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| 7/10/2007 8:51:00 AM | Email this article • Print this article | 'Impervious' could become a new dirty word
Nonconformity goes by the wayside in shoreland proposal
News analysis
With public hearings set for this month across the state, including in Rhinelander, the Department of Natural Resources has unveiled its latest - and, it says, simpler, fairer and improved - proposal for revising the state's shoreland zoning code, the by-now famous NR115.
On first read, the proposed revisions do seem to show an agency in compromise, and at least one dirty word has gone into the trash bin of history: the idea of nonconformity. Specifically, owners of existing structures within the 75-foot setback from the ordinary high water mark will now be allowed unlimited maintenance and repair.
Still, questions remain about the agency's real intentions, and whether one dirty word will be replaced by another, namely, that of "impervious surfaces."
Indeed, regulating all structures within 300 feet of the ordinary high water mark based on their amount of impervious surfaces rather than on a 50-percent rule for nonconforming structures (limiting repairs and reconstruction to 50 percent of the structure's current equalized value over its lifetime) represents the most sweeping change in the new proposal.
DNR secretary Scott Hassett said the old way of regulating nonconforming structures - those that no longer met setbacks and other state standards - was simply inequitable.
"In certain situations," he wrote in an April 23 memo to the Natural Resources Board, "reduced setbacks or improvements to nonconforming structures should not require a variance."
The new DNR
So, he said, the department had changed its way of thinking.
"One major shift is present in the department's decisions to regulate structures based on impervious surfaces," he wrote. "This shift in policy eliminates the traditional nonconforming regulations and is based on past concerns raised by counties, comments received by the public at listening sessions and public hearings and direction received from the Natural Resources Board when ch. NR118 was approved."
In the past, Hassett wrote, the goal of regulating nonconforming structures was to bring about ultimate compliance with the shoreland zoning ordinance, a goal that in most cases required the removal of existing structures within 75 feet of the ordinary high water mark.
"This proposal recognizes that these structures usually were built in compliance with the standards in place at the time of construction, and property owners may have substantial investment in the improvements on their property," he wrote. "This proposal still has the goal of ultimate compliance, but recognizes that the timeline for compliance has been considerably extended in exchange for a vast majority of properties, not just one subset, limiting impervious surfaces and subsequent runoff to our lakes and rivers."
A limit on hard surfaces
Under the proposal, the ordinance would establish standards that cap the amount of hard surfaces, such as roofs, patios, and paved or gravel driveways, allowed on a lot and set a threshold level that would trigger requirements for property owners to take mitigation steps to control water runoff and habitat impacts.
For property owners wanting to build a new structure, for example, the cap would be 20 percent and the threshold or trigger, 10 percent. For owners of existing structures who want to expand that structure or add a patio or other hard surface, the cap would be 20 percent and the trigger 15 percent.
For a so-called nonconforming structure - one sitting closer than 75 feet to the water - the owner would be given the right of unlimited maintenance and repair, but, just as with any other existing structure, not more than 20 percent of the property could be covered by impervious surfaces, and the owners would have to "mitigate" if the hard-surface cover reached 15 percent.
Specifically, mitigation means the property owners would have to ensure that a certain proportion of rainfall would soak into the ground rather than run off into the water, and it could involve a variety of methods, from installing infiltration basins, establishing rain gardens, restoring plantings to the area, maintaining trees and plants by the water or reducing the total amount of impervious surfaces on the property.
Individual attention
Each mitigation requirement would be developed site-by-site and case-by-case, using performance standards the agency is still developing.
Establishing run-off limits on particular properties - an equation that will take into account soil type, distance from the shoreland, and the particular proposed project itself, including its size, the amount of hard surfaces involved and the number and type of trees and shrubs left intact - rather than using an arbitrary distance from the ordinary high water mark only makes sense, says the DNR's watershed management bureau chief, Russ Rasmussen.
"It's been 40 years since current rules were put in place and development has changed on the waterfront from a small cabin on the shore to larger, extensively landscaped year-round homes and condominiums," Rasmussen said. "This newer style of development has increased runoff entering lakes and decreased the habitat critical for fish and wildlife. We've seen water quality worsen, evidenced by blooms of toxic blue green algae and habitat decreased for loons, songbirds, fish and frogs so we need changes in the minimum standards for shoreland development to address problems not envisioned 40 years ago."
