Oneida County v. Sunflower Prop II, LLC , 2020 WI App 22 ( 2020 )

2020 WI App 22COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION
Case No.: 2018AP2366
Complete Title of Case:
ONEIDA COUNTY,
PLAINTIFF-RESPONDENT-CROSS-APPELLANT,
V.
SUNFLOWER PROP II, LLC,
DEFENDANT-APPELLANT-CROSS-RESPONDENT.
Opinion Filed: April 21, 2020
Submitted on Briefs: January 14, 2020
Oral Argument:
JUDGES: Stark, P.J., Hruz and Seidl, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYS: On behalf of the defendant-appellant-cross-respondent, the cause was
submitted on the briefs of Larry A. Konopacki and Paul G. Kent of
Stafford Rosenbaum LLP, Madison, and Adan M. Jarchow of Jarchow
Law, LLC., Clear Lake.
Respondent
ATTORNEYS: On behalf of the plaintiff-respondent-cross-appellant, the cause was
submitted on the briefs of Brian J. Desmond, Oneida County
corporation counsel.
A nonparty brief was filed by Thomas D. Larson of Madison, for
Wisconsin REALTORS® Association.
2
2020 WI App 22COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
April 21, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Appeal No. 2018AP2366 Cir. Ct. No. 2017FO572
STATE OF WISCONSIN IN COURT OF APPEALS
ONEIDA COUNTY,
PLAINTIFF-RESPONDENT-CROSS-APPELLANT,
V.
SUNFLOWER PROP II, LLC,
DEFENDANT-APPELLANT-CROSS-RESPONDENT.
APPEAL and CROSS-APPEAL from a judgment of the circuit court
for Oneida County: PATRICK F. O’MELIA, Judge. Reversed and cause remanded
with directions; cross-appeal dismissed.
Before Stark, P.J., Hruz and Seidl, JJ.
No. 2018AP2366
¶1 HRUZ, J.1 Sunflower Prop II, LLC,2 appeals a judgment validating
the enforceability of Oneida County’s pier ordinance and the County’s finding that
Sunflower is in violation of that ordinance. Sunflower argues the ordinance is
unenforceable because its pier complies with the requirements for a permit
exemption under WIS. STAT. § 30.12(1g)(f), and a municipality lacks the authority
to regulate the construction and location of piers that qualify for that exemption.
¶2 We agree with Sunflower that municipal regulations enacted pursuant
to WIS. STAT. § 30.13(2) cannot be applied to a pier that qualifies for a permit
exemption under WIS. STAT. § 30.12(1g)(f). Based on the appellate record,
however, it is unclear whether Sunflower’s pier in fact qualifies for that exemption,
specifically the requirement that a pier be “no more than 6 feet wide.” See
§ 30.12(1g)(f)1.a. Accordingly, we reverse the judgment and remand for further
proceedings. If the circuit court determines that Sunflower’s pier satisfies the
requirements of § 30.12(1g)(f), it is directed to dismiss the citation in accordance
with our statutory analysis. If the court determines that Sunflower’s pier does not
qualify under § 30.12(1g)(f), it may conduct further proceedings as are appropriate
to resolve the case. The County has filed a cross-appeal regarding the proper
interpretation of certain aspects of its ordinance, which we decline to resolve at this
time given that our statutory analysis may be dispositive.
1
This appeal was converted from a one-judge appeal to a three-judge appeal by the
November 27, 2019 order of the Chief Judge of the Court of Appeals. See WIS. STAT. § 752.31(3)
(2017-18); WIS. STAT. RULE 809.41 (2017-18).
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise noted.
2
Sunflower notified the circuit court that its correct name is “Sunflower Properties II
LLC,” but to date has not sought to amend the case caption. We will refer to it as “Sunflower” for
the remainder of the opinion.
2
No. 2018AP2366
BACKGROUND
¶3 Sunflower owns adjacent riparian properties in Oneida County on
Tomahawk Lake. Combined, the properties have 370 feet of riparian frontage. In
October 2015, Sunflower completed construction of a new pier, which extended out
from the shoreline six to eight feet. According to the stipulated facts, that portion
of the pier terminated in a ninety-foot-long lateral extension that ran parallel to the
shoreline and was greater than twenty feet wide. Five “branches” protruded from
this ninety-foot extension into the lake, perpendicular to the shore.3 The pier
configuration resulted in a pier with six to seven boat berths and four boat lifts.
