(1) Except as
provided in this section or in s.
Trans
233.11 or, with respect to connecting highways, as
provided in s.
86.16(1),
Stats., no person may erect, install or maintain any structure or improvement
within a setback area determined under sub. (2) or (3).
(2)
(a)
Except as provided in par. (b), the setback area is the area within 110 feet of
the centerline of a state trunk highway or connecting highway or within 50 feet
of the nearer right-of-way line of a state trunk highway or connecting highway,
whichever is furthest from the centerline.
(b) If an applicable ordinance allows
structures or improvements to be located closer to the right-of-way of a state
trunk highway or connecting highway than is provided under par. (a), the
setback area is the area between the right-of-way and the more restrictive of
the following:
1. The distance allowed under
the ordinance.
2. 42 feet from the
nearer right-of-way line.
3. 100
feet from the centerline.
(c) At least once every 2 years, the
department shall produce general reference maps that generally identify major
intersections and the highways specified in subds. 1. to 5. The department may
reduce or extend, by not more than 3 miles along the highway, the area subject
to a setback established under par. (a) or (b) to establish logical continuity
of a setback area or to terminate the setback area at a readily identifiable
physical feature or legal boundary, including a highway or property boundary.
Persons may seek special exceptions to the setback requirement applicable to
these major intersections and highways, as provided in s.
Trans
233.11(3). The setback area
established under par. (a) or (b) applies only to major intersections and to
highways identified as:
1. State trunk
highways and connecting highways that are part of the national highway system
and approved by the federal government in accordance with
23 USC
103(b) and 23 CFR
470.107(b).
2. State trunk highways
and connecting highways that are functionally classified as principal arterials
in accordance with procedure 4-1-15 of the department's facilities development
manual dated July 2, 1979.
3. State
trunk highways and connecting highways within incorporated areas, within an
unincorporated area within 3 miles of the corporate limits of a first, second
or third class city, or within an unincorporated area within 11/2 miles of a
fourth class city or a village.
4.
State trunk highways and connecting highways with average daily traffic of
5,000 or more.
5. State trunk
highways and connecting highways with current and forecasted congestion
projected to be worse than level of service "C," as determined under s.
Trans
210.05(1), within the following 20
years.
Note: The National Highway System (NHS) includes the Interstate
System, Wisconsin's Corridors 2020 routes, and other important routes. Highways
on the NHS base system were designated by the Secretary of USDOT and approved
by Congress in the National Highway System Designation Act of 1995. NHS
Intermodal Connector routes were added in 1998 with the enactment of the
Transportation Equity Act for the 21st Century. Modifications to the NHS must
be approved by the Secretary of USDOT. Guidance criteria and procedures for the
functional classification of highways are provided in (1) the Federal Highway
Administration (FHWA) publication 'Highway Functional Classification-Concepts,
Criteria and Procedures" revised in March 1989, and (2) former ch. Trans 76.
The federal publication is available on request from the FHWA, Office of
Environment and Planning, HEP-10, 400 Seventh Street, SW., Washington, DC
20590. Former ch. Trans 76 is available from the Wisconsin Department of
Transportation, Division of Transportation Investment Management, Bureau of
Planning. The results of the functional classification are mapped and submitted
to the Federal Highway Administration (FHWA) for approval and when approved
serve as the official record for Federal-aid highways and one basis for
designation of the National Highway System. In general, the highway functional
classifications are rural or urban: Principal Arterials, Minor Arterials, Major
Collectors, Minor Collectors, and Local Roads. The definition of "level of
service" used for this paragraph is the same as in ss.
Trans
210.03(4) and
210.05(1) for
purposes of the MAJOR HIGHWAY PROJECT NUMERICAL EVALUATION PROCESS. In general,
the "level of service" refers to the ability of the facility to satisfy both
existing and future travel demand. Six levels of service are defined for each
type of highway facility ranging from A to F, with level of service A
representing the best operating conditions and level of service F the worst.
Department engineers will use the procedures outlined in the general design
consideration guidelines in Chapter 11, Section 5 of the Wisconsin Department
of Transportation's Facilities Development Manual to determine the level of
highway service. Under the rule as effective February 1, 1999, s.
