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2023 - 2024 LEGISLATURE
2023 ASSEMBLY BILL 266
May 16, 2023 - Introduced by Representatives KRUG, BROOKS, ALLEN, EDMING,
MOSES, MURPHY, O'CONNOR, PENTERMAN, SCHRAA, SNYDER, SORTWELL and
SPIROS, cosponsored by Senators STROEBEL, QUINN, JAGLER and TESTIN.
Referred to Committee on Housing and Real Estate.
***AUTHORS SUBJECT TO CHANGE***
AN ACT to repeal 59.69 (5) (e) 5g., 60.61 (4) (c) 2. and 62.23 (7) (e) 15.; to
renumber 66.10015 (3); to amend 59.69 (5e) (e), 60.61 (4e) (e), 62.23 (6) (g),
62.23 (6) (h), 62.23 (7) (b), 62.23 (7) (de) 5., 66.10015 (title), 236.13 (5) and 781.10
(2) (a); to repeal and recreate 59.694 (10), 62.23 (7) (e) 10. and 66.10015 (3)
(title); and to create 60.65 (6), 66.10015 (1m), 66.10015 (3) (a), 66.10016,
781.10, 808.04 (1s) and 809.108 of the statutes; relating to: judicial review of
local governmental decisions related to certain land development, local
approval of residential housing development, and amendment of zoning
ordinances.
Analysis by the Legislative Reference Bureau
This bill requires political subdivisions to approve certain permit applications
related to residential housing developments that are consistent with certain local
requirements and limits the authority of a political subdivision to impose a
supermajority requirement for a zoning ordinance amendment. The bill also
specifies procedures that apply to judicial review of certain local determinations
related to land use.
Under the bill, a political subdivision must approve an application for a permit
or administrative approval required to proceed with a residential housing
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development if the application is complete and the development meets the political
subdivision's existing requirements that must be satisfied to obtain the permit. The
bill also provides that, with limited exceptions, only a simple majority of a quorum
of the members-elect of the governing body of a political subdivision is required to
amend the political subdivision's zoning ordinance.
Under current law, decisions of political subdivisions related to land use are
often judicially reviewed using a common law procedure known as “certiorari”
review. In general, under this type of review, a court receives the record created by
the political subdivision and performs a limited review to test the validity of the
decision. On certiorari review, a court is generally limited to determining whether
1) the political subdivision's decision was within its jurisdiction; 2) the political
subdivision acted according to law; 3) the decision was arbitrary, oppressive, or
unreasonable; and 4) the evidence presented was such that the political subdivision
might reasonably make the decision it did. There is a presumption of correctness and
validity to the political subdivision's decision.
The bill specifies certain details regarding the conduct of certiorari review of
certain decisions of political subdivisions relating to zoning and residential land use.
First, the bill limits the persons who may seek review of these decisions to those that
1) submitted the application for approval; 2) have an ownership interest in the real
property that is the subject of the application for an approval; 3) sustain actual
damages or will imminently sustain actual damages that are personal to the person
and distinct from damages that impact the public generally; or 4) are certain
governmental actors. In addition, persons under item 3 must have provided a
statement or appeared at a public proceeding and testified before the political
subdivision on the approval proposed to be reviewed. Second, the bill requires that
the certiorari action be filed within 30 days of the final decision of the political
subdivision. Third, the bill specifies that a court must decide the action based only
on the record provided by the political subdivision and may only affirm or reverse the
decision or remand for further proceedings. Finally, the bill specifies deadlines for
various steps in the review process to expedite the court's review and directs the court
to give the action preference over other civil actions and proceedings.
Currently, s. 66.10015, stats., includes several definitions. The bill specifies
that the definitions that apply to s. 66.10015, stats., do not apply to s. 66.10016,
stats., a new provision created in the bill.
Because this bill may increase or decrease, directly or indirectly, the cost of the
development, construction, financing, purchasing, sale, ownership, or availability of
housing in this state, the Department of Administration, as required by law, will
prepare a report to be printed as an appendix to this bill.
For further information see the state and local fiscal estimate, which will be
printed as an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows: - 3 -2023 - 2024 Legislature
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SECTION 1
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SECTION 1. 59.69 (5) (e) 5g. of the statutes is repealed.
SECTION 2. 59.69 (5e) (e) of the statutes is amended to read:
59.69 (5e) (e) If a county denies a person's conditional use permit application,
the person may appeal the decision to the circuit court under the procedures
contained in s. 59.694 (10) 781.10. Notwithstanding s. 59.694 (4), a county may
provide by ordinance that the county's decision on a conditional use permit
application is not reviewable by the board of adjustment and may be appealed
directly to the circuit court under the procedures contained in s. 781.10.
