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Since 2016, the WRA lobby team has been working with legislators on a property rights bill that was recently introduced by State Senator Tom Tiffany and State Representative Adam Jarchow with support from Representative Rob Brooks. The initiative is called “the Homeowners’ Bill of Rights” and includes a ten-point plan that pledges to continue to better protect property rights through various regulatory reforms.
Recently, federal and state court decisions have highlighted the need for legislative action to adequately protect the rights of property owners to reasonably use and develop their property. The U.S. and Wisconsin Supreme Courts have decided three important property rights cases within the last several months against the interests of property owners – Murr v. Wisconsin (substandard lots/regulatory takings), AllEnergy v. Trempeleau County (conditional use permits), and McKee v. City of Fitchburg (vested rights). Among other things, these cases demonstrate the need to develop a statutory framework at the state level to address development approval processes at the local level that have become increasingly more subjective, arbitrary and unfair to property owners. There are commercial impacts of the bill that include the following:
Vested rights: which clarifies that an application for commercial and residential development permits are grandfathered from any changes to local ordinances at the time the application is submitted even if the local government has multiple permit requirements for the development. The current law grandfathers applications for a development permit from changes to local ordinances if the application must be approved by multiple local governments, but not multiple approvals by the same local government. The change will allow for more certainty for a project during the permitting process allowing a project to move forward once it is approved.
Inverse condemnation: describes a situation in which the government takes private property but fails to pay the compensation required by the 5th Amendment of the Constitution, so the property’s owner has to sue to obtain the required just compensation. In some states the term also includes damaging of property as well as its taking. The propose law identifies each individual lot as property for purposes of all government actions and inverse condemnations regardless of whether the lot is contiguous and/or under common ownership with other lots.
Conditional use permits: the proposal would create a statutory framework for conditional use permits (CUPs) and provide additional certainty for property owners by establishing a more fair and reasonable approval process. Currently, no statutory framework exists for CUPs. Moreover, property owners often experience subjective decision making and tremendous uncertainty with respect to the CUP process. Finally, the proposal would overturn the Wisconsin Supreme Court’s recent decision, AllEnergy v. Trempeleau County, which held that property owners are not entitled to a CUP if they satisfy or agree to satisfy all the conditions and requirements established by the local government. Local units of government often require various types of development to obtain, specifically, the proposal contains the following provisions:
- A definition of conditional use;
- Requiring decisions regarding CUPs to be based upon “substantial evidence.” “Substantial evidence” means evidence that reasonable persons would accept in support of a conclusion. Public comment based solely on personal opinion, uncorroborated hearsay or speculation does not constitute substantial evidence.
- Requiring all conditions and standards to be reasonable and measurable.
- Requiring local government to grant the CUP if the property owner satisfies or agrees to satisfy all CUP conditions and requirements.
The proposal is very broad and includes many items that the WRA has focused on for many years including provisions to:
1) Control property taxes
2) Increase broadband access
3) Reform unreasonable regulations that threaten property rights
4) Reduce regulatory barriers for homebuyers
5) Broaden the concept of grandfathering
6) Inject a private property rights element into the Smart Growth program
The changes to the Homeowners’ Bill of Rights is currently being circulated for co-sponsorship and will likely be introduced in early fall for hearings. WRA is working closely with legislators and stakeholders to ensure that the industry’s interests are protected and enhanced.
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