ORDINANCE NO. 2005-09

 

                                       AN ORDINANCE AMENDING SECTION 12.02

                                 OF THE TOWN OF EAST TROY MUNICIPAL CODE

                         PERTAINING TO REGULATION OF MOORINGS AND PIERS

 

 

The Town Board of the Town of East Troy, Walworth County, Wisconsin, does hereby

 

ordain as follows:

 

1.         That Section 12.02 of the Town of East Troy Municipal Code is hereby

 

amended and recreated to read as follows:


SECTION 12.02 REGULATION OF MOORINGS AND PIERS

 

1.         Chapter 30 of the Wisconsin Statutes is hereby adopted and incorporated herein by reference to the greatest extent legally permissible to provide for the Town of East Troy=s ability to exercise primary or concurrent jurisdiction over navigable waters in the Town of East Troy.  To the greatest extent permissible, this ordinance shall be deemed to supplement and create additional regulations as currently exist or may be amended by changes in the Wisconsin Statutes, Administrative Code or other lawful enactments by the State of Wisconsin.

 

2.         Definitions.

A.        ABoat Shelter@.  A structure in navigable waters designed and constructed for the purpose of providing cover or protection for the berth place for watercraft, which shall include but is not limited to boat hoists or boatlifts. [Sec. 30.02(lc)].

B.        ADNR or WDNR@.  DNR or WDNR shall mean the Wisconsin Department of Natural Resources or any other state agency or its representatives or designees having jurisdiction over any matter relating to the subject matter of this ordinance, navigable waters, riparian rights, etc.

C.        AMarina@.  A facility for the rental of boats or mooring space that consists of a pier, pier slips, wharfs, mooring structures, or a combination of the same for securing watercraft.

D.        AMooring@.  A Amooring@, when used as a noun, shall mean a structure, device, or hook up of any kind to which, or by which, a boat may be secured, held in place, or moored.  A mooring shall include, but not be limited to, a mooring buoy, pier, boat shelter, boat hoist, marina, or wharf.  Each separate location in which a boat is moored shall constitute a separate mooring for purposes of this ordinance.  Watercraft not requiring any state registration shall be exempt from any total mooring count or requirement. [Sec. 30.01(3e)].

E.         AMooring Anchor@.  Any anchor or weight which is designed to rest on the bed or to be buried in the bed of a navigable water, which is designed to be attached by a chain, cable, rope, or other mechanism which is designed to be left in position permanently or on a seasonal basis for the purpose of securing or attaching to a watercraft. [Sec. 30.01(3m)].

F.         AMooring Buoy@.  Any float or marker which is attached to a mooring anchor and either is suitable for attachment to a boat or facilitates the attachment of the boat to the mooring anchor.  For purposes of this ordinance, a mooring buoy shall be presumed to mean a mooring anchor and mooring buoy, along with related equipment designed to secure a watercraft. [Sec. 30.01(3s)].

G.        ANavigable Waters@.  Any body of water which is navigable under the laws of this state. [Sec. 30.01(4m)].

H.        APier@.  Any structure extending into navigable waters from the shore with water on both sides, built or maintained for the purpose of providing a berth or mooring for watercraft, or for loading or unloading cargo or passengers onto or from watercraft. [Sec. 30.01(5)].

I.          ARiparian Property@.  Riparian Property shall refer to property abutting navigable waters, and such property shall be deemed to be a single property whether or not the same owner has separate tax key numbers or is recorded under a plat showing multiple lots or parcels for the same.

J.         ARiparian Rights Zone@.  The Riparian Rights Zone shall refer to that part of navigable waters to which a riparian owner or a property owner who may have riparian rights through an easement permitted under Chapter 30 of the Wisconsin Statutes or other lawfully recognized means, to exercise riparian rights over navigable waters to place moorings, piers, structures or devices consistent with the lawful exercise of riparian rights.

K.        AShore@.  Shall mean the ordinary high water mark as determined by the DNR.

L.         ASwimming Rafts@.  Swimming rafts shall be broadly defined to include rafts, recreational platforms, floats or other devices that are moored either seasonally or for periods in excess of three (3) days, or ten (10) days per calendar year, anywhere in the applicant=s Riparian Rights Zone and which are anchored or attached in any way to the lake bed.  Reflectors are required for any device moored overnight.

M.       ATemporary Rigging@.  A temporary rigging shall include any device whose purpose is to moor a boat temporarily, such as a rigging mooring for sailboats.  Temporary riggings shall not be considered a mooring for purposes of this ordinance.

