COURT OF APPEALS DECISION DATED AND FILED June 9, 2010 David
R. Schanker Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT II |
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Plaintiff-Respondent, v.
Defendant-Appellant. |
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APPEAL
from a judgment and an order of the circuit court for
Before Neubauer, P.J.,
¶1 PER CURIAM. The Lake Geneva Club (LGC), a
condominium association, is a riparian property owner on
¶2 LGC has owned riparian property on
¶3 In September 2006 LGC applied to the DNR for a permit to modify
the existing pier and construct a new 136-foot cribbed pier to create a more
protected swim area by relocating existing slips from the seawall to a separate
pier. The DNR held a public hearing and
took comments, all of which opposed the proposed 136-foot pier.[1]
The DNR’s findings included a summary of
the nature of the objections and that:
8. The [DNR] and the applicant have completed all procedural requirements and the project as permitted will comply with all applicable requirements of Section[s] 1.11 [and] 30.12(1), Wisconsin Statutes and [Wis. Admin. Code chs.] NR 102 [(March 2008)], 103 [(March 2005)], 150 [(Feb. 2010)], 299 [(Jan. 2003)], and 326 [(April 2005)].[2]
¶4 The DNR concluded that the cited statutes and administrative code chapters authorized it to issue a permit for construction and maintenance of the project. The permit was subject to twenty-three conditions. They included trimming the length of the new pier to 100 feet, capping the number of moorings at thirty-two and, if necessary, obtaining permits or approval required by local zoning ordinances and the U.S. Army Corps of Engineers. Potential challengers were advised of their Wis. Stat. ch. 227 appeal rights. No one appealed.
¶5 LGC applied to the DNR to amend the original permit to modify
the design of the existing and proposed piers in regard to the location of
three slips which, according to the DNR’s permit, could be “accommodated
elsewhere.” Finding that the new pier
required one less crib than had been approved, that one additional crib and
slip would be added to the existing pier, and that the modification would not
increase the number of moorings approved, the DNR granted the amendment. LGC then applied to the Town for a building
permit pursuant to
¶6 Before building commenced, however, the Town issued a stop-work order to address concerns raised by the Chicago Club, a neighboring riparian group. In response, LGC filed another permit modification request with the DNR proposing to change the angle of the new pier to re-apportion riparian rights to quell Chicago Club dissent.[4] In May 2008, the DNR approved the modification to the new pier; no changes were made to the existing pier.
¶7 The Town required LGC to reapply to the Town Board for a permit. LGC objected but acquiesced. The building inspector determined that LGC had complied with the twelve-and-a-half-foot setback and 100-foot pierhead line requirements of the ordinance and had been granted a DNR permit. He recommended the Board grant the permit. The Town Board met and voted unanimously to deny the permit.[5] In response to LGC’s claim that it had not received notice of the hearing, the Board reconvened. It again denied the permit, reciting the same reasons as for the initial denial.
¶8 LGC petitioned the circuit court for certiorari review of the denial. The court found that since LGC’s new pier satisfied the ordinance’s setback and pierhead line requirements the Town could not refuse the permit because, under Wis. Stat. § 30.12, the DNR has preeminent regulatory control over LGC’s pier. Concluding that the Town acted outside its jurisdiction, the circuit court reversed the Town’s decision and remanded the matter to the Town with instructions that it issue the permit consistent with that granted by the DNR.
¶9 The Town filed a Motion for Relief from Judgment. As a springboard to revisiting its earlier arguments, the Town pointed out that the circuit court apparently thought that the DNR permit affected only the existing 200-foot pier. The circuit court conceded that it had not clearly understood whether LGC had one pier or two but concluded that its misapprehension did not go to the heart of the dispute—“whether the Town had the right to effectively negate what the DNR had done.” In a thorough written decision, the court again ruled that the Town did not have that authority. The Town appeals.
¶10 Our role on certiorari is limited. If, as here, a circuit court takes no new
evidence when it conducts certiorari review, we apply the traditional common
law certiorari standard of review. Edward
Kraemer & Sons, Inc. v.
¶11 The parties touch on all four aspects of certiorari review but
focus—dispositively, in our view—on whether the Board kept within its
jurisdiction. The Town contends that it
acted within its jurisdiction because numerous sources imbue a municipality with
broad authority to govern matters of local concern—here, to limit structures in
¶12 Wisconsin Stat. ch.
