AB514: Bill Text

Note: This provision creates standards regarding what is meant by "consistency" between ordinances and state law. The effect of this statutory standard is to create a framework for the DNR to make comments on the issue of consistency in its advisory review under sub. (10) in this bill, and to guide the decision of the hearing examiner under the objection procedures in sub. (11) of this bill.

The special committee recognizes that it is difficult to draft statutory standards regarding consistency that draw a clear line between ordinances that are consistent and ordinances that are not consistent with state law. The new statutory standards are intended to aid in the discussion and adjudication of these issues.

AB514,117,10 (e) Considerations in enacting ordinances. In enacting an ordinance for an individual body of water, a local governmental unit may take into account factors that include the following:

AB514,117,12 1. The type, size, shape, and depth of the body of water and any features of special environmental significance that the body of water has.

AB514,117,14 2. The amount, type, and speed of boating traffic on the body of water and boating safety and congestion.

AB514,117,17 3. The degree to which boating traffic on the body of water affects other recreational uses and the public's health, safety, and welfare, including the public's interest in preserving the state's natural resources.

AB514,117,19 (f) Specific ordinances authorized. Ordinances that require strict conformity under par. (b) include those that relate to any of the following:

AB514,118,1 1. Restrictions on speed.

AB514,118,3 2. Restrictions on certain types of boating activities on all, or on specified parts, of the lake or stream.

AB514,118,5 3. Restrictions on certain types of boating activities during specified hours of the day or specified days of the week.

AB514,118,8 4. The operation, equipment, use, and inspection of boats carrying passengers for hire that operate from a base within the jurisdiction of the local governmental unit, including the regulation of reasonable fees for the inspection of such boats.

AB514,118,10 5. Reasonable fees for using a public boat launching facility that the local governmental unit owns or operates.

AB514,118,12 6. Reasonable fees for the local governmental unit's costs for operating or maintaining a water safety patrol unit, as defined in s. 30.79 (1) (b) 2.

AB514,118,14 7. Reasonable fees for the local governmental unit's costs of providing other recreational boating services.

Note: The provision regarding fees for "other recreational boating services" retains current law. The special committee discussed the possibility of repealing or modifying this provision, but decided against making changes. The special committee acknowledges that although the current statute authorizes "reasonable" fees, a fee related to boating that might be reasonable for purposes of the police power may nevertheless exceed the bounds of the public trust in navigable waters under art. IX, s. 1, Wis. const. However, the special committee concluded that local governments should have the opportunity to impose reasonable fees that do not violate the public trust, and that the statute should continue to allow this.

AB514,118,16 (g) Prohibitions. 1. An ordinance may not require numbering, registration, or licensing of boats.

AB514,118,18 2. An ordinance may not charge a fee for inspection of boats, except as provided in par. (f) 4.

AB514,119,2 (h) Cities, villages, and towns; issues of local concern. A city, village, or town may enact ordinances under sub. (4) (a) 3. that relate only to establishing slow-no-wake zones and prohibiting boats from designated areas and that apply only within the following areas:

AB514,119,3 1. A mooring area designated under s. 30.773 by the city, village, or town.

AB514,119,5 2. A bridge, dam, channel, canal, or other similar hazard to navigation that is within the corporate limits of the city, village, or town.

AB514,119,8 3. Any construction project that requires a permit under subch. II or ch. 31 and either is undertaken by the city, village, or town or is within the corporate limits of the city, village, or town.

AB514,119,10 4. A marina that is either owned by the city, village, or town or is within the corporate limits of the city, village, or town.

AB514,119,12 5. An area that is within 200 feet from any riparian property or lake bed that is owned by the city, village, or town.

AB514,119,13 6. An area within a breakwater that is adjacent to the city, village, or town.

AB514,119,14 7. A harbor that is within the corporate limits of the city, village, or town.

