Trans 233.11(3)(a)(a)
Special exceptions for setbacks allowed. The department, district office or, if authorized by a delegation agreement under sub.
(7), reviewing municipality may authorize special exceptions from this chapter only in appropriate cases when warranted by specific analysis of the setback needs, as determined by the department, district office or reviewing municipality. A special exception may not be contrary to the public interest and shall be in harmony with the general purposes and intent of ch.
236, Stats., and of this chapter. The department, district office or reviewing municipality may grant a special exception that adjusts the setback area or authorizes the erection or installation of any structure or improvement within a setback area only as provided in this subsection. The department, district office or reviewing municipality may require such conditions and safeguards as will, in its judgment, secure substantially the purposes of this chapter.
Trans 233.11 Note
Note: The phrase “practical difficulty or unnecessary hardship" has been eliminated from the rule that was effective February 1, 1999, to avoid the adverse legal consequences that could result from the existing use of the word “variance." The Wisconsin Supreme Court has interpreted “variance" and this phrase to make it extremely difficult to grant “variances" and in so doing has eased the way for third party legal challenges to many “variances" reasonably granted. See
State v. Kenosha County Bd. of Adjust.,
218 Wis. 2d 396,
577 N.W.2d 813 (1998). The Supreme Court defined “unnecessary hardship" in this context as an owner having “
no reasonable use of the property without a variance." Id. at 413. The “special exception" provision in this rule is not intended to be so restrictive and has not been administered in so restrictive a fashion. In the first year following revisions of ch.
Trans 233, effective February 1, 1999, the Department granted the vast majority of “variances" requested, using a site and neighborhood-sensitive context based on specific analysis.
Trans 233.11(3)(b)
(b)
Specific analysis for special exceptions for setbacks. Upon request for a special exception from a setback requirement of this chapter, the department, district office or reviewing municipality shall specifically analyze the setback needs. The analysis may consider all of the following:
Trans 233.11(3)(b)2.
2. The vicinity of the proposed land division and its existing development pattern.
Trans 233.11(3)(b)3.
3. Land use and transportation plans and the effect on orderly overall development plans of local units of government.
Trans 233.11(3)(b)4.
4. Whether the current and forecasted congestion of the abutting highway is projected to be worse than level of service “C," as determined under s.
Trans 210.05 (1), within the following 20 years.
Trans 233.11(3)(b)6.
6. The effect of the proposed structure or improvement on other property or improvements in the area.
Trans 233.11(3)(b)7.
7. The impact of potential highway or other transportation improvements on the continued existence of the proposed structure or improvement.
Trans 233.11(3)(b)8.
8. The impact of removal of all or part of the structure or improvement on the continuing viability or conforming use of the business, activity, or use associated with the proposed structure or improvement.
Trans 233.11(3)(b)11.
11. Other criteria to promote public purposes consistent with local ordinances or plans for provision for light and air, providing fire protection, solving drainage problems, protecting the appearance and character of a neighborhood, conserving property values, and, in particular cases, to promote aesthetic and psychological values as well as ecological and environmental interests.
Trans 233.11(3)(c)
(c)
Adjust setback. If the department, district office or reviewing municipality grants a special exception by adjusting the setback area, the department shall pay just compensation for any subsequent department-required removal of any structure or improvement that the department has allowed outside of the approved, reduced setback area on land that the department acquires for a transportation improvement. The department may not decrease the 15 foot setback distance established under s.
Trans 233.08 (3n), except in conformity with a comprehensive local setback ordinance, generally applicable to the vicinity of the land division, that expressly establishes a closer setback line.
Trans 233.11(3)(d)
(d)
Allow in setback – removal does not affect viability. The department, district office or reviewing municipality may authorize the erection of a structure or improvement within a setback area only if the department, district office or reviewing municipality determines that any required removal of the structure or improvement, in whole or in part, will not affect the continuing viability or conforming use of the business, activity, or use associated with the proposed structure or improvement, and will not adversely affect the community in which it is located. Any owner or user who erects a structure or improvement under a special exception granted under this paragraph assumes the risk of future department-required removal of the structure or improvement and waives any right to compensation, relocation assistance or damages associated with the department's acquisition of that land for a transportation improvement, including any damage to property outside the setback caused by removal of the structure or improvement in the setback that was allowed by special exception. The department, district office or reviewing municipality may not grant a special exception within an existing setback area, unless the owner executes an agreement or other appropriate document required by the department, binding on successors and assigns of the property, providing that, should the department need to acquire lands within the setback area, the department is not required to pay compensation, relocation costs or damages relating to any structure or improvement authorized by the special exception. The department, district office or reviewing municipality may require such conditions and safeguards as will, in its judgment, secure substantially the purposes of this chapter. The department, district office or reviewing municipality shall require the executed agreement or other appropriate document to be recorded with the register of deeds under sub.
