In the Wisconsin Legislature

Waukesha County wants out from any regulation by the City of Waukesha’s landmarks ordinance.  And State Representative Scott Allen now seeks to exempt all of Wisconsin’s counties from every city’s landmark ordinance.

By Kurt Stege

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A bill relating to historic preservation that was initially tailored to apply to a specific and longstanding dispute maintained by Waukesha County against the City of Waukesha’s Landmarks Commission now shows signs that it may be expanded to wrest substantial authority from all of the landmark commissions in cities throughout the State of Wisconsin.

Pursuant to Sec. 62.23(7)(em)1, Stats., Wisconsin cities are granted authority to enact a landmarks ordinance and to regulate the properties covered by that ordinance. The statute makes no differentiation based on the owner of the property, whether it is a private citizen, a corporation, the city itself, or the county.

In early July, Senators Kapenga, Darling, Fitzgerald, Kooyenga, Nass and Craig introduced 2019 Senate Bill 314 that sought to carve out an exception to this general authority by excluding “2nd class cities” from regulating historic properties owned by the county in which the city is located. Second class cities are those cities with a population between 39,000 and 150,000, and there are currently 15 cities in the state that fit the category. The bill further narrowed its scope to only those 2nd class cities “located in a county with a population of more than 380,000, which is adjacent to a county with a population of more than 800,000.” It turns out that the City of Waukesha is the only one of the 15 that satisfies these additional constraints.

The apparent purpose of SB 314 was to have the State of Wisconsin overturn an individual decision by the City of Waukesha’s Landmarks Commission regarding a County-owned landmark. Waukesha County wants to demolish a landmarked structure representing the City of Waukesha’s early history as the source of spring water with medicinal benefits. That building, though within the current border of the City of Waukesha, is now owned by the County.

A companion bill, 2019 Assembly Bill 339, was introduced in the Assembly on July 16 and referred to its Committee on Housing and Real Estate.

The building, having served as offices for the County’s Department of Health Services but now vacant, was constructed around 1910 as the hotel and centerpiece of a spa/resort where visitors would come to “take the waters.” At that time, the City of Waukesha had already earned its nickname as the “Spring City” of Wisconsin. The resort, including a springhouse, clubhouse, golf course and the hotel, was placed on the National Register of Historic Places in 1983 and was designated as a local landmark by the City in 2001. The County has now built replacement offices nearby, has no specific use for the historic hotel structure, and wants to terminate the County’s responsibilities for maintaining that building. Vintage and current photos of the hotel are on the Waukesha Preservation Alliance Facebook page.

The County applied to have the Landmarks Commission “delist” the property by showing there were no prospective purchasers who would retain the historic nature of the former hotel. However, the Commission concluded that the County’s effort to sell the building was intentionally compromised in order to allow the County to retain control of the land but destroy the building. The County disagreed with the Commission’s conclusion yet failed to appeal the decision to the City Council, an explicit requirement established by current State statute.

The Senate Committee on Insurance, Financial Services, Government Oversight and Courts convened a public hearing for Senate Bill 314 on July 16, where various witnesses representing Wisconsin’s historic preservation community testified that the County’s efforts to sell the property were not undertaken in good faith and that the County had failed to pursue the statutory mechanism, already in existence, for appealing the Landmarks Commission’s decision to the Waukesha Common Council. Enough of those committee members who would be expected to support the bill asked questions during the public hearing about the County’s failure to seek common council review of the underlying decision, that it appeared the bill would not advance through the legislature before a Common Council vote had been obtained. At the end of August, Mary Emery of the Waukesha Preservation Alliance indicated that the County would file a new request to delist the building so as to permit demolition. She noted that the Mayor of Waukesha supported demolition as long as the surrounding golf course was retained as greenspace.

However, on September 19, just a few weeks after the public hearing, SB 314 passed out of the Senate Committee on Insurance, Financial Services, Government Oversight and Courts in the bill’s original form by a vote of 3 to 2. If this bill were to become law, the County of Waukesha would be exempted from being regulated by the City’s landmarks ordinance.

Then on September 25, only a week later, State Representative Scott Allen (R-Waukesha), a former real estate sales director, introduced Amendment 1 to Assembly Bill 339. Rep. Allen had not been one of the 15 representatives who sponsored AB 339 or co-sponsored SB 314. His amendment would strip away the references in the original bill to a 2nd class city and to the restrictive language limiting its application to the City of Waukesha. If Amendment 1 were to be adopted and AB 339, as amended, approved by both houses of the legislature and signed into law by Governor Evers, all county-owned properties recognized as historic pursuant to the National Register, as a local landmark, or as part of a local historic district, would no longer be subject to any regulation under landmark ordinances adopted by the cities containing those properties.

Rep. Allen’s proposed amendment to AB 339 had no co-sponsors, and the likelihood of support from other legislators is unclear. However, Assembly Bill 339 has been referred to the Assembly Committee on Housing and Real Estate. Rep. Allen is Vice-Chair of that committee and Rep. John Jagler (R-Watertown), a Realtor, is Chair.

I have been away from Madison since September 18 and haven’t been in a position to speak with anyone about the prospects for Senate Bill 314, Assembly Bill 339, or Rep. Allen’s Amendment 1 to the Assembly bill. However, this is the third legislative session in a row in which bills that would undermine Wisconsin’s existing historic preservation law have been introduced. Given the current make-up of the Wisconsin Legislature, the activities to date in the 2019 session are not surprising even if they are regrettable. They need to be considered as part of the larger effort by our legislature to limit the authority and discretion allocated to local government, vis-à-vis the powers that are being accumulated at the State level. They also need to be viewed as indicative of the “owner’s rights” sentiments that are circulating.

The Madison Trust will continue to follow legislative developments that would bear on our mission. I spoke at the public hearing on SB 314 and am maintaining contact with other historic preservation organizations in Wisconsin about these issues.