Trans
233.08(1) provides 4 ways to erect
something in a setback area (1) for utilities, follow the procedures set forth
in the rule, (2) obtain a variance (now "special exception"), (3) for
utilities, get local approval for utilities on or adjacent to connecting
highways, or for utilities within the right of way of state trunk highways, get
department approval (a mere "technical" exception), and (4) erect something
that doesn't fall within the definition of "structure" or within the definition
of "improvement." The provision below now adds a fifth "exception," (5) be 15
feet or more outside the right of way line of a defined and mapped set of
highways.
(d) In
addition to producing general reference maps at least once every 2 years that
identify highways and intersections under par. (c), at least every 2 years the
department shall also produce more detailed reference maps suitable for use in
the geographic area of each district office.
(3) If any portion of a service road
right-of-way lies within the setback area determined under sub. (2), the
setback area shall be increased by the lesser of the following:
(a) The width of the service road
right-of-way, if the entire service road right-of-way lies within the setback
area. Any increase under this paragraph shall be measured from the boundary of
the setback area determined under sub. (2).
(b) The distance by which the service road
right-of-way lies within the setback area, if the entire service road
right-of-way does not lie within the setback area. Any increase under this
paragraph shall be measured from the nearer right-of-way line of the service
road.
Note: For example, if a service road ROW extends 15 feet
(measured perpendicularly to the setback) into the setback determined under
sub. (2), and runs for a distance of 100 feet, the setback determined under
sub. (2) shall be pushed 15 feet further from the centerline, running for a
distance of 100 feet. See Graphic.
(3m)
(a)
Notwithstanding sub. (1), a public utility may erect, install or maintain a
utility facility within a setback area.
(b) If the department acquires land that is
within a setback area for a state trunk highway, as provided by this chapter,
and on which a utility facility is located, the department is not required to
pay compensation or other damages relating to the utility facility, unless the
utility facility is any of the following:
1.
Erected or installed before the land division map is recorded.
2. Erected or installed on a recorded utility
easement that was acquired prior to February 1, 1999.
3. Erected or installed after the land
division map is recorded but with prior notice in writing, with a plan showing
the nature and distance of the work from the nearest right-of-way line of the
highway, to the department's appropriate district office within a normal time
of 30 days, but no less than 5 days, before any routine, minor utility erection
or installation work commences, nor less than 60 days, before any major utility
erection or installation work commences, if any utility work is within the
setback.
Note: For purposes of this section, "major utility erection or
installation work" includes, but is not limited to, work involving transmission
towers, communication towers, water towers, pumping stations, lift stations,
regulator pits, remote switching cabinets, pipelines, electrical substations,
wells, gas substations, antennae, satellite dishes, treatment facilities,
electrical transmission lines and facilities of similar magnitude. "Routine
minor utility erection or installation work" refers to single residential
distribution facilities and similar inexpensive work of less magnitude. The
concept behind the flexible, "normal time of 30 days" standard for utility
submission of notice and plans to the department is to encourage and require at
least 60 days notice from utilities for larger, complex or expensive
installations, but not for routine, minor utility work that has traditionally
involved only a few days notice for coordination and issuance of utility
permits by the department for which a minimum of 5 days notice is mandatory.
However, the normal time for submission and review is 30 days. This notice and
plan requirement does not apply to maintenance work on existing
utilities.
4. Erected or
installed before the land division map is recorded but modified after that date
in a manner that increases the cost to remove or relocate the utility facility.
In such a case, the department shall pay compensation or other damages related
to the utility facility as it existed on the date the land division map was
recorded, except that if the modification was made with prior notice in
writing, with a plan showing the nature and distance of the work from the
nearest right-of-way line of the highway, to the department's appropriate
district office within a normal time of 30 days, but no less than 5 days,
before any routine, minor utility erection or installation work commences, nor
less than 60 days, before any major utility erection or installation work
commences, if any utility work is within the setback, then the department shall
pay compensation or other damages related to the utility facility as
modified.
(c) If a local
unit of government or the department acquires land that is within a setback
area for a connecting highway as provided by this chapter and on which a
utility facility is located, the department is not required to pay compensation
or other damages relating to the utility facility, unless the utility facility
is compensable under the applicable local setbacks and the utility facility is
in any of the categories described in par. (b) 1. to 4.
