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THE CITY REBORN FROM THE ASHES OF AMERICA'S MOST DISASTROUS FOREST FIRE
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Most Speakers Oppose New Shoreland Zoning Restrictions

The third and final public hearing on proposed revisions to Marinette County’s Shoreland/Wetland Zoning Ordinance drew a standing room only crowd to the Peshtigo Town Hall Tuesday evening, Oct. 2. With a few notable exceptions, most of the speakers who voiced formal opinions were opposed to the ordinance in general, and particularly opposed to adopting the requirements for “impermeable surfaces” unless and until it becomes absolutely necessary.

The turnout of approximately 85 persons was not surprising in a town with more miles of developed shoreline than any other in Marinette County, particularly in view of frequent reminders from Town Chair Herman Pottratz and personal distribution of reminder notices to constituents by County Board Supervisor Don Pazynski.

Attendance was in sharp contrast to the scant turnout for a similar hearing in Dunbar on Sept. 17, and slightly more than a vocal crowd at the first hearing, which was held in June at Crivitz Village Hall.

Major objections raised at the Peshtigo hearing were to requirements for only 30 foot “viewing corridors” and “remediation” that most likely would involve planting trees, shrubs and ground cover to block views that many lakefront property owners have enjoyed for years.

No remediation would be required on properties where the owners do not want to change the “footprint” of their current structures and paved surfaces, regardless of the percentage of land used. But remediation plantings would be required of all property owners who want permission to make certain changes after the ordinance goes into effect. With remediation, they would be allowed to use up to 30 percent of the property they own for impermeable surfaces such as buildings, driveways, walkways, patios, etc. Without remediation, only 15 percent of the property can be covered with an impermeable surface.

There were concerns that leaving grass unmowed as required in some remediation plans would be unsightly, attract bugs and “critters,” and create fire hazards. Grassy lawns and beaches are clearly frowned on by rule makers at the state level.

Peshtigo Town Board at its August meeting had unanimously agreed to have a letter drafted to Marinette County Board and its Land Information Committee, as well as Wisconsin DNR and Gov. Scott Walker, opposing NR 115 and what they described as “its increased restrictions on shoreland/wetland property owners.” Pottratz at that meeting had urged Peshtigo residents to attend the Oct. 2 hearing, and said the state has put NR 115 enforcement on hold “because they know it’s too intrusive and needs to be changed.”

That opinion was supported by State Rep. John Nygren at Tuesday evening’s public hearing. He said after the hearing that NR 115 was approved by Gov. James Doyle and the previous administration in Madison and expressed confidence with Gov. Scott Walker appointee Cathy Stepp now heading the DNR, many of the bill’s restrictions will be softened before it goes into effect.

What the legislature has done so far, Nygren added, is postpone the effective date of the impermeable surface rules by two years (until Feb. 1, 2014) to give time to make some needed changes, and pass Act 170, which eases the restrictions on non-conforming structures and sub-standard lots within the shoreland/wetland zoning area. He suggested Marinette County should implement the changes made possible by Act 170, but hold off approving on the current impermeable surface rules, which he is confident will never go into effect in their present form.

During the hearing, Nygren said the changes being considered for the Marinette County ordinance were to comply with rule changes passed during the previous administration, “and I do not believe you will see this (NR115) implemented in its current form...There will be significant changes.” He added that Act 170, “is good for the property owner...it makes the rules more lenient.”

John LeFebvre, Marinette County Zoning Administrator and head of the county’s Land Information Department, has been working with his committee for approximately two years on changes he feels are necessary to bring the Marinette County Shoreland/Wetland ordinance into compliance with the new provisions of NR115, and has incorporated changes to allow the less stringent regulations permitted by AB170. He said until the Marinette County ordinance is changed he cannot issue permits based on the new state law, with which it conflicts, and because of that, Marinette County shoreland property owners are penalized.

