Ordinance Interpretation

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WI Court of Appeals – District II

Case Name: Lagoon Lane, LLC, v. Paul Rice, et al.

Case No.:  2016AP2118

Officials: Neubauer, C.J., Gundrum and Hagedorn, JJ.

Focus: Ordinance Interpretation

Lagoon Lane, LLC owns shoreland property in the Town of West Bend in Washington County that it sought to divide into several lots. The Town, however, denied Lagoon Lane’s certified survey map (CSM) seeking subdivision on the grounds that it failed to comply with the Town’s setback, minimum lot size, and frontage requirements. This case comes to us following certiorari review in the circuit court. The question presented is whether the Town may enforce these ordinances and deny the CSM on these grounds. We conclude that the Town was without this authority.

Before proceeding further, we pause to address the limits of this ruling. Following an initial release of this opinion, the Town filed a motion to reconsider our decision based on recent statutory amendments adopted through the enactment of 2015 Wisconsin Act 41, effective July 3, 2015, creating WIS. STAT. §§ 60.61(3r) and 60.62(5) (2015-16). These new subsections appear to modify our decision in Hegwood v. Town of Eagle Zoning Bd. of Appeals, 2013 WI App 118, 351 Wis. 2d 196, 839 N.W.2d 111, interpreting WIS. STAT. § 59.692, and consequently, the statutory authority of towns to zone in shorelands. The Town indicated it became aware of these changes, which were effective two months before the Town’s denial of the CSM, only after our opinion was released. After reviewing the record, we agree that these statutory changes were not argued to this court or otherwise brought to our attention.

As a general rule, we do not consider arguments raised for the first time on appeal. McKee Family I, LLC v. City of Fitchburg, 2017 WI 34, ¶¶29, 32, 374 Wis. 2d 487, 893 N.W.2d 12. While we appreciate the candor of the Town in bringing these changes to our attention, we decline to grant what would amount to a complete appellate do over, particularly given that the Town failed to provide the applicable statutory provisions to its own decision-makers and circuit court when they were reviewing this case. The Town is effectively asking us to re-do their work as well, starting from scratch under the new statutory provisions. We see no reason to depart from our general rule and decline to address the effect of these statutory amendments. Thus, the parties and public should understand that this opinion does not consider these relevant statutory amendments, but rather proceeds under the assumption that Hegwood remains unaltered and the statutory authority of towns to zone in shoreland areas remains as it was at the time Hegwood was decided.  This opinion represents, then, a statement of the law prior to these recent legislative changes.

With this understanding and the limited scope of our analysis in view, we conclude as follows. While towns generally possess the authority to enact zoning regulations, as we explained in Hegwood, 351 Wis. 2d 196, ¶¶15-17, the legislature removed shoreland zoning authority for towns through the enactment of WIS. STAT. §§ 281.31 and 59.692. We conclude this means that the legislature has withdrawn all exercises of shoreland zoning authority that do not fall within the limited exception in § 59.692(2)(b)—including zoning power that overlaps with subdivision authority. The Town’s setback and minimum lot size requirements are admittedly zoning enactments, and thus have plainly been removed of their efficacy in shoreland areas. The Town’s frontage requirement was enacted under both its zoning and subdivision ordinances. Because the frontage requirement falls within the zoning power, we hold that it is without effect. Therefore, the Town erred by denying the CSM, and we affirm the circuit court’s order so holding.

Decision/Opinion Withdrawn

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.