(7) as part of the special exception.
Trans 233.11(3)(e)
(e)
Blanket or area special exceptions for setbacks. Based on its experience granting special exceptions on similar land divisions, similar structures or improvements, or the same area and development pattern, the department may grant blanket or area special exceptions from setback requirements of this chapter that are generally applicable. The department shall record blanket or area special exceptions with the register of deeds in the areas affected or shall provide public notice of the blanket or area special exceptions by other means that the department determines to be appropriate to inform the public.
Trans 233.11(3)(f)
(f)
Horizon of setback analysis. For purposes of its specific analysis, the department, district office or reviewing municipality shall consider the period 20 years after the date of analysis.
Trans 233.11 Note
Note: Federal law requires a minimum 20-year forecast period for transportation planning for all areas of the State.
23 USC 134 (g) (2)(A) and
135 (e) (1).
Trans 233.11(4)
(4) Special exceptions for provisions of this chapter other than setbacks. Except as provided in sub.
(3), the department may not authorize special exceptions from this chapter, except in appropriate cases in which the literal application of this chapter would result in practical difficulty or unnecessary hardship, or would defeat an orderly overall development plan of a local unit of government. A special exception may not be contrary to the public interest and shall be in harmony with the general purposes and intent of ch.
236, Stats., and of this chapter. The department may require such conditions and safeguards as will, in its judgment, secure substantially the purposes of this chapter.
Trans 233.11 Note
Note: This subsection uses the phrase “practical difficulty or unnecessary hardship to indicate a higher standard for special exceptions from provisions of this chapter other than setbacks. However, the phrase “special exception" has been used rather than the word “variance." The Supreme Court defined “unnecessary hardship" in a variance context as an owner having “no reasonable use of the property without a variance." See
State v. Kenosha County Bd. of Adjust., 218 Wis. 2d 396, 413,
577 N.W.2d 813 (1998). The department intends the “special exception" provision in this rule to be administered in a somewhat less restrictive fashion than “no reasonable use of the property" without a “variance."
Trans 233.11(5)
(5) Municipal special exceptions. A delegation agreement under s.
Trans 233.03 (8) may authorize a reviewing municipality to grant special exceptions. No municipality may grant special exceptions to any requirement of this chapter, except in conformity with a delegation agreement under this subsection. Any decision of a reviewing municipality relating to a special exception is subject to the appeal procedure applicable to such decisions made by the department or a district office, except that the department may unilaterally review any such decision of a reviewing municipality only for the purposes of ensuring conformity with the delegation agreement and this chapter.
Trans 233.11(6)
(6) Time limit for review. Not more than 60 calendar days after receiving a completed request for a special exception under s.
Trans 233.11, the department, district office or reviewing municipality shall provide to the land divider written notice of its decision granting or denying a special exception. The 60-day time limit may be extended only by written consent of the land divider.
Trans 233.11 Note
Note: The Department intends that decisions concerning special exceptions be made in the shortest practicable period of time. The Department intends the 60-day time limit applicable to special exceptions to allow sufficient time for a land divider and the Department, district office or municipality to explore alternative locations or plans to avoid and minimize conflicts and to facilitate mutually acceptable resolutions to conflicts.
Trans 233.11(7)
(7) Recording required. A special exception granted under this section is effective only when the special exception is recorded in the office of the register of deeds. Any structure or improvement erected under authority of a special exception granted under this section is presumed to have been first erected on the date the special exception is recorded.
Trans 233.11 History
History: Cr.
Register, January, 1999, No. 517, eff. 2-1-99; renum. (2) to be (3) (a) and am., cr. (3) (b) to (f) and (4) to (7),
Register, January, 2001, No. 541, eff. 2-1-01.
