62.231  Zoning of wetlands in shorelands.

 (1)  Definitions.  As used in this section:

 (a)  "Shorelands" has the meaning specified under s. 59.692(1)(b).

 (b)  "Wetlands" has the meaning specified under s. 23.32(1).

 (2)  Filled wetlands.  Any wetlands which are filled prior to the date on which a city receives a final wetlands map from the department of natural resources in a manner which affects their characteristics as wetlands are filled wetlands and not subject to an ordinance adopted under this section.

 (2m)  Certain wetlands on landward side of an established bulkhead line.  Any wetlands on the landward side of a bulkhead line, established by the city under s. 30.11 prior to May 7, 1982, and between that bulkhead line and the ordinary high-water mark are exempt wetlands and not subject to an ordinance adopted under this section.

 (3)  Adoption of ordinance.  To effect the purposes of s. 281.31 and to promote the public health, safety and general welfare, each city shall zone by ordinance all unfilled wetlands of 5 acres or more which are shown on the final wetland inventory maps prepared by the department of natural resources for the city under s. 23.32, which are located in any shorelands and which are within its incorporated area.  A city may zone by ordinance any unfilled wetlands which are within its incorporated area at any time.

 (4)  City planning.

(a)  Powers and procedures.  Except as provided under sub. (5), s. 62.23 applies to ordinances and amendments enacted under this section.

(b)  Impact on other zoning ordinances.  If a city ordinance enacted under s. 62.23 affecting wetlands in shorelands is more restrictive than an ordinance enacted under this section affecting the same lands, it continues to be effective in all respects to the extent of the greater restrictions, but not otherwise.

(5)  Repair and expansion of existing structures permitted.  Notwithstanding s. 62.23(7)(h), an ordinance adopted under this section may not prohibit the repair, reconstruction, renovation, remodeling or expansion of a nonconforming structure in existence on the effective date of an ordinance adopted under this section or any environmental control facility in existence on May 7, 1982 related to that structure.

(6)  Failure to adopt ordinance.  If any city does not adopt an ordinance required under sub. (3) within 6 months after receipt of final wetland inventory maps prepared by the department of natural resources for the city under s. 23.32, or if the department of natural resources, after notice and hearing, determines that a city adopted an ordinance which fails to meet reasonable minimum standards in accomplishing the shoreland protection objectives of s. 281.31(1), the department of natural resources shall adopt an ordinance for the city.  As far as applicable, the procedures set forth in s. 87.30 apply to this subsection.

(6m)  Certain amendments to ordinances.  For an amendment to an ordinance enacted under this section that affects an activity that meets all of the requirements under s. 281.165(2) or (3)(a), the department of natural resources may not proceed under sub. (6), or otherwise review the amendment, to determine whether the ordinance, as amended, fails to meet reasonable minimum standards.

History:  1981 c. 330, 391;  1995 a. 201;  1995 a. 227;  1999 a. 9.

Decisions:

The legal standard of unnecessary hardship requires that the property owner demonstrate that without a variance there is no reasonable use for the property.  When the property owner has a reasonable use for the property, the statue takes precedence and the variance should be denied.  State v. Kenosha County Board of Adjustment, 218 Wis. 2d 396, 577 N.W.2d 813 (1998).

The burden is on the applicant for a variance to demonstrate through evidence that without the variance that he or she is prevented from enjoying any reasonable use of the property.  State ex rel. Spinner v. Kenosha County Board of Adjustment, 223 Wis. 2d 99, 588 N.W.2d 662 (Ct. App. 1998).  

62.234  Construction site erosion control and storm water management zoning.

(1)  Definition.  As used in this section, "department" means the department of natural resources.

(2)  Authority to enact ordinance.  To effect the purposes of s. 281.33 and to promote the public health, safety and general welfare, a city may enact a zoning ordinance, that is applicable to all of its incorporated area, for construction site erosion control at sites where the construction activities do not include the construction of a building and for storm water management.  This ordinance may be enacted separately from ordinances enacted under s. 62.23.

(4)  Applicability of city zoning provisions.

(a)  Except as otherwise specified in this section, s. 62.23 applies to any ordinance or amendment to an ordinance enacted under this section.

(b)  Variances and appeals regarding construction site erosion control or storm water management regulations under this section are to be determined by the board of appeals for that city.  Procedures under s. 62.23(7)(e) apply to these determinations.

(c)  An ordinance enacted under this section supersedes all provisions of an ordinance enacted under s. 62.23 that relate to construction site erosion control at sites where the construction activities do not include the construction of a building or to storm water management regulation.

(5)  Applicability of comprehensive zoning plan or general zoning ordinance.  Ordinances enacted under this section shall accord and be consistent with any comprehensive zoning plan or general zoning ordinance applicable to the enacting cities, so far as practicable.

(6)  Applicability of local subdivision regulation.  All powers granted to a city under s. 236.45 may be exercised by it with respect to construction site erosion control at sites where the construction activities do not include the construction of a building or with respect to storm water management regulation, if the city has or provides a planning commission or agency.

(7)  Applicability to local governments and agencies.  An ordinance enacted under this section is applicable to activities conducted by a unit of local government and an agency of that unit of government.  An ordinance enacted under this section is not applicable to activities conducted by an agency, as defined under s. 227.01(1) but also including the office of district attorney, which is subject to the state plan promulgated or a memorandum of understanding entered into under s. 281.33(2).

(8)  Intergovernmental cooperation.

(a)  Except as provided in par. (c), s. 66.0301 applies to this section, but for the purposes of this section any agreement under s. 66.0301 shall be effected by ordinance.

(b)  If a city is served by a regional planning commission under s. 66.0309 and if the commission consents, the city may empower the commission by ordinance to administer the ordinance enacted under this section throughout the city, whether or not the area otherwise served by the commission includes all of that city.

(c)  If a city is served by the Dane County Lakes and Watershed Commission, and if the commission consents, the city may empower the commission by ordinance to administer the ordinance enacted under this section throughout the city, whether or not the area otherwise served by the commission includes all of that city.

Note: Section 66.0301 does not apply to this paragraph.

History:  1983 a. 416;  1983 a. 538 s. 271;  1989 a. 31, 324;  1993 a. 16;  1995 a. 227;  1999 a. 150 s. 672. 

Chapter 66            General Municipal Law

66.0105  Jurisdiction of overlapping extraterritorial powers.  The extraterritorial powers granted to cities and villages by statute, including ss. 30.745, 62.23(2) and (7a), 66.0415, 236.10 and 254.57, may not be exercised within the corporate limits of another city or village.  Wherever these statutory extraterritorial powers overlap, the jurisdiction over the overlapping area shall be divided on a line all points of which are equidistant from the boundaries of each municipality concerned so that not more than one municipality shall exercise power over any area.

History:  1981 c. 222 s. 2;  1993 a. 27;  1999 a. 150 s. 368; Stats. 1999 s. 66.0105.

66.0309 Creation, organization, powers and duties of regional planning commissions.

(1) Definitions.  In this section:

(a)  "Governing body" means the town, village or county board or the legislative body of a city.

(b)  "Local governmental units" or "local units" means cities, villages, towns and counties.

(c)  "Population" means the population of a local unit as shown by the last federal census or by any subsequent population estimate under s. 16.96.

(2)  Creation of regional planning commissions.

(a)  A regional planning commission may be created by the governor, or a state agency or official as the governor designates, upon petition in the form of a resolution by the governing body of a local governmental unit and the holding of a public hearing on the petition.  If the petition is joined in by the governing bodies of all the local units in the proposed region, including the county board of any county, part or all of which is in the proposed region, the governor may dispense with the hearing.  Notice of any public hearing shall be given by the governor by mail at least 10 days in advance to the clerk of each local unit in the proposed region.

