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November 23, 2017

11/14/2017 7:29:00 AM
Homeowners' Bill of Rights one step closer to law
Law slaps down U.S. Supreme Court decision in Wisconsin

Richard Moore
Investigative Reporter

The Homeowners' Bill of Rights - legislation designed to expand private property rights in Wisconsin - moved one step closer to enactment last week when the measure passed the state Assembly.

It has already passed the Senate and heads now to the governor for his signature.

One of the authors of the bill, state Sen. Tom Tiffany (R-Hazelhurst), said passage of the bill proves that the state Legislature stands with property owners across the state.

"For too long, Wisconsin has taken a back seat in protecting the rights of private property owners," Tiffany said. "The passage of the Homeowners' Bill of Rights exemplifies this Legislature's commitment to protecting all of Wisconsin's private property owners. The long arm of government overreach and property rights infringement has taken some of our citizens as victims."

Tiffany said the courts had not provided needed protections for property owners, so the Legislature stepped in and clarified those protections. Among other things, he said, the legislation provides statutory clarifications on substandard lots, conditional use permits, and the right to fly the American flag.

The bill's co-author, state Rep. Adam Jarchow (R-Balsam Lake), joined in Tiffany's excitement. He called the legislation nothing less than revolutionary.

"The passing of .... the 'Homeowners' Bill of Rights' is the culmination of years of work, negotiation, and tenacity for protecting property owners' rights," Jarchow said.

In part, the legislation stemmed from a decision by the U.S. Supreme Court upholding a St. Croix County ordinance that merged a substandard lot into an adjacent lot owned by the same people.

William and Margaret Murr bought two lots in the 1960s, building on one of them. Later, their children wanted to sell the unimproved lot but found they could not under 1970s regulations - enacted after the Murrs purchased the property - that made the unimproved lot legally substandard.

As such it was merged into their adjacent property. The family argued that the forced merging of the lot and their inability to sell the lot amounted to an uncompensated takings, but the high court disagreed.

The Homeowners' Bill of Rights specifically allows property owners to build upon and sell substandard lots if they were legal when they were created. It also prohibits merging commonly owned adjacent lots unless the owners agree to the merger.

Other provisions

That particular provision is just one element of the Homeowners' Bill of Rights.

In another important one, the bill requires a city, village, town, or county to issue a conditional use permit to an applicant who meets, or agrees to meet, all of the requirements and conditions specified by the political subdivision, according to a Legislative Reference Bureau analysis.

Under the bill, both the application and the political subdivision's decision on the permit application must be based on substantial evidence. Public testimony alone is not substantial evidence and cannot be the sole basis for a political subdivision to deny a conditional use permit.

In addition, the bill establishes that no ordinance of a political subdivision may prohibit, limit based on cost, or require a variance for the repair, maintenance, renovation, rebuilding, or remodeling of a nonconforming structure or any part of a nonconforming structure.

The bill also addresses property rights on private ponds and in matters of eminent domain and regulatory takings.

Finally, the bill expands the rights of property owners to fly the American flag. Right now, federal law prohibits a condominium association, housing cooperative, or homeowners' association from adopting or enforcing a policy, or entering into an agreement, that would restrict or prevent a member of the organization from displaying the American flag on residential property.

This bill would create a similar provision in Wisconsin law with respect to housing cooperatives and homeowners' associations, the LRB states. State law already prohibits including in any condominium documents a provision that prohibits a condominium unit owner from displaying the flag.

A second bill in the package specifies that an assessor may not increase a property's valuation based solely on an owner's refusal to allow entry to the assessor, and specifies that an assessor may enter property to conduct an exterior view of the real or personal property being assessed.

That latter provision delighted the Wisconsin Property Taxpayers, Inc.

"Yesterday, the state Legislature stood alongside property owners by providing clarity in Wisconsin law, and ensuring that individuals have the right to make decisions regarding their property without meaningless bureaucratic encumbrance," the group said in a statement. "Our organization and its members are particularly thankful that homeowners will no longer be required to allow strangers into their homes for fear of increased property taxes, and additionally, that homeowners will be given a true avenue for repealing faulty and erroneous assessments on their properties."

Americans for Prosperity-Wisconsin also applauded the legislation, saying it would eliminate barriers for Wisconsin families to buy and own a home while reining state government's authority to infringe on property rights.

"Today is a banner day for property rights in the state of Wisconsin," AFP state director Eric Bott said. "After years of the courts bungling this issue, lawmakers stepped up and delivered a landmark reform bill to protect the property rights of Wisconsinites from government overreach. This legislation means that more Wisconsin families will be able to realize their American Dream by buying and owning property. The days of heavy-handed government bureaucrats arbitrarily denying permits and harassing homeowners who want to develop their property are numbered."

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