Section 114.135. Airport and spaceport protection.

  It is declared to be in the public interest that the navigable airspace over the state and the aerial approaches to any airport or spaceport be maintained in a condition best suited for the safe operation of aircraft or spacecraft and to that end the bulk, height, location and use of any building or structure, or any other object, and the use of land, may be regulated, or any building, structure or other object may be removed. It is the legislative intent that this section shall not supersede s. 59.69 (4) , but that it shall be supplemental to such section.

(1)   Procedure to obtain protection privileges. The aerial approaches to any airport or spaceport owned and operated by corporations organized to provide aeronautic or astronautic facilities to the general public may be protected in the following manner: The owner of the airport or spaceport shall prepare and record with the register of deeds plans and specifications showing the land affected, the owner of each parcel or interest therein, whether public or private, the regulations to be imposed on each parcel and the structures, buildings or other objects to be removed. The owner or managing body of the airport or spaceport may negotiate and acquire from the owners of the various parcels or interest therein, whether public or private, by deeds the protection privileges shown by the plans and specifications. Referring in the deed to the plans and specifications, and briefly describing the plans and specifications, shall be considered sufficient legal description to convey the protection privileges set forth in the plans and specifications in the property of the grantor. In case the owner of the airport or spaceport is unable to obtain by negotiation the desired protection privileges, he or she may acquire the protection privileges by eminent domain in the manner set forth in ch. 32 , except as to lands and buildings of railway companies that are necessary to, or are used in connection with the operation of the railway. In case the protection privileges sought extend into more than one county the plans and specifications shall be recorded with the register of deeds of each county. In case any parcel of land lies in more than one county, eminent domain proceedings may be instituted in the circuit court of any county in which the parcel is situated, provided a certified copy of the final judgment with a description of the property involved is recorded with the register of deeds of all counties in which the parcel of land or interest therein lies.

(2)   Notice; claim for damages. In case of any airport landing field or landing and take-off strip, or spaceport or spacecraft launch or landing area, owned by any city, village, town, or county or any union of them, the commission or other body in charge of the operation and control of the airport, landing field or landing and take-off strip, or spaceport or spacecraft launch or landing area, may prepare and record without charge with the register of deeds plans and specifications showing the protection privileges sought as described in sub. (1) . The commission or other body in charge shall send by registered mail with return receipt to each owner at his or her last-known address a notice stating that the plans and specifications have been recorded with the register of deeds' office, stating the county, time of recording, the record number, and a brief description of the parcel of land or interest therein affected. If the address of the owner cannot be ascertained or the registered letter is returned unclaimed, notice shall be sent by registered mail to the person in possession of the premises. If no person is in possession, then the notice shall be posted in a conspicuous place on the land involved and published as a class 3 notice, under ch. 985 , in the area affected. The right of the owner to claim for damages for the protection regulations imposed in the plans and specifications, or the removal of obstructions shall be forever barred, unless the owner files a claim for damages with the commission or other body in charge within 6 months from the receipt of the notice from the commission, or other body in charge, or the posting and last publication. The claim shall be verified and shall state the amount of damages claimed. The commission or other body in charge may pay the damages, if it has available funds, and the payment shall operate as a conveyance. If no claims for payment are filed or if payment is made, the commission or other body in charge shall file an affidavit for each parcel involved setting forth the rights acquired which shall be recorded by the register of deeds without charge and when so recorded has the same effect as any recorded instrument. If any owner is a minor or is adjudicated incompetent, the notice may be sent by registered mail to the owner's guardian, if he or she has one, and if there is none the circuit court of the county in which the land, or a larger part, is located shall upon application of the commission or other body in charge appoint a guardian to receive the notice, and to protect the rights of the owner. Any funds payable to the owner shall be cared for in the manner provided in ch. 54 . If the commission or other body in charge determines that the damages claimed are excessive, it shall so report to the governing body that established the airport, landing field or landing and take-off strip, or spaceport or spacecraft launch or landing area, in question and with its consent may acquire in the name of the governmental body the protection privilege desired in the manner set forth in sub. (1) or it may deposit with the county clerk an award and notify the owner of the land involved in the method specified in this subsection. The landowner may accept the award without prejudice to his or her right to claim and contest for a greater sum. The landowner may, within a period of 6 months after notice of the award, proceed as provided in ch. 32 to have the damages appraised.

(3)   Exercise of power and authority. The power and authority to protect airports or spaceports conferred in subs. (1) and (2) may be exercised from time to time; amended plans and specifications may be recorded in the register of deeds' office, and new protection privileges acquired from time to time in the methods provided by this section.

