The administrative and judicial review provided in sub. (18) is the exclusive procedure for challenging the legality of a sign after issuance of a removal order, even when the Department of Transportation has removed the sign. A determination under sub. (18) that a sign is legal is a necessary predicate to just compensation for the sign. The entire statutory scheme provides for a determination on the legality of a sign under sub. (18) and, if the ultimate determination is that the sign is legal, there is a procedure in subs. (7) and (8) for obtaining just compensation. This scheme adequately provides the means both to challenge a removal order on the ground a sign is legal and to obtain just compensation if that challenge succeeds. Lamar Central Outdoor, LLC v. DOT, 2008 WI App 187
, 315 Wis. 2d 190
, 762 N.W.2d 745
The phrase “brought into conformance” in sub. (11) could mean that a billboard must conform to the laws either: 1) as they applied to the circumstances when the permit issued; or 2) as they apply to current circumstances. Because the statute is ambiguous, the Department of Transportation is required to promulgate a new interpretation of the statute as a rule under s. 227.10. Lamar Central Outdoor, LLC v. Division of Hearings & Appeals, 2019 WI 109
, 389 Wis. 2d 486
, 936 N.W.2d 573
Persons in the business of erecting on-premise signs are subject to the licensing requirement of sub. (10) (a). 66 Atty. Gen. 295.
Outdoor sign regulation in Eden and Wisconsin. Larsen, 1972 WLR 153.
Vegetation obstructing view of outdoor advertising signs. 84.305(1)(am)
“Invasive species" has the meaning given in s. 23.22 (1) (c)
and, in addition, means species not indigenous to Wisconsin including hybrids, cultivars, subspecific taxa, and genetically modified variants whose introduction causes or is likely to cause economic or environmental harm or harm to human health, and also includes individual specimens, seeds, propagules, and any other viable life-stages of such species.
“Sign" has the meaning given in s. 84.30 (2) (j)
, but also includes any sign that is attached to a building or similar structure, that is within 100 feet of a highway right-of-way, and that advertises activities conducted on the property on which it is located.
“Vegetation" means any tree, shrub, hedge, woody plant, or grass.
“Viewing zone" means, with respect to a sign, the area commencing at the point on the main-traveled way of the highway nearest the sign for the direction of travel for which the sign face is oriented and extending, in a direction opposite of the direction of travel of the main-traveled way from which the sign face is visible and intended to be viewed, in a line along the highway pavement edge for a distance of 1,000 feet.
Notwithstanding ss. 66.1037
, and subject to sub. (2m)
, upon application, the department shall issue permits to sign owners for the trimming or removal of vegetation that is located in the right-of-way of a highway under the jurisdiction of the department for maintenance purposes and that obstructs a sign if, within a distance of 500 continuous feet along any portion of the viewing zone, any portion of the face of the sign is not viewable because of an obstruction to sight by vegetation in the highway right-of-way.
The department may not issue a permit under this section authorizing the trimming or removal of vegetation obstructing the view of a sign if the department first collected a permit fee under s. 84.30 (10m)
for that sign within the immediately preceding 5 years. This paragraph does not apply with respect to a sign that is attached to a building or similar structure, that is within 100 feet of a highway right-of-way, and that advertises activities conducted on the property on which it is located.
The department may impose on a permit under this section any condition or restriction determined to be necessary or suitable by the department if the permit application seeks authorization for the trimming or removal of vegetation at or with respect to any of the following:
An archaeological site or site of a federally recognized American Indian tribe or band.
A location that is part of a known habitat of endangered species or threatened species under s. 29.604
The department may deny an application under this section for a permit for a sign for which the department has issued a removal order and the removal order was received by the sign owner prior to the department's receipt of the application.
