including those separate lands. Contiguity is defined under s. 91.84 (1) (e) 3., Stats., specifically for the agricultural enterprise area program.

ATCP 49.01(7) (7) “Crop” means a cultivated plant that includes any of the following:

ATCP 49.01(7)(a) (a) Field crops, including corn, wheat, oats, rye, barley, hay, potatoes, and dry beans.

ATCP 49.01(7)(b) (b) Fruits, including apples, grapes, cranberries, cherries, and berries.

ATCP 49.01(7)(c) (c) Vegetables, including tomatoes, carrots, sweet corn, and squash.

ATCP 49.01(7)(d) (d) Plants raised for culinary, medicinal, or aesthetic purposes, including herbs and spices, ginseng, and ornamental shrubs and trees.

ATCP 49.01(7)(e) (e) Plants raised for energy production, including switchgrass, or textile use, including cotton or bamboo.

ATCP 49.01(8) (8) “Department” means the state of Wisconsin department of agriculture, trade and consumer protection.

ATCP 49.01(9) (9) “Drainage use,” as used in s. 91.46 (1) (f), Stats., includes drainage ditches and drains, as defined in s. 88.01 (8), Stats.

ATCP 49.01(10) (10) “Electric transmission use,” as used in s. 91.46 (1) (f), Stats., includes high voltage lines and electric substations.

ATCP 49.01(11) (11) “Farm family business” means a business operated by the owner or operator, or resident family member of the owner or operator, of a farm, that is not associated with an agricultural use, that requires no buildings, structures, or improvements other than those described in s. 91.01 (1) (a) or (c), Stats., that employs no more than 4 full-time non-family employees annually, and that does not impair or limit the current or future agricultural use of the farm or of other protected farmland.

ATCP 49.01(12) (12) “Forest management,” as used in s. 91.01 (2) (a) 7., Stats., means private forest lands and woodlands managed in accordance with any type of written management plan, including a plan prepared under the state’s managed forest law.

ATCP 49.01 Note Note: This includes land that is designated as managed forest land under a forest tax program established in ss. 77.80 to 77.91, Stats. Though active agricultural land may not qualify for the managed forest law program under ss. 77.82 (1) (b) 1. and 77.875, Stats., land covered by the managed forest law program can qualify as an agricultural use for the purposes of the farmland preservation program. A wooded lot that is not actively managed under a written management plan may be included in a farmland preservation zoning district as an open space or natural resource area but may not be included as an agricultural use. Government-owned woodlands may also be included as an open space or natural resource area.

ATCP 49.01(13) (13) “Governmental use,” as used in s. 91.46 (1) (g), Stats., includes community centers, police and fire facilities, public parks, and town halls.

ATCP 49.01(14) (14) “Pipeline use,” as used in s. 91.46 (1) (f), Stats., includes oil and gas pipelines.

ATCP 49.01(15) (15) “Political subdivision” has the meaning given in s. 91.01 (24), Stats.

ATCP 49.01(16) (16) “Secretary” means the secretary of the department of agriculture, trade and consumer protection.

ATCP 49.01(17) (17) “Spatial location data” means data referenced to a specific coordinate system that identifies the boundaries and spatial extent of parcels of land included in a farmland preservation area or a farmland preservation zoning district.

ATCP 49.01(18) (18) “Transportation use,” as used in s. 91.46 (1) (f), Stats., includes roads and rail facilities.

ATCP 49.01(19) (19) “Utility use,” as used in s. 91.46 (1) (f), Stats., includes facilities for the generation of electricity from sunlight, wind, coal, or natural gas.

ATCP 49.01 History History: CR 13-003: cr. Register December 2013 No. 696, eff. 1-1-14.

subch. II of ch. ATCP 49 Subchapter II — Farmland Preservation Plans

ATCP 49.10 ATCP 49.10 Farmland preservation plan certification.

ATCP 49.10(1) (1) Certification expiration. The certification of a farmland preservation plan expires on the date provided in the most recent certification of the plan or its amendment, or, if the certification does not provide an expiration date, on the date provided under s. 91.14, Stats. If a county with an expired plan does not obtain certification of a farmland preservation plan by December 31 of the year following the certification expiration date of the plan, the department may withdraw certification of any zoning ordinances within the county under the procedures in s. ATCP 49.29, effective on December 31 of the year following the year of plan expiration.

ATCP 49.10 Note Note: If a county plan expires on December 31, 2014, the county has until December 31, 2015, to obtain certification of the plan by the department. If the plan is not certified by the department by December 31, 2015, the department may withdraw certification of any zoning ordinances in the county, effective December 31, 2015. Under s. 71.613 (1) (h) 2., Stats., the landowners with land in these farmland preservation zoning districts could not claim tax credits on those lands for the tax year 2015, since certification must be in effect on the last day of the calendar year in order for a plan to be considered certified. The county is not precluded from seeking future certification of its farmland preservation plan.

ATCP 49.10(2) (2) Certification expiration extension. The secretary may delay the expiration date of the certification of a county’s farmland preservation plan for up to 2 years upon a written request from the county demonstrating to the secretary’s satisfaction that a delay would allow the county to coordinate the farmland preservation planning process with other planning or zoning efforts in the county.

ATCP 49.10(3) (3) Amendments and certification. If, after July 1, 2009, a county amends a farmland preservation plan in accordance with s. 66.1001 (4), Stats., the amendment shall be submitted to the department for certification.

ATCP 49.10 Note Note: Under s. 91.16 (8), Stats., amendments are not effective unless certified by the department.

ATCP 49.10 History History: CR 13-003: cr. Register December 2013 No. 696, eff. 1-1-14.

