DNR says no permits needed for major shoreland alterations

A state Department of Natural Resources project to provide overflow parking at the Stack’s Bay boat landing in Woodruff is well underway, with approximately 100 trees cleared and at least 20,000 square feet of sensitive land inside the state’s heavily regulated shoreland zone subjected to unregulated grading and prep work.

‘Unregulated,’ as in lacking county zoning permits, which the agency has not applied for and says it doesn’t need. So far, the county zoning department has seemingly taken the state at its word.

All of which begs the question: What makes Department of Natural Resources (DNR) officials and its project contractors think they don’t need local zoning permits, and why hasn’t the county demanded them?

As The Lakeland Times has previously reported, the state and its contractors have set a May 15 deadline to finish what will be a gravel parking lot with 12 parking stalls to accommodate vehicles with boat trailers.

According to Lynn Wright, a DNR park manager and water/recreation manager for the Northern Highland–American Legion State Forest, it’s a not a terribly huge project. Nonetheless, Wright told the Times last week, “everything’s been taken care of as far as the environmental analysis. That all has to be done a long time before it can be approved.”

So do zoning permits, when they are required, and the question emerging now is whether state agencies are required to comply with local shoreland zoning ordinances when they build public access facilities.

As of this writing, as construction proceeds, the question remains unanswered. 

Confusion yields to bureaucratic clarity

On one level, emails late last year from the project contractor to revealed uncertainty at the time about what permits would be needed.

Civil engineer Brandon Robaidek sought clarity in a September 30 email to the town of Woodruff: “Lastly, will this recreational parking project need any town or county zoning approvals?”

That question made its way to county zoning, and, on October 8, assistant zoning director Todd Troskey asked Robaidek for more information. After receiving it, Troskey told Robaidek to just go ahead: “Since this is a DNR project, there would be no permit requirements through this department.”

Troskey did not indicate any reason for his position. However, emails from early 2024 could suggest why Troskey gave Robaidek a green light for a project with no permits: State officials had already told him, and in no uncertain terms, they did not apply for local zoning permits or seek county approval for local zoning projects.

For example, in a February 29, 2024, email to the DNR’s Joseph Fieweger, Troskey had asked the DNR to submit permit applications for a Lake Tomahawk boat ramp replacement project  before being shut down by state officials.

“Attached is a zoning permit application and shoreyard alteration permit application,” Troskey wrote in reference to the boat landing replacement project. “There are no fees associated with the project (government agency), however, the applications need to be completed. This would be similar to the ADA project on the Willow, that I am working with Darren Vandenberg on, in regards to the permit requirements.”

Troskey told Fieweger to complete the applications, scan them, and email them to him.

“I will preliminarily review the applications, and add any changes that may be needed, and get that back to you prior to sending the originals, so we can make this as seamless as possible,” he wrote.

Troskey tried to get the DNR to lay out all the details about what the agency was planning in the shoreland zone.

“[For] ….. the shoreyard alteration permit (SAP) application, even though we do not have authority below the OHWM, please indicate what will be replaced below the OHWM as well, such as the planks in the water,” he wrote.

That was apparently enough to set off warning bells inside the agency, and Fieweger quickly got other officials involved. The DOA soon contacted Troskey to set him straight about the state’s absolute authority to replace the boat ramp without any permits or approvals from the county.

“Thanks for taking the time to chat this morning,” DOA project manager Peter Kolaszewski wrote in a March 1, 2024, email to Troskey. “As mentioned, I have attached the plans for the Tomahawk Lake DNR boat ramp replacement project that DOA and DNR are working on. As I stated, DOA does not apply for local agency permits. I’m sending plans for your file and offer a chance to comment, however, we are not seeking approval.”

In an email to the Times last week, county zoning director Karl Jennrich said it had always been his belief that state agencies did not need local zoning permits. In the January 15 email, Jennrich said staff had reviewed the project for permits that normally apply in this kind of project.

“Staff believed that if WDNR were replacing existing boat ramps and not increasing the amount of fill, floodplain permits would not be required,” Jennrich wrote. “Boat ramps and associated parking are allowed in floodplain-water dependent use.”

However, Jennrich wrote, emphasizing that he had not actually looked at the plans, other permits might typically be required.

“Without looking at the plans, they may have required, due to the amount of excavation, Oneida County would require a shoreland alteration permit,” he wrote. “Without looking at the plans, if they would be replacing existing pavement or expanding pavement we would be requiring a zoning permit, primarily to figure out impervious surface and associated mitigation.”

But the fact that state agencies were doing the project made a difference, Jennrich wrote.

“Bottom line, it is a state of Wisconsin project,” he wrote. “I have always been led to believe and even in this instance, the state of Wisconsin is not required to get local permits.”

Oh wait …

But is that true? The answer may depend upon whom you ask.

For starters, the Times has asked Jennrich and the county for the authority they are using — county code, case law, administrative rule, or state statute — to support Jennrich’s belief that state agencies are exempt. 

Jennrich said he would be speaking with county corporation counsel, but he pointed to a March 30, 2006, opinion from then corporation counsel Larry Heath that cited a 1993 attorney general’s opinion in concluding that Oneida County could not regulate a DNR boat landing project going on at the time.

