(A) Statutory authorization. This chapter is adopted pursuant to the authorization in Wis. Stats. §§ 61.35 and 61.351 and the requirements in Wis. Stats. §§ 87.30 and 281.31.
(B) Title. This chapter shall be known as the Shoreland-Wetland Zoning Code for the Village of Newburg, Washington and Ozaukee Counties, Wisconsin.
(C) Finding of fact. Uncontrolled use of the shoreland-wetlands and pollution of the navigable waters of the municipality would adversely affect the public health, safety, convenience, and general welfare and impair the tax base.
(D) Statement of purpose. The legislature of the state has delegated responsibility to all municipalities to:
(1) Promote the public health, safety, convenience, and general welfare;
(2) Maintain the stormwater and floodwater storage capacity of wetlands;
(3) Prevent and control water pollution by preserving wetlands which filter or store sediments, nutrients, heavy metals, or organic compounds that would otherwise drain into navigable waters;
(4) Protect fish, their spawning grounds, other aquatic life, and wildlife by preserving wetlands and other aquatic habitat;
(5) Prohibit certain uses detrimental to the shoreland-wetland area; and
(6) Preserve shore cover and natural beauty by restricting the removal of natural shoreland cover and controlling shoreland-wetland excavation, filling, and other earth moving activities.
(Prior Code, § 23.01)
(A) Rules of construction. For the purpose of administering and enforcing this chapter, the terms or words used herein shall be interpreted as follows: words used in the present tense include the future; words in the singular number include the plural number; words in the plural number include the singular number. The word shall is mandatory, not permissive. All distances, unless otherwise specified, shall be measured horizontally.
(B) Definitions. For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
ACCESSORY STRUCTURE OR USE. A detached subordinate structure or a use which is clearly incidental to, and customarily found in connection with, the principal structure or use to which it is related and which is located on the same lot as that of the principal structure or use.
BOATHOUSE. As defined in Wis. Stats. § 30.121(1), a permanent structure used for the storage of watercraft and associated materials and includes all structures which are totally enclosed, have roofs or walls, or any combination of structural parts.
CLASS 2 PUBLIC NOTICE. Publication of a public hearing notice under Wis. Stats. Chapter 985 in a newspaper of circulation in the affected area. Publication is required on two consecutive weeks, the last at least seven days prior to the hearing.
CONDITIONAL USE. A use which is permitted by this chapter provided that certain conditions specified in the chapter are met and that a permit is granted by the Board of Appeals or, where appropriate, the planning agency designated by the municipal governing body.
DEVELOPMENT. Any human-made change to improved or unimproved real estate including, but not limited to, the construction of buildings, structures, or accessory structures; the construction of additions or substantial alterations to buildings-structures or accessory structures; the placement of buildings or structures; ditching, lagooning, dredging, filling, grading, paving, excavation, or drilling operations; and the deposition or extraction of earthen materials.
DRAINAGE SYSTEM. One or more artificial ditches, tile drains, or similar devices which collect surface runoff or groundwater and convey it to a point of discharge.
ENVIRONMENTAL CONTROL FACILITY. Any facility, temporary or permanent, which is reasonably expected to abate, reduce, or aid in the prevention, measurement, control, or monitoring of noise, air, or water pollutants, solid waste and thermal pollution, radiation, or other pollutants, including facilities installed principally to supplement or to replace existing property or equipment not meeting, or allegedly not meeting, acceptable pollution control standards, or which are to be supplemented or replaced by other pollution control facilities.
FIXED HOUSEBOAT. As defined in Wis. Stats. § 30.121(1), a structure not actually used for navigation which extends beyond the ordinary high water mark of a navigable waterway and is retained in place either by cables to the shoreline or by anchors or spud poles attached to the bed of the waterway.
NAVIGABLE WATERS.
(a) Lake Superior, Lake Michigan, all natural inland lakes within the state, and all streams, ponds, sloughs, flowages, and other waters within the territorial limits of this state, including the state’s portion of boundary waters, which are navigable under the laws of this state. Under Wis. Stats. § 281.31(2)(d), not withstanding any other provision of law or administrative rule promulgated there under, shoreland ordinances required under Wis. Stats. § 61.351 or 62.231 and Wis. Adm. Code Chapter NR 117 do not apply to lands adjacent to farm drainage ditches if:
1. Such lands are not adjacent to a natural navigable stream or river;
2. Those parts of such drainage ditches adjacent to such lands were not navigable streams before ditching; and
3. Such lands are maintained in nonstructural agricultural use.
(b) The state’s Supreme Court has declared navigable bodies of water that have a bed differentiated from adjacent uplands and levels or flow sufficient to support navigation by a recreational craft of the shallowest draft on an annually recurring basis [Muench v. Public Service Commission, 261 Wis. 492 (1952) and DeGavnor and Co. Inc. v. Department of Natural Resources, 70 Wis. 2d 936 (1975)]. For example, a stream which is navigable by skiff or canoe during normal spring high water is navigable, in fact, under the laws of this state though it may be dry during other seasons.