According to Toni Herkert, the policy analyst leading the revision, the proposed rules are shorter and simpler than the version the DNR took to public hearing in the summer of 2005 - a set of proposals that generated so much controversy it sent the agency back to the drawing board.
"We tried to simplify it and focus on what is needed to obtain our goals of improving water quality and providing more natural habitat," Herkert said. "We've also provided greater flexibility for counties to craft their shoreline zoning ordinances based on local needs."
More flexibility within 75 feet?
In addition to regulating structures based on impervious surfaces, the proposed rule would require a minimum lot size of 20,000 square feet for new single-family homes. Current rules allow smaller lots for structures with sanitary sewers instead of septic systems. Counties would be required to develop lot size standards for multi-family residential development, campgrounds, and mobile home parks.
The requirements would also tighten the trigger for land division review, which would be changed from three or more lots to the creation of one or more lots, a change the agency says is necessary to ensure that all lots have a compliant building location.
And, while the 75-foot setback would be retained, the new rules would allow for construction closer to the water of new on-land boathouses 250 square feet or smaller, gazebos, decks and patios, utilities, flagpoles, satellite dishes, utilities and other structures. Current rules exempt only piers, boat hoists and boathouses.
Give-and-take, or take-and-take?
Despite the apparent give-and-take of the new proposal - the more liberal allowance for accessory structures within the setback and the concession to unlimited maintenance and repair on existing structures - the proposal continues to generate controversy, as the DNR acknowledged in its decision that there was no need for an environmental impact statement before adoption of the rule.
"Specific to NR115 and the rule revision process, there will continue to be some controversy surrounding components of the rule such as shoreland vegetation and the new requirements for impervious surface standards and mitigation," the decision stated. "Most of the uneasiness is derived from the fact that most of the concepts are new to shoreland zoning. They can work and have worked in counties around the state, however, here they are required as minimum standards for all counties."
The new rules, for example, will extend the DNR's regulatory reach farther beyond the 75-foot setback than it has ever been. And questions are being asked, too, about the formulas the agency will apply in determining on a case-by-case basis the potential impact on the environment.
How subjective will they be? Will they lead to even more inconsistent decisions on similar properties? Will the models be so stringent as to require exorbitantly expensive mitigation on existing nonconforming properties - a strategy that could doom nonconforming properties anyway, despite the new flexibility on repair and maintenance?
Indeed, Hassett's own language seems to hint that maintaining structures closer to the water rather than becoming compliant will involve substantial expense, when he says, "Property owners are given the ability to decide whether they wish to maintain the existing structure closer to the water or build a new structure in compliance."
That decision would be a no-brainer unless there is a price to pay for staying closer to the water.
The revisions - which maintain a distinction between unincorporated areas and incorporated areas and apply only to the unincorporated areas - have become hopelessly outdated in the years since lawmakers created the shoreland management program in 1966 and required counties to adopt shoreland zoning ordinances that met or exceeded the minimum state standards, according to Mary Ellen Vollbrecht, DNR chief of habitat protection.
Since then, she says, the number of dwellings on northern Wisconsin lakes of all sizes has increased an average of 216 percent, and as much as 800 percent on lakes 400 to 900 acres, the second most common size of lakes, she says.
As the density of shoreland development has increased, the storm water running off hard surfaces such as roofs, patios and driveways has increased and led to decreasing water quality in many places, Vollbrecht says. At the same time, she says, scores of studies have shown that as new residents move in, they tend to remove the native plants and trees in and near the water that fish and wildlife need and replace them with grass, sand beaches and riprap.
And so, armed with those arguments, the agency will take its latest draft to the public in a revision effort that has been ongoing since 2003. In the Northwoods, the hearing will take place at 4:30 p.m. Wednesday, July 25, at the Rhinelander High School auditorium, located at 665 Coolidge Ave. in Rhinelander.
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Reader Comments
Posted: Tuesday, August 14, 2007
Article comment by:
Mike Kasel
I just tore down a non-conforming structure...now I could have left it, and done the repairs I would have liked to do which were over the current amount allowed?
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