Date of enactment:
2023 Senate Bill 413 Date of publication*:
2023 WISCONSIN ACT
AN ACT to create 86.074 of the statutes; relating to: highway setback areas.
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 and improvements is prohibited without a spe-
cial exception permit issued by the department consistent
with the terms of sub. (2).
(b) “Improvement” means any permanent addition to
or betterment of real property that involves the expendi-
ture of labor or money to make the property more useful
or valuable. “Improvement” includes parking lots, paral-
lel driveways, surface or sub−surface utility structures,
storm water facilities, loading docks, in−ground swim-
ming pools, wells, septic systems, retaining walls, signs,
buildings, building appendages such as porches, and
drainage facilities. “Improvement” does not include ter-
races, patios, landscaping, or open fences.
(c) “Special exception” means a special exception
permit or waiver of requirement relating to placement of
a structure or improvement in a highway setback area.
(d) “Structure” includes a temporary or permanent
addition to or betterment of real property that is not porta-
ble in nature, but that adversely affects 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. “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, or
natural features, including landscaping or berms.
(e) “Substantial evidence” means facts and informa-
tion, other than merely personal preferences or specula-
tion, directly pertaining to public safety or the preserva-
tion of public interest and investment in state trunk or
connecting highways, and directly pertaining to or the
requirements and conditions an owner must meet to
obtain a special exception 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) A highway setback area established after the
effective date of this paragraph .... [LRB inserts date],
shall extend not more than 50 feet from the right−of−way
line of the highway.
(b) Any setback requirement imposed by the depart-
ment under this section may regulate only structures and
improvements that adversely affect the safety of entrance
upon or departure from state trunk or connecting high-
ways or the preservation of public interest and invest-
ment in those highways, as determined by the department
in its reasonable discretion.
(c) Notwithstanding par. (b), the department may
prohibit the placement of any structure or improvement
* Section 991.11, WISCONSIN STATUTES: Effective date of acts. “Every act and every portion of an act enacted by the legislature over the governor’s
partial veto which does not expressly prescribe the time when it takes effect shall take effect on the day after its date of publication.” − 2 −2023 Wisconsin Act 2023 Senate Bill 413
in the highway setback area only if the structure or
improvement adversely affects the safety of the entrance
upon or departure from the state trunk or connecting
highways, or the preservation of the public interest and
investment in those highways, as determined by the
department in its reasonable discretion. The department
may order the removal, at the owner’s expense, of any
structure or improvement located in a highway setback
area unless the owner demonstrates that the structure or
improvement was placed prior to establishing the high-
way setback area or a special exception is granted for the
structure or improvement.
(d) The department shall establish a special excep-
tion process to allow an owner to obtain a special excep-
tion to the requirements of par. (b) or (c).
(e) The requirements imposed by the department
under this section relating to the placement of a structure
or improvement in a highway setback area shall include
a procedure by which an owner of the property subject to
a highway setback area may request a special exception
to a requirement. The special exception procedure under
this paragraph applies to a person affected by a highway
setback area, whenever the highway setback area
requirement was established by the department. The pro-
cedure shall adhere to and include all of the following:
1. The department may not deny a special exception
request due to a risk to public safety or to the preservation
of the public interest and investment in the highway
unless the department finds that substantial evidence
demonstrates the risk.
2. The department may impose on an owner only the
requirements and conditions consistent with par. (b) or
(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 depart-
ment shall require as a condition of a special exception
that the owner waive any claim or right to 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 special
exception. If the department has any projects planned
within the improvement program or has documented
future plans for corridor or spot location improvement,
the department may record a renewal of a waiver under
this subdivision one time for up to another 20 years from
the date of expiration of the original special exception.
The department shall record a document notarized with
the owner and department representative’s signature in
the property subject to the special exception’s chain of
title setting forth the owner’s waiver under this subdivi-
sion for the period set forth in this subdivision. The
recorded document shall state that the waiver under this
subdivision waives any right to compensation, relocation
assistance, or damages associated with the department’s
acquisition of the structure or improvement for a trans-
portation improvement, including any damage to prop-
erty outside the setback caused by removal of the struc-
ture or improvement in the setback that was allowed by
special exception and that the waiver is binding upon
future owners of the property and runs with the land. All
costs of recording shall be paid by the owner. The depart-
ment may not pay damages for any structure or improve-
ment that is subject to a valid special exception and
waiver under this subdivision.
3. If an owner 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 special exception.
4. An owner shall file an application for a special
exception in the regional office of the department in
which the property is located. If a regional office of the
department denies a request for a special exception or
revokes a special exception, the department shall, upon
written request by the owner within 30 days after the
denial, review the decision of the regional office. After
review, the department may reverse, confirm, or modify
the decision of the regional office. If the department con-
firms or modifies the decision of the regional office, the
department shall notify the owner of the action and the
grounds for the action and shall also notify the owner of
a right to a hearing before the division of hearings and
appeals. Upon written request by the owner within 30
days after the notice is mailed to the owner, the division
of hearings and appeals shall schedule a hearing to be
held within 60 days after receipt of the request.
(f) The department shall provide accurate and current
information about the special exception process on the
department’s website.