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59.692

59.692 Zoning of shorelands on navigable waters.

59.692(1)

(1) In this section:

59.692(1)(a)

(a) "Department" means the department of natural resources.

59.692(1)(b)

(b) "Shorelands" means the area within the following distances from the ordinary high-water mark of navigable waters, as defined under s. 281.31 (2) (d):

59.692(1)(b)1.

1. One thousand feet from a lake, pond or flowage. If the navigable water is a glacial pothole lake, this distance shall be measured from the high-water mark of the lake.

59.692(1)(b)2.

2. Three hundred feet from a river or stream or to the landward side of the floodplain, whichever distance is greater.

59.692(1)(bn)

(bn) "Shoreland setback area" means an area in a shoreland that is within a certain distance of the ordinary high-water mark in which the construction or placement of buildings or structures has been limited or prohibited under an ordinance enacted under this section.

59.692(1)(c)

(c) "Shoreland zoning standard" means a standard for ordinances enacted under this section that is promulgated as a rule by the department.

59.692(1)(d)

(d) "Special zoning permission" has the meaning given in s. 59.69 (15) (g).

59.692(1m)

(1m) To effect the purposes of s. 281.31 and to promote the public health, safety and general welfare, each county shall zone by ordinance all shorelands in its unincorporated area. This ordinance may be enacted separately from ordinances enacted under s. 59.69.

59.692(1r)

(1r) An ordinance enacted under this section may not prohibit the maintenance of stairs, platforms or decks that were constructed before August 15, 1991, and that are located in any of the following shorelands:

59.692(1r)(a)

(a) The shoreland of Lake Wissota in Chippewa County.

59.692(1r)(b)

(b) The shorelands of Lake Holcombe in Chippewa and Rusk counties.

59.692(1s)

(1s)

59.692(1s)(a)

(a) Restrictions that are applicable to damaged or destroyed nonconforming structures and that are contained in an ordinance enacted under this section may not prohibit the restoration of a nonconforming structure if the structure will be restored to the size, subject to par. (b), location and use that it had immediately before the damage or destruction occurred or impose any limits on the costs of the repair, reconstruction or improvement if all of the following apply:

59.692(1s)(a)1.

1. The nonconforming structure was damaged or destroyed after October 14, 1997.

59.692(1s)(a)2.

2. The damage or destruction was caused by violent wind, vandalism, fire, flood, ice, snow, mold, or infestation.

59.692(1s)(b)

(b) An ordinance enacted under this section to which par. (a) applies shall allow for the size of a structure to be larger than the size it was immediately before the damage or destruction if necessary for the structure to comply with applicable state or federal requirements.

59.692(1t)

(1t) A county or the department may not commence an enforcement action against a person who owns a building or structure that is in violation of a shoreland zoning standard or an ordinance enacted under this section if the building or structure has been in place for more than 10 years.

59.692(1v)

(1v) A county shall grant special zoning permission for the construction or placement of a structure on property in a shoreland setback area if all of the following apply:

59.692(1v)(a)

(a) The part of the structure that is nearest to the water is located at least 35 feet landward from the ordinary high-water mark.

59.692(1v)(b)

(b) The total floor area of all of the structures in the shoreland setback area of the property will not exceed 200 square feet. In calculating this square footage, boathouses shall be excluded.

59.692(1v)(c)

(c) The structure that is the subject of the request for special zoning permission has no sides or has open or screened sides.

59.692(1v)(d)

(d) The county must approve a plan that will be implemented by the owner of the property to preserve or establish a vegetative buffer zone that covers at least 70% of the half of the shoreland setback area that is nearest to the water.

59.692(2)

(2)

59.692(2)(a)

(a) Except as otherwise specified, all provisions of s. 59.69 apply to ordinances and their amendments enacted under this section whether or not enacted separately from ordinances enacted under s. 59.69, but the ordinances and amendments shall not require approval or be subject to disapproval by any town or town board.

59.692(2)(b)

(b) If an existing town ordinance relating to shorelands is more restrictive than an ordinance later enacted under this section affecting the same shorelands, it continues as a town ordinance in all respects to the extent of the greater restrictions, but not otherwise.

59.692(2)(c)

(c) Ordinances that are enacted under this section shall accord and be consistent with any comprehensive zoning plan or general zoning ordinance applicable to the enacting counties, so far as practicable.

59.692(3)

(3) All powers granted to a county under s. 236.45 may be exercised by it with respect to shorelands, but the county must have or provide a planning agency as defined in s. 236.02 (3).

59.692(4)

(4)

59.692(4)(a)

(a) Section 66.0301 applies to this section, except that for the purposes of this section an agreement under s. 66.0301 shall be effected by ordinance. If the municipalities as defined in s. 281.31 are served by a regional planning commission under s. 66.0309, the commission may, with its consent, be empowered by the ordinance of agreement to administer each ordinance enacted hereunder throughout its enacting municipality, whether or not the area otherwise served by the commission includes all of that municipality.

