| 1 | | - | Date of enactment: March 21, 2024 |
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| 2 | | - | 2023 Senate Bill 413 Date of publication*: March 22, 2024 |
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| 3 | | - | 2023 WISCONSIN ACT 157 |
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| 4 | | - | AN ACT to create 86.074 of the statutes; relating to: highway setback areas. |
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| 5 | | - | The people of the state of Wisconsin, represented in |
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| 6 | | - | senate and assembly, do enact as follows: |
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| 1 | + | LRB-3897/1 |
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| 2 | + | EVM&KRP:skw |
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| 3 | + | 2023 - 2024 LEGISLATURE |
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| 4 | + | 2023 SENATE BILL 413 |
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| 5 | + | September 8, 2023 - Introduced by Senators TOMCZYK, FEYEN and STAFSHOLT, |
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| 6 | + | cosponsored by Representatives MURPHY, O'CONNOR, BODDEN, DITTRICH, |
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| 7 | + | GREEN, GUNDRUM and WITTKE. Referred to Committee on Transportation and |
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| 8 | + | Local Government. |
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| 9 | + | AN ACT to amend 236.13 (1) (e); and to create 86.074 of the statutes; relating |
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| 10 | + | to: highway setback areas and the Department of Transportation's authority |
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| 11 | + | to approve subdivision plats. |
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| 12 | + | Analysis by the Legislative Reference Bureau |
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| 13 | + | This bill limits the authority of the Department of Transportation with regard |
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| 14 | + | to any highway setback requirements maintained by DOT. In particular, under the |
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| 15 | + | bill, the authority of DOT is limited in the following ways: |
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| 16 | + | 1. A setback area regulated by DOT may not extend more than 50 feet from the |
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| 17 | + | nearest edge of the right-of-way of the highway. |
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| 18 | + | 2. Any setback requirements imposed by DOT may regulate only structures |
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| 19 | + | that adversely affect the safety of entrance upon or departure from state trunk or |
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| 20 | + | connecting highways or the preservation of public interest and investment in those |
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| 21 | + | highways. |
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| 22 | + | 3. DOT must provide a procedure by which a person affected by setback |
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| 23 | + | requirements may request a variance to a requirement. |
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| 24 | + | 4. DOT must provide accurate and current information about its setback |
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| 25 | + | requirements on its website. |
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| 26 | + | Under current law, DOT reviews, and has the right to object to, maps of certain |
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| 27 | + | divisions of land that abut or adjoin state trunk highways or connecting highways |
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| 28 | + | (plats). Currently, DOT reviews a plat to determine whether DOT has any objection |
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| 29 | + | based on the plat failing to comply with the rules of DOT relating to provision for the |
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| 30 | + | safety of entrance upon and departure from the abutting state trunk highways or |
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| 32 | + | 2 |
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| 33 | + | 3 - 2 -2023 - 2024 Legislature LRB-3897/1 |
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| 34 | + | EVM&KRP:skw |
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| 35 | + | SENATE BILL 413 |
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| 36 | + | connecting highways and for the preservation of the public interest and investment |
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| 37 | + | in such highways. The bill specifies that, as part of DOT's review, DOT must review |
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| 38 | + | the plat for compliance with DOT's requirements regarding variance requests |
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| 39 | + | related to setbacks created in the bill. |
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| 40 | + | For further information see the state fiscal estimate, which will be printed as |
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| 41 | + | an appendix to this bill. |
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| 42 | + | The people of the state of Wisconsin, represented in senate and assembly, do |
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| 43 | + | enact as follows: |
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| 9 | | - | (a) “Highway setback area” means an area abutting |
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| 10 | | - | a highway in which the construction or placement of |
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| 11 | | - | structures and improvements is prohibited without a spe- |
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| 12 | | - | cial exception permit issued by the department consistent |
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| 13 | | - | with the terms of sub. (2). |
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| 14 | | - | (b) “Improvement” means any permanent addition to |
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| 15 | | - | or betterment of real property that involves the expendi- |
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| 16 | | - | ture of labor or money to make the property more useful |
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| 17 | | - | or valuable. “Improvement” includes parking lots, paral- |
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| 18 | | - | lel driveways, surface or sub−surface utility structures, |
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| 19 | | - | storm water facilities, loading docks, in−ground swim- |
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| 20 | | - | ming pools, wells, septic systems, retaining walls, signs, |
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| 21 | | - | buildings, building appendages such as porches, and |
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| 22 | | - | drainage facilities. “Improvement” does not include ter- |
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| 23 | | - | races, patios, landscaping, or open fences. |
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| 24 | | - | (c) “Special exception” means a special exception |
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| 25 | | - | permit or waiver of requirement relating to placement of |
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| 26 | | - | a structure or improvement in a highway setback area. |
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| 27 | | - | (d) “Structure” includes a temporary or permanent |
