Dunn Co. shoreland zoning: should road setbacks be regulated?
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By LeAnn R. Ralph
MENOMONIE — One question that must be answered is whether road setbacks should be regulated in Dunn County’s shoreland ordinance.
Currently Dunn County is more restrictive than state statute with the road setbacks required in shoreland zoning, said Tammy Traxler, planner and zoning enforcement officer, at the Dunn County Planning, Resources and Development Committee’s December 20 meeting.
The PR&D committee began discussing updates to the county’s shoreland-wetland zoning ordinance at the December 6 meeting.
The county’s shoreland-wetland zoning ordinance was last amended in October of 2017, and since then, the state of Wisconsin has made a number of changes to state laws regulating shorelands and wetlands.
In the late 1990s, Dunn County started regulating road setbacks in the shoreland districts, Traxler said.
“Setback averaging” is allowed in Dunn County’s zoning ordinance, and while averaging was allowed in the county’s shoreland ordinance at one time, it was eliminated at some point, she said, adding that she had not been able to determine why setback averaging had been eliminated from the shoreland zoning ordinance.
Overlay district
Is shoreland zoning an overlay district? asked Mike Kneer, county board supervisor from Menomonie and a member of the PR&D committee.
Shoreland zoning is an overlay district that applies to all townships in Dunn County, regardless of whether the towns have opted into county zoning, Traxler said.
In unzoned townships that do not have county zoning, however, Dunn County does not have zoning authority to regulate the road setbacks in a shoreland district, she said.
Two recent variance requests that were related to road setbacks in shoreland areas, in the Town of Sand Creek and the Town of Eau Galle, were withdrawn, said Anne Wodarczyk, Dunn County zoning administrator.
Both requests had initially been on the agenda for the December meeting of the Dunn County Zoning Board of Adjustment.
The Town of Sand Creek and the Town of Eau Galle are both unzoned townships.
The variance requests involved two businesses that wanted to expand and are located in “hamlets.” The buildings surrounding the businesses are located close to the highway, Wodarczyk said.
Dunn County does not have a setback averaging option in the shoreland ordinance, she said.
Setback averaging is in the zoning language based on the general zoning ordinance, Traxler said.
Most townships fall under Dunn County zoning, so the zoning office has fallen back on the zoning ordinance to do setback averaging, Wodarczyk said.
Dunn County cannot do setback averaging where only the shoreland zoning applies, she said.
Setback averaging
What is setback averaging? Kneer asked.
The shoreland setback in the existing ordinance is 75 feet, and that applies to roads and driveways as well as structures, Traxler said.
Structures that were built before the setback requirement in the county ordinance were permitted to be located closer to the water, she said.
In the shoreland ordinance, if there were setback averaging, and there were structures located on either side of the structure for which a variance is required, and the buildings were 40 feet back and 60 feet back on each side, then the average setback would be 50 feet instead of 75 feet, Traxler said.
The same would apply to roads and driveways, she said.
In the Town of Tainter, for example, when the setback issue has come up, Tainter has county zoning, so setback averaging has been applied for the shoreland district, Traxler said.
The challenge is in the unzoned hamlets where the structures are seven feet from the road, she said.
Setback averaging acknowledges development patterns, Traxler said.
Options
So the options would be no setbacks at all or to allow setback averaging? Kneer asked.
There are actually three options: leave the ordinance as it is with a 75-foot setback for roads and structures; use setback averaging; or eliminate road setbacks in the shoreland zoning ordinance, Traxler said.
Keeping the setback for roads is not a recommendation then, Kneer said.
The recommendation is to remove setbacks for roads in the shoreland ordinance because the intent was not to regulate driveway setbacks in shoreland districts, but rather, to regulate setbacks from the shoreland for structures to protect the shoreland and to protect the water, Wodarczyk said.
Highway setbacks do not seem to apply to shoreland zoning, she said.
State standards
What about state standards? asked Gary Bjork, county board supervisor from Colfax and a member of the PR&D committee.
State statute does not address road setbacks. State statutes are “silent” about setbacks, and when the state statute does not explicitly contain language about something, then the county can be more restrictive than the state, Traxler said.
Another example is filling and grading in shoreland and wetland areas. Every county can set their own standards for filling and grading, she said.
The intent is to reduce erosion to the water body, Traxler said.
If people want to fill wetlands, they can do “wetland trading” by creating twice as much additional wetland elsewhere, but that is not an option for shoreland? Bjork asked.
“Correct,” Traxler replied.
Impervious surfaces
Was the road setback included in the shoreland ordinance because of lack of foresight? Or was the road setback included because of concern about impervious surfaces? asked Diane Morehouse, county board supervisor from Menomonie and a member of the PR&D committee.
At one time, counties had much more authority to regulate shoreland zoning at the county level, and setback averaging was included in the shoreland ordinance, Traxler said.
Dunn County can still regulate impervious surfaces under existing ordinances, Wodarczyk noted.
“We do not want to remove (impervious surfaces) and we cannot remove them,” she said.
The regulations about impervious surfaces and the general shoreland regulations would still apply to businesses, Wodarczyk said.
State law “has changed the framework” of how a county can regulate. Removing the road setbacks would be best because there is no solid authority or jurisdiction for counties on road setbacks under state law, Traxler said.
If the road setbacks are removed from the ordinance, will that complicate the question regarding impervious surfaces? asked Tom Quinn, county board supervisor from Downing and chair of the PR&D committee.
All riparian lots are subject to impervious surface standards, Traxler said.
People can build closer to the road, but they are still subject to the 30 percent impervious surface regulation, she said.
There was a time when shoreland zoning ordinances were used to push structures closer to the roads, but the way it is now, the regulations are pushing structures closer to the shoreland because of the road setbacks, Traxler said.
Right-of-way
And there is no limit on how close to the road a structure can be other than the right-of-way limitation? Kneer asked.
In zoned towns, setback averaging can still be used. In unzoned towns, the setback is where the town board wants the setback to be, Traxler said.
If members of the PR&D committee want to do a setback average, then it should be incorporated into the the re-write of the shoreland ordinance, she said.
Kneer said he did not have a problem with any of the suggested changes to the shoreland ordinance as long as the townships were informed “in time” to be able to express any concerns or or comment on any issues related to the ordinance.
Do PR&D committee members want options for suggested changes? The road setbacks are the most complicated of the issues related to updating the shoreland zoning ordinance, Traxler said.
Morehouse said she wanted to see the staff recommendations because the staff members “are the experts on zoning.”
Kneer said that he, too, would like to see the zoning office staff recommendations and any options associated with the recommendations.
Traxler said she would make the changes to the shoreland ordinance in accordance with state law and would bring recommendations to the PR&D committee for the sections that can be changed.