(b)  If the governor finds that there is a need for a regional planning commission, and if the governing bodies of local units within the proposed region which include over 50% of the population and equalized assessed valuation of the region as determined by the last previous equalization of assessments, consent to the formation of such regional planning commission, the governor may create the regional planning commission by order and designate the area and boundaries of the commission's jurisdiction taking into account the elements of homogeneity based upon, but not limited to, such considerations as topographic and geographic conformations, extent of urban development, the existence of special or acute agricultural, forestry, conservation or other rural problems, uniformity of social or economic interests and values, park and recreational needs, civil defense, or the existence of physical, social and economic problems of a regional character.

(c)  Territory included within a regional planning commission that consists of one county or less in area also may be included in the creation of a multicounty regional planning commission.  The creation does not require that the existing regional planning commission consisting of one county or less in area be terminated or altered, but upon creation of the multicounty commission, the existing commission shall cease to have authority to make charges upon participating local governmental units under sub. (14) and shall adopt a name other than "regional planning commission".

(2m)  Limitation on territory.  No regional planning commission may be created to include territory located in 3 or more uniform state districts as established by 1970 executive order 22 dated August 24, 1970.  Any existing regional planning commission which includes territory located in 3 or more uniform state districts shall be dissolved no later than December 31, 1972.

(3)  Composition of regional planning commissions.

(a)  The membership composition of a regional planning commission which includes a city of the first class shall be as follows:

1.  One member appointed by the county board of each county, part or all of which is initially within the region or is later added.

2.  Two members from each participating county shall be appointed by the governor.  At least one appointee shall be a person, selected from a list of 2 or more persons nominated by the county board, who has experience in local government in elective or appointive offices or who is professionally engaged in advising local governmental units in the fields of land-use planning, transportation, law, finance, engineering or recreation and natural resources development.  The governor in making appointments under this subdivision shall give due weight to the place of residence of the appointees within the various counties encompassed by the region.

3.  The secretary of commerce or a designee shall serve as a nonvoting member of each regional planning commission organized under this section.

(b)  For any region which does not include a 1st class city, the membership composition of a regional planning commission shall be in accordance with resolutions approved by the governing bodies of a majority of the local units in the region, and these units shall have in the aggregate at least half the population of the region.  For the purposes of this determination a county, part or all of which is within the region, shall be counted as a local unit, but the population of an approving county shall not be counted.  In the absence of the necessary approval by the local units, the membership composition of a commission shall be determined as follows:

1.  For regions which include land in more than one county par. (a) shall apply.

2.  For regions that include land in only one county, the commission shall consist of the following:

a.  Three members appointed by the county board.

b.  Three members appointed by the governing body of each city, village and town in the region having a population of 20,000 or more.  If there is no city, village or town having a population of 20,000 or more, the governor shall appoint one member from each city, village or town with a population of 5,000 or more within the region.  All governor appointees under this subd. 2. b. shall be persons who have experience in local government in elective or appointive offices or who are professionally engaged in advising local governmental units in the fields of land-use planning, transportation, law, finance or engineering.

c.  Three members appointed at large by the governor.  All governor appointees under this subd. 2. c. shall be persons who have experience in local government in elective or appointive offices or who are professionally engaged in advising local governmental units in the fields of land-use planning, transportation, law, finance or engineering.

(c)  Terms of office for regional planning commission members shall be as follows:

1.  If the composition of the commission is approved by local units under par. (b), the terms shall be as prescribed in the resolutions of approval.

2.  For members of all other commissions the term is 6 years after the initial term.  At the first meeting of the commission it shall be determined by lot which of the initial members shall have 2, 4 and 6-year terms, respectively, and each group shall be as nearly equal as may be.

(d)  All regional planning commission members shall be electors of the state and reside within the region.

(4)  Compensation; expenses.  A per diem compensation may be paid members of regional planning commissions.  This shall not affect in any way remuneration received by any state or local official who, in addition to serving as a state or local official, serves also as a member of the regional planning commission.  All members may be reimbursed for actual expenses incurred as members of the commission in carrying out the work of the commission.

(5)  Chairperson; rules of procedure; records.  Each regional planning commission shall elect its own chairperson and executive committee and shall establish its own rules of procedure, and may create and fill other offices as it may determine necessary.  The commission may authorize the executive committee to act for it on all matters under rules adopted by it.  The commission shall meet at least once each year.  It shall keep a record of its resolutions, transactions, findings and determinations, which shall be a public record.

(6)  Director and employees.  The regional planning commission shall appoint a director and such employees as it deems necessary for its work and may hire such experts and consultants for part-time or full-time service as may be necessary for the prosecution of its responsibilities.

(7)  Advisory committees or councils; appointment.  The regional planning commission may appoint advisory committees or councils whose membership may consist of individuals whose experience, training or interest in the program may qualify them to lend valuable assistance to the regional planning commission by acting in an advisory capacity in consulting with the regional planning commission on all phases of the commission's program.  Members of advisory bodies shall receive no compensation for their services but may be reimbursed for actual expenses incurred in the performance of their duties.

(8)  Functions, general and special.

(a)        1.  The regional planning commission may take any of the following actions: a.  Conduct all types of research studies, collect and analyze data, prepare maps, charts and tables, and conduct all necessary studies for the accomplishment of its other duties. b.  Consistent with the elements specified in s. 66.1001, make plans for the physical, social and economic development of the region, and, consistent with the elements specified in s. 66.1001, adopt by resolution any plan or the portion of any plan so prepared as its official recommendation for the development of the region. c.  Publicize and advertise its purposes, objectives and findings, and distribute reports concerning these items. d.  Provide advisory services on regional planning problems to the local government units within the region and to other public and private agencies in matters relative to its functions and objectives, and may act as a coordinating agency for programs and activities of local units and agencies as they relate to its objectives.

2.  All public officials shall, upon request, furnish to the regional planning commission, within a reasonable time, available information as it requires for its work.  In general, the regional planning commission shall have all powers necessary to enable it to perform its functions and promote regional planning.  The functions of the regional planning commission shall be solely advisory to the local governments and local government officials comprising the region.

(b)  The regional planning commission shall make an annual report of its activities to the legislative bodies of the local governmental units within the region, and shall submit 2 copies of the report to the legislative reference bureau.

(9)  Preparation of master plan for region.  The regional planning commission shall have the function and duty of making and adopting a master plan for the physical development of the region.  The master plan, with the accompanying maps, plats, charts, programs and descriptive and explanatory matter, shall show the commission's recommendations for physical development and shall contain at least the elements described in s. 66.1001.  The regional planning commission may amend, extend or add to the master plan or carry any part or subject matter into greater detail.

(10)  Adoption of master plan for region.  The master plan shall be made with the general purpose of guiding and accomplishing a coordinated, adjusted and harmonious development of the region which will, in accordance with existing and future needs, best promote public health, safety, morals, order, convenience, prosperity or the general welfare, as well as efficiency and economy in the process of development.  The regional planning commission may adopt the master plan as a whole by a single resolution, or, as the work of making the whole master plan progresses, may by resolution adopt a part or parts of the master plan, any part to correspond with one or more of the elements specified in s. 66.1001.  The resolution shall refer expressly to the maps, plats, charts, programs and descriptive and explanatory matter, and other matters intended by the regional planning commission to form the whole or any part of the plan, and the action taken shall be recorded on the adopted plan or part of the adopted plan by the identifying signature of the chairperson of the regional planning commission and a copy of the plan or part of the adopted plan shall be certified to the legislative bodies of the local governmental units within the region.  The purpose and effect of adoption of the master plan shall be solely to aid the regional planning commission and the local governments and local government officials comprising the region in the performance of their functions and duties.