“It was Larry’s belief that based on [the attorney general’s opinion] the county could not regulate the reconfiguration of the existing DNR Crescent Lake Boat Landing,” Jennrich told the Times.

The Times has asked the same question of Kolaszewski, who replied that the inquiry was passed on to its facilities division: “Somebody from DOA DFD (facilities development) leadership will be responding to your inquiry very soon.”

All that said and asked for, there is conflicting evidence in the field, not to mention the certainty of interpretive clash.

For one thing, Jennrich also included 2014 correspondence from attorney Bill O’Connor to then corporation counsel Brian Desmond about a DNR boat landing project on Mercer Lake. O’Connor represented the Mercer Lake Association. O’Connor called attention to the legislature’s application of zoning laws to state projects and cited that law’s other specific exemptions from local ordinances such  a corrections facilities. 

He also observed that then DNR secretary George Meyer had asked for the 1993 attorney general’s opinion after failing to get the legislature to exempt DNR boat launch facilities from local zoning authority. As such, O’Connor asserted that claiming an exemption from local zoning permits would be legally risky.

“ … I wanted you to be aware that such facilities are not included among the statutory exemptions from county zoning authority,” O’Connor wrote. “The county zoning officials may or may not agree with the 1993 attorney general’s opinion. But it is by no means clear that an ‘exemption by implication’ would survive court review.”

If the issue at Mercer Lake arose, O’Connor told Desmond, then the Mercer Lake Association “asks that you advise the planning and zoning department that a conditional use permit is required for development of a boat launch facility in the single family residential district and should be processed according to the established procedure and standards for the consideration of conditional uses.”

So the DNR’s bid to attain a statutory exemption for local zoning failed. Then, too, the state’s model shoreland zoning ordinance, which it encourages counties to adopt, explicitly places state agencies under local zoning authority.

“Unless specifically exempted by law, all cities, villages, towns, and counties are required to comply with this ordinance and obtain all necessary permits,” the model ordinance states. “State agencies are required to comply when s. 13.48(13), Stats, applies.”

The model ordinance reiterates the existence of local regulatory authority in a separate provision.

“The provisions of this chapter apply to regulation of the use and development of unincorporated shoreland areas,” the model ordinance states. “Unless specifically exempted by law, all cities, villages, towns, counties and, when s. 13.48 (13), Stats, applies, state agencies are required to comply with, and obtain all necessary permits under, local shoreland ordinances.”

So the central question is, when does that statutory provision — s. 13.48(13) — apply? Here is what the relevant portions of that statute states:

“[E]very building, structure or facility that is constructed for the benefit of or use of the state, any state agency, board, commission or department, ….. shall be in compliance with all applicable state laws, rules, codes and regulations but the construction is not subject to the ordinances or regulations of the municipality in which the construction takes place except zoning, ……”

In other words, when constructing structures “for the benefit of or use of the state,” state agencies do not have to comply with municipal ordinances or regulations, except when it comes to zoning.

So taking the model ordinance and state statute in tandem, when a state agency constructs a structure in the shoreland zone for the benefit or use of the state, it can forget about most municipal ordinances — “specifically exempted by law” — but it must apply for and receive zoning permits.

On its face, one would think the DNR would have to get county permits. So then why is the DOA adamant they don’t need those permits?

The answer to that takes us back to 1993 and to that attorney general’s opinion referenced by Heath, O’Connor and others on that exact question. In that opinion, the attorney general — future Democratic Gov. James Doyle — looked at the above-referenced statute, with almost identical wording, and came to an entirely different conclusion.

The DNR, Doyle wrote, is exempt from local zoning laws. The question asked was whether construction at public-access sites by DNR “to afford the general public access to navigable lakes and streams” was subject to local zoning requirements.

No, Doyle replied.

“In my opinion, DNR is not subject to local zoning ordinances with respect to its construction of any building, structure or facility whose purpose is to assure the general public access to outdoor recreational areas, rather than to facilitate the internal operations of DNR as a state agency,” he opined. “Construction of state buildings and facilities is a matter wholly of state concern and not subject to municipal regulation except as expressly provided by statute.”

In other words, Doyle believed that the statutory phrase “any building, structure or facility that is constructed for the benefit of or use of the state or any state agency” specifically means use for its own operations, such as an office building, and does not include the construction of something for the use and benefit of the public, such as a boat landing or boat landing parking lot.

It remains to be seen what the state will present as reasoning for their exemption claims, but any attempt to invoke Doyle’s opinion — as Heath did — could prompt a legal challenge, primarily because the model ordinance and the statute make no explicit distinction between construction for internal agency use and construction for public access.

The unresolved legal tension is whether the attorney general’s interpretation — limiting “benefit or use of the state” to internal operations — controls over the plain language of the statute and the state’s own model ordinance.

One interpretation would exempt nearly all DNR public access projects from local zoning. The other would require zoning permits for virtually all state construction in shoreland zones, except for narrow statutory exemptions.

In between is a gaping legal chasm and a vigorous debate.

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