¶4 The County received a complaint regarding the construction of the
pier. In October 2015, the County notified Sunflower that the pier was in violation
of various provisions of § 9.98 of the Oneida County Zoning & Shoreland
Protection Ordinance (“the Ordinance”). The County ultimately issued Sunflower
five citations, including for violations of § 9.98 F.3., which states, “Any lateral
extensions on piers shall be a ‘T’ or ‘L’ shape and must not exceed 20 feet in total
width.” 4
¶5 Sunflower contested the citations, and the matter was set for a trial to
the circuit court. The parties ultimately notified the court that only issues of law
3
The fifth “branch” included a portion that terminated in an extension running parallel to
the shoreline.
4
The County’s letter referred to violations of several of the Ordinance’s subsections, but
the parties apparently reached agreement on many of the issues during the course of the circuit
court proceedings, leaving only the application of Ordinance § 9.98 F.3. unresolved. The County
believed the pier was an impermissible “pitch fork” configuration, while Sunflower asserted it was
comprised of one or more “T” or “L” configurations. We note that, on appeal, the County also
argues that Sunflower’s pier violates § 9.98 F.2., which limits the deck width of a pier, “including
‘T’ or ‘L’ or similar finger extensions,” to six feet unless upon application for a conditional use
permit the applicant demonstrates a need for a deck width of up to eight feet because of the handicap
of a frequent user.
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No. 2018AP2366
remained and the case could be resolved based upon briefs and a document setting
forth stipulated facts. Among other things, Sunflower asserted the relevant portions
of the Ordinance were inconsistent with, and preempted by, Wisconsin’s pier laws,
specifically WIS. STAT. §§ 30.12 and 30.13. Sunflower argued its pier was exempt
from any permit requirement pursuant to § 30.12(1g)(f)1., and the County therefore
lacked the authority to more strictly regulate the pier’s construction and location.
Sunflower also argued it was in compliance with the Ordinance: although it
acknowledged that the pier’s lateral extension exceeded the twenty-foot-width
limitation, it argued the excess width was “necessary to accommodate Defendant’s
six to seven berths,” which were the number of berths allowed based on the extent
of shoreline frontage.
¶6 The circuit court concluded the County was entitled to partial
summary judgment, noting it was undisputed that the “total width of the defendant’s
lateral extension exceed[s] 20 feet in violation of the ordinance.” The court also
concluded the County had the authority to regulate the pier at issue, and it provided
the parties with a written analysis of that issue subsequent to the summary judgment
decision hearing. The court’s assessment was that if the legislature had intended to
preclude counties from enacting more restrictive regulations governing the
construction and location of piers, it would have plainly stated so.
¶7 Following the circuit court’s decision, Sunflower filed a motion for
reconsideration, and the parties jointly requested that the court clarify its ruling.
Specifically, the parties sought clarification about which portion of the pier the court
found to be a violation of the Ordinance’s twenty-foot-width requirement. The court
denied the motion for reconsideration, but it clarified that the term “lateral
extension” in its earlier opinion referred to the ninety-foot-long portion of the pier
from which the five “finger extensions” protruded. The court reaffirmed that
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No. 2018AP2366
Sunflower’s pier was in violation of the twenty-foot-width requirement, and it
granted judgment on a single citation in the amount of $263.50.5 Sunflower appeals
that judgment, and the County cross-appeals from the portion of the judgment
finding the Ordinance provisions governing the permissible shape of piers to be
ambiguous.
DISCUSSION
¶8 “Whether the circuit court properly granted summary judgment is a
question of law that this court reviews de novo.” Noffke ex rel. Swenson v. Bakke,
2009 WI 10, ¶9, 315 Wis. 2d 350, 760 N.W.2d 156. Summary judgment is
appropriate “if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.” WIS. STAT. § 802.08(2). Here, the parties have stipulated to most
of the relevant facts, and the issue is primarily a question of the proper meaning and
application of the statutes and the ordinances. See Bruno v. Milwaukee Cty., 2003
WI 28, ¶6, 260 Wis. 2d 633, 660 N.W.2d 656 (noting the application of a statute or
ordinance to an undisputed set of facts is a question of law).
