Shoreland Zoning Trumps Town’s Authority

October 24, 2013

In a recent decision from the Wisconsin Court of Appeals, Stephen Hegwood v. Town of Eagle Zoning Board of Appeals, the Court cleared up an important misconception regarding shoreland zoning.

In this particular case, Hegwood owned shoreland property in the town of Eagle on which he built a fireplace and pergola without a permit. The fireplace and pergola were located, respectively, 14 feet and 8 feet from the lot line. After both structures were built, Hegwood sought variances from the 20-foot setback provided in the Waukesha County Shoreland and Floodland Ordinance. The county eventually approved the pergola (subject to removal of the roof) and concluded the fireplace “may remain in its current location.”

Hegwood then applied to the town of Eagle for variances from its ordinance requiring a 20-foot setback. The Town Zoning Board of Appeals denied his application after a hearing. Mr. Hegwood then sought circuit court review, which resulted in a reversal of the town’s decision. The town appealed. The key issues on appeal addressed the scope of town zoning authority over property subject to a county shoreland zoning ordinance. First, the court construed Wis. Stat. § 281.31 and concluded the Legislature did not intend to generally permit towns to regulate shorelands.

Furthermore, Wis. Stat. § 59.692 prohibits towns from having authority to approve or disapprove of county shoreland zoning ordinances operated within a town. The only exception is when a town ordinance preceded the county ordinance and was more restrictive than the county ordinance.

In the case of the town of Eagle, its zoning ordinance did not precede the county shoreland zoning ordinance. The fact that the town had adopted “village powers” as part of its zoning ordinance adoption was inconsequential.

The bottom line of this case is that towns generally do not have authority regarding shoreland zoning. Here, Hegwood’s fireplace and pergola could not be regulated by the town due to shoreland zoning regulations being administered by the county. The Town Zoning Board of Appeals had no authority to consider, much less deny, Hegwood’s application for variances.

This interpretation of state zoning law is a realistic and practical approach, which avoids having state and county zoning regulations inappropriately chipped away, in a piecemeal fashion, by overly zealous town regulations.

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For more information about "Shoreland Zoning Trumps Town’s Authority," contact Buck V. Sweeney at csweeney@axley.com or 608.283.6743 or Mitch R. Olson at molson@axley.com or 608.283.6724.