Chapter 84

84.305(5)(d)3. 3. In calculating the total number of trees under subd. 1., a certified arborist shall not include any vegetation that was dead, diseased, or determined to be an invasive species at the time of its removal.

84.305(5)(d)4. 4. In determining whether a tree with multiple leaders has a diameter of 2 inches or more, as measured at breast height, for purposes of calculating the total number of trees under subd. 1., a certified arborist shall consider only the diameter of the tree’s largest leader.

84.305(5)(f) (f)

84.305(5)(f)1. 1. A permittee shall compensate the department $200, as adjusted under subd. 2., for each tree removed under a permit, as calculated by the certified arborist retained by the permittee according to the method specified in par. (d).

84.305(5)(f)2. 2. Annually, beginning on July 1, 2015, the department shall adjust the fee under subd. 1. by a percentage that is equal to the percentage change in the U.S. consumer price index for all urban consumers, U.S. city average, as determined by the bureau of labor statistics of the U.S. department of labor, for the 12-month period ending on December 31 of the previous calendar year. However, the department may not adjust the fee under subd. 1. to an amount that is less than $200.

84.305(6) (6) 

84.305(6)(a) (a) The department shall have authority to supervise and determine how the work authorized under a permit issued under this section is carried out.

84.305(6)(b) (b) The department may impose any condition or restriction on a permit issued under this section that the department customarily imposes in connection with work performed on highway rights-of-way.

84.305(7) (7) Nothing in this section prohibits a sign owner and the department from voluntarily negotiating for, and the department from authorizing without the issuance of a permit under this section, the trimming or removal of any vegetation in a highway right-of-way in order to provide an unobstructed view of a sign, except in situations where sub. (3) (d) would apply if a permit were issued under this section. Nothing in this section restricts the department’s authority with respect to departmental maintenance operations in the rights-of-way of highways under the department’s jurisdiction.

84.305(8) (8) Any person aggrieved by a decision of the department under this section, or by the department’s failure to act on an application within the time limits specified in this section, is entitled, upon request, to a contested case hearing before the division of hearings and appeals in the department of administration, and to judicial review thereof, in accordance with ch. 227.

84.305 History History: 2005 a. 465; 2011 a. 230; 2013 a. 231.

84.31 84.31 Regulation of junkyards.

84.31(1) (1) Declaration of purpose; public nuisances. In order to promote the public safety, health, welfare, convenience and enjoyment of public travel, to protect the public investment in public highways, to preserve and enhance the scenic beauty of lands bordering public highways, to attract tourists and promote the prosperity, economic well-being and general welfare of the state, it is declared to be in the public interest to regulate and restrict the establishment, operation and maintenance of junkyards in areas adjacent to interstate and primary highways within this state. All junkyards in violation of this section are declared public nuisances.

84.31(2) (2) Definitions. In this section:

84.31(2)(a) (a) “Automobile graveyard” means an establishment or place of business which is maintained, used, or operated for storing, keeping, buying or selling wrecked, scrapped, ruined or dismantled motor vehicles or motor vehicle parts. Ten or more such vehicles constitute an automobile graveyard.

84.31(2)(b) (b) “Illegal junkyard” means a junkyard which is established, expanded or maintained in violation of any statute or rule promulgated thereunder or local ordinance.

84.31(2)(c) (c) “Industrial activities” mean those activities generally recognized as industrial by local zoning authorities in this state, including scrap metal processors, except that none of the following activities shall be considered industrial:

84.31(2)(c)1. 1. Agricultural, forestry, ranching, grazing, farming and similar activities, including, but not limited to wayside fresh produce stands.

84.31(2)(c)2. 2. Activities normally or regularly in operation less than 3 months of the year.

84.31(2)(c)3. 3. Transient or temporary activities.

84.31(2)(c)4. 4. Activities not visible from the main-traveled way.

84.31(2)(c)5. 5. Activities more than 300 feet from the nearest edge of the right-of-way.

84.31(2)(c)6. 6. Railroad tracks and minor sidings.

