Apparently Wisconsin Legislature treats its budget bills like I treat the bottom drawer of my desk

A week or so ago I posted about all the interesting things you can find in the Wisconsin Legislature’s budget bill that have nothing to do with the state budget, from exempting single state buildings from Madison’s zoning ordinance and requiring the state to  consider relocating its agencies to buildings outside of Dane and Milwaukee counties before renewing current leases, to altering Madison’s ability to use its lodging tax to support city services.

There is more!  Republicans also added to the state budget a provision that would bar counties from imposing stiffer zoning requirements along shorelines than those in state law.  The Milwaukee Journal Sentinel published an op-ed today opposing the measure, arguing that “it’s absurd to think that one size fits all, especially considering there are 15,000 lakes in Wisconsin with different levels of development around them. Counties should have the authority to work out improved controls for the lakes in their jurisdictions when warranted and in conjunction with property owners and lake associations.”


News from around Wisconsin: Town asks county for stricter shoreland zoning in town

Last October the Wisconsin Court of Appeals ruled that towns do not have the jurisdiction to zone shorelands in Wisconsin; the exclusive jurisdiction lies with counties.   At least one town has asked its county to adopt stricter shoreland zoning rules within the boundaries of the county.  The article from the Ashland Daily Press is here.  Ashland County is in northern Wisconsin.

Wisconsin town zoning board has no jurisdiction in shoreland zoning area regulated by county

by Kaitlin Heinen

Stephen Hegwood v. Town of Eagle Zoning Board of Appeals
(Wisconsin Court of Appeals, September 25, 2013)

Stephen Hegwood owns shoreline property in the town of Eagle upon which he built an outdoor fireplace and pergola…located, respectively, fourteen and eight feet from the lot line.  The property was in an area under the jurisdiction of the Waukesha County shoreland zoning ordinance. Hegwood applied for variances from the county’s twenty-foot setback requirement after these structures were built. Waukesha County conditionally approved both. Then Hegwood applied for variances from the town of Eagle’s twenty-foot setback requirement, but the Town Zoning Board Appeals denied his application. Hegwood filed for certiorari in circuit court. The court reversed the Board’s decision, so the Board appealed to the Wisconsin Court of Appeals.

The Board argued the circuit court erred when it reviewed Hegwood’s appeal as a certiorari action. However, both Hegwood and the Board agreed that Wis. Stat. § 62.23(7)(e)10 governed an appeal of a board of appeals’ decision, which states that “[a]ny person … aggrieved by any decision of the board of appeals … may … commence an action seeking the remedy available by certiorari.” On certiorari review, the court must presume the correctness of the board of appeals’ decision and review the board’s decision to determine whether it “(1) kept within its jurisdiction; (2) proceeded on a correct theory of law; (3) acted in an arbitrary, oppressive or unreasonable manner that represented its will and not its judgment; and (4) ‘might reasonably make the order or determination in question based on the evidence.’” Hegwood was an “aggrieved person” and was “specifically authorized…to seek relief by means of a certiorari action,” according to Wis. Stat. § 62.23(7)(e)10. The statute also allowed the court to determine whether the Board proceeded under a correct theory of law. Thus Hegwood’s action was appropriately brought as a certiorari action.

In addition, the Board argued the court erred in concluding that the Board proceeded on an incorrect theory of law when it applied the town’s zoning code to the fireplace and pergola. Hegwood argued that “Wis. Stat. § 59.692 vests counties with the exclusive authority to zone shorelands.” However, the Board countered that “there is no specific statutory language prohibiting towns from adopting and enforcing zoning ordinances affecting shorelands and that it is permitted to do so pursuant to its village powers.”

The court has previously held that the “legislature has given shoreland zoning authority to counties.” The court concluded that towns do not have zoning authority over the same shorelands, except for limited circumstances, and proceeded to examine the possibilities for town jurisdiction over shorelands asserted by the town.

Wis. Stat. § 281.31 (the “Navigable waters protection law”) subsection (1) “authorize[s] municipal shoreland zoning regulations.” Subsection 2(c) of that statute defines a “municipality” as “a county, village, or city”—towns are not included. Furthermore, Wis. Stat. § 281.31(2)(e) provides that “‘Regulation’ means ordinances enacted… pursuant to any of the zoning…powers delegated by law to cities, villages and counties.” The court reasoned that “[h]ad the legislature intended to generally permit towns to regulate shorelands, we would expect to see a reference to such authority in § 281.31; but no such reference is made.”

