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Published: February 15, 2010
Authors:
Peter Conrad and
Charles (Buck) Sweeney
On November 13, 2009, the National Resources Board (NRB) adopted revisions to the 40-year-old shoreland zoning law, NR 115. These changes became effective February 1, 2010 when the Wisconsin Department of Natural Resources (DNR) published the new regulations.
The one good thing about the shoreland zoning law deals with nonconforming structures. Anywhere within the first 75 feet of the Ordinary High Water Mark (OHWM), unlimited repair, maintenance and remodeling are allowed. This is a change from the old 50 percent regulation, which was typically difficult to keep track of, confusing, and monitored haphazardly in some areas while thoroughly in others. In addition, structures located between 35 and 75 feet of water can be expanded vertically up to 35 feet. If the landward side of a house is behind the 75 foot setback, the structure can be expanded behind the setback in any manner up to the impervious surface limits. However, lateral expansion between 35 and 75 feet from the shoreland is not allowed. These landward expansions are also not allowed if the entire structure is within the 75 foot setback.
The new rules also establish impervious surface limitations on property within 300 feet of lakes and navigable streams. The limits are up to 30 percent with mitigation and 15 percent without. Originally the rules applied to impervious surfaces within 1,000 feet of lakes and 300 feet of streams, so while the final rules were significantly reduced on these limits they will also be fertile areas for litigation.
Additionally, the final rules were clarified to allow property owners to keep the amounts of impervious surface they have on their property. For example, within the 75 foot setback, one type of impervious surface can be swapped for another. A homeowner who had 50 percent of impervious surfaces could eliminate a patio and expand their dwelling by the same amount of patio area.
After the new rules become effective, counties have up to two years to adopt ordinances implementing the rules. Until their rules are updated, the existing shoreland regulations apply. It will be important for individuals interested in this to watch the counties to make sure they don’t broaden the State law through county legislation.
These rules establish minimum shoreland requirements for counties and generally apply to unincorporated areas. However, areas annexed after May 7, 1982, and cities or villages incorporated after April 30, 1994 must apply the shoreland zoning ordinances in place at the time of annexation or incorporation. Therefore, if land is annexed prior to a county updating its ordinance, the current shoreland ordinance would apply even after the county updates its ordinance. If you have a unique situation, it may be in your interest to annex if you would rather implement current regulations instead of the old ones. This will be a very interesting two-year period to determine whether new annexations will occur in order to avoid the new shoreland regulations. In most places with small lake lots, the old ordinances will provide more of an opportunity for larger houses on smaller lots because of the new impervious surface limitations.
The new shoreland rules are likely to result in confusion and litigation moving forward. For more information contact Axley Brynelson attorneys Buck Sweeney or Peter Conrad. Mr. Sweeney can be reached at 608.283.6743 or csweeney@axley.com. Mr. Conrad can be reached at 608.260.2483 or pconrad@axley.com.
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