Accord offers relief for landowners,
Citizen advisory panel proposes rule changes to ease home
improvements yet protect lakes, rivers
By Don Behm
Milwaukee Journal Sentinel
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
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,"
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
"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.