59.692
59.692
Zoning of shorelands on navigable waters. 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 Note
NOTE: Par. (b) is shown as affected by two acts of the 1995 legislature and as merged by the revisor under s. 13.93 (2) (c).
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)(c)
(c) "Shoreland zoning standard" means a standard for ordinances enacted under this section that are promulgated as rules by the department.
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 Note
NOTE: Sub. (1m) is shown as affected by two acts of the 1995 legislature and as merged by the revisor under s. 13.93 (2) (c).
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(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)(a)(a) Section 66.30 applies to this section, except that for the purposes of this section an agreement under
s. 66.30 shall be effected by ordinance. If the municipalities as defined in
s. 281.31 are served by a regional planning commission under
s. 66.945, 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 Note
NOTE: Par. (a) is shown as affected by two acts of the 1995 legislature and as merged by the revisor under s. 13.93 (2) (c).
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(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. 66.012,
66.014,
66.018 or
66.019 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 Note
NOTE: Par. (ag) is shown as affected by two acts of the 1995 legislature and as merged by the revisor under s. 13.93 (2) (c).
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 Annotation
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 W (2d) 406, 489 NW (2d) 631 (Ct. App. 1992).
59.692 Annotation
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 W (2d) 24, 501 NW (2d) 817 (Ct. App. 1993).
59.692 Annotation
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 Annotation
Counties may zone lands located within 300 feet of an artificial ditch that is navigable in fact. 63 Atty. Gen. 57.
59.692 Annotation
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 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 Annotation
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.
59.693
59.693
Construction site erosion control and storm water management zoning. 59.693(1)
(1)
Definition. In this section, "department" means the department of natural resources.
59.693(2)
(2) Authority to enact ordinance. To effect the purposes of
s. 281.33 and to promote the public health, safety and general welfare, a county may enact a zoning ordinance, that is applicable to all of its unincorporated area, except as provided in
s. 60.627 (2) (b), for construction site erosion control at sites where the construction activities do not include the construction of a building and for storm water management. This ordinance may be enacted separately from ordinances enacted under
s. 59.69.
59.693 Note
NOTE: Sub. (2) is shown as affected by two acts of the 1995 legislature and as merged by the revisor under s. 13.93 (2) (c).
59.693(4)
(4) Applicability of county zoning provisions; town approval. 59.693(4)(a)(a) Except as otherwise specified in this section,
s. 59.69 applies to any ordinance or amendment to an ordinance enacted under this section, but an ordinance or amendment to an ordinance enacted under this section does not require approval and is not subject to disapproval by any town or town board.
59.693(4)(b)
(b) Variances and appeals regarding construction site erosion control and storm water management regulations under this section are to be determined by the board of adjustment for that county. Procedures under
s. 59.694 apply to these determinations.
59.693(4)(c)
(c) An ordinance enacted under this section supersedes all provisions of an ordinance enacted under
s. 59.69 that relate to construction site erosion control or storm water management regulation.
59.693(6)
(6) Applicability of comprehensive zoning plan or general zoning ordinance. 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.
59.693(7)
(7) Applicability of local subdivision regulation. All powers granted to a county under
s. 236.45 may be exercised by the county with respect to construction site erosion control at sites where the construction activities do not include the construction of a building or with respect to storm water management regulation, if the county has or provides a county planning agency as defined in
s. 236.02 (1).
59.693(8)
(8) Applicability to local governments and agencies. An ordinance that is enacted under this section is applicable to activities conducted by a unit of local government and an agency of that unit of government. An ordinance that is enacted under this section is not applicable to activities conducted by an agency, as defined under
s. 227.01 (1) but also including the office of district attorney, which is subject to the state plan promulgated or a memorandum of understanding entered into under
s. 281.33 (2).
59.693 Note
NOTE: Sub. (8) is shown as affected by two acts of the 1995 legislature and as merged by the revisor under s. 13.93 (2) (c).
59.693(9)(a)(a) Except as provided in
par. (c),
s. 66.30 applies to this section, but for the purposes of this section an agreement under
s. 66.30 shall be effected by ordinance.
59.693(9)(b)
(b) If a county is served by a regional planning commission under
s. 66.945 and if the commission consents, the county may empower the commission by ordinance to administer an ordinance that is enacted under this section throughout the county, whether or not the area otherwise served by the commission includes all of that county.
59.693(9)(c)
(c) If the board of commissioners of the Dane county lakes and watershed commission consents, Dane county may empower the commission by ordinance to administer an ordinance that is enacted under this section whether or not the area otherwise served by the commission includes all of Dane county.