Note: A "connecting highway" is not a state trunk highway. It
is a marked route of the state trunk highway system over the streets and
highways in municipalities which the Department has designated as connecting
highways. Municipalities have jurisdiction over connecting highways and are
responsible for their maintenance and traffic control. The Department is
generally responsible for construction and reconstruction of the through lanes
of connecting highways, but costs for parking lanes and related municipal
facilities and other desired local improvements are local responsibilities. See
ss. 84.02(11),
84.03(10),
86.32(1) and
(4), and
340.01(60),
Stats. A listing of connecting highways and geographic end points are available
in the department's "Official State Trunk Highway System and the Connecting
Highways" booklet that is published annually as of December 31.
(d) The department shall review
the notice and plan to determine whether a planned highway project within a
6-year improvement program under s.
84.01(17),
Stats., or a planned major highway project enumerated under s.
84.013(3),
Stats., will conflict with the planned utility facility work. If the department
determines a conflict exists, it will notify the utility in writing within a
normal time of 30 days, but no more than 5 days, after receiving the written
notice and plan for any routine, minor utility erection or installation work,
nor more than 60 days, after receiving the written notice and plan for any
major utility erection or installation work, and request the utility to
consider alternative locations that will not conflict with the planned highway
work. The department and utility may also enter into a cooperative agreement to
jointly acquire, develop and maintain rights of way to be used jointly by
WISDOT and the public utility in the future as authorized by s.
84.093, Stats. If the department
and utility are not able to make arrangements to avoid or mitigate the
conflict, the utility may proceed with the utility work, but notwithstanding
pars. (b) and (c), the department may not pay compensation or other damages
relating to the utility facility if it conflicts with the planned highway
project. In order to avoid payment of compensation or other damages to the
utility, the department is required to record a copy of its written notice to
the utility of the conflict, that adequately describes the property and utility
work involved, with the register of deeds in the county in which the utility
work or any part of it is located.
Note: The Department will make the general and detailed maps
readily available to the public on the internet and through other effective
means of distribution.
(3n) Any person may erect, install or
maintain any structure or improvement at 15 feet and beyond from the nearer
right-of-way line of any state trunk highway or connecting highway not
identified in s.
Trans 233.08(2)
(c). Any person may request a special
exception to the setback requirement established under this subsection, as
provided in s.
Trans
233.11(3). This subsection does not
apply to major intersections or within the desirable stopping sight distance,
as determined under procedure 11-10-5 of the department's facilities
development manual dated June 10, 1998, of the intersection of any state trunk
highway or connecting highway with another state trunk highway or connecting
highway. This subsection does not supersede more restrictive requirements
imposed by valid applicable local ordinances.
Note: Technical figures 2, 3, 3m, 4, 4m, 5, 6 and 6m within
Procedure 11-10-5 have various dates other than June 10, 1998 or are
undated.
(4) The land
division map shall show the boundary of a setback area on the face of the land
division map and shall clearly label the boundary as a highway setback line and
shall clearly show existing structures and improvements lying within the
setback area.
(5) The owner shall
place the following restriction upon the same sheet of the land division map
that shows the highway setback line:
"No improvements or structures are allowed between the
right-of-way line and the highway setback line. Improvements and structures
include, but are not limited to, signs, parking areas, driveways, wells, septic
systems, drainage facilities, buildings and retaining walls. It is expressly
intended that this restriction is for the benefit of the public as provided in
section 236.293, Wisconsin Statutes, and
shall be enforceable by the Wisconsin Department of Transportation or its
assigns. Contact the Wisconsin Department of Transportation for more
information. The phone number may be obtained by contacting the County Highway
Department."
If on a CSM there is limited space for the above restriction on
the same sheet that shows the setback line, then the following abbreviated
restriction may be used with the standard restriction placed on a subsequent
page: "Caution - Highway Setback Restrictions Prohibit Improvements. See sheet
______."
Notes
Wis. Admin. Code
Department of Transportation
Trans 233.08
Cr. Register, January,
1999, No. 517, eff. 2-1-99; cr. (2) (c), (d) and (3n), Register, January, 2001,
No. 541, eff. 2-1-01.
