Oneida County will hire outside counsel on DNR challenge

On a 16-2 vote at its most recent meeting, the Oneida County Board of Supervisors has approved spending up to $10,000 for the county’s zoning committee to hire outside counsel for advice on the DNR’s challenge to its proposed shoreland ordinance changes.

Supervisors Steven Schreier and Jim Winkler were the two dissenting votes.

The decision to seek outside legal counsel came after the Wisconsin Department of Natural Resources (DNR) told the committee it would not certify certain proposed changes to the county’s shoreland ordinance that the committee had submitted to the agency for review.

That incensed some members of the committee who believe the DNR’s statutory interpretations do not necessarily align with legislative intent, and, more, other counties have been allowing — some through policy, some through code — some of the same provisions the DNR says it won’t certify in Oneida County.

The zoning committee is seeking the counsel — in particular attorney Larry Konopacki, a former attorney for the state legislature who was involved in the writing of the state’s shoreland statutes — to review the proposed ordinance amendments and relevant state statutes and administrative rules and provide the committee with a legal analysis of the proposed revisions or to provide language the DNR might find acceptable.

As Oneida County zoning director Karl Jennrich explained to the county board, the committee has been working on the ordinance amendment since 2022 and a public hearing has been held.

Oneida County board chairman Scott Holewinski, who is also the zoning committee chairman, said the zoning committee had multiple run-ins with the DNR over language, and he cited the DNR’s opposition to one proposed revision of the shoreland ordinance that has particularly rankled zoning supervisors.

“The legislators passed a bill saying that you were allowed a deck and a railing [on a boathouse], but the DNR interprets it that they didn’t give an exception for a stairway going to it,” Holewinski said. “So you’re not allowed a stairway to get onto your deck. You’re allowed to have a deck with a railing but no stairway to it.”

In the same way, Holewinski said, everyone considers a concrete apron as part of a house or garage but the DNR won’t make that same concession for boathouses.

“So what we’re asking for is money to hire outside counsel to advise us where we should go with these things before we pass the new ordinance,” he told the board.

Holewinski said legal counsel was important now because, after Oneida County pointed out to the DNR that other counties were allowing what Oneida County was proposing, the agency has now moved those other counties into its line of fire.

“We used the other counties and said that they [the DNR] allowed them [those counties] to have [these provisions], and the DNR now says they were unaware,” he said.

In some instances, Holewinski said, the zoning department just copied those other ordinances to come up with the proposed revisions.

“Then they [the DNR] said, ‘well we didn’t realize the other counties were doing this,’” he said. “So now we became the squealers on the other counties and then the DNR, which was supposed to be doing their jobs, are now going after those counties for the same thing. So we feel it’s important that we get somebody.”

It’s just how he works

Jennrich explained how many of the practices in other counties found their way into the proposed Oneida County changes.

“As a zoning administrator, I don’t work in a vacuum,” Jennrich said, “I like to lean on other counties as far as what they do.”

Jennrich said he contacted Vilas County about two issues: concrete aprons on the lakeward side of boathouses and stairways to get up to flat roof boathouses. 

Jennrich said Vilas County was allowing those through policy, but Jennrich thought Oneida County would be better served by codifying the language.

“I said don’t do it as policy, put the language in the ordinance, so at least, if I have a heart attack and die tomorrow, it’s crystal clear what is and what is not allowed,” he said.

Jennrich said there are also issues about what can and can’t be done with a structure that is within 75 feet of the ordinary high water mark, and that involves defining a building footprint. 

“The committee wanted to allow accessory portions of the structure, such as a deck being part of the principal, so you have a footprint and within that footprint you could do whatever you want — deck, principal, accessory, whatever,” he said. “That concept I got directly from Lincoln County and that was actually in their language.”

Jennrich said both Lincoln and Vilas counties have since received letters and calls from the DNR that their policies or code are not compliant with NR115, the state’s shoreland zoning code.

Access and viewing corridors are another issue, Jennrich said.

“When it comes to access and viewing corridors, which is the amount of vegetation you can remove for the placement of a boathouse, the placement of a walkway… we were going put into code that you were allowed multiple access and viewing corridors as long as the sum of those access and viewing corridors doesn’t meet the maximum.”

Jennrich said he believes a lot of counties are doing that as policy.

“But when we pulled that part into our language, the DNR said you’re only allowed one walkway and so they came back with that interpretation,” he said. “I respectfully stated, ‘You may want to contact other counties on how they’re interpreting NR115,’ but again they’ve been pretty clear.”

Supervisor Bob Almekinder, also on the zoning committee, said the Department of Natural Resources’ interpretations defied logic and common sense.

“The DNR says you can have a deck, but you can’t use it. Does that make sense?” Almekinder asked. “That’s ridiculous. The DNR says if you don’t have an existing boat ramp, you can put concrete slabs down to the lake and into the water but you can’t put a concrete apron on your boathouse. Does that make sense? The DNR says you can have a path going around your house, but if you have a walkout you can’t have a path going out of your house if you are within 75 feet. Does that make sense? That’s what we’re trying to clear up.”

Supervisor Billy Fried said he hoped that some communication with the DNR might enable the county to avoid the legal costs, and so he wanted to know if the DNR had reached out to Holewinski as follow-up to the Pelican River easement controversy earlier this year, during which the DNR failed to properly notify Oneida County of its right to oppose the purchase and failed to forward town resolutions opposing the purchase to the Natural Resources Board.