(11)  Matters referred to regional planning commission.  The officer or public body of a local governmental unit within the region having final authority may refer to the regional planning commission, for its consideration and report, the location or acquisition of land for any of the items or facilities which are included in the adopted regional master plan.  Within 20 days after the matter is referred to the regional planning commission or a longer period as may be stipulated by the referring officer or public body, the commission shall report its recommendations to the referring officer or public body.  The report and recommendations of the commission shall be advisory only.  A state agency may authorize the regional planning commission with the consent of the commission to act for the agency in approving, examining or reviewing plats, under s. 236.12(2)(a).  A regional planning commission authorized by a local unit on November 1, 1980 to act for the local unit in approving plats may continue to so act until the commission withdraws its consent or the local unit its approval.  A local unit may authorize a regional planning commission, with the consent of the commission, to conduct an advisory review of plats.

(12)  Local adoption of plans of regional commission; contracts.

(a)  Any local governmental unit within the region may adopt all or any portion of the plans and other programs prepared and adopted by the regional planning commission.

(b)  In addition to the other powers specified in this section a regional planning commission may enter into a contract with any local unit within the region under s. 66.0301 to make studies and offer advice on any of the following topics:

1.  Land use, thoroughfares, community facilities, and public improvements.

2.  Encouragement of economic and other developments.

(13)  Aid from governmental agencies; gifts and grants.  Aid, in any form, for the purpose of accomplishing the objectives of the regional planning commission may be accepted from all governmental agencies whether local, state or federal, if the conditions under which aid is furnished are not incompatible with the other provisions of this section.  The regional planning commission may accept gifts and grants from public or private individuals or agencies if the conditions under which the grants are made are in accordance with the accomplishment of the objectives of the regional planning commission.

(14)  Budget and service charges.

(a)  For the purpose of providing funds to meet the expenses of a regional planning commission, the commission shall annually on or before October 1 prepare and approve a budget reflecting the cost of its operation and services to the local governmental units within the region.  The amount of the budget charged to any local governmental unit shall be in the proportion of the equalized value for tax purposes of the land, buildings and other improvements on the land of the local governmental unit, within the region, to the total equalized value within the region.  The amount charged to a local governmental unit shall not exceed .003 per cent of equalized value under its jurisdiction and within the region, unless the governing body of the unit expressly approves the amount in excess of that percentage.  All tax or other revenues raised for a regional planning commission shall be forwarded by the treasurer of the local unit to the treasurer of the commission on written order of the treasurer of the commission.

(b)  Where one-half or more of the land within a county is within a region, the chairperson of the regional planning commission shall certify to the county clerk, before August 1 of each year, the proportionate amount of the budget charged to the county for the services of the regional planning commission.  Unless the county board finds the charges unreasonable, and institutes the procedures under par. (d), it shall take legislative action as necessary to provide the funds called for in the certified statement.

(c)  Where less than one-half of the land within a county is within a region, the chairperson of the regional planning commission shall before August 1 of each year certify to the clerk of the local governmental unit involved a statement of the proportionate charges assessed to that local governmental unit.  The clerk shall extend the amount shown in the statement as a charge on the tax roll under s. 281.43(2).

(d)  If any local governmental unit makes a finding by resolution within 20 days of the certification to its clerk that the charges of the regional planning commission are unreasonable, it may take any of the following actions:

1.  Submit the issue to arbitration by 3 arbitrators, one to be chosen by the local governmental unit, one to be chosen by the regional planning commission and the third to be chosen by the first 2 arbitrators.  If the arbitrators are unable to agree, the vote of 2 shall be the decision.  They may affirm or modify the report, and shall submit their decision in writing to the local governmental unit and the regional planning commission within 30 days of their appointment unless the time be extended by agreement of the commission and the local governmental unit.  The decision shall be binding.  Election to arbitrate shall be waiver of right to proceed by action.  Two-thirds of the expenses of arbitration shall be paid by the party requesting arbitration and the balance by the other.

2.  If a local governmental unit does not elect to arbitrate, it may institute a proceeding for judicial review under ch. 227.

(e)  By agreement between the regional planning commission and a local governmental unit, special compensation to the commission for unique and special services provided to the local governmental unit may be arranged.

(f)  The regional planning commission may accept from any local governmental unit supplies, the use of equipment, facilities and office space and the services of personnel as part or all of the financial support assessed against the local governmental unit.

(15)  Dissolution of regional planning commissions.  Upon receipt of certified copies of resolutions recommending the dissolution of a regional planning commission adopted by the governing bodies of a majority of the local units in the region, including the county board of any county, part or all of which is within the region, and upon a finding that all outstanding indebtedness of the commission has been paid and all unexpended funds returned to the local units which supplied them, or that adequate provision has been made for the outstanding indebtedness or unexpended funds, the governor shall issue a certificate of dissolution of the commission which shall then cease to exist.

(16)  Withdrawal.  Within 90 days of the issuance by the governor of an order creating a regional planning commission, any local unit of government within the boundaries of the region may withdraw from the jurisdiction of the commission by a two-thirds vote of the members-elect of the governing body after a public hearing.  Notice of withdrawal shall be given to the commission by registered mail not more than 3 nor less than 2 weeks before withdrawal and by publication of a class 2 notice, under ch. 985.  A local unit may withdraw from a regional planning commission at the end of any fiscal year by a two-thirds vote of the members-elect of the governing body taken at least 6 months before the effective date of the withdrawal.  However, the local unit shall be responsible for its allocated share of the contractual obligations of the regional planning commission continuing beyond the effective date of its withdrawal.

History:  1971 c. 225, 227;  1977 c. 29, 187, 418;  1979 c. 110, 175, 248;  1979 c. 361 s. 112;  1991 a. 316;  1993 a. 184, 246;  1995 a. 27 s. 9116(5);  1995 a. 225, 227;  1999 a. 9;  1999 a. 150 ss. 608 to 612; Stats. 1999 s. 66.0309.

Decisions:

Withdrawal from the commission by a municipality has no effect on the county's authority to contract with the commission under this section.  Tanck v. Dane County Regional Planning Commission, 81 Wis. 2d 76, 260 N.W.2d 18.

With respect to claims of contractual interference and civil conspiracy, a plan commission is immune from suit.  Busse v. Dane County Regional Planning Comm. 181 Wis. 2d 527, 510 N.W.2d 136 (Ct. App. 1993).

The representation provisions of sub. (3) do not violate the one man, one vote principle.  62 Atty. Gen. 136.

Appointments to regional planning commissions on behalf of a county, under sub. (3)(b), are made by the county board unless the county has a county executive or a county administrator, in which event such appointments are made by that county officer under the authority set forth in either s. 59.032(2)(c) or 59.033(2)(c).  62 Atty. Gen. 197.

Commission employees have indemnity protection under s. 895.46(1)(a).  77 Atty. Gen. 142.

The boundaries of existing multicounty regional planning commissions may only be altered following their dissolution under sub. (15).  81 Atty. Gen. 70.

66.0401  Regulation relating to solar and wind energy systems.

(1)  Authority to restrict systems limited.  No county, city, town or village may place any restriction, either directly or in effect, on the installation or use of a solar energy system, as defined in s. 13.48(2)(h)1.g., or a wind energy system, as defined in s. 66.0415(1)(m) [s. 66.0403(1)(m)], unless the restriction satisfies one of the following conditions:

Note: The correct cross-reference is shown in brackets.  Corrective legislation is pending.

(a)  Serves to preserve or protect the public health or safety.

(b)  Does not significantly increase the cost of the system or significantly decrease its efficiency.

(c)  Allows for an alternative system of comparable cost and efficiency.

(2)  Authority to require trimming of blocking vegetation.  A county, city, village or town may provide by ordinance for the trimming of vegetation which blocks solar energy, as defined in s. 66.0415(1)(k) [s. 66.0403(1)(k)], from a collector surface, as defined under s. 700.41(2)(b), or which blocks wind from a wind energy system, as defined in s. 66.0415(1)(m) [s. 66.0403(1)(m)].  The ordinance may include, but is not limited to, a designation of responsibility for the costs of the trimming.  The ordinance may not require the trimming of vegetation that was planted by the owner or occupant of the property on which the vegetation is located before the installation of the solar or wind energy system.

Note: The correct cross-reference is shown in brackets.  Corrective legislation is pending.

