May 29, 2023 at 4:23 p.m.
Oneida County zoning committee votes to hire outside counsel
Supervisors edge closer to fight with DNR over shoreland ordinance
The county is trying to amend the ordinance to allow what supervisors call common-sense measures that will also expedite permitting. The proposed changes were sparked by requests from Lakeland area and Oneida County landscapers and contractors last year.
A public hearing has been held, and at a recent meeting the committee continued to deliberate the proposed ordinance, especially where its interpretations of state law differ from what the DNR says the county can do.
A major discrepancy 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. The ordinance would also allow four-foot wide concrete aprons placed between the boathouse and the ordinary high water water mark (OHWM), while boat launch pads placed between the boathouse and the OHWM would not be permitted.
However, Oneida County zoning director Karl Jennrich said, the DNR's interpretation does not allow the exterior stairs (or the concrete aprons), and committee chairman Scott Holewinski wondered if there was a definitional work-around.
"So the DNR is interpreting this as stairs are an accessory structure, and we're saying that a structure consists of the stairs of the house," Holewinski said. "Their interpretation of this is like all stairs are accessory structures, but what if we include in the definition of structure that all things that attach to the structure are part of the structure, and we then define accessory structure as a structure that is not attached to the main structure?"
One of the things that vexes Oneida County officials the most is that other counties seem to routinely allow what the DNR says Oneida County can't allow, and this situation demonstrated another instance of that.
"I just went through this with Vilas County," supervisor Bob Almekinder said. "I got a permit and they just explained to me - because I had listed the front porch with the stairs as a separate structure - they said it's not, it's part of the house. That's what Vilas County said. They told me that the porch and the stairs are part of the house, that you don't get permitted separate from that."
And so, Holewinski said, that's what Oneida County is doing with the change - saying that the stairs are part of the structure and not an accessory structure. Holewinski also said he had spoken with DNR secretary Adam Payne, who concurred that he felt the stairs would be part of the structure.
Jennrich explained that the controlling statute defined a boathouse located entirely above the OHWM as an exempt (meaning allowed) accessory structure, specifically a structure with one or more walls or sides that has been used one or more years for the storage of watercraft and associated materials regardless of its current use.
But he also said the DNR was relying heavily on the statutory definition of structure, which "means a principle structure or an accessory structure including a garage, shed, boathouse, sidewalk, stairway, walkway, patio deck, retaining wall, porch, or fire pit."
"So they're basically saying a boathouse is an accessory structure, but it's specifically allowed in the setback," he said.
But in that statutory language, Jennrich said, a stairway is also listed as an accessory structure, though not an exempt one.
The bottom line was, Holewinski said, the committee is saying that the stairway is part of the structure, and he said the agency is taking the statutory language it is relying on out of context.
"When you get into [the statutes], when they talk about accessory structures, they're [legislative intent] talking about stairways going down the hill out the walkway," he said. "They're not talking about a stairway off the main structure."
In other words, Holewinski said, the agency is spinning a new interpretation in the image of what it wants.
"Well they weren't happy with the legislators passing rooftop decks with railings, so they started picking this out of the stack and saying, 'well, stairways are accessory,'" he said.
Over the years, Holewinski said, the statute was referring to those stairways going down the hill when someone had a walkway.
"It's not the stairway of the structure," he said. "The structure is up above. Then they list the accessories. If you had a fire pit, that's accessory. If you have a sidewalk coming down, that's accessory. The stairs from the sidewalk, that's accessory, but not the stairway on the main boathouse."
If that's the position the committee wants to take, Jennrich said, then perhaps the word 'attached' should be worked into the amendment, as in a stairway attached to a boathouse.
Almekinder said the same principle was in play with a garage.
"You put an apron on the garage, you don't take a separate permit out for that apron on the garage," he said.
Going to the end of the line
Holewinski wondered where it would all end with the DNR's interpretations.
"I'm for leaving it in there," he said. "I believe what we're doing is right. And if we have to, then we'll have to address it through legal means."
Another issue is the county's plan to allow multiple walkways, stairways, and rail systems.