Trans 233.12
Trans 233.12 Performance bond. The department may, in appropriate cases, require that a performance bond be posted, or that other financial assurance be provided, to ensure the construction of any improvements in connection with the land division which may affect a state trunk highway.
Trans 233.12 History
History: Cr.
Register, January, 1999, No. 517, eff. 2-1-99.
Trans 233.13
Trans 233.13 Fees. The department shall charge a fee of $110 for reviewing a land division map that is submitted under s.
236.10,
236.12,
236.34,
236.45 or
703.11, Stats., or other means not provided by statute, on or after the first day of the first month beginning after February 1, 1999. The fee is payable prior to the department's review of the land division map. The department may change the fee each year effective July 1 at the annual rate of inflation, as determined by movement in the consumer price index for all urban consumers (CPI-U), published the preceding January in the CPI detailed report by the U.S. department of labor's bureau of labor statistics, rounded down to the nearest multiple of $5.
Trans 233.13 History
History: Cr.
Register, January, 1999, No. 517, eff. 2-1-99.
Trans 233.13 Note
Note: Chapter Trans 233 as it existed prior to the adoption of the 1999 amendments on February 1, 1999, is printed below.
Trans 233.13 Note
LAND SUBDIVISION PLATS ABUTTING
STATE TRUNK HIGHWAYS AND CONNECTING STREETS
Trans 233.13 Note
Trans 233.01 Purpose. (1) Purpose of ch. 236, Stats. The purpose of ch. 236, Stats., is “to regulate the subdivision of land to promote public health, safety and general welfare; to further the orderly layout and use of land; to prevent the overcrowding of land; to lessen congestion in the streets and highways; to provide for adequate light and air; to facilitate adequate provision for water, sewerage, and other public requirements; to provide for proper ingress and egress; and to promote proper monumenting of land subdivided and conveyancing by accurate legal description. The approvals to be obtained by the subdivider as required in this chapter shall be based on requirements designed to accomplish the aforesaid purposes."
Trans 233.13 Note
(2) Purpose of rules. Accordingly, the purpose of these rules is to specify minimum standards necessary to meet the requirements of state highway commission review of land subdivision plats abutting the state trunk highway system as provided under s.
236.13 (1) (e), Stats., as follows:
Trans 233.13 Note
“(e) The rules of the state highway commission relating to provision for the safety of entrance upon and departure from the abutting state trunk highways or connecting streets and for the preservation of the public interest and investment in such highways or streets."
Trans 233.13 History
History: Cr.
Register, September, 1956, No. 9, eff. 10-1-56.
Trans 233.13 Note
Trans 233.02 Basic principles. Land subdivision tends to affect highways by generating traffic, increasing vehicular parking requirements, reducing sight distance, increasing driveways and other access points and, in general, impairing safety and impeding traffic movements. To control these tendencies and to carry out the purposes of ch. 236, Stats., the commission promulgates the following basic requirements in this section and the specific rules of subsequent sections of these rules and regulations:
Trans 233.13 Note
(1) Local traffic generated in subdivisions abutting on a state trunk highway shall be served by an internal street system of adequate capacity, intersecting and connecting with state trunk highways at a minimum number of points and in a manner which is safe, convenient, and economical to maintain and regulate.
Trans 233.13 Note
(2) Subdivisions shall be so laid out that the individual lots or parcels do not require direct vehicular access to the highway.
Trans 233.13 Note
(3) To accomplish reasonable functional integration and coordination of roadways and private driveways:
Trans 233.13 Note
(a) The commission, particularly in the absence of a local comprehensive general or master plan or official map, will consider not only the immediate plat before it, but also its relationship to the access requirements of adjacent and contiguous subdivisions and unplatted lands;
Trans 233.13 Note
(b) These rules and regulations shall be applicable not only to the lands proposed to be subdivided but also to all lands owned by, or under option (formal or informal), contract or lease to the subdivider and which are contiguous to and adjoin the land being subdivided.
Trans 233.13 Note
(4) Setbacks from the highway shall be provided as hereinafter specified.
Trans 233.13 Note
(5) The subdivision layout shall include provision for surface drainage in such a manner that the existing highway drainage system is not adversely affected.
Trans 233.13 History
History: Cr.
Register, September, 1956, No. 9, eff. 10-1-56.