History:  1981 c. 354; 1981 c. 391 s. 210; 1993 a. 414; 1999 a. 150 ss. 78, 79, 84; Stats. 1999 s. 66.0401.

66.0617  Impact fees.

(1)  Definitions.  In this section:

(a)  "Capital costs" means the capital costs to construct, expand or improve public facilities, including the cost of land, and including legal, engineering and design costs to construct, expand or improve public facilities, except that not more than 10% of capital costs may consist of legal, engineering and design costs unless the political subdivision can demonstrate that its legal, engineering and design costs which relate directly to the public improvement for which the impact fees were imposed exceed 10% of capital costs.  "Capital costs" does not include other noncapital costs to construct, expand or improve public facilities or the costs of equipment to construct, expand or improve public facilities.

(b)  "Developer" means a person that constructs or creates a land development.

(c)  "Impact fees" means cash contributions, contributions of land or interests in land or any other items of value that are imposed on a developer by a political subdivision under this section.

(d)  "Land development" means the construction or modification of improvements to real property that creates additional residential dwelling units within a political subdivision or that results in nonresidential uses that create a need for new, expanded or improved public facilities within a political subdivision.

(e)  "Political subdivision" means a city, village, town or county.

(f)  "Public facilities" means highways, as defined in s. 340.01(22), and other transportation facilities, traffic control devices, facilities for collecting and treating sewage, facilities for collecting and treating storm and surface waters, facilities for pumping, storing and distributing water, parks, playgrounds and other recreational facilities, solid waste and recycling facilities, fire protection facilities, law enforcement facilities, emergency medical facilities and libraries except that, with regard to counties, "public facilities" does not include highways, as defined in s. 340.01(22), other transportation facilities or traffic control devices.  "Public facilities" does not include facilities owned by a school district.

(g)  "Service area" means a geographic area delineated by a political subdivision within which there are public facilities.

(h)  "Service standard" means a certain quantity or quality of public facilities relative to a certain number of persons, parcels of land or other appropriate measure, as specified by the political subdivision.

(2)  General.

(a)  Subject to par. (am), a political subdivision may enact an ordinance under this section that imposes impact fees on developers to pay for the capital costs that are necessary to accommodate land development.

(am)  No county may impose an impact fee under this section to recover costs related to transportation projects.

(b)  Subject to par. (c), this section does not prohibit or limit the authority of a political subdivision to finance public facilities by any other means authorized by law, except that the amount of an impact fee imposed by a political subdivision shall be reduced, under sub. (6)(d), to compensate for any other costs of public facilities imposed by the political subdivision on developers to provide or pay for capital costs.

(c)  Beginning on May 1, 1995, a political subdivision may impose and collect impact fees only under this section.

(3)  Public hearing; notice.  Before enacting an ordinance that imposes impact fees, or amending an existing ordinance that imposes impact fees, a political subdivision shall hold a public hearing on the proposed ordinance or amendment.  Notice of the public hearing shall be published as a class 1 notice under ch. 985, and shall specify where a copy of the proposed ordinance or amendment and the public facilities needs assessment may be obtained.

(4)  Public facilities needs assessment.

(a)  Before enacting an ordinance that imposes impact fees or amending an ordinance that imposes impact fees by revising the amount of the fee or altering the public facilities for which impact fees may be imposed, a political subdivision shall prepare a needs assessment for the public facilities for which it is anticipated that impact fees may be imposed.  The public facilities needs assessment shall include, but not be limited to, the following:

1.  An inventory of existing public facilities, including an identification of any existing deficiencies in the quantity or quality of those public facilities, for which it is anticipated that an impact fee may be imposed.

2.  An identification of the new public facilities, or improvements or expansions of existing public facilities, that will be required because of land development for which it is anticipated that impact fees may be imposed.  This identification shall be based on explicitly identified service areas and service standards.

3.  A detailed estimate of the capital costs of providing the new public facilities or the improvements or expansions in existing public facilities identified in subd. 2., including an estimate of the effect of recovering these capital costs through impact fees on the availability of affordable housing within the political subdivision.

(b)  A public facilities needs assessment or revised public facilities needs assessment that is prepared under this subsection shall be available for public inspection and copying in the office of the clerk of the political subdivision at least 20 days before the hearing under sub. (3).

(5)  Differential fees, impact fee zones.

(a)  An ordinance enacted under this section may impose different impact fees on different types of land development.

(b)  An ordinance enacted under this section may delineate geographically defined zones within the political subdivision and may impose impact fees on land development in a zone that differ from impact fees imposed on land development in other zones within the political subdivision.  The public facilities needs assessment that is required under sub. (4) shall explicitly identify the differences, such as land development or the need for those public facilities, which justify the differences between zones in the amount of impact fees imposed.

(6)  Standards for impact fees.  Impact fees imposed by an ordinance enacted under this section:

(a)  Shall bear a rational relationship to the need for new, expanded or improved public facilities that are required to serve land development.

(b)  May not exceed the proportionate share of the capital costs that are required to serve land development, as compared to existing uses of land within the political subdivision.

(c)  Shall be based upon actual capital costs or reasonable estimates of capital costs for new, expanded or improved public facilities.

(d)  Shall be reduced to compensate for other capital costs imposed by the political subdivision with respect to land development to provide or pay for public facilities, including special assessments, special charges, land dedications or fees in lieu of land dedications under ch. 236 or any other items of value.

(e)  Shall be reduced to compensate for moneys received from the federal or state government specifically to provide or pay for the public facilities for which the impact fees are imposed.

(f)  May not include amounts necessary to address existing deficiencies in public facilities.

(g)  Shall be payable by the developer to the political subdivision, either in full or in instalment payments that are approved by the political subdivision, before a building permit may be issued or other required approval may be given by the political subdivision.

(7)  Low-cost housing.  An ordinance enacted under this section may provide for an exemption from, or a reduction in the amount of, impact fees on land development that provides low-cost housing, except that no amount of an impact fee for which an exemption or reduction is provided under this subsection may be shifted to any other development in the land development in which the low-cost housing is located or to any other land development in the political subdivision.

(8)  Requirements for impact fee revenues.  Revenues from impact fees shall be placed in a segregated, interest-bearing account and shall be accounted for separately from the other funds of the political subdivision.  Impact fee revenues and interest earned on impact fee revenues may be expended only for capital costs for which the impact fees were imposed.

(9)  Refund of impact fees.  An ordinance enacted under this section shall specify that impact fees that are imposed and collected by a political subdivision but are not used within a reasonable period of time after they are collected to pay the capital costs for which they were imposed shall be refunded to the current owner of the property with respect to which the impact fees were imposed.  The ordinance shall specify, by type of public facility, reasonable time periods within which impact fees must be spent or refunded under this subsection.  In determining the length of the time periods under the ordinance, a political subdivision shall consider what are appropriate planning and financing periods for the particular types of public facilities for which the impact fees are imposed.

(10)  Appeal.  A political subdivision that enacts an impact fee ordinance under this section shall, by ordinance, specify a procedure under which a developer upon whom an impact fee is imposed has the right to contest the amount, collection or use of the impact fee to the governing body of the political subdivision.

History:  1993 a. 305;  1997 a. 27;  1999 a. 150 s. 524; Stats. 1999 s. 66.0617. 

Decisions:

Rough Proportionality and Wisconsin's New Impact Fee.  Ishikawa.  Wis. Law. March 1995.

66.1001  Comprehensive planning.

(1)  Definitions.  In this section:

(a)  "Comprehensive plan" means:

1.  For a county, a development plan that is prepared or amended under s. 59.69(2) or (3).

2.  For a city or a village, or for a town that exercises village powers under s. 60.22(3), a master plan that is adopted or amended under s. 62.23(2) or (3).

3.  For a regional planning commission, a master plan that is adopted or amended under s. 66.0309(8), (9) or (10).

(b)  "Local governmental unit" means a city, village, town, county or regional planning commission that may adopt, prepare or amend a comprehensive plan.

