Oneida admin panel backs zoning on DNR battle

The Oneida County administration committee stood unanimously this week with the county’s zoning committee in its looming potential fight with the state Department of Natural Resources, approving spending up to $10,000 of the county’s contingency fund for outside counsel to assist with the effort.

In a resolution separate from funding, the committee approved the actual hiring of outside counsel, which must also be approved by the full county board.

For more than a year, the zoning committee has been working toward amending its shoreland ordinance to allow what other counties have routinely permitted, but the Department of Natural Resources (DNR) has repeatedly raised objections to some of the very practices the agency has allowed elsewhere.

The proposed revisions are intended to allow what supervisors call common-sense measures that will also expedite permitting and were sparked by requests from Lakeland area and Oneida County landscapers and contractors last year. 

One example where the DNR is departing from its approvals in other counties is a proposed ordinance amendment allowing stairs to be placed on the exterior side of a boathouse to gain access to a flat roof, to a maximum width of five feet. However, the DNR’s interpretation does not allow the exterior stairs, though other counties routinely permit them. 

A public hearing has already been held, but, in the face of continued DNR resistance, the zoning committee decided to seek outside counsel.

At the administration committee meeting this week, Jennrich told supervisors that the DNR was still opposing certain modifications and had taken the position that if those provisions are  adopted, the agency could not certify the ordinance. Jennrich explained that the shoreland zoning ordinance is a state mandate and all the county does is administer its provisions. 

“There are things that the county can administer or has some leeway,” Jennrich told supervisors. “There’s others that we really do not. So the county has provided revisions to the Wisconsin Department of Natural Resources, the DNR has brought forth tentative concerns that they have regarding the revisions, and what the committee would like to do is to hire outside counsel, and  one individual in particular, to assist the committee in two aspects.”

One task for outside counsel would be to review relevant state statutes and administrative codes, and a second would be to provide the committee with legal analysis on the proposed revisions and/or to provide language that may be acceptable to the DNR, Jennrich said.

The attorney the committee is looking to hire is Larry Konopacki, who previously worked with the legislature as a staff attorney when many statutory revisions to the shoreland state statutes were adopted.

“I had some phone conversations with him prior to bringing this to you and he thought that the county may have some wiggle room in some aspects, and on others he may provide us technical guidance and find out what the likelihood is that, if we were challenged by the DNR, whether or not the department would prevail,” Jennrich said.

After listening to public testimony, Jennrich said, the committee is pretty set on trying to get the ordinance as proposed approved. 

“And so the committee really is not looking at making changes that may be acceptable to the Department of Natural Resources, and that’s why they want to hire outside counsel to assist them,” he said. 

Jennrich said his purpose in coming before the administration committee was to ask for money to fund the attorney’s expense. 

Squared fists, rounded numbers

”The money is not in the budget,” he said, adding that, after talking with Konopacki about his hourly rate, he and corporation counsel Mike Fugle came up with a round figure of $10,000 to start.

Fugle explained that there had to be approval to hire an outside attorney and confirmed that Jennrich did not have the money in his budget.

“The proposed amendment mirrors some other surrounding county’s language and the DNR objected to the proposed language,” Fugle said, reiterating that, in the proposed revisions, the zoning department simply took some language from other counties. 

“And again [the DNR] response was, ‘Well, now we’re going to have to go after them too,’” Fugle said. “But they had approved this language for other counties. They’re not approving it for Oneida County. My office reviewed it [the proposed amendment], and the DNR probably should not have approved it for the other counties.”

After his office’s review, Fugle said his take was that Oneida County was “going to get jammed on this because I mean the DNR completely changed course.”

“Obviously, Karl didn’t make any of this language up,” he said. “He actually took it from other ordinances that had been certified by the DNR. So I mean the ask the committee is interested in is having someone who has those specific contacts and references in terms of trying to navigate this through as they have proposed it.”

Jennrich said he believed the committee was approving the spending of resources for the attorney, while the full county board would have to make the decision to hire outside counsel.

Supervisor Steven Schreier said he was unsettled by the DNR.

“I’m just flummoxed by the DNR in general,” Schreier said. “It seems like they’re trying to constantly lower the limbo bar you’re supposed to go under. And I don’t know how they even justify it in this case if they’ve already certified other counties who we are taking language from.”

One question was whether the DNR will actually challenge the county and whether the county might hold off hiring outside counsel until if and when the agency does so.

“But that leads to the question of, if we did do that and we’re technically not in compliance because we’re uncertified, does it jeopardize anything?” Schreier asked. “Does the DNR have the ability to withhold funding on other things or only as it relates to that statutory language and how we’ve interpreted it?”

Jennrich described the process, saying the DNR would send a letter saying that the ordinance was not in compliance. 

“If the county refuses to do something about it, they would have the ability, I believe, to step in, draft code-compliant language, hold public hearings on the code-compliant language, and then pass those expenditures to have their staff do that and to have the public hearings and give that to Oneida County in the form of a bill,” he said.

On one level, Schreier said that’s exactly the scenario he would like to see.

“I'm sorely tempted to see that happen, to be perfectly honest,” he said. 

Fugle pointed out that that could be an expensive course of action.

“It’s my job to say that’s going to get really expensive for the county,” he said. “Unfortunately the DNR, if they decide they’re going to do something, then you’re behind the eight ball and trying to claw back through the court system.”

In many cases, Fugle said, the county has to first exhaust all administrative remedies and so it is possible to get behind the eight ball very fast. 

“So that’s my advice that I have to give on behalf of the county,” he said. “Because if they come in and start taking over enforcement and going through a process and rewriting it, you can be sure you’re getting an awfully big bill.”

Administration committee chairman Billy Fried said he was supportive of the direction the zoning committee wanted to go in.

“We‘ve heard and been part of a lot of frustration in communication,” Fried said. “But we’re here today for basically two things. The first thing is supporting going to this outside counsel, Mr. Konopacki, to work on this … I personally support it because the committee wants that tool to work with.”

Fried asked if there was any concern in hiring outside counsel. There was none — that matter must move to the full county board — so the issue moved to the funding.

Schreier observed that, in his understanding, the attorney would be providing legal analysis and crafting some potential language that might be more acceptable to the DNR.

“But there’s a part of me that is like, okay, but then Lincoln County and others will actually benefit from us doing this and spending the money,” he said. “Because then they can go in and say, ‘wow, we already know they’re probably coming hunting us because our language obviously shouldn’t have been approved, even though they did [approve it]. They get the benefit of it probably at no cost to them.”

Schreier said he knew the county couldn’t pass along its costs to other counties, though he said it would be nice if it could.

With that expression of concern, Fried made two motions — one to approve the hiring of outside counsel to forward to the county board, and the second to give the planning and development committee approval to spend up to $10,000 for the attorney, if approved, from the county’s contingency fund.

Both motions passed unanimously, and Fried directed that any need to spend more than $10,000 should return to the administration committee.

“So this will get them up and running and he’ll [Jennrich] update us if they’re going to incur more costs,” Fried said.