"The intent of this ordinance was to allow multiple walkways, multiple rails as long as they were in the access and viewing corridor," Jennrich said. "The language that the department is utilizing is under [the statute]: 'a' walkway, stairway or railway system that is necessary.' So they're saying it's singular."
But Holewinski said that could be interpreted two different ways, either meaning one or just as a generic walkway that is not limited in number. Jennrich said the same issue came up with viewing corridors; the statute allows "the buffer zone to convey an access viewing corridor."
"So that's what they're saying, it's singular," he said.
But then NR115 creates confusion, Jennrich said, because it refers to plurals - "walkways, stairways or rail systems that are necessary to provide pedestrian access."
Holewinski pointed out that multiple viewing corridors have been allowed for years.
"And now the DNR says that was illegal," he said. "So how many years has this been going on? Are they all illegal now because we allowed it. We thought we were following what was told to us and now the determination has changed again."
Jennrich said other counties have long made the same interpretation as Oneida County.
"I believe I can state publicly [that] the unnamed counties that I've contacted that are somewhat close around, everyone has looked at it as multiple access and viewing corridors ... We've always attributed it that way."
New nonconformities?
Holewinski said he worried about the consequences of the new interpretation.
"And so if we go back and we say this is the right way now, what happens to all the properties that have been approved in the past?" he asked. "What happens to those properties? Is the DNR just going to start fooling around and tagging them. I mean, this is the way we've been doing business for years."
Jennrich said the issue had now come into focus because the DNR was looking at the ordinance and the county's proposed changes and because the diagrams submitted to the agency showed multiple walkways.
"They're saying this is singular, that this is statutory language that we are using to say it's singular, period," he said.
Supervisor Mike Timmons said the DNR's position defied reality.
"We go to the primitive campgrounds and there's a dock and there's one viewing corridor to the water," Timmons said. "You go up in the woods, there's three or four trails going into the woods onto that one viewing corridor. Is that illegal? That's DNR primitive campgrounds."
The trail would be a walkway, Jennrich replied; Timmons said, "Numerous walkways."
Holewinski pointed out that NR115, the shoreland zoning administrative rule, references "walkways plural."
"It doesn't say a walkway," he said. "It says walkways plural. So you get to pick and choose which one of these you do. It benefits you and then that's the way you go, right?"
Jennrich reminded Holewinski that Oneida County legal counsel would say - and Mike Fugle has - that the statute controls, not the rule.
Timmons said that restrictions that make people go around the house or through the house don't make any sense.
"You can't have a walkway around your house to get to the lake," he said. "You have to go through the basement to get to the lake? You go back upstairs to go to the lake and go around?"
That's why the county is looking at multiple walkways, Jennrich replied. For example, he said, the county is always criticized because people always come out the front of the property.
"But let's say the home is 67 feet from the ordinary high water mark and everyone wants to not track sand through the house, not track dirt through the house, not have all the rug rats coming through the house," he said. "So they have a walkway around the side. They have walkways within 75 feet. So basically we looked at it as a structure and it couldn't be done because we only allowed one walkway. So we were always criticized for interpreting the ordinance too rigidly."
On the other hand, Jennrich said, the county thought other counties were allowing multiple walkways, and so that's why it included a diagram to show multiple walkways.
" ... We were going to say one access or one walkway through one access and viewing corridor, but we were looking at now multiple walkways through that access and viewing corridor that someone wants there."
Technically, Jennrich said, what the DNR is saying that even if you have a thousand feet of shoreland, you can have only one walkway.
Holewinski again argued that the statute did not specifically limit walkways to one.
"The Wisconsin statute doesn't say, it doesn't go into specifics and say you're only allowed one," he said. "It doesn't say you cannot have more than one. So the definition of 'an' is one, huh?"
'A', 'an,' 'uno,' 'one,' Jennrich replied: "You are only allowed one walkway, one access and viewing corridor. That is the DNR's statutory interpretation."
The thing is, Holewinski said, when the law changed years ago and the county began to allow multiple access and viewing corridors, the county questioned it and checked into it and the interpretation was different back then.
Fresh eyes
At this point in the discussion Mike Timmons recalled that the committee had previously discussed the idea of getting outside counsel, specifically someone like private attorney Larry Konopacki, who worked at the Wisconsin Legislative Council when the shoreland statutes were being drafted.