(2)  Contents of a comprehensive plan.  A comprehensive plan shall contain all of the following elements:

(a)  Issues and opportunities element.  Background information on the local governmental unit and a statement of overall objectives, policies, goals and programs of the local governmental unit to guide the future development and redevelopment of the local governmental unit over a 20-year planning period.  Background information shall include population, household and employment forecasts that the local governmental unit uses in developing its comprehensive plan, and demographic trends, age distribution, educational levels, income levels and employment characteristics that exist within the local governmental unit.

(b)  Housing element.  A compilation of objectives, policies, goals, maps and programs of the local governmental unit to provide an adequate housing supply that meets existing and forecasted housing demand in the local governmental unit.  The element shall assess the age, structural, value and occupancy characteristics of the local governmental unit's housing stock.  The element shall also identify specific policies and programs that promote the development of housing for residents of the local governmental unit and provide a range of housing choices that meet the needs of persons of all income levels and of all age groups and persons with special needs, policies and programs that promote the availability of land for the development or redevelopment of low-income and moderate-income housing, and policies and programs to maintain or rehabilitate the local governmental unit's existing housing stock.

(c)  Transportation element.  A compilation of objectives, policies, goals, maps and programs to guide the future development of the various modes of transportation, including highways, transit, transportation systems for persons with disabilities, bicycles, walking, railroads, air transportation, trucking and water transportation.  The element shall compare the local governmental unit's objectives, policies, goals and programs to state and regional transportation plans.  The element shall also identify highways within the local governmental unit by function and incorporate state, regional and other applicable transportation plans, including transportation corridor plans, county highway functional and jurisdictional studies, urban area and rural area transportation plans, airport master plans and rail plans that apply in the local governmental unit.

(d)  Utilities and community facilities element.  A compilation of objectives, policies, goals, maps and programs to guide the future development of utilities and community facilities in the local governmental unit such as sanitary sewer service, storm water management, water supply, solid waste disposal, on-site wastewater treatment technologies, recycling facilities, parks, telecommunications facilities, power-generating plants and transmission lines, cemeteries, health care facilities, child care facilities and other public facilities, such as police, fire and rescue facilities, libraries, schools and other governmental facilities.  The element shall describe the location, use and capacity of existing public utilities and community facilities that serve the local governmental unit, shall include an approximate timetable that forecasts the need in the local governmental unit to expand or rehabilitate existing utilities and facilities or to create new utilities and facilities and shall assess future needs for government services in the local governmental unit that are related to such utilities and facilities.

(e)  Agricultural, natural and cultural resources element.  A compilation of objectives, policies, goals, maps and programs for the conservation, and promotion of the effective management, of natural resources such as groundwater, forests, productive agricultural areas, environmentally sensitive areas, threatened and endangered species, stream corridors, surface water, floodplains, wetlands, wildlife habitat, metallic and nonmetallic mineral resources, parks, open spaces, historical and cultural resources, community design, recreational resources and other natural resources.

(f)  Economic development element.  A compilation of objectives, policies, goals, maps and programs to promote the stabilization, retention or expansion, of the economic base and quality employment opportunities in the local governmental unit, including an analysis of the labor force and economic base of the local governmental unit.  The element shall assess categories or particular types of new businesses and industries that are desired by the local governmental unit.  The element shall assess the local governmental unit's strengths and weaknesses with respect to attracting and retaining businesses and industries, and shall designate an adequate number of sites for such businesses and industries.  The element shall also evaluate and promote the use of environmentally contaminated sites for commercial or industrial uses.  The element shall also identify county, regional and state economic development programs that apply to the local governmental unit.

(g)  Intergovernmental cooperation element.  A compilation of objectives, policies, goals, maps and programs for joint planning and decision making with other jurisdictions, including school districts and adjacent local governmental units, for siting and building public facilities and sharing public services.  The element shall analyze the relationship of the local governmental unit to school districts and adjacent local governmental units, and to the region, the state and other governmental units.  The element shall incorporate any plans or agreements to which the local governmental unit is a party under s. 66.0301, 66.0307 or 66.0309.  The element shall identify existing or potential conflicts between the local governmental unit and other governmental units that are specified in this paragraph and describe processes to resolve such conflicts.

(h)  Land-use element.  A compilation of objectives, policies, goals, maps and programs to guide the future development and redevelopment of public and private property.  The element shall contain a listing of the amount, type, intensity and net density of existing uses of land in the local governmental unit, such as agricultural, residential, commercial, industrial and other public and private uses.  The element shall analyze trends in the supply, demand and price of land, opportunities for redevelopment and existing and potential land-use conflicts.  The element shall contain projections, based on the background information specified in par. (a), for 20 years, in 5-year increments, of future residential, agricultural, commercial and industrial land uses including the assumptions of net densities or other spatial assumptions upon which the projections are based.  The element shall also include a series of maps that shows current land uses and future land uses that indicate productive agricultural soils, natural limitations for building site development, floodplains, wetlands and other environmentally sensitive lands, the boundaries of areas to which services of public utilities and community facilities, as those terms are used in par. (d), will be provided in the future, consistent with the timetable described in par. (d), and the general location of future land uses by net density or other classifications.

(i)  Implementation element.  A compilation of programs and specific actions to be completed in a stated sequence, including proposed changes to any applicable zoning ordinances, official maps, sign regulations, erosion and storm water control ordinances, historic preservation ordinances, site plan regulations, design review ordinances, building codes, mechanical codes, housing codes, sanitary codes or subdivision ordinances, to implement the objectives, policies, plans and programs contained in pars. (a) to (h).  The element shall describe how each of the elements of the comprehensive plan will be integrated and made consistent with the other elements of the comprehensive plan, and shall include a mechanism to measure the local governmental unit's progress toward achieving all aspects of the comprehensive plan.  The element shall include a process for updating the comprehensive plan.  A comprehensive plan under this subsection shall be updated no less than once every 10 years.

(3)  Actions, procedures that must be consistent with comprehensive plans.  Beginning on January 1, 2010, any program or action of a local governmental unit that affects land use shall be consistent with that local governmental unit's comprehensive plan, including all of the following:

(a)  Municipal incorporation procedures under s. 66.0201, 66.0203 or 66.0215.

(b)  Annexation procedures under s. 66.0217, 66.0219 or 66.0223.

(c)  Cooperative boundary agreements entered into under s. 66.0307.

(d)  Consolidation of territory under s. 66.0229.

(e)  Detachment of territory under s. 66.0227.

(f)  Municipal boundary agreements fixed by judgment under s. 66.0225.

(g)  Official mapping established or amended under s. 62.23(6).

(h)  Local subdivision regulation under s. 236.45 or 236.46.

(i)  Extraterritorial plat review within a city's or village's extraterritorial plat approval jurisdiction, as is defined in s. 236.02(5).

(j)  County zoning ordinances enacted or amended under s. 59.69.

(k)  City or village zoning ordinances enacted or amended under s. 62.23(7).

(l)  Town zoning ordinances enacted or amended under s. 60.61 or 60.62.

(m)  An improvement of a transportation facility that is undertaken under s. 84.185.

(n)  Agricultural preservation plans that are prepared or revised under subch. IV of ch. 91.

(o)  Impact fee ordinances that are enacted or amended under s. 66.0617.

(p)  Land acquisition for recreational lands and parks under s. 23.09(20).

(q)  Zoning of shorelands or wetlands in shorelands under s. 59.692, 61.351 or 62.231.

(r)  Construction site erosion control and storm water management zoning under s. 59.693, 61.354 or 62.234.

(s)  Any other ordinance, plan or regulation of a local governmental unit that relates to land use.

