County, DNR still don’t agree on boathouse stairways

It could boil down to a matter of agreeing to disagree, as the state Department of Natural Resources and Oneida County still don’t see eye-to-eye on having external stairways to access a boathouse rooftop deck — the county allows them; the DNR says they are illegal — but the county’s outside counsel said last week that the county is on solid legal ground.

And, said attorney Larry Konopacki, whom the county hired to navigate the legal thicket between the county and the natural resources agency (DNR), even if the DNR tries to assert its position, it would take a formal process in which the county would have a chance to defend its position.

Konopacki made his comments last week in an update he provided on proposed draft language to the county’s shoreland ordinance, in which he offered up some new proposals for the committee to consider along with his analysis of the committee’s current draft.

The county has particularly been at odds with the DNR over the stairs. While the zoning committee believes it’s only common sense to allow a stairway to access a legal flat-roof deck, the DNR views such stairways through a regulatory lens, that is, as a non-exempt accessory structure in the shoreland zone.

And while Konopacki thinks the county can prevail legally, he says the agency can’t just act by fiat to declare the ordinance provision invalid.

“I wanted to just mention the process,” Konopacki said to the committee. “The way that the shoreland zoning system is set up is, the county writes an ordinance. DNR is going to review it. They’re going to send back comments. They’re going to tell you [that] if you pass [this], there’s three or four things they don’t think is allowed. They periodically review also, and you’re going to get those comments.”

The thing is, Konopacki said, if the DNR ever decided to go after stairs on the side of the boathouse, they would have to follow a formal public procedure.

“If they don’t do anything about it, it’s the ordinance,” he said. “It’s the law of Oneida County. To do something about it, they have to hold a public hearing and rewrite the ordinance and send it to the county and say, ‘we’re adopting this for you,’ which would include a change on some of these things. At that point the county can decide whether or not to appeal that decision.”

It is isn’t self-actuating, Konopacki said, where the DNR simply writes a letter that the ordinance is no longer in effect.

“It’s really on them to take the affirmative steps that they want to alter what you’re doing with your ordinance,” he said.

Desperately seeking flexibility

The changes to the county’s ordinance were necessitated by statutory changes in 2021. The county had prompted some of those changes, Oneida County zoning director Karl Jennrich told the committee at the meeting. 

“Basically the committee wanted to have bridges and public and private boat launches exempt from the 75-foot setback,” Jennrich said. “The committee also wanted to see some changes related to access and viewing corridors.”

After various statutory changes (though not for the boat launches), Jennrich said, the department received a letter in 2022 from the DNR requesting a revision of the shoreland ordinance. That kickstarted a public comment process, including a meeting in Minocqua in which landscapers called for various revisions, including allowing retaining walls within 75 feet of the ordinary high water mark and streamlined permitting for landscaping.

But the county and the DNR found themselves at loggerheads on some points, and the county decided to bring in Konopacki.

The latest proposal incorporates many of the practices the county and the public wanted to see, including exterior stairs for boathouse deck access.

“[This proposal removed] the term ‘viewing area’ and replaces it with the term ‘access and viewing corridor,’” Jennrich summarized. “It would allow multiple walkways for a homeowner to access a lake, and it allows both a walkway and motorized lift.”

Jennrich said he had correspondence showing that other county ordinances do have allowable walkways and a motorized lift. At the moment, Oneida County does not allow both.

“This proposal would allow stairs to access decks that are currently allowed by code to the top of the boathouse, and it would allow a four-foot apron on the lakeside of the boathouse between the ordinary high water mark and the actual boathouse,” he said.

The committee also listened to local contractors and attempted to streamline shoreland alteration permit provisions, he said. The major change is that a separate alteration permit wouldn’t be needed in all cases.

“Basically what this does is require your own erosion control provisions as part of a [building] permit that has been issued,” he said. “For example, a new home.”

Jennrich also said definitions had been added modifying the definition of footprint, a version of which is currently used in the Lincoln County zoning ordinance, and changes were made to setback averaging.

Since contracting with Oneida County, Konopacki and Jennrich have had multiple meetings with the DNR. Basically, Jennrich reported, Konopacki and the department articulated the positions of Oneida County and they articulated the position of the DNR and the parties have continued to work on the ordinance.

