Section 115.05. Minimum zoning standards for shorelands.

 

(1)   Establishment of shoreland zoning standards. The shoreland zoning ordinance adopted by each county shall control use of shorelands to afford the protection of water quality as specified in chs. NR 102 and 103 . At a minimum, the ordinance shall include all of the following provisions:

(a) Minimum lot sizes. Minimum lot sizes in the shoreland area shall be established to afford protection against danger to health, safety and welfare, and protection against pollution of the adjacent body of water.

1. `Sewered lots.' Lots served by public sanitary sewer shall have a minimum average width of 65 feet and a minimum area of 10,000 square feet.

2. `Unsewered lots.' Lots not served by public sanitary sewer shall have a minimum average width of 100 feet and a minimum area of 20,000 square feet.

3. `Substandard lots.' A legally created lot or parcel that met minimum area and minimum average width requirements when created, but does not meet current lot size requirements, may be used as a building site if all of the following apply:

a. The substandard lot or parcel was never reconfigured or combined with another lot or parcel by plat, survey, or consolidation by the owner into one property tax parcel.

b. The substandard lot or parcel has never been developed with one or more of its structures placed partly upon an adjacent lot or parcel.

c. The substandard lot or parcel is developed to comply with all other ordinance requirements.

4. `Planned unit development.' A non-riparian lot may be created which does not meet the requirements of subd. 1. if the county has approved and recorded a plat or certified survey map including that lot within a planned unit development, if the planned unit development contains at least 2 acres or 200 feet of frontage, and if the reduced non-riparian lot sizes are allowed in exchange for larger shoreland buffers and setbacks on those lots adjacent to navigable waters that are proportional to and offset the impacts of the reduced lots on habitat, water quality and natural scenic beauty.

(b) Building setbacks . Permitted building setbacks shall be established to conform to health, safety and welfare requirements, preserve natural beauty, reduce flood hazards and avoid water pollution.

1. `Shoreland setback.' Except where exempt under subd. 1m. , a setback of 75 feet from the ordinary high-water mark of any navigable waters to the nearest part of a building or structure shall be required for all buildings and structures. Where an existing development pattern exists, the shoreland setback for a proposed principal structure may be reduced to the average shoreland setback of the principal structure on each adjacent lot, but the shoreland setback may not be reduced to less than 35 feet from the ordinary high-water mark of any navigable waters.

1m. `Exempt structures.' All of the following structures are exempt from the shoreland setback standards in subd. 1. :

a. Boathouses located entirely above the ordinary high-water mark and entirely within the access and viewing corridor that do not contain plumbing and are not used for human habitation.

b. Open sided and screened structures such as gazebos, decks, patios and screen houses in the shoreland setback area that satisfy the requirements in s. 59.692 (1v) , Stats.

c. Fishing rafts that are authorized on the Wolf river and Mississippi river under s. 30.126 , Stats.

d. Broadcast signal receivers, including satellite dishes or antennas that are one meter or less in diameter and satellite earth station antennas that are 2 meters or less in diameter.

e. Utility transmission and distribution lines, poles, towers, water towers, pumping stations, well pumphouse covers, private on-site wastewater treatment systems that comply with ch. SPS 383 , and other utility structures that have no feasible alternative location outside of the minimum setback and that employ best management practices to infiltrate or otherwise control storm water runoff from the structure.

f. Walkways, stairways or rail systems that are necessary to provide pedestrian access to the shoreline and are a maximum of 60-inches in width.

2. `Floodplain structures.' Buildings and structures to be constructed or placed in a flood plain shall be required to comply with any applicable flood plain zoning ordinance.

3. `Boathouses.' The use of boathouses for human habitation and the construction or placing of boathouses beyond the ordinary high-water mark of any navigable waters shall be prohibited.

(c) Vegetation. To protect natural scenic beauty, fish and wildlife habitat, and water quality, a county shall regulate removal of vegetation in shoreland areas, consistent with the following:

1. The county shall establish ordinance standards that consider sound forestry and soil conservation practices and the effect of vegetation removal on water quality, including soil erosion, and the flow of effluents, sediments and nutrients.

