December 21, 2015
I am writing to alert you to a recently introduced bill that, if passed into law, will have
profound implications on the ability of local government to protect its residents from
unexpected developments including sand mines and industrial sites.
The bill, Assembly Bill 582, written by Senator Lasee and Representative Jarchow would
affect local government in a number of ways.
The bill expands the legal concept of “vested property rights” – that is, because I own
property, I have a right to do what I want on the property – to limit the actions of local
government. Some argue that if one owns property, one should be able to do anything on
The problem comes when my use of my property impinges on everyone else’s rights to
“Domestic Tranquility,” promoting the “General Welfare,” securing “the Blessings of
Liberty” or “Our Posterity” to quote the United States Constitution.
The bill builds on changes made to the law in 2013. Senator Lasee wrote a bill related to
“development related permits,” which became Act 74 and Sec. 66.10015 of the
Wisconsin Statutes. As I understand it, Wisconsin law says that a person has no “vested
right” to existing zoning. But, under limited circumstances, a person’s rights have been
vested so that zoning and other regulations cannot be changed.
Act 74 expanded “vested rights” to include a variety of local permits – not just a building
permit – extended “vested rights” to other political subdivisions, and stated the “vesting”
occurred upon the filing of an application. The law shifted the burden of determining
compliance with the existing ordinance from the developer to local government – which
was given 10 days to notify the applicant of any noncompliance.
Act 74 created limits on this new “vested right.” The right was only on a “project”
defined as a “specific and identifiable land development that occurs on defined and
adjacent parcels of land.” Local government could identify an expiration date for the
During the Senate debate on Act 74, I asked Senator Lasee if the bill applied to sand
mines. After consultation with our legislative attorneys, he told the Senate the bill only
applied to subdivisions and housing development. However, Act 74 went much farther to
include “a permit or authorization for building, zoning, driveway, stormwater, or other
activity related to land development.”
Assembly Bill 582 builds on Act 74 and goes much further still.
The bill seems to freeze the requirements and prohibitions of all levels of government at
the time of the first application. For example, on the date a person applies for a driveway
permit and discloses the proposed project, the ordinances, and rules of all levels of
government are frozen on that date provided the driveway is constructed within any
stated deadline – even though some aspects of the project may not be completed for many
There is no way a town could set an expiration date for a permit for a driveway if the
granting of that permit allowed the developer to proceed with an industrial operation –
like a sand mine – that involved approval across political subdivisions and could include
the state. And if the developer first sought permission for a minor permit from the state,
local government might not even know the granting of that permit would mean the entire
project had become a “vested right” of the developer.
The bill changes the definition of the words “approval” and “project.” A project is clearly
not limited to a housing development. A project is any “improvement activity or use” and
could include a sand mine or a fireworks factory. Conceivably a developer could file an
application for a state culvert permit to be used as part of a frac sand mine, attach a map
of the potential land and prevent any additional local regulation for any of the parcels of
land used for that purpose.
AB 582 eliminates the requirement that the parcels be adjacent – meaning the developer
could seek a culvert or driveway permit and develop several thousand acres scattered in
another town and freeze zoning for all those parcels. The bill also gives “vested rights”
retroactively. If passed into law, AB 582 would apply to any project not finally
approved by the time the bill is passed. The bill would also apply to any “pending” court
The provisions related to projects not yet approved and pending court cases make me
think there are many implications we do not yet know. I fear these implications may not
become public until after the bill becomes law.
As you can tell by my description – the bill is complex. There are questions for which I
still do not have answers. For example, the bill “invalidates any ordinance, resolution, or
policy currently in effect that is inconsistent with the prohibitions in the bill”. How farreaching
is this language?
The bill also directs the courts “to resolve any ambiguity in a matter involving a zoning
ordinance or shoreland zoning ordinance in favor of the free use of private property.” Can
the legislature direct the courts how to resolve a case?
I had several conversations with legal experts and am blessed to have several constituents
who are experienced former judges and attorneys who helped me understand the bill. I
am still discovering the implications of this legislation, but what I learned thus far seems
so serious I wanted you to know what I discovered as soon as possible.
There are a few of other provisions in AB 582 related to local abilities:
• The bill would prohibit a county from taking a breather (development
moratorium) while a comprehensive zoning amendment or a bourgeoning
development previously unanticipated is studied and thoughtfully
• Local government must notify every landowner of every property affected by
a zoning change. They no longer have to keep a list of people who asked to be
notified of zoning changes. The county cannot charge the developer or
anyone else for the cost of providing the notification. I learned of two
possible implications of the change. There are both citizens and advocacy
groups who want to be notified of zoning changes. Given the list is no longer
required, they would not be guaranteed notification unless their property
was impacted. Second, a large area of land (for example a zoning overlay
district) might be affected by a zoning change. Notifying each landowner
could cost the county thousands of dollars.
• Non-conforming structures on shoreland could be torn down and replaced
with another non-conforming structure that is, in part, located on the original
building’s footprint. Zoning permits non-conforming structures to remain,
but prohibits expansion in the hopes that over the decades all properties will
• A town’s comprehensive plan may not prohibit any use specified as a
conditional use in a zoning ordinance enacted by a town. Here I think of a
town acting to prohibit sand mines allowed by conditional use permits.
• Makes “down zoning” more difficult and probably ineffective. Down zoning is
moving a housing use, for example, from multiple to single families. It is
sometimes used to recast zoning when development plans do not correlate
with the projection of developers or to protect housing stock in vulnerable
neighborhoods from developers who would break up single-family homes
and convert them to multi-tenant buildings. The bill also requires a threequarters
vote. Because most towns have only three supervisors, it is actually
a unanimous vote. Requiring a unanimous vote is unprecedented in town
government and likely all local government.
• Land awaiting development would be taxed according to its prior use
(agriculture, forest, etc.) rather than an assessment of its true value.
One consequence of this bill is to create a race between a developer, builder or contractor
against local government. If the developer can get the project started before the final
action is taken on a change made by local government, an inappropriate ‘non-conforming
use’ is created and may continue indefinitely.
The filing of a seemingly minor permit can trigger a freeze in all local regulation. This
bill would eliminate the ability of local government to respond to an unanticipated major
development or change in land use. All I can think is that few, if any of us, anticipated in
2008 the ‘sand rush’ beginning in 2010. What new use for land might emerge that is not
now codified in existing zoning ordinances?
Land use ordinances, zoning, subdivision regulations, shoreland zoning restrictions all
came about to protect our communities from willy-nilly development. We – collectively
– wanted a nice place to live and raise our families. People do not want industrial sites
like fireworks factories next door to their piece of paradise. This bill takes away the
collective rights of the community and the individual rights of landowners adjacent to
developers. The bill gives rights to developers who may not live anywhere near the
development from which they will profit.
You can find a copy of the bill and follow its progress in the Legislature at the following
I urge you to oppose the bill, encourage your fellow citizens to oppose the bill, contact
your representatives and join local government in passing resolutions opposing the bill.
Please work with any local or statewide groups to oppose the bill.
Thank you for your work to make our communities a great place to live, work, play and
raise a family. I appreciate all the hours you put in to keep our neighborhoods great.
I wish you and your family a very Happy Holiday season.
Senator Kathleen Vinehout