AB514,119,19 (6) Rescinding authority to enact ordinances. (a) Multiple cities, villages, and towns. If a city, village, or town enacts an ordinance for an inland lake under sub. (4) (c) and the city, village, or town amends or repeals the ordinance, that ordinance is void for each city, village, or town with shoreline on the inland lake unless the requirements of sub. (4) (c) 1. and 2. continue to apply.

AB514,120,2 (b) Delegated jurisdiction. If a public inland lake protection and rehabilitation district or town sanitary district is authorized to enact ordinances for an inland lake under sub. (4) (d) and a city, village, or town rescinds the resolution that grants that authority, the public inland lake protection and rehabilitation district or town sanitary district may not enact ordinances for that inland lake and any ordinance enacted by the public inland lake protection and rehabilitation district or town sanitary district for that inland lake is void, unless the requirements of sub. (4) (d) 1. and 2. continue to apply.

AB514,120,6 (7) Priority of ordinances. (a) Counties. 1. An ordinance enacted by a county for a stream under sub. (4) (b) 1. or (e) 2. supersedes any provision of an ordinance enacted by a city, village, or town for a stream under sub. (4) (a) 2. or (e) 1. that is inconsistent with the county ordinance.

AB514,120,9 2. An ordinance enacted by a county for a marina under sub. (4) (b) 4. supersedes any provision of an ordinance enacted by another local governmental unit that is inconsistent with the county ordinance.

AB514,120,14 (b) Town sanitary districts and lake districts. An ordinance enacted by a public inland lake protection and rehabilitation district or a town sanitary district for an inland lake under sub. (4) (d) supersedes any provision of an ordinance enacted by a city, village, or town under sub. (4) (a) 1. or (c) that is inconsistent with the public inland lake protection and rehabilitation district or town sanitary district ordinance.

AB514,120,18 (c) Cities, villages, or towns; ordinances of local concern. An ordinance enacted by a city, village, or town for any waters of this state under sub. (4) (a) 3. supersedes any provision of an ordinance enacted under sub. (4) (b) 1. to 3. and (c) to (e) that is inconsistent with the city, village, or town ordinance under sub. (4) (a) 3.

AB514,120,24 (8) Posting ordinances. All ordinances enacted under this section applicable to a lake or stream shall be prominently posted by the local governmental unit that enacted them at each point of public access to the lake or stream within the local governmental unit. For ordinances enacted under sub. (4) (c), the ordinances shall be posted by each local governmental unit at any point of public access to the lake or stream within the boundaries of that local governmental unit.

AB514,121,2 (9) Hearings. (a) Ordinances. A local governmental unit shall hold a public hearing under this subsection before enacting, amending, or repealing an ordinance.

AB514,121,4 (b) Resolutions. A local governmental unit shall hold a public hearing under this subsection before rescinding a resolution that is adopted under sub. (4) (d).

AB514,121,9 (c) Procedures. 1. A public hearing under this subsection shall be held at least 30 days before an ordinance is enacted, amended, or repealed or a resolution is rescinded. If the action on an ordinance or resolution is proposed by more than one local governmental unit, the local governmental units may publish the notice and conduct the public hearing jointly.

AB514,121,13 2. At least 30 days before the public hearing, a local governmental unit shall publish a class 1 notice, under ch. 985, of the hearing under this subsection in one or more newspapers likely to give notice of the hearing in all cities, villages, towns, and counties that have shoreline of the lake or stream within their boundaries.

AB514,121,19 3. A local governmental unit that publishes a notice of a public hearing under subd. 1. shall send a copy of the notice, at least 30 days before the hearing, to the department, to each city, village, town, and county that has shoreline of the lake or stream within its boundaries and, if the proposal relates to an inland lake, to each lake association for the lake and each public inland lake protection and rehabilitation district for the lake.

Note: This provision expands and harmonizes the current requirements for a public hearing. This bill requires a public hearing each time an ordinance is proposed to be enacted, amended, or repealed, or a resolution rescinded, rather than the more limited requirements in the current statute. A public hearing must be held under this bill for all ordinances, rather than only those affecting inland lakes, as under the current statute. This bill applies the public hearing requirement to the amendment or repeal of an ordinance, rather than to only the enactment of an ordinance, as under the current statute. This bill requires all local governmental units to give notice of the public hearing, rather than only the one with the most shoreline, as under the current statute.

