Chapter NR 116

NR 116.19(4)(a) (a) Hear and decide appeals where there is an alleged error in any interpretation, order, requirement, decision, or determination made by the zoning administrator in the enforcement or administration of the floodplain zoning ordinance;

NR 116.19(4)(b) (b) Hear and decide all requested special exceptions or conditional uses to the terms of the floodplain zoning ordinance, using the criteria found in s. NR 116.21 (3);

NR 116.19(4)(c) (c) Hear and decide all requested variances to the terms of the floodplain zoning ordinance;

NR 116.19(4)(d) (d) Maintain a complete public record of all its proceedings; and

NR 116.19(4)(e) (e) Make all of its decisions within a reasonable time and in the form of a written statement, resolution or order signed by the secretary. The zoning administrator may not be the secretary of the board of adjustment or appeals.

NR 116.19 History History: Cr. Register, February, 1986, No. 362, eff. 3-1-86; corrections in (1) and (4) (intro.) were made under s. 13.93 (2m) (b) 7., Stats., Register July 2001, No. 547.

NR 116.20 NR 116.20 Municipal responsibilities.

NR 116.20(1) (1) Jurisdiction.

NR 116.20(1)(a) (a) The floodplain zoning ordinance shall require authorization through permits, special exceptions, variances and amendments, from the appropriate municipality for any of the following activities in floodplain areas:

NR 116.20(1)(a)1. 1. Any new use or change in use of land or water.

NR 116.20(1)(a)2. 2. Any new use or change in use of a structure or building.

NR 116.20(1)(b) (b) The activities in par. (a) include, but are not limited to, the following:

NR 116.20(1)(b)1. 1. Any structure, building or accessory structure or building which is to be erected, constructed, reconstructed, altered or moved into the floodplain area;

NR 116.20(1)(b)2. 2. Any alteration, addition, modification, rebuilding or replacement of any existing structure, building or accessory structure or building;

NR 116.20(1)(b)3. 3. Any deposition of materials for any purpose; and

NR 116.20(1)(b)4. 4. Any sewage disposal system or water supply facilities, both public and private.

NR 116.20(2) (2) Administrative procedures. The floodplain zoning ordinance shall establish administrative procedures for obtaining all required permits, special exceptions, conditional uses, variances, appeals and amendments. These procedures shall provide for the following:

NR 116.20(2)(a) (a) An application shall be made to the zoning administrator for all zoning permits, special exceptions, conditional uses, variances and amendments. The application shall include, but not be limited to, the following information:

NR 116.20(2)(a)1. 1. The name and address of the applicant and property owner;

NR 116.20(2)(a)2. 2. The legal description of the property and the type of proposed use;

NR 116.20(2)(a)3. 3. A map plan which accurately locates or describes the proposal with respect to the floodway and floodplain, and which provides all pertinent information such as the fill dimensions and elevations, building floor elevations, and floodproofing data; and

NR 116.20(2)(a)4. 4. For all subdivision proposals, as defined in s. 236.02 (8), Stats., and for other land divisions or proposed developments which have a total area that exceeds 5 acres or which have an estimated cost that exceeds $125,000, the applicant shall provide all of the computations which are required to show the effect of the proposal on flood heights, velocities and floodplain storage. The municipality may transmit this data to the department for review. For the purpose of this paragraph, the cost of the proposal shall be estimated to include all structural development and landscaping improvements such as access and road development, electrical and plumbing services development, and other similar items, which can be reasonably applied to the overall development costs, but may not include the cost of the land.

NR 116.20(2)(b) (b) For land divisions and proposed developments which do not exceed 5 acres in area and which have an estimated cost of $125,000 or less, if the regional flood profile has not been determined and the conditions in par. (a) 4. are not present, the municipality may transmit the information required in par. (a) 1. to 3. to the department for a determination of flood protection elevations and for an evaluation of the effects of the proposal upon flood heights, velocities and floodplain storage. Additional information, such as valley cross sections or survey data, may be required by the department when needed to determine the effects of the proposal; this information shall then be obtained from the applicant by the municipality. The department shall advise the municipality of its findings within 30 days after receiving the data, or within 30 days after receiving all requested additional information. Failure of the department to respond within 30 days shall be construed to mean it has no comment.

