On May 29, the Wisconsin Legislature’s Joint Finance Committee (JFC) adopted an omnibus motion related to the Wisconsin Department of Natural Resources (DNR) that included a number of changes to Wisconsin’s shoreland zoning regulations (NR 115). While some of the changes could be considered clarifications or slight modifications to existing regulations, others are more significant in nature. 

Background

In 1966, Wisconsin lawmakers created minimum shoreland zoning standards that required counties to regulate the use of property near lakes, rivers, streams and other navigable waterways. These regulations applied to all land within 1,000 feet of a lake, pond or flowage, as well as land within 300 feet of a stream or river. Because the state standards are only minimum standards, counties have been permitted to create standards that are more restrictive. 

Since the 1960s, NR 115 has been modified only twice. In 2009, the rule was revised to include impervious surface regulations, more restrictions on cutting trees and shrubs near the water, and greater flexibility for property owners to maintain and improve nonconforming structures.

In 2013, the rule was revised again in response to complaints from county zoning administrators and property owners who believed the 2009 changes were overly restrictive and would create unreasonable hardships for new development.

Proposed changes

Despite the recent modifications to NR 115, some legislators have raised concerns about the ability of counties to adopt more restrictive regulatory standards. For example, the state imposes a 75-foot building setback from the water, but some counties have adopted a greater setback of 125 feet on developed lakes and up to 175 feet on undeveloped lakes. In addition, other counties have adopted larger minimum lot size requirements in an effort to limit development densities near the water. 

To make shoreland development regulations more uniform throughout the state, the proposed changes included in the state budget motion include the following:

• Prevent counties from adopting shoreland zoning regulations that are more restrictive than the state shoreland zoning regulations (NR 115). Note: this does not prohibit counties from enacting regulations that are not covered by NR 115.
• Prohibit county shoreland zoning regulations from applying vegetative buffer zone standards to existing homes.
• Require county shoreland zoning ordinances to allow view access corridors to run contiguously rather than separated by a certain distance.
• Prohibit state and county shoreland zoning regulations from: 
  • Prohibiting or regulating outdoor lighting.
  • Prohibiting, regulating or imposing a fee for maintenance, repair or replacement of nonconforming structures that do not increase the size of the footprint, unless expansion is necessary to comply with state or federal requirements. 
  • Prohibiting, regulating or imposing a fee for vertical expansion of a nonconforming structure, unless the vertical expansion is 35 feet above grade level. 
  • Requiring inspections or improvements at the time of selling a property.
  • Establishing impervious surface standards unless those standards take into consideration systems or discharges that allow for infiltration.
• Apply protections for nonconforming principal structures to nonconforming accessory structures such as garages, boathouses or sheds.
• Prohibit counties from adopting more restrictive regulations than those in the state shoreland zoning regulations relating to the construction of structures on substandard lots. 
• Prohibit the DNR from appealing a decision by a county to grant/deny a variance.

Prohibit shoreland zoning regulations, erosion control ordinances, stormwater management ordinances and wetland zoning ordinances from being applied to lands adjacent to artificially constructed drainage ditches, ponds or stormwater retention basins that are not hydrologically connected to a navigable water body.

Remaining budget process

At the time of publication, the state budget process has stalled due to ongoing negotiations. Accordingly, the proposed changes to shoreland zoning are still in a state of flux. At the moment, they are included in the budget due to the motion adopted by the JFC. However, until the budget is signed into law, any provision in the budget can be modified or removed. After the JFC finishes its work on the budget, the budget must be ratified, and possibly amended, by both houses of the legislature before going to the governor’s desk for possible vetoes. 

Several organizations, including the Wisconsin Counties Association, Wisconsin County Code Administrators, Wisconsin Association of Lakes and numerous environmental groups, are strongly opposed to the proposed shoreland zoning changes and are actively lobbying the legislature to get them removed from the budget. If removed from the budget, the proposed changes will likely be included in a separate bill and introduced in time for the upcoming floor period in the fall, which begins in September.

For more information on the proposed shoreland zoning changes, contact Tom Larson at tlarson@wra.org.

Tom Larson is Senior Vice President of Legal and Public Affairs for the WRA.