AB514,122,3 (10) Review by department. (a) Review required. 1. The department shall review each ordinance or amendment to an ordinance proposed under this section to determine if the ordinance complies with this section.

Note: This expands the scope of DNR review so that it applies to all ordinances enacted or amended under s. 30.77. The current statute applies DNR review only to ordinances regarding the equipment, use or operation of boats and only to inland lakes. This expands DNR review to apply to streams and outlying waters as well, and to any other ordinances regarding boating.

AB514,122,4 2. This paragraph does not apply to the repeal of an ordinance.

AB514,122,7 (b) Copy of ordinance to department. The local governmental unit shall submit a proposed ordinance to the department at least 60 days prior to final action on the ordinance.

AB514,122,12 (c) Report by department. The department shall prepare a report of its review. The report shall include findings regarding compliance of the ordinance with this section. If the department determines that the ordinance does not comply with this section, the report shall contain suggestions for changes that would bring the ordinance into compliance with this section.

AB514,122,14 (d) Deadline for review. The department shall complete its review within 20 days after receiving a copy of a proposed ordinance under par. (b).

AB514,122,16 (e) Distribution of report. The department shall send a copy of any report prepared under par. (c) to each local governmental unit affected by the ordinance.

AB514,123,2 (f) Modifications. If a local governmental unit modifies an ordinance following receipt of a department report under par. (c), whether or not the modification is in response to the department report, the local governmental unit shall submit the modified, proposed ordinance in final form to the department prior to enactment. The department is not required to review the modified ordinance under this subsection if the modifications relate to the subject matter of the ordinance submitted to the department under par. (b).

Note: This provision is not expressly stated in the current statute. However, it is implied by the statement in current s. 30.77 (3) (d) that local regulations must be submitted to the DNR at least 60 days prior to "final action" by the local governmental unit.

AB514,123,6 (g) Validity of ordinance. 1. An ordinance is not valid unless the local governmental unit complies with all procedural requirements imposed on local governmental units by this section and the contents of the ordinance comply with this section.

Note: This provides an express statement of the requirement for a local governmental unit to comply with procedural and substantive requirements of s. 30.77. This requirement can be reasonably implied from the language in the current statute. Ordinances must also conform to the constitutional public trust in navigable waters.

AB514,123,8 2. A department report under this subsection is advisory only and does not affect the validity of an ordinance.

Note: This provision is new. Although not expressed in the current statute, this appears to be the legal effect of DNR review. The phrase "advisory review" is used in current s. 30.77 (3) (d).

AB514,123,12 (h) Filing copies. A local governmental unit that enacts, amends, or repeals an ordinance under this section shall file a signed copy of the ordinance, amendment, or repeal with the department. The department shall retain a copy of each ordinance, amendment, or repeal submitted under this paragraph.

AB514,123,15 (11) Objection procedure. (a) Any of the following may file with the department an objection to an ordinance enacted under this section, on the grounds that any portion of the ordinance does not comply with this section:

AB514,123,16 1. A local governmental unit.

AB514,123,17 2. A qualified lake association, as defined in s. 281.68 (1) (b).

AB514,123,18 3. A nonprofit conservation organization, as defined in s. 23.0955 (1).

AB514,124,2 4. A local governmental unit, as defined in s. 66.0131 (1) (a), that is established for the purpose of lake management.

AB514,124,4 5. A nonstock corporation organized under ch. 181 whose primary purpose is to promote boating activities.

AB514,124,5 6. The department.

Note: The current statute allows an objection on the grounds that an ordinance is contrary to or inconsistent with ch. 30. The reference to all of ch. 30 does not appear to be appropriate because s. 30.77 relates only to a local authority to enact ordinances related to ss. 30.50 to 30.71. Therefore, this reference is changed to "this section" which incorporates the new definition of "state law".