NR 116.20(2)(c) (c) Public hearings shall be held by municipalities on all special exceptions, conditional uses, variances, appeals and amendments. Proper notice shall be given of such public hearings in accordance with appropriate statutes; mailed notice of such public hearings and a copy of the application shall be given to the appropriate department district office. Such notice shall specify the time and place of the hearing and give sufficient details concerning the subject matter of the public hearing.

NR 116.20(2)(d) (d) A copy of all decisions granting or denying a special exception, conditional use, variance or amendment to the floodplain zoning ordinance shall be mailed within 10 days to the appropriate department district office.

NR 116.20(3) (3) Certificate of compliance. No vacant land in the floodplain, and no building hereafter erected, altered or moved into the floodplain, may be occupied or used until the applicant obtains a certificate of compliance from the municipality. Municipalities shall require that the certificate be issued only after the applicant has submitted, prior to occupancy, to the municipal zoning administrator or building inspector a certification by a registered professional engineer or architect that the floodproofing requirements in the floodplain zoning ordinance have been met and a certification by a registered professional engineer, architect or registered land surveyor that the following are in compliance with the floodplain zoning ordinance:

NR 116.20(3)(a) (a) The elevation of fill; and

NR 116.20(3)(b) (b) The elevation of the lowest floor including basement floor.

NR 116.20(4) (4) Enforcement and penalties. Each floodplain zoning ordinance shall include a separate section establishing appropriate penalties for violations of various provisions of the ordinance. An appropriate penalty, as reflected in s. 87.30 (2), Stats., may include an injunction for abatement or removal, and a fine or forfeiture. Any violation of the provisions of the floodplain zoning ordinance shall be investigated and reported to the appropriate municipal attorney, corporation counsel or district attorney for the prosecution of the violator.

NR 116.20(5) (5) Public information.

NR 116.20(5)(a) (a) Where useful, marks on bridges or buildings or other markers may be set to show the depth of inundation during the regional flood at appropriate locations within the floodplain.

NR 116.20(5)(b) (b) All available information in the form of maps, engineering data and regulations shall be readily available and should be widely distributed.

NR 116.20(5)(c) (c) All legal descriptions of property in the floodplain should include information relative to the floodplain zoning classification when such property is transferred.

NR 116.20 History History: Cr. Register, February, 1986, No. 362, eff. 3-1-86.

NR 116.21 NR 116.21 Permits, special exceptions, conditional uses, variances, appeals and amendments.

NR 116.21(1) (1) General. The floodplain zoning ordinance shall list the specific types of uses which may be authorized by permit, special exception or conditional use, indicating the particular authorization required for each type of use. These authorizations may not be contrary to the provisions of this chapter or other state law, or to applicable municipal ordinances.

NR 116.21(2) (2) Permits. Municipalities shall issue permits for uses in floodplain areas which are in compliance with the applicable provisions for permitted uses in their floodplain zoning ordinances. These permits shall be issued by the zoning administrator.

NR 116.21(3) (3) Special exceptions or conditional uses. Any use requiring a special exception or conditional use permit may be allowed only upon application to the zoning administrator, public hearing and issuance of a special exception or conditional use permit by the board of adjustment or appeals or, where appropriate, the zoning agency. When determining whether to grant or deny a special exception or conditional use permit, the board of adjustment or appeals shall assure compliance of the proposal with:

NR 116.21(3)(a) (a) The provisions of the floodplain zoning ordinance;

NR 116.21(3)(b) (b) The purpose and objective of floodplain management, as enumerated in s. NR 116.01; and

NR 116.21(3)(c) (c) Local land use plans and other land use controls.

NR 116.21(4) (4) Variances. Any prohibited deviation from the dimensional standards of the floodplain zoning ordinance, for which a permit has been denied by the zoning administrator, may be allowed only upon written request for a variance submitted to the zoning administrator, public hearing and issuance of a variance by the board of adjustment or appeals. The board of adjustment or appeals may, after a written request for a variance has been submitted and a public hearing has been held, authorize in specific cases such a variance from the dimensional standards of the ordinance which will not be contrary to the public interest if, owing to special conditions and the adoption of the floodplain zoning ordinance, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship. A variance:

NR 116.21(4)(a) (a) Shall be consistent with the spirit of the floodplain zoning ordinance.

