Chapter 5 Updates: Shorelands, Floodplains and Wetlands
§5.01 Shoreland Zoning (Introduction) p. 131
Changes made to shoreland zoning in the 2013 and 2015 legislative sessions have substantially altered the regulatory framework in favor of private property rights. Among other things, these changes have limited the ability of counties to enact ordinances more stringent than NR 115, expanded the ability of property owners to repair or replace nonconforming structures, and have significantly limited the role of DNR to oversee and object to variances. Specific changes are noted for each section. Given the lag inherent in the rule change and ordinance adoption process it is important to consult Wis. Stat. § 59.692 for the current provisions governing shoreland zoning.
§ 5.01a Scope of Shoreland Zoning p. 132 and fn.11
2013 Wis. Act 80 repealed the provisions in Wis. Stat. § 59.692(7) which provided for the application of county shoreland zoning to areas that were annexed into a city or village after May 7, 1982 or
incorporated into a city or village after April 30, 1994. The new law has created separate requirements for cities (Wis. Stat. § 62.233) and villages (Wis. Stat. § 61.353) to enact more limited shoreland zoning ordinances for areas annexed areas after May 7, 1982 or incorporated after April 30, 1994.
Under the new law shoreland zoning for annexed or incorporated areas is only required to: (1) impose a shoreland setback for structures within 50 feet of the OHWM (which can be reduced to 35 feet under certain development conditions) and (2) require the maintenance of a vegetative buffer zone within 35 feet of the OHWM subject to an access corridor of 30 feet for every 100 feet. The shoreland ordinance can include other provisions, but none can be more restrictive that NR 115 and other recently provisions in Wis. Stat. § 59.692 described below in the updates to Section 5.01b. The law also provides that the new ordinances do not apply to lands adjacent to an artificially constructed drainage ditch, pond, or stormwater retention basin if they are not hydrologically connected to a naturally navigable water body.
The law is effective December 14, 2013 and requires new ordinances be enacted by July
2014.
§ 5.01b(1) General Standards pp. 133-34
2015 Wis Act 55 made a fundamental change to the original shoreland zoning requirements. Originally, DNR standards in NR 115 were minimum standards and many counties enacted more stringent standards. In fact many did so with the legislative encouragement part of the lake classification program. Now, ordinances may not be more stringent that NR 115. Wis. Stat. §59.692(1d) provides, “(a) An ordinance enacted under this section may not regulate a matter more restrictively than the matter is regulated by a shoreland zoning standard [NR 115].” The only exception is where NR 115 does not address the topic. Many ordinances have yet to be changed. However, companion provision Wis. Stat. §59.692(5m), notes that any ordinance that does not comply with the (1d) provisions (as wells as the provisions in (1f), (1k) and (2m))is not enforceable. Thus at this point reference to county ordinances is not as critical as reference back to the statutes and NR 115.
Building Setbacks. NR 115 had been amended to provide a general exception for a setback less than 75’ where an existing development pattern existed closer to the OHWM but no closer than 35 feet. This was sometimes known as “setback averaging.” Wis. Stat. §59.692(1n) now codifies that provision and provides additional clarification on how the setback averaging should be calculated. If one qualifies, then a principal structure may be built or expanded without being considered a nonconforming structure or requiring a variance. This provision also allows the county to use setback averaging to create a setback greater than 75 feet but only if the structure can be built on the remaining area in back of the setback. In addition subsection (1n)(d) codifies and expands structures that are exempt from the shoreland setback including: boathouses above the OHWM, gazebos and similar structures, fishing rafts, certain antennas and satellite dishes, utility lines and facilities and walkways, stairways or rail systems necessary to provide access to the shoreline and no more than 60" in width. A separate provision, prohibits the regulation of residential lighting facilities. Wis. Stat. §59.692(1k)(a)1.
Cutting Restrictions. 2015 Wis Act 55 also created a section limiting the creation or expansion of vegetative buffers. Wis. Stat. §59.692(1f) now provides, “A county shoreland zoning ordinance may not require a person to do any of the following: 1. Establish a vegetative buffer zone on previously developed land. 2. Expand an existing vegetative buffer zone.” The effect of this provision is to limit the ability to provide "mitigation" for certain building expansions. The provision also provides that the viewing corridor of 35 feet for every 100 feet of shoreline may run contiguously.
