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Shoreland ordinance not zoning ordinance, Supreme Court majority rules

By: Michaela Paukner, [email protected]//January 27, 2021//

Shoreland ordinance not zoning ordinance, Supreme Court majority rules

By: Michaela Paukner, [email protected]//January 27, 2021//

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The Wisconsin Supreme Court analyzed what defines a zoning ordinance in an opinion released on Wednesday.

The majority of the justices ruled that a northern Wisconsin town’s shoreland property ordinance was not a zoning ordinance because it didn’t restrict how land was being used. It only defined how wide shoreland property needs to be.

The case at hand started in 2016 in the town of Newbold. Michael Anderson owns a lot in the town with 358 feet of shoreland property along Lake Mildred. In 2016, he proposed dividing the lot into two properties. The town board responded by denying his request because it didn’t meet the town’s requirement for a minimum 225-foot shoreland lot width.

Anderson sought certiorari review in circuit court, arguing that the town shouldn’t be allowed to regulate shoreland property as an exercise of subdivision authority when it would be prohibited from accomplishing the same result by means of zoning authority.

The circuit court upheld the town’s decision. In doing so, the judge reasoned that since the Legislature did not bar minimum shoreland-frontage requirements in its zoning-enactment statute, the courts could only enforce the statute as written.

On appeal, Anderson argued that the town’s ordinance gave rise to a statutory conflict. Even if the town had lawfully enacted the shoreland ordinance, the same restriction would be unlawful if it had been enacted as a zoning ordinance, Anderson said.

The Court of Appeals disagreed and affirmed the circuit court’s decision. The appellate court found the only issue presented in the case was whether the town board acted according to law, and the circuit court applied the statute as written.

The case then went to the state Supreme Court, and the justices reviewed whether the town had used the correct theory of law to enact the frontage requirement.

The majority — composed of Chief Justice Pat Roggensack and Justices Rebecca Dallet, Jill Karofsky, Ann Walsh Bradley and Annette Ziegler — affirmed the appellate court’s decision.

In the majority opinion, Bradley wrote that the court had used a functional approach to decide whether the town ordinance at issue was a zoning ordinance. That analysis, outlined in the high court’s 2012 Zwiefelhofer v. Town of Cooks Valley decision, was framed by a statutory mandate to liberally construe subdivision ordinances in the town’s favor.

Through that lens, Bradley said it was apparent that the shoreland ordinance was not a zoning ordinance because it had nothing to do with how the land was being used.

“It says nothing of how Anderson can use his land, only that he cannot split into the portion he seeks,” Bradley wrote. “… The characteristics of a zoning ordinance recognized by the Zwiefelhofer court indicate that the hallmark of a zoning ordinance is some type of use restriction.”

The majority concluded that the town ordinance was permissible and affirmed the lower court’s decision.

Although they agreed that the shoreland ordinance should not be subject to restriction, Justices Rebecca Bradley and Brian Hagedorn disagreed with the majority’s conclusion. Hagedorn said the majority came up with the “right answers to the wrong questions.”

In his dissent, Hagedorn noted that the town’s ordinance adopts a more restrictive frontage width than the county’s ordinance. Under Wis. Stat. § 59.692(2)(b), the restrictive provision cannot have effect unless it was adopted before the county’s shoreland-zoning ordinance. Hagedorn said there was no evidence to suggest that the town’s provision was adopted before the county’s ordinance.

“Therefore, the Town’s more restrictive riparian frontage width requirement is preempted and without effect,” Hagedorn wrote. “… As a consequence, the Town proceeded on an incorrect theory of law when it denied Anderson’s proposed land division based on its preempted ordinance provision.”

Because of that conclusion, he and Bradley said they would have reversed the Court of Appeals decision.

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