¶9 Sunflower argues that the County is both exceeding its authority to
legislate regarding the construction and location of a pier and embracing an illogical
interpretation of its ordinances.6 Sunflower’s argument requires us to interpret the
5
The circuit court ordered the other citations dismissed, which apparently related to
violations of other provisions of the Ordinance.
6
The Wisconsin Realtors Association has filed an amicus brief in support of Sunflower’s
position. The brief improperly cites and substantially discusses an unpublished per curiam opinion
of this court, in violation of WIS. STAT. RULE 809.23(3). We admonish counsel that unpublished
per curiam opinions may not be cited in any court as precedent or authority except to support a
claim of claim preclusion, issue preclusion, or law of the case. RULE 809.23(3)(a).
5
No. 2018AP2366
County’s authority under WIS. STAT. §§ 30.12 and 30.13. Statutory interpretation
begins with the language of the statute. State ex rel. Kalal v. Circuit Court for
Dane Cty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110. “[S]tatutory
language is interpreted in the context in which it is used; not in isolation but as part
of a whole; in relation to the language of surrounding or closely-related statutes; and
reasonably, to avoid absurd or unreasonable results.” Id., ¶46. If the language
yields a plain, clear statutory meaning, we apply the language as written and need
not consult extrinsic sources of meaning. Id.
¶10 Sunflower first argues the County can have no role in regulating a pier
that qualifies for the Department of Natural Resources (DNR) permit exemption
contained in WIS. STAT. § 30.12(1g)(f). Section 30.12(1), generally speaking,
prohibits a person from depositing material or placing a structure upon a bed of
navigable water unless an individual or general permit has been “issued under this
section” or unless authorization has otherwise been granted by the legislature.7 The
statute contains a number of exemptions, located in subsec. (1g), which allow the
placement of certain types of structures or materials if the structure or material is
not located in an area of special natural resource interest and if it does not interfere
with the riparian rights of other riparian owners. Specific to this case, the statute
states that it is not necessary to obtain a permit for a pier meeting certain criteria:
(f) 1. A pier or wharf to which all of the following
apply:
7
A general permit allows the DNR to issue a statewide permit for certain activities with
conditions that it deems appropriate to protect the public and the rights of other riparian owners.
See WIS. STAT. §§ 30.12(3), 30.206. An individual permit, in contrast, requires the property owner
to seek authorization for his or her specific structure or deposit. See §§ 30.12(3m), 30.208. For
projects that are exempt from the permit requirements under § 30.12(1g), the DNR may nonetheless
require that a person apply for an individual permit or seek authorization under a general permit if
the DNR, following an investigation, concludes the placement of the structure or deposit will,
among other things, injure the rights of the public or other riparian owners. See § 30.12(2m).
6
No. 2018AP2366
a. It is no more than 6 feet wide.
b. It extends no further than to a point where the
water is 3 feet at its maximum depth as measured at summer
low levels, or to the point where there is adequate depth for
mooring a boat or using a boat hoist or boat lift, whichever
is farther from the shoreline.
c. It has no more than 2 boat slips for the first 50 feet
of the riparian owner’s shoreline footage and no more than
one additional boat slip for each additional 50 feet of the
riparian owner’s shoreline footage.
2. Notwithstanding the width limitation in subd. 1., a
pier may have an area as a loading platform that is more than
6 feet wide if the surface area of the platform does not exceed
200 square feet.
Section 30.12(1g)(f).
¶11 While WIS. STAT. § 30.12 governs all structures or deposits placed
upon navigable waters, WIS. STAT. § 30.13 more specifically deals with the
regulation of piers. Notably, § 30.13 specifically authorizes the construction of a
pier without a DNR permit if the pier
is exempt from obtaining a permit under s. 30.12 or if all of
the following conditions are met:
(a) The wharf or pier does not interfere with public
rights in navigable waters.
(b) The wharf or pier does not interfere with the
rights of other riparian proprietors.
(c) The wharf or pier does not extend beyond any
pierhead line which is established under sub. (3).
(d) The wharf or pier does not violate any
ordinances enacted under sub. (2).
(e) The wharf or pier is constructed to allow the free
movement of water underneath and in a manner which will
not cause the formation of land upon the bed of the
waterway.