ATCP 49.12 ATCP 49.12 Certification standards. The department may certify a county’s farmland preservation plan under s. 91.16, Stats., if that plan complies with the requirements in s. 91.10 (1) and (2), Stats., and all of the following:

ATCP 49.12(1) (1) Rationale.

ATCP 49.12(1)(a) (a) The farmland preservation plan shall describe the rationale used to determine which areas the county plans to preserve for agricultural use and agriculture-related use. The rationale shall be based on objective criteria related to the characteristics of the land parcels themselves, including consideration of all of the following criteria:

ATCP 49.12(1)(a)1. 1. Whether the soils are suitable for agricultural production.

ATCP 49.12(1)(a)2. 2. Whether the land has historically been used for agricultural use or agriculture-related use.

ATCP 49.12(1)(a)3. 3. Whether the land is in close proximity to agricultural infrastructure.

ATCP 49.12(1)(a)4. 4. Whether the land is in undeveloped natural resource or open space areas that connect other farmland parcels to create a large, uninterrupted block of preserved area.

ATCP 49.12(1)(a)5. 5. Whether the land may be under some development pressure but the land is not located in an area the county plans for development in the next 15 years.

ATCP 49.12 Note Note: The criteria listed above are all land-based considerations that may or may not be relevant in the county. Other factors may also be considered such as availability of supporting infrastructure or presence of protected land.

ATCP 49.12(1)(b) (b) The rationale shall exclude from a farmland preservation area any parcels planned, within 15 years, for nonagricultural development or other incompatible uses in the town or county comprehensive plans.

ATCP 49.12(1)(c) (c) The rationale may not be based primarily on landowner preferences.

ATCP 49.12(1)(d) (d) The rationale shall be applied consistently across the county to the extent applicable and practicable.

ATCP 49.12(1)(e) (e) The farmland preservation plan map shall accurately reflect the rationale utilized by the county.

ATCP 49.12 Note Note: Utilizing objective criteria means that the criteria must be applied impartially and not favor some landowners over other landowners. The criteria should be based on characteristics associated with the land itself or existing pressures that may affect the future use of the land instead of focusing solely on the preferences of individual landowners.

ATCP 49.12(2) (2) Relationship to the county comprehensive plan.

ATCP 49.12(2)(a) (a) The farmland preservation plan shall be consistent with any county comprehensive plan.

ATCP 49.12 Note Note: To be “consistent with” does not mean that the farmland preservation plan and the comprehensive plan must be identical; however, for the department to find that the plans are consistent there should not be any significant difference between elements of the plans. For example, not every area that is shown as an agricultural area in the comprehensive plan future land use map must be included as a farmland preservation area in the farmland preservation plan map; however, lands planned for residential or non-agricultural commercial use in the comprehensive plan should not be planned for farmland preservation in the farmland preservation plan within the next 15 years.

ATCP 49.12(2)(b) (b) The farmland preservation plan shall be included in any county comprehensive plan.

ATCP 49.12 Note Note: Under s. 91.10 (2), Stats., the county is required to include the farmland preservation plan in any county comprehensive plan it adopts. Under s. 91.18, Stats., the farmland preservation plan is not qualified for certification by the department if pars. (a) and (b) are not met.

ATCP 49.12(3) (3) Plan ineligible for certification. The department may not certify a farmland preservation plan that does not meet the requirements of ch. 91, Stats., and this subchapter.

ATCP 49.12 History History: CR 13-003: cr. Register December 2013 No. 696, eff. 1-1-14.

ATCP 49.14 ATCP 49.14 Applying for certification of a plan or a plan amendment.

ATCP 49.14(1) (1) General. A county seeking certification of its farmland preservation plan or a plan amendment shall submit an application to the department as provided in this section.

ATCP 49.14(2) (2) Required information. The application for certification shall include all of the following in order to be considered complete and to be evaluated for compliance with s. 91.16, Stats.:

ATCP 49.14(2)(a) (a) An application on a form developed by the department that includes the information required under s. 91.20 (2) and (3), Stats.

ATCP 49.14 Note Note: You may obtain a copy of the form by contacting the department at the following address:
Department of Agriculture, Trade and Consumer Protection
Attn: Bureau of Land and Water Resource Management
P. O. Box 8911
Madison, WI 53708-8911
Website: https://datcp.wi.gov/Documents/FPPPlanCertApplication.docx .

ATCP 49.14(2)(b) (b) All parts of the plan for which the county is seeking certification. A county seeking certification of a full plan shall submit the text and map of the plan along with the spatial location data used to create the farmland preservation plan map. A county seeking certification of an amendment to a certified plan shall submit all parts of the plan affected by the amendment.

ATCP 49.14 Note Note: A county seeking certification of a plan amendment only needs to submit those parts of the plan that are affected by the amendment. If a county wishes to amend the text of its farmland preservation plan, then the county may submit just the plan text. If a county wishes to amend the plan map, then the county may submit just the plan map. If the amendment makes changes to both the plan map and text, then the county should submit both the map and the text.

ATCP 49.14(2)(c) (c) All spatial location data used to delineate the farmland preservation areas proposed for certification, submitted in accordance with department requirements on format.

ATCP 49.14(3) (3) Plan text. The plan text shall comply with the requirements in s. 91.10 (1) and (2), Stats., and this subchapter.

ATCP 49.14(4) (4) Plan map. A farmland preservation plan shall include a map that clearly delineates all areas in the county identified as a farmland preservation area so that a reader can determine whether a parcel is within an identified area. The farmland preservation plan map shall: