Wisconsin Lawyer: On the Waterfront: New Shoreland Zoning Laws:

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    On the Waterfront: New Shoreland Zoning Laws

    Recent legislative developments might have reduced your familiarity with Wisconsin’s shoreland zoning laws. Learn about the current rules and regulations to ensure the legal basis of clients’ waterfront structures is as sturdy as the physical foundations.

    Paul G. Kent

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    Wisconsin’s abundant shoreland areas are a defining feature of the state.1 In addition to the Great Lakes, Wisconsin has approximately 83,000 miles of rivers and streams and more than 15,000 inland lakes. Shorelands along these waters present an interface not just between land and water but between two different legal traditions. Navigable waters are held in trust by the state for the public under the public trust doctrine.2 On the other hand, land is owned by individual landowners and to the extent land use is regulated, it primarily occurs by local governments through zoning or other police powers.3 The conflict between public and private interests comes into sharp focus in these shoreland areas.

    One of the ways that Wisconsin has attempted to balance these public and private interests in shoreland areas is through the legislative mandate of shoreland zoning. In 1966, the legislature required that counties zone shorelands in accordance with minimum standards established by the Wisconsin Department of Natural Resources (DNR).4 The basic concepts of the original shoreland zoning law remained in force for more than 40 years. However, recent legislative sessions have dramatically altered that shoreland zoning framework.5 The roles of the DNR and the counties are now more limited and the legislature is directly establishing many of the standards governing shoreland zones.

    Understanding shoreland zoning today requires that these statutory changes be read in context with existing DNR rules and local zoning ordinances. In some cases the new statutory provisions supersede the rules and ordinances, in other cases they are a supplement to the rules and ordinances, and in still other cases the rules and ordinances still govern. To further complicate matters, most of the rules and ordinances do not yet reflect these recent statutory changes.

    This article summarizes how all of these changes fit together and how they impact private property rights. To understand the current law, it is important to understand the evolution of shoreland zoning.

    Original Concepts

    The Scope of Shoreland Zoning. Wisconsin adopted shoreland zoning as part of a comprehensive approach to water quality.6 The concept was designed to use local governments’ traditional zoning authority over land use but allow the state to ensure that minimum standards were in place to protect the waters of the state.7 By 1971, all counties had adopted shoreland zoning and it was upheld as a valid exercise of the state’s authority.8

    Shorelands were defined to include designated areas above the ordinary high water mark (OHWM). The OHWM is the point on the bank or shore where the water, by its presence, wave action, or flow, leaves a distinct mark on the shore or bank.9 The shoreland zone includes10:

    • Land within 1,000 feet of the OHWM of a navigable lake, pond, or flowage; and

    • Land within 300 feet of the OHWM of a navigable river or stream, or to the landward side of the floodplain, whichever distance is greater.

    The counties could adopt more stringent standards, and conversely they could grant variances to shoreland standards in appropriate cases. The DNR’s role was not only to establish the minimum standards; it also was given the authority to review amendments11 and to appeal county decisions granting variances.12

    Paul G. Kentcom pkent staffordlaw Paul G. Kent, U.W. 1981, practices with Stafford Rosenbaum LLP, Madison, and focuses on water law and environmental issues. He is the author of Wisconsin Water Law in the 21st Century.

    Minimum Standards. Originally the key minimum standards under Wis. Admin. Code chapter NR 11513 were as follows:

    Minimum Lot Sizes. Lots served by a public sanitary sewer were required to have a minimum average width of 65 feet and a minimum area of 10,000 square feet. Lots not served by a public sanitary sewer were required to have a minimum average width of 100 feet and a minimum area of 20,000 square feet.

    Building Setbacks. Unless an existing development pattern existed, a setback of 75 feet from the OHWM was required for buildings and structures.

    Cutting Restrictions on Vegetation. The clear-cutting of trees and shrubs was prohibited on land extending 35 feet inland from the OHWM, except to create viewing access corridors of no more than 30 feet in any 100 feet of shoreline frontage.

    Regulation of Filling, Grading, Lagooning, Dredging, Ditching, and Excavating. These activities were required to comply with applicable state permits under Wis. Stat. chapter 30, stormwater regulations, and county shoreland wetland zoning requirements.

    NR 115 also required counties to review certain land divisions in shoreland areas and to adopt sanitary regulations to protect health and to preserve and enhance water quality.14

    Nonconforming Structures. The enactment of these new shoreland zoning requirements had the effect of creating nonconforming structures. There is a distinction between the nonconforming use of a structure and a nonconforming structure that is nonconforming for reasons of size or location.15 The legislature adopted an overall policy goal to eliminate nonconforming uses by restricting the repair of the structures that were part of the nonconforming use. The county zoning statute limited the amount of money that could be spent on maintenance and repair of structures used for nonconforming uses to 50 percent of the assessed value of the structure housing the use.

    This same standard was incorporated into the shoreland zoning provisions.16 However, many counties chose to apply this “50% rule” to nonconforming structures in the shoreland zoning area regardless of use. The DNR encouraged this practice through its model ordinances even though it was not required under NR 115.

    Key Considerations for Existing (Nonconforming)Shoreland Zone Structures

    Here are some essential definitions and concepts regarding existing nonconforming structures.

    • Lawful. The structure must have been lawful when it was constructed.

    • Maintenance, repair, replacement, restoration, rebuilding, or remodeling of all or any part of a nonconforming structure can be undertaken anywhere in the shoreland zone if the activity does not expand the footprint of the structure.

    • Expansion beyond the setback (typically 75 feet) is allowed.

    • Expansion within the setback. An existing nonconforming principal structure may be laterally expanded if it is at least 35 feet from the ordinary high water mark, the lateral expansions are limited to 200 square feet over the life of the structure, and mitigation is approved.

    • Vertical expansion. An existing nonconforming principal structure may be vertically expanded up to 35 feet.

    Shoreland Zoning 1970-2010

    From 1970 to 2010, shoreland zoning became an established land use regulation. During this time legislative enactments were relatively minor and changes to the program were primarily made by the DNR and the counties. Counties could adopt standards stricter than the state minimum standards, and most counties did so.

    In the 1980s and 1990s, the legislature expanded shoreland zoning to cover areas annexed into cities and villages,17 as well as areas incorporated into a city or village.18 In 1997, the legislature created a grant program that encouraged counties to “classify lakes” and enact more stringent regulations based on the classification of the lake.19 By the late 1990s, the legislature also started to enact some minor statutory exceptions to the standards in NR 115. In one case the legislature enacted an exception to allow the rebuilding of a nonconforming structure damaged by storms.20 Another exception was enacted to allow the building of small gazebo structures within the shoreland setback area.21

    The most significant change during this period was a revision of NR 115 by the DNR. Starting in 2002, the DNR began a rule revision process designed to provide greater flexibility for property owners and more effective environmental protections. The rule went through two rounds of public hearings, tens of thousands of comments, and legislative review before final adoption in 2010. The result was an overhaul of the minimum standards and the application of these standards to nonconforming structures. The rule became effective on Feb. 1, 2010, but the deadline for implementation later was extended to 2016.22

    One of the primary concerns of property owners was the 50 percent rule for nonconforming structures. Forty years out from the enactment of shoreland zoning, many nonconforming homes were no longer eligible for maintenance or repair. The 2010 rule revision removed the 50 percent rule with respect to nonconforming structures. The rule allowed for some limited expansions of nonconforming structures and provided clarification and flexibility to a number of the minimum standards.

    In exchange for this flexibility for property owners, several new regulatory concepts were included. One concept, mitigation, is a way of compensating for shoreland impacts.23 Mitigation measures typically include replanting of portions of the shoreland zone with native vegetation, removal of other nonconforming structures or uses, the addition of water quality features such as rain gardens, or visual screening of structures. The 2010 revision of chapter NR 115 also included a new regulatory structure for limiting the amount of impervious surfaces allowed on a shoreland lot. Impervious surfaces are those areas from which the majority of precipitation runs off, such as roof tops, sidewalks, and driveways.24

    Recent Legislative Changes

    In contrast with the relatively incremental changes in the prior 40-plus years, the Wisconsin Legislature enacted significant changes to shoreland zoning laws in the 2011, 2013, and 2015 legislative sessions in two fundamental respects. First, the legislature imposed statutory limits on the flexibility of the DNR and the counties with respect to how they administer this regulatory program. Second, the legislature directly established a number of minimum standards and rules governing nonconforming structures.

    Limitation on County Zoning Standards More Restrictive Than NR 115. Under the original program, county ordinances were required to meet minimum standards set by the DNR, but counties could enact more stringent standards if they chose to do so. That began to change with 2011 Wisconsin Act 170, which prevented counties from adopting standards for nonconforming structures and substandard lots that are more restrictive than those in NR 115.

    A more comprehensive change occurred with 2015 Wisconsin Act 55, which provided that a county “may not regulate a matter more restrictively than the matter is regulated by a shoreland zoning standard.”25 Any ordinance that does not comply with this new statutory restriction “does not apply and may not be enforced.”26 As a result, some of the more stringent standards adopted by counties, such as setbacks in excess of 75 feet, are no longer valid.

    However, counties do retain the authority to impose restrictions on “a matter that is not regulated by a shoreland zoning standard.”27 Determining whether a county regulation is “more restrictive” than NR 115 or whether a county regulation is within the scope of a “matter” regulated by NR 115 is not always clear.

    Limitation of DNR Review of County Decisions. Under the original program, counties could grant variances, but such decisions were subject to review and legal challenge by the DNR if it believed an applicant had failed to provide evidence that satisfied the statutory standards. In many cases, even the possibility of a DNR objection to a variance decision limited a county’s willingness to approve variances.

    Act 55 removed the DNR’s ability to appeal zoning decisions. The new law 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.”28

    Shoreland Zoning in Certain Incorporated Areas. The original scope of shoreland zoning was expanded to annexed or newly incorporated areas in the 1980s and 1990s. Those provisions were significantly curtailed by 2013 Wisconsin Act 80 and 2015 Wisconsin Act 55. Those acts repealed the requirement that the municipality must enact shoreland zoning provisions at least as stringent as the county shoreland zoning in effect at the time of annexation or incorporation. The new laws created sections applicable to cities and villages that only require the establishment of shoreland setbacks for such areas.29 The shoreland ordinance can include other provisions, but none can be more restrictive than NR 115.

    Direct Legislative Standard Setting. When shoreland zoning was originally enacted, the legislature delegated broad authority to the DNR to create minimum standards.30 From 1970 to 2010 the legislature was not in the standard-setting business, with the minor exceptions of the gazebo rule and the catastrophic-loss provision. Starting in 2011 with the codification of the nonconforming structure and substandard lot provisions in NR 115,31 the legislature has been codifying, superseding, and supplementing the minimum standards and nonconforming structure provisions in NR 115.

    Shoreland Zoning Requirements Today

    In light of these developments, understanding shoreland zoning law today requires that the statutes, the administrative code (NR 115), and county ordinances be read together.

    Start with the statute. The statute may have a specific standard or it may impose a limitation on the standards authorized by the DNR or the county. Any statutory standard will supersede a contrary provision in NR 115 or county ordinances.

    If there is no specific statutory standard or limitation, the next stop is NR 115. If there is a specific standard in NR 115, no county standard can be more restrictive.

    The final stop is with the county ordinances. If the matter is not regulated by NR 115 or limited by statute, the county may have ordinance provisions that provide additional restrictions. Below is a summary of the key statutory and rule provisions under the current framework.

    Key Considerations for New Shoreland Zone Structures

    Here are some essential definitions and concepts regarding structures erected under authority of the current shoreland zoning statutes and regulations.

    • Setback is 75 feet from the ordinary high water mark (OHWM) unless setback averaging applies to a proposed principal structure or the structure is one of six exempt structures.

    • Minimum lot size is 65 feet and a minimum area of 10,000 square feet if served by a public sewer and 100 feet and a minimum area of 20,000 square feet if not, unless a substandard-lot exception applies.

    • Vegetative buffers are required within 35 feet of the OHWM except for a viewing and access corridor that runs 35 feet wide for every 100 feet of shoreline frontage. A county may allow routine maintenance of vegetation and other approved vegetative management activities.

    • Local and state permits for filling, grading, lagooning, dredging, ditching, and excavating are required.

    • Impervious surfaces are limited to 15 percent unless the lot is in a highly developed shoreline, mitigation is required, or the lot has features to treat runoff.

    • Building height is limited to 35 feet within 75 feet of the OHWM of navigable waters.

    Shoreland Zoning Standards

    Building Setbacks. The 75-foot setback is probably the most well-known of all the shoreland standards, and that basic standard is now codified in statute.32 This standard has been modified in two respects by recent legislative changes.

    Setback Averaging for Principal Structures. For many years, NR 115 provided that the counties may create an exception to the 75-foot setback rule for proposed new principal structures based on a concept of “setback averaging” where there is an existing pattern of development. 2015 Wisconsin Act 167 established a more detailed set of statutory requirements for calculating the setback average and made the use of the criteria in county shoreland zoning ordinances mandatory.33

    Exempt Structures. The 75-foot setback applies to all “structures,” which is a broad term.34 The 2010 revisions to chapter NR 115 exempted six types of structures from the setback requirements: 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 that are necessary to provide access to the shoreline and that are no more than 60 inches wide.35 Those exceptions have been largely codified.36 The statute allows new construction of these exempt structures within the setback.

    Determining whether a county regulation is “more restrictive” than NR 115 or whether a county regulation is within the scope of a “matter” regulated by NR 115 is not always clear.

    In addition, the new statutory provisions prohibit counties from restricting the repair or replacement of these six exempt structures by requiring a fee, approval, or mitigation.37 Counties are allowed to prohibit the expansion of these structures outside of the building envelope, except when necessary to comply with state and federal requirements.38

    The provision restricting the expansion of existing exempt structures and the provision allowing the construction of new exempt structures must be read together, particularly with respect to boathouses. The statute provides that counties can prohibit the expansion of existing boathouses. In addition, NR 115 restricts new boathouses to the access corridor and prohibits plumbing and use for human habitation.39

    However, to date, the DNR has viewed matters such as size, roof pitch, sidewall height, and color limitations as “matters” that are not regulated by NR 115 and therefore open to county regulation, so long as the regulation is no more restrictive than state standards and does not effectively prohibit boathouses.

    Vegetative Cutting Restrictions. The basic restrictions on vegetative cutting in NR 115 still apply. Generally, within 35 feet of the OHWM, there is a restriction on cutting vegetation unless it falls within one of the designated vegetation management exceptions or is within the “viewing and access corridor.”40

    However, the NR 115 provision is now superseded by statute in two respects. First, counties must allow a property owner to create a viewing and access corridor within this 35-foot “buffer zone.” The county must allow the width of that corridor to be up to 35 feet wide for every 100 feet of shoreline of the property and must allow the total corridor width to run consecutively.41

    Second, the county cannot require anyone to establish a vegetative buffer on previously developed land or expand an existing vegetative buffer zone.42 State law continues to allow a vegetative buffer as one of the options a property owner may choose to use in mitigation, but a property owner cannot be required to establish or expand a buffer through mitigation.

    Impervious Area Standards. In 2014, the original 2010 impervious surface requirements were scaled back by a revision to NR 115.43 The 2014 revisions to the impervious surface standards in NR 115 have now been codified in the statutes, along with additional restrictions, under 2015 Wisconsin Act 167.44 Read together, the impervious surface requirements now are as follows:

    • The general standard for the allowable coverage of a lot with impervious surfaces remains 15 percent of the lot.45

    • Impervious surfaces do not includepublicroadways and sidewalks.46

    • Areas where the runoff is treated by a device or system or is discharged to an internally drained pervious area must not be included in the calculation of impervious surface.47

    • On a “highly developed shoreline,” the county may allow impervious surfaces of up to 30 percent for residential uses and 40 percent for commercial or other uses.48 A highly developed shoreline is an urbanized area or urbanized cluster in the 2010 census or an area that had commercial, industrial, or business land uses as of Jan. 31, 2013. A highly developed shoreline also includes an areawhere there is at least 500 feet of shoreline that has a majority of lots with more than 30 percent impervious area or a majority of lots less than 20,000 square feet or the area is located on a lake that is served by a sewerage system.49

    • A county may allow higher impervious surface percentages contingent on the landowner providing mitigation.50 This could be up to 30 percent for standard parcels, up to 40 percent for residential uses in a highly developed area, and up to 60 percent for commercial uses in a highly developed area.

    Building Height. The provision in NR 115 establishing the 35-foot limit on building height is now codified.51 However, the statute also provides that no fee or mitigation can be required for vertical expansions of nonconforming structures or variance structures up to that limit.

    Lot Size. The historic limitation on minimum lot size in NR 115 remains – 10,000 square feet and 65 feet wide for sewered lots and 20,000 square feet and 100 feet wide for unsewered lots.52 2015 Wisconsin Act 55 provisions prevent counties from imposing shoreland zoning requirements more stringent than these standards.

    In addition, NR 115 allows the use of a substandard lot for a building site if it was never reconfigured or combined with another lot into one property tax parcel, has never been developed with one or more of its structures placed partly on an adjacent lot or parcel, and is  developed to comply with all other ordinance requirements.53 The statutes also provide that a shoreland ordinance cannot regulate the construction of a structure on substandard lots more restrictively than the general shoreland zoning standards for substandard lots.54

    Nonconforming Structures

    As noted above, the 2010 changes to NR 115 significantly altered the restrictions on nonconforming structures. Those provisions were codified and further altered by the recent legislation.

    Maintenance, Repair, Replacement Within the Existing FootprintWith the enactment of 2015 Wisconsin Act 55, a county must allow “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.”55 The county is also precluded from imposing any approval, fee, or mitigation requirement for such activities.

    Thus, under the shoreland zoning statutes, any nonconforming structure can now be repaired or completely replaced anywhere within the shoreland setback provided the building footprint is not expanded. This is a change from the provisions in NR 115, which allowed only the “repair and maintenance” of principal structures and required mitigation.56 Of course, property owners might still be required to obtain approvals pursuant to floodplain zoning, general zoning, sanitary codes, or building codes.

    Expansion of Nonconforming Principal Structure. The statutes expressly allow the DNR to adopt standards to allow a vertical or lateral expansion within the setback and allow counties to adopt those standards.57 In fact, NR 115 does allow limited expansion of nonconforming structures. These provisions were only modestly affected by the new statutory changes and allow expansions in the following circumstances:

    • An existing nonconforming principal structure may be expanded if the expansion area is beyond the required 75-foot setback. No mitigation is required unless necessary for increased impervious surface standards.58

    • An existing nonconforming principal structure may be vertically expanded up to 35 feet. Mitigation cannot be required.59

    • An existing nonconforming principal structure may be laterally expanded if it is at least 35 feet from the OHWM and the lateral expansions are limited to 200 square feet over the life of the structure. Mitigation is required for this expansion.60