Impervious Area Standards. This section which was adopted when the 50% rule was replaced has been codified and limited by the provisions of Wis. Stat. §59.692(1k)(am).
Building Height. The provision regarding the 35 foot limit on building height was not changed, but under Wis. Stat. §59.692(1k)(a)4., no fee or mitigation can be required for vertical expansions.
§5.01b(1) Nonconforming Use Issues – Background p. 134
Wis. Stat. § 59.69(10) defines the concept of nonconforming use as follows: “”Nonconforming use’ means a use of land, a dwelling, or a building that existed lawfully before the current zoning ordinance was enacted or amended, but that does not conform with the use restrictions in the current ordinance.” Thus if one has a use that predated shoreland zoning then it is clearly nonconforming. If however, the structure or use occurred after the original round of shoreland zoning ordinances in the 1970s then one needs to look at the ordinances at the time the structure or use first existed.
§5.01b(2) Nonconforming Structures p. 135
2015 Wis Act 55 substantially reduced the restrictions on nonconforming structures with the enactment of Wis. Stat. § 59.692 (1k)(a)2. This provision allows for the “the maintenance, repair, replacement, restoration, rebuilding, or remodeling of all or any part of a nonconforming structure … if the activity does not expand the footprint of the structure.” Thus any structure can now be repaired or completely replaced within the shoreland setback provided the building footprint is not expanded. And given the new provisions on building height, the building can be expanded up to 35 feet. This a significant change from the provisions in NR115 which only allowed the "repair and maintenance" of principal structures. The new statutory provisions also allow for expansion of nonconforming structures OHWM if necessary to comply with state or federal codes, such as those relating to disability access. See, 59.692 (1k)(b).
The provisions in NR 115 which allow which allow for the expansion of a principle structure at least 35 feet of the OHWM provided that vertical expansions are limited to 35 feet and lateral expansions are limited to 200 square feet, are still in effect. See NR 115.05(g)5.
Given the breadth of these new provisions, the former provision allowing for the rebuilding of nonconforming structures due to fire, wind or storm damage was repealed.
§5.01b(4) Lake Classification pp. 137-38
Given the uniformity provisions now in Wis. Stat. § 59.692 (1d), the authority for more stringent standards pursuant to the lake classification grant program appear to be in doubt.
§ 5.01c Shoreland Zoning and Administration, p. 138.
The long standing and often used DNR oversight over shoreland zoning variances has been removed as part of 2015 Wis Act 55. Wis. Stat. § 59.692 (4)(b) now provides that “the department may not appeal a decision of the county to grant or deny a variance under this section but may, upon the request of a county board of adjustment, issue an opinion on whether a variance should be granted or denied.”
In Hegwood v. Town of Eagle Zoning Board of Appeals, 2013 Wis. App 118, 352 Wis. 2d 196, 839 N.W.2d 111, the court held that the statutes exclude towns from having shoreland zoning authority except under Wis. Stat. § 59.692(2)(b) which applies to town ordinances in existence prior to county shoreland zoning. As a result, a town had no jurisdiction to deny a zoning variance.
§ 5.03a Overview of Wetland Regulations, p. 149.
See, State v. CGIP Lake Partners LLP, 2013 WI App 122, 351 Wis. 2d 100, 839 N.W. 2d 136, for a discussion of wetland functional values in the context of an enforcement action.
§ 5.03d(1) State Wetland Definition. p. 164
DNR has a new guidance for the process for identifying wetlands. See, http://dnr.wi.gov/topic/stormwater/construction/
§ 5.03d(3) State Wetland Permits - Practicable Alternatives p. 169-70
2015 Wis. Act 387 provided additional limitations to the DNR's review of practicable alternatives that were designed to more closely follow federal limitations. The provisions now in Wis. Stat. § 281.36(3n) limit the practicable alternatives to those on the property owned by the applicant if the protect involves less than 2 acres and is for a residential home, barn or farm buildings, or expansion of a small business.