Afterwards new DNR secretary Adam Payne promised Holewinski better communication, but Holewinski said he hadn’t heard a thing, though he had heard that the agency was communicating with Langlade County about the easement, though only a tiny sliver of the proposed easement land would be in that county.

“I don’t know if they’re working with smaller ones first before they come to us,” he said. “I don’t know what the DNR is doing but things have been hectic. … But the DNR hasn’t contacted me.”

Fried said he wasn’t committed to supporting the resolution because perhaps the county needed to just step up and challenge the agency.

“I do support all the work you and your committee have done because I know the challenges you’ve been through,” he said. “My concern is more putting money into outside counsel when I see you have good reasoning for what you’re saying and sometimes you just have to go and take on a fight. So I don’t know if it’s really necessary to go outside.”

Supervisor Jim Winkler said more and more lake districts are restocking lakes, and Winkler said much of it was due to a change in habitat. 

“Some of that might be because of pulling weeds, but all of it is because of lakeshore development and the reduction of habitat around lakes,” he said. “I don’t know how that fits in. I hear what you’re saying about what makes sense and doesn’t make sense, but on a bigger scope and scale, it is reduction of habitat that is causing our districts to put more and more into stocking of fish in their respective lakes.”

Supervisor Linnaea Newman said concrete, especially when it’s down to the water’s edge, leaches lime into the water and changes the pH, which in turn causes toxicity to fingerling fishes and some plants. 

“So yes, it’s going to drastically change the habitat and the more concrete you have, whether it’s aprons or ramps or whatever it is, there’s going to be a change in habitat,” she said. 

One thing concerning supervisor Steven Schreier was the back-and-forth that had already gone on between the committee and the agency — the DNR had already made extensive notations on the proposed revisions and informed the county about what it would and would not consider acceptable, he said.

“So what kind of legal analysis are you looking for that’s going to help you with what they’ve already told you?” he asked. “I know this gentleman (Konopacki) is well regarded and he was very involved in drafting the actual language that really technically is causing the problem. But at the same time, if he was directly involved with drafting the language, isn’t he technically then responsible for contributing to the lack of understanding or the misdirection that’s being given to people that are trying to develop?”

Holewinski said the issues boiled down to three things — walkways, viewing corridors, and the use of decks — as well as the best way to present a proper ordinance proposal to the county board.

“If we can’t put these provisions in because legal advice says, ‘well you probably shouldn’t because of this and this,’ then our alternative is to write an ordinance that will be correct and will pass the DNR and then turn around and work with legislators to correct the statute,” he said. “But I don’t think we want to sit here and bring you something and then sit here and we all argue about it. …. So that’s what we're looking for. And as far as $10,000, I would rather come to you knowing what we’re presenting.”

Timmons also said that, with Konopacki, the committee was trying to figure out lawmakers’ intent when they passed the legislation. 

That way the committee and counsel can assess the strength and validity of the DNR’s positions, Timmons said.

“The intent, what is the intent?” he said. “None of us will ever know what they were, but he was in the room and would understand the conversation that got it to where it is. NR115 is a guidance tool. It’s not the rule. We write the rules and without knowing their true intent, that’s what they keep going back to. ‘Well the intent was to do this. The intent was to do that.’”

Newman questioned whether the $10,000 would open a money spigot that couldn’t be turned off. 

She calculated the committee would only get 25 hours of consultation.

“That is like a small beginning and once we’re into it for $10,000, how much more money are we going to have to follow that with to progress along that timeline?” she asked. “And my guess is this is not a $10,000 commitment. This is going to be a lot more than $10,000 once we’re all done.”

Newman said she would like to see if the matter could be resolved without private counsel.

Holewinski said he believed the $10,000 would be enough without more being needed.

“We’re not getting into a legal battle, we’re just looking for direction,” he said. “And he would be probably the smartest guy since he sat in with the legislators writing the statutes.” 

Supervisor Robb Jensen pointed out that the committee could take Konopacki’s advice and still be challenged by the DNR if the agency thought it was wrong, but Jennrich said the process was a little more complex than that.

“Mr. Konopacki, as part of his discussion with me, he really wants to sit down with the DNR legal staff, not DNR staff, and find out why they’re taking the positions that they are, what legal analysis they are doing and either agree or disagree with what they’re doing and advise the committee accordingly,” he said.

Schreier asked about any help coming from other counties that have found out they are not in compliance.

“We’re talking about other counties that have already technically adopted language or policy, which they’re now told they’re not in compliance, even though it was certified by the DNR in those instances,” he said. “Where’s their buy-in on this? I feel like were putting out the $10,000, and then potentially looking at them [the DNR] holding a hearing and then obligating us for more costs, which we won’t have a choice in spending. And everybody else, the people we reached out to get advice on all this language, they’re just going to sit and watch us spend more and more money on trying to find out how we can bring the language into compliance. I mean I kind of have an issue with that.”

Schreier said he would like to see other counties contribute financially to the cause.

“That would be my biggest concern is that we’re fronting the majority of this, if not all of it fiscally,” he said. “And it’s going to benefit more than just Oneida County at the end is my guess.”

Soon after that comment, the board voted to hire outside counsel, presumably Konopacki, to try and put an end to the guesswork.

Richard Moore is the author of “Dark State” and may be reached at richardd3d.substack.com.