84.31(2)(c)7. 7. Activities conducted in structures which are principally used for residential purposes.

84.31(2)(c)8. 8. Junkyards, excluding scrap metal processors.

84.31(2)(d) (d) “Interstate highway” means any highway at any time officially designated as a part of the national system of interstate and defense highways by the department and approved by the appropriate authority of the federal government.

84.31(2)(e) (e) “Junk” means any old or scrap metal, metal alloy, synthetic or organic material, or waste, or any junked, ruined, dismantled or wrecked motor vehicle or machinery, or any part thereof.

84.31(2)(f) (f) “Junkyard” means any place which is owned, maintained, operated or used for storing, keeping, processing, buying or selling junk, including refuse dumps, garbage dumps, automobile graveyards, scrap metal processors, auto-wrecking yards, salvage yards, auto-recycling yards, used auto parts yards and temporary storage of automobile bodies or parts awaiting disposal as a normal part of a business operation when the business will continually have like materials located on the premises, and sanitary landfills. The definition does not include litter, trash, and other debris scattered along or upon the highway, or temporary operations and outdoor storage of limited duration.

84.31(2)(g) (g) “Primary highway” means any highway, other than an interstate highway, at any time officially designated as part of the federal-aid primary system by the department and approved by the appropriate authority of the federal government.

84.31(2)(h) (h) “Scrap metal processor” means a fixed location at which machinery and equipment are utilized for the processing and manufacturing of iron, steel or nonferrous metallic scrap into prepared grades and whose principal product is scrap iron, scrap steel or nonferrous metal scrap for sale for remelting purposes.

84.31(2)(i) (i) “Screened” means hidden from view in a manner compatible with the surrounding environment.

84.31(2)(j) (j) “Unzoned industrial areas” mean those areas which are not zoned by state law or local ordinance, and on which there is located one or more permanent structures devoted to an industrial activity other than scrap metal processing or on which an industrial activity other than scrap metal processing, is actually conducted whether or not a permanent structure is located thereon, and the area along the highway extending outward 800 feet from and beyond the edge of such activity. Each side of the highway will be considered separately in applying this definition. All measurements shall be from the outer edges of the regularly used buildings, parking lots, storage or processing and landscaped areas of the industrial activities, not from the property lines of the activities, and shall be along or parallel to the edge or pavement of the highway.

84.31(2)(k) (k) “Zoned” includes the establishment of districts without restrictions on use.

84.31(2)(L) (L) “Zoned industrial area” means any area zoned industrial by a state law or local ordinance.

84.31(3) (3) Junkyards; prohibition; exceptions. No person may own, establish, expand or maintain a junkyard, any portion of which is within 1,000 feet of the nearest edge of the right-of-way of any interstate or primary highway, except the following:

84.31(3)(a) (a) Those which are not visible from the main-traveled way of an interstate or primary highway.

84.31(3)(b) (b) Those which are screened so as not to be visible from the main-traveled way of an interstate or primary highway.

84.31(3)(c) (c) Those which are located in a zoned or unzoned industrial area.

84.31(4) (4) Nonconforming junkyards; screening; removal.

84.31(4)(a) (a) A nonconforming junkyard is any junkyard which:

84.31(4)(a)1. 1. Was lawfully established and maintained prior to June 11, 1976, but which does not comply with this section or rules adopted under this section. A junkyard shall be considered nonconforming under this section even if it was maintained in violation of rules related to screening adopted under s. 289.05 (1).

84.31(4)(a)2. 2. Is lawfully established on or after June 11, 1976, but which subsequently does not comply with this section or rules adopted under this section.

84.31(4)(b) (b) A junkyard has a nonconforming status only to the extent that it is not in compliance with this section or rules adopted under this section or rules related to screening adopted under s. 289.05 (1) at the time this section or rules adopted under it or under s. 289.05 (1) become applicable to the junkyard. A junkyard retains its nonconforming status as long as it is not abandoned, destroyed or discontinued, or extended, enlarged or substantially changed, or otherwise altered so as to be in violation of any state statute or rule or local ordinance. A junkyard is presumed to be abandoned if inactive for more than one year.