Trans 233.13 Note
Trans 233.03 Definitions. (1) “State trunk highway" includes connecting streets as defined in s. 84.02 (11), Stats. Trans 233.13 Note
(2) “Subdivision" is as defined in s. 236.02 (7), Stats.; provided, however; that where the local unit of government, under s. 236.45 (2), Stats., has adopted an ordinance governing the subdivision or other division of land which is more restrictive than the provisions of ch. 236, Stats., and has provided for commission review, these rules and regulations shall also apply to those subdivisions or other divisions of land as specified in the ordinance.
Trans 233.13 Note
(3) “Subdivision abutting a state trunk highway" means:
Trans 233.13 Note
(a) A subdivision some part of which adjoins or abuts a state trunk highway; or
Trans 233.13 Note
(b) A subdivision which includes streets one or more of which is to be laid out or dedicated as part of the subdivision, and which is to connect with a state trunk highway; or
Trans 233.13 Note
(c) A subdivision which is separated from a state trunk highway by unplatted lands which abut the highway and the subdivision and are owned by, or under option (formal or informal), contract or lease to the subdivider.
Trans 233.13 Note
(4) “Frontage street" or “frontage road" means a local street or road auxiliary to and located on the side of an arterial highway for service to abutting property and adjacent areas and for control of access.
Trans 233.13 Note
(5) “Street" or “road" includes alleys.
Trans 233.13 History
History: Cr.
Register, September, 1956, No. 9, eff. 10-1-56.
Trans 233.13 Note
Trans 233.04 Required information. The subdivider shall show on the face of the preliminary plat or on a separate sketch at a scale of not more than 1,000 feet to the inch, the approximate distances and relationships for the following:
Trans 233.13 Note
(1) The geographic relationship to the proposed subdivision of any unplatted lands which abut any state trunk highway and are contiguous to the proposed subdivision, and the ownership rights in and the subdivider's interest, if any, in these lands.
Trans 233.13 Note
(2) All existing, proposed, authorized or approved points of access to any state trunk highway from said unplatted lands which abut any state trunk highway and are contiguous to the proposed subdivision.
Trans 233.13 Note
(3) The classification of each point of access as a public road, private road or other entrance, and whether existing, proposed, authorized or approved.
Trans 233.13 Note
(4) The principal use of each point of access (other than a public road) as agricultural, commercial, industrial or residential, and as existing under commission permit or otherwise.
Trans 233.13 Note
(5) The location of the nearest public highway or street on every side of the proposed subdivision.
Trans 233.13 Note
(6) The location of public highway or street intersections with the state trunk highway on that side of the state trunk highway opposite the subdivision and within 300 feet on each side of the subdivision.
Trans 233.13 History
History: Cr.
Register, September, 1956, No. 9, eff. 10-1-56.
Trans 233.13 Note
Trans 233.05 Direct access to state trunk highway. (1) There shall be no direct vehicular access between the state trunk highway and the individual lots or parcels in the subdivision without the express consent of the commission. The following restriction shall be appropriately placed on the face of the plat and shall be executed as a conveyance is executed. (It may be made a part of the owner's certificate required by s. 236.21 (2) (a), Stats.); Trans 233.13 Note
As owner I hereby restrict all lots and blocks (except Lot Block
), in that no owner, possessor, user, nor licensee, nor other person shall have any right of direct vehicular ingress or egress with (U.S.H.) (S.T.H.)
or
Street, as shown on the plat; it being expressly intended that this restriction shall constitute a restriction for the benefit of the public according to s.
236.293, Stats., and shall be enforceable by the state highway commission.
Trans 233.13 Note
(2) In accordance with the objectives and purposes of these rules and regulations, the commission may require a desirable pattern of access between a state trunk highway and abutting lands which are contiguous to and adjoin the proposed subdivision and which are owned by or under option (formal or informal), contract or lease to the subdivider. A recordable covenant running with the land may be required with respect thereto.
Trans 233.13 Note
(3) When deemed feasible, frontage roads or a satisfactory alternative will be required.
Trans 233.13 Note
(4) Before street connections to state trunk highways, as indicated on an approved plat can be constructed, a permit must be obtained as required under s. 86.07, Stats. These permits for street connections will be issued only to the local unit of government and will not be issued prior to favorable commission review of the preliminary or final plat.
Trans 233.13 History
History: Cr.
