Village of Mukwonago, WI Division 8 Shoreland-Wetland Zoning Ordinance

§ 100-282 Shoreland-wetland zoning district.

[Ord. No. 815, § III, 11-18-2008]

(a) District boundaries of shoreland-wetlands.

(1) The shoreland-wetland zoning district includes all wetlands in the municipality which a re five acres or more in size and are shown on the final wetland inventory map that has been adopted and made a part of this division 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 listed in the department publication Surface Water Resources municipality shall be presumed to be navigable if they are listed in the department publication Surface Water Resources of Waukesha County or are shown on the United States Geological Survey quadrangle maps or other zoning base maps which have been made a part of this division. Lakes, ponds and flowages not listed in the publications or maps referenced in this section shall be evaluated on a case-by-case basis to determine whether they are navigable under the laws of the state following the procedure in Subsection (a)(2) of this section.

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 division. Rivers and streams not shown on the maps referenced in this section shall be evaluated on a case-by-case basis to determine whether they are navigable under the laws of the state following the procedure found in Subsection (a)(2) of this section.

(2) Determinations of navigability and ordinary high water mark location shall initially be made by the Zoning Administrator. When questions arise, the Zoning Administrator shall contact the appropriate district office of the department 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 the actual field conditions at the time the maps were adopted, the Zoning Administrator shall contact the appropriate district office of the department to determine if the shoreland-wetland district boundary as mapped is in error. If department 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 land use or building permit in accordance with the regulations applicable to the correct zoning district. In order to correct wetland mapping errors shown on the official zoning maps, the Zoning Administrator shall be responsible for initiating a map amendment within a reasonable period.

(4) Under W.S.A., § 144.26(2m), notwithstanding any other provision of law or administrative rule, wetland zoning ordinances required under W.S.A., § 61.351 and ch. NR 117, Wis. Adm. Code, do not apply to lands adjacent to farm drainage ditches if:

a. Such lands are not adjacent to a natural navigable stream or river;

b. Those parts of the drainage ditches adjacent to such lands were not navigable streams before ditching; and

c. Such lands are maintained in nonstructural agricultural use.

(b) Permitted uses in shoreland-wetlands. The following uses are permitted subject to the provisions of W.S.A., chs. 30 and 31, and 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 a zoning permit and which may involve wetland alterations only to the extent specifically allowed below:

a. The practice of silviculture, including limited temporary water level stabilization measures 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 growing and harvesting cranberries;

c. The maintenance and repair of existing drainage systems, where permissible under W.S.A., § 30.20, to restore preexisting levels of drainage, including the minimum amount of filling necessary to dispose of dredged spoil, provided that the filling is permissible under W.S.A., ch. 30, 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 and walkways, observation decks and trail bridges built on pilings, including limited excavating and filling necessary for such activities;

f. The installation and maintenance of sealed tiles for the purpose of draining lands outside the shoreland-wetland zoning district if such installation or maintenance is done in a manner designed to minimize the adverse impact upon the natural functions of the shoreland-wetland listed in Subsection (d)(1) of this section; and

g. The maintenance, repair, replacement and reconstruction of existing highways and bridges, including limited excavating and filling necessary for such activities.

(3) Uses allowed with a zoning permit and which include wetland alterations only to be the extent specifically allowed 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 allow access to uses permitted under Subsection (b) if:

1. The road cannot, as a practical matter, be located outside the wetland;

2. The road is designed and constructed to minimize the adverse impact upon the natural functions of the wetland listed in Subsection (d)(1) of this section;

3. The road is designed and constructed with 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 if:

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 paragraph shall be used exclusively for the permitted purpose;

2. Only limited filling and excavating necessary for developing public boat launching ramps, swimming beaches or constructing park shelters or similar structures is allowed;

3. Constructing and maintaining roads necessary for the permitted uses under this paragraph is allowed only if such construction and maintenance meets the criteria in Subsection (b)(3)a; 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 improving wildlife habitat or to otherwise enhance wetland values.

d. The construction and maintenance of electric and telephone transmission lines and water, gas and sewer lines, and related facilities and the construction and maintenance of railroad lines, provided that:

1. The transmission and distribution lines and related 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 the adverse impact upon the natural functions of the wetland listed in Subsection (d)(1).

