As part of the 2015-16 state budget, Wisconsin lawmakers made significant changes to the state’s shoreland zoning regulations (NR 115). These changes went into effect on July 14, 2015, and have created some confusion for county zoning administrators, property owners and REALTORS^®. Most of the confusion is the result of trying to figure out what county shoreland zoning ordinances can and cannot regulate as the result of these new changes.

To help clear up some of the confusion, this article highlights five key issues related to the new changes and provides some insight as to how these issues may affect the regulation of shoreland property in your county.

State shoreland zoning regulations (NR 115) are no longer minimum standards

Since 1966, the state’s shoreland zoning standards (NR 115) were considered minimum standards, and all counties except Milwaukee County were required to adopt shoreland zoning standards that met or exceeded the standards in NR 115. Accordingly, most county shoreland zoning ordinances contained provisions that were more restrictive than the standards in NR 115. However, under the new law, counties cannot regulate a matter more restrictively than NR 115. Thus, if a matter is regulated by NR 115, counties have to follow the state standards, which include:

1. Building setback from the ordinary high water mark (OHWM). 
2. Minimum lot sizes.
3. Vegetative buffer zones. 
4. Removal and maintenance of vegetation.
5. Impervious surface areas.
6. Building height.
7. Repair, maintenance and expansion of nonconforming structures.
8. Regulation of nonconforming uses.
9. Development of substandard lots.

County shoreland zoning ordinances may continue to regulate matters not regulated by NR 115 

While the new law prohibits county shoreland zoning regulations from being more restrictive than NR 115, the new law does not prohibit county shoreland zoning regulations from regulating matters or activities that are not regulated by NR 115. For example, NR 115 establishes minimum lot size requirements (sewered lots must have a minimum average width of 65 feet and a minimum average area of 10,000 square feet, while unsewered lots must have a minimum average width of 100 feet and a minimum area of 20,000 square feet) and establishes a 75-foot building setback from the OHWM. However, NR 115 does not regulate sideyard setbacks or setbacks from the roadway. Accordingly, a county shoreland zoning ordinance could establish sideyard setbacks and/or roadway setbacks, but may not impose lot-size requirements or setbacks from the OHWM that are different than the standards established under NR 115.'

The development density could be much higher on some lakes

To date, the biggest concerns raised by zoning administrators and others related to the new law are the restrictions on the ability of counties to establish their own minimum lot sizes. Prior to the new law, many counties had larger minimum lot size requirements than those established in NR 115, especially on undeveloped lakes. Bayfield County, for example, required a 100-foot setback from the OHWM and a minimum of 300 feet of frontage and a minimum area of 120,000 square feet on some of its most pristine and undeveloped lakes. Waupaca County required up to 5 acres for minimum lot sizes and a minimum average width of 400 feet on some lakes. Under the new law, counties will not be allowed to enforce minimum lot size requirements that exceed the state standards. Accordingly, the development density on some lakes could be much higher than what was authorized by many county shoreland zoning ordinances under prior state law. 

Nonconforming structures have greater protections

Since NR 115 was revised in 2009, the regulation of nonconforming structures has changed significantly in Wisconsin. Prior to the new law, owners of nonconforming principal structures were allowed to perform unlimited maintenance and repairs, expand behind the setback from the OHWM, make limited expansions in front of the setback from the OHWM, and replace and/or relocate under certain circumstances. In 2011, these changes were protected by statute as part of 200 Wis. Act 170. The new law goes even further, creating additional protections for nonconforming structures by:

• Applying protection standards to all nonconforming structures, not just principal structures. This means that nonconforming garages, boathouses above the OHWM and other accessory structures will have the same protections related to repairs, maintenance and expansions as principal structures. 
• Prohibiting counties from applying special regulations, fees, mitigation or approval processes (other than standard building regulations, permits and fees), to the maintenance, repair or replacement of nonconforming structures if the activity does not expand the footprint of the nonconforming structure unless the expansion is necessary for the structure to comply with the Americans with Disabilities Act or other federal requirements. In other words, counties cannot treat the repair, maintenance and vertical expansion of nonconforming structures differently than they treat the same activities to conforming structures. 
• Grandfathering all nonconforming structures from future enforcement action if they have been existence for at least 10 years. Even if the nonconforming structure was constructed unlawfully and did not comply with the regulations in place at the time of construction, no enforcement action for violating building or zoning codes can be brought against the owner of the structure after 10 years.

Impervious surface standards do not apply to surfaces that treat and retain runoff

The new law clarifies that existing impervious surface standards in NR 115 do not apply to surfaces that treat or retain runoff so that the runoff is not discharged into the lake, river or stream. While some may suggest this is a change in environmental policy, the provision is intended to clarify that counties cannot adopt more restrictive impervious surface standards than what is currently found in NR 115. 

As of the date of this publication, the Wisconsin Department of Natural Resources (DNR) is preparing a memo to further explain the impact of the new law on the ability of counties to regulate land use activities in shoreland areas. County code administrators will likely rely on this memo to address many of the uncertainties associated with the new law. Once the memo is made public, the WRA will provide additional information about how the DNR is interpreting the new law and the potential impact on county shoreland zoning ordinances.

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