Section 30.13. Regulation of wharves, piers and swimming rafts; establishment of pierhead lines.

 

(1)   Construction allowed without permit under certain circumstances. A riparian proprietor may construct a wharf or pier in a navigable waterway extending beyond the ordinary high-water mark or an established bulkhead line in aid of navigation without obtaining a permit under s. 30.12 if the pier or wharf is exempt from obtaining a permit under s. 30.12 or if all of the following conditions are met:

(a) The wharf or pier does not interfere with public rights in navigable waters.

(b) The wharf or pier does not interfere with rights of other riparian proprietors.

(c) The wharf or pier does not extend beyond any pierhead line which is established under sub. (3) .

(d) The wharf or pier does not violate any ordinances enacted under sub. (2) .

(e) The wharf or pier is constructed to allow the free movement of water underneath and in a manner which will not cause the formation of land upon the bed of the waterway.

(1m)   Swimming rafts allowed without permit under certain circumstances. A riparian owner may place a swimming raft in a navigable waterway for swimming and diving purposes without obtaining a permit under s. 30.12 if all of the following conditions are met:

(a) The swimming raft does not interfere with public rights in navigable waters.

(b) The swimming raft does not interfere with rights of other riparian owners.

(c) The swimming raft is placed within 200 feet of shore.

(2)   Wharves, piers and swimming rafts regulated. A municipality may enact ordinances not inconsistent with this section regulating the construction and location of wharves, piers and swimming rafts located within or attached to land within that municipality.

(3)   Establishment of pierhead lines.

(a) Any municipality authorized by s. 30.11 to establish a bulkhead line may also establish a pierhead line in the same manner as it is authorized to establish a bulkhead line, except that a metes and bounds legal description is not required nor is the map required to be prepared by a professional land surveyor licensed under ch. 443 and except that if the municipality has created a board of harbor commissioners the municipality must obtain the approval of the board concerning the establishment of the pierhead line in addition to obtaining the approval of the department.

(b) Any pierhead line established by a municipality shall be established in the interest of the preservation and protection of its harbor or of public rights in navigable waters.

(4)   Unlawful obstruction.

(a) Interferes with public rights. A wharf or pier which interferes with public rights in navigable waters constitutes an unlawful obstruction of navigable waters unless the wharf or pier is authorized under a permit issued under s. 30.12 or unless other authorization for the wharf or pier is expressly provided.

(b) Interferes with riparian rights. A wharf or pier which interferes with rights of other riparian owners constitutes an unlawful obstruction of navigable waters unless the wharf or pier is authorized under a permit issued under s. 30.12 or unless other authorization for the wharf or pier is expressly provided.

(c) Extends beyond pierhead line; exception. A wharf or pier which extends into navigable waters beyond any pierhead line established under sub. (3) constitutes an unlawful obstruction of navigable waters unless a valid permit, license or authorization for the wharf or pier is granted or unless it is a permissible preexisting wharf or pier. A wharf or pier is a permissible preexisting wharf or pier if it existed prior to the establishment of the pierhead line, if it is not extended or expanded after that date and if the ownership of the land to which it is attached did not change after that date except that a wharf or pier continues its status as a permissible preexisting wharf or pier for one year after the date the change of ownership is recorded. The seasonal removal of a wharf or pier does not affect its status as a permissible preexisting wharf or pier if it is reestablished in substantially the same form. Status as a permissible preexisting wharf or pier does not imply that authorization for the wharf or pier is provided for the purposes of par. (a) or (b) . The owner of a wharf or pier may submit evidence to the municipality that it is a permissible preexisting wharf or pier at any time after the municipality establishes the pierhead line.

(d) Violates regulations. A wharf or pier which violates the regulations contained in sub. (2) or in any ordinance enacted under sub. (2) constitutes an unlawful obstruction of navigable waters.

(5m)   Removal of wharves and piers in navigable waters.

(a)

1. The governing body of a city, village or town or a designated officer may order the owner of a wharf or pier which constitutes an unlawful obstruction of navigable waters under sub. (4) to remove that portion of the wharf or pier which constitutes an unlawful obstruction.

2. The governing body of a city, village or town or a designated officer may order the owner of a wharf or pier in navigable waters which in its judgment is so old, dilapidated or in need of repair that it is dangerous, unsafe or unfit for use to repair or remove the wharf or pier. If the governing body of a city, village or town or a designated officer determines that the cost of repair is likely to exceed 50 percent of the equalized assessed value of the wharf or pier or, if the wharf or pier is not subject to assessment, if the cost of repair is likely to exceed 50 percent of the current fair market value, then repair is presumed unreasonable and the wharf or pier is presumed to be a public nuisance.