Subject to pars. (d)
and subs. (2m) (b)
, and (6)
, a permit issued under this section authorizes the permittee to trim or remove obstructing vegetation to the extent necessary to eliminate the obstruction and provide an unobstructed view of a sign for 500 continuous feet within the viewing zone. A permit issued under this section shall specify the vegetation or the portion of the highway right-of-way to which the permit applies.
An application for a permit under this section shall specifically describe the work proposed by the applicant. The department shall grant or deny an application for a permit under this section, and notify the applicant of the department's decision, within 60 days of receipt of the application. If the department denies an application for a permit under this section, the department shall notify the applicant of reasons for the denial.
A permit issued under this section may not authorize trimming or removal of vegetation located within a municipality and within 10 feet of the nearest edge of the highway pavement without prior approval for the trimming or removal from the municipality.
A permit issued under this section may not authorize the permittee to clear-cut any highway right-of-way. The permit authorizes the permittee to trim or remove only the vegetation specified in the permit, or only vegetation within the area of the right-of-way specified in the permit, in accordance with the terms of the permit. All trimming of vegetation authorized under a permit shall be performed in compliance with applicable standards of the American National Standards Institute, but if the trimming cannot be accomplished in compliance with these standards, the vegetation may be removed as provided in sub. (5)
All trimming and removal of vegetation under a permit issued under sub. (2)
shall be conducted within the hours of the day and days of the week specified by the department in the permit.
A permit issued under this section may not authorize the permittee to trim or remove vegetation in the median of a divided highway.
Each permit issued under this section shall authorize the permittee to employ 3rd-party contractors, including any arborist or landscape contractor, to perform work authorized under the permit. Each permit issued under this section shall require the permittee to retain a certified arborist for the purposes specified in sub. (5) (d)
. A permittee shall be responsible for any such work performed by a contractor on behalf of the permittee that is not authorized by the permit as if the work were performed directly by the permittee.
Each permit issued under this section shall require a permittee that removes any tree with a diameter of 2 inches or more as measured at breast height to compensate the department for all such trees removed, in compliance with the requirements under pars. (d)
Each permit issued under this section shall require a permittee that removes vegetation to also remove the vegetation's stump, to grade level, and to dispose of all vegetation removed, including the stump, at a location away from the highway right-of-way.
For each permit issued under sub. (2)
, a certified arborist retained by the permittee shall determine the number of trees with a diameter of 2 inches or more, as measured at breast height, that are to be removed.
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.
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.
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)
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.
The department shall have authority to supervise and determine how the work authorized under a permit issued under this section is carried out.
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.
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.
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
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.
In this section:
“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.
“Illegal junkyard" means a junkyard which is established, expanded or maintained in violation of any statute or rule promulgated thereunder or local ordinance.
“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:
Agricultural, forestry, ranching, grazing, farming and similar activities, including, but not limited to wayside fresh produce stands.
Activities normally or regularly in operation less than 3 months of the year.
Activities not visible from the main-traveled way.
Activities more than 300 feet from the nearest edge of the right-of-way.
Activities conducted in structures which are principally used for residential purposes.
“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.
“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.
“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.
“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.
“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.
“Screened" means hidden from view in a manner compatible with the surrounding environment.
“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.
“Zoned" includes the establishment of districts without restrictions on use.
“Zoned industrial area" means any area zoned industrial by a state law or local ordinance.
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:
Those which are not visible from the main-traveled way of an interstate or primary highway.
Those which are screened so as not to be visible from the main-traveled way of an interstate or primary highway.
Those which are located in a zoned or unzoned industrial area.
Nonconforming junkyards; screening; removal. 84.31(4)(a)
A nonconforming junkyard is any junkyard which:
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)
Is lawfully established on or after June 11, 1976, but which subsequently does not comply with this section or rules adopted under this section.
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.
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.
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.
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)
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
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.
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:
Petition a court of appropriate jurisdiction to, and such court shall, issue an order compelling compliance.
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.
Request the district attorney to commence an action to collect the forfeiture under par. (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.
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.
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.