2023 Wisconsin Statutes & Annotations › Chapter 59 - Counties. › 59.692 - Zoning of shorelands on navigable waters.

59.692
Zoning of shorelands on navigable waters.
(1)
In this section:
(a)
“Department" means the department of natural resources.
(ar)
“Roadway” has the meaning given in s. 340.01 (54).
(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):
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.
2.
Three hundred feet from a river or stream or to the landward side of the floodplain, whichever distance is greater.
(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 structures has been limited or prohibited under an ordinance enacted under this section.
(c)
“Shoreland zoning standard" means a standard for ordinances enacted under this section that is promulgated as a rule by the department.
(d)
“Special zoning permission" has the meaning given in s. 59.69 (15) (g).
(e)
“Structure" means a principal structure or any accessory structure including a garage, shed, boathouse, sidewalk, stairway, walkway, patio, deck, retaining wall, porch, or fire pit.
(1c)
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. The requirements in this ordinance shall relate to the purposes in s. 281.31 (1). This ordinance may be enacted separately from ordinances enacted under s. 59.69.
(1d)
(a)
An ordinance enacted under this section may not regulate a matter more restrictively than the matter is regulated by a shoreland zoning standard.
(b)
Paragraph (a) does not prohibit a county from enacting a shoreland zoning ordinance that regulates a matter that is not regulated by a shoreland zoning standard.
(1f)
(a)
A county shoreland zoning ordinance may not require a person to do any of the following:
1.
Establish a vegetative buffer zone on previously developed land.
2.
Expand an existing vegetative buffer zone.
(b)
A county shoreland zoning ordinance may require a person to maintain a vegetative buffer zone that exists on July 14, 2015, if the ordinance also does all of the following:
1.
Allows the buffer zone to contain an access and viewing corridor. A county shoreland zoning ordinance may not establish a maximum width along the shoreline for an access and viewing corridor that is less than 10 feet or 35 percent of the shoreline frontage, whichever is greater, except that the ordinance may not permit the width of an access and viewing corridor to exceed 200 feet.
2.
Allows a viewing corridor to run contiguously for the entire maximum width established under subd. 1.
(1h)
If a professional land surveyor licensed under ch. 443, in measuring a setback from an ordinary high-water mark of a navigable water as required by an ordinance enacted under this section, relies on a map, plat, or survey that incorporates or approximates the ordinary high-water mark in accordance with s. 236.025, the setback measured is the setback with respect to a structure constructed on that property if all of the following apply:
(a)
The map, plat, or survey is prepared by a professional land surveyor, licensed under ch. 443, after April 28, 2016. The same professional land surveyor may prepare the map, plat, or survey and measure the setback.
(b)
The department has not identified the ordinary high-water mark on its Internet site as is required under s. 30.102 at the time the setback is measured.
(1k)
(a)
The department may not impair the interest of a landowner in shoreland property by establishing a shoreland zoning standard, and a county may not impair the interest of a landowner in shoreland property by enacting or enforcing a shoreland zoning ordinance, that does any of the following:
1.
Requires any approval to install or maintain outdoor lighting in shorelands, imposes any fee or mitigation requirement to install or maintain outdoor lighting in shorelands, or otherwise prohibits or regulates outdoor lighting in shorelands if the lighting is designed or intended for residential use.
2.
Except as provided in par. (b), requires any approval or imposes any fee or mitigation requirement for, or otherwise prohibits or regulates, the maintenance, repair, replacement, restoration, rebuilding, or remodeling of all or any part of any of the following if the activity does not expand the footprint of the structure:
a.
A nonconforming structure.
b.
A structure of which any part is legally located in the shoreland setback area by operation of a variance granted before July 13, 2015.
c.
A building or structure in violation of a county shoreland zoning ordinance that, under sub. (1t), may not be enforced.
2m.
Except as provided in pars. (b) and (bm), requires any approval or imposes any fee or mitigation requirement for, or otherwise prohibits or regulates, the maintenance, repair, replacement, restoration, rebuilding, or remodeling of all or any part of a structure listed under sub. (1n) (d) that was legally constructed wholly or partially within the shoreland setback area if the activity does not expand the footprint of the existing structure.
3.
Requires any inspection or upgrade of a structure before the sale or other transfer of the structure may be made.
4.
