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Lawyer: AG opinion on shorelands missing key statutes that reversed court decision

By: Erika Strebel, [email protected]//January 8, 2019//

Lawyer: AG opinion on shorelands missing key statutes that reversed court decision

By: Erika Strebel, [email protected]//January 8, 2019//

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Last week, Attorney General Brad Schimel released a legal opinion involving a county’s authority to zone shorelands within a town.

But the opinion is incomplete, according to experts in environmental law.

“This AG’s opinion doesn’t take into account all of the underlying law that’s applicable to the analysis of this question,” says Larry Konopacki, a long-time environmental law attorney in Madison.

Oneida County Corporation Counsel Brian Desmond had asked Schimel in 2017 whether county officials could impose general zoning regulations on shorelands falling within the jurisdiction of towns that have not adopted the county’s general zoning ordinance.

Schimel answered last week in the affirmative, citing the 2013 Court of Appeals decision in Hegwood v. Town of Eagle Zoning Board of Appeals. That case held that towns have no authority to zone shorelands.

Unhappy with that outcome, state lawmakers responded by passing Wisconsin Act 41, which allows towns to pass their own shoreland zoning ordinances as long as the resulting regulation does not govern matters already dealt with by a county’s shoreland-zoning ordinances. The legislation was just one of many changes made recently to the state’s shoreland zoning laws.

Schimel’s opinion doesn’t analyze, or even mention, the effects of Act 41, said Konopacki, who works at Stafford Rosenbaum.

“I think that the decision is questionable based on the lack of analysis of the legislature’s response to the Hedgwood case,” he said.

State statute defines shorelands as land that’s within 1,000 feet of the ordinary high water mark of a lake or land that’s within 300 feet of the ordinary high water mark of a river or stream.

The state Legislature enacted shoreland zoning to require local governments to regulate shorelands using standards set by the state Department of Natural Resources.

The Madison attorney Matt Fleming of Murphy Desmond noted that Schimel’s opinion could expand the scope of regulation for people who own shorelands.

“A property owner would think, ‘As long as I meet all these (standards), and as long as I follow whatever is in the shoreland zoning code, I can do what I want,’” Fleming said. “Now the county is saying, ‘No, you’re limited to single- family use.’”

Konopacki agreed with Fleming that property owners could be exposed to more regulation as a result of Schimel’s opinion and said the opinion may also have consequences for towns.

Konopacki says that Schimel’s opinion appears not only to allow counties to apply general zoning regulations to shorelands found in towns that have no zoning of their own but also to allow a county to step in and zone shorelands even in towns without their own zoning.

“It’s basically letting counties exercise zoning that would trump a town’s zoning,” he said. “That would affect lots of towns across the state.”

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