Land Information Committee Chair Ted Sauve opened the hearing to the tune of additional chairs being moved in to accommodate the crowd. He introduced committee members: John Fendryk, who represents the Farm Service Agency, and County Board Supervisors Larry Nichols, Joe Policello, Alice Baumgarten, Robert Holley and Clancy Whiting, and expressed hope for “some spirited comments.” He got his wish. Written comments may also be sent to LeFebvre’s office at the courthouse, where full text of the proposed ordinance is on file.

Dignitaries present included Nygren and State Sen. Dave Hansen, as well as County Board Chair Vilas Schroeder and a number of supervisors, among them Pazynski and Russ Bauer, whose districts include parts of the Town of Peshtigo. State Rep. Jeff Mursau, who heads the Assembly’s Natural Resources Committee, had attended the Dunbar hearing.

LeFebvre began by saying he was still celebrating an anniversary of sorts. He had started his 28th year as a Marinette County employee on Tuesday, Sept. 18. He said he was sorry the room wasn’t quite large enough to comfortably accommodate everyone, but promised that nevertheless they would take as much time as necessary for everyone to have their say.

He began by explaining that NR115 requires all counties to adopt Shoreland/Wetland Zoning ordinances to enforce its provisions. The first such law was passed back in 1967, and it was updated in 1980 and again later. Efforts to change it again began about 10 years ago, but the proposed new DNR rules were set aside at that time because of objections raised at public hearings all across the state, which attracted the largest turnouts ever seen on Wisconsin issues.

LeFebvre said neither he nor any members of the Land Information Committee are in favor of the new impervious surface rules, but unless they are changed before the 2014 implementation date, the county will have to either be in a position to enforce them or face some stiff state penalties.

He said in September of 2007 Marinette County Board passed a motion informing the state of their opposition to the impervious surface rules. He said state legislators are well aware that he, the Land Information Committee, and the full County Board remain opposed to those rules, and explained that if the Marinette County ordinance changes are adopted as proposed, the provisions that apply to impervious surfaces will not go into effect until 2014... “or when required by the state, or perhaps never.”

He added that Rep. Mursau and his Natural Resources committee are looking at changing a number of provisions, but declared, “...as of right now, NR 115 exists.”

He defined an impervious surface as anything where 51 percent or more of water that falls on it runs off without being absorbed. This means roofs, gravel, blacktop and asphalt driveways, walks and patios, and sometimes decks, unless they are designed to let water drain through onto the ground below. Purpose of the new rules, as stated by the DNR, is to protect water quality, he said.

Unlike other Shoreland/Wetland Ordinance provisions, the impermeable surface regulations apply only within 300 feet from the high water mark, even for properties with lake frontage.

Under those rules, anything currently on properties within the 300 feet can stay there, but if impermeable surfaces cover more than 15 percent of the total lot area they can be maintained by they can never be expanded, and new buildings such as garages, storage sheds and boat landings can never be added unless “remediation “ is done. With remediation, up to 30 percent of the lot can be covered by roofs, pavements and other impermeable surfaces.

By other current rules, only 30 feet on any single lot can be opened as a “viewing corridor,” enabling property owners to enjoy their views of the water and beach/shoreline areas. The new rules, if the changes are adopted, will allow clear viewing areas up to 30 percent of the shoreline frontage, for example 60 feet with 200 feet of frontage.

Also, under existing rules, any structures 75 feet or less from the high water mark can stay where they are and be maintained, but they can never be expanded outside their existing footprint, which is “grandfathered” in. If the new Act 170 rules are enacted, additions can be added to the back or sides of the structures, provided the additions are 75 feet or more from the high water mark, and do not cause hard surfaces to cover more than the prescribed 15 percent of the lot area. The exception is that, with mitigation, 30 percent can be covered with impermeable surfaces.

“Mitigation” means replanting a buffer zone along the first 75 feet of shoreline with natural vegetation that includes trees, ground cover and mid level growth like ferns where there once had been mowed lawn. There is an exception to the 75 foot buffer rule to allow mowing and yard maintenance in the first 15 feet around structures.

The 15 percent, with no mitigation required, allows covering 4,500 square feet on a 100 by 300 foot lot. Between 4,500 and 9,000 square feet of roofs and other hard surfaces like pavement requires mitigation, but in no case can more than 30 percent be had surfaced.

The impermeable surface rules only apply to the first 300 feet from the lake shore, LeFebvre said, while other provisions of the Shorelands/Wetlands laws apply to everything 1,000 feet or less from the water for lake frontage.

If more than the 30 percent of surface is already covered and the owner wants to expand or add a structure, they will need to remove something else, for example part of a driveway, sidewalk or patio, and plant the unmowed shoreland buffer. Surfaces can be changed without mitigation, provided the total amount of impermeable surface is not changed.

The state law does allow other means of mitigation, but LeFebvre had said at other hearings that he does not propose including them because enforcement would be a nightmare.

Owners developing new properties cannot open a viewing corridor that exceeds the 30 foot maximum.

Mitigation plans must be filed with the Register of Deeds and remain with the property if and when it changes hands.

To questions from the audience, LeFebvre said owners will not be required to remove ornamental plantings like spruce trees and lilac bushes, but probably would no longer be allowed to mow around them.

Someone asked what could be more natural than grass, and LeFebvre replied his job was not there to defend the law, but to explain what it is.

In all cases, mitigation would require replacing any failed septic systems.

“If this is state law,” someone asked, “why isn’t someone here from the DNR or other state agencies to explain it? Why aren’t they holding the public hearings?”

LeFebvre said when the original NR115 rules came out 10 years ago the DNR held hearings all over the state, and they attracted over 10,000 public comments, “The greatest turnout of any law in state history...but that was 10 years ago.” He pointed out however, that there were some state legislators present.

To comments from Supervisor Bauer, LeFebvre said he wanted to get the impermeable surface rules in place now, to show people what it will be like when they go into effect. Anyone contemplating projects can consider doing them now, before the new restrictions apply. He said as long as they need to change some provisions of the law they felt it would be better and less expensive to do them all at once. He added that if the state again delays implementation, the county can do likewise.

“How can the state pass an ordinance for the whole state, when parts are so different?” asked one property owner, who said he has 125 feet of sand along his shoreline, and mainly wanted his property for the view. “I pay $300 a foot in property taxes for my shoreline,” he added. “Will I now have to pay taxes only on my 30 foot viewing corridor?” That remark drew loud applause.

John Kollross asked what it will cost the county to administer the new rules, and who will pay for it. The answer was property taxes and permit fees. LeFebvre said one of Marinette County’s main objections back in 2007 was the cost of administration.

Chuck Boyle said he owns a vacant parking lot in the City of Marinette, for which he pays $30 a year in property taxes and a $100 per year impervious surface fee. He was concerned the city or county will now have an excuse to tax him more for shoreline runoff. LeFebvre said cities come under different rules.

That led to a question as to why rural property owners are being asked to stringently control runoff, while cities all over the state run storm water directly into rivers, streams and lakes. LeFebvre suggested taking that question up with the state.

Asked how the mitigation requirement for planting trees and other vegetation applies to properties that in their natural condition were sand or meadow, LeFebvre said they will look at whatever was natural there.

There was discussion on how the ordinary high water mark is determined, and what that might do to the amount of property on the tax rolls.

A lady who said her property is on Lake Noquebay Outlet said she and her neighbors have always retained the natural forested buffer LeFebvre talked about, and now the trees are so big they are falling over into the water, blocking any attempts at navigation and ruining use of the stream. LeFebvre said removing trees that fall over into the water is allowed.

A person explained his property on Shore Drive is across the road from the Bay, but is bordered by a former drainage ditch that the state has now determined is a navigable waterway, and asked if they will now have to get rid of the grassy lawn there. LeFebvre said they might need to do some mitigation, but it could be as simple as not mowing.

There were comments that they were being asked to make their yards ugly, and again questions were raised as to whether property taxes would go down.

Jeff Walters asked if the 30 foot viewing corridor per property was actual, or if it might be less. He was told it is 30 percent of the lake frontage, so on a sub standard lot, it could be less than the 30 feet.

“We need to talk to the state,” declared Gordon Wickland. “I cannot imagine Mr. Nygren or Mr. Hansen voting for this!” He suggested they change the ordinance now to allow the new provisions of Act 170, but hold off on including the impervious surface rules.

Marty Wagner said he was glad to hear LeFebvre and the committee opposed the rules they were proposing. To enthusiastic applause he repeated the objection to the state’s “one size fits all” rules, and declared, “I didn’t buy my property 25 years ago to look through a 30 foot window!...This really infringes on my rights as a property owner!”

“I believe shoreline zoning should be canned,” agreed Steve DeWitt. “We’ve got too many rules and regulations and more taxes and fees than we can deal with now!”

There was a comment that there is still much research to be done, and many unanswered questions. At the Dunbar hearing, Rep. Mursau had mentioned new studies showing that in northern lakes and streams, excess nutrients in the water often comes from decaying leaves and other vegetation in exactly the type of natural areas being prescribed for remediation.

Wayne Gerondale asked why the county had put in “a whole flock of culverts” along Shore Drive that go to nothing but dead ends.

Mark Monnette, Town of Peshtigo Supervisor, said the new rules will affect more people than anyone imagines. He pointed out, as had a previous speaker, that about 20 years ago the state had decided that all drainage ditches dug years ago in the Town of Peshtigo had become navigable streams.

Another speaker mentioned the wildfires in California that had resulted from insistence on leaving things “natural” and unmaintained, and declared that allowing long grass and brush to grow unrestrained will result in “more forest fires, more bugs, more critters and more snakes” near homes.

Jack Cahill declared he and his neighbors on Shore Drive, “Would pretty much like to be left alone, with no more regulations.” He added he hadn’t said much good about the DNR for years but did appreciate their work in getting rid of the phragmites that had plagued the shoreline. But, he asked, “How can they justify spending $300,000 to get rid of the phragmites so we can enjoy our lake views, and then tell us we have to plant trees so we can’t see the water?”

Sauve pointed to Chuck Boyle, and said he deserves much of the credit for the phragmite control program.

Vickie Kollrath agreed with Cahill, “Just leave us alone....We’ll pay our taxes, but we’ve got too many regulations!”

Dr. Wendell Johnson, a retired UW professor, sympathized with those who wanted things to be left as they always were, but said new rules are needed. “Many things have changed in the past 100 years,” he declared. “Populations have increased, septic systems have failed...The things we do and the things our neighbors do affects others...One thing this law tries to do is rectify the problems we face with our properties..This isn’t the old days...We can’t turn back the clock, our population is increasing, and we have to deal with the problems that causes.”

One lady commented on a recent visit to a southern Wisconsin city where the lake is ringed with houses and concrete, and said she did not want her area to be like that.

Other speakers continued to oppose added regulations. “Our property values have already gone down on the Bay,” one declared. “We don’t need any more rules to make things worse!”

A few old timers recalled the days when fine sand beaches were enjoyed all along the Green Bay shore line in the City of Marinette and the Town of Peshtigo.

To more comments that the problems come from the state, Chuck Boyle said he had spoken with DNR Secretary Cathy Stepp, and she had promised him she would come to Marinette County for information exchange meetings whenever they invited her.

“Let’s be reasonable as we approach our future,” urged Supervisor Pazynski. “Anyone will abide by rules as long as they’re reasonable and judicious...But a lot of us bought shoreland property for the view, and now they’re limiting that view.” He suggested e-mailing state legislators, asking them to help protect shoreland property values and the rights of shoreland property owners.

LaVerne Gregor was one of the few who suggested some of the impermeable surface rules may be justified. She said people buy small lots and then want to fill the whole thing with buildings and pavement. She cited developments in West Bend that she would hate to see duplicated here.

“I feel we have more than enough restrictions, and some over restrictions,” declared Dick Omdahl. He found it ludicrous that property owners are not allowed to make improvements to a drainage ditch, and added, “I’d urge that we not install any more restrictions, now or in the future!”

Pazynski noted as the meeting adjourned that there has been erosion caused by natural runoff for years, and shorelines have always been changed by nature. “Are we now going to say that God is wrong too?” he asked.


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