Chapter ATCP 49

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:

ATCP 49.14(4)(a) (a) Be comprised of one county map or a series of town, village, and city maps.

ATCP 49.14(4)(b) (b) Be titled “Farmland Preservation Plan Map” followed by the name of the political subdivision depicted on the map.

ATCP 49.14(4)(c) (c) Specify the county in which the farmland preservation plan area is located.

ATCP 49.14(4)(d) (d) Clearly delineate areas designated for farmland preservation, designating parcels as included or excluded from the district and following parcel boundaries where possible.

ATCP 49.14(4)(e) (e) Display environmental or other overlay areas, if any, in a manner that does not obscure or confuse the boundaries of an underlying farmland preservation area.

ATCP 49.14(4)(f) (f) Be drawn at a scale no greater than one inch to 2,000 feet (1:24,000).

ATCP 49.14 Note Note: The county may fulfill this requirement by submitting maps at that required scale only for the towns which are to include farmland preservation areas.

ATCP 49.14(4)(g) (g) Show political boundaries, parcel boundaries, section lines, section numbers, roads, and water bodies.

ATCP 49.14(4)(h) (h) Include a map legend with corresponding symbols or colors for all data represented on the map.

ATCP 49.14(4)(i) (i) Identify farmland preservation areas and non-farmland preservation areas with corresponding symbols in the legend and with titles that correspond to the titles in the plan text that apply to those areas.

ATCP 49.14(4)(j) (j) Specify map scale, north arrow direction, map date, and map producer.

ATCP 49.14 History History: CR 13-003: cr. Register December 2013 No. 696, eff. 1-1-14.

subch. III of ch. ATCP 49 Subchapter III — Farmland Preservation Zoning

ATCP 49.20 ATCP 49.20 General. A political subdivision may adopt a farmland preservation zoning ordinance. In order for the ordinance to be certified by the department under s. 91.36, Stats., the ordinance must meet the requirements of s. 91.38, Stats., and this subchapter.

ATCP 49.20 History History: CR 13-003: cr. Register December 2013 No. 696, eff. 1-1-14.

ATCP 49.22 ATCP 49.22 Permitted uses. In addition to the uses listed under s. 91.44 (1), Stats., the following uses may be allowed as permitted uses in a certified district:

ATCP 49.22(1) (1) Existing residences. Residences, regardless of occupancy, existing as of January 1, 2014, or an earlier date specified by the ordinance, may be permitted.

ATCP 49.22 Note Note: Residences, which may or may not be associated with a farm, that are constructed as of a date specified in the zoning ordinance text may be allowed as permitted uses in the district. These residences need not receive a conditional use permit unless the local government decides to require it and they need not follow the prior nonconforming use provisions found under s. 59.69 (10), 60.61 (5), or 62.23 (7) (h), Stats., unless mandated by the local government.

ATCP 49.22(2) (2) Farm family businesses.

ATCP 49.22 History History: CR 13-003: cr. Register December 2013 No. 696, eff. 1-1-14.

ATCP 49.23 ATCP 49.23 Conditional uses. In addition to the uses listed in s. 91.46, Stats., and s. ATCP 49.22, a proposed new single-family or duplex nonfarm dwelling may be allowed as a conditional use in a certified farmland preservation district. The new nonfarm dwelling is subject to legal restrictions established by the political subdivision which demonstrate to the department’s satisfaction that the restrictions will be as restrictive as the density standards for nonfarm residences set forth in s. 91.46 (2), Stats.

ATCP 49.23 Note Note: A political subdivision that chooses to allow limited nonfarm residences within the certified farmland preservation district may choose to implement the base farm tract concept defined in s. 91.01 (5), Stats., and applied through s. 91.46 (2) (c) 1. and 2., Stats., or may utilize an alternative provision developed at the local level. The political subdivision must demonstrate to the Secretary that the local provision limits nonfarm development to the same extent or more as the state statutes so that the alternative policy would not allow for both additional nonfarm residences to be built and more nonfarm residential acreage to be introduced into the farmland preservation district. The political subdivision may choose to apply a density restriction to all parcels in the district regardless of whether the parcels qualify as farms under the definition of farm in the ordinance. The conditional use permit for a nonfarm residence is an optional provision that a political subdivision may choose to include in a farmland preservation zoning ordinance.

ATCP 49.23 History History: CR 13-003: cr. Register December 2013 No. 696, eff. 1-1-14.

ATCP 49.24 ATCP 49.24 Zoning ordinance certification expiration.

ATCP 49.24(1) (1) Certification expiration. The certification of a farmland preservation zoning ordinance expires on the date provided in the most recent certification of the ordinance or its amendment, or, if the certification does not provide an expiration date, on the date provided under s. 91.34, Stats. If a local government with an expired ordinance does not obtain certification of a farmland preservation zoning ordinance by December 31 of the year following the expiration date, landowners covered by the zoning ordinance are not eligible to claim farmland preservation tax credits beginning in the year following the year of the expiration date.