Konopacki analysis

At the meeting Konopacki reviewed changes he has proposed, and he also addressed a request from the county’s Conservation and UW-EX Education Committee to consider some requirements for minimum vegetation standards within the access and viewing corridor. 

Konopacki said he did not believe that was allowable.

“The only thing that we can allow, in my opinion — I’m going to be careful to say that a lot today because there isn’t a definitive court decision on this in my opinion — what you can require in that area is that it be vegetated,” he said. “It’s referred to as a vegetated buffer.”

Konopacki said he reached out to the DNR for their opinion and he said there are counties that tiptoe along the edge of requiring certain types of vegetation that might bleed into the viewing corner. 

“But it’s my understanding over all these years and all these discussions, the county can’t require planting of trees or maintenance of trees within the viewing corridor,” he said. “That’s what it’s for. You can require it to stay vegetated so water isn’t washing dirt and sand into the river or lake, but not beyond it.”

As for his draft language, Konopacki said a lot of it was language clarification — taking terms in the ordinance and making them mirror and be more consistent with state statute and with administrative code — but he also said there were some key provisions to be discussed, including an evaluation of whether the county could allow an external stairway and an external four-foot apron in front of a boathouse. 

Konopacki added that he was impressed with DNR staff in all the discussions he had with them.

“They were very constructive even on the things where we were disagreeing,” he said. “They took our explanations, they thought about them, it took a long time to get back, but this is outside their normal scope of work and they gave us very thoughtful responses, and in some cases we convinced them that something was different than what they were thinking.”

Most of the time that wasn’t the case, Konopacki acknowledged, and one area of continued disagreement was the issue of the stairs on the side of the boathouse. 

“I’m going to try not to get into all of the little detail of the legal arguments that we went back and forth with DNR, but there is nothing in code or per statute that says what a boathouse is or isn’t other than what its purpose is to be used,” he said. “That by statute provides the county with flexibility as to whether or not it wants to define a maximum width or square footage, which the county has in its ordinance.”

 Those things are not in state law, Konopacki said. 

“Those are for the county to do,” he said. “And another one of those things is, can you have a fireplace? Your ordinance prohibits that. I do think when it gets to some of the other things prohibited, like plumbing, that relates back to state law because that creates sort of a living quarters type situation, but many of those other things you’re free to do.”

Konopacki said the DNR said any stairway in the setback area was prohibited. 

“We said, ‘well what about a stairway inside the boathouse if you want to create an internal stairway to get up to your flat roof?’” he said. “And they said, ‘well that’s different. That’s part of the building.’”

So they’re making their own distinctions, Konopacki said.

“I’m fairly confident that the county can allow a stairway to be constructed on the exterior of a boathouse,” he said. 

That said, there were considerations to be made, given that the committee’s current draft allows an exterior stairway to have a maximum width of five feet.

“The way that this is set up now, in this version of the ordinance, allowing up to five feet — five feet is a pretty wide stairway actually,” he said. “You’re looking at 36 inches to 40 typically, but that additional construction would have to fit within, as drafted now [with Konopacki’s proposals], would have to fit within the minimum square footage and width of your structure.”

Konopacki’s version would thus make the stairway part of the boathouse and not an accessory structure. He did say the committee could choose to recommend to the county board that the stairways be allowed in addition to the square footage.

“But that’s not the way it’s drafted right now,” he said. ”So that’s a decision point for you if you decided to do it.”

Ditto on the aprons

Boathouse aprons fall into the same category, Konopacki said.

“Define a boathouse, what is a boathouse?” he said. 

“The ordinance allows an apron, but the DNR considers that to be a separate structure. Just like the stairway, I think the county has the regulatory authority to define the boathouse in the manner that it chooses within reason. And so those both are included and they are both part of the minimum square footage.”

That means if the county wants to allow a four-foot apron, that apron square footage — “four times however wide you are” — has to be subtracted from the maximum size of the boathouse, Konopacki said. 

Supervisor and committee member Bob Almekinder wanted to know — because the stairway and the apron must be within the maximum footprint of 720 square feet in that scenario — could the county change it so that the stairway and the apron could be outside that maximum footprint? Konopacki noted that the current square-foot limit was a discretionary choice anyway, and Almekinder said  — and the committee agreed — the draft should be changed to make the stairway and the apron above the maximum footprint.