N.        AWatercraft@.  Any device used and designed for navigation on water.  Watercraft and Aboat@ shall be deemed synonymous for purposes of this ordinance. [Sec. 30.01(3s)].

O.        AWharf@.  Any structure in navigable waters extending along the shore and built or maintained for the purposes of providing a berth for watercraft or for loading or unloading cargo or passengers onto or from watercraft. [Sec. 30.01(3s)].

 

3.         Intent. This ordinance is intended to amend, supplement and where applicable, supersede the predecessor ordinance and statutory references.  The predecessor ordinance, when referred to herein, shall be deemed to be applicable to any mooring, structure or other matter which requires a permit under this ordinance but may be deemed to be Agrand-fathered@ or constitute a non-conforming use to the extent such structure has not been changed, relocated, expanded or altered and otherwise was properly registered or permitted and remains in full compliance with such predecessor ordinance.  It is the intent of this ordinance to promote and enhance:

A.        the health, safety and welfare of individuals using navigable waters;

B.        the long-term quality of navigable waters in the Town of East Troy;

C.        the beauty and aesthetic appearance of navigable waters and properties and improvements adjacent to such navigable waters;

D.        the orderly usage of navigable waters by riparian owners and public;

E.         the harmonious and non-exclusive use of all areas of navigable waters in the Town of East Troy in conjunction with the rights or riparian property owners; and

F.         to discourage the use of moorings, piers, wharfs, marinas or other structures which unfairly restrict or are used to assert exclusive or excessive privileges, control, or use of navigable waters.

 

4.         Permit.  A permit shall be required for each property having a pier, mooring, navigational or mooring buoy, marina, temporary rigging, or other structure or device that is placed wholly or in part in navigable waters.

 

5.         Regulations.  All permits for moorings, piers, wharfs and other structures shall be subject to the following regulations.  For the purposes of this section, all of the foregoing requiring a permit shall be referred to as a Amooring@.  Elsewhere in this ordinance, unless such structural devices are specifically named, Amooring@ shall presumptively refer to all structures, devices or any other matter requiring a permit under this ordinance.

A.        No mooring shall materially obstruct navigation.

B.        The establishment of a mooring shall not be detrimental to any significant fish or wildlife habitat area or sensitive environmental area.  The Town shall consider any application dealing with such issue with the intent of minimizing or avoiding any detrimental impact.  If such issues are presented, any review deadlines shall be extended to 60 days after the Town Board reviews investigative reports from the DNR or its own experts retained to investigate such issues.

C.        The use of moorings shall not unfairly restrict or be used to assert exclusive or excessive privileges, control or use of navigable waters.  Moorings may not enclose navigable waters with the exception of designated swimming area, which shall be permitted only after approval is granted by the DNR and an applicant for the same follows the permit process set forth herein for moorings.

D.        The number of moorings shall not exceed two (2) for the first 50 feet, or fractional part thereof and one (1) additional mooring for each additional 50 feet  of shoreline owned by an applicant.  Notwithstanding the foregoing, every riparian parcel, or contiguous parcel owned by one (1) entity or individual shall be permitted to have no more than 10 moorings.

E.         Boats moored to buoys thereto shall be at least 20 feet from any other mooring, boat, or structure located in navigable waters, exclusive of those structures to which such boat is moored.

F.         No mooring shall be located within 50 feet of any properly marked swimming area or unreasonably threaten any properly marked swimming area as determined in the sole discretion of the Town Board, which may require additional safety features or conditions.

G.        Any mooring buoys shall be placed within 100 feet from shore.  The location and placement of any mooring buoy must be first permitted by the Town Board before its installation.

H.        No pier may extend waterward from the shore more than the lesser of 50 feet or length necessary to access 3 feet water depth, unless the applicant can demonstrate, after a public hearing at a special Town Board meeting a need for a variance.  A pier may not have a lateral extension either in the form of an AL@ or a AT@ more than 6 feet in width and may not exceed 12 feet in total length.  Other configurations may be allowed through the permit process with an explanation for the reason and use of the same.

I.          Mooring buoy areas shall be marked in a manner which notified the public of the boundaries of the mooring area and assists in navigation near the mooring area.  These markers shall be consistent with the uniform aids to navigation established under Chapter 30, Wis. Stats.