Register, September, 1956, No. 9, eff. 10-1-56.
Trans 233.13 Note
Trans 233.06 Frequency of street or road connections. (1) The subdivision shall be laid out with a minimum number of street connections with abutting state trunk highways.
Trans 233.13 Note
(2) Dependent upon the character of the state trunk highway abutting the subdivision, the commission will determine a minimum allowable distance between connections with the state trunk highway, 2 subdivision streets or between a subdivision street and an existing or planned street or road. In general, a distance of at least 1,000 feet will be required.
Trans 233.13 Note
(3) In appropriate cases where existing streets provide access to the state trunk highway deemed reasonable and adequate by the commission, the streets in the subdivision shall not be opened directly into the state trunk highway.
Trans 233.13 History
History: Cr.
Register, September, 1956, No. 9, eff. 10-1-56.
Trans 233.13 Note
Trans 233.07 Temporary street connections. (1) The commission may issue temporary street permits for street connections in the case of:
Trans 233.13 Note
(a) A subdivision which at the time of review cannot provide direct access complying with the provisions of s. Trans 233.06 (2). Trans 233.13 Note
(b) A subdivision layout which might necessitate a point or pattern of access for a future adjacent subdivision, not in accordance with s. Trans 233.06 (2). Trans 233.13 Note
(2) The commission may require that such temporary street connections be altered or closed by the appropriate parties or authorities at a later date in order to achieve a desirable access pattern. The street connection shall be prominently labeled “Temporary Street Connection" on the plat, and the following restriction shall be lettered on the plat:
Trans 233.13 Note
“The street connection(s) shown on this plat shall be used under a temporary street permit which may be canceled at such time as a feasible alternate means of access to (S.T.H.) (U.S.H.) is provided."
Trans 233.13 Note
(3) When such a temporary street connection is granted, the subdivider shall dedicate a frontage road or a satisfactory alternative, to provide for a present or future pattern of access in accordance with the requirements of s. Trans 233.06 (2). Trans 233.13 History
History: Cr.
Register, September, 1956, No. 9, eff. 10-1-56; corrections in (1) and (3) made under s. 13.93 (2m) (b) 4., Stats.,
Register, June, 1989, No. 402; corrections made under s. 13.93 (2m) (b) 7., Stats.,
Register, August, 1996, No. 488.
Trans 233.13 Note
Trans 233.08 Setback requirements. (1) There shall be a minimum building setback 110 feet from the centerline of the state trunk highway or 50 feet outside the nearer right-of-way line, whichever is more restrictive. However, if the local unit of government has a uniform setback ordinance which requires a minimum building setback for state trunk highways equal to or greater than 100 feet from the centerline or 42 feet from the nearer right-of-way line, whichever is more restrictive, the local ordinance shall govern for the sake of consistency; provided that the local unit of government shall allow no variances or exceptions for platted areas abutting state trunk highways without prior approval of the commission. There shall be no improvements or structures placed between the highway and the set back line.
Trans 233.13 Note
(2) The setback requirement shall be shown on the plat and shall be a restriction for the benefit of the public under s. 236.293, Stats. Trans 233.13 Note
(3) The commission may require that a frontage road be set back from the present highway to allow for future highway improvement. When this is the case, the area between the highway and the frontage road shall be marked “Dedicated for highway purposes," and shall be deemed so dedicated.
Trans 233.13 History
History: Cr.
Register, September, 1956, No. 9, eff. 10-1-56.
Trans 233.13 Note
Trans 233.09 Physical requirements of access. Rules governing construction requirements of driveways and street openings will be found in ch. Trans 231. Detailed specifications may be obtained at the district offices of the commission.
Trans 233.13 History
History: Cr.
Register, September, 1956, No. 9, eff. 10-1-56; corrections made under s. 13.93 (2m) (b) 7., Stats.,
Register, August, 1996, No. 488.
Trans 233.13 Note
Trans 233.10 Recommended procedure. In accordance with s. 236.12 (2) (a), Stats., the commission recommends the following procedure:
Trans 233.13 Note
(1) Before the lots are surveyed and staked out, the subdivider or his agent should submit a sketch to the district office of the district in which the land lies. The sketch should indicate roughly the layout of lots and the approximate location of streets, and should include other information required in these rules and regulations.