3. An order under this paragraph shall be served upon the owner or person responsible in the manner provided for the service of a summons in circuit court. If the owner or person responsible cannot be found, the order may be served by posting it on the wharf or pier and by publishing it as a class 3 notice under ch. 985 . The order shall specify the action to be taken and the time within which it shall be complied with. At least 50 days must be allowed for compliance.

(b)

1. If the owner or person responsible fails to comply with an order issued under par. (a) , the governing body of a city, village or town or a designated officer may cause the wharf or pier to be removed through any available public agency or by a contract or arrangement by a private person. The cost of the removal may be charged against the real estate on which or adjacent to which the wharf or pier is located, constitutes a lien against that real estate and may be assessed and collected as a special tax. The governing body of the city, village or town or the designated officer may sell any salvage or valuable material resulting from the removal at the highest price obtainable. The governing body of the city, village or town or the designated officer shall remit the net proceeds of any sale, after deducting the expense of the removal, to the circuit court for use of the person entitled to the proceeds subject to the order of the court. The governing body of the city, village or town or the designated officer shall submit a report on any sale to the circuit court which shall include items of expense and the amount deducted. If there are no net proceeds, the report shall state that fact.

2. If the owner or person responsible fails to comply with an order issued under par. (a) , the governing body of a city, village or town or a designated officer may commence an action in circuit court for a court order requiring the person to comply with the order issued under par. (a) . The court shall give the hearing on this action precedence over other matters on the court's calendar and may assess costs.

(c) A person affected by an order issued under par. (a) may apply to circuit court within 30 days after service of the order for a restraining order prohibiting the governing body of the city, village or town or the designated officer from removing the wharf or pier. The court shall conduct a hearing on the action within 20 days after application. The court shall give this hearing precedence over other matters on the court's calendar. The court shall determine whether the order issued under par. (a) is reasonable. If the court finds that the order issued under par. (a) is unreasonable, it shall issue a restraining order or modify it as the circumstances require and the governing body of the city, village or town or the designated officer may not issue another order under par. (a) with respect to the wharf or pier unless its condition is substantially changed. The court may assess costs. The remedy provided under this paragraph is exclusive and no person affected by an order issued under par. (a) may recover damages for the removal of a wharf or pier under this section.

(6)   Dock line not invalidated. A dock line lawfully established before January 1, 1960, is a lawfully established pierhead line.

1981 c. 252 ; 1987 a. 374 ; 1999 a. 150 ss. 3 , 120 , 123 , 125 , 127 , 129 , 131 , 133 ; 2003 a. 118 ; 2007 a. 204 ; 2013 a. 358 . Cross-reference: See also ch. NR 326 , Wis. adm. code. When a department of natural resources decision prohibited a structure under s. 30.13 and the riparian owner did not seek review under s. 227.20 [now 227.57], the trial court had no jurisdiction to hear an action by the owner seeking a declaration that the structure was a "pier" permitted under s. 30.13. Kosmatka v. Department of Natural Resources, 77 Wis. 2d 558 , 253 N.W.2d 887 (1977). In considering whether a proposed structure is detrimental to the public interest, the department of natural resources is authorized to weigh relevant policy factors including the preservation of the natural beauty of the state's waters, the public's fullest use of the waters, and the convenience of riparian owners. Sterlingworth Condominium Association v. Department of Natural Resources, 205 Wis. 2d 710 , 556 N.W.2d 791 (Ct. App. 1996), 95-3526 . The permitting criteria under department of natural resources rules are supplemental to the criteria under sub. (1). To escape the requirement of obtaining a permit, the requirements of both the statute and rules must be met. Sea View Estates Beach Club, Inc. v. Department of Natural Resources, 223 Wis. 2d 138 , 588 N.W.2d 667 (Ct. App. 1998), 97-3418 . Riparian rights are qualified by reasonable use and are subordinate to public rights. The common law requires reasonable use by riparian owners to be determined by the extent and capacity of the lake, the uses to which it has been put, and the rights that other riparian owners on the same lake also have. The inquiry is highly fact-specific, and determinations are made on a case-by-case basis. Hilton v. Department of Natural Resources, 2006 WI 84 , 293 Wis. 2d 1 , 717 N.W.2d 166 , 03-3353 . Historical use, however it is determined, is one of the factors that an administrative law judge may weigh in balancing the private rights and public interests at stake in riparian rights/public trust doctrine cases. The cases do not establish any set definition of historical use or any hard and fast methodology for determining it. That historic use must be based on something like passage of an ordinance or department of natural resources contact is not required by public policy considerations. An ALJ may review local ordinances in making a permit determination but is not required to do so. Hilton v. Department of Natural Resources, 2006 WI 84 , 293 Wis. 2d 1 , 717 N.W.2d 166 , 03-3353 .