Chapter Trans 233

Trans 233.11   Special exceptions.

Trans 233.12   Performance bond.

Trans 233.13   Fees.

Ch. Trans 233 Note Note: Chapter Hy 33 was renumbered chapter Trans 233, under s. 13.93 (2m) (b) 1., Stats., Register, August, 1996, No. 488. Chapter Trans 233 as it existed on January 31, 1999, was repealed and a new Chapter Trans 233 was created effective February 1, 1999.

Ch. Trans 233 Note Note: In the case of Wisconsin Builders Association, et al. v. Wisconsin Department of Transportation 2005 WI App 160, the Court of Appeals ruled that the rules in Ch. Trans 233 were invalid to the extent that they apply to land divisions other than subdivisions.

Ch. Trans 233 Note Note: On April 16, 2009, in Dane County Circuit Court Case No. 06-CV-4294, Madison Area Builders Association, et al. v. Wisconsin Department of Transportation; et al., it was ordered and adjudged that the 1999 and 2001 amendments to Chapter Trans 233 were declared to be invalid and unenforceable, but that that order had no effect on the legal validity or enforceability of Chapter Trans 233 as it existed prior to the adoption of the 1999 amendments on February 1, 1999.

Ch. Trans 233 Note Chapter Trans 233 as it existed prior to the adoption of the 1999 amendments on February 1, 1999, is printed as a note following section Trans 233.13.

Trans 233.01 Trans 233.01 Purpose. Dividing or developing lands, or both, affects highways by generating traffic, increasing parking requirements, reducing sight distances, increasing the need for driveways and other highway access points and, in general, impairing highway safety and impeding traffic movements. The ability of state trunk highways and connecting highways to serve as an efficient part of an integrated intermodal transportation system meeting interstate, statewide, regional and local needs is jeopardized by failure to consider and accommodate long-range transportation plans and needs during land division processes. This chapter specifies the department’s minimum standards for the division of land that abuts a state trunk highway or connecting highway, in order to provide for the safety of entrance upon and departure from those highways, to preserve the public interest and investment in those highways, to help maintain speed limits, and to provide for the development and implementation of an intermodal transportation system to serve the mobility needs of people and freight and foster economic growth and development, while minimizing transportation-related fuel consumption, air pollution, and adverse effects on the environment and on land owners and users. Preserving the public investment in an integrated transportation system also assures that no person, on the grounds of race, color, or national origin, is excluded from participation in, denied the benefits of, or subjected to discrimination under any transportation program or activity. The authority to impose minimum standards for subdivisions is s. 236.13 (1) (e), Stats. The authority to impose minimum standards for land divisions under ss. 236.34, 236.45 and 703.11, Stats., is s. 86.07 (2), Stats. The authority to impose minimum standards for land divisions to consider and accommodate long-range transportation plans and needs is ss. 1.11 (1), 1.12 (2), 1.13 (3), 20.395 (9) (qx), 66.1001 (2) (c), 84.01 (2), (15), and (17), 84.015, 84.03 (1), 85.02, 85.025, 85.05, 85.16 (1), 86.31 (6), 88.87 (3), and 114.31 (1), Stats.

Trans 233.01 Note Note: The Department is authorized and required by ss. 84.01 (15), 84.015, 84.03 (1) and 20.395 (9) (qx), to plan, select, lay out, add to, decrease, revise, construct, reconstruct, improve and maintain highways and related projects, as required by federal law, Title 23, USC and all acts of Congress amendatory or supplementary thereto, and the federal regulations issued under the federal code; and to expend funds in accordance with the requirements of acts of Congress making such funds available. Among these federal laws that the Department is authorized and required to follow are 23 USC 109 establishing highway design standards; 23 USC 134, requiring development and compliance with long-range (minimum of 20 years) metropolitan area transportation plans; and 23 USC 135, requiring development and compliance with long-range (minimum of 20 years) statewide transportation plans. Similarly, the Department is authorized and required by the state statutes cited and other federal law to assure that it does not unintentionally exclude or deny persons equal benefits or participation in transportation programs or activities on the basis of race, color, national origin and other factors, and to give appropriate consideration to the effects of transportation facilities on the environment and communities. A “state trunk highway” is a highway that is part of the State Trunk Highway System. It includes State numbered routes, federal numbered highways, the Great River Road and the Interstate System. A listing of state trunk highways with geographic end points is available in the Department’s “Official State Trunk Highway System and the Connecting Highways” booklet that is published annually as of December 31. The County Maps published by the Wisconsin Department of Transportation also show the breakdown county by county. As of January 1, 1997, there were 11,813 miles of state trunk highways and 520 center-line miles of connecting highways. Of at least 116 municipalities in which there are connecting highways, 112 are cities and 4 or more are villages.

