Wisconsin REALTOR® 
January 2000 
Volume 16, Number 4

	Affordable Housing
	Annexation
	Brownfields
	Floodplains
	Impact Fees
	Private Property Rights
	Septic Systems (Comm 83)
	Shoreland Zoning
	Smart Growth
	Use Value Assessment
	Wetland Mitigation
Other Resources
	Land Use Web Sites
	Land Use Legal Updates
	Land Use Wisconsin Realtor® Articles

Archive Land-Use News Articles

New Exceptions to Shoreland Setback Requirement

By Tom Larson

As part of Wisconsin’s 1999-2001 biennial budget, a special exception was created for certain structures within the shoreland setback area. Under newly created Wis. Stat. § 59.692 (1v), counties are now required to grant special zoning permission for the construction or placement of a structure on property within the shoreland setback area (which, in most counties, is 75 feet from the ordinary high water mark or “OHWM”), if all of the following apply:

1. the part of the structure that is closest to the water is located at least 35 feet landward from the OHWM;

2. the total floor area of all the structures in the shoreland setback area of the property will not exceed 200 square feet. In calculating this square footage, boathouses shall be excluded;

3. the structure that is the subject of the request for special zoning permission has no sides or has opened or screened sides; and

4. the county must approve a plan that will be implemented by the owner of the property to preserve or establish a vegetative buffer zone that covers at least 70% of the half of the shoreland setback area that is nearest to the water.

Prior to this recent change, these types of structures were prohibited unless they were essential to provide pedestrian access to a pier because of steep slopes or rocky, wet, or unstable soils, and unless various other conditions were met. According to the Department of Natural Resources, if a landowner is unable to meet the requirements under the special exception, counties may continue to allow the construction of stairways, walkways, and lifts within the shoreland area (including within 35 feet of the OHWM) as long as the proposed stairway, walkway, or lift provides the minimum relief necessary to provide pedestrian access to a pier, and where a steep, rocky or unstable slope exists.

By allowing landowners to construct gazebos, decks, stairways, lifts, and other structures without sides within the shoreland setback, the special exception should provide landowners with greater access to the shoreland and greater enjoyment of their property.

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Brownfields Program Receives Some Needed Changes

By Tom Larson

Wisconsin's 1999-2001 biennial budget includes a number of new programs and improvements to existing programs aimed at the redevelopment of brownfield properties in Wisconsin. Some of these programs include:

Brownfields Sites Assessment Grants for Local Governments (Wis. Stat. § 292.75)
Creates a new grant program that can be used by local governments to take the first steps to assess, clean up, and redevelop a brownfield property. This $1.45 million grant program will be administered by the DNR.

• eligible activities include:

- site investigation;
- demolition of structures;
- removal of abandoned containers;
- removal of underground storage tanks; and
- asbestos abatement

• requires 20% match from local government
• no more than 15% of the grant funds can go to one community each year
• local government must not have caused the contamination
• responsible party must be unknown or unable to pay

Environmental Remediation Tax Incremental Financing (ER-TIF) (Wis. Stat. § 66.462)
The budget makes a number of improvements to the ER-TIF law to make this a more effective tool for financing brownfield projects. Created in the 1997-1999 state budget, ER-TIFs allow political subdivisions to pay for specific environmental expenses (e.g., investigation, cleanup) from the increased property taxes generated from the redeveloped property. Some of the changes in the 1999-2001 state budget include the following:

• expands eligible costs to include property acquisition costs, demolition costs, disposal of abandoned containers, removal of underground storage tanks, and asbestos removal;
• eligible costs must be reduced by any money the local government received or will receive from a local, state, or federal program for the remediation or contamination;
• allows local governments to create ER-TIFs for multiple contiguous parcels of property;
• allows local governments to use ER-TIFs to pay for a cleanup whether or not the local government owns the property; and
• ER-TIFs can be used to address area-wide groundwater contamination.

Brownfield Grants (Wis. Stat. § 560.13)
The Brownfields Grant Program, the cornerstone of the financial programs passed in the last biennial budget, will expand over the next two years increasing the amount of funding available to $12.2 million. The sunset on the fee that funds the Brownfields Grant program remains until July 1, 2001. Also, a Brownfields grant award does not preclude a project from receiving other state loans or grants.

Sustainable Urban Development Zone (SUDZ) program
The SUDZ Program is a new pilot program that will promote financial incentives to clean up and redevelop brownfield properties in five targeted cities. The program makes available $2.45 million for investigation and cleanup in Milwaukee, Green Bay, Oshkosh, Beloit, and La Crosse.

Economic Development Grants (Wis. Stat. § 560.139)
The Department of Commerce will provide a total of $900,000 in grants to the Milwaukee Economic Development Corporation (MEDC) over the biennium. The grants will be used for remediation and redevelopment activities in the Menomonee River Valley. Persons awarded grants will be required to provide a 50% match towards project costs.

Voluntary Party Liability Exemption (VPLE) Process

• Eligibility (Wis. Stat. § 292.15(1)(f)) - Anyone who completes the necessary steps to receive a Certificate of Completion (“COC”) is now eligible to receive the Voluntary Party Liability Exemption (“VPLE”) because the state budget language removed the “reckless and intentional” criteria. A voluntary party now means any person who submits an application and pays the fees.
• Exemption (Wis. Stat. § 292.15(2)(a)) - Amended to clarify to that the VPLE applies not only to discharges of hazardous substances that are present on the property, but subsequently migrated off-site. Also states that the VPLE applies only to hazardous substances that were released before the environmental investigation was approved by the DNR.
• Natural Attenuation (Wis. Stat. § 292.15(2)(ae)) - Voluntary parties can receive a COC before groundwater contamination is brought into compliance with state groundwater enforcement standards if all the requirements to receive the VPLE are met and:

• The DNR determines that natural attenuation will restore the groundwater quality in accordance with s. NR 726.05; and
• If required by the DNR, the voluntary party obtains and maintains environmental insurance to cover cleanup costs if natural attenuation fails.

• Property Affected by Off-site Discharge (Wis. Stat.§ 292.15(2)(ag))— Voluntary parties can receive a COC for properties where a hazardous substance exists on the property that originates from an off-site source if all of the following conditions have been met:

• The voluntary party receives a written determination from the DNR that he/she has met all of the requirements under s. 292.13 for the off-site exemption;
• The voluntary party continues to satisfy the conditions of the off-site exemption, including cooperating with the DNR and the responsible parties; and
• All other VPLE requirements are met.

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