Requires any approval or imposes any fee or mitigation requirement for, or otherwise prohibits or regulates, the vertical expansion of a nonconforming structure or a structure of which any part is legally located in the shoreland setback area by operation of a variance granted before July 13, 2015, unless the vertical expansion would extend more than 35 feet above grade level.
6.
Prohibits placement in a shoreland setback area of a device or system authorized under par. (am) 1.
(am)
The department may not impair the interest of a landowner in shoreland property by establishing a shoreland zoning standard, and a county may not impair the interest of a landowner in shoreland property by enacting or enforcing a shoreland zoning ordinance, that establishes standards for impervious surfaces unless all of the following apply:
1.
The standards provide that a surface is considered pervious if the runoff from the surface is treated by a device or system, or is discharged to an internally drained pervious area, that retains the runoff on or off the parcel to allow infiltration into the soil.
2.
If the standards allow a greater amount of impervious surface on areas with highly developed shorelines than areas with shorelines that are not highly developed, as determined by the department, the standards also require an area with highly developed shorelines to include at least 500 feet of shoreline and require that one of the following applies:
a.
The area is composed of a majority of lots with more than 30 percent impervious surface area, as calculated by the county and approved by the department.
b.
The area is composed of a majority of lots that are less than 20,000 square feet in area.
c.
The area is located on a lake and served by a sewerage system, as defined in s. 281.01 (14).
3.
The standards prohibit considering a roadway or a sidewalk, as defined in s. 340.01 (58), as impervious surfaces.
(b)
A county shoreland zoning ordinance shall allow an activity specified under par. (a) 2. and 2m. to expand the footprint of a nonconforming structure, a structure listed under sub. (1n) (d), or a structure of which any part is legally located in the shoreland setback area by operation of a variance granted before July 13, 2015, if the expansion is necessary for the structure to comply with applicable state or federal requirements.
(bm)
A county shoreland zoning ordinance may prohibit an activity specified under par. (a) 2m. from expanding a structure listed under sub. (1n) (d) beyond the 3-dimensional building envelope of the existing structure.
(c)
1.
Nothing in this section prohibits the department from establishing a shoreland zoning standard that allows the vertical or lateral expansion of a nonconforming structure.
2.
Nothing in this section prohibits a county from enacting a shoreland zoning ordinance that allows the vertical or lateral expansion of a nonconforming structure if the ordinance does not conflict with shoreland zoning standards established by the department.
(1n)
(a)
In this subsection, “setback" means the distance that a shoreland setback area extends from the ordinary high-water mark.
(am)
Except as provided under pars. (b), (bm), (c), and (d), a county shoreland zoning ordinance shall establish a setback of 75 feet.
(b)
Except as provided in pars. (bm) and (c), if the closest principal structure in each direction along the shoreline to a proposed principal structure exists on an adjacent lot and within 250 feet of the proposed principal structure and both of the existing principal structures are set back less than 75 feet from the ordinary high-water mark, a county shoreland zoning ordinance shall establish a setback equal to the average of the distances that those structures are set back from the ordinary high-water mark but no less than 35 feet.
(bm)
If a principal structure exists on an adjacent lot and within 250 feet of a proposed principal structure in only one direction along the shoreline, is the closest principal structure to the proposed principal structure, and is set back less than 75 feet from the ordinary high-water mark, a county shoreland zoning ordinance may establish a setback equal to the average of 75 feet and the distance that the existing structure is set back from the ordinary high-water mark but no less than 35 feet.
(c)
1.
Except as provided in subd. 2., if the closest principal structure in each direction along the shoreline to a proposed principal structure exists on an adjacent lot and within 200 feet of the proposed principal structure and both of the existing principal structures are set back more than 75 feet from the ordinary high-water mark at or farther landward from the setback that was required at the time each structure was built, a county shoreland zoning ordinance may establish a setback equal to the average of the setbacks required for those structures at the time they were built.
2.
Subdivision 1. does not apply if the resulting setback limits the placement of the proposed principal structure to an area on which the structure cannot be built.
(d)
A county shoreland zoning ordinance may not prohibit the construction of any of the following structures within the 75-foot setback requirement under par. (am):
1.
A boathouse, as defined in s. 30.01 (1d), that is located entirely above the ordinary high-water mark.
2.
A structure that satisfies the requirements in sub. (1v).
3.
A fishing raft for which the department has issued a permit under s. 30.126.
4.
