Saturday, May 5, 2012

New, Less Stringent Waterfront Regulations Passed in Madison

By: Tom Larson, Wisconsin Realtors Association
On April 2, 2012, Governor Walker signed into law 2011 Wisconsin Act 167, legislation that grandfathers almost all existing piers. In addition, the new law eliminates the pier registration requirement and creates new standards for piers placed on or after April 17, 2012. Finally, the new law guarantees that waterfront property owners have a right to place a pier, even if the property is located in areas that the Wisconsin Department of Natural Resources (DNR) considers to be environmentally significant.

Grandfathering of Existing Piers - Under the new law, all existing piers placed before April 17, 2012 are grandfathered unless:
The DNR notified the riparian owner before April 17, 2012 that the pier is “detrimental to the public interest.”  Or if the pier “interferes with the riparian rights of other riparian owners.” A pier that extends into a neighbor’s riparian zone, which is the water in front of the neighbor’s property, is an example of a pier that would interfere with the neighbor’s riparian rights.

Also, if the pier is grandfathered, the riparian owner may relocate or reconfigure the pier as long as the pier is not enlarged.

In addition, the riparian owner does not need to register the pier with the DNR in order to grandfather the pier. All existing piers are automatically grandfathered unless the pier meets at least one of the two exceptions previously listed.

New Piers

In addition to the grandfathering provisions, the new law creates a few different standards for new piers, which are piers placed for the first time on or after April 17, 2012.

First, the new law increases the boat density requirement under existing law to allow for personal watercraft, such as jetskis and waverunners. Under current law, waterfront property owners are allowed two boat slips for the first 50 feet of frontage and one boat slip for each additional 50 feet of frontage thereafter. Because a personal watercraft is often tied to a dock and is not placed in a “slip” or on a hoist or lift, the law is not clear as to whether any limits exist regarding the number of personal watercraft that a property owner may have. Accordingly, the new law allows riparians to have two personal watercraft for the first 50 feet of frontage and one additional personal watercraft for each additional 50 feet of frontage thereafter. This is in addition to the number of boat slips allowed under current law.

Second, the new law changes the maximum size requirement for loading platforms on new piers to 200 square feet in total area. Prior law allowed for a maximum width of eight feet wide but did not limit the total area. This change allows for greater flexibility in the size and dimensions of loading platforms so that riparian owners can determine what configuration would best meet their needs.

As a result of these changes, new piers can be placed without obtaining a permit from the DNR if the pier meets the following requirements:

•Width: No more than six feet wide.

•Length: No longer than what is necessary to moor your boat or use a boat lift, or 3-foot water depth, whichever is greater.

•Number of boats: Two boat slips/lifts for the first 50 feet of water frontage of your property, plus one more boat slip/lift for each additional 50 feet of frontage.

•Number of personal watercraft: Two personal watercraft for the first 50 feet of water frontage of your property, plus one more personal watercraft for each additional 50 feet of frontage.

•Loading platforms: A loading platform/deck with a surface area no greater than 200 square feet.

If a waterfront property owner wants to place a pier that exceeds these standards, a permit must be obtained from the DNR.

Nonconforming Wet Boathouses

In addition to modifying the pier regulations, the new law eliminates the restrictions placed on the ability of riparian owners to maintain and repair wet boathouses, which are located below the ordinary high water mark. The restrictions limited the value of all maintenance and repairs over the life of the property to 50 percent of the assessed value of the boathouses, which was intended to eventually eliminate these boathouses by forcing them to fall into disrepair.

The 50 percent rule has been unfair to property owners because it applies retroactively to existing boathouses that were legal when originally constructed. Moreover, the rule had proven difficult to enforce because it is almost impossible for county zoning administrators to keep track of each dollar spent on necessary paint, boards and roofing shingles. As a result, it encouraged property owners to be dishonest about what they have spent on repairs and maintenance.

The new law eliminates application of the 50 percent rule to wet boathouses. As a result, riparian owners may perform unlimited maintenance and repair to these existing boathouses that were constructed before 1979. This new law change allows property owners to “keep what they have” but does not allow the boathouses to be expanded.

Nonconforming Structures

Nonconforming Structures and Substandard Lots (SB 472): Protects the ability of property owners to perform unlimited maintenance and repair on nonconforming homes and buildings; prohibits counties from enacting regulations that are more restrictive than the regulations found in NR 115 with respect to (a) expanding nonconforming structures and (b) building on substandard lots.

Variances

Variances (expiration date) (SB 300): Establishes that variances do not expire unless an expiration date has been established by local ordinance or by the board of zoning appeals/adjustment at the time the variance was granted.

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