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| 28 | | - | addition to or betterment of real property that is not porta- |
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| 29 | | - | ble in nature, but that adversely affects the safety of |
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| 30 | | - | entrance upon or departure from state trunk or connecting |
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| 31 | | - | highways or the preservation of public interest and |
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| 32 | | - | investment in those highways, as determined by the |
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| 33 | | - | department in its reasonable discretion. “Structure” does |
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| 34 | | - | not include items such as portable swing sets, movable |
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| 35 | | - | lawn sheds without pads or footings, above ground |
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| 36 | | - | swimming pools without decks, sidewalks, bike paths, or |
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| 37 | | - | natural features, including landscaping or berms. |
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| 38 | | - | (e) “Substantial evidence” means facts and informa- |
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| 39 | | - | tion, other than merely personal preferences or specula- |
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| 40 | | - | tion, directly pertaining to public safety or the preserva- |
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| 41 | | - | tion of public interest and investment in state trunk or |
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| 42 | | - | connecting highways, and directly pertaining to or the |
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| 43 | | - | requirements and conditions an owner must meet to |
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| 44 | | - | obtain a special exception and that reasonable persons |
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| 45 | | - | would accept in support of a conclusion. |
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| 46 | | - | (2) All of the following apply to any highway setback |
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| 47 | | - | area maintained by the department: |
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| 48 | | - | (a) A highway setback area established after the |
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| 49 | | - | effective date of this paragraph .... [LRB inserts date], |
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| 50 | | - | shall extend not more than 50 feet from the right−of−way |
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| 51 | | - | line of the highway. |
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| 52 | | - | (b) Any setback requirement imposed by the depart- |
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| 53 | | - | ment under this section may regulate only structures and |
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| 54 | | - | improvements that adversely affect the safety of entrance |
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| 55 | | - | upon or departure from state trunk or connecting high- |
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| 56 | | - | ways or the preservation of public interest and invest- |
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| 57 | | - | ment in those highways, as determined by the department |
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| 58 | | - | in its reasonable discretion. |
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| 59 | | - | (c) Notwithstanding par. (b), the department may |
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| 60 | | - | prohibit the placement of any structure or improvement |
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| 61 | | - | * 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 |
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| 62 | | - | 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 157 2023 Senate Bill 413 |
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| 63 | | - | in the highway setback area only if the structure or |
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| 64 | | - | improvement adversely affects the safety of the entrance |
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| 65 | | - | upon or departure from the state trunk or connecting |
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| 66 | | - | highways, or the preservation of the public interest and |
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| 67 | | - | investment in those highways, as determined by the |
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| 68 | | - | department in its reasonable discretion. The department |
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| 69 | | - | may order the removal, at the owner’s expense, of any |
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| 70 | | - | structure or improvement located in a highway setback |
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| 71 | | - | area unless the owner demonstrates that the structure or |
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| 72 | | - | improvement was placed prior to establishing the high- |
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| 73 | | - | way setback area or a special exception is granted for the |
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| 74 | | - | structure or improvement. |
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| 75 | | - | (d) The department shall establish a special excep- |
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| 76 | | - | tion process to allow an owner to obtain a special excep- |
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| 77 | | - | tion to the requirements of par. (b) or (c). |
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| 78 | | - | (e) The requirements imposed by the department |
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| 79 | | - | under this section relating to the placement of a structure |
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| 80 | | - | or improvement in a highway setback area shall include |
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| 81 | | - | a procedure by which an owner of the property subject to |
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| 82 | | - | a highway setback area may request a special exception |
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| 83 | | - | to a requirement. The special exception procedure under |
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| 84 | | - | this paragraph applies to a person affected by a highway |
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| 85 | | - | setback area, whenever the highway setback area |
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| 86 | | - | requirement was established by the department. The pro- |
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| 87 | | - | cedure shall adhere to and include all of the following: |
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| 88 | | - | 1. The department may not deny a special exception |
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| 89 | | - | request due to a risk to public safety or to the preservation |
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| 90 | | - | of the public interest and investment in the highway |
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| 91 | | - | unless the department finds that substantial evidence |
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| 92 | | - | demonstrates the risk. |
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| 93 | | - | 2. The department may impose on an owner only the |