A broadcast signal receiver, including a satellite dish, or an antenna that is no more than one meter in diameter and a satellite earth station antenna that is no more than 2 meters in diameter.
5.
A utility transmission line, utility distribution line, pole, tower, water tower, pumping station, well pumphouse cover, private on-site wastewater treatment system that complies with ch. 145, and any other utility structure for which no feasible alternative location outside of the setback exists and which is constructed and placed using best management practices to infiltrate or otherwise control storm water runoff from the structure.
6.
A walkway, stairway, or rail system that is necessary to provide pedestrian access to the shoreline and is no more than 60 inches in width.
7.
A fence that is all of the following:
a.
No taller than 15 feet.
b.
Located no less than 2 feet landward of the ordinary high-water mark.
c.
Located entirely outside of a highway right-of-way, no less than 10 feet from the edge of a roadway, and no more than 40 feet from the edge of a roadway or highway right-of-way, whichever is greater.
d.
Generally perpendicular to the shoreline.
8.
A bridge for which the department has issued a permit under s. 30.123.
(1o)
The department may not promulgate a standard and a county may not enact an ordinance under this section that prohibits the owner of a boathouse in the shoreland setback area that has a flat roof from using the roof as a deck if the roof has no side walls or screens or from having or installing a railing around that roof if the railing is not inconsistent with standards promulgated by the department of safety and professional services under ch. 101.
(1p)
This section does not authorize a county to impose a requirement, condition, or restriction on land that is not shoreland within the county.
(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:
(a)
The shoreland of Lake Wissota in Chippewa County.
(b)
The shorelands of Lake Holcombe in Chippewa and Rusk counties.
(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.
(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:
(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.
(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.
(c)
The structure that is the subject of the request for special zoning permission has no sides or has open or screened sides.
(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 percent of the half of the shoreland setback area that is nearest to the water.
(2)
(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.
(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.
(bg)
A town may enact a zoning ordinance affecting the same shorelands as an ordinance enacted under this section, subject to the restrictions in ss. 60.61 (3r) and 60.62 (5).
(bm)
If a town ordinance enacted by a town that is located entirely on an island in Lake Superior and authorized to exercise village powers under s. 60.22 (3) is more restrictive than an ordinance enacted under this section affecting the same shorelands, regardless of the order of enactment, the town ordinance applies in all respects to the extent of the greater restrictions, but not otherwise.
(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.
(2m)
A county shoreland zoning ordinance may not regulate the construction of a structure on a substandard lot in a manner that is more restrictive than the shoreland zoning standards for substandard lots.
(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).
(4)
(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.
(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. Notwithstanding s. 59.694 (4), the department may not appeal a decision of the county to grant or deny a variance under this section but may, upon the request of a county board of adjustment, issue an opinion on whether a variance should be granted or denied.
(5)
An ordinance enacted under this section supersedes all provisions of an ordinance enacted under s. 59.69 that relate to shorelands.
(5m)
If a county has in effect on or after July 14, 2015, a provision in an ordinance that is inconsistent with sub. (1d), (1f), (1k), or (2m), the provision does not apply and may not be enforced.
(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.
(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), (3) (a), or (4) (a), the department may not proceed under sub. (6), or otherwise review the amendment, to determine whether the ordinance, as amended, fails to meet the shoreland zoning standards.
(7)
(a)
In this subsection, “facility" means any property or equipment of a public utility, as defined in s. 196.01 (5), or a cooperative association organized under ch. 185 for the purpose of producing or furnishing heat, light, or power to its members only, that is used for the transmission, delivery, or furnishing of natural gas, heat, light, or power.
(b)
The construction and maintenance of a facility is considered to satisfy the requirements of this section and any county ordinance enacted under this section if any of the following applies:
1.
The department has issued all required permits or approvals authorizing the construction or maintenance under ch. 30, 31, 281, or 283.
2.
No department permit or approval under subd. 1. is required for the construction or maintenance and the construction or maintenance is conducted in a manner that employs best management practices to infiltrate or otherwise control storm water runoff from the facility.
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; 2011 a. 6, 170; 2013 a. 80; 2015 a. 55, 146, 167, 178, 391; 2017 a. 68; 2017 a. 365 ss. 28, 29, 110; 2017 a. 366 s. 99; 2019 a. 145; 2021 a. 105, 200.
The Department of Natural Resources, 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).
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).
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.
The burden is on the applicant for a variance to demonstrate through evidence that without the variance the applicant 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.