NR 116.21(4)(b) (b) May not permit a lower degree of flood protection in the floodplain area than the flood protection elevation.

NR 116.21(4)(c) (c) May not be granted for a use that is common to a group of adjacent lots or premises. In such a case, the zoning ordinance would have to be amended through proper amendment procedures.

NR 116.21(4)(d) (d) May not be granted unless it is shown that the variance will not be contrary to the public interest and will not be damaging to the rights of other persons or property values in the area.

NR 116.21(4)(e) (e) May not be granted for actions which require an amendment to the floodplain zoning ordinance as described in sub. (6).

NR 116.21(4)(f) (f) May not have the effect of granting, increasing or extending a use of property which is prohibited in that zoning district by the floodplain zoning ordinance.

NR 116.21(4)(g) (g) May not be granted solely on the basis of economic gain or loss.

NR 116.21(4)(h) (h) May not be granted for a self-created hardship.

NR 116.21(5) (5) Appeals. Appeals to the board of adjustment or appeals or zoning agency may be taken by any party aggrieved by any decision of the zoning administrator. Requests for special exception or conditional use permits may be considered as appeals. Such appeals shall specify the grounds thereof and be filed within a reasonable period of time with the zoning administrator. The floodplain zoning ordinance shall set forth the time limitations for filing appeals. The zoning administrator shall forthwith transmit to the board of adjustment or appeals or zoning agency all records of the matter concerning the appeal. After public hearing, the board’s or agency’s decision shall either affirm, reverse, vary or modify in whole or in part the order, requirement, decision or determination appealed from. All appeal decisions shall conform to the applicable provisions of the floodplain zoning ordinance. The board’s or agency’s decision may be appealed to the courts in accordance with applicable state law.

NR 116.21(6) (6) Amendments.

NR 116.21(6)(a) (a) Official amendments are required for any changes in the official floodway lines, water surface profiles, floodplain zoning maps or floodplain zoning ordinance. Actions which require an amendment by the municipality include, but are not limited to, the following:

NR 116.21(6)(a)1. 1. Any change in the official floodway lines or in the boundary of the floodplain area;

NR 116.21(6)(a)2. 2. Settlement of conflicts between the water surface profiles and floodplain zoning maps, in accordance with s. NR 116.10;

NR 116.21(6)(a)3. 3. Any fill, encroachment or development into the floodway which will result in obstructing flood flows; and

NR 116.21(6)(a)4. 4. Any upgrading of floodplain zoning ordinances in accordance with s. NR 116.05.

NR 116.21(6)(b) (b) Amendments may be made upon petition of any interested party in accordance with the appropriate provisions of ss. 59.69 (3) and (4) and 62.23 (7) (d), Stats.

NR 116.21(6)(c) (c) All proposed amendments shall be referred to the appropriate municipal zoning agency for a public hearing and recommendation to the governing body which shall approve or disapprove the proposed amendment.

NR 116.21(6)(d) (d) Amendments of official floodway lines shall meet the provisions of s. NR 116.11.

NR 116.21(6)(e) (e) No amendments to official floodway lines, water surface profiles, floodplain zoning maps or floodplain zoning ordinances may become effective until they have been approved by the department.

NR 116.21 History History: Cr. Register, February, 1986, No. 362, eff. 3-1-86; corrections in (6) (b) were made under s. 13.93 (2m) (b) 7., Stats., Register July 2001, No. 547; reprinted to restore dropped copy in (4), Register October 2002 No. 562.

NR 116.22 NR 116.22 Department duties.

NR 116.22(1) (1) Assistance to municipalities. The department shall provide assistance to municipalities in the development, adoption and administration of their official floodway lines, water surface profiles, floodplain zoning maps and floodplain zoning ordinances. Such assistance shall include, but not be limited to, the activities described in this subsection.

NR 116.22(1)(a) (a) The department shall establish and upgrade standards for local floodplain zoning ordinances.

