Wisconsin Legislative Council
ACT MEMO
One Ea st Ma in Stre e t, Suite 401 • Ma dison, W I 53703 • (608) 266-1304 • le g.council@le gis.wisconsin.gov • http://www.le gis.wisconsin.gov/lc
Prepared by: David Moore, Principal Attorney April 9, 2024
2023 Wisconsin Act 157
[2023 Senate Bill 413]
Highway Setback Areas
2023 Wisconsin Act 157 establishes parameters governing the Department of Transportation’s (DOT)
authority to regulate “highway setback areas.” For this purpose, the act defines “highway setback area”
to mean “an area abutting a highway in which the construction or placement of structures
1
and
improvements
2
is prohibited without a special exception permit issued by the department consistent
with [the act’s provisions].”
Under the act, all of the following apply to a highway setback area maintained by DOT:
A highway setback area established after March 23, 2024, may not extend more than 50 feet from
the right-of-way of the highway.
DOT’s authority to impose a setback requirement is limited to regulating structures and
improvements 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.
Similarly, DOT may only prohibit the placement of any structure or improvement in the highway
setback area 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.
DOT may order the removal, at the owner’s expense, of any structure or improvement located in a
highway setback area, except that it may not order removal if either: the owner demonstrates that
the structure or improvement was placed prior to establishing the highway setback area; or a special
exception is granted for the setback or improvement.
DOT must provide a procedure for an owner of property subject to a highway setback area to
request a special exception to a requirement.
1
The term “structure,” under the act, “includes a temporary or permanent addition to or betterment of real property
that is not portable 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.
2
“Improvement,” under the act, “means any permanent addition to or betterment of real property that involves the
expenditure of labor or money to make the property more useful or valuable.” The term “includes parking lots, parallel
driveways, surface or sub-surface utility structures, storm water facilities, loading docks, in-ground swimming pools,
wells, septic systems, retaining walls, signs, buildings, building appendages such as porches, and drainage facilities.” It
does not include “terraces, patios, landscaping, or open fences.” - 2 -
The act provides detailed requirements for DOT’s special exception procedure. Specifically, under the
act, this procedure must adhere to and include all of the following:
DOT may only 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 if it finds that substantial evidence
3
demonstrates the risk.
If DOT imposes a requirement in connection with granting a special exception, the requirement
must be: consistent with the department’s general authority to regulate or prohibit setback areas
under the act; related to the purpose of the highway setback area; based on substantial evidence;
reasonable; and, to the extent practicable, measurable.
As a condition of a special exception, DOT must require 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. This waiver must be recorded in a document that
meets various requirements. DOT may also record a renewal of a waiver one time for up to another
20 years if the department has any projects planned within the improvement program or has any
documented future plans for corridor or spot location improvement.
DOT must grant the special exception if an owner demonstrates by substantial evidence that the
application and all relevant requirements and conditions are or shall be satisfied.
An application for a special exception must be filed in the regional office in which the property is
located. If the application is denied and the owner files a written request within 30 days, DOT must
review the decision. If DOT confirms or modifies the decision of the regional office, DOT must
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.
DOT must provide accurate and current information about the special exception process on its
website.
Effective date: March 23, 2024
For a full history of the bill, visit the Legislature’s bill history page.
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3
The act defines “substantial evidence” to mean “facts and information, other than merely personal preferences or
speculation, directly pertaining to public safety of the preservation 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.”