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Published: June 19, 2009
Author: Charles (Buck) Sweeney
Introduction
The Wisconsin Department of Natural Resources (DNR) recently proposed major changes to the state's shoreland zoning regulation (NR115). The changes purport to:
- Allow building setbacks and minimum lot sizes to stay the same
- Clarify and modify rules on legal nonconforming structures
- Cut runoff pollution by capping the amount of rooftops, driveways and other hard surfaces
These changes would apply to land in unincorporated areas or areas annexed after May 7, 1982, and would only affect existing homeowners when they remodel or make major changes to property management (such as clear cutting trees, mowing new areas or paving over areas).
Impact
Certain aspects of the new version of NR115 are particularly noteworthy:
- Eliminates key definitions. This version of the proposed rule eliminates numerous definitions and other clarifications included in prior drafts. This will make the law easier to pass legislative scrutiny, but more difficult to implement as local zoning administrators, property owners and developers struggle to agree on what constitutes compliance.
- Limits "impervious surfaces" on any given parcel to 15% of the parcel area or up to 30% if the property owner agrees to a mitigation plan. These limits apply to any lot within the shoreland zone. Difficulties will arise as owners of small parcels of land struggle to build or remodel their homes, driveways, etc. within 30% of their lot size.
- Requires counties to develop ordinances regulating the removal of vegetation. In general, the land within 35 feet of the water must remain in its native state. Property owners may remove diseased or damaged trees and may cut down trees and shrubs (but not ground cover) in the "viewing corridor." The viewing corridor may be up to 30% of the lot width or 200 feet.
- Allows property owners in many instances to request a variance rather than comply with a given rule. However, it is unlikely that a county will grant a variance very often as the "loss of reasonable use" test is difficult to pass.
- Permits variation from some of the rules when a property owner agrees to "mitigation." NR115 allows the local county zoning administrator to determine what constitutes adequate mitigation. This will lead to large amounts of discretion and therefore large amounts of uncertainty as to whether particular mitigation efforts will be sufficient.
- Sets minimum standards for regulation. Individual counties are at liberty to create more stringent zoning requirements as they see fit.
History
The current version of NR115 has remained unchanged for over 40 years. Unlike past proposals to modify the rule, this proposal is likely to be implemented because of broader support from key groups. The new version of NR115 has greatly simplified the proposed changes, in large part by eliminating difficult definitions.
Process
On June 24, 2009 the Natural Resources Board will consider adopting the proposed changes to NR115. If adopted, the changes would likely become law by January 1, 2010. Counties would have two years from the date the new rule is published to adopt updated zoning ordinances that comply with the new minimum standards.
Mr. Sweeney is a partner in the firm, practicing in the areas of environmental and construction law. Peter Conrad is an attorney at Axley Brynelson, focusing on a variety of business matters including construction law, real estate law, business transactions, business organizations, municipal law, contracts and environmental law.
For more information about the proposed changes to NR115, please contact the authors at 608.257.5661, or visit the DNR's Web site. The authors thank Axley Brynelson law clerk Emily Buchholz for her assistance in writing this article.
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