May 1, 2023 at 12:14 p.m.
DNR snubs OC zoning committee again over proposed shoreland changes
The agency is also threatening to crack down on other counties because some allow the same allegedly illegal practices Oneida County is seeking to establish, and Oneida County held those counties up as models for its new ordinance amendments.
In early 2021, the DNR turned down a request by the zoning committee to meet and discuss a proposed ordinance rewrite that the agency helped craft with various county staff and lake association members. Specifically, the DNR refused the zoning committee's invitation after agency officials met multiple times in private with zoning staff and residents to rewrite county code provisions that the agency purportedly said did not meet state standards.
The zoning committee wanted clarification, given that neither state law nor administrative code had changed since the DNR had certified the ordinance.
Now, the agency is taking issue with proposed changes meant to streamline permitting and to allow certain practices that area contractors and landscapers have said other counties allow.
For example, in a March 28 letter to Oneida County zoning director Karl Jennrich from DNR shoreland specialist Dale Rezabek, the agency again asserted that it would not allow exterior stairs to a boathouse roof, nor will it allow a concrete apron between a boathouse and the ordinary high water mark.
In addition, the agency objects to allowing multiple access and viewing corridors - a complete reversal of the DNR's previous position.
Given that other counties are allowing such practices, Jennrich again invited the DNR to come to a meeting, acting at the behest of the committee. The agency refused, saying it had reviewed several drafts of the proposed ordinance amendments, provided the county with written comments, and had discussed the matter with staff over the telephone.
"In these comments and discussions, the department explained which of the proposed amendments are not compliant with statute and administrative code," Rezabek wrote in declining the invitation. "If the amendments are adopted unchanged from the department's last review, the county shoreland zoning ordinance will not be compliant with statute and administrative code, which will in some situations result in the county making decisions that are not legally defensible."
At a zoning committee meeting late last month, Jennrich read Rezabek's response to his invitation as well as the invitation he had emailed to the agency. In his invitation, Jennrich had pointed to other counties allowing what Oneida County wanted to do, and Rezabek said the agency would address those practices forthwith.
"Thank you for making the department aware of potentially non-compliant shoreland zoning ordinances and actions in neighboring counties," Rezabek wrote. "The department was not aware of the issues you brought forward and understands Oneida County's concerns regarding these issues. The department already had communications with both counties mentioned to understand, confirm and address any non-compliant ordinance language or policy practice."
Still, Rezabek wrote, no matter what was going on in other counties, the department could not support a county not following shoreland zoning-related statutes and administrative code based on an argument that other counties were not following the statutes and the code.
"Thus, the department respectfully declines participation in a meeting with the Oneida County zoning committee ... as it is not necessary to discuss the view of the department further, since as noted above, the department has already provided the information necessary for the county to adopt compliant ordinance amendments on multiple occasions," Rezabek wrote.
Not a snitch
During the zoning committee meeting, Jennrich said it has not been his intent or desire to throw other counties "under the proverbial bus." Indeed, at a public meeting with Lakeland area landscapers and contractors in 2022, those businesses themselves had complained that Oneida County was two restrictive, given the practices in those other counties.
In his latest invitation to the agency, Jennrich had laid out to the DNR why Oneida County was proposing those changes.
"During the initial committee discussion on [the ordinance amendments], contractors who work in multiple counties stated that some counties, in particular Vilas County, allows an apron in front of the boathouse and allows stairs to access the deck on the roof of the boathouse," Jennrich wrote to the DNR. "... Vilas County allows both through policy, not by code. I told the planning and development committee rather than allowing stairs and aprons by policy to put it in the code."
Jennrich also wrote that the county has allowed stairways to a boathouse roof if the stairway is constructed on the inside of the boathouse. As for building footprint, Jennrich said the proposed definition was verbatim from Lincoln County.
"I have not requested their letter [Lincoln County] from the WDNR that certified their ordinance but believe their ordinance was certified as part of their adoption process," Jennrich wrote. "That is why I recommended to the planning and development committee the definition of building footprint to facilitate what they, the committee, desired. The committee wanted to allow a structure that's closer than 35 feet to enclose the deck or cover with a roof, not expanding the horizontal footprint."
