Wisconsin 2023-2024 Regular Session

Wisconsin Senate Bill SB296 Compare Versions

Only one version of the bill is available at this time.

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3	3	2023 - 2024 LEGISLATURE
4	4	2023 SENATE BILL 296
5	5	May 15, 2023 - Introduced by Senators STROEBEL, QUINN, JAGLER and TESTIN,
6	6	cosponsored by Representatives KRUG, BROOKS, ALLEN, EDMING, MOSES,
7	7	MURPHY, O'CONNOR, PENTERMAN, SCHRAA, SNYDER, SORTWELL and SPIROS.
8	8	Referred to Committee on Housing, Rural Issues and Forestry.
9	9	AN ACT to repeal 59.69 (5) (e) 5g., 60.61 (4) (c) 2. and 62.23 (7) (e) 15.; to
10	10	renumber 66.10015 (3); to amend 59.69 (5e) (e), 60.61 (4e) (e), 62.23 (6) (g),
11	11	62.23 (6) (h), 62.23 (7) (b), 62.23 (7) (de) 5., 66.10015 (title), 236.13 (5) and 781.10
12	12	(2) (a); to repeal and recreate 59.694 (10), 62.23 (7) (e) 10. and 66.10015 (3)
13	13	(title); and to create 60.65 (6), 66.10015 (1m), 66.10015 (3) (a), 66.10016,
14	14	781.10, 808.04 (1s) and 809.108 of the statutes; relating to: judicial review of
15	15	local governmental decisions related to certain land development, local
16	16	approval of residential housing development, and amendment of zoning
17	17	ordinances.
18	18	Analysis by the Legislative Reference Bureau
19	19	This bill requires political subdivisions to approve certain permit applications
20	20	related to residential housing developments that are consistent with certain local
21	21	requirements and limits the authority of a political subdivision to impose a
22	22	supermajority requirement for a zoning ordinance amendment. The bill also
23	23	specifies procedures that apply to judicial review of certain local determinations
24	24	related to land use.
25	25	Under the bill, a political subdivision must approve an application for a permit
26	26	or administrative approval required to proceed with a residential housing
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37	37	SENATE BILL 296
38	38	development if the application is complete and the development meets the political
39	39	subdivision's existing requirements that must be satisfied to obtain the permit. The
40	40	bill also provides that, with limited exceptions, only a simple majority of a quorum
41	41	of the members-elect of the governing body of a political subdivision is required to
42	42	amend the political subdivision's zoning ordinance.
43	43	Under current law, decisions of political subdivisions related to land use are
44	44	often judicially reviewed using a common law procedure known as “certiorari”
45	45	review. In general, under this type of review, a court receives the record created by
46	46	the political subdivision and performs a limited review to test the validity of the
47	47	decision. On certiorari review, a court is generally limited to determining whether
48	48	1) the political subdivision's decision was within its jurisdiction; 2) the political
49	49	subdivision acted according to law; 3) the decision was arbitrary, oppressive, or
50	50	unreasonable; and 4) the evidence presented was such that the political subdivision
51	51	might reasonably make the decision it did. There is a presumption of correctness and
52	52	validity to the political subdivision's decision.
53	53	The bill specifies certain details regarding the conduct of certiorari review of
54	54	certain decisions of political subdivisions relating to zoning and residential land use.
55	55	First, the bill limits the persons who may seek review of these decisions to those that
56	56	1) submitted the application for approval; 2) have an ownership interest in the real
57	57	property that is the subject of the application for an approval; 3) sustain actual
58	58	damages or will imminently sustain actual damages that are personal to the person
59	59	and distinct from damages that impact the public generally; or 4) are certain
60	60	governmental actors. In addition, persons under item 3 must have provided a
61	61	statement or appeared at a public proceeding and testified before the political
62	62	subdivision on the approval proposed to be reviewed. Second, the bill requires that
63	63	the certiorari action be filed within 30 days of the final decision of the political
64	64	subdivision. Third, the bill specifies that a court must decide the action based only
65	65	on the record provided by the political subdivision and may only affirm or reverse the
66	66	decision or remand for further proceedings. Finally, the bill specifies deadlines for
67	67	various steps in the review process to expedite the court's review and directs the court
68	68	to give the action preference over other civil actions and proceedings.