(c) Prohibited uses in shoreland-wetlands.

(1) Any use not listed in Subsection (b) is prohibited, unless the wetland or a portion of the wetland has been rezoned by amendment of this division.

(2) The use 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) Rezoning shoreland-wetlands.

(1) Rezoning of a shoreland-wetland shall require amendment of the Final Wisconsin Wetland Inventory Map as adopted. To insure that any amendment will be consistent with the shoreland protection objectives of W.S.A., § 144.26, the municipality shall not rezone a wetland in a shoreland-wetland zoning district, or any portion thereof, where the proposed rezoning may result in a significant adverse impact upon any of the following:

a. Storm and floodwater storage capacity;

b. Maintenance of dry season stream flow or the discharge of groundwater to a wetland, the recharge of groundwater from a wetland to another area or the flow of groundwater through a wetland;

c. Filtering or storage of sediments, nutrients, heavy metals or organic compounds that would drain into navigable waters;

d. Shoreline protection against soil erosion;

e. Fish spawning, breeding, nursery or feeding grounds;

f. Wildlife habitat; or

g. Special recreational, scenic or scientific interest areas, including scarce wetland types and endangered species habitat.

(2) Upon notification of a proposed amendment as required by law, if the district office of the department determines that a proposed rezoning may have a significant adverse impact upon any of the criteria listed in Subsection (d)(1) of this section, the department shall so notify the municipality of its determination, either prior to or during the public hearing held on the proposed amendment.

(3) If the department notifies the municipal planning agency in writing that a proposed amendment may have a significant adverse impact upon any of the criteria listed in Subsection (d)(1) of this section, that proposed amendment, if approved by the municipality, shall not become effective until more than 30 days have elapsed since written notice of the council or board approval was mailed to the department, as required by law. If the department notifies the council or board within the thirty-day period that it intends to adopt a superseding shoreland-wetland zoning ordinance for the municipality under W.S.A., § 62.231(6) or 61.351(6), the proposed amendment shall not become effective until that ordinance adoption procedure is completed or otherwise terminated. The record of the council or board decision on the proposed amendment shall advise the petitioner of the provisions of this section.

§ 100-283 Shoreland protection overlay district and floodplain/wetlands setback zoning standards.

[Ord. No. 876, § I, 6-19-2014]

(a) Purpose. The shoreland protection overlay district is intended to describe the lands and regulations pertaining to the use of the land within shoreland areas of the Village of Mukwonago, pursuant to the authority for the protection of shoreland properties provided to municipalities by W.S.A., §§ 61.35 and 61.353. These regulations promote the appropriate use of properties surrounding areas, as well as accomplishing the following:

(1) Promote the health, safety, and general welfare of the public by buffering flood plains and wetlands and surrounding bodies of water needed for the conveyance and filtering of stormwater by preserving the natural landscape of the floodplains, wetlands and buffer.

(2) Promote the health, safety, and general welfare of the public by buffering shorelands or waterways (navigable lakes, ponds and flowages) outside of a shoreland protection overlay district needed for grading and conveyance and filtering of stormwater.

(3) Protect persons and property from undue hardship by controlling the placement of buildings an appropriate distance away from shorelands, floodplains, wetlands and surrounding bodies of water.

(b) Definitions. Specific terms and phases within this § 100-283 shall have the definitions as referenced below:

ACCESSORY STRUCTURE

Defined as "accessory use or structure" in § 100-29.

PRINCIPAL BUILDING

The main building or structure on a single lot or parcel of land, and includes any attached garage, attached porch and attached decks.

SHORELAND

Defined as "shorelands" in § 100-29 of this Code.

(c) District boundaries. The shoreland protection overlay district requirements of this section are standards that apply pursuant to W.S.A., § 61.353, to shoreland annexed to the Village of Mukwonago after May 7, 1982, that prior to annexation was subject to a county shoreland zoning ordinance under W.S.A., § 59.692. The requirements of this shoreland protection overlay district may be more restrictive than the underling zoning district or districts placed on a property; however, the shoreland protection overlay district requirements do not supersede the standards of the floodplain zoning districts of 100-271 through 100-282. In all cases, the more restrictive standards apply. Outside of the district boundaries of the shoreland protection overlay district, the standards of the underlying zoning district apply, except for the setbacks identified in § 100-283(k). The shoreland protection overlay district shall include all lands in the Village of Mukwonago that are within the following distances from the ordinary high water mark of the following navigable waters:

(1) One thousand feet of navigable lakes, ponds, or flowages; and

(2) Three hundred feet from a river or stream or the landward side of the floodplain, whichever is greater.

(d) Mapping of the district boundaries. The shoreland protection overlay district boundary shall apply to all properties within the Village of Mukwonago as described in § 100-283(c) whether mapped or not on the official zoning map of the Village of Mukwonago. When information is available regarding the ordinary high-water mark of navigable waters for properties through prior or new engineering studies, the Village Board shall strive to at least annually update the zoning map with the shoreland protection overlay district boundary. The mapping of district boundaries also includes the following:

(1) Any property annexed or attached to the Village of Mukwonago within the distance of navigable waters as described in § 100-283(c) shall be automatically placed in the shoreland protection overlay district.

(2) The shoreland protection overlay district does not include lands adjacent to an artificially constructed drainage pit ditch, pond, or any stormwater management facility which are non-hydrologically connected to a natural navigable body of water.

(e) Determination of navigability. A determination of navigability and ordinary high water mark locations shall be made by the Village Zoning Administrator. Lakes, ponds and flowages shall be presumed to be navigable if listed in the Wisconsin Department of Natural Resources Service Water Data, or shown on the United States Geological Survey Quadrangle Maps, or other applicable zoning base maps. Rivers and streams shall be presumed to be navigable if designated as continuous waterways, or intermittent waterways shown on the United States Geological Survey Quadrangle Maps. To assist in the determination of navigability, the Zoning Administrator shall utilize engineering studies and will also seek the assistance of the Wisconsin Department of Natural Resources for a final determination of navigability or for the ordinary high water mark.

(f) The building location within the shoreland protection overlay district.

(1) Principal building location:

a. All principal building shall be located at a minimum distance of 50 feet from the ordinary high water mark or a minimum of 20 feet from a mapped floodplain or identified wetland boundary, which ever distance is greater from the ordinary high water mark. In addition, any principal building shall be located at least two feet above the floodplain elevation. The Village plan commission may increase the minimum distance from the principal building from a mapped floodplain or identified wetland due to the size or use intensity of the building, the need to further buffer a sensitive environmental area or the need to provide an increased area for stormwater runoff and water quality from the principal building.

b. The principal building may be located at a distance less than required in § 100-283(f)(1)a if the principal building is constructed or placed in a lot immediately adjacent on each side to a lot containing a principal building and the principal building is constructed or placed within a distance equal to the average distance of the principal buildings on adjacent lots from the ordinary high water mark. However, the minimum distance from the ordinary high water mark shall not be less than 35 feet.

c. The minimum distance requirements of §§ 100-283(f)(1)a and 100-283(f)(1)b shall not allow a principal building to be placed closer to a property line than allowed within the underlying zoning district.

(2) Accessory structure location:

a. All accessory structures shall be located a minimum distance of 50 feet from the ordinary high water mark or a minimum of 20 feet from the mapped floodplain of identified wetland boundary, whichever distance is greater from the ordinary high water mark. In addition, any accessory structures shall be located at least two feet above the floodplain elevation. The Village plan commission may increase the minimum distance for an accessory structure from a mapped floodplain or identified wetland due to size or use intensity of the structure, or are needed to further buffer a sensitive environmental area or the need to provide an increased area for stormwater runoff and water quality from the building.

b. The minimum distance requirements of § 100-283(f)(2)a shall not allow an accessory structure to be placed closer to a property line than allowed within the underlying zoning district.

(g) Other minimum distance requirements within the shoreline protection overlay district.

(1) All other man made development or construction on a property, such as a parking lot, parking lot access drive, driveway, sidewalk or paved trail, playground equipment, utility or telecommunication equipment, retaining wall, etc., shall be located a minimum distance of 35 feet from the ordinary high water mark, or a minimum of 20 feet from a mapped floodplain or wetland boundary, whichever distance is greater from the ordinary high water mark. The Village plan commission may increase the minimum distance for a man made development from a mapped floodplain or identified wetland due to size or use intensity of the structure, needed to further buffer a sensitive environmental area or the need to provide an increased area for stormwater runoff and water quality.

(2) The minimum distance requirements of § 100-283(g)(1) shall not allow a man made development or construction building to be placed closer to a property line than allowed within the underlying zoning district or the parking standards of the zoning ordinance.

(h) Required buffer zone and maintenance within the shoreland protection overlay district.

(1) Any person or entity who owns shoreland property containing vegetation shall maintain a vegetative buffer zone along the entire shoreline of their ownership and extending 35 feet from the ordinary high water mark of navigable water, except as provided for in § 100-283(h)(2) and (3).

(2) If the vegetation in a vegetative buffer zone contains invasive species or dead or diseased vegetation, the owner of the shoreland property may remove the vegetation. If owner removes all of the vegetation in the vegetative buffer zone, the owner shall establish a vegetative buffer zone with new vegetation.

(3) Any person or entity required to maintain or establish a vegetative buffer may remove all of the vegetation in part of the buffer zone in order to establish a viewing or access corridor that is no greater than 30 feet for every 100 feet of shoreline frontage, extending no more than 35 feet from the ordinary high water mark.

(4) Not withstanding the requirements of §§ 100-283(h)(1) and 100-283(h)(2), any man made development or construction that enhances the recreation and/or open space use and enjoyment of the buffer area may be allowed if permitted by Wisconsin Department of Resources, or allowed by the Village Zoning Administrator if the Wisconsin Department of Natural Resources does not have permanent jurisdiction, provided the development or construction is allowed in the underlying zoning district, or any floodplain zoning district. Such development or construction activity may include a wood chip path, stone or wood steps on a steep slope, boardwalk, wood or stone sitting bench, canoe launch, boat dock or bird feeder.

(i) Statement of deed restriction and enforcement. The regulations and standards within this § 100-283 may conflict with or be less than private deed restrictions placed upon property within the Village by the restrictive covenants or the by the restrictions placed on a plat of subdivision or certified survey map. The Village of Mukwonago does not enforce private deed restrictions. The Village Zoning Administrator shall be responsible for the enforcement of the restrictions and standards of this § 100-283, with assistance from the Village Building Inspector, Village Attorney and Village engineer and Village planner.

(j) Other floodplain and wetland setbacks. In all zoning districts, all principal buildings, accessory structures, and man-made development or construction shall be located at a minimum of 20 feet from any mapped floodplain or indentified wetland boundary that are not within its shoreland protection overlay district. In addition, any principal building and accessory structure shall be located at least two feet above the floodplain elevation. The Village plan commission may increase the minimum standards for a principal building and/or accessory structure from a mapped floodplain or identified wetland due to size or use intensity of the building, needed to further buffer a sensitive environmental area or the need to provide an increased area for stormwater runoff and water quality from the building.

§ 100-284 through § 100-300. (Reserved)