Trans 233.01 Note A “connecting highway” is not a state trunk highway. It is a marked route of the State Trunk Highway System over the streets and highways in municipalities which the Department has designated as connecting highways. Municipalities are responsible for their maintenance and traffic control. The Department is generally responsible for construction and reconstruction of the through lanes of connecting highways, but costs for parking lanes and related municipal facilities and other desired local improvements are local responsibilities. The Department reimburses municipalities for the maintenance of connecting highways in accordance with a lane mile formula. See ss. 84.02 (11), 84.03 (10), 86.32 (1) and (4), and 340.01 (60), Stats. A listing of connecting highways with geographic end points is also available in the Department’s “Official State Trunk Highway System and the Connecting Highways” booklet that is published annually as of December 31.

Trans 233.01 Note A “business route” is an alternate highway route marked to guide motorists to the central or business portion of a city, village or town. The word “BUSINESS” appears at the top of the highway numbering marker. A business route branches off from the regular numbered route, passes through the business portion of a city and rejoins the regularly numbered route beyond that area. With very rare exceptions, business routes are not state trunk highways or connecting highways. The authorizing statute is s. 84.02(6), Stats. This rule does not apply to business routes.

Trans 233.01 History History: Cr. Register, January, 1999, No. 517, eff. 2-1-99; am. Register, January, 2001, No. 541, eff. 2-1-01; corrections made under s. 13.93 (2m) (b) 7., Stats., Register January 2004 No. 577.

Trans 233.012 Trans 233.012 Applicability.

Trans 233.012(1) (1) In accordance with ss. 86.07 (2), 236.12, 236.34 and 236.45, Stats., this chapter applies to all land division maps reviewed by a city, village, town or county, the department of administration and the department of transportation. This chapter applies to any land division that is created by plat or map under s. 236.12 or 236.45, Stats., by certified survey map under s. 236.34, Stats., or by condominium plat under s. 703.11, Stats., or other means not provided by statute, and that abuts a state trunk highway, connecting highway or service road.

Trans 233.012(2) (2) Structures and improvements lawfully placed in a setback area under ch. Trans 233 prior to February 1, 1999, or lawfully placed in a setback area before a land division, are explicitly allowed to continue to exist. Plats that have received preliminary approval prior to February 1, 1999, are not subject to the standards under this chapter as first promulgated effective February 1, 1999, if there is no substantial change between the preliminary and final plat, but are subject to ch. Trans 233 as it existed prior to February 1, 1999. Plats that have received final approval prior to February 1, 1999, are not subject to the standards under this chapter as first promulgated effective February 1, 1999, but are subject to ch. Trans 233 as it existed prior to February 1, 1999. Land divisions on which the department acted between February 1, 1999 and February 1, 2001 are subject to ch. Trans 233 as it existed February 1, 1999.

Trans 233.012(3) (3) Any structure or improvement lawfully placed within a setback area under ch. Trans 233 prior to February 1, 1999, or lawfully placed within a setback area before a land division, may be kept in a state of repair, efficiency or validity in order to preserve from failure or decline, and if unintentionally or tortiously destroyed, may be replaced substantially in kind.

Trans 233.012 History History: Cr. Register, January, 1999, No. 517, eff. 2-1-99; renum. Trans 233.012 to be (1), cr. (2) and (3), Register, January, 2001, No. 541, eff. 2-1-01; correction made under s. 13.93 (2m) (b) 7., Stats., Register January 2004 No. 577.