2. To protect water quality, fish and wildlife habitat and natural scenic beauty, and to promote preservation and restoration of native vegetation, the county ordinance shall designate land that extends from the ordinary high water mark to a minimum of 35 feet inland as a vegetative buffer zone and prohibit removal of vegetation in the vegetative buffer zone except as follows:

a. The county may allow routine maintenance of vegetation.

b. The county may allow removal of trees and shrubs in the vegetative buffer zone to create access and viewing corridors, provided that the combined width of all access and viewing corridors on a riparian lot or parcel may not exceed the lesser of 30 percent of the shoreline frontage or 200 feet.

c. The county may allow removal of trees and shrubs in the vegetative buffer zone on a parcel with 10 or more acres of forested land consistent with "generally accepted forestry management practices" as defined in s. NR 1.25 (2) (b) , and described in Department publication "Wisconsin Forest Management Guidelines" (publication FR-226), provided that vegetation removal be consistent with these practices.

d. The coun t y m ay allow re m oval of vegetation within the vegetative buffer zone to m anage exotic or inva s ive species, da m aged vegetation, vegetation that m ust be re m oved to control disease, or vegetation creating an im m inent safety hazard, provided that any vegetation re m oved be replaced b y replanting in the sa m e area as soon as practicable.

e. The county may authorize by permit additional vegetation management activities in the vegetative buffer zone. The permit issued under this subd. par. shall require that all management activities comply with detailed plans approved by the county and designed to control erosion by limiting sedimentation into the waterbody, to improve the plant community by replanting in the same area, and to maintain and monitor the newly restored area. The permit also shall require an enforceable restriction to preserve the newly restored area.

(d) Filling, grading, lagooning, dredging, ditching and excavating. Filling, grading, lagooning, dredging, ditching and excavating may be permitted only in accordance with the provisions of s. NR 115.04 , the requirements of ch. 30 , Stats. , and other state and federal laws where applicable, and only if done in a manner designed to minimize erosion, sedimentation and impairment of fish and wildlife habitat and natural scenic beauty.

(e) Impervious surfaces. Counties shall establish i m pervious surface standards to protect water quali t y and fish and wildlife habitat and protect against pollution of navigable waters. Coun t y i m pervious surface standards shall require all of the following:

1. `Appli c ation.' I m pervious surface standards shall apply to the construction, reconstruction, expansion, replace m ent or relocation of a n y i m pervious surface that is or will be located within 300 feet of the ordinary high water m ark of any navigable waterway on a n y of the following:

a. A riparian lot or parcel.

b. A nonriparian lot or parcel that is located entire l y within 300 feet of the ordinary high - water m ark of any navigable waterw a y

1m. `Calculation.' Percentage of i m pervious surface shall be calculated b y dividing the surface area of the existing and proposed i m pervious surfaces on the lot or parcel by the total surface area of that lot or parcel, and m ultipl y ing b y 100. For the purposes of this subdivision counties m ay exclude i m pervious surfaces described in subd. 3 m . If an outlot lies between the ordinary high water m ark and the developable lot or parcel described in subd. 1. and both are in com m on ownership, the lot or parcel and the outlot shall be considered one lot or parcel for the purposes of cal c ulating the percentage of i m pervious surfaces.

2. `General standard.' Except as allowed in subds. 2 m . to 4. , a coun t y m ay allow up to 15% i m pervious surface as cal c ulated under subd. 1m on a lot or parcel described in s ubd. 1.

