Abuse of Discretion – Zoning Ordinance

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WI Court of Appeals – District III

Case Name: Carlin Lake Association, Inc., et al. v. Carlin Club Properties, LLC

Case No.: 2017AP2439

Officials: Stark, P.J. Hruz and Seidl, JJ.

Focus: Abuse of Discretion – Zoning Ordinance

Carlin Club Properties, LLC (“Carlin Club”) appeals a summary judgment granted in favor of Carlin Lake Association, Inc. (“the Association”) and seven individual owners of riparian property on Carlin Lake (“the Landowners”). The judgment granted the Landowners’ request for a judgment declaring that Carlin Club’s proposed use of its property—to pump water from a well and then transport that water off-site for bottling and commercial sale—would be in violation of Vilas County’s general and shoreland zoning ordinances. Further, the judgment permanently enjoined Carlin Club from conducting any activities related to the pumping and transporting of its well water for off-site commercial sale.

On appeal, Carlin Club argues the circuit court erred in granting the Landowners summary judgment for multiple reasons. Specifically, Carlin Club contends: (1) the Landowners lacked standing under WIS. STAT. § 59.69(11) (2017-18)2 to enforce the applicable county zoning ordinance because they did not demonstrate they suffered any special damages; (2) the Association also lacked standing under § 59.69(11) because it did not own any real property within the district affected by the ordinance;3 (3) the Landowners’ action was not ripe for adjudication because Carlin Club had not yet violated the ordinance; (4) the court erroneously exercised its discretion by determining that equitable factors did not preclude the issuance of an injunction; and (5) the county zoning ordinance at issue is invalid because it is preempted by the Department of Natural Resources’ (DNR) authority to regulate groundwater withdrawal.

We reject Carlin Club’s arguments, with one exception—we agree with Carlin Club that the Association did not have authority to maintain an action to enforce the county zoning ordinance at issue. In all, we conclude: (1) the plain language of WIS. STAT. § 59.69(11) grants the individual Landowners authority to maintain this enforcement action, as they own real property in the district affected by the ordinance; (2) conversely, the Association cannot maintain this enforcement action under § 59.69(11) because it does not own any real property in the district affected by the ordinance; (3) the Landowners’ claims were ripe for adjudication because Carlin Club’s affirmative actions demonstrated a sufficient probability that it was going to violate the ordinance; (4) although the circuit court improperly placed the burden on Carlin Club to show that equitable factors precluded the issuance of a prospective injunction, on this record the only reasonable conclusion is that the court’s decision to issue an injunction was equitable; and (5) the ordinance was not preempted because it did not conflict with the DNR’s authority to regulate groundwater withdrawal. Accordingly, we affirm in part, reverse in part, and remand with directions to dismiss the Association as a party to this action.

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.