Trans 233.015 Trans 233.015 Definitions. Words and phrases used in this chapter have the meanings given in s. 340.01, Stats., unless a different definition is specifically provided. In this chapter:

Trans 233.015(1) (1) “Certified survey map” or “CSM” means a map that complies with the requirements of s. 236.34, Stats.

Trans 233.015(1m) (1m) “Desirable traffic access pattern” means traffic access that is consistent with the technical and professional guidance provided in the department’s facilities development manual.

Trans 233.015 Note Note: Guidelines established in the Department’s Facilities Development Manual are not considered “rules,” as defined in s. 227.01 (13), Stats., and so are not subject to the requirements under s. 227.10, Stats.

Trans 233.015(1r) (1r) “District office” means an office of the division of transportation districts of the department.

Trans 233.015(2) (2) “Improvement” means any permanent addition to or betterment of real property that involves the expenditure of labor or money to make the property more useful or valuable. “Improvement” includes parking lots, driveways, loading docks, in-ground swimming pools, wells, septic systems, retaining walls, signs, buildings, building appendages such as porches, and drainage facilities. “Improvement” does not include sidewalks, terraces, patios, landscaping and open fences.

Trans 233.015(2m) (2m) “In-ground swimming pool” includes a swimming pool that is designed or used as part of a business or open to use by the general public or members of a group or association. “In-ground swimming pool” does not include any above-ground swimming pools without decks.

Trans 233.015(3) (3) “Land divider” means the owner of land that is the subject of a land division or the land owner’s agent for purposes of creating a land division.

Trans 233.015(4) (4) “Land division” means a division under s. 236.12, 236.34, 236.45 or 703.11, Stats., or other means not provided by statute, of a lot, parcel or tract of land by the owner or the owner’s agent for the purposes of sale or of building development.

Trans 233.015(5) (5) “Land division map” means an official map of a land division, including all certificates required as a condition of recording the map.

Trans 233.015(5m) (5m) “Major intersection” means the area within one-half mile of the intersection or interchange of any state trunk highway or connecting highway with a designated expressway, or freeway, under s. 84.295, Stats., or a designated interstate highway under s. 84.29, Stats.

Trans 233.015(6) (6) “Public utility” means any corporation, company, individual or association that furnishes products or services to the public, and that is regulated under ch. 195 or 196, Stats., including railroads, telecommunications or telegraph companies, and any company furnishing or producing heat, light, power, cable television service or water, or a rural electrical cooperative, as described in s. 32.02 (10), Stats.

Trans 233.015(6m) (6m) “Reviewing municipality” means a city or village to which the department has delegated authority to review and object to land divisions under s. Trans 233.03 (7).

Trans 233.015(6r) (6r) “Secretary” means the secretary of the department of transportation.

Trans 233.015(7) (7) “Structure” includes a temporary or non-permanent addition to or betterment of real property that is portable in nature, but that adversely affects the safety of entrance upon or departure from state trunk or connecting highways or the preservation of public interest and investment in those highways, as determined by the department. “Structure” does not include portable swing sets, movable lawn sheds without pads or footings, and above ground swimming pools without decks.

Trans 233.015(7m) (7m) “Technical land division” means a land division involving a structure or improvement that has been situated on the real property for at least 5 years, does not result in any change to the use of existing structures and improvements and does not negatively affect traffic. “Technical land division” includes the conversion of an apartment building that has been in existence for at least 5 years to condominium ownership, the conversion of leased commercial spaces in a shopping mall that has been in existence for at least 5 years to owned spaces, and the exchange of deeds by adjacent owners to resolve mutual encroachments.

Trans 233.015(8) (8) “Unplatted” means not legally described by a plat, land division map, certified survey map or condominium plat.

Trans 233.015(8m) (8m) “User” means a person entitled to use a majority of the property to the exclusion of others.

Trans 233.015(9) (9) “Utility facility” means any pipe, pipeline, duct, wire line, conduit, pole, tower, equipment or other structure used for transmission or distribution of electrical power or light or for the transmission, distribution or delivery of heat, water, gas, sewer, telegraph or telecommunication service, cable television service or broadcast service, as defined in s. 196.01 (1m), Stats.