Another issue involved the definition of a principal structure’s footprint.

“There have been some counties that have gone beyond what DNR believes should be the definition of the footprint of a principal structure,” Konopacki said. “We had a lot of conversations with the DNR about this that revolves around their interpretation of the term ‘structure’ in the state law.”

Konopacki said he did not agree with their interpretation.

“They have a number of different workarounds because they recognize their interpretation doesn’t work in certain situations like decks on the waterward side of a home, things like that, and for certain things like, for instance, setback averaging,” he said.

Konopacki proposed a new definition: The entire area of ground covered by a structure expressed in square feet, including attached appurtenances such as, but not limited to, balconies, eaves, front porches, decks, fireplaces, and chimneys. 

“So the DNR does not include, for instance, a deck as part of the footprint of a home, even if it’s attached,” he said.

Right now, Jennrich said the county looks at the main part of the structure, even with an attached garage, to be a principal structure, and the county deems a deck attached to a building as accessory, meaning that when they measure the setback, they measure to the principal versus the accessory.

Lincoln County does not differentiate, Jennrich said.

“They say it’s all part of the building footprint and so they treat it as building footprint,” he said. “So with that building footprint, you can convert a deck into living area or living area to deck. You’re just limited as to square footage if you’re closer than 35 feet, and if you’re further than 35 — to 75 feet — you still going to have 200 square feet.” 

Konopacki said that definition would be equal to the most permissive in other counties. 

“Again, it’s not something the Department of Natural Resources agrees with,” he said. “I think it’s important to talk about how the definition of footprint bleeds into this code and it does so in a number of different ways. Probably the biggest way is in terms of it changing someone’s opportunities with their property.”

Retaining walls not retained

Konopacki said the county’s bid to allow retaining walls within 75 feet of the ordinary high water mark was a no go.

“That’s going to have to be a legislative change,” he said. “There are workarounds. There’s a number of things you can do to maintain erosion control, but building a rock wall or something like that inside of whatever your setback line is, is impermissible.”

However, Konopacki said the DNR had come around on the idea of effectively ending separate shoreyard alteration permits and making them part of building permits. Under the proposed language, a shoreland alteration permit would not be required for projects, including any general erosion control, that would be directly addressed within the two-year time frame of an approved zoning permit.

“Karl talked about the duplication of the shoreland alteration permits,” he said. “That’s not something that I touched. I think what people see they’ll be happy with. The DNR didn’t like it at first, but that’s because they didn’t understand what we were doing. So we added some language to explain that it isn’t just a free-for-all. It’s only if it’s covered under your other permit, and then the only other thing that the DNR will have to address on their end is if it’s greater than 10,000 square feet and less than an acre.”

Some staff suggested that, if the county doesn’t have a shoreland alteration permit scheme in place, they may have to get permits from the Wisconsin Department of Natural Resources. 

“An employee brought that up to me, but my thought was we still are issuing a permit,” he said. “It is going to be called a general permit or zoning permit and erosion control devices or control will be placed on that permit and they may be acceptable. Even though it’s not a separate permit, it’s still a permit that addresses erosion control.”

Konopacki proposed changes to setback averaging for properties closer than 75 feet from the water.

In his proposal, for averaging for a proposed principal structure or the footprint of a principal structure that will be modified, if the closest principle structure in each direction along the shoreline exists on an adjacent lot and within 250 feet of the subject structure, and both are set back less than 75 feet, the setback for the subject structure would be equal to the average of the distances that the existing principal structures are set back from the OHWM but no less than 35 feet.

If there’s just one structure in one direction meeting the criteria, the setback would be equal to the average of 75 feet and the distance that the existing structure is set back from the OHWM but no less than 35 feet.

“So if you want to build on a property and there’s principal structures on the adjoining lots on both sides within 250 feet of the principal structure you’re going to build and they’re both less than 75 feet, you average to their setbacks to create your new setback,” he said. “There’s a similar situation if only on one side there’s a principal structure within 250 feet and closer than 75 feet.”

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