J.         No portion of a mooring shall be placed within 12 feet of a lot line or extension of the lot line into the navigable waters.  Where such lot line extension is not at a right angle, the respective rights of neighboring riparian owners shall be determined by drawing a cord between each pair of property lines at the point where each line meets the shoreline, extending perpendicular lines into the navigable water from each end of such cords, and bisecting the resulting angles.  The bisecting lines shall be considered the coterminous riparian rights line extension off of which the 12 foot setback shall be determined.  In any circumstances where the same would create an undue hardship or would not enable respective property owners to have adequate space to establish their piers and provide for safe and reasonable access thereto, the Town Board shall conduct a hearing and equitably allocate the areas in which a pier may be located so that each of the respective property owners has the ability to place a pier and have safe and reasonable access thereto.  The town may grant a permit notwithstanding the setback requirements, but may limit the location, shape, and length of a pier in such circumstances.


K.        To the extent that the Wisconsin Department of Natural Resources does not have jurisdiction over, declines to exercise jurisdiction over or otherwise fails to establish the Riparian Rights Zone between neighboring property owners or amongst competing owners of riparian property, the Town of East Troy shall make such determination.  This determination shall be made using the methodology provided elsewhere in this ordinance with respect to competing property owners and shall take into account the interests of the public to use navigable waters and any relevant consideration given the interests of the parties involved.  Where an issue arises regarding the competing interests of co-owners of property or property that is held jointly or in common with more than one party, the Town may allocate riparian rights amongst the owners and allocate the same as otherwise set forth in this ordinance.  The Town Board may also determine to decline jurisdiction over such matters if neighboring property owners, the public or reasonable use of such frontage is not affected thereby.

L.         Only riparian owners or those holding riparian rights consistent with the state law, including __ 30.131 and 30.133, Wis. Stats., may make an application under this section.  Non-riparian owners who claim riparian rights must establish the same consistent with the foregoing statutes, shall be required to establish the same to the satisfaction of the Town and shall fully cooperate with any informational or documentary requests that the Town may require.  Unless the applicant demonstrates a reasonable degree of certainty of entitlement to an application, the Town Board may deny any such request pending a determination by the DNR or the Circuit Court for Walworth County which will be considered by the Town as evidence of the same, but shall not be presumptive unless the Town has been notified of or participated in such proceedings.

 

6.         Marinas.  Marinas shall require a permit from the Town of East Troy in compliance with all requirements of this ordinance, supplemented by a detailed description of any uses, operations and regulations it proposes for the same and the users thereof.  A permit application shall be filed with the Town Clerk and the Lake Beulah Lake Management District.  The Town Clerk shall forward the application to all riparian property owners adjoining the applicant=s property within 250 feet.  A summary of the application shall be published as a Class 2 notice and shall identify the number of moorings applied for, shall invite written comments and/or objections to be filed with the Town Clerk, the availability of the full application at the Town Hall, and shall identify the Town Board meeting or special meeting called for that purpose, at which time interested parties may speak.  The application will be heard by the Town Board not less than 21 days after a complete application is made and no later than 60 days after the filing date.  The Town Board may, if necessary, delay consideration of an application for final decision for an additional 45 days if the Board deems that more  information or consideration is deemed necessary for any reason.  The Board, after considering an application and information presented by the applicant, any interested parties, through its own independent investigation, information from the public, the DNR or any other source, may grant, deny or conditionally approve such application.  The time periods set forth herein shall specifically supersede any other provision of this ordinance.  Upon filing of permit application the Town Clerk shall refer it immediately to the Police Chief for investigation and report at the next regular Town Board meeting or special meeting called for that purpose.  The Board after considering the application and evidence presented by all interested parties may grant or deny the application.

A.        In addition to all other requirements, an applicant for a marina shall file a DNR permit or any pier, mooring, mooring buoy or crib that relates to the subject matter of this ordinance or that is otherwise required by the DNR, with the application.  In the event that the DNR declines to issue such a permit until the Town has approved the same, the applicant shall file any and all applications, submissions or correspondence to or from the DNR with the application.

B.        Fee.  The application fee for a marina permit shall be $200.00 which shall accompany the application.

 


7.         Mooring Buoys.  Mooring Buoys, including temporary rigging buoys, shall be restricted to temporary use.  No use may exceed five (5) consecutive days and shall require a permit, which shall be renewable no more than four (4) times in any calendar year.

