59.692(7)(a)(a) In this subsection, “facility” means any property or equipment of a public utility, as defined in s. 196.01 (5), or a cooperative association organized under ch. 185 for the purpose of producing or furnishing heat, light, or power to its members only, that is used for the transmission, delivery, or furnishing of natural gas, heat, light, or power. 59.692(7)(b)(b) The construction and maintenance of a facility is considered to satisfy the requirements of this section and any county ordinance enacted under this section if any of the following applies: 59.692(7)(b)1.1. The department has issued all required permits or approvals authorizing the construction or maintenance under ch. 30, 31, 281, or 283. 59.692(7)(b)2.2. No department permit or approval under subd. 1. is required for the construction or maintenance and the construction or maintenance is conducted in a manner that employs best management practices to infiltrate or otherwise control storm water runoff from the facility. 59.692 HistoryHistory: 1979 c. 233; 1981 c. 330; 1983 a. 189 s. 329 (23); 1991 a. 39; 1993 a. 329; 1995 a. 201 s. 476; Stats. 1995 s. 59.692; 1995 a. 227; 1997 a. 27, 35, 252; 1999 a. 9; 1999 a. 150 s. 672; 2005 a. 112; 2011 a. 6, 170; 2013 a. 80; 2015 a. 55, 146, 167, 178, 391; 2017 a. 68; 2017 a. 365 ss. 28, 29, 110; 2017 a. 366 s. 99; 2019 a. 145; 2021 a. 105, 200. 59.692 Cross-referenceCross-reference: See also ch. NR 115, Wis. adm. code. 59.692 AnnotationThe Department of Natural Resources, as trustee of navigable waters in the state, has standing to appeal shoreline zoning decisions. State ex rel. DNR v. Walworth County Board of Adjustment, 170 Wis. 2d 406, 489 N.W.2d 631 (Ct. App. 1992). 59.692 AnnotationThe private right to fill lakebeds granted under s. 30.11 does not preempt the zoning power of a county over shorelands under s.59.971 [now this section]. State v. Land Concepts, Ltd., 177 Wis. 2d 24, 501 N.W.2d 817 (Ct. App. 1993). 59.692 AnnotationThe legal standard of unnecessary hardship requires that the property owner demonstrate that without a variance there is no reasonable use for the property. When the property owner has a reasonable use for the property, the statute takes precedence and the variance should be denied. State v. Kenosha County Board of Adjustment, 218 Wis. 2d 396, 577 N.W.2d 813 (1998), 96-1235. See also State v. Outagamie County Board of Adjustment, 2001 WI 78, 244 Wis. 2d 613, 628 N.W.2d 376, 98-1046. 59.692 AnnotationThe burden is on the applicant for a variance to demonstrate through evidence that without the variance the applicant is prevented from enjoying any reasonable use of the property. State ex rel. Spinner v. Kenosha County Board of Adjustment, 223 Wis. 2d 99, 588 N.W.2d 662 (Ct. App. 1998), 97-2094. 59.692 AnnotationThe state, in administering the Wisconsin Fair Housing Act, may not order a zoning board to issue a variance based on characteristics unique to the landowner rather than the land. County of Sawyer Zoning Board v. DWD, 231 Wis. 2d 534, 605 N.W.2d 627 (Ct. App. 1999), 99-0707. 59.692 AnnotationIn evaluating whether to grant an area variance to a zoning ordinance, a board of adjustment should focus on the purpose of the zoning law at issue in determining whether an unnecessary hardship exists for the property owner seeking the variance. The facts of the case should be analyzed in light of that purpose, and boards of adjustment must be afforded flexibility so that they may appropriately exercise their discretion. State v. Waushara County Board of Adjustment, 2004 WI 56, 271 Wis. 2d 547, 679 N.W.2d 514, 02-2400. 59.692 AnnotationThe term “floor area” in sub. (1v) (b) unambiguously encompasses only the surface portion of a deck’s floorboards and, therefore, does not include portions of the deck’s support system that extend beyond the floorboards. If a portion of a structure is outside the setback area, that part is not in the setback area and it is not the portion “extending into” that area for purposes of calculating the 200 square foot restriction in sub. (1v) (b). Propp v. Sauk County Board of Adjustment, 2010 WI App 25, 323 Wis. 2d 495, 779 N.W.2d 705, 09-0209. 59.692 AnnotationAppellants appropriately relied on the county’s zoning map to identify the ordinary high water mark of a nearby lake and determine that the sign’s proposed location was outside the county’s 1,000 foot zone of shoreland authority. It was reasonable for the appellant to rely on the map rather than conduct on-site measurements. Oneida County v. Collins Outdoor Advertising, Inc., 2011 WI App 60, 333 Wis. 2d 216, 798 N.W.2d 724, 10-0084. 59.692 AnnotationBy enactment of this section and s. 281.31, the legislature intended that towns would not have authority to regulate shorelands except when such regulation fell within the language of sub. (2) (b) [now sub. (2) (b), (bg), and (bm)]. That statutory scheme does not distinguish between towns with village powers and those without. Hegwood v. Town of Eagle Zoning Board of Appeals, 2013 WI App 118, 351 Wis. 2d 196, 839 N.W.2d 111, 12-2058. 