ORDINARY HIGH WATER MARK. The point on the bank or shore up to which the presence and action of surface water is so continuous as to leave a distinctive mark such as by erosion, destruction or prevention of terrestrial vegetation, predominance of aquatic vegetation, or other easily recognized characteristic.
PLANNING AGENCY. The Municipal Plan Commission created under Wis. Stats. § 62.23(1), a board of public land commissioners, or a committee of the municipality’s governing body which acts on matters pertaining to planning and zoning.
SHORELANDS. Lands within the following distances from the ordinary high water mark of navigable waters: 1,000 feet from a lake, pond, or flowage; and 300 feet from a river or stream or to the landward side of the floodplain, whichever distance is greater.
SHORELAND-WETLAND DISTRICT. The zoning district, created in this shoreland-wetland zoning chapter, comprised of shorelands that are designated as wetlands on the wetlands inventory maps which have been adopted and made a part of this chapter.
UNNECESSARY HARDSHIP. That circumstance where special conditions, which were not self-created, affect a particular property and make strict conformity with restrictions governing area, setbacks, or frontage height or density unnecessarily burdensome or unreasonable in light of the purposes of this chapter.
VARIANCE. An authorization granted by the Board of Appeals to construct or alter a building or structure in a manner that deviates from the dimensional standards of this chapter.
WETLAND ALTERATION. Any filling, flooding, draining, dredging, ditching, tiling, excavating, temporary water level stabilization measures, or dike and dam construction in a wetland area.
WETLANDS. Those areas where water is at, near, or above the land surface long enough to support aquatic or hydrophytic vegetation and which have soils indicative of wet conditions.
(Prior Code, § 23.02)
(A) Compliance. The use of wetlands and the alteration of wetlands within the shoreland area of the municipality shall be in full compliance with the terms of this chapter and other applicable local state or federal regulations. (However, see § 151.05 for the standards applicable to nonconforming uses.) All permitted development shall require the issuance of a zoning permit unless otherwise expressly excluded by a provision of this chapter.
(B) Municipalities and state agencies regulated. Unless specifically exempted by law, all cities, villages, towns, and counties are required to comply with this chapter and obtain all necessary permits. State agencies are required to comply if Wis. Stats. § 13.48(13) applies. The construction, reconstruction, maintenance, and repair of state highways and bridges by the state’s Department of Transportation are exempt when Wis. Stats. § 30.123(6)(b) applies.
(C) Abrogation and greater restrictions.
(1) This chapter supersedes all the provisions of any municipal zoning ordinance enacted under Wis. Stats. §§ 61.35, 62.23, or 87.30 which relate to floodplains and shoreland-wetlands, except that where another municipal zoning ordinance is more restrictive than this chapter, that ordinance shall continue in full force and effect to the extent of the greater restrictions, but not otherwise.
(2) This chapter is not intended to repeal, abrogate, or impair any existing deed restrictions, covenants, or easements. However, where this chapter imposes greater restrictions, the provisions of this chapter shall prevail.
(D) Interpretation. In their interpretation and application, the provisions of this chapter shall be held to be minimum requirements and shall be liberally construed in favor of the municipality and shall not be deemed a limitation or repeal of any other powers granted by state statutes. Where a provision of this chapter is required by a standard in Wis. Adm. Code Chapter NR 117, and where the chapter provision is unclear, the provision shall be interpreted in light of the Chapter NR 117 standards in effect on the date of the adoption of this chapter or in effect on the date of the most recent text amendment to this chapter.
(E) Severability. Should any portion of this chapter be declared invalid or unconstitutional by a court of competent jurisdiction, the remainder of this chapter shall not be affected.
(F) Annexed areas. The county shoreland zoning provisions in effect on the date of annexation remain in effect administered by the municipality for all areas annexed by the municipality after May 7, 1982, unless any of the changes as allowed by Wis. Stats. §§ 59.692(7)(a)1. through 59.692(7)(a)3. occurs. These annexed lands are described on the municipality’s official zoning map. The county shoreland zoning provisions are incorporated by reference for the purpose of administering this section and are on file in the office of the Municipal Zoning Administrator.