ATCP 49.24 Note Note: If a farmland preservation zoning ordinance expires on December 31, 2014, the political subdivision has until December 31, 2015, to obtain certification of its ordinance by the department. If the political subdivision‘s ordinance is not certified by the department by December 31, 2015, all landowners with land located in the farmland preservation zoning district may not claim tax credits for tax year 2015. The political subdivision is not precluded from seeking future certification of its farmland preservation zoning ordinance.

ATCP 49.24(2) (2) Certification expiration extension. The secretary may delay the expiration date of the certification of a farmland preservation zoning ordinance for up to 2 years upon a written request from the political subdivision demonstrating to the secretary’s satisfaction that a delay would allow the political subdivision to coordinate updating the farmland preservation zoning ordinance with other planning efforts in the political subdivision.

ATCP 49.24 History History: CR 13-003: cr. Register December 2013 No. 696, eff. 1-1-14.

ATCP 49.25 ATCP 49.25 Certification standards.

ATCP 49.25(1) (1) Qualifying for certification. The department may certify a farmland preservation zoning ordinance under s. 91.36, Stats., if that ordinance complies with the requirements in ss. 91.38 and 91.40, Stats., and this subchapter.

ATCP 49.25(2) (2) Consistency with farmland preservation plan. At least 80% of the area planned for farmland preservation in each town, city, or village covered by a certified farmland preservation plan shall be included in the farmland preservation district or a district that imposes land use restrictions as restrictive as or more restrictive than the farmland preservation zoning district. The department may consider certifying a farmland preservation zoning ordinance that is between 70% and 80% consistent with a farmland preservation plan if the political subdivision can demonstrate to the secretary’s satisfaction a reasonable, objective justification for the lower level of consistency.

ATCP 49.25 Note Note: If an area is planned for farmland preservation but is not zoned for farmland preservation, it may be zoned as open space or conservancy. Such a zoning designation would be consistent with farmland preservation. Areas that are zoned for nonagricultural residential, commercial, or industrial use, however, would not be consistent with farmland preservation.

ATCP 49.25 History History: CR 13-003: cr. Register December 2013 No. 696, eff. 1-1-14.

ATCP 49.26 ATCP 49.26 Applying for ordinance certification.

ATCP 49.26(1) (1) General. Except as provided under s. 91.36 (8), Stats., and s. ATCP 49.27, a political subdivision seeking certification of its farmland preservation ordinance shall submit an application to the department as provided in this section.

ATCP 49.26(2) (2) Required information. The application for certification shall include all of the following in order to be considered complete and evaluated for compliance with s. 91.36, Stats.:

ATCP 49.26(2)(a) (a) An application on a form developed by the department that includes the information required under s. 91.40 (2), Stats.

ATCP 49.26 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/OrdinanceApplicationForm.docx

ATCP 49.26(2)(b) (b) All parts of the zoning ordinance affected by the farmland preservation district for which the political subdivision is seeking certification.

ATCP 49.26(2)(c) (c) All spatial location data used to delineate the farmland preservation zoning districts proposed for certification, submitted in accordance with department requirements on format.

ATCP 49.26(3) (3) Ordinance text. The ordinance text shall comply with the requirements in s. 91.38 (1), Stats.

ATCP 49.26(4) (4) Ordinance map. A farmland preservation zoning ordinance shall include a map that clearly delineates each farmland preservation zoning district so that a reader can determine whether a parcel is within a farmland preservation district. The farmland preservation zoning ordinance map shall do all of the following:

ATCP 49.26(4)(a) (a) Be comprised of one county map or a series of town maps for a county ordinance, or one map for a city, town, or village ordinance.

ATCP 49.26(4)(b) (b) Be titled “Zoning Ordinance Map” preceded or followed by the name of the political subdivision depicted on the map.

ATCP 49.26(4)(c) (c) Specify the county in which the farmland preservation zoning district is located, if the map covers only one town, city, or village.

ATCP 49.26(4)(d) (d) Clearly delineate areas zoned for farmland preservation, designating parcels as included in the farmland preservation district or included in another zoning district and following parcel boundaries to the extent possible.

ATCP 49.26 Note Note: The zoning district does not need to follow parcel boundaries, although the department prefers that districts follow parcel boundaries. For purposes of the tax credit, landowners covered by the farmland preservation zoning district are responsible for claiming the correct number of acres of land they own that are covered by the farmland preservation district, regardless of whether the political subdivision follows parcel boundaries.

ATCP 49.26(4)(e) (e) Display environmental or other overlay areas in a way that does not obscure or confuse the boundaries of an underlying farmland preservation zoning district.