2m. `Standard for high l y developed shorelines.' At its discretion, a c oun t y m ay adopt an ordinance for highly developed shorelines that allows i m pervious surface as calculated under subd. 1m on lots or parcels described in subd. 1 as follows: up to 30% for residential land uses or up to 40% for com m ercial, industrial or business land uses.

a. A "high l y developed shoreline" m eans a shoreline within an area identified as an Urbanized Area or Urban Cluster in the 2010 US Census or a shoreline that has a com m ercial, industrial or bu s iness land use as of Janua r y 31, 2013.

b. A coun t y m ay establish, after conducting a hearing and receiving approval b y the depart m ent, a m ap of additional areas of high l y developed shorelines not included in subd. 2 m . a.

c. An additional area of high l y developed shoreline under subd. 2m. b. , shall in c lude at least 500 feet of shoreline and as of February 1, 2010, have either a m ajority of its lots developed with m ore than 30% i m pervious surface area as calculated under subd. 1 m . or be located on a la k e and served b y a sewerage s y stem as defined in s. NR 110.03 (30) . To obtain approval from the depart m ent for an additional area, the county shall provide data to the depart m ent that establishes that the additional area m eets the criteria under this subd. 2m. c.

3. `Maxi m um i m pervious surface.' A county m ay allow a property owner to exceed the i m pervious surface standard under subds. 2. and 2 m . provided that all of the following require m ents are m et:

a. For lots or parcels described under subd. 1. that exceed the i m pervious surface standard under subd. 2. and are not located within a high l y developed shoreline as defined in subd. 2 m . , a coun t y m ay allow m ore than 15% i m pervious surface but not m ore than 30% i m pervious surface as calculated under subd. 1m on the lot or parcel.

b. For lots or parcels described under subd. 1. and lo c ated within an area defined by coun t y ordinance as a high l y developed shoreline under subd. 2 m . , a county m ay allow m ore than 30% i m pervious surface but not m ore than 40% i m pervious surface as calculated under subd. 1m on the lot or parcel for properties that have a residential land use, or m ore than 40% i m pervious surface but not m ore than 60% i m pervious surface as calculated under subd. 1m. for properties that have a com m ercial, industrial or business land use.

c. For lots or parcels described under subd. 1 that exceed the i m pervious surface standard under subds. 2. and 2 m . , but do not exceed the m axi m um impervious surface standard under subd. 3. a. or b. , the county s hall issue a per m it that requires a m itigation plan approved by the coun t y and i m ple m ented by the property owner b y the date specified in the per m it. The m itigation plan shall include enforceable obligations of the proper t y owner to establish or m aintain m easures that the coun t y deter m ines adequate to offset the i m pacts of the i m pervious surface on water qualit y , near-shore aquatic habitat, upland wildlife habitat and natural scenic beaut y . The m itigation m easures shall be proportional to the a m ount and i m pacts of the i m pervious surface being per m itted. The obligations of the proper t y owner under the m itigation plan shall be evidenced by an instru m ent recorded in the office of the coun t y register of deeds.

3m. `Treated i m pervious surfaces.' A coun t y m ay exclude from the calculation under subdivision 1 m ., any i m pervious surface where the property owner can show that runoff from the i m pervious surface is treated b y devices such as stor m water ponds, constructed wetlands, infiltration basins, rain gardens, bio s wales or other engineered s y ste m s, or that the runoff discharges to internally drained pervious area that retains the runoff on the parcel to allow infiltration into the soil.

4. `Existing i m pervious surfaces.' For e x isting i m pervious surfaces that were lawful l y placed when constructed but that do not co m ply with the standards in subds. 2. and 3. , the property owner m ay do a n y of the following as long as the proper t y owner does not increase the percentage of i m pervious surface that existed on the effective date of the coun t y shoreland ordinance:

a. Maintain and repair all i m pervious surfaces.

b. Replace e x isting i m pervious surfaces with si m ilar surfaces within the existing building envelope.

c. Relocate or m odi f y existing i m pervious surfaces with si m ilar or different i m pervious surfaces, provided that the relocation or m odification m eets the applicable setback require m ents in par. (b) .

(f) Height. To protect and preserve wildlife habitat and natural scenic beauty, on or after February 1, 2010, a county may not permit any construction that results in a structure taller than 35 feet within 75 feet of the ordinary high-water mark of any navigable waters.

(g) Nonconforming structures and uses.

1. `General rule for nonconforming uses.' Pursuant to ss. 59.69 (10) and 59.692 (2) (a) , Stats., an ordinance enacted under those provisions may not prohibit the continuation of the lawful use of a building, structure or property, that exists when an ordinance or ordinance amendment takes effect, which is not in conformity with the provisions of the ordinance or amendment.

2. `Nonconforming use of temporary structure.' The continuance of the nonconforming use of a temporary structure may be prohibited.

3. `Discontinued nonconforming use.' If a nonconforming use is discontinued for a period of 12 months, any future use of the building, structure or property shall conform to the ordinance.

4. `Maintenance of nonconfor m ing principal structure.' An existing principal structure that was lawfully placed when constructed but that does not co m ply with the required building setback under par. (b) 1. may be m aintained and repaired within its e x isting building envelope. Maintenance and repair also includes such activities as interior re m odeling, exterior re m odeling, and the repla c e m ent or enhance m ent of plu m bing or electrical s ystems, insulation, windows, doors, siding, or roof within the e x isting building envelope.

5. `Expansion of nonconfor m ing principal structure within the s etbac k .' An existing principal structure that was lawful l y placed when constructed but that does not co m ply with the required building setback under par. (b) 1. m ay be expanded lateral l y or vertical l y , provided that all of the following require m ents are m et:

a. The use of the structure has not been discontinued for a period of 12 m onths or m ore if a nonconfor m ing use.

b. The existing principal structure is at least 35 feet from the ordinary high-water mark.

c. Vertical expansion is li m ited to the height allowed in s. NR 115.05 (1) (f) and lateral expansions are li m ited to a m axi m um of 200 square feet over the life of the structure. No portion of the expansion m ay be a n y closer to the ordinary high - water m ark than the closest point of the existing principal structure.

d. The county shall issue a permit that requires a mitigation plan that shall be approved by the county and implemented by the property owner by the date specified in the permit. The mitigation plan shall include enforceable obligations of the property owner to establish or maintain measures that the county determines adequate to offset the impacts of the permitted expansion on water quality, near-shore aquatic habitat, upland wildlife habitat and natural scenic beauty. The mitigation measures shall be proportional to the amount and impacts of the expansion being permitted. The obligations of the property owner under the mitigation plan shall be evidenced by an instrument recorded in the office of the county register of deeds.

e. All other provisions of the shoreland ordinance shall be met.

5m. `Expansion of nonconforming principal structure beyond setback'. An existing principal structure that was lawfully placed when constructed but that does not comply with the required building setback under par. (b) 1. , may be expanded horizontally, landward or vertically provided that the expanded area meets the building setback requirements in par. (b) 1. , and that all other provisions of the shoreland ordinance are met. A mitigation plan is not required solely for expansion under this paragraph, but may be required under par. (e) 3.

6. `Replace m ent or relocation of nonconfor m ing principal structure.' An existing principal structure that was lawful l y placed when constructed but that does not co m ply with the required building setback under par. (b) 1. m ay be replaced or relocated on the proper t y provided all of the following require m ents are m et:

a. The use of the structure has not been discontinued for a period of 12 m onths or m ore if a nonconfor m ing use.

b. The existing principal structure is at least 35 feet from the ordinary high-water mark.

c. No portion of the replaced or relocated structure is located any closer to the ordinary high-water mark than the closest point of the existing principal structure.

d. The county determines that no other location is available on the property to build a principal structure of a comparable size to the structure proposed for replacement or relocation that will result in compliance with the shoreland setback requirement in par. (b) 1.

e. The county shall issue a permit that requires a mitigation plan that shall be approved by the county and implemented by the property owner by the date specified in the permit. The mitigation plan shall include enforceable obligations of the property owner to establish or maintain measures that the county determines are adequate to offset the impacts of the permitted expansion on water quality, near-shore aquatic habitat, upland wildlife habitat and natural scenic beauty. The mitigation measures shall be proportional to the amount and impacts of the replaced or relocated structure being permitted. The obligations of the property owner under the mitigation plan shall be evidenced by an instrument recorded in the office of the county register of deeds.

g. All other provisions of the shoreland ordinance shall be met.