    Miscellaneous Shoreland Provisions

    The legislature has also enacted several relatively specific provisions that limit the DNR’s authority over shoreland zoning, which include the following:

    • The DNR may not enact a standard that requires an approval or imposes a fee or mitigation requirement to install or maintain outdoor lighting in shorelands for residential use.61

    • The DNR may not enact a standard that prohibits the owner of a boathouse from using a flat roof as a deck.62

    • The DNR may not prohibit the maintenance of stairs, platforms, or decks on certain lakes in Chippewa and Rusk counties.63

    • The DNR may not require an inspection or upgrade of a structure before the sale or transfer of the structure.64

    • A public utility facility is considered to have satisfied the requirements of shoreland zoning if the DNR has issued all required state permits.65

    • Shoreland zoning 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.66

    • A property owner can now rely on an OHWM determination of a surveyor for the purpose of establishing a building setback unless the DNR has previously made and posted an OHWM on its website.67

    Conclusion

    The number and significance of shoreland zoning changes in the past several years has been daunting even for people who work with shoreland zoning on a regular basis. This summary should provide some assistance in working through these provisions.68 The larger questions involving the balance between state and local regulations and the balance between public and private property interests are likely to continue to be debated.

    Meet Our Contributors

    What do you enjoy doing when you are not at work?

    Paul G. KentWhile family activities and travel are at the top of the list, I also enjoy reading. For many years I did so much reading at work that reading outside of work was just not enjoyable. Then several years ago my friend and colleague Jack Koeppl introduced me to books on tape, which he listened to on the way into the office. Since I live in town, at first it did not seem worth it, but I soon found that even 10 to 15 minutes each way, every day adds up. Add an out-of-town trip or two, and I was getting through an average novel in two to three weeks. (Yes, Moby Dick took much longer.) I also discovered that the Madison library has a fantastic collection of recorded books. I now alternate between history, classics, and contemporary fiction. It provides escape, it provides perspective, and you can learn a lot about the larger world.

    Books are no longer on tape, and Jack left us too soon, but in the intervening years I have enjoyed hundreds of books and look forward to my time traveling to work every day.

    com pkent staffordlaw Paul G. Kent, Stafford Rosenbaum LLP, Madison.

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    Endnotes

    1 Portions of this article are taken from Paul Kent, Wisconsin Water Law in the 21st Century, Lake Mendota Publishing © 2013, “Chapter 5”and used with permission.

    2 Wis. Const. art. IX, § 1. See Diana Shooting Club v. Husting, 156 Wis. 261, 271, 145 N.W. 2d 816 (1914); Muench v. Public Serv. Comm’n, 261 Wis. 492, 499-508, 53 N.W.2d 514 (1952).

    3 See Zwiefelhofer v. Town of Cooks Valley, 2012 WI 7, 338 Wis. 2d 488, 809 N.W. 2d 362.

    4 These provisions are now found in Wis. Stat. sections 59.692 and 281.31. See also Wis. Admin. Code ch. NR 115.

    5 Among the key recent legislative enactments affecting shoreland zoning are 2011 Wis. Act 167, 2013 Wis. Act 80, 2015 Wis. Act 55, 2015 Wis. Act 167, and 2015 Wis. Act 391.

    6 1965 Wis. Laws, ch. 614. For a history of this law, see Jon A. Kusler, Water Quality Protection for Inland Lakes in Wisconsin: A Comprehensive Approach to Water Pollution, 1970 Wis. L. Rev.35.

    7 In 1967, the DNR developed a model ordinance and also promulgated its first shoreland zoning rule, Wisconsin Administrative Code chapter RD 15 (Dec. 1967), which became Wisconsin Administrative Code chapter NR 115.

