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2023 - 2024 LEGISLATURE
2023 ASSEMBLY BILL 422
September 19, 2023 - Introduced by Representatives MURPHY, O'CONNOR, BODDEN,
DITTRICH, GREEN, GUNDRUM and WITTKE, cosponsored by Senators TOMCZYK
and FEYEN. Referred to Committee on Transportation.
***AUTHORS SUBJECT TO CHANGE***
AN ACT to amend 236.13 (1) (e); and to create 86.074 of the statutes; relating
to: highway setback areas and the Department of Transportation's authority
to approve subdivision plats.
Analysis by the Legislative Reference Bureau
This bill limits the authority of the Department of Transportation with regard
to any highway setback requirements maintained by DOT. In particular, under the
bill, the authority of DOT is limited in the following ways:
1. A setback area regulated by DOT may not extend more than 50 feet from the
nearest edge of the right-of-way of the highway.
2. Any setback requirements imposed by DOT may regulate only structures
that adversely affect the safety of entrance upon or departure from state trunk or
connecting highways or the preservation of public interest and investment in those
highways.
3. DOT must provide a procedure by which a person affected by setback
requirements may request a variance to a requirement.
4. DOT must provide accurate and current information about its setback
requirements on its website.
Under current law, DOT reviews, and has the right to object to, maps of certain
divisions of land that abut or adjoin state trunk highways or connecting highways
(plats). Currently, DOT reviews a plat to determine whether DOT has any objection
based on the plat failing to comply with the rules of DOT relating to provision for the
safety of entrance upon and departure from the abutting state trunk highways or
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ASSEMBLY BILL 422
connecting highways and for the preservation of the public interest and investment
in such highways. The bill specifies that, as part of DOT's review, DOT must review
the plat for compliance with DOT's requirements regarding variance requests
related to setbacks created in the bill.
For further information see the state 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:
SECTION 1. 86.074 of the statutes is created to read:
86.074 Highway setback areas. (1) In this section:
(a) “Highway setback area” means an area abutting a highway in which the
construction or placement of structures is subject to requirements imposed by the
department.
(b) “Structure” includes a temporary or permanent addition to or betterment
of real property that is not portable in nature. “Structure” does not include items
such as portable swing sets, movable lawn sheds without pads or footings, above
ground swimming pools without decks, sidewalks, bike paths, storm water facilities,
or natural features, including landscaping or berms.
(c) “Substantial evidence” means facts and information, other than merely
personal preferences or speculation, directly pertaining to public safety or the
requirements and conditions an applicant must meet to obtain a variance and that
reasonable persons would accept in support of a conclusion.
(2) All of the following apply to any highway setback area maintained by the
department:
(a) The highway setback area may not extend more than 50 feet from the
nearest edge of the right-of-way of the highway.
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(b) The requirements imposed by the department may regulate only structures
that adversely affect the safety of entrance upon or departure from state trunk or
connecting highways or the preservation of public interest and investment in those
highways, as determined by the department in its reasonable discretion.
(c) The requirements imposed by the department shall include a specification
of requirements and conditions that may be imposed as a condition of granting a
variance to a requirement.
(d) The requirements imposed by the department shall include a procedure by
which a person affected by a highway setback area may request a variance to a
requirement. The procedure shall include all of the following:
1. The department may not deny a variance request due to a risk to public
safety unless the department finds that substantial evidence demonstrates the risk.
2. The department may impose on an applicant for a variance only
requirements and conditions specified under par. (c). Any requirement or condition
imposed under this subdivision shall be related to the purpose of the highway
setback area, based on substantial evidence, reasonable, and, to the extent
practicable, measurable. The department may require as a condition of a variance
that the applicant waive any claim or right to relocation compensation related to any
structure or improvement constructed or placed in the highway setback area if any
portion of the highway setback area is used for highway purposes within 20 years of
the date of issuance of the variance.
3. If an applicant demonstrates by substantial evidence that the application
and all requirements and conditions imposed under subd. 2. are or shall be satisfied,
the department shall grant the variance.
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4. Any denial of a variance request may be appealed to the director of the
regional office of the division of transportation system development in which the
property is located. No later than 60 days after receiving an appeal, the director shall
notify the applicant in writing of the director's decision. If the director does not notify
the applicant in writing of the director's decision within 60 days after receiving the
appeal, the variance request shall be considered approved.
(e) The department shall provide accurate and current information about the
highway setback area on the department's website.
SECTION 2. 236.13 (1) (e) of the statutes is amended to read:
236.13 (1) (e) The rules of the department of transportation relating to
provision for the safety of entrance upon and departure from the abutting state trunk
highways or connecting highways and for the preservation of the public interest and
investment in such highways, including the department of transportation's
requirements and conditions regarding variance requests under s. 86.074 (2) (d).
SECTION 3.0Initial applicability.
(1) The treatment of s. 236.13 (1) (e) first applies to a preliminary or final plat
that is submitted to the department of administration under s. 236.12 (2) (ac) on the
effective date of this subsection.
(END)
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