October 26, 2015 at 2:19 p.m.
Our View: A glimpse of sunlight in the DNR
Our View: A glimpse of sunlight in the DNR
That's right, that's the good news. In the past, when that outfit was the good news, we knew we were in trouble.
As we report today, two analytical memos have come streaming out about what the new shoreland statutes passed in this year's budget bill actually mean. One hails from the DNR; the other, from the Wisconsin Counties Association.
Of course, before now, everybody has had an opinion (or two or three or four) about the new statutory provisions, and they have mostly reflected what the person wanted them to mean rather than what actually might be in the law.
Environmentalists, for example, have intoned that, because counties can't adopt standards more restrictive than NR115 in their shoreland ordinances, they can simply pull them out of that ordinance and stick them in their general zoning ordinance. Presto! Call them something else!
Suddenly, because they are no longer called shoreland ordinances, they aren't restricted by the new law. That's like saying the poison mushrooms won't kill you when you eat them if you just call them doughnuts.
As if any sane lawmaker wanting to stop crazy counties from adopting overreaching shoreland standards would intend such an outcome. The environmentalists have been laughed at behind their backs, but, hey, they are used to it. (Or haven't they figured out the world is guffawing over their doomsday climate-change proclamations?)
The memos from the DNR and the WCA are different, though. They are serious-minded attempts to clarify what counties can and can't do under the new provisions, and we respect their conclusions, even if we don't necessarily like all of them.
The worst conclusion - at least from the viewpoint of property-rights advocates - is in the WCA analysis. In their legal opinion, all the fuss being raised about the new law doing away with lake classification systems and minimum frontage requirements is for nothing.
They believe counties can keep their minimum lot width and frontage requirements through their land division ordinances if they are written carefully. What's more, they say, land division ordinances can override shoreland zoning statutes even when the land division ordinances target shorelands only. Yikes!
But, as we look at the reasoning, they are probably right.
We don't know how we missed this little jewel embedded like a pearl in an oyster in the state's shoreland zoning statute - "All powers granted to a county under 236.45 (the state's land division ordinance) may be exercised by it with respect to shorelands...." - but we did and it is obviously meant to set the land division ordinance apart from other nonshoreland ordinances that cannot impose standards willy-nilly as a way to override state shoreland requirements.
We don't like it, but the land division ordinances can do just that, and those ordinances can include provisions for minimum lot size width, density, and the like.
So those who thought large lot and frontage requirements for lakes - which do little to protect the resource but a lot to protect sanctuaries for the uber wealthy - were a thing of the past, it's time to contact lawmakers for a fix.
The DNR memo is more heartening and also honest. It puts counties on notice that they can't create standards in general zoning ordinances designed to evade the new provisions, they confirm the counties new lack of power to do away with nonconforming structures, they acknowledge that variance conditions need to relate to the intentions of the original zoning standard.
Some of these acknowledgments are no-brainers; others are still being contested by environmentalists.
The point here is, the memo itself is a departure for the agency. Some of the bureaucrats who helped fashion the memo may have been gagging as they did so, but the honesty is a testament to the Walker administration's leadership of the department.
Indeed, the agency in repeated instances cautions that the entire memo is just its opinion. In the old days, the DNR never had an opinion; it had an edict, and you had better follow it if you didn't want the thugs on your doorstep.
In the past the DNR would adopt the craziest of environmental interpretations, many of them created on a whim and often changed daily (see our old stories on lakebed determinations and setting the ordinary high water mark and pier violations, and on and on), and the verdicts were never rendered as opinions but as DNR law.
What a change.
So what do these two memos tell us? First, the environmental and government vultures are looking for every scrap of legal meat they can find to defeat the property-rights protections, and they are finding some along the roadside of shoreland legal history. It's going to be a long, hard fight, and, if the environmentalists can't win elections, they'll contest us in court.
The DNR memo, however, tells us the DNR will no longer be an automatic ally of the craziest of the crazies, and will not blindly support the attempts by zealots to rewrite the new laws according to their dreams.
The DNR's bureaucratic minions may not like what is going on, but the most recent memo points to a new day in the agency, where property owners might at least have a fighting chance.
In the era of big government, a fighting chance is good news indeed.
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