The court also considered Wis. Stat. § 59.692 (“Zoning of shorelands on navigable waters”). Subsection 59.692(1m) states that “each county shall zone by ordinance all shorelands in its unincorporated area.” Subsection (2)(a) states that “ordinances…related to shorelands and enacted under § 59.692 ‘shall not require approval or be subject to disapproval by any town or town board.’” The legislature “specifically prohibited towns from having authority to approve or disapprove of county shoreland ordinances operating within the town.” Additionally, subsection (2)(b) established that town regulations in regards to shorelands would have effect only “if they were in existence before enactment of the county ordinance and were more restrictive than the county provisions affecting the same shorelands.” In this case, the town ordinance was adopted after the county ordinance. Even in regards to the DNR’s shoreland zoning standards (Wis. Stat. § 59.692(4)(a)), “the legislature did not include a reference to towns.”

The Board also claimed that it acted appropriately because the town had concurrent zoning authority with the county over shorelands and that it had the authority to reject Hegwood’s application for a variance, since the town passed the zoning ordinance pursuant to village powers. The statute the Board points to (Wis. Stat. § 60.22(3)), however, clearly indicates that “permitting general town regulation of shorelands under village powers does conflict with the statutory scheme of Wis. Stat. §§ 281.31 and 59.692…[and] deliberately excludes towns from having shoreland zoning authority.” The court concluded that from “[t]he plain language of…Wis. Stat. §§ 281.31 and 59.692, the legislature intended that towns would not have authority to regulate shorelands.” Thus, the Board’s claim of authority failed.

The Wisconsin Court of Appeals concluded that the Board had no authority to consider Hegwood’s application for variances. “Had the Board proceeded on a correct theory of law, it would have recognized that Hegwood’s property was subject only to the county’s shoreland zoning ordinance and dismissed his application for the variances as unnecessary.”  The circuit court’s reversal of the Board’s decision was affirmed.

The notion of a house without a garage is “disagreeable in Wisconsin”

by Kaitlin Heinen

State of Wisconsin v. Manitowoc County Board of Adjustment
(Wisconsin Court of Appeals, February 13, 2013)

In 2010, Rebecca Rach built a house on Wilke Lake in the Town of Schleswig.  When she purchased another piece of land at the back of her residence, the Town built a road on part of it to give 4 lake residents access to a main road. The remainder of the land is wetland. Rach petitioned the Manitowoc County Board of Adjustment for a variance to construct a 4’ x 50’ walkway and a 40’ x 40’ patio adjacent to a concrete porch on the east side of her house, facing the lake.  The patio would intrude 49 feet into the 75-foot required shoreland setback.  Rach argued that without the variance, she would suffer an unnecessary hardship because there was no other place on her lot to construct a patio. Board members conducted an on-site inspection of Rach’s property and held a hearing on her request.  Rach and her husband presented a landscaping plan showing that the patio would be built with materials and plantings to aid infiltration and catch any runoff.  The Town stated in a letter that its board and planning commission both approved Rach’s variance request.  However, the Wisconsin Department of Natural Resources, by a letter from a shoreland zoning specialist, opposed the variance, citing the lack of unnecessary hardship and the negative effects the patio and walkway encroachment would have on the lake.

Rach’s husband testified that they could not have built their house further back because the land behind their house was for sale after they had built and that, with the remainder of the land being wetland, there is no room to build a patio.  A Board member even commented, “I don’t think [the DNR shoreland zoning specialist] realized that…. He wasn’t there [at the property].” So the Board concluded that Rach faced an unnecessary hardship because the wetlands behind the house is not suitable for a patio; the landscaping of the patio would handle runoff; and the variance would not be against the public interest because the landscaping would screen the patio from the lake, beautify the shoreline, and create a buffer to prevent runoff.  The Board reduced the walkway’s width from 48 to 42 inches and the patio’s length from 40 feet to 20 feet, cutting the setback intrusion to 29 feet. The variance was approved as modified.  The State filed a complaint in the circuit court, which affirmed the Board’s decision.  So the State appealed to the Wisconsin Court of Appeals.

The Wisconsin Court Appeals reviewed the Board’s decision by applying the substantial evidence test to determine whether the evidence before the Board was sufficient. Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” In its review, the court must presume the correctness of the Board’s decision. When a variance request is before the Board, it must decide whether denying the variance would impose an unnecessary hardship on the landowner. Unnecessary hardship must be based on conditions unique to the property itself and cannot be self-created. The State argued that Rach failed to produce sufficient evidence of “unnecessary hardship” and that the hardship Rach faced was self-created because she built the house a year before applying for the variance, choosing its size and where to situate it on the lot.  The State also argued that a patio is not essential and if Rach wants one she can build it, instead of a garage, at the back of the house. However, the court reasoned that even if Rach could construct the patio on the wetland, substantial evidence existed to support the Board’s decision because the State’s arguments ignored that building the patio behind the house would leave Rach without a garage—”disagreeable in Wisconsin.”