    8 See Just v. Marinette Cty., 56 Wis. 2d 7, 10, 201 N.W.2d 761 (1972) (resting its conclusion on public trust doctrine and state police powers); Rock-Koshkonong Lake Dist. v. State Dep’t of Natural Resources, 2013 WI 74, ¶¶ 95-101, 50 Wis. 2d 45, 833 N.W. 2d 800 (concluding that  validity of shoreland zoning rested primarily on state’s police powers).

    9 Wis. Admin. Code § NR 115.03(6). This definition is based on case law. See Diana Shooting Club, 156 Wis. 261.

    10 Wis. Stat. § 59.692(1); Wis. Admin. Code § NR 115.03(8).

    11 Wis. Admin. Code § NR 115.06(2)(c). For a general discussion of shoreland zoning amendments and variances, see Carlyle H. Whipple, The Necessity of Zoning Variance or Amendments Notice to Department of Natural Resources Under Shoreland Zoning and Navigable Water Protection Acts, 57 Marquette L. Rev. 25 (1973).

    12 Wis. Admin. Code § NR 115.06(4). See, e.g., State v. Kenosha Cty. Bd. of Adjustment, 218 Wis. 2d 396, 577 N.W.2d 813 (1998); State ex rel. Dep’t of Natural Res. v. Walworth Cty. Bd. of Adjustment, 170 Wis. 2d 406, 489 N.W.2d 631 (Ct. App. 1992); State v. Trudeau, 139 Wis. 2d 91, 408 N.W.2d 337 (1987); State v. Ozaukee Bd. of Adjustment, 152 Wis. 2d 552, 449 N.W.2d 47 (Ct. App. 1989).

    13 Wis. Admin. Code ch. NR 115 (Reg. Aug. 1970, No. 176).

    14 Wis. Admin. Code § NR 115.05(2), (3).

    15 This distinction was only recently clarified by statute. See 2011 Wis. Act 170 (amending Wis. Stat. § 59.69, and creating Wis. Stat. § 59.69(10e) and Wis. Stat. § 59.692(2m)).

    16 See Wis. Stat. § 59.692(2).

    17 1982 Wis. Laws ch. 330. See Wis. Stat. § 59.692(7) (1983).

    18 1993 Wis. Act 329. See Wis. Stat. § 59.692(7) (1995).

    19 Wis. Stat. § 281.69(5), as created by 1997 Wis. Act 27. The law provided for lake classification grants to be awarded to counties, which was implemented by Wisconsin Administrative Code section NR 191.30.

    20 See 1997 Wisconsin Act 27, which created Wis. Stat. section 59.692(1s). The original section was limited to wind damage and was subsequently expanded by 2005 Wisconsin Act 112 to cover wind, vandalism, fire, flood, ice, snow, mold, or infestation.

    21 1999 Wis. Act 9; Wis. Stat. § 59.695(1v).

    22 See Wis. Admin Code § NR 115.06(2). A Natural Resources Board order extended it to 2016.

    23 See Wis. Admin. Code § NR 115.03(4r) (defining mitigation as “balancing measures that are designed, implemented and function to restore natural functions and values that are otherwise lost through development and human activities”).

    24 Wis. Admin. Code § NR 115.03(4g).

    25 Wis. Stat. § 59.692(1d)(a). While this is a limit on county shoreland zoning authority, Wis. Stat. section 59.692(5) provides that county shoreland zoning supersedes all provisions of an ordinance enacted under a county’s general zoning authority.

    26 Wis. Stat. § 59.692(5m).

    27 Wis. Stat. § 59.692(1d)(b). For example, nothing in the statutes or NR 115 addresses side yard setbacks so in theory counties can continue to include those restrictions.

    28 Wis. Stat. § 59.692(4)(b).

    29 See Wis. Stat. section 62.233 for cities and Wis. Stat. section 61.353 for villages. Zoning for such areas must only impose a shoreland setback for structures within 50 feet of the OHWM.

    30 See Wis. Stat. §§ 59.971(6), 144.26(1) (1967).

    31 2011 Wis. Act 170 (creating Wis. Stat. § 59.692(1)2m.).