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No. 2018AP2366
WIS. STAT. § 30.13(1) (emphasis added). Section 30.13(2), as mentioned in subsec.
(1)(d), authorizes a municipality to enact ordinances “not inconsistent with this
section regulating the construction and location of wharves, piers and swimming
rafts located within or attached to land within that municipality.” 8 (Emphasis
added.)
¶12 The interplay between WIS. STAT. §§ 30.12 and 30.13 is vital to
Sunflower’s argument that the County lacks authority to regulate its pier.
Sunflower’s interpretation is that the County’s regulatory authority under § 30.13(2)
does not encompass piers that are exempt under § 30.12(1g)(f). In particular,
Sunflower emphasizes the introductory clause in § 30.13(1) and asserts that the
legislature’s use of the disjunctive “or” establishes that “a pier is exempt from
permitting requirements if it is either exempt under the § 30.12 exemption or it
meets the conditions of the § 30.13 exemption.”
¶13 We agree with Sunflower’s interpretation of these two closely related
statutes. As an initial matter, we stress that WIS. STAT. ch. 30 “embodies a system
of regulation of Wisconsin’s navigable waters pursuant to the public trust doctrine.”
ABKA Ltd. P’ship v. DNR, 2002 WI 106, ¶11, 255 Wis. 2d 486, 648 N.W.2d 854.
The legislature has the primary responsibility for the regulation and enforcement of
8
We note that, prior to 2004, WIS. STAT. § 30.12(1g)(f) did not exist, and WIS. STAT.
§ 30.13(1) was the only method by which a property owner could construct a pier without a permit.
See 2003 Wis. Act 118, § 22 (creating § 30.12(1g)). Notably, § 30.13(1) was amended in 2008 to
make explicit that a permit need not be obtained under that section if the pier was exempt from
obtaining a permit under § 30.12. See 2007 Wis. Act 204, § 13.
Certain portions of the County’s brief suggest the requirements under § 30.12(1g)(f) are
insufficient to protect the public interest in navigable waters if construed to allow a pier of the scale
of the one Sunflower has constructed here. Our task is primarily to apply the plain language of the
statutes; desired changes to that language should be taken up with the legislature.
8
No. 2018AP2366
the public trust, and it has delegated to the DNR broad authority to administer ch.
30. Id., ¶12. A county’s authority, by contrast, is derived primarily from statutory
enactments. See Jackson Cty. v. DNR, 2006 WI 96, ¶17, 293 Wis. 2d 497, 717
N.W.2d 713.
¶14 The statutory authority for a county to regulate the construction and
location of piers comes from WIS. STAT. § 30.13(2). Again, subsec. (2) permits a
municipality9 to enact such ordinances that are “not inconsistent with this section.”
Under subsec. (1), there are two distinct methods by which a property owner may
construct a pier without obtaining a DNR permit. The first method is under the
exemption set forth in WIS. STAT. § 30.12(1g)(f). The second method is by
satisfying the requirements of § 30.13(1)(a)-(e). Only the criteria in § 30.13(1)
require compliance with municipal ordinances enacted under § 30.13(2). See
§ 30.13(1)(d). As a result, this court would need to insert additional language into
§ 30.12 to hold that a pier that satisfies the requirements for the exemption under
§ 30.12(1g)(f) must also comply with municipal ordinances established under
§ 30.13(2). In other words, it would “be inconsistent with” the plain language of
§ 30.13(1) to require a pier authorized by § 30.12(1g)(f) to also satisfy the
requirements of a municipal ordinance established under § 30.13(2).
¶15 The County responds to the foregoing analysis primarily in two ways.
First, it argues that while the legislature exempted property owners from obtaining
DNR permits for certain piers, it did not curtail the ability of municipalities to
regulate piers. The County emphasizes the language in WIS. STAT. § 30.12(1g) that
the exemption is from “the permit requirements under this section.” However, the
scope of county regulatory authority under WIS. STAT. § 30.13(2) is quite clear. As
9
A “municipality” includes a county. See WIS. STAT. § 30.01(4).
9
No. 2018AP2366
explained above, a municipality may not enact regulations that are inconsistent with
the remainder of § 30.13, of which subsec. (1) provides an alternative to a permit
that does not require compliance with municipal regulations. As a result, the County
lacks regulatory authority over a pier that satisfies the requirements of
§ 30.12(1g)(f), regardless of whether the regulations it has adopted are otherwise
“consistent with” (i.e., not directly conflicting or contradictory to) those
requirements.10
¶16 Second, the County proposes that its authority to regulate piers derives
from WIS. STAT. §§ 281.31 and 59.692.11 Section 281.31(1) is a statement of the
public interest that authorizes “municipal shoreland zoning regulations.” The term
“shoreland” is defined under § 281.31(2)(f) by cross-referencing §§ 281.31(2)(e)
and 59.692(1)(b), which together establish the geographical limitations of a
municipality’s zoning authority. Specifically, and as relevant here, “shoreland” for
purposes of § 281.31 consists of lands under, abutting, or close to navigable waters
within 1,000 feet from the ordinary high water mark of a lake. See §§ 281.31(2)(e),
59.692(1)(b). Section 59.692(1c) authorizes the County to “zone by ordinance”
10
The circuit court concluded otherwise, observing that the legislature has sometimes used
phrases like “not more restrictive than” when it intended to limit municipal authority to those rules
the legislature has established. See, e.g., WIS. STAT. § 84.30(3)(a) (requiring that rules promulgated
under that section “shall not be inconsistent with, nor more restrictive than,” national standards).
In this case, we conclude the language adopted was functionally equivalent to a “not more
restrictive than” standard as applied to piers under WIS. STAT. § 30.12(1g)(f).
Moreover, a “not more restrictive than” standard would make little sense if the legislature
merely wished to exclude a particular category of piers from the scope of municipal regulation. By
framing the scope of municipal authority as it did, the legislature allowed the municipality to enact
whatever pier regulations it deems appropriate, including regulations that are more restrictive than
WIS. STAT. § 30.12(1g)(f). If a pier does not qualify for a permit exemption under subsec. (1g)(f),
it must comply with these more restrictive regulations under WIS. STAT. § 30.13(1).
11
WISCONSIN STAT. § 59.692 was amended by 2019 Wis. Act 145. Neither party has
argued that those amendments are relevant to this appeal.
10
No. 2018AP2366
within this area “[t]o effect the purposes of s. 281.31 and to promote the public
health, safety and general welfare.”
¶17 The County reasons that it has authority to regulate here because its
pier regulations have been enacted for the purposes specified in WIS. STAT.
§ 281.31, which include to “control building sites, placement of structure and land
uses.” See § 281.31(1). And it draws from the general statements that the
regulations may pertain to “lands under … navigable waters” the notion that it may
therefore regulate piers. See § 281.31(1), (2)(e). At the very least, reasons the
County, nothing in § 281.31 or the grant of zoning authority contained in WIS. STAT.
§ 59.692(1c) prohibits a county from regulating piers.
¶18 We reject the County’s assertion that it has authority under WIS. STAT.
§§ 281.31 and 59.692 to regulate piers that qualify for the WIS. STAT. § 30.12(1g)(f)
permit exemption. The County points to no language in § 281.31 that authorizes it
to do anything. Most of the duties outlined in that section relate to the DNR’s role
in developing municipal regulations. See § 281.31(3)-(7). Moreover, the statute
recognizes that the protective measures contemplated therein are necessary for the
“fulfillment of the state’s role as trustee of its navigable waters,” § 281.31(1), the
same general reason the legislature has enacted WIS. STAT. ch. 30, see ABKA Ltd.
P’ship, 255 Wis. 2d 486, ¶11.
¶19 WISCONSIN STAT. § 281.31 must be “construed together” with WIS.