59.692(4)(b)

(b) Variances and appeals regarding shorelands within a county are for the board of adjustment for that county under s. 59.694, and the procedures of that section apply.

59.692(5)

(5) An ordinance enacted under this section supersedes all provisions of an ordinance enacted under s. 59.69 that relate to shorelands.

59.692(6)

(6) If a county does not enact an ordinance by January 1, 1968, or if the department, after notice and hearing, determines that a county has enacted an ordinance that fails to meet the shoreland zoning standards, the department shall adopt such an ordinance for the county. As far as possible, s. 87.30 shall apply to this subsection.

59.692(6m)

(6m) For an amendment to an ordinance enacted under this section that affects an activity that meets all of the requirements under s. 281.165 (2) or (3) (a), the department may not proceed under sub. (6) or (7) (b) or (c), or otherwise review the amendment, to determine whether the ordinance, as amended, fails to meet the shoreland zoning standards.

59.692(7)

(7)

59.692(7)(a)

(a) Provisions of a county shoreland zoning ordinance that are enacted under this section that were applicable, prior to annexation, to any shoreland area annexed by a city or village after May 7, 1982, shall continue in effect and shall be enforced after annexation by the annexing city or village unless any of the following occurs:

59.692(7)(a)1.

1. The city or village enacts, administers and enforces a zoning ordinance, for the annexed area, that complies with the shoreland zoning standards and that is at least as restrictive as the county shoreland zoning ordinance.

59.692(7)(a)2.

2. After annexation, the city or village requests the county to amend the county shoreland zoning ordinance as it applies to the annexed area to delete or modify provisions that meet the specifications under par. (ag), the county enacts the amendment and the city or village administers and enforces the amended ordinance as it applies to the annexed area.

59.692(7)(a)3.

3. After annexation, the city or village requests that the county shoreland zoning ordinance, as it applies to the annexed area, continues to be in effect and enforced by the county and the county agrees to enforce the ordinance.

59.692(7)(ad)

(ad) Provisions of a county shoreland zoning ordinance that are enacted under this section that were applicable, prior to incorporation, to any shoreland area that is part of a town that incorporates as a city or village under s. 66.0203, 66.0211, 66.0213 or 66.0215 after April 30, 1994, shall continue in effect and shall be enforced after incorporation by the incorporated city or village unless any of the following occurs:

59.692(7)(ad)1.

1. The city or village enacts, administers and enforces a zoning ordinance that complies with the shoreland zoning standards and that is at least as restrictive as the county shoreland zoning ordinance.

59.692(7)(ad)2.

2. After incorporation, the city or village requests the county to amend the county shoreland zoning ordinance as it applies to the incorporated area to delete or modify provisions that meet the specifications under par. (ag), the county enacts the amendment and the city or village administers and enforces the amended ordinance.

59.692(7)(ad)3.

3. After incorporation, the city or village requests that the county shoreland zoning ordinance, as it applies to the incorporated area, continues to be in effect and enforced by the county and the county agrees to enforce the ordinance.

59.692(7)(ag)

(ag) For purposes of pars. (a) 2. and (ad) 2., the types of provisions that may be deleted or modified are those that establish specified land uses or requirements that are associated with those uses and that are not necessary to effect the purposes of s. 281.31 (1) that relate to the protection of navigable waters.

59.692(7)(ar)

(ar) The county may not enact an amendment under par. (a) 2. or (ad) 2. that is less restrictive than the shoreland zoning standards.

59.692(7)(aw)

(aw) Any amendment enacted under par. (a) 2. shall apply only to the annexed area of the city or village requesting the amendment.

59.692(7)(b)

(b) If the department determines that a zoning ordinance enacted by a city or village under par. (a) 1. or (ad) 1. does not meet the shoreland zoning standards or is not as restrictive as the county shoreland zoning ordinance, the department shall, after providing notice and conducting a hearing on the matter, either issue an order declaring the city or village ordinance void and reinstating the applicability of the county shoreland zoning ordinance to the annexed or incorporated area or issue an order declaring the city or village ordinance void and adopting an ordinance for the annexed or incorporated area for the city or village that does meet the shoreland zoning standards and that is at least as restrictive as the county shoreland zoning ordinance.

59.692(7)(c)

(c) If the department determines that an amendment enacted by a county under par. (a) 2. or (ad) 2. does not meet the shoreland zoning standards, the department, after providing notice and conducting a hearing on the matter, shall issue an order declaring the amendment void and shall reinstate the applicability of the county shoreland zoning ordinance, that was in effect before amending the ordinance, to the annexed or incorporated area.

59.692(7)(d)

(d) As far as applicable, the procedures set forth in s. 87.30 apply to this subsection.