The Board must evaluate the hardship with the purpose of the zoning restriction in mind, and a variance cannot be against the public interest. The purpose of a shoreland zoning ordinance “is to protect navigable waters and the public rights therein from the degradation and deterioration which results from uncontrolled use and development of shorelands.” Since the Board considered the purpose of the ordinance and after viewing the site and taking testimony from the Town and the DNR, it modified the variance by imposing conditions designed to protect the shoreland setback zone. It found that, as modified, the construction would not be against the public interest. The Board acted within its authority, so the Wisconsin Court of Appeals concluded that the Board’s decision to grant the variance to Rach was supported by sufficient evidence.

Redetermination of high water mark does not invalidate previous permit

by Melanie Thwing

Oneida County v. Collins Outdoor Advertising
(Wisconsin Court of Appeals, April 26, 2001)

Collins Outdoor Advertising began looking into constructing a billboard in the Town of Sugar Camp, Wisconsin in 2003. The Town of Sugar Camp is generally un-zoned, but Oneida County has zoning authority over land within 1,000 feet of the ordinary high water marks of navigable lakes. In this particular area there are two lakes, Jennie Webber Lake and an unnamed lake 34-16.

Keith Carson, a Collins’ employee, obtained a lease from the landowners of the desired location. A signature was given from the Town’s foreman stating the land was un-zoned and the Department of Transportation (DOT) approved a permit application. The DOT also instructed Carson to check with the Department of Natural Resources (DNR) because the land boarded a swamp. The DNR approved the site but then instructed Carson to check with the County to make sure no zoning authority existed.

After meeting with Theresa Kennedy, a permit specialist for the County, and looking at several zoning maps and aerial photographs it was determined the location would not pose a problem with Jennie Webber Lake. It was Carson’s responsibility however to determine the distance from 34-16 which he did with a handheld GPS. This also met the 1,000 foot requirement.

In July 2003 the billboard was erected. Then, in October the County sent a letter indicating there had been complaints that the sign was illegally constructed. This letter referenced a “large wetland complex” attached to Jennie Webber Lake and stated that, when taking these wetlands into account, the sign was only 10 feet from the high water mark.  Collins responded to this complaint in January of 2004 with a letter reciting the above facts.  The County did not respond again until September 2006.  The County stated it had re-determined the high water mark and, as a result, had determined that the sign was 600 feet away from Jennie Webber Lake.  In August 2008 the County filed for injunctive relief and damages in the circuit court. Summary judgment was granted in favor of the County. Collins was ordered to remove the sign and pay $25,000 in forfeitures.

Collins appealed to the Wisconsin Court of Appeals, arguing that when the sign was originally constructed the County’s zoning map identified the shorelines and any redeterminations cannot render the sign unlawful.

Under Wis. Stat. § 59.692(1m),(6) the state is required to adopt and enforce shoreland zoning ordinances. Each county is required to include “[m]apped zoning districts and the recording, on an official copy of such map, of all district boundary amendments.” Wis. Admin. Code § NR 115.05(4)(i). Also the DNR must be given notice for any interpretation of a map or amendment.  The County argued that it was unreasonable for Carson to rely on the zoning map rather than on-site measurements; however the Court rejected this argument.  The Court of Appeals observed that if Carson had determined the measurements of high water mark himself they would have no legal force. The ordinance does not give landowners authority to determine high water marks. That burden is placed on the County and DNR to set ordinary high water mark.  This determination can be very subjective. 

The County’s argument that “[t]he standards for such determinations are clearly set forth in the ordinance,” was found to be unpersuasive.  The County’s argument would require landowners to roam large portions of private property to identify the correct high water marks. Carson followed the ordinance by contacting the zoning department who ultimately provided the map for determination.

Finally there is no conflict between the zoning map and the zoning ordinance. Ordinary high water marks are usually identified on official maps or on aerial photographs. If the public were not allowed to put any reliance on the maps, the Court questions why they are required or why the DNR must be contacted when a question arises about the maps.

It is undisputed that at the time the sign was built it was over 1,000 feet from the shoreline as then determined, and the County does not dispute that the sign would be legal as an existing nonconforming structure using that determination. The decision of the circuit court was reversed and remanded.





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