SECTION 3. 59.694 (10) of the statutes is repealed and recreated to read:
59.694 (10) JUDICIAL REVIEW. A decision of the board of adjustment under this
section is subject to review by certiorari under s. 781.10.
SECTION 4. 60.61 (4) (c) 2. of the statutes is repealed.
SECTION 5. 60.61 (4e) (e) of the statutes is amended to read:
60.61 (4e) (e) If a town denies a person's conditional use permit application, the
person may appeal the decision to the circuit court under the procedures described
in s. 59.694 (10) 781.10.
SECTION 6. 60.65 (6) of the statutes is created to read:
60.65 (6) JUDICIAL REVIEW. A decision of a board of adjustment under this
section is subject to review by certiorari under s. 781.10.
SECTION 7. 62.23 (6) (g) of the statutes is amended to read:
62.23 (6) (g) Before taking any action authorized in this subsection, the board
of appeals or city council shall hold a hearing at which parties in interest and others
shall have an opportunity to be heard. At least 15 days before the hearing notice of
the time and place of the hearing shall be published as a class 1 notice, under ch. 985.
Any such decision under this paragraph shall be subject to review by certiorari
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issued by a court of record in the same manner and pursuant to the same provisions
as in appeals from the decisions of a board of appeals upon zoning regulations under
s. 781.10.
SECTION 8. 62.23 (6) (h) of the statutes is amended to read:
62.23 (6) (h) In any city which that has established an official map as herein
authorized, no public sewer or other municipal street utility or improvement shall
may be constructed in any street, highway, or parkway until such the street,
highway, or parkway is duly placed on the official map. No permit for the erection
of any building shall may be issued unless a street, highway, or parkway giving
access to such the proposed structure has been duly placed on the official map. Where
the enforcement of the provisions of this section would entail practical difficulty or
unnecessary hardship, and where the circumstances of the case do not require the
structure to be related to existing or proposed streets, highways, or parkways, the
applicant for such a permit may appeal from the decision of the administrative officer
having charge of the issue of permits to the board of appeals in any city which that
has established a board having power to make variances or exceptions in zoning
regulations, and the same provisions are applied to such appeals under this
paragraph and to such boards as are provided in cases of appeals on zoning
regulations. The board may in passing on such an appeal under this paragraph make
any reasonable exception, and issue the permit subject to conditions that will protect
any future street, highway, or parkway layout. Any such decision under this
paragraph shall be subject to review by certiorari issued by a court of record in the
same manner and pursuant to the same provisions as in appeals from the decision
of such board upon zoning regulations under s. 781.10. In any city in which there is
no such board of appeals the city council shall have the same powers and be subject
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to the same restrictions, and the same method of court review shall be available. For
such purpose such of appeal under this paragraph, the council is authorized to act
as a discretionary administrative or quasi-judicial body. When so acting it shall not
sit as a legislative body, but in a separate meeting and with separate minutes kept.
SECTION 9. 62.23 (7) (b) of the statutes is amended to read:
62.23 (7) (b) Districts. For any and all of said purposes the council may divide
the city into districts of such number, shape, and area as may be deemed best suited
to carry out the purposes of this section; and within such districts it may regulate and
restrict the erection, construction, reconstruction, alteration or use of buildings,
structures or land. All such regulations shall be uniform for each class or kind of
buildings and for the use of land throughout each district, but the regulations in one
district may differ from those in other districts. No ordinance enacted or regulation
adopted under this subsection may prohibit forestry operations that are in
accordance with generally accepted forestry management practices, as defined
under s. 823.075 (1) (d). The council may establish mixed-use districts that contain
any combination of uses, such as industrial, commercial, public, or residential uses,
in a compact urban form. The council may with the consent of the owners establish
special districts, to be called planned development districts, with regulations in each,
which in addition to those provided in par. (c), will over a period of time tend to
promote the maximum benefit from coordinated area site planning, and diversified
location of structures and which may have mixed compatible uses. Such regulations
shall provide for a safe and efficient system for pedestrian and vehicular traffic,
attractive recreation and landscaped open spaces, economic design and location of
public and private utilities and community facilities and insure ensure adequate
standards of construction and planning. Such regulations may also provide for the
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development of the land in such districts with one or more principal structures and
related accessory uses, and in planned development districts and mixed-use
districts the regulations need not be uniform.