59.692 AnnotationAlthough they often work together, zoning and subdivision regulations provide separate and distinct means of regulating the development of land. There are areas of overlap between the two powers, but there are also key differences. Subdivision control is concerned with the initial division of undeveloped land, while zoning more specifically regulates the further use of this land. State ex rel. Anderson v. Town of Newbold, 2021 WI 6, 395 Wis. 2d 351, 954 N.W.2d 323, 18-0547. 59.692 AnnotationIn this case, the town’s ordinance set minimum lot frontage requirements for each lake within its borders. Pursuant to the Zwiefelhofer, 2012 WI 7, factors, the town’s ordinance was not a zoning ordinance. It did not concern land use, and it did not separate compatible and incompatible land uses, which is a key purpose of a zoning ordinance. Because it was not a zoning ordinance, the restrictions on town enactment of zoning ordinances set by this section did not apply, and the ordinance was a permissible exercise of the town’s subdivision authority pursuant to s. 236.45. State ex rel. Anderson v. Town of Newbold, 2021 WI 6, 395 Wis. 2d 351, 954 N.W.2d 323, 18-0547. 59.692 AnnotationThe “relate to shorelands” language in sub. (5) does not prohibit counties from enacting and enforcing provisions in general zoning ordinances under s. 59.69 applicable to all property in the counties, including shorelands. The only reasonable meaning of that phrase is general ordinance provisions that address issues that are specific to shoreland property and that serve the purpose of protecting shorelands and navigable waters. In other words, provisions that “relate to shorelands” means the subset of general ordinance provisions that “specifically” relate to shorelands. In this case, the county’s general zoning ordinance side yard setback and land use permit provisions, which applied to all property in the county, were by their terms not connected specifically with shorelands or the purposes of and interests protected by shoreland zoning. Waupaca County v. Golla, 2022 WI App 40, 404 Wis. 2d 141, 978 N.W.2d 558, 21-1076. 59.692 AnnotationThe reasonable interpretation of the phrase “a provision in an ordinance” in sub. (5m) is a provision in a shoreland zoning ordinance enacted under this section or a provision in a general zoning ordinance enacted under s. 59.69 that relates to shorelands. Waupaca County v. Golla, 2022 WI App 40, 404 Wis. 2d 141, 978 N.W.2d 558, 21-1076. 59.692 AnnotationThe term “utility” as used in sub. (1n) (d) 5. encompasses municipal sanitary districts and is not limited to the definition of “public utility” in s. 196.01 (5). Delavan Lake Sanitary District v. Walworth County Board of Adjustment, 2023 WI App 22, 407 Wis. 2d 628, 990 N.W.2d 783, 22-0289. 59.692 AnnotationCounty floodplain zoning ordinances may be adopted under s. 59.971 [now this section] and do not require the approval of town boards in order to become effective within the unincorporated areas of the county. 62 Atty. Gen. 264.
59.692 AnnotationCounties may zone lands located within 300 feet of an artificial ditch that is navigable in fact. 63 Atty. Gen. 57.
59.692 AnnotationCounty shoreland zoning of unincorporated areas adopted under s. 59.971 [now this section] is not superseded by municipal extraterritorial zoning under s. 62.23 (7a). Discussing ss. 59.971 [now this section], 62.23 (7) and (7a), and 144.26 [now s. 281.31]. Municipal extraterritorial zoning within shorelands is effective insofar as it is consistent with, or more restrictive than, the county shoreland zoning regulations. 63 Atty. Gen. 69.
59.692 AnnotationA county may not enact a shoreland zoning ordinance without a provision regulating nonconforming uses that have been discontinued for 12 months or longer. A county may enact an ordinance without the 50 percent provision under s. 59.69 (10) (a) [now s. 59.69 (10) (am)], in which case common law controls. OAG 2-97. 59.692 AnnotationA county is not prohibited from imposing elements of its general zoning ordinance in the shorelands in a town even if the town has not adopted the county’s general zoning ordinance under s. 59.69 (5) (c), so long as those elements are consistent with this section. OAG 1-19. 59.692 AnnotationThe Necessity of Zoning Variance or Amendments Notice to the Wisconsin Department of Natural Resources Under the Shoreland Zoning and Navigable Waters Protection Acts. Whipple. 57 MLR 25 (1973).
59.692 AnnotationWisconsin’s Shoreland Management Program: An Assessment with Implications for Effective Natural Resources Management and Protection. Kuczenski. 1999 WLR 273.
59.692 AnnotationOn the Waterfront: New Shoreland Zoning Laws. Kent. Wis. Law. Jan. 2017.