Court Error – Zoning Authority

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WI Court of Appeals – District III

Case Name: State of Wisconsin ex rel. Michael Anderson v. Town of Newbold

Case No.: 2018AP547

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

Focus: Court Error – Zoning Authority

Michael Anderson owns shoreland property in the Town of Newbold (the Town) that he sought to divide into two lots. The Town denied Anderson’s proposed division on the ground that the two lots would fail to comply with the Town’s applicable minimum shoreland frontage requirement. The issue before us is whether the Town may lawfully enforce its shoreland frontage requirement, which it enacted under its subdivision authority, even though an identical shoreland frontage requirement would not be enforceable had the Town enacted it under its zoning authority.

We conclude that the plain language of the applicable subdivision enabling statute gave the Town authority to enact its minimum shoreland frontage requirement. Thus, even though our state legislature has removed shoreland zoning authority for towns through the enactment of WIS. STAT. §§ 281.31 and 59.692 (2017-18), we affirm the circuit court’s order upholding the Town’s decision.

We recognize in reaching our decision that there is undeniable tension between the legislature’s decision to restrict towns’ shoreland zoning authority while at the same time granting towns the power to enact a shoreland frontage requirement under their subdivision authority. We conclude, however, that in the absence of clear legislative intent demonstrating that the zoning enabling statute takes priority over the subdivision enabling statute, it is not the role of this court to resolve that tension. That task lies within the purview of the legislature alone.

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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.