The grounds for objection in current law are that the ordinance is "contrary to or inconsistent with" the statute. The proposal above allows an objection on the grounds that the ordinance "does not comply with" the statute. This expands the scope of the current grounds for objection by allowing objection based on any failure of a local governmental unit to comply with s. 30.77, such as failure to comply with procedural requirements.

The current statute allows an objection to an ordinance that applies to a river or stream on the grounds that the ordinance is "not necessary for public health, safety, welfare or the public's interest in preserving the state's natural resources". This standard sets a much lower threshold for challenging ordinances, making it much more difficult for a local governmental unit to defend the ordinance. As redrafted, the standards in this section provide sufficient guidance and limitations for protecting the public by reference to compliance with s. 30.77. Therefore, the "not necessary" standard is deleted.

AB514,124,11 (b) 1. Upon receipt of an objection under par. (a), the department shall order a hearing on the objection under ch. 227. The hearing shall be a contested case hearing, and the administrator of the division of hearings and appeals in the department of administration shall assign a hearing examiner to the hearing as provided in s. 227.43. Persons who are not parties to the contested case may present testimony and evidence at the hearing.

AB514,124,13 2. The hearing examiner shall issue an order on the objection within 90 days after the date on which the hearing is ordered.

AB514,124,16 3. If the hearing examiner finds in favor of the objecting party, the hearing examiner shall issue an order declaring the ordinance or a portion of it void and prohibiting the enforcement of the ordinance or that portion of the ordinance.

AB514,125,3 (c) The procedure under this subsection does not supersede any other legal right or procedure that a person has to contest an ordinance enacted under this section.

AB514, s. 350 Section 350. 30.771 of the statutes is created to read:

AB514,125,19 30.771 Emergency powers; local regulation of boating. (1) A sheriff may issue an emergency regulation applicable to boating on any waters of this state within the sheriff's county. The emergency regulation shall be issued in written form, and the sheriff shall include with the emergency regulation findings of fact that support the need for the emergency regulation. The emergency regulation may establish slow-no-wake zones and may prohibit boats from designated areas. The emergency regulation may not be more restrictive than is necessary to address the emergency condition. The emergency regulation shall apply for a term specified by the sheriff, not to exceed 30 days. The sheriff may reissue an emergency regulation, for a term not to exceed 30 days, upon expiration of any prior emergency regulation or reissued emergency regulation. The sheriff shall publish and post the emergency regulation in a manner likely to give notice to users of the waters of this state that are subject to the emergency regulation and may mark or require the marking of the waters subject to the regulation by regulatory markers, if appropriate for the purpose of the regulation.

AB514,126,7 (2) A city, village, or town may issue an emergency regulation in connection with a construction project in any waters of this state that are within the jurisdiction of or adjacent to the city, village, or town. The city, village, or town shall issue the emergency regulation in writing. The emergency regulation may establish a slow-no-wake zone and may prohibit boats from designated areas. The emergency regulation may not be more restrictive than is necessary to address the conditions related to the construction project. The emergency regulation shall apply for the duration of the construction project or 30 days, whichever is less. If necessary, the city, village, or town may reissue the emergency regulation upon expiration of the prior emergency regulation. The city, village, or town shall publish and post the emergency regulation in a manner likely to give notice to users of the waters of this state that are subject to the emergency regulation, and shall mark or require the marking of the waters subject to the regulation by appropriate regulatory markers.

AB514,126,10 (3) Emergency regulations under this section are not subject to the procedures in s. 30.77, except that objection may be made to emergency regulations under this section using the procedures in s. 30.77 (11).

AB514,126,22 (4) If waters subject to emergency regulations under sub. (1) or (2) are marked with regulatory markers, the sheriff or the city, village, or town shall obtain department approval of the regulatory markers. The sheriff or the city, village, or town may place the markers after obtaining department approval or, in cases requiring immediate placement of markers, the sheriff or the city, village, or town may place the markers and immediately notify the boating law administrator of the department that the emergency regulation is in effect and the markers have been placed. The department shall approve or decline to approve a regulatory marker under sub. (1) or (2) within 2 working days after receiving a request for approval from the sheriff or the city, village, or town. If the department declines to approve a regulatory marker after the sheriff or the city, village, or town has placed the marker, the marker shall be immediately removed.