§ 5.03d(3) State Wetland Permits - Mitigation, p. 171
In August 2013, DNR issued a new guidance on wetland mitigation. See, http://dnr.wi.gov/topic/Wetlands/Mitigation/
§5.01 Shoreland Zoning (Introduction) p. 131
Changes made to shoreland zoning in the 2013 and 2015 legislative sessions have substantially altered the regulatory framework in favor of private property rights. Among other things, these changes have limited the ability of counties to enact ordinances more stringent than NR 115, expanded the ability of property owners to repair or replace nonconforming structures, and have significantly limited the role of DNR to oversee and object to variances. Specific changes are noted for each section. Given the lag inherent in the rule change and ordinance adoption process it is important to consult Wis. Stat. § 59.692 for the current provisions governing shoreland zoning.
§ 5.01a Scope of Shoreland Zoning p. 132 and fn.11
2013 Wis. Act 80 repealed the provisions in Wis. Stat. § 59.692(7) which provided for the application of county shoreland zoning to areas that were annexed into a city or village after May 7, 1982 or
incorporated into a city or village after April 30, 1994. The new law has created separate requirements for cities (Wis. Stat. § 62.233) and villages (Wis. Stat. § 61.353) to enact more limited shoreland zoning ordinances for areas annexed areas after May 7, 1982 or incorporated after April 30, 1994.
Under the new law shoreland zoning for annexed or incorporated areas is only required to: (1) impose a shoreland setback for structures within 50 feet of the OHWM (which can be reduced to 35 feet under certain development conditions) and (2) require the maintenance of a vegetative buffer zone within 35 feet of the OHWM subject to an access corridor of 30 feet for every 100 feet. The shoreland ordinance can include other provisions, but none can be more restrictive that NR 115 and other recently provisions in Wis. Stat. § 59.692 described below in the updates to Section 5.01b. The law also provides that the new ordinances do not apply to lands adjacent to an artificially constructed drainage ditch, pond, or stormwater retention basin if they are not hydrologically connected to a naturally navigable water body.
The law is effective December 14, 2013 and requires new ordinances be enacted by July
2014.
§ 5.01b(1) General Standards pp. 133-34
2015 Wis Act 55 made a fundamental change to the original shoreland zoning requirements. Originally, DNR standards in NR 115 were minimum standards and many counties enacted more stringent standards. In fact many did so with the legislative encouragement part of the lake classification program. Now, ordinances may not be more stringent that NR 115. Wis. Stat. §59.692(1d) provides, “(a) An ordinance enacted under this section may not regulate a matter more restrictively than the matter is regulated by a shoreland zoning standard [NR 115].” The only exception is where NR 115 does not address the topic. Many ordinances have yet to be changed. However, companion provision Wis. Stat. §59.692(5m), notes that any ordinance that does not comply with the (1d) provisions (as wells as the provisions in (1f), (1k) and (2m))is not enforceable. Thus at this point reference to county ordinances is not as critical as reference back to the statutes and NR 115.
Building Setbacks. NR 115 had been amended to provide a general exception for a setback less than 75’ where an existing development pattern existed closer to the OHWM but no closer than 35 feet. This was sometimes known as “setback averaging.” Wis. Stat. §59.692(1n) now codifies that provision and provides additional clarification on how the setback averaging should be calculated. If one qualifies, then a principal structure may be built or expanded without being considered a nonconforming structure or requiring a variance. This provision also allows the county to use setback averaging to create a setback greater than 75 feet but only if the structure can be built on the remaining area in back of the setback. In addition subsection (1n)(d) codifies and expands structures that are exempt from the shoreland setback including: boathouses above the OHWM, gazebos and similar structures, fishing rafts, certain antennas and satellite dishes, utility lines and facilities and walkways, stairways or rail systems necessary to provide access to the shoreline and no more than 60" in width. A separate provision, prohibits the regulation of residential lighting facilities. Wis. Stat. §59.692(1k)(a)1.
Cutting Restrictions. 2015 Wis Act 55 also created a section limiting the creation or expansion of vegetative buffers. Wis. Stat. §59.692(1f) now provides, “A county shoreland zoning ordinance may not require a person to do any of the following: 1. Establish a vegetative buffer zone on previously developed land. 2. Expand an existing vegetative buffer zone.” The effect of this provision is to limit the ability to provide "mitigation" for certain building expansions. The provision also provides that the viewing corridor of 35 feet for every 100 feet of shoreline may run contiguously.