84.31(4)(c) (c) Every nonconforming junkyard shall be screened, relocated, removed or disposed of within 5 years after it becomes nonconforming. The department shall cause nonconforming junkyards to be screened, relocated, removed or disposed of in accordance with this section and rules adopted under this section.

84.31(4)(d) (d) The department may contract for such services and acquire such property or interests therein as are necessary to accomplish the screening, relocation, removal or disposal of a nonconforming junkyard. Acquisition may be by gift, purchase, exchange or the power of eminent domain under ch. 32. Acquired property may be sold or otherwise disposed of by the department as it deems proper. Disposal of property acquired under this section is not subject to approval by the governor or other state agency.

84.31(4)(e) (e) If a junkyard is screened by the department, the department shall retain title to the screening material where practicable, but the owner and operator of the junkyard shall maintain the screening. Any owner or operator who fails to maintain the screening is subject to the penalty under sub. (6) (c).

84.31(5) (5) Availability of funds. Any other provision of this section to the contrary notwithstanding, no nonconforming junkyard is required to be screened, relocated, removed or disposed of by the department unless there are sufficient state funds appropriated and available to the department for such purposes and unless federal funds have been appropriated and are immediately available to the state for the purpose of federal participation required under 23 USC 136.

84.31(6) (6) Illegal junkyards.

84.31(6)(a) (a) If a junkyard is an illegal junkyard but not a nonconforming junkyard, the department shall give the owner or operator thereof notice of the illegal status of the junkyard. The notice shall specify the respects in which the junkyard is illegal and shall state that unless the junkyard is brought into compliance with the law within 30 days at the expense of the owner or operator, the department shall take one or more of the courses of action authorized in par. (b). The notice shall inform the owner or operator that if he or she requests a hearing on the matter in writing within the 30-day period, a hearing shall be conducted by the division of hearings and appeals as are hearings in contested cases under ch. 227. Requests for hearings shall be served on the department and the division of hearings and appeals.

84.31(6)(b) (b) If the owner or operator of a junkyard is given notice under par. (a) and does not bring the junkyard into compliance within 30 days and a hearing is not requested, or does not bring the junkyard into compliance after a hearing on the matter and a determination that compliance is required, the department may, in addition to any other remedies available under law:

84.31(6)(b)1. 1. Petition a court of appropriate jurisdiction to, and such court shall, issue an order compelling compliance.

84.31(6)(b)2. 2. Enter upon the land where the junkyard is located and relocate, remove or dispose of the junkyard and collect the cost of relocation, removal or disposal from the owner or operator of the junkyard, who shall be jointly and severally liable for such costs.

84.31(6)(b)3. 3. Request the district attorney to commence an action to collect the forfeiture under par. (c).

84.31(6)(c) (c) Any person who owns, establishes or maintains a junkyard in violation of this section or any rule adopted under this section and which is not a nonconforming junkyard may be required to forfeit not less than $25 nor more than $1,000 for each offense. Each day in violation constitutes a separate offense.

84.31(7) (7) Rules. The department may adopt rules to accomplish the purposes of this section and to comply with the requirements of 23 USC 136, as amended, and rules and guidelines adopted thereunder. In interpreting this section, the department may be guided by federal law and interpretations approved by appropriate authorities of the federal government.

84.31(8) (8) Agreements.

84.31(8)(a) (a) The department may enter into agreements with the designated authority of the federal government relating to the control of junkyards and may take such action as is necessary to comply with the terms of such agreements.

84.31(8)(b) (b) The department and another state agency may enter into agreements for the purpose of assigning to the other state agency the responsibility for the administration of this section and rules adopted under this section. To the extent responsibility for administration is assigned to the other agency under such agreements, the other state agency shall have the same powers and duties conferred on the department under this section. The department shall reimburse the other state agency from the appropriation under s. 20.395 (3) (cq) and (cx) for all expenses, including administrative expenses, incurred by the other state agency in connection with the screening, relocation, removal or disposal of junkyards under the authority assigned to the other state agency, except that no moneys may be reimbursed for the acquisition of land or interests in land contrary to s. 86.255.