Jennrich addressed other issues, such as setback averaging, but allowing multiple access and viewing corridors, as well as allowing multiple walkways, stairways, and rail systems, were major issues.
"Oneida County has allowed one walkway, stairway, or lift prior to this ordinance amendment," he wrote. "We have been criticized because apparently other counties have allowed multiple walkways and multiple access and viewing corridors. I have not researched other counties on multiple walkway and lift issues. I can state bluntly [that] Oneida County has always allowed multiple access and viewing corridors as long as the multiple access and viewing corridors do not exceed the maximum percentage allowed."
Oneida County was not alone, Jennrich asserted.
"I believe surrounding counties are doing so in a similar fashion," he wrote. "I just got off the phone with such a county that allows multiple access and viewing corridors. If this is the position of the WDNR is taking for Oneida County, I would suggest WDNR notifies all counties of their position."
Jennrich said he was not trying to get other counties in trouble.
"My intent of the above information is not to throw any county under the proverbial bus, but rather to point out that there are other counties that are administering shoreland zoning ordinances contrary to what the WDNR believes how their respective shoreland zoning ordinances should be administered," he wrote.
Jennrich said his department issues close to a thousand shoreland zoning permits a year and attempts to be compliant with state statutes and administrative code.
"The proposed changes are being driven by the public, which keeps saying that Oneida County is being too restrictive," he wrote. "The planning and development committee responded to those criticisms. As stated in the motion, the planning and development committee is requesting WDNR representation in person at an upcoming committee meeting."
During the most recent zoning meeting, Jennrich said the DNR did not seem to have a clue whether counties were complying with shoreland statutes and code, and he said he would not specifically mention other non-compliant counties for fear the DNR would take action against them, too.
"They think they can know [if a county is compliant], but they don't know," Jennrich said. "And I say that respectfully, I mean you have 71 counties administering a shoreland zoning ordinance and they're not coming into our counties and auditing us, meaning grabbing a handful of shoreland zoning permits and making sure that it meets NR115 or [the statute]."
Jennrich he said he gets audited by the Department of Safety and Professional Services for the county's sanitary program, and they actually look at permits, and he said his department also gets audited for a nonmetallic mining program on occasion.
"It's just in my knowledge, DNR has never audited a county as far as looking at their shoreland zoning permits," he said. "And again, I'm not going to mention the other counties, but since that time, there are counties that are administering NR115, their shoreland zoning ordinance, not according to what the department believes they should be, but I'm not going to name them right now just because of the fact I don't want DNR to visit them, too."
Assistant zoning director Todd Troskey added that most of the other counties were allowing those practices through policy rather than by code.
Shifting interpretations
Jennrich said the agency also seemed to be shifting its interpretations, especially when it came to access and viewing corridors, and, again, other counties were not following the DNR's preferred interpretation.
"If you take a look at the correspondence that we got or received from the Department of Natural Resources, this one surprised me because they're saying, based on [state statute], you're only allowed one access and viewing corridor," he said. "We have always interpreted it since we've administered a shoreland zoning ordinance in 2000, that you can have multiple viewing corridors as long as they don't exceed the maximum."
In other words, Jennrich said, if a person is allowed a 35-foot wide corridor, there could be two 17.5-feet corridors broken up, one on one side, one on the other, and a stairway down on one.
"But at least right now we're not allowing two stairways," he said. "Well, they're saying they're only allowed one access and viewing corridor. Not one county that I called two weeks ago administers it that way. They all allow multiple access and viewing corridors."
It all came to light because Oneida County is proposing to allow multiple walkways down the multiple access and viewing corridors, Jennrich said.
"And they're saying you've got to look at it singularly, only one walkway, only one access and viewing corridor, period," he said.
The problem is, Jennrich said, there are discrepancies between the state statute and the administrative code, meaning that the code is not black and white and leads one to believe that multiple corridors are OK.
"But then you go back to statute, which controls, and the statute is saying singular walkway, stairway and access or an access and viewing corridor," he said. "So they're looking at it black and white, literally one."