NR 116.22(1)(b) (b) When requested by a municipality, the department shall evaluate flood hazards and the effects of proposals in floodplain areas upon water surface profiles, floodway limits and flood velocities as provided in s. NR 116.20 (2) (b). Requests for such evaluations shall come from a municipality, not from individual property owners or applicants. Information needed to conduct the evaluation shall be provided by the applicant or the municipality.

NR 116.22(1)(c) (c) The department shall work with federal agencies to provide technical guidance and computer facilities for certain hydrologic, hydraulic and engineering studies. Generally, the necessary topographic and other base maps and field surveys will be the responsibility of the municipality.

NR 116.22(1)(d) (d) The department shall establish priorities for engineering studies to be done in municipalities by federal agencies.

NR 116.22(1)(e) (e) The department shall respond to the requests from municipalities to provide them assistance in enforcement actions against violations of their floodplain zoning ordinances.

NR 116.22(1)(f) (f) The department shall respond to requests from municipalities for assistance in developing hydraulic and official floodway lines.

NR 116.22(1)(g) (g) The department shall review all studies. No studies may be used until department approval has been secured.

NR 116.22(2) (2) Review and approval of floodplain zoning ordinances. The department shall issue a certificate of approval to a municipality upon a finding that the adopted floodplain zoning ordinance meets the provisions of this chapter. The department review of floodplain zoning ordinances may include, but is not limited to, determinations that:

NR 116.22(2)(a) (a) The most accurate maps were utilized in delineating the floodplains;

NR 116.22(2)(b) (b) All floodplain zoning maps and floodplain zoning ordinances are compatible with all other shoreland regulations, existing zoning and land use plans;

NR 116.22(2)(c) (c) All water surface profiles, floodplain zoning maps and floodplain zoning ordinances are compatible with those of the adjoining municipalities on the same streams or rivers; and

NR 116.22(2)(d) (d) The floodway and floodplain lines shown on the floodplain zoning maps are accurate.

NR 116.22(3) (3) Monitoring. The department shall monitor the administration and enforcement of floodplain zoning ordinances in municipalities. In so doing, the department may:

NR 116.22(3)(a) (a) Establish and upgrade standards for the review and evaluation of the administration and enforcement of floodplain zoning ordinances.

NR 116.22(3)(b) (b) Review and approve or deny proposed amendments to water surface profiles, floodplain zoning maps and floodplain zoning ordinances.

NR 116.22(3)(c) (c) Review floodplain zoning permits and all special exceptions, conditional uses, variances and amendments to floodplain zoning ordinances, to ensure in each instance compliance with the applicable floodplain zoning ordinances and this chapter.

NR 116.22(3)(d) (d) Review state and federal projects to assure that public works proposals in floodplains are compatible with local floodplain zoning ordinances and the provisions of this chapter.

NR 116.22(4) (4) Enforcement. The department shall assist municipalities in achieving a consistent statewide approach to floodplain enforcement. This assistance may include, but is not limited to, the measures listed in this subsection.

NR 116.22(4)(a) (a) The department may request that corrective action be taken by the municipality where construction is occurring in a floodplain area which is either contrary to an existing floodplain zoning ordinance or which would be contrary to an approved floodplain zoning ordinance. Such corrective action may include, where appropriate, the following:

NR 116.22(4)(a)1. 1. Active prosecution of violations of the floodplain zoning ordinance;

NR 116.22(4)(a)2. 2. An injunction to stop construction until an adequate floodplain zoning ordinance can be adopted and approved by the department; and

NR 116.22(4)(a)3. 3. Adoption of an adequate floodplain zoning ordinance and submittal to the appropriate department district office for approval.

NR 116.22(4)(b) (b) The department may seek an injunction to stop construction in the floodplain area until an adequate floodplain zoning ordinance is adopted and approved.

NR 116.22(4)(c) (c) The department may seek an injunction to stop construction in the floodplain area when the construction would violate an approved floodplain zoning ordinance or the provisions of this chapter.

NR 116.22(4)(d) (d) The department may seek adoption of an adequate floodplain zoning ordinance in accordance with the provisions of s. 87.30 (1), Stats., or an upgrading of a floodplain zoning ordinance in accordance with s. NR 116.05.