 

8.         Swimming Rafts.  Swimming rafts or any other recreational device or structure that is attached in any way to the lake bed may not exceed 200 square feet and a maximum height of 38 inches, inclusive of any attached accessory.  They shall be located within 100 feet of the shoreline and shall not be permitted to drift or otherwise be located, even temporarily, within 12 feet of an owner=s Riparian Rights Zone.  Any such device shall require a permit as applicable to a mooring under this ordinance.

 

9.         Permit Procedure.  Any person requesting a permit under this ordinance shall use the application form on file with the Town Clerk, which form shall be approved by the Town Board which may amend the same from time-to-time to comply with the requirements and intent of this ordinance.  The specific requirements of the application form shall be deemed to supplement the following minimum requirements:

A.        The date, name, and mailing address and phone number of the applicant.

B.        The address of the property, if different than under A. above.

C.        The names and addresses of all title holders to the lake property in question.

D.        Name and address of adjoining riparian owners and/or of the riparian owner if an easement for the applicant is the basis for the permit.

E.         A description of the mooring being applied for.  Such description shall include the construction materials used in the structure, specify the location and dimensions of the proposed structure, and identify the location of all moorings on the property and on adjacent properties.  If more than one (1) watercraft is to be secured to any individual mooring, the location of all watercraft to be secured by said moorings shall be identified.  A survey, map, or drawing to scale shall be attached identifying the property in question, the adjacent lake properties, the location of any existing structure or buoys, and any other information bearing upon the location of the proposed mooring, pier, wharf, marina or other structure.  All distances shall be accurately and clearly marked on such a diagram.

F.         A statement as to whether or not any mooring is to be rented out, leased, or used by a non-riparian owner.  If more than five (5) moorings are being applied for by any individual property owner, the intended use of said moorings shall be fully described.

G.        Any other information that is requested by the Town Board that is relevant in determining whether or not said mooring complies with the intent of this ordinance or any other applicable Town ordinance.

H.        Permit Fee.  Each application shall be accompanied by a permit fee of $25.00 or in an amount established by a resolution or ordinance duly adopted by the Town Board.

I.          Piers or moorings previously registered or permitted by the DNR are exempt from this section if placed annually in the same location and with the identical dimensions since 1993.

 

10.       Review Procedures.

A.        All permits shall be reviewed by the Town Board, who shall inform the applicant, within 60 days, as to whether the application complies with this ordinance and all applicable state regulations and statutes.

B.        Within 60 days of receipt of the application, if the Town Board deems that additional information is required to act on such application, or if there are any objections raised thereto, the Town will notify the applicant and may hold a public hearing concerning the application within 60 days after sending written notice to the applicant.


C.        After the permit is granted, it will be assigned a number matching the house number.  Such permit shall apply to each structure or mooring permitted with the number and letter assigned to each.  The permit number shall be placed on each permitted structure such that the number faces away from the shoreline.  Such number and letting (in the event of multiple permits) shall be no smaller in size and of the same lettering as is required for boat registration numbers.

D.        After a permit is granted, no subsequent permit will be required unless the mooring location or number is changed or expanded.

E.         If the Town if requested to granting a variance of the terms of this ordinance, or the Town has reason to believe that the granted of a permit may be contrary to the intent of this ordinance, the Town may grant a one (1) year conditional permit.  Such conditional permit shall be reviewed after its expiration.  The Town shall thereafter issue or deny the requested permit.

F.         A permit may be revoked if the mooring is either used or found to be in violation of the regulations stated herein or the intent and purpose of this ordinance, or is expanded, altered or relocated.

G.        The provisions and procedures of Chapter 68, Wis. Stats., shall apply to the granting, denial or revocation or conditional grant of a permit.

 

11.       Limitations of Permit.  Permit holders may not rent, lease or give mooring rights to non-riparian individuals unless approved by the Town Board.  Guest mooring is allowed but cannot exceed five (5) consecutive days or ten (10) days per season.  AGuest mooring@ shall be defined as those temporary moorings that are allowed to non-riparian owners, non-occupants or others who are permitted to temporarily moor watercraft without any form of compensation, bartering or other consideration of any type or nature.  Notification of a guest mooring must be provided to the town, in writing, and include a description of the watercraft, the registration number, the mooring location and the dates thereof.  This shall apply to any overnight mooring of a watercarft.

 

12.       This ordinance shall not supersede or affect any other more restrictive provision of the Municipal Code of the Town of East Troy or any other entity with jurisdiction.