(2)   Establishment of land division review. Each county shall review, pursuant to s. 236.45 , Stats., all land divisions in shoreland areas which create 3 or more parcels or building sites of 5 acres each or less within a 5-year period. In such review all of the following factors shall be considered:

(a) Hazards to the health, safety or welfare of future residents.

(b) Proper relationship to adjoining areas.

(c) Public access to navigable waters, as required by law.

(d) Adequate storm drainage facilities.

(e) Conformity to state law and administrative code provisions.

(3)   Establishment of sanitary regulations. Each county shall adopt sanitary regulations for the protection of health and the preservation and enhancement of water quality.

(a) Where public water supply systems are not available, private well construction shall be required to conform to ch. NR 812 .

(b) Where a public sewage collection and treatment system is not available, design and construction of private sewage disposal systems shall, prior to July 1, 1980, be required to comply with ch. SPS 383 , and after June 30, 1980, be governed by a private sewage system ordinance adopted by the county under s. 59.70 (5) , Stats.

(4)   Adoption of administrative and enforcement provisions. The shoreland ordinance adopted by each county shall require all of the following:

(a) The appointment of an administrator and such additional staff as the workload may require.

(b) The creation of a zoning agency, as authorized by s. 59.69 , Stats., a board of adjustment, as authorized by s. 59.694 , Stats., and a county planning agency, as defined in s. 236.02 (1) , Stats., and required by s. 59.692 (3) , Stats.

(c) A system of permits for all new construction, development, reconstruction, structural alteration or moving of buildings and structures. A copy of all applications shall be required to be filed in the office of the county zoning administrator.

(d) Regular inspection of permitted work in progress to insure conformity of the finished structures with the terms of the ordinance.

(e) A variance procedure which authorizes the board of adjustment to grant such variance from the terms of the ordinance as will not be contrary to the public interest where, owing to special conditions and the adoption of the shoreland zoning ordinance, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship, as long as the granting of a variance does not have the effect of granting or increasing any use of property which is prohibited in that zoning district by the shoreland zoning ordinance.

(f) A special exception (conditional use) procedure for uses presenting special problems.

(g) The county shall keep a complete record of all proceedings before the board of adjustment, zoning agency and planning agency.

(h) Written notice to the appropriate regional office of the depart m ent at least 10 da y s prior to a n y hearing on a propo s ed variance, special exception or conditional use per m it, appeal for a m ap or text interpretation, m ap or text a m end m ent, and copies of all proposed land divi s ions sub m itted to the coun t y for review under sub. (2) .

(hm) Sub m ission to the appropriate regional office of the depart m ent, within 10 da y s after grant or denial, copies of a n y decision on a variance, special exception or conditional use per m it, or appeal for a m ap or text interpretation, and any decision to a m end a m ap or text of an ordinance.

(i) Mapped zoning districts and the recording, on an official copy of such map, of all district boundary amendments.

(j) The establishment of appropriate penalties for violations of various provisions of the ordinance, including forfeitures. Compliance with the ordinance shall be enforceable by the use of injunctions to prevent or abate a violation, as provided in s. 59.69 (11) , Stats.

(k) The prosecution of violations of the shoreland ordinance.

History: Cr. Register, July, 1980, No. 295 , eff. 8-1-80; r. and recr. (2) (a) 3., am. (2) (a) 6., (2) (c) 3., 5., 7., 9., 10., (3) (d), (3) (e) 1. and cr. (2) (c) 11. and 12., Register, October, 1980, No. 298 , eff. 11-1-80 ; correction in (5) (a) and (b) made under s. 13.93 (2m) (b) 7., Stats., Register, September, 1995, No. 477 ; corrections in (2) (a) 1., (b) 2., (d), (e) 1. to 4. (intro.), 8. and 9., (3) (e) 1., (5) (b), (6) (b) and (j) made under s. 13.93 (2m) (b) 7., Stats., Register, April, 2000, No. 532 ; CR 05-058 : am. (title), r. (1) and (2), renum. (3) to (6) to be (1) to (4) and am. (1), (2) (intro.), (4) (intro.) and (h), cr. (4) (hm) Register January 2010 No. 649 , eff. 2-1-10; corrections in (1) (b) 1m. e., (5) made under s. 13.92 (4) (b) 7., Stats., Register February 2012 No. 674 ; correction in (1) (g) 1. made under s. 13.92 (4) (b) 7., Stats., Register January 2014 No. 697 ; CR 13-051 : am. (1) (c) 2. d., r. and recr. (1) (e), am. (1) (g) 4., 5. (intro.), a., c., 6. a., r. (1) (g) 6. f., 7., am. (4) (h), (hm) Register September 2014 No. 705 , eff. 10-1-14; corrections in (1) (e) made under s. 13.92 (4) (b) 7., Stats., Register September 2014 No. 705 .