Trans 233.015 History History: Cr. Register, January, 1999, No. 517, eff. 2-1-99; cr. (1m), (1r), (2m), (5m), (6m), (6r), (7m) and (8m), Register, January, 2001, No. 541, eff. 2-1-01.

Trans 233.017 Trans 233.017 Other abuttals. For purposes of this chapter, land shall be considered to abut a state trunk highway or connecting highway if the land is any of the following:

Trans 233.017(1) (1) Land that contains any portion of a highway that is laid out or dedicated as part of a land division if the highway intersects with a state trunk highway or connecting highway.

Trans 233.017(2) (2) Separated from a state trunk highway or connecting highway by only unplatted lands that abut a state trunk highway or connecting highway if the unplatted lands are owned by, leased to or under option, whether formal or informal, or under contract or lease to the owner.

Trans 233.017(3) (3) Separated from a state trunk highway or connecting highway by only a service road.

Trans 233.017 History History: Cr. Register, January, 1999, No. 517, eff. 2-1-99.

Trans 233.02 Trans 233.02 Basic principles. To control the effects of land divisions on state trunk highways and connecting highways and to carry out the purposes of ch. 236, Stats., the department promulgates the following basic requirements:

Trans 233.02(1) (1) Local traffic from a land division or development abutting a state trunk highway or connecting highway shall be served by an internal highway system of adequate capacity, intersecting with state trunk highways or connecting highways at the least practicable number of points and in a manner that is safe, convenient and economical.

Trans 233.02(2) (2) A land division shall be so laid out that its individual lots or parcels do not require direct vehicular access to a state trunk highway or connecting highway.

Trans 233.02(3) (3) The department, in order to integrate and coordinate traffic on a highway or on a private road or driveway with traffic on any affected state trunk highway or connecting highway, shall do both of the following:

Trans 233.02(3)(a) (a) Consider, particularly in the absence of a local comprehensive general or master plan, or local land use plan, that plat or map’s relationship to the access requirements of adjacent and contiguous land divisions and unplatted lands.

Trans 233.02(3)(b) (b) Apply this chapter to all lands that are owned by, or are under option, whether formal or informal, or under contract or lease to the land divider and that are adjacent to or contiguous to the land division. Contiguous lands include those lands that abut the opposite side of the highway right-of-way.

Trans 233.02(4) (4) Setbacks from a state trunk highway or connecting highway shall be provided as specified in s. Trans 233.08.

Trans 233.02(5) (5) A land division map shall include provision for the handling of surface drainage in such a manner as specified in s. Trans 233.105 (3).

Trans 233.02(6) (6) A land division map shall include provisions for the mitigation of noise if the noise level exceeds noise standards in s. Trans 405.04, Table I.

Trans 233.02(7) (7) A land division shall provide vision corners at intersections and driveways per department standards.

Trans 233.02 Note Note: Guide dimensions for vision corners are formally adopted in the Department’s Facilities Development Manual, Chapter 11, pursuant to s. 227.01 (13) (e), Stats. Rules governing construction of driveways and other connections with highways are found in ch. Trans 231. Detailed specifications may be obtained at the department’s district offices.

Trans 233.02 History History: Cr. Register, January, 1999, No. 517, eff. 2-1-99; am. (intro.), Register, January, 2001, No. 541, eff. 2-1-01.

Trans 233.03 Trans 233.03 Procedures for review. The following procedures apply to review by the department, district office or reviewing municipality of proposed certified survey maps, condominium plats and other land divisions:

Trans 233.03(1) (1) Conceptual review.

Trans 233.03(1)(a) (a) Before the lots are surveyed and staked out, the land divider shall submit a sketch to the department’s district office for review. The sketch shall indicate roughly the layout of lots and the approximate location of streets, and include other information required in this chapter.

Trans 233.03(1)(b) (b) Unless the land divider submits a preliminary plat under s. 236.12 (2) (a), Stats., the land divider shall have the district office review the sketch described in par. (a).

Trans 233.03(1)(c) (c) There is no penalty for failing to obtain conceptual review; the conceptual review procedure is encouraged to avoid waste that results from subsequent required changes.