Section 66.30 does not apply to this paragraph.
59.693(10)
(10) Validity upon annexation. An ordinance that is enacted under this section by a county that is in effect in an area immediately before the area is annexed by a city or village continues in effect in the area after annexation unless the city or village enacts, maintains and enforces a city or village ordinance which complies with minimum standards established by the department and which is at least as restrictive as the county ordinance enacted under this section. If, after providing notice and conducting a hearing on the matter, the department determines that an ordinance that is enacted by a city or village which is applicable to the annexed area does not meet these standards or is not as restrictive as the county ordinance, the department shall issue an order declaring the city or village ordinance void and reinstating the applicability of the county ordinance to the annexed area.
59.693 History
History: 1983 a. 416;
1983 a. 538 s.
271;
1989 a. 31,
324;
1993 a. 16,
246;
1995 a. 201 s.
478; Stats. 1995 s. 59.693.;
1995 a. 227; s. 13.93 (2) (c).
59.694
59.694
County zoning, adjustment board. 59.694(1)
(1)
Appointment, power. The county board may provide for the appointment of a board of adjustment, and in the regulations and restrictions adopted under
s. 59.69 may provide that the board of adjustment may, in appropriate cases and subject to appropriate conditions and safeguards, make special exceptions to the terms of the ordinance in harmony with its general purpose and intent and in accordance with general or specific rules therein contained. Nothing in this subsection precludes the granting of special exceptions by the county zoning agency designated under
s. 59.69 (2) (a) or the county board in accordance with regulations and restrictions adopted under
s. 59.69 which were in effect on July 7, 1973, or adopted after that date.
59.694(2)(a)(a) In counties with a population of less than 500,000, the board of adjustment shall consist of not more than 5 members as determined by resolution of the county board. The chairperson of the county board shall appoint the members with the approval of the county board for terms of 3 years beginning July 1. The incumbent members shall continue to serve until their terms expire. The county board resolution increasing the size of the board of adjustment shall indicate how many members shall be appointed for 1, 2 and 3 years prior to July 1 of the year in which the change takes effect in making the first appointments. If the county board, by resolution, determines to reduce the membership of the board of adjustment below 5 but not less than 3, one of the positions for which the term expires as determined by lot shall not be filled each year until the requisite number of positions has been reached.
59.694(2)(b)
(b) In counties with a population of 500,000 or more, the board of adjustment shall consist of 3 members who are residents of the county, elected by the county board for terms of 1, 2 and 3 years, respectively, and until their successors are elected and qualify.
59.694(2)(bm)
(bm) The chairperson of the county board may appoint, for staggered 3-year terms, 2 alternate members of the board of adjustment, who are subject to the approval of the county board. Annually, the chairperson of the county board shall designate one of the alternate members as the first alternate and the other as 2nd alternate. The first alternate shall act, with full power, only when a member of the board of adjustment refuses to vote because of a conflict of interest or when a member is absent. The 2nd alternate shall act only when the first alternate refuses to vote because of a conflict of interest or is absent, or if more than one member of the board of adjustment refuses to vote because of a conflict of interest or is absent.
59.694(2)(c)
(c) The members of the board of adjustment, including alternate members, shall all reside within the county and outside of the limits of incorporated cities and villages; provided, however, that no 2 members shall reside in the same town. The board of adjustment shall choose its own chairperson. Office room shall be provided by the county board, and the actual and necessary expenses incurred by the board of adjustment in the performance of its duties shall be paid and allowed as in cases of other claims against the county. The county board may likewise compensate the members of the board of adjustment, including alternate members, and the assistants as may be authorized by the county board. Vacancies shall be filled for the unexpired term of any member whose term becomes vacant.
59.694(3)
(3) Rules, meetings, minutes. The county board shall adopt rules for the conduct of the business of the board of adjustment, in accordance with the provisions of any ordinance enacted under
s. 59.69. The board of adjustment may adopt further rules as necessary to carry into effect the regulations of the county board. Meetings of the board of adjustment shall be held at the call of the chairperson and at such other times as the board of adjustment may determine. The chairperson, or in his or her absence the acting chairperson, may administer oaths and compel the attendance of witnesses. All meetings of the board of adjustment shall be open to the public. The board of adjustment shall keep minutes of its proceedings, showing the vote of each member upon each question, or, if absent or failing to vote, indicating such fact, and shall keep records of its examinations and other official actions, all of which shall be immediately filed in the office of the board of adjustment and shall be a public record.