SECTION 10. 62.23 (7) (de) 5. of the statutes is amended to read:
62.23 (7) (de) 5. If a city denies a person's conditional use permit application,
the person may appeal the decision to the circuit court under the procedures
contained in par. (e) 10. s. 781.10.
SECTION 11. 62.23 (7) (e) 10. of the statutes is repealed and recreated to read:
62.23 (7) (e) 10. A decision under this paragraph is subject to review by
certiorari under s. 781.10.
SECTION 12. 62.23 (7) (e) 15. of the statutes is repealed.
SECTION 13. 66.10015 (title) of the statutes is amended to read:
66.10015 (title) Limitation on development regulation authority and
down zoning.
SECTION 14. 66.10015 (1m) of the statutes is created to read:
66.10015 (1m) APPLICABILITY OF DEFINITIONS. The definitions under sub. (1) do
not apply to s. 66.10016.
SECTION 15. 66.10015 (3) (title) of the statutes is repealed and recreated to
read:
66.10015 (3) (title) ZONING ORDINANCE AMENDMENTS.
SECTION 16. 66.10015 (3) of the statutes is renumbered 66.10015 (3) (b).
SECTION 17. 66.10015 (3) (a) of the statutes is created to read:
66.10015 (3) (a) Except as provided in par. (b) and ss. 59.69 (5) (e) 5m., 60.61
(4) (c) 3., and 62.23 (7) (d) 2m., the enactment of a zoning amendment shall be
approved by a simple majority of a quorum of the members-elect.
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SECTION 18
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SECTION 18. 66.10016 of the statutes is created to read:
66.10016 Permits for residential housing developments. (1) In this
section:
(a) “Permit” means any permit or administrative approval required to proceed
with a residential housing development. “Permit” does not include a change to an
existing ordinance or zoning classification of land or an approval of a conditional use
as defined under s. 59.69 (5e) (a) 1., 60.61 (4e) (a) 1., or 62.23 (7) (de) 1. a.
(b) “Political subdivision” means a city, village, town, or county.
(c) “Residential housing development” means a development for single-family
or multi-family housing for sale or rent.
(2) The definitions under s. 66.10015 (1) do not apply to this section.
(3) If a person submits a complete application for a permit related to a
residential housing development meeting all existing requirements that must be
satisfied to obtain the permit at the time the application is filed, the political
subdivision shall grant the application. An application is deemed complete under
this subsection if it complies with form and content requirements. An application
is filed under this subsection on the date that the political subdivision receives the
application.
(4) A person aggrieved by a political subdivision's failure to approve an
application under sub. (3) may seek relief through an action for mandamus as
provided in ch. 783. If the court finds that the political subdivision improperly failed
to approve the application under sub. (3), the court shall issue a writ of mandamus
ordering the political subdivision to approve the application. For purposes of any
mandamus claim filed under this subsection, substantial damages or injury shall be
assumed.
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SECTION 19 ASSEMBLY BILL 266
SECTION 19. 236.13 (5) of the statutes is amended to read:
236.13 (5) Any person aggrieved by an objection to a plat or a failure to approve
a plat may appeal therefrom as provided in s. 62.23 (7) (e) 10., 14. and 15., within 30
days of notification of the rejection of the plat. For the purpose of such appeal the
term “board of appeals" means an “approving authority". Where the failure to
approve is based on an unsatisfied objection, the agency making the objection shall
be made a party to the action. The court shall direct that the plat be approved if it
finds that the action of the approving authority or objecting agency is arbitrary,
unreasonable or discriminatory 781.10.
SECTION 20. 781.10 of the statutes is created to read:
781.10 Certiorari review of certain local decisions. (1) DEFINITIONS. In
this section:
(a) “Approval” means a permit or authorization for building, zoning, driveway,
stormwater, or other activity related to residential development.
(b) “Political subdivision” means a city, village, town, or county or a board of
appeals or board of adjustment.
(c) “Residential development” means the development or redevelopment of
land or buildings for the primary purpose of providing housing.
(2) JUDICIAL REVIEW. (a) A final decision of a political subdivision or an agency
of a political subdivision on an application for an approval may be reviewed only by
an action for certiorari as provided under this section.
(b) No action under this section may be filed more than 30 days after the final
decision by a political subdivision or agency of a political subdivision on an
application for an approval.
(c) An action under this section may be filed only by any of the following:
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SECTION 20
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1. The person who submitted the application for an approval.
2. A person that has an ownership interest in the real property that is the
subject of the application for an approval.