Trans 233.03(2) (2) Preliminary and final plat review. The department shall conduct preliminary and final subdivision plat review under s. 236.12, Stats., when the land divider or approving authority submits, through the department of administration’s plat review office, a formal request for departmental review of the plat for certification of non-objection as it relates to the requirements of this chapter. The request shall be accompanied with the land division map and the departmental review fee. No submittal may be considered complete unless it is accompanied by the fee.

Trans 233.03(3) (3) Preliminary and final review for land divisions occurring under s. 236.45 and s. 703.11, stats. The department shall review preliminary and final land division maps under ss. 236.45 and 703.11, Stats., when the approving authority, or the land divider, when there is no approving authority, submits a formal request for departmental review for certification of non-objection as it relates to the requirements of this chapter. The request shall be accompanied with the land division map and the departmental review fee. No submittal may be considered complete unless it is accompanied by the fee. Additional information required is the name and address of the register of deeds, any approving agency, the land division map preparer and the land divider. This information is to be submitted to the district office.

Trans 233.03 Note Note: The appropriate department address is Access Management Coordinator, Bureau of Highway Development, 4802 Sheboygan Avenue, Room 651, P. O. Box 7916, Madison, WI 53707-7916.

Trans 233.03(4) (4) Preliminary and final review for land divisions occurring under s. 236.34 and by other means not prescribed by statutes. The department shall conduct preliminary and final review of land division maps under s. 236.34, Stats., or under any other means not prescribed by statutes, when the land divider submits a formal request for departmental review for certification of non-objection to the land division as it relates to the requirements of this chapter. The request shall be accompanied with the land division map and the departmental review fee. No submittal may be considered complete unless it is accompanied by the fee. Additional information required is the name and address of the register of deeds, any approving agency, the land division map preparer and the land divider. This information shall be submitted to the district office or to the department.

Trans 233.03 Note Note: The appropriate department address is Access Management Coordinator, Bureau of Highway Development, 4802 Sheboygan Avenue, Room 651, P. O. Box 7916, Madison, WI 53707-7916.

Trans 233.03(5) (5) Time limit for review.

Trans 233.03(5)(a) (a) Except as provided in pars. (b) to (d), not more than 20 calendar days after receiving a completed request to review a land division map, the department, district office or reviewing municipality shall do one of the following:

Trans 233.03(5)(a)1. 1. Determine that the land division is a technical land division. Upon determining that a land division is a technical land division, the department, district office or reviewing municipality shall certify that it has no objection to the land division map and shall refund all fees paid for review of that land division map.

Trans 233.03(5)(a)2. 2. Provide written notice to the land divider either objecting to or certifying that it has no objection to the land division.

Trans 233.03 Note Note: The 20-day time limit for action on a review without any special exception or variance is also established by statute for subdivision plat reviews in sec. 236.12(3) and (6), Stats.

Trans 233.03(5)(b) (b) The department and district offices are not required to complete conceptual reviews under sub. (1) within a specified time, but shall endeavor to complete a conceptual review under sub. (1) within 30 calendar days after receiving the completed request.

Trans 233.03(5)(c) (c) If a special exception is requested under s. Trans 233.11, the department, district office or reviewing municipality shall complete its review of the land division map within the time limit provided in s. Trans 233.11 (6).

Trans 233.03(5)(d) (d) A request is considered complete under this subsection unless, within 5 working days after receiving the request, the department, district office or reviewing municipality provides written notice to the land divider stating that the request is incomplete and specifying the information needed to complete the request. On the date that additional information is requested under this subdivision, the time period for review ceases to run, but resumes running upon receipt of the requested information.

Trans 233.03(5)(e) (e) If the department, district office or reviewing municipality fails to act within the time limit provided in this section or s. Trans 233.11 (6), the department, district office or reviewing municipality shall be considered to have no objection to the land division map or special exception.

Trans 233.03(6) (6) District authority to review land division maps. Beginning on February 1, 2001, each district office may review land division maps under this chapter. The department shall develop implementing procedures to assure consistency and uniformity of such reviews among district offices and shall provide uniform guidance in figure 3 of procedure 7-50-5 of the department’s facilities development manual dated December 1, 2000.