(4)   Encroachments. The duty to prevent encroachments by growth of trees or other vegetation, or otherwise, upon the protection privileges acquired by any airport, landing field, landing and take-off strip, or spaceport or spacecraft launch or landing area, shall be upon the owner or owners of the parcel of land affected by the protection privilege only in cases where the owner or owners have received compensation for the protection privilege. Any such encroachment is declared to be a private nuisance and may be abated in the manner prescribed in ch. 823 . In cases where no compensation has been paid for the protection privilege, encroachments shall be removed by the owner or the authority in charge of the airport, landing field, or landing and take-off strip, or spaceport or spacecraft launch or landing area, and shall be, in case of a publicly owned airport, landing field or landing and take-off strip, or spaceport or spacecraft launch or landing area, a city, village, town or county charge as the case may be. In removing such encroachments, the owner or authority in charge of the airport, landing field or landing and take-off strip, or spaceport or spacecraft launch or landing area, in question, may go upon the land and remove the encroachment without being liable for damages in so doing.

(5)   Encroachments a private nuisance. It shall be unlawful for any one to build, create, cause to be built or created, any object, plant, or cause to be planted, any tree or trees or other vegetation, which shall encroach upon any acquired protection privilege. In addition to the penalty set forth in s. 114.27 , such encroachment is declared to be a private nuisance and may be removed in the manner prescribed in ch. 823 .

(6)   Permit for erection of high structures required. No person shall erect anywhere in this state, including within a spaceport or spacecraft launch or landing area, any building, structure, tower or any other object the height of which exceeds the limitations set forth in sub. (7) without first filing an application and procuring a permit from the secretary of transportation.

(7)   Power to control erection of high structures. For the purposes of sub. (6) the power and authority to control the erection of buildings, structures, towers and other objects by the secretary of transportation shall be limited to those objects that would either extend to a height of more than 500 feet above the ground or surface of the water within one mile of the location of the object, or above a height determined by the ratio of one foot vertical to 40 feet horizontal measured from the nearest boundary of the nearest public airport or spaceport within the state; however, this power and authority shall not extend to objects of less than 150 feet in height above the ground or water level at the location of the object or to objects located within areas zoned under s. 114.136 or to objects located within areas zoned under s. 62.23 (7) where the zoning ordinance enacted under said subsection controls the height of structures.

Cross-reference: See also ch. Trans 56 , Wis. adm. code.

(8)   Rules, regulations, standards and criteria. In carrying out sub. (6) the secretary of transportation may perform such acts, issue and amend such orders and make, promulgate and amend and enforce such reasonable rules, regulations and procedures and establish such minimum standards and criteria governing erection of buildings, structures, towers and hazards in the interest of the safe operation of aircraft and spacecraft as it deems necessary in the public interest and safety.

(9)   Conflicting authority. Wherein conflicting jurisdiction arises over the control of the erection of a building, structure, tower or hazard between the secretary of transportation and any political subdivision of the state, the secretary of transportation may overrule rules and regulations adopted by any political subdivision under the laws of this state after a public hearing wherein all parties thereto have been given an opportunity to be heard. The secretary may refer such matters to the division of hearings and appeals which shall hear and decide the matter after notice and hearing.

(10)   Violations and penalties. Each day that any person violates any of the provisions of subs. (6) , (7) , (8) and (9) may be considered as a separate violation in determining penalties under s. 114.27 .

1971 c. 41 s. 12 ; Sup. Ct. Order, 67 Wis. 2d 585, 774 (1975); 1977 c. 29 , 449 ; 1979 c. 32 ; 1981 c. 347 ; 1993 a. 16 , 301 ; 1995 a. 201 ; 2005 a. 335 , 387 ; 2007 a. 97 . The 500 feet in sub. (7) is to be measured from the lowest point within one mile from the base of the tower. The commission [now secretary of transportation] may hold a hearing on whether to issue a permit for a tower even though an application is not made or is withdrawn. State v. Chippewa Cable Co. 48 Wis. 2d 341 , 180 N.W.2d 714 (1970). The jurisdiction of the secretary of transportation with respect to control over the erection of high structures is limited by the provisions contained in sub. (7) to those structures that either extend to a height of more than 500 feet above the ground or surface of the water within one mile of the location of the object, or a height determined by the ratio of one foot vertical to 40 feet horizontal measured from the nearest boundary of the nearest public airport in the state. If a local zoning ordinance, rule or regulation permits the erection of structures, which exceed these heights, a conflict of jurisdiction would arise and the secretary could invoke sub. (9) to resolve the conflict. 62 Atty. Gen. 232.