Wisconsin Administrative Code › Department of Transportation › Chapter Trans 233 - Division of land abutting a state trunk highway or connecting highway › Section Trans 233.11 - Special exceptions

Current through June 24, 2024
(1) DEPARTMENT CONSENT. No municipality or
			 county may issue a variance or special exception from this chapter without the
			 prior written consent of the department.
(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).