59.692(7)(e)

(e) Paragraphs (a) and (ad) do not apply to wetlands in shorelands that are governed by the provisions in s. 61.351 or 62.231.

59.692 - ANNOT.

History: 1979 c. 233; 1981 c. 330; 1983 a. 189 s. 329 (23); 1991 a. 39; 1993 a. 329; 1995 a. 201 s. 476; Stats. 1995 s. 59.692; 1995 a. 227; 1997 a. 27, 35, 252; 1999 a. 9; 1999 a. 150 s. 672; 2005 a. 112.

59.692 - ANNOT.

Cross Reference: See also ch. NR 115, Wis. adm. code.

59.692 - ANNOT.

The DNR, as trustee of navigable waters in the state, has standing to appeal shoreline zoning decisions. DNR v. Walworth County Board of Adjustment, 170 Wis. 2d 406, 489 N.W.2d 631 (Ct. App. 1992).

59.692 - ANNOT.

The private right to fill lakebeds granted under s. 30.11 does not preempt the zoning power of a county over shorelands under this section. State v. Land Concepts, Ltd. 177 Wis. 2d 24, 501 N.W.2d 817 (Ct. App. 1993).

59.692 - ANNOT.

The legal standard of unnecessary hardship requires that the property owner demonstrate that without a variance there is no reasonable use for the property. When the property owner has a reasonable use for the property, the statute takes precedence and the variance should be denied. State v. Kenosha County Board of Adjustment, 218 Wis. 2d 396, 577 N.W.2d 813 (1998), 96-1235. See also State v. Outagamie, 2001 WI 78, 244 Wis. 2d 613, 628 N.W.2d 376, 98-1046.

59.692 - ANNOT.

The burden is on the applicant for a variance to demonstrate through evidence that without the variance he or she is prevented from enjoying any reasonable use of the property. State ex rel. Spinner v. Kenosha County Board of Adjustment, 223 Wis. 2d 99, 588 N.W.2d 662 (Ct. App. 1998), 97-2094.

59.692 - ANNOT.

The state, in administering the Fair Housing Act, may not order a zoning board to issue a variance based on characteristics unique to the landowner rather than the land. County of Sawyer Zoning Board v. Department of Workforce Development, 231 Wis. 2d 534, 605 N.W.2d 627 (Ct. App. 1999), 99-0707.

59.692 - ANNOT.

In evaluating whether to grant an area variance to a zoning ordinance, a board of adjustment should focus on the purpose of the zoning law at issue in determining whether an unnecessary hardship exists for the property owner seeking the variance. The facts of the case should be analyzed in light of that purpose, and boards of adjustment must be afforded flexibility so that they may appropriately exercise their discretion. State v. Waushara County Board of Adjustment, 2004 WI 56, 271 Wis. 2d 547, 679 N.W.2d 514, 02-2400.

59.692 - ANNOT.

The term "floor area" in sub. (1v) (b) unambiguously encompasses only the surface portion of a deck's floorboards and, therefore, does not include portions of the deck's support system that extend beyond the floorboards. If a portion of a structure is outside the setback area, that part is not in the setback area and it is not the portion "extending into" that area for purposes of calculating the 200 square foot restriction in sub. (1v) (b). Propp v. Sauk County Board of Adjustment, 2010 WI App 25, ___ Wis. 2d ___, ___ N.W.2d ___, 09-0209.

59.692 - ANNOT.

County floodplain zoning ordinances may be adopted under s. 59.971 [now 59.692] and do not require the approval of town boards in order to become effective within the unincorporated areas of the county. 62 Atty. Gen. 264.

59.692 - ANNOT.

Counties may zone lands located within 300 feet of an artificial ditch that is navigable in fact. 63 Atty. Gen. 57.

59.692 - ANNOT.

County shoreland zoning of unincorporated areas adopted under s. 59.971 [now 59.692] is not superseded by municipal extraterritorial zoning under 62.23 (7a). Sections 59.971, 62.23 (7), (7a) and 144.26 [now 281.31] are discussed. Municipal extraterritorial zoning within shorelands is effective insofar as it is consistent with, or more restrictive than, the county shoreland zoning regulations. 63 Atty. Gen. 69.

59.692 - ANNOT.

A county may not enact a shoreland zoning ordinance without a provision regulating nonconforming uses that have been discontinued for 12 months or longer. A county may enact an ordinance without the 50% provision under s. 59.69 (10) (a), in which case common law controls. OAG 2-97.

59.692 - ANNOT.

Wisconsin's Shoreland Management Program: An Assessment With Implications for Effective Natural Resources Management and Protection. Kuczenski. 1999 WLR 273.

59.692 - ANNOT.

The necessity of zoning variance or amendments notice to the Wisconsin department of natural resources under the shoreland zoning and navigable waters protection acts. Whipple, 57 MLR 25.