Zoning committee chairman Scott Holewinski wondered if the DNR could just pick which document - the statute or the code - to use, but corporation counsel Mike Fugle said the statute always controls.
"So the textbook answer is the statute controls," Fugle said. "I suppose if you were being unkind, you would say they screwed up NR115 [the code] by making it not mirror the statute because it's the statute that controls."
Supervisor Mike Roach said the county is always told to follow the code, but Fugle said it didn't work that way.
"You have to comply with the statute," he said. "So you can't say, 'Well the DNR messed this up, but we're going to use how they messed it up.' Because, as they've basically come forward, they've said, well, it's a statute that controls."
In that case, Roach said, Oneida County should get with other counties to lobby to change the statute.
"It takes a year or two years to get that done," he said. "But that's what I suggest that we do is start calling these other counties and taking it to Madison and getting this done. That's what people do when they want the rule to line up more with the statute. In this case, we want the statute changed."
Supervisor Bob Almekinder wondered if any statute prohibited a concrete apron on a boathouse, and he said a lot of the rules didn't make common sense.
"You can have a stairway going down a steep hill going down to your lake, but you can't have a stairway going down to your boathouse roof," Almekinder said. "I don't understand that kind of stuff."
Holewinski said there were also interpretations about the definition of an accessory structure.
"Is a stairway to the roof and an apron part of the structure or is it an accessory structure?" he asked. "Is the garage door an accessory structure? Is a Bilco door onto a house an accessory structure?"
Holewinski said the DNR views an apron and a boathouse as accessory structures but he viewed them as part of the structure of the boathouse.
Almekinder agreed.
"If you have a house and you have stairs going in your house, that's not an accessory structure," he said. "[They are saying] you can have a deck but you can't have access to it. That doesn't make sense."
The conversation continued to revolve around the DNR's interpretations of the code and the statute, as well as the agency's refusal to meet with the committee to try and clarify matters, but in the meantime Holewinski suggested that Jennrich prepare for the committee a comparison between what the statutes state and what the administrative code states, as well as the DNR's positions.
Jennrich thought that would be productive.
"It's going to take a little bit of time, but it's worth the exercise to do it," he said. "Again, I'll take the DNR comments
and we'll see what NR115 says and what the statute says."
Holewinski said that approach would enable the committee to set an explicit course of action.
"And the bottom line is, if we think that the statute needs to be changed, we get the other counties behind us or our county goes," he said. "It took me two years to go to the capitol and get, I think it was Act 145, where the towns control zoning in their towns, not the county by the attorney general's interpretation of the statute."
Holewinski said it was important to take action to make sure that what has been in practice for years is codified before the DNR starts taking action against those who followed that past practice.
"So I'm sure that if we start bringing in our legislators, we can get this to the way that it was done for years because now what the DNR is saying is, 'okay, that was the problem,'" he said. "They could go after all those permits that were handed out and find those people and make them do it according to the statute. Think of the thousands of places, because of what was happening in the past, that would be non-conforming now. And the DNR could go after those permits."
Supervisor Mike Roach wondered if it was time to bring in outside counsel, perhaps someone such as Larry Konopacki, a private attorney who in the past worked for the legislature and helped write the shoreland language.
"Mike [Fugle] respectfully tells us we should abide by the law, which we should," Roach said. "We want to. But the people that helped write this statute are saying we have to go by it, but they don't know what they're doing and they've given us misdirection in the past. We've chased this dog for his tail for a year now. We have to get out center taking it back. The statute isn't going to change. We know what we want. They know what they're saying. Why are we wasting their time? And that's why you get somebody right now."
The DNR looks at the administrative code and says how things should be, Roach continued, but now they've gone back to the law itself.
"And that's why we should tell our legislators, 'Hey this is a difference here. It's a pretty big deal to the people. We need to change the law because this is their code and we actually don't even like that, but it's a lot better than the law apparently,'" he said. "So we have to abide by the law, but we should move forward and start the process."
The committee will consider outside counsel on a future agenda.
Richard Moore is the author of "Dark State" and may be reached at richardd3d.substack.com.
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