84.31(9) (9) Other laws. Nothing in this section shall be construed to abrogate or affect any law or ordinance which is more restrictive than this section. The provisions of this section are in addition to and do not supersede the requirements under ss. 59.55 (5), 175.25, 218.205 to 218.23 and 289.05 to 289.32, or rules or ordinances adopted thereunder which apply to junkyards. Provisions of this section apply to any junkyard licensed or permitted by a local unit of government or another state agency.

84.31 History History: 1975 c. 340; 1977 c. 29 ss. 947, 1654 (8) (a), 1656 (43); 1977 c. 377 s. 30; 1979 c. 34 s. 2102 (39) (g), (52) (a); 1981 c. 347 s. 80 (2); 1983 a. 189; 1985 a. 182 s. 57; 1987 a. 351; 1993 a. 16; 1995 a. 201, 227; 1997 a. 35; 1999 a. 9; 2017 a. 365.

84.40 84.40 Department; relation to nonprofit corporations.

84.40(1) (1) As used in this section, unless the context requires otherwise:

84.40(1)(a) (a) “Existing highways and other improvements,” in relation to any conveyance, lease or sublease made under sub. (2) (a), (b) and (c), means any portion of the national system of interstate and defense highways in this state, including all bridges, tunnels, overpasses, underpasses, interchanges, lighting, approaches, signing, weighing stations, administration, storage and other buildings, facilities or appurtenances which in the judgment of the department are needed or useful for interstate highway purposes, and all improvements and additions thereto which were erected, constructed or installed prior to the making of such conveyance, lease or sublease.

84.40(1)(b) (b) “New highways and other improvements,” in relation to any conveyance, lease or sublease made under sub. (2) (a), (b) and (c), means any portion of the national system of interstate and defense highways in this state, including all bridges, tunnels, overpasses, underpasses, interchanges, lighting, approaches, signing, weighing stations, administration, storage and other buildings, facilities or appurtenances which in the judgment of the department are needed or useful for interstate highway purposes, and all improvements and additions thereto or to existing interstate highways and other improvements which are erected, constructed or installed after the making of such conveyance, lease or sublease.

84.40(1)(c) (c) “Nonprofit-sharing corporation” means a nonstock corporation which was in existence on May 1, 1967 and was organized under ch. 181 or corresponding prior general corporation laws.

84.40(2) (2) In order to provide new highways or improve existing highways and to enable the construction and financing thereof, to refinance any indebtedness created by a nonprofit corporation for new highways or making additions or improvements to existing highways located on public right-of-way available for highway purposes or on lands owned by the nonprofit corporation, or for any one or more of said purposes, but for no other purpose unless authorized by law, the department:

84.40(2)(a) (a) Subject to any prior action under s. 13.48 (14) (am) or 16.848 (1), may sell and convey to a nonprofit-sharing corporation any public right-of-way available for highway purposes and any existing highways or other improvements thereon owned by the state or under the jurisdiction of the department for such consideration and upon such terms and conditions as the department deems in the public interest.

84.40(2)(b) (b) May lease to a nonprofit-sharing corporation, for terms not exceeding 30 years each, any public right-of-way available for highway purposes and any existing highways or improvements thereon owned by the state or under the jurisdiction of the department upon such terms, conditions and rentals as the department deems in the public interest.

84.40(2)(c) (c) May lease or sublease from such nonprofit-sharing corporation, and make available for public use, any such public right-of-way available for highway purposes and existing highways and other improvements conveyed or leased to such corporations under pars. (a) and (b), and any new highways or other improvements constructed upon such public right-of-way available for highway purposes or upon any other land owned by such corporation, upon such terms, conditions and rentals, subject to available appropriations, as the department deems in the public interest. With respect to any property conveyed to such corporation under par. (a), such lease from such corporation may be subject or subordinated to one or more mortgages of such property granted by such corporation.