(4)  Procedures for adopting comprehensive plans.  A local governmental unit shall comply with all of the following before its comprehensive plan may take effect:

(a)  The governing body of a local governmental unit shall adopt written procedures that are designed to foster public participation, including open discussion, communication programs, information services and public meetings for which advance notice has been provided, in every stage of the preparation of a comprehensive plan.  The written procedures shall provide for wide distribution of proposed, alternative or amended elements of a comprehensive plan and shall provide an opportunity for written comments on the plan to be submitted by members of the public to the governing body and for the governing body to respond to such written comments.

(b)  The plan commission or other body of a local governmental unit that is authorized to prepare or amend a comprehensive plan may recommend the adoption or amendment of a comprehensive plan only by adopting a resolution by a majority vote of the entire commission.  The vote shall be recorded in the official minutes of the plan commission or other body.  The resolution shall refer to maps and other descriptive materials that relate to one or more elements of a comprehensive plan.  One copy of an adopted comprehensive plan, or of an amendment to such a plan, shall be sent to all of the following:

1.  Every governmental body that is located in whole or in part within the boundaries of the local governmental unit.

2.  The clerk of every local governmental unit that is adjacent to the local governmental unit that is the subject of the plan that is adopted or amended as described in par. (b) (intro.).

Note: Subd. 2. is shown as affected by two acts of the 1999 legislature and as merged by the revisor under s. 13.93(2)(c).

3.  The Wisconsin land council.

4.  After September 1, 2003, the department of administration.

5.  The regional planning commission in which the local governmental unit is located.

6.  The public library that serves the area in which the local governmental unit is located.

(c)  No comprehensive plan that is recommended for adoption or amendment under par. (b) may take effect until the local governmental unit enacts an ordinance that adopts the plan or amendment.  The local governmental unit may not enact an ordinance under this paragraph unless the comprehensive plan contains all of the elements specified in sub. (2).  An ordinance may be enacted under this paragraph only by a majority vote of the members-elect, as defined in s. 59.001(2m), of the governing body.  An ordinance that is enacted under this paragraph, and the plan to which it relates, shall be filed with at least all of the entities specified under par. (b).

(d)  No local governmental unit may enact an ordinance under par. (c) unless the local governmental unit holds at least one public hearing at which the proposed ordinance is discussed.  That hearing must be preceded by a class 1 notice under ch. 985 that is published at least 30 days before the hearing is held.  The local governmental unit may also provide notice of the hearing by any other means it considers appropriate.  The class 1 notice shall contain at least the following information:

1.  The date, time and place of the hearing.

2.  A summary, which may include a map, of the proposed comprehensive plan or amendment to such a plan.

3.  The name of an individual employed by the local governmental unit who may provide additional information regarding the proposed ordinance.

4.  Information relating to where and when the proposed comprehensive plan or amendment to such a plan may be inspected before the hearing, and how a copy of the plan or amendment may be obtained.

History:  1999 a. 9, 148;  1999 a. 150 s. 74; Stats. 1999 s. 66.1001;  1999 a. 185 s. 57;  1999 a. 186 s. 42; s. 13.93(2)(c).

66.1017  Family day care homes.

(1)  In this section:

(a)  "Family day care home" means a dwelling licensed as a day care center by the department of health and family services under s. 48.65 where care is provided for not more than 8 children.

(b)  "Municipality" means a county, city, village or town.

(2)  No municipality may prevent a family day care home from being located in a zoned district in which a single-family residence is a permitted use.  No municipality may establish standards or requirements for family day care homes different from the licensing standards established under s. 48.65.  This subsection does not prevent a municipality from applying to a family day care home the zoning regulations applicable to other dwellings in the zoning district in which it is located.

History:  1983 a. 193;  1995 a. 27 s. 9126 (19);  1999 a. 150 s. 361; Stats. 1999 s. 66.1017

66.1109  Business improvement districts.

 (1)  In this section:

 (a)  "Board" means a business improvement district board appointed under sub. (3)(a).

 (b)  "Business improvement district" means an area within a municipality consisting of contiguous parcels subject to general real estate taxes, other than railroad rights-of-way, and may include railroad rights-of-way, rivers or highways continuously bounded by the parcels on at least one side.

 (c)  "Chief executive officer" means a mayor, city manager, village president or town chairperson.

 (d)  "Local legislative body" means a common council, village board of trustees or town board of supervisors.

 (e)  "Municipality" means a city, village or town.

 (f)  "Operating plan" means a plan adopted or amended under this section for the development, redevelopment, maintenance, operation and promotion of a business improvement district, including all of the following:

 1.  The special assessment method applicable to the business improvement district.

 1m.  Whether real property used exclusively for manufacturing purposes will be specially assessed.

 2.  The kind, number and location of all proposed expenditures within the business improvement district.

 3.  A description of the methods of financing all estimated expenditures and the time when related costs will be incurred.

  4.  A description of how the creation of the business improvement district promotes the orderly development of the municipality, including its relationship to any municipal master plan.

 5.  A legal opinion that subds. 1. to 4. have been complied with.

 (g)  "Planning commission" means a plan commission under s. 62.23, or if none a board of public land commissioners, or if none a planning committee of the local legislative body.

(2)  A municipality may create a business improvement district and adopt its operating plan if all of the following are met:

(a)  An owner of real property used for commercial purposes and located in the proposed business improvement district designated under par. (b) has petitioned the municipality for creation of a business improvement district.

(b)  The planning commission has designated a proposed business improvement district and adopted its proposed initial operating plan.

(c)  At least 30 days before creation of the business improvement district and adoption of its initial operating plan by the municipality, the planning commission has held a public hearing on its proposed business improvement district and initial operating plan.  Notice of the hearing shall be published as a class 2 notice under ch. 985.  Before publication, a copy of the notice together with a copy of the proposed initial operating plan and a copy of a detail map showing the boundaries of the proposed business improvement district shall be sent by certified mail to all owners of real property within the proposed business improvement district.  The notice shall state the boundaries of the proposed business improvement district and shall indicate that copies of the proposed initial operating plan are available from the planning commission on request.

(d)  Within 30 days after the hearing under par. (c), the owners of property to be assessed under the proposed initial operating plan having a valuation equal to more than 40% of the valuation of all property to be assessed under the proposed initial operating plan, using the method of valuation specified in the proposed initial operating plan, or the owners of property to be assessed under the proposed initial operating plan having an assessed valuation equal to more than 40% of the assessed valuation of all property to be assessed under the proposed initial operating plan, have not filed a petition with the planning commission protesting the proposed business improvement district or its proposed initial operating plan.

(e)  The local legislative body has voted to adopt the proposed initial operating plan for the municipality.

(3)(a)  The chief executive officer shall appoint members to a business improvement district board to implement the operating plan.  Board members shall be confirmed by the local legislative body and shall serve staggered terms designated by the local legislative body.  The board shall have at least 5 members.  A majority of board members shall own or occupy real property in the business improvement district.

(b)  The board shall annually consider and may make changes to the operating plan, which may include termination of the plan, for its business improvement district.  The board shall then submit the operating plan to the local legislative body for its approval.  If the local legislative body disapproves the operating plan, the board shall consider and may make changes to the operating plan and may continue to resubmit the operating plan until local legislative body approval is obtained.  Any change to the special assessment method applicable to the business improvement district shall be approved by the local legislative body.

(c)  The board shall prepare and make available to the public annual reports describing the current status of the business improvement district, including expenditures and revenues.  The report shall include an independent certified audit of the implementation of the operating plan obtained by the municipality.  The municipality shall obtain an additional independent certified audit upon termination of the business improvement district.

(d)  Either the board or the municipality, as specified in the operating plan as adopted, or amended and approved under this section, has all powers necessary or convenient to implement the operating plan, including the power to contract.

(4)  All special assessments received from a business improvement district and all other appropriations by the municipality or other moneys received for the benefit of the business improvement district shall be placed in a segregated account in the municipal treasury.  No disbursements from the account may be made except to reimburse the municipality for appropriations other than special assessments, to pay the costs of audits required under sub. (3)(c) or on order of the board for the purpose of implementing the operating plan.  On termination of the business improvement district by the municipality, all moneys collected by special assessment remaining in the account shall be disbursed to the owners of specially assessed property in the business improvement district, in the same proportion as the last collected special assessment.