"And I think that's what we should do because we're going to beat this up," Timmons said. "We believe what we're doing is right. The gentleman with the DNR [shoreland specialist Dale Rezabek] says we are doing it wrong. That's his opinion. Let's talk to somebody that was part of writing this thing because I'm sick of doing the same thing again and again and again."
Holewinski agreed.
"I mean we could sit here, and we're analyzing it, and I know what we were told years ago when that got changed," he said. "And now the interpretation has changed, and they're going to say, 'No it hasn't changed,' but I know we asked these questions when we created the multiple viewing corridors. We didn't just make that up."
Jennrich did mention that a recent statutory change had been enacted and perhaps that's where the language went from plural to singular, but he would have to check it.
That took place a few years ago, Jennrich said, when the committee sent a letter to state Sen. Mary Felzkowski (R-Tomahawk) and to state Rep. Rob Swearingen (R-Rhinelander) requesting statutory changes to, among other things, allow bridges within the setback because, with the forestry department, every bridge required a variance.
However, a review of that bill shows that the language regarding "a viewing corridor" did not change.
Even so, supervisor Mike Roach said, the department's own administrative rule says 'stairways' plural, and thus the DNR's new interpretation was ripe for a challenge.
"So that even though the law trumps the rule, the intent in the court is that their rule is what they said they wanted," Roach said. "That's the DNR rule. It's the state law. So therefore it could be challenged, and I think that that would look like we would have an advantage to say we are doing things right because their own rule says walkways and stairways."
Clueless
Holewinski marveled that multiple counties had allowed multiple access and viewing corridors for years and yet somehow the DNR did not know about them.
"Karl, when we have a permit, and the DNR says they are unaware that the counties are doing this, isn't it the responsibility of the DNR to review permits for compliance?" he asked.
Jennrich said yes, that the DNR is supposed to make sure the county is consistent.
"And so how many years has this been?" Holewinski asked. "And then they say, 'Well we were unaware how many counties have been doing this.' And they were unaware of the Pelican River thing [of local ordinances opposing the Pelican River Forest easement purchase]."
Assistant zoning director Todd Troskey said there had never been an auditing process put in place for NR115.
"We get audited for septic systems by DSPS [Department of Safety and Professional Services] but there's never been an auditing system set up for NR115," Troskey said.
Holewinski said the DNR was trying to slough off its own dereliction of responsibility by making Oneida County look like a snitch for revealing practices in other counties.
"For them just to come down and say, 'Well, we didn't know all these counties were doing this, therefore Oneida County squealed on them, and now we're going to force it down on everybody,' wasn't it their job?" he asked.
How many years have we been doing this? Holewinski asked again.
"Well I can say we've been doing this forever," Jennrich said. "Since 2000."
Holewinski pressed on.
"And they had no idea this was going on?" he asked.
Holewinski returned to the idea of hiring outside counsel. Timmons agreed, saying things were only going to get worse the deeper the committee dug into the language. Almekinder said the committee had already agreed to the changes that needed to be made.
"We can keep going over this but we've already agreed on this," Almekinder said.
Jennrich said the committee had three options: Take comments made by the public at a recent public hearing and make modifications; forward the proposed ordinance on to the county board as is; or hire outside counsel to review or assist them.
Holewinski said the third option was his preference.
"I think personally what I'd like to do is see if we can get outside counsel to come, go through this ordinance with us, and tell us, do we have a fight?" he said. "Can we stand on our feet for this?"
Another issue was clear cutting in the viewing corridor and that sparked some discussion about practices in other counties as well.
Then Timmons made a motion that the committee look into outside counsel to help the committee finish the ordinance amendment.
During discussion, Holewinski said he would prefer hiring Konopacki if possible.
"He was the legal counsel for legislators [during the shoreland rewrite] and we participated with him at a few meetings where he represented legislators at those meetings," he said. "So he would certainly know the intent of what the legislators wanted back then. And he's in the private sector."
The motion passed unanimously.
Richard Moore is the author of "Dark State" and may be reached at richardd3d.substack.com.
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