84.40(2)(d) (d) Shall enter into lease and sublease agreements under par. (c) for highway projects only when the projects meet the department’s standard specifications for road and bridge construction and when arrangements are made that all construction be under the direct supervision of the department.

84.40(2)(e) (e) May establish, operate and maintain highways and other improvements leased or subleased under par. (c).

84.40(2)(f) (f) Shall submit the plans and specifications for all such new highways or other improvements and all conveyances, leases and subleases and purchase agreements made under this subsection to the governor for approval before they are finally adopted, executed and delivered.

84.40(2)(g) (g) May pledge and assign, subject to available appropriations, all moneys provided by law for the purpose of the payment of rentals pursuant to leases and subleases entered into under par. (c) as security for the payment of rentals due and to become due under any lease or sublease of such highways and other improvements made under par. (c).

84.40(2)(h) (h) Shall, upon receipt of notice of any assignment by any such corporation of any lease or sublease made under par. (c), or of any of its rights under any such lease or sublease, recognize and give effect to such assignments, and pay to the assignee thereof rentals or other payments then due or which may become due under any such lease or sublease which has been so assigned by such corporation.

84.40(2)(i) (i) May purchase and acquire from such nonprofit-sharing corporation any right-of-way available for highway purposes and any new highways and other improvements for which leases and subleases have been executed pursuant to par. (c) upon such terms and conditions as the department deems in the public interest.

84.40(3) (3) All lease and sublease agreements executed under this section and all contracts entered into pursuant to the lease and sublease agreements shall be processed, governed by and performed in accordance with all applicable state and federal laws and regulations. Sections 66.0901, 84.015, 84.03 and 84.06 are applicable to all contractual instruments for the construction of highway projects subject to lease and sublease in the same manner as they are applicable to the department.

84.40(4) (4) All conveyances, leases and subleases made under this section shall be made, executed and delivered in the name of the department and signed by the secretary or the secretary’s designees.

84.40 History History: 1977 c. 29 ss. 948, 1654 (8) (a); 1981 c. 314; 1993 a. 490; 1999 a. 150 s. 672; 2013 a. 20.

84.41 84.41 State liability; applicable laws; tax exemption; securing of federal aids.

84.41(1) (1) Liability of state. The state shall be liable for accrued rentals and for any other default under any lease or sublease executed under s. 84.40 and may be sued therefor on contract as in other contract actions pursuant to ch. 775, but it shall not be necessary for the lessor under any such lease or sublease or any assignee of such lessor or any person or other legal entity on behalf of such lessor to file any claim with the legislature prior to the commencement of any such action. However, the corporation or bondholders may not reenter or take possession of the highway land, easements or structures by reason of any default in the payment of rent or for any other reason.

84.41(2) (2) Application of state laws. All laws of this state including those pertaining to the regulation of motor vehicles and highways, shall apply to the projects subject to lease and sublease executed under s. 84.40.

84.41(4) (4) Contractor’s liens; performance and payment bonds. The provisions of s. 779.15 pertaining to contractor’s liens and related matters, and s. 779.14 relating to performance and payment bonds, shall apply in the same manner as such law applies to other state highway construction projects.

84.41(5) (5) Tax exemption. All lands leased and re-leased under any approved project shall be exempt from taxation.

84.41(6) (6) No state debt created. Nothing contained in this section or s. 84.40 shall create a debt of the state.

84.41(7) (7) Securing of federal aids. The department shall do all things necessary to secure federal aids in carrying out the purposes of this section and s. 84.40.

84.41 History History: 1977 c. 29 s. 1654 (8) (a); 1979 c. 32 s. 92 (5), (9); 2015 a. 55; 2017 a. 59.

84.42 84.42 Limitations on bonding. The department’s authority to act under ss. 84.40 and 84.41 is limited to completion of highway I-94 between Tomah and Eau Claire, the interstate bridge, including the approaches, on highway I-94 at Hudson and highway I-90 between Tomah and La Crosse.

84.42 History History: 1977 c. 29 s. 1654 (8) (a).

84.51 84.51 Construction of state highways.