(Prior Code, § 23.03)
The Shoreland-Wetland Zoning District is intended to protect wetlands five acres or greater within 1,000 feet of the ordinary high water mark of navigable lakes, ponds, or flowages or 300 feet from the ordinary high water mark of navigable rivers or streams, or the landward side of the floodplain, whichever distance is greater.
(A) District boundaries.
(1) The Shoreland-Wetland Zoning District includes all wetlands in the municipality which are five acres or more and are shown on the surface water data viewer with the Wetlands, Plant, and Habitat: Wisconsin Wetland Inventory turned on as well as the Wisconsin Wetland Inventory maps stamped “FINAL” on, whichever is determined to provide the best available information, that have been adopted and made a part of this chapter and which are:
(a) Within 1,000 feet of the ordinary high water mark of navigable lakes, ponds, or flowages. Lakes, ponds, or flowages in the municipality shall be presumed to be navigable if they are shown on the United States Geological Survey quadrangle maps or other zoning base maps which have been incorporated by reference and made a part of this chapter; or
(b) Within 300 feet of the ordinary high water mark of navigable rivers or streams, or to the landward side of the floodplain, whichever distance is greater. Rivers and streams shall be presumed to be navigable if they are designated as either continuous or intermittent waterways on the United States Geological Survey quadrangle maps or other zoning base maps which have been incorporated by reference and made a part of this chapter. Floodplain zoning maps adopted in division (D) below shall be used to determine the extent of floodplain areas.
(2) Determinations of navigability and ordinary high water mark location shall initially be made by the state’s Department of Natural Resources. When questions arise, the Zoning Administrator shall contact the appropriate district office of the state’s Department of Natural Resources for a final determination of navigability or ordinary high water mark.
(3) When an apparent discrepancy exists between the shoreland-wetland district boundary shown on the official zoning maps and actual field conditions at the time the maps were adopted, the Zoning Administrator shall contact the appropriate district office of the state’s Department of Natural Resources to determine if the shoreland-wetland district boundary, as mapped, is in error. If the state’s Department of Natural Resources staff concur with the Zoning Administrator that a particular area was incorrectly mapped as a wetland, the Zoning Administrator shall have the authority to immediately grant or deny a zoning permit in accordance with the regulations applicable to the correct zoning district. In order to correct wetland mapping errors or acknowledge exempted wetlands designated in divisions (A)(4) and (A)(5) below, the Zoning Administrator shall be responsible for initiating a map amendment within a reasonable period.
(4) Wetlands which are filled prior to the date on which the municipality received final wetland inventory maps, in a manner which affects their wetland characteristics to the extent that the area can no longer be defined as wetland, are not subject to this chapter.
(5) Wetlands located between the original ordinary high water mark and a bulkhead line established prior to May 7, 1982, under Wis. Stats. § 30.11 are not subject to this chapter.
(B) Permitted uses. The following uses are permitted, subject to the provisions of Wis. Stats. Chapters 30 and 31, and the provisions of other local, state, and federal laws, if applicable.
(1) Activities and uses which do not require the issuance of a zoning permit, provided that no wetland alteration occurs:
(a) Hiking, fishing, trapping, hunting, swimming, snowmobiling, and boating;
(b) The harvesting of wild crops, such as marsh hay, ferns, moss, wild rice, berries, tree fruits, and tree seeds, in a manner that is not injurious to the natural reproduction of such crops;
(c) The practice of silviculture, including the planting, thinning, and harvesting of timber;
(d) The pasturing of livestock;
(e) The cultivation of agricultural crops; and
(f) The construction and maintenance of duck blinds.
(2) Uses which do not require the issuance of a zoning permit and which may involve wetland alterations only to the extent specifically provided below:
(a) The practice of silviculture, including limited temporary water level stabilization measures which are necessary to alleviate abnormally wet or dry conditions that would have an adverse impact on the conduct of silvicultural activities if not corrected;
(b) The cultivation of cranberries, including limited wetland alterations necessary for the purpose of growing and harvesting cranberries;
(c) The maintenance and repair of existing drainage systems to restore pre-existing levels of drainage, including the minimum amount of filling necessary to dispose of dredged spoil, provided that the filling is otherwise permissible and that dredged spoil is placed on existing spoil banks where possible;
(d) The construction and maintenance of fences for the pasturing of livestock, including limited excavating and filling necessary for such construction or maintenance;
(e) The construction and maintenance of piers, docks, walkways, observation decks, and trail bridges built on pilings, including limited excavating and filling necessary for such construction or maintenance;
(f) The installation and maintenance of sealed tiles for the purpose of draining lands outside the Shoreland-Wetland Zoning District, provided that such installation or maintenance is done in a manner designed to minimize adverse impacts upon the natural functions of the shoreland-wetland listed in § 151.07(C); and
(g) The maintenance, repair, replacement, and reconstruction of existing highways and bridges, including limited excavating and filling necessary for such maintenance, repair, replacement, or reconstruction.
