Wisconsin Legislature Passes ‘Homeowners’ Bill of Rights’

Published January 2, 2018

Wisconsin now has a “Homeowners’ Bill of Rights” intended to prevent local governments from limiting property owners’ use of their lands.

The Homeowners Bill of Rights consists of two laws passed by the legislature on November 7 and signed by Gov. Scott Walker on Nov. 27. One law allows property owners to build on and sell lots of “substandard” size if they were legal when created. The bill also prohibits local governments from merging adjacent lots that share the same owner without the owner’s permission and makes it easier for property owners to get conditional-use permits and variances, maintain nonconforming structures, and dredge private ponds.

The second bill allows homeowners to appeal assessments when a homeowner refuses to let the assessor inside the house, and to hang the American flag even if condominium or homeowner association rules would prohibit it.

Response to SCOTUS Ruling

Sponsored by state Rep. Adam Jarchow (R-Balsam Lake) and state Sen. Tom Tiffany (R-Hazelhurst), the bills were a response to and effectively overturned a June 2017 U.S. Supreme Court decision.

The Court held local regulators could treat two neighboring waterfront lots owned by the same family as if they were a single parcel of property, and thus didn’t owe the property owners compensation for a taking when they were prevented from selling or developing one of the lots because of a change in state law.

Lots of Trouble

The case, Joseph P. Murr et al. v. State of Wisconsin and St. Croix County, involved the Murr family, who had owned two riverfront lots since the 1960s. One of the lots included a vacation cottage, and the other was undeveloped. As the Murrs explored selling the empty lot to pay for improvements to the cottage in 2004, they found a 1975 zoning law enacted to protect water quality and waterfront environmental amenities prevented them from selling the empty lot separate from the one with the cottage, because under the 1975 law the empty lot no longer met minimum size requirements for an independent lot.

In a five to three decision, the U.S. Supreme Court ruled against the Murrs. In the majority opinion, Justice Anthony Kennedy wrote, “Treating the lot in question as a single parcel is legitimate for purposes of this takings inquiry, and this supports the conclusion that no regulatory taking occurred here.”

In his dissenting opinion, Chief Justice John Roberts argued the majority’s decision disregarded property rights by allowing governments to impose rules diminishing a property’s value without having to compensate the owners under the Fifth Amendment’s Takings Clause.

“Put simply, today’s decision knocks the definition of ‘private property’ loose from its foundation on stable state law rules,” Roberts wrote. “[The ruling] compromises the Takings Clause as a barrier between individuals and the press of the public interest.”

Protecting Property Rights

In a media statement, Jarchow said the bills are intended to ensure people’s property rights and expectations remain secure over time.

“I was disappointed with the Wisconsin Supreme Court’s and the U.S. Supreme Court’s rulings that changes to local zoning laws could essentially strip private property owners of their property rights without compensation,” said Jarchow. “‘The Homeowners’ Bill of Rights’ bill is meant to right that wrong by ensuring when people buy property, and they have expectations related to that property, their property rights and expectations are not taken away because of changing rules or regulations over time.”

Advancing Liberty

John Groen, executive vice president and general counsel for the Pacific Legal Foundation, who represented the Murrs before the Supreme Court, issued a statement saying the legislature’s action advanced liberty.

“All of us at Pacific Legal Foundation are very pleased with the legislative progress made today,” Groen said in his statement. “Special thanks to Rep. Adam Jarchow and Sen. Tom Tiffany for recognizing the need to restore property rights for the Murrs and the people of Wisconsin. Whether through the courts or the legislature, securing individual rights in property is fundamental to liberty. Today’s action advances liberty.”

Chris Rochester, communications director for The John K. MacIver Institute for Public Policy, says the Homeowners’ Bill of Rights advances property owners’ rights across the state.

“This package is a great step forward for the rights of property owners here in Wisconsin, ensuring the rights of property owners are paramount [over] the potentially arbitrary actions of local bureaucrats and policymakers,” Rochester said.

Promoting Homeownership

Rochester says the bill promotes homeownership and advances the housing market.

“In addition to making sure property owners’ interests come before the desires of overreaching regulators, the legislation also takes important steps to ensure the housing market remains open and affordable in Wisconsin, requiring transparency about regulations impacting the availability and prices of homes,” said Rochester. “Property owners all across the state have stories about run-ins with arbitrary, overreaching, and little-known laws that make it frustrating and unnecessarily costly to own a home.

“Allowing owners like the Murrs to divide their lots as they wish will also make more property available,” Rochester said. “We applaud Rep. Jarchow for taking steps to protect the dream of homeownership in Wisconsin.”

H. Sterling Burnett, Ph.D. ([email protected]) is a research fellow at The Heartland Institute.

Official Connections:

State Rep. Adam Jarchow (R-Balsam Lake): http://legis.wisconsin.gov/assembly/28/jarchow; http://legis.wisconsin.gov/assembly/28/jarchow/contact-me/

State Sen. Tom Tiffany (R-Hazelhurst): https://docs.legis.wisconsin.gov/2017/legislators/senate/1528; [email protected]