Note: This section codifies what apparently is the current practice of sheriffs in this state, and places some limits on the emergency regulations. Although the emergency regulations are not subject to the procedures and standards for local ordinances under s. 30.77, there should be a means to object to unreasonable emergency regulations. This provision allows an objection using the procedures in s. 30.77. However, the grounds for objection are the standards in new s. 30.771, rather than the standards in s. 30.77.

AB514, s. 351 Section 351. 30.772 (3) (d) 4. of the statutes is amended to read:

AB514,127,3 30.772 (3) (d) 4. The provisions and procedures of ch. 68 shall apply to the grant issuance, denial, or revocation of a mooring permit by a municipality.

AB514, s. 352 Section 352. 30.772 (4) of the statutes is amended to read:

AB514,127,11 30.772 (4) Department permits. The department may issue a permit authorizing the placement or use of a mooring beyond 150 feet from the ordinary high-water mark if the municipality does not have an established permit procedure, or more than 200 feet from the ordinary high-water mark if sub. (3) (a) 5. applies. The department may place conditions or restrictions on any permit issued under this subsection. The decision of the department under this subsection is subject to the time limits in s. 30.251.

AB514, s. 353 Section 353. 30.78 (1) (intro.) of the statutes is repealed and recreated to read:

AB514,127,15 30.78 (1) Local regulation authorized. (intro.) A local governmental unit that has authority to enact an ordinance under s. 30.77 (4) may, after public hearing, by ordinance do any of the following:

AB514, s. 354 Section 354. 30.78 (1g) of the statutes is repealed.

Note: The amendments to s. 30.78 expand the scope of local regulation of seaplanes, so that any local governmental unit may also enact ordinances for seaplanes. This authority applies to the same waters that may be regulated by the local governmental unit under s. 30.77. Although s. 30.77 is used to define the scope of local authority to regulate seaplanes, it should be noted that the procedures in s. 30.77 do not apply to these ordinances.

AB514, s. 355 Section 355. 30.78 (1r) and (2) of the statutes are amended to read:

AB514,128,3 30.78 (1r) Notice to department of transportation. The department of transportation shall receive timely notice of the public hearing required under subs. sub. (1) and (1g) and shall have an opportunity to present testimony on the proposed ordinance. An ordinance under sub. (1) (b) or (1g) that regulates or restricts an area of surface waters for landing or take-off purposes shall be filed with the department of transportation.

AB514,128,6 (2) Marking of regulated or restricted areas. Any ordinance that regulates or restricts an area of surface waters under sub. (1) or (1g) shall direct that the area be marked by standard marking devices.

AB514, s. 356 Section 356. 30.78 (3) of the statutes is repealed.

AB514, s. 357 Section 357. 30.79 (1) (a) of the statutes is repealed.

Note: The definition of "local governmental unit" in s. 30.79 (1) (a) is no longer necessary. See s. 30.50 (4u) as created in this bill.

AB514, s. 358 Section 358. 30.79 (1) (b) 1. and 2. of the statutes are amended to read:

AB514,128,14 30.79 (1) (b) 1. A unit within an existing municipal law enforcement agency or a separate municipal agency, created by a municipality or by a number of municipalities riparian to a single body of water for the purpose of enforcing ss. 30.50 to 30.80 and any rules promulgated and ordinances enacted under ss. 30.50 to 30.80 s. 30.77 and for the purpose of conducting search and rescue operations.

AB514,128,18 2. A unit created by a public inland lake protection and rehabilitation district, by a lake sanitary district or by a number of one or more local governmental units riparian to a single lake, at least one of which is a lake district or a lake sanitary district, for the purposes specified in subd. 1.