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| 94 | | - | requirements and conditions consistent with par. (b) or |
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| 95 | | - | (c). Any requirement or condition imposed under this |
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| 96 | | - | subdivision shall be related to the purpose of the highway |
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| 97 | | - | setback area, based on substantial evidence, reasonable, |
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| 98 | | - | and, to the extent practicable, measurable. The depart- |
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| 99 | | - | ment shall require as a condition of a special exception |
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| 100 | | - | that the owner waive any claim or right to compensation |
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| 101 | | - | related to any structure or improvement constructed or |
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| 102 | | - | placed in the highway setback area if any portion of the |
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| 103 | | - | highway setback area is used for highway purposes |
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| 104 | | - | within 20 years of the date of issuance of the special |
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| 105 | | - | exception. If the department has any projects planned |
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| 106 | | - | within the improvement program or has documented |
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| 107 | | - | future plans for corridor or spot location improvement, |
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| 108 | | - | the department may record a renewal of a waiver under |
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| 109 | | - | this subdivision one time for up to another 20 years from |
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| 110 | | - | the date of expiration of the original special exception. |
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| 111 | | - | The department shall record a document notarized with |
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| 112 | | - | the owner and department representative’s signature in |
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| 113 | | - | the property subject to the special exception’s chain of |
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| 114 | | - | title setting forth the owner’s waiver under this subdivi- |
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| 115 | | - | sion for the period set forth in this subdivision. The |
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| 116 | | - | recorded document shall state that the waiver under this |
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| 117 | | - | subdivision waives any right to compensation, relocation |
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| 118 | | - | assistance, or damages associated with the department’s |
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| 119 | | - | acquisition of the structure or improvement for a trans- |
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| 120 | | - | portation improvement, including any damage to prop- |
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| 121 | | - | erty outside the setback caused by removal of the struc- |
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| 122 | | - | ture or improvement in the setback that was allowed by |
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| 123 | | - | special exception and that the waiver is binding upon |
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| 124 | | - | future owners of the property and runs with the land. All |
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| 125 | | - | costs of recording shall be paid by the owner. The depart- |
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| 126 | | - | ment may not pay damages for any structure or improve- |
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| 127 | | - | ment that is subject to a valid special exception and |
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| 128 | | - | waiver under this subdivision. |
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| 129 | | - | 3. If an owner demonstrates by substantial evidence |
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| 130 | | - | that the application and all requirements and conditions |
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| 131 | | - | imposed under subd. 2. are or shall be satisfied, the |
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| 132 | | - | department shall grant the special exception. |
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| 133 | | - | 4. An owner shall file an application for a special |
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| 134 | | - | exception in the regional office of the department in |
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| 135 | | - | which the property is located. If a regional office of the |
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| 136 | | - | department denies a request for a special exception or |
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| 137 | | - | revokes a special exception, the department shall, upon |
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| 138 | | - | written request by the owner within 30 days after the |
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| 139 | | - | denial, review the decision of the regional office. After |
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| 140 | | - | review, the department may reverse, confirm, or modify |
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| 141 | | - | the decision of the regional office. If the department con- |
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| 142 | | - | firms or modifies the decision of the regional office, the |
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| 143 | | - | department shall notify the owner of the action and the |
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| 144 | | - | grounds for the action and shall also notify the owner of |
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| 145 | | - | a right to a hearing before the division of hearings and |
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| 146 | | - | appeals. Upon written request by the owner within 30 |
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| 147 | | - | days after the notice is mailed to the owner, the division |
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| 148 | | - | of hearings and appeals shall schedule a hearing to be |
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| 149 | | - | held within 60 days after receipt of the request. |
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| 150 | | - | (f) The department shall provide accurate and current |
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| 151 | | - | information about the special exception process on the |
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| 152 | | - | department’s website. |
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| 46 | + | (a) “Highway setback area” means an area abutting a highway in which the |
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| 47 | + | construction or placement of structures is subject to requirements imposed by the |
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| 48 | + | department. |
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| 49 | + | (b) “Structure” includes a temporary or permanent addition to or betterment |
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| 50 | + | of real property that is not portable in nature. “Structure” does not include items |
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| 51 | + | such as portable swing sets, movable lawn sheds without pads or footings, above |