59.694(4)
(4) Appeals to board. Appeals to the board of adjustment may be taken by any person aggrieved or by any officer, department, board or bureau of the municipality affected by any decision of the building inspector or other administrative officer. Such appeal shall be taken within a reasonable time, as provided by the rules of the board of adjustment, by filing with the officer from whom the appeal is taken and with the board of adjustment a notice of appeal specifying the grounds thereof. The officer from whom the appeal is taken shall forthwith transmit to the board of adjustment all the papers constituting the record upon which the action appealed from was taken.
59.694(5)
(5) Stays. An appeal shall stay all proceedings in furtherance of the action appealed from, unless the officer from whom the appeal is taken shall certify to the board of adjustment after the notice of appeal shall have been filed with that officer that by reason of facts stated in the certificate a stay would cause imminent peril to life or property. In such case proceedings shall not be stayed otherwise than by a restraining order, which may be granted upon application to the board of adjustment or by petition to a court of record, with notice to the officer from whom the appeal is taken.
59.694(6)
(6) Hearing appeals. The board of adjustment shall fix a reasonable time for the hearing of the appeal and publish a class 2 notice thereof under
ch. 985, as well as give due notice to the parties in interest, and decide the same within a reasonable time. Upon the hearing, a party may appear in person or by agent or attorney. In an action involving a historic property, as defined in
s. 44.31 (3), the board of adjustment shall consider any suggested alternatives or recommended decision submitted by the landmarks commission or the planning and zoning committee or commission.
59.694(7)
(7) Powers of board. The board of adjustment shall have all of the following powers:
59.694(7)(a)
(a) To hear and decide appeals where it is alleged there is error in an order, requirement, decision or determination made by an administrative official in the enforcement of
s. 59.69 or of any ordinance enacted pursuant thereto.
59.694(7)(b)
(b) To hear and decide special exceptions to the terms of the ordinance upon which the board is required to pass under such ordinance.
59.694(7)(c)
(c) To authorize upon appeal in specific cases variance from the terms of the ordinance that will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done.
59.694(7)(d)
(d) To grant special exceptions and variances for renewable energy resource systems. If the board denies an application for a special exception or variance for such a system, the board shall provide a written statement of its reasons for denying the application. In this paragraph, "renewable energy resource system" means a solar energy system, a waste conversion energy system, a wind energy system or any other energy system which relies on a renewable energy resource.
59.694(8)
(8) Order on appeal. In exercising the powers under this section, the board of adjustment may, in conformity with the provisions of this section, reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from, and may make the order, requirement, decision or determination as ought to be made, and to that end shall have all the powers of the officer from whom the appeal is taken.
59.694(9)
(9) Majority rule. A majority vote of the board of adjustment shall be necessary to reverse any order, requirement, decision or determination of any such administrative official, or to decide in favor of the applicant on any matter upon which it is required to pass under any such ordinance, or to effect any variation in such ordinance.
59.694(10)
(10) Certiorari. A person aggrieved by any decision of the board of adjustment, or a taxpayer, or any officer, department, board or bureau of the municipality, may, within 30 days after the filing of the decision in the office of the board, commence an action seeking the remedy available by certiorari. The court shall not stay the decision appealed from, but may, with notice to the board, grant a restraining order. The board of adjustment shall not be required to return the original papers acted upon by it, but it shall be sufficient to return certified or sworn copies thereof. If necessary for the proper disposition of the matter, the court may take evidence, or appoint a referee to take evidence and report findings of fact and conclusions of law as it directs, which shall constitute a part of the proceedings upon which the determination of the court shall be made. The court may reverse or affirm, wholly or partly, or may modify, the decision brought up for review.
59.694(14)
(14) Costs. Costs shall not be allowed against the board of adjustment unless it shall appear to the court that it acted with gross negligence, or in bad faith, or with malice in making the decision appealed from. All issues in any proceeding under this section shall have preference over all other civil actions and proceedings.
59.694 Note
Judicial Council Note, 1981: Subsections (11), (12) and (13) have been repealed as unnecessary because in large part they merely describe the remedy of certiorari, which is now available in an ordinary action. See s. 781.01, stats., and the note thereto. Those provisions of the repealed subsections which permit departure from ordinary certiorari procedures, such as augmentation of the record by the court, have been placed in sub. (10). No substantive change in the scope or standard of review is intended. [Bill 613-A]
59.694 Annotation
"Unnecessary hardship" under s. 59.99 [now s. 59.694] (7) (c) means "practical difficulties". Grounds for variances discussed. Snyder v. Waukesha County Zoning Bd. 74 W (2d) 468, 247 NW (2d) 98.