69	69	Currently, s. 66.10015, stats., includes several definitions. The bill specifies
70	70	that the definitions that apply to s. 66.10015, stats., do not apply to s. 66.10016,
71	71	stats., a new provision created in the bill.
72	72	Because this bill may increase or decrease, directly or indirectly, the cost of the
73	73	development, construction, financing, purchasing, sale, ownership, or availability of
74	74	housing in this state, the Department of Administration, as required by law, will
75	75	prepare a report to be printed as an appendix to this bill.
76	76	For further information see the state and local fiscal estimate, which will be
77	77	printed as an appendix to this bill.
78	78	The people of the state of Wisconsin, represented in senate and assembly, do
79	79	enact as follows: - 3 -2023 - 2024 Legislature
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82	82	SECTION 1
83	83	SENATE BILL 296
84	84	SECTION 1. 59.69 (5) (e) 5g. of the statutes is repealed.
85	85	SECTION 2. 59.69 (5e) (e) of the statutes is amended to read:
86	86	59.69 (5e) (e) If a county denies a person's conditional use permit application,
87	87	the person may appeal the decision to the circuit court under the procedures
88	88	contained in s. 59.694 (10) 781.10. Notwithstanding s. 59.694 (4), a county may
89	89	provide by ordinance that the county's decision on a conditional use permit
90	90	application is not reviewable by the board of adjustment and may be appealed
91	91	directly to the circuit court under the procedures contained in s. 781.10.
92	92	SECTION 3. 59.694 (10) of the statutes is repealed and recreated to read:
93	93	59.694 (10) JUDICIAL REVIEW. A decision of the board of adjustment under this
94	94	section is subject to review by certiorari under s. 781.10.
95	95	SECTION 4. 60.61 (4) (c) 2. of the statutes is repealed.
96	96	SECTION 5. 60.61 (4e) (e) of the statutes is amended to read:
97	97	60.61 (4e) (e) If a town denies a person's conditional use permit application, the
98	98	person may appeal the decision to the circuit court under the procedures described
99	99	in s. 59.694 (10) 781.10.
100	100	SECTION 6. 60.65 (6) of the statutes is created to read:
101	101	60.65 (6) JUDICIAL REVIEW. A decision of a board of adjustment under this
102	102	section is subject to review by certiorari under s. 781.10.
103	103	SECTION 7. 62.23 (6) (g) of the statutes is amended to read:
104	104	62.23 (6) (g) Before taking any action authorized in this subsection, the board
105	105	of appeals or city council shall hold a hearing at which parties in interest and others
106	106	shall have an opportunity to be heard. At least 15 days before the hearing notice of
107	107	the time and place of the hearing shall be published as a class 1 notice, under ch. 985.
108	108	Any such decision under this paragraph shall be subject to review by certiorari
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135	135	SECTION 7 SENATE BILL 296
136	136	issued by a court of record in the same manner and pursuant to the same provisions
137	137	as in appeals from the decisions of a board of appeals upon zoning regulations under
138	138	s. 781.10.
139	139	SECTION 8. 62.23 (6) (h) of the statutes is amended to read:
140	140	62.23 (6) (h) In any city which that has established an official map as herein
141	141	authorized, no public sewer or other municipal street utility or improvement shall
142	142	may be constructed in any street, highway, or parkway until such the street,
143	143	highway, or parkway is duly placed on the official map. No permit for the erection
144	144	of any building shall may be issued unless a street, highway, or parkway giving
145	145	access to such the proposed structure has been duly placed on the official map. Where
146	146	the enforcement of the provisions of this section would entail practical difficulty or
147	147	unnecessary hardship, and where the circumstances of the case do not require the
148	148	structure to be related to existing or proposed streets, highways, or parkways, the
149	149	applicant for such a permit may appeal from the decision of the administrative officer
150	150	having charge of the issue of permits to the board of appeals in any city which that
151	151	has established a board having power to make variances or exceptions in zoning
152	152	regulations, and the same provisions are applied to such appeals under this
153	153	paragraph and to such boards as are provided in cases of appeals on zoning
154	154	regulations. The board may in passing on such an appeal under this paragraph make
155	155	any reasonable exception, and issue the permit subject to conditions that will protect
156	156	any future street, highway, or parkway layout. Any such decision under this
157	157	paragraph shall be subject to review by certiorari issued by a court of record in the
158	158	same manner and pursuant to the same provisions as in appeals from the decision
159	159	of such board upon zoning regulations under s. 781.10. In any city in which there is
160	160	no such board of appeals the city council shall have the same powers and be subject
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188	188	SECTION 8
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190	190	to the same restrictions, and the same method of court review shall be available. For
191	191	such purpose such of appeal under this paragraph, the council is authorized to act
192	192	as a discretionary administrative or quasi-judicial body. When so acting it shall not
193	193	sit as a legislative body, but in a separate meeting and with separate minutes kept.