Note

Effective April 17, 2012, 2011 Wisconsin Act 170 created s. 59.692 (2m) , Stats., which prohibits a county from enacting, and a county, city, or village from enforcing, any provision in a county shoreland or subdivision ordinance that regulates the construction of a structure or building on a substandard lot if the provision is more restrictive than the standards for substandard lots under ch. NR 115 . Microsoft Windows NT 6.1.7601 Service Pack 1 A property owner may seek a variance to a dimensional standard of the county ordinance and a county board of adjustment may review the request pursuant to s. 59.694 (7) (c) , Stats. Microsoft Windows NT 6.1.7601 Service Pack 1 This chapter does not prohibit repair and maintenance of boathouses located above the ordinary high-water mark. Microsoft Windows NT 6.1.7601 Service Pack 1 In developing and applying ordinances which apply to shoreland areas, local units of government must consider other applicable law and programs affecting the lands to be regulated, e.g., law and management practices that apply to state and county forests and lands entered under forest cropland and managed forest land programs, and ss. 59.692 (2) (a) and 59.69 (4) (a) , Stats. Microsoft Windows NT 6.1.7601 Service Pack 1 Information regarding native plants, shoreland and habitat management is available from the University of Wisconsin-Extension publications website: http://clean-water.uwex.edu/pubs/index.htm . Microsoft Windows NT 6.1.7601 Service Pack 1 A property owner may seek a variance to a dimensional standard of the county ordinance, for areas that e x ceed the ma x imum impervious surface standard in subd. 3. and do not meet the provisions in subd. 3m. A county board of adjustment must review the request pursuant to s. 59.694 (7) (c) , Stats., and applicable case law. Microsoft Windows NT 6.1.7601 Service Pack 1 Nothing in this paragraph shall be construed to supersede the setback provisions in par. (b). New structures must meet all setback provisions in the county shoreland ordinance unless the property owner obtains a variance from the County Board of Adjustment. Microsoft Windows NT 6.1.7601 Service Pack 1 For e x ample this provision would allow an e x isting at-grade patio to be removed and replaced with a new building, if the new building meets the shoreland setback requirements. Microsoft Windows NT 6.1.7601 Service Pack 1 Nothing in this paragraph shall be construed to supersede other provisions in county shoreland ordinances. Microsoft Windows NT 6.1.7601 Service Pack 1 Other provisions include requirements such as impervious surface limitations. Microsoft Windows NT 6.1.7601 Service Pack 1 This code does not supercede s. 59.692 (1s) , Stats. Microsoft Windows NT 6.1.7601 Service Pack 1 Other provisions include requirements such as height and impervious surface limitations. Microsoft Windows NT 6.1.7601 Service Pack 1 This code does not supercede s. 59.692 (1s) , Stats. Microsoft Windows NT 6.1.7601 Service Pack 1 Effective April 17, 2012, 2011 Wisconsin Act 170 created s. 59.692 (2m) , Stats., which prohibits a county from enacting, and a county, city, or village from enforcing, any provision in a county shoreland or subdivision ordinance that regulates the location, maintenance, expansion, replacement, repair, or relocation of a nonconforming building if the provision is more restrictive than the standards for nonconforming buildings under ch. NR 115 . Microsoft Windows NT 6.1.7601 Service Pack 1