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Great Lakes Article:

Accord offers relief for landowners, water
Citizen advisory panel proposes rule changes to ease home improvements yet protect lakes, rivers
By Don Behm
Milwaukee Journal Sentinel
11/09/03


For more than three decades, the state's lakes and rivers have been a battleground between property owners and county zoning officials over the extent of residential construction and land clearing that can be done close to waterfronts.

Owners of old shoreline cabins attempting to replace windows and roofs or add rooms and porches step into a complicated quagmire of rules limiting even basic repairs if current zoning ordinances say a residence is too close to water and no longer conforms to code.

But a negotiated truce now holds the promise of ending the conflicts and protecting property rights, the environment and scenic shorelines, say representatives of lake groups and builders on a citizen advisory committee recommending changes to 35-year-old shore land management regulations.

Those proposed changes will be discussed at a series of eight public meetings in the next five weeks.

The truce, hammered out over two years, is no small feat given that there are 15,081 lakes, 50,000 miles of rivers and streams, and 1,017 miles of Great Lakes shorelines in Wisconsin - and a continuing waterfront building boom, said Carmen Wagner, a water regulation and zoning specialist with the state Department of Natural Resources who is working with committee members on revising the rules.

Advisory committee members agree that the primary source of ongoing conflicts must go. The regulations now impose a so-called 50% rule on non-conforming residences, limiting all repairs and alterations to 50% of the structure's assessed value, said Jerry Deschane, deputy executive vice president of the Wisconsin Builders Association.

"This is the most controversial issue in shore land zoning, and that's where the battle lines have been drawn," said Deschane, a member of the advisory committee.

County zoning administrators have complained that it is difficult to keep track of repairs and alterations and determine when the 50% threshold is reached, particularly with rapidly rising values of shore land properties and changes in ownership, Wagner said.

In its place, the advisory committee is recommending a strict prohibition on expanding a residence that lies less than 35 feet from the water's edge. That zone is considered the primary buffer between water and upland, and much of it, regulations say, should remain planted with trees and shrubs to prevent soil, fertilizers and pesticides flowing off lawns from reaching a lake or river.

Unlimited repairs could be made on an aging structure in the primary buffer but no additions, under the provisions.

"Eventually, people are going to say that the structure is too small, and they will rebuild outside of the primary buffer," Deschane said.

A 35-foot-wide buffer strip is in the existing rules, and it should remain in any revision, said Elmer Goetsch, a member of the board of directors of the Wisconsin Association of Lakes and the group's representative on the advisory committee.

Keeping this current standard would be a significant compromise for all sides in the debate, Goetsch said.

"Enlarging the primary buffer beyond 35 feet would bring many more residences under more strict regulation," he said.

Wisconsin was the first state to enact minimum restrictions on the use of shore land property in an effort to protect public rights to water quality, recreational activity and scenic beauty, said Todd Ambs, water division administrator for the state Department of Natural Resources.

Shore land zoning regulations are based on Wisconsin's public trust doctrine. The state's constitution and subsequent court decisions and laws established both a variety of public rights in navigable waters and the state's obligation to protect them.

Those public rights include boating, fishing, hunting, swimming, enjoyment of scenic beauty, ice skating, and other recreational activities on water or ice.

State courts also have agreed that the state is justified in regulating shore land and wetland areas adjacent to navigable waters in order to protect the public trust.

A state water resources act in 1966 created the shore land zoning program, and the resulting regulations became effective in 1968. By 1971, all counties had adopted the minimum standards to comply with the law.

By 2002, however, the cumulative complaints of property owners, new research revealing the damage to water quality and wildlife habitat from waterfront development, and a continuing shore land building boom prompted the DNR to work with a citizen advisory committee to revise the old rules.

"Water quality is declining and fish habitat is damaged with the current standards," the DNR's Wagner said. "Developed shore lands have up to 92% fewer aquatic species" than undeveloped shores.

Though the current standards allow more than 50 homes per mile of shore in areas without sewers and more than 80 residences per mile in areas with sewers, one study found that green frog populations disappear when development reaches just 30 homes per mile.

The committee and the DNR cannot ignore the public trust doctrine in revising the regulations, but the program can be made more effective, DNR officials said.

In attempting to give owners reasonable use of their properties while protecting public rights to water resources, the committee did not always reach a consensus on how to correct problems, said Toni Herkert, the DNR's shore land management team leader.

Wherever there is disagreement, the proposed revisions include at least two alternatives for the DNR to consider.

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