(3) Uses which are allowed upon the issuance of a permit and which may include wetland alterations only to the extent specifically provided below:
(a) The construction and maintenance of roads which are necessary for the continuity of the municipal street system, the provision of essential utility and emergency services, or to provide access to uses permitted under division (C) below, provided that:
1. The road cannot, as a practical matter, be located outside the wetland;
2. The road is designed and constructed to minimize adverse impacts upon the natural functions of the wetland listed in § 151.07(C);
3. The road is designed and constructed with the minimum cross-sectional area practical to serve the intended use;
4. Road construction activities are carried out in the immediate area of the roadbed only; and
5. Any wetland alteration must be necessary for the construction or maintenance of the road.
(b) The construction and maintenance of nonresidential buildings, provided that:
1. The building is used solely in conjunction with a use permitted in the shoreland-wetland district or for the raising of waterfowl, minnows, or other wetland or aquatic animals;
2. The building cannot, as a practical matter, be located outside the wetland;
3. The building does not exceed 500 square feet in floor area; and
4. Only limited filling and excavating necessary to provide structural support for the building is allowed.
(c) The establishment and development of public and private parks and recreation areas; outdoor education areas; historic, natural, and scientific areas; game refuges and closed areas; fish and wildlife habitat improvement projects; game bird and animal farms; wildlife preserves and public boat launching ramps, provided that:
1. Any private development allowed under this division (B)(3)(c) shall be used exclusively for the permitted purpose;
2. Only limited filling and excavating necessary for the development of public boat launching ramps, swimming beaches, or the construction of park shelters or similar structures is allowed;
3. The construction and maintenance of roads necessary for the uses permitted under this division (B)(3)(c) are allowed only where such construction and maintenance meets the criteria in division (B)(3)(a) above; and
4. Wetland alterations in game refuges and closed areas, fish and wildlife habitat improvement projects, game bird and animal farms, and wildlife preserves shall be for the purpose of improving wildlife habitat or to otherwise enhance wetland values.
(d) The construction and maintenance of electric and telephone transmission lines, water and gas distribution lines and sewage collection lines, and related facilities and the construction and maintenance of railroad lines provided that:
1. The utility transmission and distribution facilities and railroad lines cannot, as a practical matter, be located outside the wetland;
2. Only limited filling or excavating necessary for such construction or maintenance is allowed; and
3. Such construction or maintenance is done in a manner designed to minimize adverse impacts upon the natural functions of the wetland listed in § 151.07(C).
(C) Prohibited uses.
(1) Any use not listed in division (B) above is prohibited, unless the wetland or a portion of the wetland has been rezoned by amendment of this chapter in accordance with § 151.07; and
(2) The uses of a boathouse for human habitation and the construction or placement of a boathouse or fixed houseboat below the ordinary high water mark of any navigable waters are prohibited.
(D) Shoreland-wetland zoning maps. The following maps are hereby adopted and made part of this chapter and are on file in the office of the Municipal Clerk:
(1) Wetland inventory. Surface water data viewer with the Wetlands, Plant, and Habitat: Wisconsin Wetland Inventory turned on, DNR website:
http://dnrmaps.wisconsin.gov/imf/imf.jsp?site=SurfaceWaterViewer
(2) Floodplain zoning maps.
(a) Flood Insurance Rate Map (FIRM) panel 0083F, dated 12-4-2007, with corresponding profiles that are based on the Flood Insurance Study (FIS) dated 12-4-2007; and
(b) Flood Insurance Rate Map (FIRM) panel 009IF, dated 12-4-2007, with corresponding profiles that are based on the Flood Insurance Study (FIS) dated 12-4-2007.
(3) United States geological survey map. Newburg, WI NE/4 West Bend 15' U.S.G.S. Quadrangle panel 43088-D1-TF-024, dated 1959 and revised 1994; and
(4) Zoning map. Official Zoning Map of the village, dated 12-6-2007 and adopted on 12-13-2007, with any amendments.
(Prior Code, § 23.04)
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