(4m)  A municipality shall terminate a business improvement district if the owners of property assessed under the operating plan having a valuation equal to more than 50% of the valuation of all property assessed under the operating plan, using the method of valuation specified in the operating plan, or the owners of property assessed under the operating plan having an assessed valuation equal to more than 50% of the assessed valuation of all property assessed under the operating plan, file a petition with the planning commission requesting termination of the business improvement district, subject to all of the following conditions:

(a)  A petition may not be filed under this subsection earlier than one year after the date the municipality first adopts the operating plan for the business improvement district.

(b)  On and after the date a petition is filed under this subsection, neither the board nor the municipality may enter into any new obligations by contract or otherwise to implement the operating plan until the expiration of 30 days after the date of hearing under par. (c) and unless the business improvement district is not terminated under par. (e).

(c)  Within 30 days after the filing of a petition under this subsection, the planning commission shall hold a public hearing on the proposed termination.  Notice of the hearing shall be published as a class 2 notice under ch. 985.  Before publication, a copy of the notice together with a copy of the operating plan and a copy of a detail map showing the boundaries of the business improvement district shall be sent by certified mail to all owners of real property within the business improvement district.  The notice shall state the boundaries of the business improvement district and shall indicate that copies of the operating plan are available from the planning commission on request.

(d)  Within 30 days after the date of hearing under par. (c), every owner of property assessed under the operating plan may send written notice to the planning commission indicating, if the owner signed a petition under this subsection, that the owner retracts the owner's request to terminate the business improvement district, or, if the owner did not sign the petition, that the owner requests termination of the business improvement district.

(e)  If after the expiration of 30 days after the date of hearing under par. (c), by petition under this subsection or subsequent notification under par. (d), and after subtracting any retractions under par. (d), the owners of property assessed under the operating plan having a valuation equal to more than 50% of the valuation of all property assessed under the operating plan, using the method of valuation specified in the operating plan, or the owners of property assessed under the operating plan having an assessed valuation equal to more than 50% of the assessed valuation of all property assessed under the operating plan, have requested the termination of the business improvement district, the municipality shall terminate the business improvement district on the date that the obligation with the latest completion date entered into to implement the operating plan expires.

(5)(a)  Real property used exclusively for residential purposes may not be specially assessed for purposes of this section.

(b)  A municipality may terminate a business improvement district at any time.

(c)  This section does not limit the power of a municipality under other law to regulate the use of or specially assess real property.

History:  1983 a. 184;  1989 a. 56 s. 258;  1999 a. 150 s. 539; Stats. 1999 s. 66.1109.

87.30  Floodplain zoning.

(1)  State powers.

(a)  If any county, city or village does not adopt a reasonable and effective floodplain zoning ordinance within one year after hydraulic and engineering data adequate to formulate the ordinance becomes available, the department shall, upon petition of an interested state agency or a municipality or upon its own motion as soon as practicable and after public hearing, determine and fix by order the limits of any or all floodplains within a county, city or village within which serious damage may occur.  Thereafter the department shall as soon as practicable after public hearing adopt a floodplain zoning ordinance applicable to a county, city or village, except that no floodplain zoning ordinance may be enacted unless the hydraulic and engineering studies necessary to determine the floodway or floodplain limits, or both, if both limits are deemed necessary by the department, have been made at state or federal expense.  If the department utilizes hydraulic and engineering studies previously completed, the department shall be responsible for ensuring that the studies are reasonable and accurate.  Thirty days' notice of all hearings on floodplain determination or zoning before the department shall be given to the county, city or village clerk, the clerks of all towns where lands may be affected and to the department of transportation.  Exhibits and testimony shall be a part of the official record.  Failure of a county, city or village to adopt a floodplain zoning ordinance for an area where appreciable damage from floods is likely to occur or to adopt an ordinance which will result in a practical minimum of flood damage in an area shall be prima facie proof of the necessity for action specified under this paragraph by the department.  The department shall make a decision in writing of insufficiency of any county, city or village floodplain zoning ordinance before adopting an ordinance superseding a county, village or city ordinance.  All orders of the department under this subsection which either fix the limits of floodplains or enact local floodplain zoning ordinances shall, when they are in final draft form and before they are issued, be referred to the appropriate committees of the legislature, where the procedure under s. 227.19 shall apply. Section 227.15 does not apply to the orders of the department under this section.  Orders of the department under this section shall, after becoming effective, be deemed rules for purposes of s. 227.26, and may be suspended by the joint committee for review of administrative rules.

Note: Chapter 437, laws of 1977, which amended par. (a), contained an extensive note explaining the amendment.  See the 1977 session law volume.

(b)  All final orders, determinations or decisions made under this subsection shall be subject to review under ch. 227 and be effective 20 days after the same have been served unless such order, determination and decision specifies a different date upon which the same shall be effective.  Such floodplain determination and zoning ordinance shall be of the same effect as if adopted by the county, city or village.  Thereafter it is the duty of the county, city, village and town officials to administer and enforce the ordinance in the same manner as if the county, city or village had adopted it.  Floodplain determinations and zoning ordinances so adopted may be modified by the county, city or village concerned only with the written consent of the department except that nothing in this subsection may be construed to prohibit a county, city, village or town from adopting a floodplain ordinance more restrictive than that adopted by the state.

(c)  Except as provided under par. (a), the cost of such floodplain determination and ordinance promulgation and enforcement by the state shall be assessed against the county, city or village concerned and collected in substantially the same manner as other taxes levied by the state.

(d)  For an amendment to a floodplain zoning ordinance that affects an activity that meets all of the requirements under s. 281.165(2) or (3)(a), the department may not proceed under this subsection, or otherwise review the amendment, to determine whether the ordinance, as amended, is insufficient.

(1d)  Improvements to nonconforming buildings.

(a)  In this subsection:

1.  "Nonconforming building" has the meaning specified by rule by the department for purposes of floodplain zoning under this section and includes a building with a nonconforming use.

2.  "Nonconforming use" has the meaning specified by rule by the department for purposes of floodplain zoning under this section.

3.  "Nonflood disaster" means a fire or an ice storm, tornado, windstorm, mudslide or other destructive act of nature, but excludes a flood.

(b)  For nonconforming buildings that are damaged or destroyed by a nonflood disaster a floodplain zoning ordinance shall permit the repair, reconstruction or improvement of any such nonconforming building, in order to restore it after the nonflood disaster except as provided in par. (c).

(c)  A floodplain zoning ordinance may not permit the repair, reconstruction or improvement of a nonconforming building if the nonconforming building, after repair, reconstruction or improvement, will fail to meet one or more of the minimum requirements applicable to such a nonconforming building under 42 USC 4001 to 4129 or under the regulations promulgated thereunder.

(1g)  Regulation of floodproofed basements.  The department may not promulgate any rule or impose any restriction that does any of the following:

(a)  Results in an ordinance or other regulation containing provisions for floodproofed residential basements that are more restrictive than those imposed by the federal emergency management agency.

(b)  Allows the department to deny an exception for such basements if the federal emergency management agency has granted an exception under 44 CFR 60.6.

(1m)  Jurisdiction over drainage ditches limited.  Notwithstanding any other provision of law or administrative rule promulgated thereunder, a floodplain zoning ordinance required under sub.

(1)  does not apply to lands adjacent to farm drainage ditches if:

(a)  Such lands are not within the floodplain of a natural navigable stream or river;

(b)  Those parts of the drainage ditches adjacent to these lands were nonnavigable streams before ditching; and

(c)  Such lands are maintained in nonstructural agricultural use.