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. DWD, 231 Wis. 2d 534, 605 N.W.2d 627 (Ct. App. 1999), 99-0707.
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.
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, 323 Wis. 2d 495, 779 N.W.2d 705, 09-0209.
Appellants appropriately relied on the county's zoning map to identify the ordinary high water mark of a nearby lake and determine that the sign's proposed location was outside the county's 1,000 foot zone of shoreland authority. It was reasonable for the appellant to rely on the map rather than conduct on-site measurements. Oneida County v. Collins Outdoor Advertising, Inc., 2011 WI App 60, 333 Wis. 2d 216, 798 N.W.2d 724, 10-0084.
By enactment of this section and s. 281.31, the legislature intended that towns would not have authority to regulate shorelands except where such regulation fell within the language of sub. (2) (b) [now sub. (2) (b), (bg), and (bm)]. That statutory scheme does not distinguish between towns with village powers and those without. Hegwood v. Town of Eagle Zoning Board of Appeals, 2013 WI App 118, 351 Wis. 2d 196, 839 N.W.2d 111, 12-2058.
Although they often work together, zoning and subdivision regulations provide separate and distinct means of regulating the development of land. There are areas of overlap between the two powers, but there are also key differences. Subdivision control is concerned with the initial division of undeveloped land, while zoning more specifically regulates the further use of this land. State ex rel. Anderson v. Town of Newbold, 2021 WI 6, 395 Wis. 2d 351, 954 N.W.2d 323, 18-0547.
In this case, the town's ordinance set minimum lot frontage requirements for each lake within its borders. Pursuant to the Zwiefelhofer, 2012 WI 7, factors, the town's ordinance was not a zoning ordinance. It did not concern land use, and it did not separate compatible and incompatible land uses, which is a key purpose of a zoning ordinance. Because it was not a zoning ordinance, the restrictions on town enactment of zoning ordinances set by this section did not apply, and the ordinance was a permissible exercise of the town's subdivision authority pursuant to s. 236.45. State ex rel. Anderson v. Town of Newbold, 2021 WI 6, 395 Wis. 2d 351, 954 N.W.2d 323, 18-0547.
The “relate to shorelands" language in sub. (5) does not prohibit counties from enacting and enforcing provisions in general zoning ordinances under s. 59.69 applicable to all property in the counties, including shorelands. The only reasonable meaning of that phrase is general ordinance provisions that address issues that are specific to shoreland property and that serve the purpose of protecting shorelands and navigable waters. In other words, provisions that “relate to shorelands" means the subset of general ordinance provisions that “specifically" relate to shorelands. In this case, the county's general zoning ordinance side yard setback and land use permit provisions, which applied to all property in the county, were by their terms not connected specifically with shorelands or the purposes of and interests protected by shoreland zoning. Waupaca County v. Golla, 2022 WI App 40, 404 Wis. 2d 141, 978 N.W.2d 558, 21-1076.
The reasonable interpretation of the phrase “a provision in an ordinance" in sub. (5m) is a provision in a shoreland zoning ordinance enacted under this section or a provision in a general zoning ordinance enacted under s. 59.69 that relates to shorelands. Waupaca County v. Golla, 2022 WI App 40, 404 Wis. 2d 141, 978 N.W.2d 558, 21-1076.
County floodplain zoning ordinances may be adopted under s. 59.971 [now this section] 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.
Counties may zone lands located within 300 feet of an artificial ditch that is navigable in fact. 63 Atty. Gen. 57.
County shoreland zoning of unincorporated areas adopted under s. 59.971 [now this section] is not superseded by municipal extraterritorial zoning under s. 62.23 (7a). Discussing ss. 59.971, 62.23 (7) and (7a), and 144.26 [now s. 281.31]. 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.
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 percent provision under s. 59.69 (10) (a) [now s. 59.69 (10) (am)], in which case common law controls. OAG 2-97.
A county is not prohibited from imposing elements of its general zoning ordinance in the shorelands in a town even if the town has not adopted the county's general zoning ordinance under s. 59.69 (5) (c), so long as those elements are consistent with this section. OAG 1-19.
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 (1973).
Wisconsin's Shoreland Management Program: An Assessment with Implications for Effective Natural Resources Management and Protection. Kuczenski. 1999 WLR 273.
On the Waterfront: New Shoreland Zoning Laws. Kent. Wis. Law. Jan. 2017.