3. A person that, as a result of the final decision on the application for an
approval, sustains actual damages or will imminently sustain actual damages that
are personal to the person and distinct from damages that impact the public
generally. A person under this subdivision may not seek review under this section
unless, prior to the final decision on the approval, the person provided a statement
in writing on the approval to the political subdivision or agency of the political
subdivision or appeared and provided an oral statement at a public proceeding held
by the political subdivision or agency of the political subdivision at which the
approval was considered.
4. A person, other than an individual, that satisfies all of the following
conditions:
a. The person has as a member, partner, or stockholder at least one person
described under subd. 1., 2., or 3.
b. The person was not organized or incorporated in response to the application.
5. A local governmental unit, as defined in s. 66.0131 (1) (a).
6. To the extent authorized by law, a state agency, as defined in s. 20.931 (1) (c),
that is aggrieved by the final decision on the application for approval.
(d) 1. The person seeking review under this section shall file pleadings, which
shall be served in the manner provided in ch. 801 for service in civil actions. The
pleadings shall specify facts demonstrating that the person has standing under par.
(c) and shall identify the specific errors the person claims justify the requested relief.
The political subdivision shall have 45 days to file an answer or other responsive
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SECTION 20 ASSEMBLY BILL 266
pleading to the complaint. The political subdivision shall transmit the record under
s. 781.03 (1) no later than 30 days after an answer or other responsive pleading is
filed.
2. The court shall require that any additional pleadings and any motions and
supporting papers be filed no later than 90 days after the expiration of the latest
deadline under subd. 1. for filing answers or other responsive pleadings. The court
may supplement the record on review only upon motion of a party for good cause.
3. The court shall give the action under this paragraph preference over all other
civil actions and proceedings.
4. The court shall decide the action under this paragraph upon the return made
by the political subdivision. The court may reverse or affirm the determination
brought up for review or remand to the political subdivision for further proceedings
consistent with the court's decision. The court shall issue a decision in writing no
later than 60 days after the deadline under subd. 2.
5. Any appeal of a decision issued under subd. 4. shall be taken within the time
period specified in s. 808.04 (1s).
SECTION 21. 781.10 (2) (a) of the statutes, as created by 2023 Wisconsin Act ....
(this act), is amended to read:
781.10 (2) (a) A Except as provided in s. 66.10016 (4), a final decision of a
political subdivision or an agency of a political subdivision on an application for an
approval may be reviewed only by an action for certiorari as provided under this
section.
SECTION 22. 808.04 (1s) of the statutes is created to read:
808.04 (1s) An appeal under s. 781.10 (2) (d) 5. shall be initiated within 30 days
after the date of entry of the judgment or order appealed from.
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SECTION 23
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SECTION 23. 809.108 of the statutes is created to read:
809.108 Appeals in proceedings related to political subdivision
approvals. (1) APPLICABILITY. This section applies to the appeal of a judgment or
order under s. 781.10 (2) (d) 5. and supersedes all inconsistent provisions of this
chapter.
(2) INITIATING AN APPEAL. A party may initiate an appeal under this section by
filing a notice of appeal with the clerk of the circuit court in which the judgment or
order appealed from was entered and shall specify in the notice of appeal the
judgment or order appealed from.
(3) APPEAL PROCEDURE. Subsequent proceedings in an appeal under this section
are governed by the procedures for civil appeals under this subchapter and the
procedures under subch. VI, except as follows:
(a) The appellant shall file a brief within 30 days after the filing of the record
on appeal.
(b) The respondent shall file a brief within 30 days after the service of the
appellant's brief.
(c) The appellant shall file within 15 days after the service of the respondent's
brief a reply brief or statement that a reply brief will not be filed.
(4) DECISION. The court of appeals shall give preference to an appeal under this
section and shall take the appeal in an order that ensures that the court of appeals
issues a decision no later than 90 days after the deadline under sub. (3) (c).
SECTION 24.0Initial applicability.
(1) This act first applies to a final decision, including a final decision on an
approval, as defined in s. 781.10 (1) (a), made by a political subdivision, as defined
in s. 781.10 (1) (b), on the effective date of this subsection.
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SECTION 25 ASSEMBLY BILL 266
SECTION 25.0Effective dates. This act takes effect on the day after publication,
except as follows:
(1) The renumbering of s. 66.10015 (3), the amendment of s. 781.10 (2) (a), the
repeal and recreation of s. 66.10015 (3) (title), and the creation of ss. 66.10015 (1m)
and (3) (a) and 66.10016 take effect on January 1, 2025.
(END)
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