WisBar News: Appeals Court: Town’s Shoreland Restriction Stands Despite Conflicting Statute:

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  • WisBar News
    October
    29
    2019

    Appeals Court: Town’s Shoreland Restriction Stands Despite Conflicting Statute

    Joe Forward

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    Lake Frontage

    Oct. 29, 2019 – A Wisconsin town had authority to deny a property owner’s request to divide Shoreland property despite a state statute that prohibits a town from enacting Shoreland zoning regulations, a state appeals court has ruled.

    Michael Anderson owns about 360 feet of shoreland frontage property on Lake Mildred in the Town of Newbold, and he sought to divide the property into two lots. But the town’s planning commission denied the request under a subdivision ordinance.

    The ordinance requires shoreland frontage property to have a minimum width of 225 feet at the ordinary high water mark. The division would have reduced the width of both lots to less than 225 feet. Thus, the planning commission denied the proposal.

    A circuit court upheld the town’s decision. On appeal, however, Anderson argued the town cannot regulate shorelands in that way because the legislature has removed that authority, through statutory provisions applicable to shorelands in Wisconsin.

    In Anderson v. Town of Newbold, 2018AP547 (Oct. 29, 2019), the District III Court of Appeals also affirmed the town’s decision while noting the “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. …”

    The appeals court said the decision must stand “in the absence of clear legislative intent demonstrating that the zoning enabling statute takes priority over the subdivision enabling statute” and only the legislature can “resolve that tension.”

    The three-judge panel acknowledged that towns do not have authority to regulate shorelands through zoning ordinances, but may enact subdivision ordinances under separate and distinct procedures. Anderson said the subdivision ordinance was really a “disguised zoning ordinance,” but the appeals court panel rejected that argument.

    The panel noted that subdivision and zoning ordinances overlap, and the state supreme court has ruled that it’s a subdivision ordinance if enacted pursuant to the conditions and procedures of Wis. Stat. ch. 236 (platting lands and recording and vacating plats). 

    The panel also rejected Anderson’s argument that there’s a statutory conflict and any power granted to towns under chapter 236 was revoked by Wis. Stat. 59.692, which applies to zoning of shorelands, meaning the town had no authority to restrict his land.

    “[I]t may seem incongruent, and perhaps even a matter of bad policy, to allow a town to enforce a regulation enacted under one statutory subsection that it would not be allowed to enforce if it had enacted its ordinance under a different subsection,” Judge Seidl wrote. “But it is not the function of this court to make policy decisions or to rewrite statutes to accomplish a result that a party urges upon us.”




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