Trans 233.03 Note Note: Guidelines established under this subsection are not considered “rules”, as defined in s. 227.01 (13), Stats., and so are not subject to the requirements under s. 227.10, Stats. However, this rule references uniform guidance by date so that future revisions to that uniform guidance will become effective only if ch. Trans 233 is amended.

Trans 233.03(7) (7) Municipal authority to review land division maps. The department may, upon request, delegate to a city or village authority to review and object to any proposed land division that abuts a state trunk highway or connecting highway lying within the city or village. The department shall develop a uniform written delegation agreement in cooperation with cities and villages. The delegation agreement may authorize a city or village to grant special exceptions under s. Trans 233.11. Any decision of a reviewing municipality relating to a land division map or 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 to ensure conformity with the delegation agreement and this chapter and may reverse or modify the municipality’s decision as appropriate. No reviewing municipality may change its setback policy after executing a delegation agreement under this section, except by written amendment to the delegation agreement approved by the department.

Trans 233.03(8) (8) Appeals.

Trans 233.03(8)(a) (a) Department review. Except as provided in this paragraph and par. (b), a land divider, governmental officer or entity, or member of the general public may appeal a final decision of a district office or reviewing municipality regarding a land division map, special exception, or consequence of a failure to act to the secretary or the secretary’s designee. Appeals may be made not more than 20 calendar days after that final decision or failure to act. The secretary or the secretary’s designee may reverse, modify or affirm the decision. Not more than 60 calendar days after receiving the appeal, the secretary or secretary’s designee shall notify the appealing party and the land divider in writing of the decision on appeal. If the secretary or secretary’s designee does not provide written notice of his or her decision within the 60-day limit, the department is considered to have no objection to the final decision of the district office or reviewing municipality. The department may not unilaterally initiate a review of a decision of a district office certifying non-objection to a land division map, with or without a special exception. The department may unilaterally review any decision of a reviewing municipality relating to a land division map to ensure conformity with the delegation agreement and this chapter, and may reverse or modify the municipality’s decision as appropriate. No person may appeal a conceptual review under sub. (1).

Trans 233.03(8)(b) (b) Judicial review.

Trans 233.03(8)(b)1. 1. ‘Chapter 236 land divisions.’ Judicial review of any final decision of the department, district office or reviewing municipality relating to a land division that is subject to ch. 236, Stats., shall follow appeal procedures specified in that chapter.

Trans 233.03 Note Note: Land divisions subject to plat approval under s. 236.10, Stats., shall follow the procedures specified in s. 236.13(5), Stats.

Trans 233.03(8)(b)2. 2. ‘All other land divisions.’ Judicial review of any final decision of the department, district office or reviewing municipality relating to a land division that is not subject to ch. 236, Stats., shall follow the procedures specified in ch. 227, Stats., for judicial review of agency decisions.

Trans 233.03 Note Note: Final administrative decisions which adversely affect the substantial interests of any person, whether by action or inaction, whether affirmative or negative in form, are subject to judicial review as provided in ch. 227, Stats.

Trans 233.03 History History: Cr. Register, January, 1999, No. 517, eff. 2-1-99; am. (intro.), (2), (3) and (4), r. and recr. (5), cr. (6) to (8), Register, January, 2001, No. 541, eff. 2-1-01; Reprinted to correct printing error in (3) Register January 2004 No. 577.

Trans 233.04 Trans 233.04 Required information. The land divider shall show on the face of the preliminary or final land division map or on a separate sketch, at a scale of not more than 1,000 feet to the inch, the approximate distances and relationships between the following, and shall show the information in subs. (1) to (8) about the following:

Trans 233.04(1) (1) The geographical relationship between the proposed land division and of any unplatted lands that abut any state trunk highway or connecting highway and that abut the proposed land division, and the ownership rights in and the land divider’s interest, if any, in these unplatted lands.

Trans 233.04(2) (2) The locations of all existing and proposed highways within the land division and of all private roads or driveways within the land division that intersect with a state trunk highway or connecting highway.

Trans 233.04(3) (3) The location, and identification of each highway and private road or driveway, leading to or from the land division.