(3)
(a)
Special exceptions for setbacks allowed. The department,
district office or, if authorized by a delegation agreement under sub. (7),
reviewing municipality may authorize special exceptions from this chapter only
in appropriate cases when warranted by specific analysis of the setback needs,
as determined by the department, district office or reviewing municipality. A
special exception may not be contrary to the public interest and shall be in
harmony with the general purposes and intent of ch. 236, Stats., and of this
chapter. The department, district office or reviewing municipality may grant a
special exception that adjusts the setback area or authorizes the erection or
installation of any structure or improvement within a setback area only as
provided in this subsection. The department, district office or reviewing
municipality may require such conditions and safeguards as will, in its
judgment, secure substantially the purposes of this chapter.
Note: The phrase "practical difficulty or unnecessary hardship"
has been eliminated from the rule that was effective February 1, 1999, to avoid
the adverse legal consequences that could result from the existing use of the
word "variance." The Wisconsin Supreme Court has interpreted "variance" and
this phrase to make it extremely difficult to grant "variances" and in so doing
has eased the way for third party legal challenges to many "variances"
reasonably granted. See State v. Kenosha County Bd. of Adjust., 218 Wis. 2d
396, 577 N.W.2d 813 (1998). The Supreme Court defined "unnecessary hardship" in
this context as an owner having "no reasonable use of the property without a
variance." Id. at 413. The "special exception" provision in this rule is not
intended to be so restrictive and has not been administered in so restrictive a
fashion. In the first year following revisions of ch. Trans 233, effective
February 1, 1999, the Department granted the vast majority of "variances"
requested, using a site and neighborhood-sensitive context based on specific
analysis.
(b)
Specific analysis for special exceptions for setbacks. Upon
request for a special exception from a setback requirement of this chapter, the
department, district office or reviewing municipality shall specifically
analyze the setback needs. The analysis may consider all of the following:
1. The structure or improvement proposed and
its location.
2. The vicinity of
the proposed land division and its existing development pattern.
3. Land use and transportation plans and the
effect on orderly overall development plans of local units of
government.
4. Whether the current
and forecasted congestion of the abutting highway is projected to be worse than
level of service "C," as determined under s.
Trans
210.05(1), within the following 20
years.
5. The objectives of the
community, developer and owner.
6.
The effect of the proposed structure or improvement on other property or
improvements in the area.
7. The
impact of potential highway or other transportation improvements on the
continued existence of the proposed structure or improvement.
8. The impact of removal of all or part of
the structure or improvement on the continuing viability or conforming use of
the business, activity, or use associated with the proposed structure or
improvement.
9. Transportation
safety.
10. Preservation of the
public interest and investment in the highway.
11. Other criteria to promote public purposes
consistent with local ordinances or plans for provision for light and air,
providing fire protection, solving drainage problems, protecting the appearance
and character of a neighborhood, conserving property values, and, in particular
cases, to promote aesthetic and psychological values as well as ecological and
environmental interests.
(c)
Adjust setback. If the
department, district office or reviewing municipality grants a special
exception by adjusting the setback area, the department shall pay just
compensation for any subsequent department-required removal of any structure or
improvement that the department has allowed outside of the approved, reduced
setback area on land that the department acquires for a transportation
improvement. The department may not decrease the 15 foot setback distance
established under s.
Trans
233.08(3n), except in conformity with
a comprehensive local setback ordinance, generally applicable to the vicinity
of the land division, that expressly establishes a closer setback
line.
(d)
Allow in setback
- removal does not affect viability. The department, district office
or reviewing municipality may authorize the erection of a structure or
improvement within a setback area only if the department, district office or
reviewing municipality determines that any required removal of the structure or
improvement, in whole or in part, will not affect the continuing viability or
conforming use of the business, activity, or use associated with the proposed
structure or improvement, and will not adversely affect the community in which
it is located. Any owner or user who erects a structure or improvement under a
special exception granted under this paragraph assumes the risk of future
department-required removal of the structure or improvement and waives any
right to compensation, relocation assistance or damages associated with the
department's acquisition of that land for a transportation improvement,
including any damage to property outside the setback caused by removal of the
structure or improvement in the setback that was allowed by special exception.
The department, district office or reviewing municipality may not grant a
special exception within an existing setback area, unless the owner executes an
agreement or other appropriate document required by the department, binding on
successors and assigns of the property, providing that, should the department
need to acquire lands within the setback area, the department is not required
to pay compensation, relocation costs or damages relating to any structure or
improvement authorized by the special exception. The department, district
office or reviewing municipality may require such conditions and safeguards as
will, in its judgment, secure substantially the purposes of this chapter. The
department, district office or reviewing municipality shall require the
executed agreement or other appropriate document to be recorded with the
register of deeds under sub. (7) as part of the special exception.
(e)
Blanket or area special
exceptions for setbacks. Based on its experience granting special
exceptions on similar land divisions, similar structures or improvements, or
the same area and development pattern, the department may grant blanket or area
special exceptions from setback requirements of this chapter that are generally
applicable. The department shall record blanket or area special exceptions with
the register of deeds in the areas affected or shall provide public notice of
the blanket or area special exceptions by other means that the department
determines to be appropriate to inform the public.
(f)
Horizon of setback
analysis. For purposes of its specific analysis, the department,
district office or reviewing municipality shall consider the period 20 years
after the date of analysis.
Note: Federal law requires a minimum 20-year forecast period
for transportation planning for all areas of the State.
23 USC 134(g)
(2)(A) and
135(e)
(1).
(4) SPECIAL EXCEPTIONS FOR PROVISIONS OF THIS
CHAPTER OTHER THAN SETBACKS. Except as provided in sub. (3), the department may
not authorize special exceptions from this chapter, except in appropriate cases
in which the literal application of this chapter would result in practical
difficulty or unnecessary hardship, or would defeat an orderly overall
development plan of a local unit of government. A special exception may not be
contrary to the public interest and shall be in harmony with the general
purposes and intent of ch. 236, Stats., and of this chapter. The department may
require such conditions and safeguards as will, in its judgment, secure
substantially the purposes of this chapter.
Note: This subsection uses the phrase "practical difficulty or
unnecessary hardship to indicate a higher standard for special exceptions from
provisions of this chapter other than setbacks. However, the phrase "special
exception" has been used rather than the word "variance." The Supreme Court
defined "unnecessary hardship" in a variance context as an owner having "no
reasonable use of the property without a variance." See State v. Kenosha County
Bd. of Adjust., 218 Wis. 2d 396, 413, 577 N.W.2d 813 (1998). The department
intends the "special exception" provision in this rule to be administered in a
somewhat less restrictive fashion than "no reasonable use of the property"
without a "variance."
(6) TIME LIMIT FOR REVIEW. Not more than 60
calendar days after receiving a completed request for a special exception under
s.
Trans
233.11, the department, district office or reviewing
municipality shall provide to the land divider written notice of its decision
granting or denying a special exception. The 60-day time limit may be extended
only by written consent of the land divider.
Note: The Department intends that decisions concerning special
exceptions be made in the shortest practicable period of time. The Department
intends the 60-day time limit applicable to special exceptions to allow
sufficient time for a land divider and the Department, district office or
municipality to explore alternative locations or plans to avoid and minimize
conflicts and to facilitate mutually acceptable resolutions to
conflicts.
