River News: Our View

It is apparent these days in contemporary America that there is one consistent standard, and one consistent standard only, and that is the existence of an explicit double standard: Democrats and big government bureaucracies can never be held accountable for their wrongdoing, as average citizens are, and government players can play by their own rules while applying stricter regulations for the rest of us.

If anyone needs a little primer, let’s recall that both former White House chief strategist Steven Bannon and former White House trade advisor Peter Navarro were sent to jail by Democrats for congressional contempt for refusing subpoenas to testify before that body.

On the other hand, in 2012 when Congress held then-attorney general Eric Holder in contempt, the Department of Justice — surprise — refused to prosecute.

We’ll have to wait to see how Hillary Clinton’s refusal to testify before Congress plays out, but the pattern always holds. Democrats and progressives are never held accountable by the system for anything, even when mountains of evidence point to serious violations and other crimes, while Republicans have been indicted and persecuted for made-up insurrections and white-collar schemes that — even if they were true — involved no victims. 

Democrats get away with everything. The same holds true in most instances when it comes to rules and regulations. The government pretty much does what it wants, while it tells us to do what it wants us to do. It’s a classic case of “Don’t Do as I Do, Do as I Say Do!”

Take, for instance, the DNR-DOA’s Stack’s Bay boat landing parking lot project in Woodruff. It’s a fine example of a rogue agency just doing whatever it pleases in the shoreland zone without having any county zoning permits to bog it down. They’re out there clearing more than a hundred trees and grading 20,000 square feet of sensitive land for their parking-lot-to-be without so much as a silt fence.

Who knows what else is going on? We certainly don’t, and the county certainly doesn’t, because the state says it doesn’t need local zoning permits or any local approval. No oversight. No accountability. Just shut up, citizens, and get out of our way or we’ll literally bulldoze you over.

It’s not that the project isn’t a worthy one or isn’t being pursued responsibly. It’s that nobody outside the DNR and DOA knows whether that is the case because the DNR has closed the doors on any local input or on following any permitable standards. Such as shoreland standards meant to protect lakes, wetlands, and public waters from exactly this sort of disturbance.

Never mind that, as we report today, the state’s model shoreland zoning ordinance explicitly requires state agencies to comply with and obtain all necessary permits under local shoreland ordinances. For the citizenry, such a directive is mandatory under penalty of law if we violate it. For the DNR, it’s apparently a suggestion.

It’s not that the legal framework is murky in the least; it is not. The statute clearly requires state agencies to follow local zoning laws when the state constructs a building, structure, or facility “for the benefit of or use of the state.”

Indeed, the state’s model shoreland ordinance is so intent on making the point about state compliance with local standards that it repeats it twice, in language so blunt it borders on scolding: “State agencies are required to comply with, and obtain all necessary permits under, local shoreland ordinances.” 

Pretty clear, eh? To say it a practical way, at Stack’s Bay, the state is constructing a parking lot that it is using to provide parking for a boat ramp. So get your permits, fellas.

As one might expect, the state’s bureaucrats and liberals have raced to the rescue, apparently using a 1993 attorney general’s opinion as cover for their lawlessness. Now, for starters, it’s worth noting that this opinion was written by none other than former Democratic Governor Jim Doyle when he was attorney general. He later became the governor best know for ordaining rogue behavior by the DNR as its royal right.

So, in this 1993 opinion, Doyle gaslights us all by explaining that what the statute really means is the exact opposite of what it says, and that state agencies are exempt from those zoning laws, at least for such things as mucking up the state’s shoreland areas.

Specifically, Doyle concluded that the DNR was exempt from local zoning when constructing facilities meant for public access rather than internal agency use. His opinion sliced the statutory phrase “benefit of or use of the state” into two categories: construction for internal operations such as office buildings (zoning applies) and construction of facilities “to assure the general public access to outdoor recreational areas (zoning does not apply).”

How clever and convenient.

But here is an inconvenient truth for the DNR. Doyle’s spilt scheme that he concocted was never written into, articulated by, or even hinted at in the statute. Nothing in section 13.48(13) draws that distinction. The law does not say “internal use.” It does not say “office buildings.” It does not say “except boat landings.”

Not only that, but Doyle only issued his opinion about the exemption after the DNR explicitly asked the legislature for an enumerated exemption for local zoning and failed to get it. That suggests that Doyle’s opinion contradicts legislative intent, making it even shakier.

What the statute actually says is “every building, structure or facility … for the benefit of or use of the state.” A public boat landing is plainly a facility constructed by the state for the benefit of the state  —  which operates it, maintains it, insures it, and controls it — and for the use of the state, which administers public access as part of its statutory mission. The statute does not distinguish between facilities used by state employees and facilities constructed for public use.

The model shoreland ordinance even goes out of its way to stress that there must be specific statutory exemptions from local laws, such as building codes and the like found in 13.48(13), and goes even further — twice — to stress that zoning is not one of those exemptions. 

The model ordinance even lists those specific exemptions, for example, the construction, reconstruction, maintenance and repair of state highways and bridges by the Wisconsin Department of Transportation.

The bottom line is whether the attorney general’s interpretation — limiting “benefit or use of the state” to internal operation  — controls over the statute’s plain language and the state’s own model ordinance. The former interpretation would exempt nearly all DNR public access projects from local zoning, while the latter would require zoning permits for virtually all state construction in shoreland zones.

The state’s position amounts to a claim of sovereign immunity from local zoning, not because the law grants it but because no one has seriously challenged it.

Of course, the county’s mealy-mouthed zoning department wasn’t going to be issuing any challenges. They just surrendered on the spot. When the DNR’s contractor asked last fall whether permits were needed, the assistant zoning director, Todd Troskey, replied simply that because it was a DNR project, “there would be no permit requirements through this department.” 

His immediate capitulation would have made the French 10-second surrender to the Nazis in World War II look courageous. Sure, as our story reports, one corporation counsel embraced the attorney general’s opinion, but in fact another had characterized it as a “gray area.”  

That gray area should be challenged by the department because if the attorney general’s theory is correct, nearly every DNR public-access project in Wisconsin would be exempt from local and shoreland zoning, both of which would now be used as weapons to target the civilian population, otherwise known as taxpayers and property owners.

Shoreland zoning exists for a reason. It exists because lakes are fragile systems, a fact the DNR lectures and hectors about but yet ignores when it comes to its own work.

Over time, the DNR has proven that it is one of the worst stewards of the land and water. It has wreaked havoc in forest management and allowed urban watersheds to be polluted even after they were degraded, while cracking down on northern Wisconsin, which has kept its natural resources pure and pristine.

Wisconsin has spent decades building a shoreland zoning system based on the idea that no one — private landowners, developers, towns, or counties — gets a free pass. If this is the hill the DNR wants to die on, and they get away with their interpretation, the legislature needs to  enact a law clarifying what the law already intends — namely, that agencies are not above the law.

They are especially not above local laws.

We call on the Department of Administration and the DNR to suspend construction until they have proper permits. Second, the Legislature should clarify section 13.48(13) explicitly.

If the state truly believes it should be exempt from shoreland zoning for recreational facilities, it should say so openly and defend it in public hearings. If it does not, then agencies must comply like everyone else.