    32 Wis. Stat. § 59.692(1n)(am).

    33 Wis. Stat. § 59.692(1n); Wis. Admin Code § 115.05(1)(b)1.

    34 Wis. Stat. section 59.692(1)(e) defines structure as “a principal structure or any accessory structure including a garage, shed, boathouse, sidewalk, stairway, walkway, patio, deck, retaining wall, porch, or fire pit.”

    35 Wis. Admin Code § NR 115.05(1)(b)1m.

    36 2015 Wis. Act 167. In addition, Wis. Stat. section 59.692(1k)(a)6. also exempted devices or systems that treat runoff.

    37 Wis. Stat. § 59.692(1k)(a)2m.

    38 Wis. Stat. § 59.692(1k)(b).

    39 Wis. Admin. Code § NR 115.05(1)(b)1m.a. The prohibition on the use of boathouses for human habitation is also in Wisconsin Administrative Code section NR 115.05(1)(b)3.

    40 Wis. Admin. Code § NR 115.05(1)(c).

    41 Wis. Stat. § 59.692(1f)(b)2. By contrast, Wisconsin Administrative Code section NR 115.05(1)(c)2.b. limited viewing corridors to the lesser of 30 percent of shoreline frontage or 200 feet.

    42 Wis. Stat. § 59.692(1f)(a).

    43 Natural Resources Board Order WT-06-12, CR 13-051.

    44 Wis. Stat. § 59.692(1k)(am).

    45 Wis. Admin. Code § NR 115.05(1)(e)2.

    46 Wis. Stat. § 59.692(1k)(am)3. Roadways as defined in Wis. Stat. section 340.01(54) and sidewalks as defined in Wis. Stat. section 340.01(58) are not considered impervious surfaces, but private roadways and sidewalks are considered impervious.

    47 Wis. Stat. § 59.692(1k)(am)1. There is a corresponding provision that allows runoff treatment devices to be located in the shoreland setback as an exempt structure. Wis. Stat. § 59.692(1k)(a)6.

    48 Wis. Admin. Code § NR 115.05(1)(e)2m.

    49 Wis. Stat. § 59.692(1k)(am)2. This basic definition is in Wisconsin Administrative Code section NR 115.05(1)(e) but the option for lots less than 20,000 square feet was added by 2015 Wis. Act 167.

    50 Wis. Admin. Code § NR 115.05(1)(e)3.

    51 Wis. Stat. § 59.692(1k)(a)4. Currently NR 115 limits vertical expansion to 35 feet. However, under the statute, the DNR could in theory adopt higher limits or impose other requirements for expansions above 35 feet.

    52 Wis. Admin Code § NR 115.05(1)(a).1, 2.

    53 Wis. Admin Code § NR 115.05(1)(a)3.

    54 This section was created by 2011 Wisconsin Act 170 and modified by 2015 Wisconsin Act 55.

    55 Wis. Stat. § 59.692(1k)(a)2.

    56 Wisconsin Administrative Code section NR 115.05(1)(g) did not include replacement or rebuilding and did not apply to nonprincipal structures. Mitigation was also required.

    57 Wis. Stat. § 59.692(1)(c).

    58 Wis. Admin. Code § NR 115.05(1)(g)5m.

    59 Wis. Stat. § 59.692(1k)(a)4.

    60 Id. This requirement for mitigation in NR 115 was not overruled by state statutes.

    61 Wis. Stat. § 59.692(1k)(a)1.

    62 Wis. Stat. § 59.692(1o).

    63 Wis. Stat. § 59.692(1r).

    64 Wis. Stat. § 59.692(1k)(a)3.

    65 Wis. Stat. § 59.692(7), created by 2015 Wis. Act 391.

    66 Wis. Stat. § 281.31(2m).

    67 Wis. Stat. § 59.692(1h).

    68 The DNR website and model code for more detailed information (last revised July 20, 2016).




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