194	194	SECTION 9. 62.23 (7) (b) of the statutes is amended to read:
195	195	62.23 (7) (b) Districts. For any and all of said purposes the council may divide
196	196	the city into districts of such number, shape, and area as may be deemed best suited
197	197	to carry out the purposes of this section; and within such districts it may regulate and
198	198	restrict the erection, construction, reconstruction, alteration or use of buildings,
199	199	structures or land. All such regulations shall be uniform for each class or kind of
200	200	buildings and for the use of land throughout each district, but the regulations in one
201	201	district may differ from those in other districts. No ordinance enacted or regulation
202	202	adopted under this subsection may prohibit forestry operations that are in
203	203	accordance with generally accepted forestry management practices, as defined
204	204	under s. 823.075 (1) (d). The council may establish mixed-use districts that contain
205	205	any combination of uses, such as industrial, commercial, public, or residential uses,
206	206	in a compact urban form. The council may with the consent of the owners establish
207	207	special districts, to be called planned development districts, with regulations in each,
208	208	which in addition to those provided in par. (c), will over a period of time tend to
209	209	promote the maximum benefit from coordinated area site planning, and diversified
210	210	location of structures and which may have mixed compatible uses. Such regulations
211	211	shall provide for a safe and efficient system for pedestrian and vehicular traffic,
212	212	attractive recreation and landscaped open spaces, economic design and location of
213	213	public and private utilities and community facilities and insure ensure adequate
214	214	standards of construction and planning. Such regulations may also provide for the
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241	241	SECTION 9 SENATE BILL 296
242	242	development of the land in such districts with one or more principal structures and
243	243	related accessory uses, and in planned development districts and mixed-use
244	244	districts the regulations need not be uniform.
245	245	SECTION 10. 62.23 (7) (de) 5. of the statutes is amended to read:
246	246	62.23 (7) (de) 5. If a city denies a person's conditional use permit application,
247	247	the person may appeal the decision to the circuit court under the procedures
248	248	contained in par. (e) 10. s. 781.10.
249	249	SECTION 11. 62.23 (7) (e) 10. of the statutes is repealed and recreated to read:
250	250	62.23 (7) (e) 10. A decision under this paragraph is subject to review by
251	251	certiorari under s. 781.10.
252	252	SECTION 12. 62.23 (7) (e) 15. of the statutes is repealed.
253	253	SECTION 13. 66.10015 (title) of the statutes is amended to read:
254	254	66.10015 (title) Limitation on development regulation authority and
255	255	down zoning.
256	256	SECTION 14. 66.10015 (1m) of the statutes is created to read:
257	257	66.10015 (1m) APPLICABILITY OF DEFINITIONS. The definitions under sub. (1) do
258	258	not apply to s. 66.10016.
259	259	SECTION 15. 66.10015 (3) (title) of the statutes is repealed and recreated to
260	260	read:
261	261	66.10015 (3) (title) ZONING ORDINANCE AMENDMENTS.
262	262	SECTION 16. 66.10015 (3) of the statutes is renumbered 66.10015 (3) (b).
263	263	SECTION 17. 66.10015 (3) (a) of the statutes is created to read:
264	264	66.10015 (3) (a) Except as provided in par. (b) and ss. 59.69 (5) (e) 5m., 60.61
265	265	(4) (c) 3., and 62.23 (7) (d) 2m., the enactment of a zoning amendment shall be
266	266	approved by a simple majority of a quorum of the members-elect.
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294	294	SECTION 18
295	295	SENATE BILL 296
296	296	SECTION 18. 66.10016 of the statutes is created to read:
297	297	66.10016 Permits for residential housing developments. (1) In this
298	298	section:
299	299	(a) “Permit” means any permit or administrative approval required to proceed
300	300	with a residential housing development. “Permit” does not include a change to an
301	301	existing ordinance or zoning classification of land or an approval of a conditional use
302	302	as defined under s. 59.69 (5e) (a) 1., 60.61 (4e) (a) 1., or 62.23 (7) (de) 1. a.