Impervious Area Standards. This section which was adopted when the 50% rule was replaced has been codified and limited by the provisions of Wis. Stat. §59.692(1k)(am).
Building Height. The provision regarding the 35 foot limit on building height was not changed, but under Wis. Stat. §59.692(1k)(a)4., no fee or mitigation can be required for vertical expansions.
§5.01b(1) Nonconforming Use Issues – Background p. 134
Wis. Stat. § 59.69(10) defines the concept of nonconforming use as follows: “”Nonconforming use’ means a use of land, a dwelling, or a building that existed lawfully before the current zoning ordinance was enacted or amended, but that does not conform with the use restrictions in the current ordinance.” Thus if one has a use that predated shoreland zoning then it is clearly nonconforming. If however, the structure or use occurred after the original round of shoreland zoning ordinances in the 1970s then one needs to look at the ordinances at the time the structure or use first existed.
§5.01b(2) Nonconforming Structures p. 135
2015 Wis Act 55 substantially reduced the restrictions on nonconforming structures with the enactment of Wis. Stat. § 59.692 (1k)(a)2. This provision allows for the “the maintenance, repair, replacement, restoration, rebuilding, or remodeling of all or any part of a nonconforming structure … if the activity does not expand the footprint of the structure.” Thus any structure can now be repaired or completely replaced within the shoreland setback provided the building footprint is not expanded. And given the new provisions on building height, the building can be expanded up to 35 feet. This a significant change from the provisions in NR115 which only allowed the "repair and maintenance" of principal structures. The new statutory provisions also allow for expansion of nonconforming structures OHWM if necessary to comply with state or federal codes, such as those relating to disability access. See, 59.692 (1k)(b).
The provisions in NR 115 which allow which allow for the expansion of a principle structure at least 35 feet of the OHWM provided that vertical expansions are limited to 35 feet and lateral expansions are limited to 200 square feet, are still in effect. See NR 115.05(g)5.
Given the breadth of these new provisions, the former provision allowing for the rebuilding of nonconforming structures due to fire, wind or storm damage was repealed.
§5.01b(4) Lake Classification pp. 137-38
Given the uniformity provisions now in Wis. Stat. § 59.692 (1d), the authority for more stringent standards pursuant to the lake classification grant program appear to be in doubt.
§ 5.01c Shoreland Zoning and Administration, p. 138.
The long standing and often used DNR oversight over shoreland zoning variances has been removed as part of 2015 Wis Act 55. Wis. Stat. § 59.692 (4)(b) now provides that “the department may not appeal a decision of the county to grant or deny a variance under this section but may, upon the request of a county board of adjustment, issue an opinion on whether a variance should be granted or denied.”
In Hegwood v. Town of Eagle Zoning Board of Appeals, 2013 Wis. App 118, 352 Wis. 2d 196, 839 N.W.2d 111, the court held that the statutes exclude towns from having shoreland zoning authority except under Wis. Stat. § 59.692(2)(b) which applies to town ordinances in existence prior to county shoreland zoning. As a result, a town had no jurisdiction to deny a zoning variance.
§ 5.03a Overview of Wetland Regulations, p. 149.
See, State v. CGIP Lake Partners LLP, 2013 WI App 122, 351 Wis. 2d 100, 839 N.W. 2d 136, for a discussion of wetland functional values in the context of an enforcement action.
§ 5.03d(1) State Wetland Definition. p. 164
DNR has a new guidance for the process for identifying wetlands. See, http://dnr.wi.gov/topic/stormwater/construction/
§ 5.03d(3) State Wetland Permits - Practicable Alternatives p. 169-70
2015 Wis. Act 387 provided additional limitations to the DNR's review of practicable alternatives that were designed to more closely follow federal limitations. The provisions now in Wis. Stat. § 281.36(3n) limit the practicable alternatives to those on the property owned by the applicant if the protect involves less than 2 acres and is for a residential home, barn or farm buildings, or expansion of a small business.
§ 5.03d(3) State Wetland Permits - Mitigation, p. 171
In August 2013, DNR issued a new guidance on wetland mitigation. See, http://dnr.wi.gov/topic/Wetlands/Mitigation/
