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| 9/8/2009 8:17:00 AM | Email this article • Print this article | Modest Three Lakes crowd calls for revisions of NR115
Holperin will try to exempt select downtowns from rule
By any standard, the crowd gathered at Three Lakes High School Thursday evening for Sen. Jim Holperin's (D-Conover) public session on shoreland zoning was unexceptional in size, compared to both recent and historical sessions over the past eight years, but there was one notable occurrence.
Among the crowd of about 70 - many of whom did not speak and fled early to the exits - not only opponents but many supporters of the proposed revisions to NR115, the state's shoreland zoning administrative rule, called for amending a provision that would apply impervious surface regulations to all properties within 1,000 feet of a lake and 300 feet of a river or flood plain.
The proposed regulations would cap impervious surfaces on parcels at 15 percent, or 30 percent with mitigation, even on nonriparian lots. One-thousand feet was too far-reaching for such a restriction, many said, and some offered alternative distances, such as 300 feet.
Taking in the comments with Holperin was state Sen. Mark Miller (D-Monona), the chairman of the Senate Committee on Environment, which will hold a public hearing on the rule next Thursday in Madison. An Assembly committee held a hearing this past week.
It was a divided crowd, with perhaps slightly more advocates of the rule revision than dissenters. Officially, more adherents than objectors signed up to speak, but the audience also contained a contingent of opponents who did not make their way to the microphone.
The disputants who did speak sounded a second theme in addition to the call to roll back the 1,000-foot impervious surface zone: The unfairness of exempting incorporated cities and villages from the rule, which they variously called a violation of equal protection rights and an impediment to the DNR's enforcement of the Public Trust Doctrine.
In another revelation, Holperin said he would introduce next week a Small Downtown Shoreland Equity Act that would add certain rural downtowns to the rule's exemption list, such as Minocqua and Three Lakes.
Who rules the rule?
At the outset, Miller tipped off the crowd about his own supportive position - the current NR115 was no longer adequate, he said - and referred several times to the rule as a 'bill' and 'legislation.'
"It is long past due that we revisit this to adhere to our constitutional responsibility to protect public waterways," Miller told the crowd.
He also outlined the administrative rule process - a political mechanism that gives the Department of Natural Resources substantial power to implement the rule it wants.
"If the committee so decides that the rule is adequate, it will become law," Miller said. "If we decide it needs revisions, we can send it back (to the DNR) with recommendations and they have the option to accept those recommendations or not. And then there are other steps."
In fact, if a majority of one of the legislative committees recommends modifications of a proposed rule, the review period would be extended, but only if the DNR agrees in writing to make modifications.
If it does not, the committee may object to the rule, or to part of the rule, but only for limited reasons: An absence of adequate statutory authority; an emergency relating to public health, safety, or welfare; failure to comply with legislative intent; being contrary to state law; a change in circumstances since the original date of passage of the earliest law upon which the rule is based; or being arbitrary and capricious or imposing an undue hardship.
If there is an objection, the rule would then be referred to the Joint Committee for Review of Administrative Rules, which could overturn the objection, object to the rule, or, again, seek modifications.
If that committee objects to the rule, it must introduce a bill in each house of the Legislature to prevent promulgation of the rule. One of the bills must be enacted - passed by both chambers and signed by the governor - to prevent enactment.
Testimony
After Miller spoke, Holperin took testimony, alternating between supporters and opponents until only supporters were left.
Sandy Gillum spoke in favor of the rule, acknowledging the long process of listening sessions and revisions through the years and calling the current proposal "a consensus position."
Vilas County Lakes Association president Charles Thier concurred in support, saying only that a small revision should allow for a "future adjustment" to the 1,000-foot zone provision.
Oneida County zoning director Karl Jennrich spoke against the rule, as he did at the Assembly hearing earlier in the week and before the Natural Resources Board in June, reminding the lawmakers that Oneida County had abandoned its own impervious surface requirements because they were too difficult to enforce.
Nokomis town chairman and Oneida County supervisor Gary Baier called the rule discriminatory.
"I believe in protecting the waters of all Wisconsin, not just in northern Wisconsin," Baier said. "If we do it (the rule revision), do it equally, through equal protection. Why can't we get incorporated cities and villages to come up to at least the minimum standards we have now? If this is about protecting the water, then let's protect all the water."
What's more, Baier said the DNR didn't follow its own standards.
"I've seen the DNR put in boat landings and blacktop them all the way to the water and that's definitely an impervious surface," he said.
However, Dawn Schmidt, the Vilas County zoning administrator, said Vilas County has had an impervious surface requirement in place, and the rules have worked just fine.
"Impervious surface requirements and mitigation work for us," Schmidt said. "The requirements of NR115 are working. I'm very happy with it. It's not as scary as what you might think it would be. It would be very good for the state of Wisconsin."
Schmidt, however, conditioned her support on amending the 1,000-foot impervious surface provision.
"That would be a great imposition on the counties," she said. "A thousand feet will create a lot of nonconformities. It would be a lot for the counties to swallow."
Oneida County Board of Adjustment member Elmer Goetsch also favored the rule but voiced concerns about the 1,000-foot impervious surface regulatory boundary. Goetsch said he had served on a DNR citizens advisory committee and had opposed the idea when it was first brokered, and he said the regulation could have unintended consequences.
"Apparently my opposition fell on deaf ears," Goetsch said. "If you allow that calculation, those who have deep lots can use (that extended area) to calculate their impervious surface percentage, when in fact they put their impervious surfaces right close toward the water."
Goetsch said the 1,000-foot zone would create many more appeals and caseloads for counties.
"As a member of the Board of Adjustment, I can see 1,000 feet adding significantly to our business," he said. "I'm not looking for that kind of business."
Tom Tiffany, owner of Wilderness Cruises and a Little Rice supervisor, said he was startled to discover the regulatory differences between incorporated and unincorporated areas when he moved his business from the Willow Flowage to the city of Rhinelander.
"(In Rhinelander), I could build right up to the ordinary high water mark," Tiffany said. "It was rather striking to find such a difference just 30 miles away."
Tiffany asked Holperin if Holperin's impending downtown equity legislation would cover businesses in such towns as Little Rice; without disclosing the definition of a rural downtown in his upcoming bill, Holperin said it would not.
"So I can tell (specific businesses) that they will not be treated the same as businesses in some other towns," Tiffany asked.
"Yes," Holperin replied.
Tiffany concluded by saying that the proposed revision was "part of a war on rural Wisconsin."
At least one speaker said the proposed regulations did not go far enough.
Bryan Pierce passed around a handout that asked: "What happened to shoreland protection in NR 115?" Pierce said the proposed impervious surface limits were not sufficient to limit the expansion of structures within the 75-foot setback zone.
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