303	303	(b) “Political subdivision” means a city, village, town, or county.
304	304	(c) “Residential housing development” means a development for single-family
305	305	or multi-family housing for sale or rent.
306	306	(2) The definitions under s. 66.10015 (1) do not apply to this section.
307	307	(3) If a person submits a complete application for a permit related to a
308	308	residential housing development meeting all existing requirements that must be
309	309	satisfied to obtain the permit at the time the application is filed, the political
310	310	subdivision shall grant the application. An application is deemed complete under
311	311	this subsection if it complies with form and content requirements. An application
312	312	is filed under this subsection on the date that the political subdivision receives the
313	313	application.
314	314	(4) A person aggrieved by a political subdivision's failure to approve an
315	315	application under sub. (3) may seek relief through an action for mandamus as
316	316	provided in ch. 783. If the court finds that the political subdivision improperly failed
317	317	to approve the application under sub. (3), the court shall issue a writ of mandamus
318	318	ordering the political subdivision to approve the application. For purposes of any
319	319	mandamus claim filed under this subsection, substantial damages or injury shall be
320	320	assumed.
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347	347	SECTION 19 SENATE BILL 296
348	348	SECTION 19. 236.13 (5) of the statutes is amended to read:
349	349	236.13 (5) Any person aggrieved by an objection to a plat or a failure to approve
350	350	a plat may appeal therefrom as provided in s. 62.23 (7) (e) 10., 14. and 15., within 30
351	351	days of notification of the rejection of the plat. For the purpose of such appeal the
352	352	term “board of appeals" means an “approving authority". Where the failure to
353	353	approve is based on an unsatisfied objection, the agency making the objection shall
354	354	be made a party to the action. The court shall direct that the plat be approved if it
355	355	finds that the action of the approving authority or objecting agency is arbitrary,
356	356	unreasonable or discriminatory 781.10.
357	357	SECTION 20. 781.10 of the statutes is created to read:
358	358	781.10 Certiorari review of certain local decisions. (1) DEFINITIONS. In
359	359	this section:
360	360	(a) “Approval” means a permit or authorization for building, zoning, driveway,
361	361	stormwater, or other activity related to residential development.
362	362	(b) “Political subdivision” means a city, village, town, or county or a board of
363	363	appeals or board of adjustment.
364	364	(c) “Residential development” means the development or redevelopment of
365	365	land or buildings for the primary purpose of providing housing.
366	366	(2) JUDICIAL REVIEW. (a) A final decision of a political subdivision or an agency
367	367	of a political subdivision on an application for an approval may be reviewed only by
368	368	an action for certiorari as provided under this section.
369	369	(b) No action under this section may be filed more than 30 days after the final
370	370	decision by a political subdivision or agency of a political subdivision on an
371	371	application for an approval.
372	372	(c) An action under this section may be filed only by any of the following:
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400	400	SECTION 20
401	401	SENATE BILL 296
402	402	1. The person who submitted the application for an approval.
403	403	2. A person that has an ownership interest in the real property that is the
404	404	subject of the application for an approval.
405	405	3. A person that, as a result of the final decision on the application for an
406	406	approval, sustains actual damages or will imminently sustain actual damages that
407	407	are personal to the person and distinct from damages that impact the public
408	408	generally. A person under this subdivision may not seek review under this section
409	409	unless, prior to the final decision on the approval, the person provided a statement
410	410	in writing on the approval to the political subdivision or agency of the political
411	411	subdivision or appeared and provided an oral statement at a public proceeding held
412	412	by the political subdivision or agency of the political subdivision at which the
413	413	approval was considered.
414	414	4. A person, other than an individual, that satisfies all of the following
415	415	conditions:
416	416	a. The person has as a member, partner, or stockholder at least one person
417	417	described under subd. 1., 2., or 3.
418	418	b. The person was not organized or incorporated in response to the application.
419	419	5. A local governmental unit, as defined in s. 66.0131 (1) (a).
420	420	6. To the extent authorized by law, a state agency, as defined in s. 20.931 (1) (c),
421	421	that is aggrieved by the final decision on the application for approval.
422	422	(d) 1. The person seeking review under this section shall file pleadings, which
423	423	shall be served in the manner provided in ch. 801 for service in civil actions. The
424	424	pleadings shall specify facts demonstrating that the person has standing under par.