30 regulates
¶13 The Town contends that Wis.
Stat. ch. 30 is replete with express “affirmations of municipal
authority.”[6]
True to a degree, local regulation under
Wis. Stat. § 30.13 is
appropriate for piers that do not require a DNR permit under Wis. Stat. § 30.12. Section 30.13(3), for instance, authorizes a
municipality to establish a pierhead line “in the same manner as it is
authorized to establish a bulkhead line”—which is to say, “subject to the
approval of the [DNR].” Section
30.11(1). Similarly, under § 30.13(2), a
municipality may enact ordinances regarding pier construction and placement
that are “not inconsistent with this section”—in other words, when a DNR permit
is not required. And once a local
ordinance has been enacted, the DNR may, but need not, consider it in making a
permit determination under § 30.12(2m). See Hilton, 293
¶14 The Town also directs our attention to Farnum v. Johnson, 62
¶15 Farnum hales from a time when the legislature regulated the
respective rights of riparian owners and of the public. The legislative authority later was vested in
the Railroad Commission, then the Public Service Commission and now the DNR. Village of Menomonee Falls v. DNR,
140
¶16 Another critical flaw in the Town’s argument is its failure to
explain how its ordinance supports the denial of LGC’s building permit.
¶17 For its part, the governing body may not grant a permit until
it, too, determines compliance with all requirements of the ordinance section
and applicable state laws and DNR rules.
¶18 We also conclude no issue remains as to the pierhead
requirement. The DNR conditional permit
approved the structural modifications to the existing 200-foot pier and limited
the proposed pier to 100 feet. LGC
argued its existing 200-foot pier is grandfathered in. Even if it is not, such that the pier
required a permit under Wis. Stat. § 30.12,
see Sea View Estates Beach Club, Inc.
v. DNR, 223
¶19 The Town also asserts that the DNR permit was conditioned upon the Town’s approval. Not so. Rather, the DNR permit was conditioned upon “any permit or approval that may be required for [LGC’s] project by local zoning ordinances and by the U.S. Army Corps of Engineers.” As the Town’s attorney acknowledged to the circuit court, the Town’s ordinance is not a zoning ordinance. The Town is subject to county zoning.
¶20 None of the other reasons the Board listed for denying the
permit aid us, either, in discerning the legal framework against which the facts
were measured. The Board did not explain,
for example, how opposition from a local conservancy organization or conjecture
about a ripple effect legally supports a permit denial in the context of the
ordinance and the relevant statutes. That
the Board found no hardship is not germane to the inquiry. “Hardship” is relevant in zoning cases, see, e.g., State ex rel. Ziervogel v. Washington
County Bd. of Adjustment, 2004 WI 23, ¶2, 269 Wis. 2d 549, 676 N.W.2d
401, which this is not. We simply cannot
tell what legal theory informed the Board’s decision. By fashioning a decision in disregard of the rules
it promulgated, the Town Board acted beyond its authority.
¶21 The State made a public policy determination when it vested
pier permit authority in the DNR. Even
if the Town’s ordinance gives it a measure of control over the waters of
By the Court.—Judgment and order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] Sometime earlier, the Town established a 100-foot length limit (“pierhead line”) on piers.
[2] All references to the Wisconsin Statutes are to the 2007-08 version unless noted.
[3] In
the midst of these proceedings, the Town of
[4] The Chicago Club filed for a contested case hearing on both permit modifications. It eventually withdrew its challenges and the contested case was dismissed.
[5] The
Board recited seven reasons for denying LGC’s pier permit:
1. Granting the permit is against the DNR formula regarding boat moorings,
2. The [
3. Existing 200’ pier does not have a permit to exceed the pierhead line,
4. Would increase boat density,
5. No hardship found,
6. Safety,
7. If the Board grants this permit, future
problems may occur such as the 150’ pier in
[6] One example the Town offers is Wis. Stat. § 30.11(1), which, according to the Town’s brief, provides: “Any municipality may … by ordinance establish a bulkhead line.” The ellipsis replaces the critical phrase “subject to the approval of the [DNR].”
[7] Pursuant
to resolution and Wis. Stat. §
60.22(3), the Town authorized the Board to exercise powers relating to villages
and conferred on village boards by Wis.
Stat. ch. 61, except where it would conflict with the statutes relating
to towns and town boards. See