Can local government be more restrictive than the state in the shoreland zone?
No, according to legislative intent; but courts say yes, sure they can
While a debate continues over the validity of certain municipal restrictions on various land uses—uses ranging from nonmetallic mining operations to shipping containers—specifically, whether those restrictions are a legitimate use of a local government’s general policing powers, another, perhaps more important question has been raised about local government regulatory powers within the shoreland zone.
To wit, can such land-use restrictions apply within the shoreland area, that is, within 1,000 feet of a lake or 300 feet of a river, if they are more restrictive than the state’s shoreland standards? The question most recently concerns shipping containers as many towns and counties rush to enact moratoria and regulations to prohibit them. The thing is, the state considers shipping containers to be regulated structures within the shoreland zone, and so, by state shoreland zoning standards, a shipping container would be allowed if it met the same criteria as other regulated structures. For example, if someone applied to a county for a permit for a shipping container to be used as a boathouse, the state would allow that so long as it met other boathouse criteria. Same thing for shipping containers used as houses.
Because no local shoreland zoning standard can be more restrictive than the state, town and municipal prohibitions on shipping containers used in those ways in the shoreland zone would seem to be unenforceable on their face.
But some towns and counties disagree. To cite but one example, the town of Minocqua has enacted a temporary moratorium on all shipping containers while it develops a prohibitive ordinance, and town chairman Mark Hartzheim believes the moratorium and any subsequent ordinance can be enforced inside the shoreland zone:
Being that village powers give the town board authority to regulate broadly for the welfare of the public, I would argue that our moratorium is attempting to address disorderly patterns of development regarding portable shipping containers whether they are intended for human habitation or for use as accessory structures. I believe citizens of ordinary sensibilities would deem their use in many cases as detrimental to the public welfare, detrimental to property values and continued peace and quiet enjoyment of their property and as such I would also argue that our moratorium and future ordinance, if any, would have the authority to regulate, including in shoreland areas.
And so it begs the question: Just what land-use regulatory powers do towns and municipalities actually have in the shoreland zone?
The rationale for being able to regulate land use in the shoreland zone more restrictively than the state does rests in the language of the law. While lawmakers in 2015 clearly intended that local governments should not be able to subvert property rights by enacting unreasonably restrictive measures in shoreland areas, they didn’t write the law that way. Indeed, the law says only that a county shoreland zoning ordinance “may not regulate a matter more restrictively than the matter is regulated by a shoreland zoning standard.”
Given that language, some argue that restrictions derived from other grants of authority—such as a town’s use of non-zoning general police powers, or its subdivision ordinance, or the county’s use of general zoning rather than its shoreland zoning ordinance—can be more restrictive inside the shoreland zone than the state standard.
Property rights activists take that as an absurd conclusion since state shoreland zoning standards are established to control what goes on in the shoreland, period, doing what is necessary to protect water quality and then doing no more. To allow another statute to overturn that intention makes no sense, they argue.
Unfortunately for those advocates and for legislative intent, the courts have intervened on the side of ever more restrictions and ever fewer property rights.
That theory—that local ordinances can be more restrictive than the state so long as they are not a zoning ordinance—has already been tested once in court, and the state Supreme Court, in Anderson v Newbold, ruled that the town of Newbold could be more restrictive than the state, albeit with a big caveat. I have already provided a brief overview of this case in “Moratoria, Moratoria,” but I want to now dive into an in-depth look at the flawed reasoning behind the majority’s decision, as well as the dissenting opinion, which clarifies what the statutes actually state, all of which calls for the Legislature to take action to overturn the majority decision.
The outcome is of utmost importance, not only for property rights, but for affordable housing and other critical land-use needs, for if the current case law paradigm remains, it will open the floodgates—and already is—for radical activists and NIMBY property owners to shut down almost all reasonable development, not just in the shoreland zone but through entire municipalities and even counties. Let’s take a look.
A decision and a dissent …