 

13.       Any mooring, mooring anchor, mooring buoy, pier, boat shelter, wharf, marina, or any other structure which is placed or used in any navigable water in violation of this ordinance shall constitute a nuisance under the Town of East Troy Municipal Code, and may be removed as provided pursuant to the procedures set forth in _ 66.0495, Wis. Stats., or other applicable law.

 

14.       Existing Moorings.  Any mooring which has been legally established prior to the effective date of this ordinance or its predecessor ordinance shall be considered a non-conforming use and such use shall be permitted to exist notwithstanding the provisions of this ordinance or its predecessor ordinance.  In the event that such use or structure is not maintained for a least 30 days of every season following the effective date of this ordinance or its predecessor  ordinance, such non-conforming use shall be extinguished.  Any person desiring non-conforming use status shall make application for such status and shall file an application as set forth under this ordinance or its predecessor ordinance, but shall specifically designate the non-conforming use requested and shall request approval of the non-conforming use status.  If no such use is requested for approval in the 12 months following the effective date of this ordinance or in the event such status was not timely requested under the predecessor ordinance, such non-conforming use shall be extinguished.

 

15.       Rafts, Buoys, markers, Moorings and Piers.

A.        Position.  All rafts, platforms and markers shall be anchored in reasonable and prudent places and so that they will have a least six (6) inches of free board above the waterline, buoys to have at least 18 inches above the waterline, and so that they will not float or drift in excess of 10 feet in any directions from the position that is directly above their anchor.


B.        No owner or owners of any lot or lots, including registered or permitted Marinas, except ACamp@ B=nai B=rith Beber Camp, Salvation Army Camp, Camp Edwards, Divine Word Seminary, and Alice Chester Center, in the Town of East Troy shall permit or allow mooring or docking of more than 10 boats on its lake frontage, regardless of the number of tax key lots owned.  For the purpose of this subsection, the terms Amooring@ and Adocking@ shall be defined as the occupancy of the space adjacent to any pier or dock for a period of time in excess of 12 hours unless a permit for moorings in excess of 10 has been granted pursuant to the provisions of Wisconsin Statutes section 30.12.  The exemptions provided above will be lost in the event that zoning use or ownership of exempted properties change.

C.        No person shall enter upon, remain upon or cause any object to be placed upon the raft, platform, mooring, or pier of another.  An Aowner@ is the holder of legal title, and an Aoccupant@ is not the holder of legal title but is a lawful occupant of the raft, platform, mooring or pier.  Furthermore, no person shall intentionally enter upon the raft, platform, mooring or pier of another in a violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly manner under circumstances in which the conduct tends to cause or provide a breach of peace.

 

16.       Exceptions.  The foregoing regulations shall not apply to not-for-profit organizations including the B=nai B=rith Beber Camp, Salvation Army Camp, Camp Edwards, Divine Word Seminary, Alice Chester Center, and the Lake Beulah Yacht Club Sailing School.  These exemptions will be waived and/or removed in the event that zoning, use or ownership of the foregoing exempted properties change.  In such event, any successor entities or affected owners may apply to the Town Board for continuing such exemptions in whole or in part by a formal written application with all relevant underlying information for such request to be provided to the Town Board at least thirty (30) days in advance of the consideration of the same by the Town Board at a regular or special Town Board meeting, at which a hearing shall be conducted after written notice to all property owners within 300 feet of said property=s riparian frontage and publication as required by law.

 

17.       Violation.  Any mooring, pier, marina, wharf, or other structure found to be in violation of this ordinance shall be subject to a forfeiture of not more than $500.00 nor less than $50.00 for each separate violation.  Each day during which the violation exists is a separate offense.

 

18.       Severability of Code Provisions.  If any section, subsection, sentence, clause or phrase of this ordinance is for any reason held to be invalid or unconstitutional by reason of any decision of any court of competent jurisdiction, or any superseding Wisconsin State Statute or regulation, only that invalid or unconstitutional portion shall be deemed severed from the ordinance and the remainder of the ordinance shall have continuing validity.


2.         This Ordinance shall become effective upon its passage and publication as provided by law.

 

 

Dated this           day of                                   , 2005.

 

 

 

TOWN OF EAST TROY

 

 

 

BY:                                                                                   

            ROBERT MUELLER, Chairman

 

 

ATTEST:

 

 

 

                                                                                          

KIM BUCHANAN, Clerk

 

 

 

Dated published: