Posted by: Patricia Salkin | January 7, 2014

Wisconsin Appeals Court Holds Town Zoning Board Lacked Authority to Enforce Zoning within Shoreland Area as the Legislature Granted Such to the County

Stephen Hegwood owns shoreline property in the town of Eagle on which he built an outdoor fireplace and a pergola. The fireplace and pergola were located, respectively, fourteen and eight feet from the lot line. After both structures were built, Hegwood sought variances from the county from its twenty-foot setback requirement provided in the Waukesha County Shoreland and Floodland Ordinance, enacted in 1970. The county approved the pergola “subject to removal of the roof” and concluded that the fireplace “may remain in its current location.” Hegwood then applied to the town for variances from its ordinance relating to its twenty-foot setback requirement. The Town Zoning Board of Appeals denied his application after a hearing. Hegwood filed a certiorari action in the circuit court seeking reversal of the Board’s decision. The court reversed and the Board appealed.

Under Wis. Stat. § 59.692, “Zoning of shorelands on navigable waters,” provides: “To effect the purposes of [§ ] 281.31 and to promote the public health, safety and general welfare, each county shall zone by ordinance all shorelands in its unincorporated area.” (Emphasis added.) Subsection (2)(a) provides that ordinances and amendments related to shorelands and enacted under § 59.692 “shall not require approval or be subject to disapproval by any town or town board.” Thus, the Board lacked authority to enforce town ordinance’s setback requirements on property owner’s shoreland property, as legislature had granted shoreland zoning authority to counties, and did not intend for towns to have zoning authority over the same shorelands.

Hegwood v. Town of Eagle Zoning Bd. of Appeals, 839 N.W.2d 111, 117 (Wis. App.9/25/2013)

The opinion can be accessed at: http://www.wicourts.gov/ca/opinion/DisplayDocument.pdf?content=pdf&seqNo=102219


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