(2)  Enforcement and penalties.  Every structure, building, fill, or development placed or maintained within any floodplain in violation of a zoning ordinance adopted under this section, or s. 59.69, 61.35 or 62.23 is a public nuisance and the creation thereof may be enjoined and maintenance thereof may be abated by action at suit of any municipality, the state or any citizen thereof. Any person who places or maintains any structure, building, fill or development within any floodplain in violation of a zoning ordinance adopted under this section, or s. 59.69, 61.35 or 62.23 may be fined not more than $50 for each offense.  Each day during which such violation exists is a separate offense.

History:  1971 c. 164;  1975 c. 232, 301, 422;  1977 c. 29 s. 1654(8)(c);  1977 c. 437, 447;  1979 c. 34 s. 2102(58)(b);  1981 c. 339; 1985 a. 182;  1995 a. 201, 311, 455;  1999 a. 9.

Decisions:

A flood plain zoning ordinance adopted by the DNR under s. 87.30(1) was a "rule" under s. 227.01.  Citizens for Sensible Zoning, Inc. v. DNR, 90 Wis. 2d 804, 280 N.W.2d 702 (1979).

The trial court erred when it placed the burden on the department to prove theat the city's ordinance was not reasonable and effective.  City of La Crosse v. DNR, 120 Wis. 2d 168, 353 N.W.2d 68 (Ct. App. 1984).

An area need not be navigable to be a lakebed.  The ordinary high water mark was determinative.  State v. Trudeau, 139 Wis. 2d 91, 408 N.W.2d 337 (1987).

County floodplain zoning ordinances adopted by the department under this section do not need approval of the town boards in order to become effective within all unincorporated areas of the county.  62 Atty. Gen. 264.

The necessity of zoning variance or amendments notice to the Wisconsin department of natural resources under the shoreland zoning and navigable waters protection acts.  Whipple, 57 MLR 25.

The public trust doctrine.  59 MLR 787.

Floodplain, wetland and shoreland regulation in Wisconsin.  Johnson.  WBB May 1988.

  87.304  Regulation of historic property in floodplains.

 (1)  Definitions.  In this section:

 (a)  "Historic property" means any building, structure or object that is any of the following:

 1.  Individually listed on the national register of historic places in Wisconsin or the state register of historic places.

 2.  Included in a district which is listed on the national register of historic places in Wisconsin and has been determined by the state historical society to contribute to the historic significance of the district.

 3.  Individually listed on the list of locally designated historic places under s. 44.45.

 (b)  "National register of historic places in Wisconsin" has the meaning given in s. 44.31(5).

(2)  Treatment of historic property.

(a)  The department shall by rule promulgate procedures for use by cities, villages and counties in doing all of the following:

1.  Issuing variances to floodplain zoning ordinances that will be consistent with 44 CFR 606 but that will allow repair or rehabilitation of historic properties in floodplains to the maximum extent feasible.

2.  Providing sufficient measures for public safety and protection for property in floodplains.

(b)  The rules promulgated under par. (a) may include different procedures for floodway and flood-fringe areas.

History:  1991 a. 39. 

87.305  Use of certain facilities on St. Feriole island.

(1)  Department approval.  Notwithstanding s. 87.30 or any rule promulgated, order issued or ordinance adopted under that section, the department shall authorize the connection of a sanitary sewer line from the sewerage treatment plant in the city of Prairie du Chien and connection of the public water system of the city of Prairie du Chien to the railroad depot and the Dousman hotel on St. Feriole island and shall authorize historic use of the Dousman hotel as a hotel, as defined under s. 254.61(3), if all of the following conditions are met:

(a)  The department approves the developer's plans and specifications for floodproofing the railroad depot and the Dousman hotel.

(b)  The department approves the city of Prairie du Chien's flood warning system and emergency evacuation plan and the city of Prairie du Chien agrees to test the evacuation plan at least once each year.

(c)  The department informs the U.S. army corps of engineers, the department of transportation, the division of emergency management and the state historical society of its intention to authorize connection of sewer service and a water system to the railroad depot and the Dousman hotel and occupancy of the hotel and either:

1.  Those agencies do not object within 30 days after receiving a copy of the notice; or

2.  Any objections of those agencies are resolved in negotiations between those agencies, the city of Prairie du Chien and the developer.

(d)  The state historic preservation officer reviews the developer's plans for preservation or rehabilitation of the Dousman hotel and certifies that the preservation or rehabilitation will be consistent with the standards used by the U.S. secretary of the interior to certify rehabilitations under 26 USC 47 (c)(2).

(2)  Revocation of approval.  The department may revoke the approval granted under sub. (1) if any of the following occur:

(a)  A floodproofing and flood warning system are not constructed substantially as designed in the plans and specifications approved by the department under sub. (1)(a).

(b)  The owner or operator of the railroad depot and the Dousman hotel fails to maintain the floodproofing system substantially as designed in the plans and specifications approved by the department under sub. (1)(a).

(c)  The city of Prairie du Chien fails to maintain the flood warning system and to test the emergency evacuation plan at least once each year.

(d)  The state historic preservation officer determines that the preservation or rehabilitation of the Dousman hotel is not consistent with the standards used by the U.S. secretary of the interior to certify rehabilitations under 26 USC 47 (c)(2).

History:  1987 a. 282;  1993 a. 27;  1995 a. 27, 247, 378;  1997 a. 252. 

87.31  Floodplain and shoreland mapping assistance program.

(1)  Department to administer; purpose.  The department shall administer a floodplain and shoreland mapping assistance program to provide counties, cities and villages with financial assistance to produce adequate topographical mapping of floodplain and shoreland areas and to delineate floodplain and floodway boundaries, to assist in the establishment and administration of floodplain and shoreland ordinances.

(2)  Criteria.  The department shall develop on a statewide basis a priority list for awarding mapping grants.  The criteria for establishing the priority list includes but is not limited to:

(a)  The adequacy of existing mapping.

(b)  The existence of an approved floodplain or shoreland zoning ordinance.

(c)  The status of studies to develop flood profiles for the areas to be mapped.

(d)  The potential for future development in the areas to be mapped.

(e)  The potential for flood damage in the areas to be mapped.

(f)  Applications made by 2 or more counties, cities or villages which would enable mapping of an entire river system.

(g)  The availability of funds for mapping from other sources.

(3)  Procedure.  The department shall establish by rule the procedure for application for and awarding of mapping grants.

(4)  Application.  A county, city or village which seeks a mapping grant shall submit a grant application which includes:

(a)  The location, length and extent of the river or shorelands to be mapped.

(b)  The estimated cost of and time required to complete the proposed mapping.

(c)  The information necessary to determine the priority of the application under sub. (2).

(d)  A statement that the applicant will assume responsibility for administering any subcontracts with mapping contractors.

(e)  A statement that the applicant will adopt the resultant map, if approved by the department, as the official zoning map and any necessary ordinances or amendments within 6 months after the department approves the map.

(f)  Any other information required by rule by the department.

(5)  Grants.

(a)  Prior to February 8, 1986, the department shall make grants-in-aid from the appropriation under s. 20.370(4)(gc), 1983 stats., or s. 20.370(4)(fc), 1985 stats., to a county, city or village which qualifies under the mapping grant program.  A grant-in-aid may not exceed 50% of the expected cost of the topographical mapping.

(b)  Upon approval by the department and acceptance by the applicant, the department may make available 75% of the mapping grant award.  The department shall make available the remaining 25% of the mapping grant at the time the applicant adopts the resultant map as approved by the department as the official zoning map and any necessary ordinances and amendments.

(c)  A grant is valid for one year after the date of acceptance but the department may extend this period up to 3 years if warranted by the circumstances.

(6)  Failure to adopt map.  If a mapping grant recipient fails to adopt the map as the official zoning map or fails to adopt any necessary ordinances or amendments within 6 months after the department approves the map without adequate justification as determined by the department, the recipient may not receive any further state funds under the mapping grant program and shall be required to reimburse the department for state funds already received under the program.

(7)  Sunset.  After February 8, 1986, no county, city or village may submit a grant application under sub. (4) and the department may not award any additional grants-in-aid under sub. (5).