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| 52 | + | ground swimming pools without decks, sidewalks, bike paths, storm water facilities, |
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| 53 | + | or natural features, including landscaping or berms. |
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| 54 | + | (c) “Substantial evidence” means facts and information, other than merely |
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| 55 | + | personal preferences or speculation, directly pertaining to public safety or the |
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| 56 | + | requirements and conditions an applicant must meet to obtain a variance and that |
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| 57 | + | reasonable persons would accept in support of a conclusion. |
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| 58 | + | (2) All of the following apply to any highway setback area maintained by the |
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| 59 | + | department: |
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| 60 | + | (a) The highway setback area may not extend more than 50 feet from the |
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| 61 | + | nearest edge of the right-of-way of the highway. |
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| 79 | + | 18 - 3 -2023 - 2024 Legislature |
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| 80 | + | LRB-3897/1 |
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| 81 | + | EVM&KRP:skw |
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| 82 | + | SECTION 1 |
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| 83 | + | SENATE BILL 413 |
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| 84 | + | (b) The requirements imposed by the department may regulate only structures |
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| 85 | + | that adversely affect the safety of entrance upon or departure from state trunk or |
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| 86 | + | connecting highways or the preservation of public interest and investment in those |
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| 87 | + | highways, as determined by the department in its reasonable discretion. |
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| 88 | + | (c) The requirements imposed by the department shall include a specification |
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| 89 | + | of requirements and conditions that may be imposed as a condition of granting a |
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| 90 | + | variance to a requirement. |
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| 91 | + | (d) The requirements imposed by the department shall include a procedure by |
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| 92 | + | which a person affected by a highway setback area may request a variance to a |
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| 93 | + | requirement. The procedure shall include all of the following: |
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| 94 | + | 1. The department may not deny a variance request due to a risk to public |
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| 95 | + | safety unless the department finds that substantial evidence demonstrates the risk. |
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| 96 | + | 2. The department may impose on an applicant for a variance only |
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| 97 | + | requirements and conditions specified under par. (c). Any requirement or condition |
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| 98 | + | imposed under this subdivision shall be related to the purpose of the highway |
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| 99 | + | setback area, based on substantial evidence, reasonable, and, to the extent |
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| 100 | + | practicable, measurable. The department may require as a condition of a variance |
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| 101 | + | that the applicant waive any claim or right to relocation compensation related to any |
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| 102 | + | structure or improvement constructed or placed in the highway setback area if any |
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| 103 | + | portion of the highway setback area is used for highway purposes within 20 years of |
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| 104 | + | the date of issuance of the variance. |
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| 105 | + | 3. If an applicant demonstrates by substantial evidence that the application |
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| 106 | + | and all requirements and conditions imposed under subd. 2. are or shall be satisfied, |
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| 107 | + | the department shall grant the variance. |
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| 131 | + | 24 - 4 -2023 - 2024 Legislature LRB-3897/1 |
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| 132 | + | EVM&KRP:skw |
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| 133 | + | SECTION 1 SENATE BILL 413 |
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| 134 | + | 4. Any denial of a variance request may be appealed to the director of the |
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| 135 | + | regional office of the division of transportation system development in which the |
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| 136 | + | property is located. No later than 60 days after receiving an appeal, the director shall |
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| 137 | + | notify the applicant in writing of the director's decision. If the director does not notify |
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| 138 | + | the applicant in writing of the director's decision within 60 days after receiving the |
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| 139 | + | appeal, the variance request shall be considered approved. |
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| 140 | + | (e) The department shall provide accurate and current information about the |
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| 141 | + | highway setback area on the department's website. |
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| 142 | + | SECTION 2. 236.13 (1) (e) of the statutes is amended to read: |
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| 143 | + | 236.13 (1) (e) The rules of the department of transportation relating to |
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| 144 | + | provision for the safety of entrance upon and departure from the abutting state trunk |
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| 145 | + | highways or connecting highways and for the preservation of the public interest and |
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| 146 | + | investment in such highways, including the department of transportation's |
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| 147 | + | requirements and conditions regarding variance requests under s. 86.074 (2) (d). |
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| 148 | + | SECTION 3.0Initial applicability. |
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| 149 | + | (1) The treatment of s. 236.13 (1) (e) first applies to a preliminary or final plat |
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| 150 | + | that is submitted to the department of administration under s. 236.12 (2) (ac) on the |
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| 151 | + | effective date of this subsection. |
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| 152 | + | (END) |
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