425	425	(c) and shall identify the specific errors the person claims justify the requested relief.
426	426	The political subdivision shall have 45 days to file an answer or other responsive
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453	453	SECTION 20 SENATE BILL 296
454	454	pleading to the complaint. The political subdivision shall transmit the record under
455	455	s. 781.03 (1) no later than 30 days after an answer or other responsive pleading is
456	456	filed.
457	457	2. The court shall require that any additional pleadings and any motions and
458	458	supporting papers be filed no later than 90 days after the expiration of the latest
459	459	deadline under subd. 1. for filing answers or other responsive pleadings. The court
460	460	may supplement the record on review only upon motion of a party for good cause.
461	461	3. The court shall give the action under this paragraph preference over all other
462	462	civil actions and proceedings.
463	463	4. The court shall decide the action under this paragraph upon the return made
464	464	by the political subdivision. The court may reverse or affirm the determination
465	465	brought up for review or remand to the political subdivision for further proceedings
466	466	consistent with the court's decision. The court shall issue a decision in writing no
467	467	later than 60 days after the deadline under subd. 2.
468	468	5. Any appeal of a decision issued under subd. 4. shall be taken within the time
469	469	period specified in s. 808.04 (1s).
470	470	SECTION 21. 781.10 (2) (a) of the statutes, as created by 2023 Wisconsin Act ....
471	471	(this act), is amended to read:
472	472	781.10 (2) (a) A Except as provided in s. 66.10016 (4), a final decision of a
473	473	political subdivision or an agency of a political subdivision on an application for an
474	474	approval may be reviewed only by an action for certiorari as provided under this
475	475	section.
476	476	SECTION 22. 808.04 (1s) of the statutes is created to read:
477	477	808.04 (1s) An appeal under s. 781.10 (2) (d) 5. shall be initiated within 30 days
478	478	after the date of entry of the judgment or order appealed from.
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506	506	SECTION 23
507	507	SENATE BILL 296
508	508	SECTION 23. 809.108 of the statutes is created to read:
509	509	809.108 Appeals in proceedings related to political subdivision
510	510	approvals. (1) APPLICABILITY. This section applies to the appeal of a judgment or
511	511	order under s. 781.10 (2) (d) 5. and supersedes all inconsistent provisions of this
512	512	chapter.
513	513	(2) INITIATING AN APPEAL. A party may initiate an appeal under this section by
514	514	filing a notice of appeal with the clerk of the circuit court in which the judgment or
515	515	order appealed from was entered and shall specify in the notice of appeal the
516	516	judgment or order appealed from.
517	517	(3) APPEAL PROCEDURE. Subsequent proceedings in an appeal under this section
518	518	are governed by the procedures for civil appeals under this subchapter and the
519	519	procedures under subch. VI, except as follows:
520	520	(a) The appellant shall file a brief within 30 days after the filing of the record
521	521	on appeal.
522	522	(b) The respondent shall file a brief within 30 days after the service of the
523	523	appellant's brief.
524	524	(c) The appellant shall file within 15 days after the service of the respondent's
525	525	brief a reply brief or statement that a reply brief will not be filed.
526	526	(4) DECISION. The court of appeals shall give preference to an appeal under this
527	527	section and shall take the appeal in an order that ensures that the court of appeals
528	528	issues a decision no later than 90 days after the deadline under sub. (3) (c).
529	529	SECTION 24.0Initial applicability.
530	530	(1) This act first applies to a final decision, including a final decision on an
531	531	approval, as defined in s. 781.10 (1) (a), made by a political subdivision, as defined
532	532	in s. 781.10 (1) (b), on the effective date of this subsection.
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557	557	25 - 12 -2023 - 2024 Legislature LRB-3065/1
558	558	EVM&KRP:emw&amn
559	559	SECTION 25 SENATE BILL 296
560	560	SECTION 25.0Effective dates. This act takes effect on the day after publication,
561	561	except as follows:
562	562	(1) The renumbering of s. 66.10015 (3), the amendment of s. 781.10 (2) (a), the
563	563	repeal and recreation of s. 66.10015 (3) (title), and the creation of ss. 66.10015 (1m)
564	564	and (3) (a) and 66.10016 take effect on January 1, 2025.
565	565	(END)
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