STAT. § 59.692, see § 281.31(8), but even that exercise does not get the County very
far. Section 59.692(1c) requires a county to “zone by ordinance all shorelands in
its unincorporated area.” As stated above, and for purposes of this case, the term
“shoreland” includes areas that are 1,000 feet landward of a lake’s ordinary high
water mark. See § 59.692(1)(b)1. There is no grant of authority to regulate a pier
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No. 2018AP2366
under this general zoning authority. And even if we could divine from § 59.692(1c)
some general authority that would encompass pier regulation, we would still defer
to the plain language of WIS. STAT. §§ 30.12 and 30.13, which together exclude
§ 30.12(1g)(f) piers from the scope of municipal regulation regarding pier location
and construction. “[T]he general rule of statutory construction in Wisconsin where
two statutes relate to the same subject matter is that the specific statute controls over
the general statute.” Gottsacker Real Estate Co. v. DOT, 121 Wis. 2d 264, 269,
359 N.W.2d 164 (Ct. App. 1984).12
¶20 Given the foregoing, it is apparent that a pier must qualify for the
exemption under WIS. STAT. § 30.12(1g)(f) to avoid complying with municipal
regulations adopted pursuant to WIS. STAT. § 30.13(2). Here, it is unclear, based
upon the stipulated facts, whether Sunflower’s pier qualifies under the
subsec. (1g)(f)1. exemption. Subsection (1g)(f)1.a. requires that the pier be “no
more than 6 feet wide.” The six-foot-width limitation is suspended for an area used
as a loading platform, provided the surface area of the platform does not exceed 200
square feet. Section 30.12(1g)(f)2. Although Sunflower posits that there is “no
12
Sunflower additionally argues that the County’s regulatory authority with respect to
piers meeting the requirements of WIS. STAT. § 30.12(1g)(f) has been preempted. “A municipal
ordinance is preempted if (1) the legislature has expressly withdrawn the power of municipalities
to act; (2) it logically conflicts with state legislation; (3) it defeats the purpose of state legislation;
or (4) it violates the spirit of state legislation.” DeRosso Landfill Co. v. City of Oak Creek, 200
Wis. 2d 642, 651-52, 547 N.W.2d 770 (1996) (footnotes omitted). Sunflower argues conflict
preemption is applicable here, largely for the same reasons it provides in its statutory analysis. We
deem it unnecessary to address the preemption issue, given that our analysis of the statutory text
leads us to conclude that the piers authorized by § 30.12(1g)(f) are not subject to municipal
regulations enacted under WIS. STAT. § 30.13(2). See Maryland Arms Ltd. P’ship v. Connell,
2010 WI 64, ¶48, 326 Wis. 2d 300, 786 N.W.2d 15 (“Typically, an appellate court should decide
cases on the narrowest possible grounds.”).
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No. 2018AP2366
dispute” it meets the standards set forth in § 30.12(1g)(f)1., the stipulated facts
(coupled with the County’s appellate argument) raise some doubt in this regard.
¶21 First, the stipulated facts appear to suggest there are portions of
Sunflower’s pier that are in excess of twenty feet wide. The stipulation establishes
the dimensions of the lateral extension as “ninety feet (90’) in length” and “greater
than 20 feet in width.”13 Sunflower’s circuit court brief appears to contradict the
stipulated facts and is internally inconsistent, as Sunflower represented at one point
that its pier was “no more than six feet wide” while acknowledging in another
section of the brief that it is “undisputed that [Sunflower’s] lateral extension totals
more than 20 feet in width.” As support for the former assertion, Sunflower merely
provided a general citation to an affidavit that itself does not include any reference
to the width of the pier. Sunflower does not explain or otherwise attempt to
reconcile these potentially incongruent representations, nor does Sunflower suggest
the six-foot-width requirement does not apply under the alternative square-footage
calculation contained in WIS. STAT. § 30.12(1g)(f)2.
¶22 Second, the County’s appellate brief appears to challenge the notion
that Sunflower’s pier is no more than six feet wide. In the context of discussing the
Ordinance’s requirement that lateral extensions “not exceed twenty (20) feet in total
width” (emphasis added), the County notes Sunflower’s concession in the circuit
court that it had not complied with this requirement. The County’s appellate brief
contends that this excessive “width” constitutes a “violation of the public trust
doctrine and certainly restricts the public’s use of that waterway.”
13
A sketch of the pier is included in the appellate record, but does not include the pier
dimensions.
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No. 2018AP2366
¶23 Despite the foregoing, Sunflower portrays it as “undisputed” that its
pier qualifies for the permit exemption contained in WIS. STAT. § 30.12(1g)(f), and
the County does not directly dispute that assertion. Nonetheless, as we have
explained, it is unclear from the appellate record whether Sunflower’s pier in fact
qualifies. We therefore reverse the circuit court’s judgment and remand for further
proceedings consistent with this opinion. If the court determines that Sunflower’s
pier meets the criteria for the subsec. (1g)(f) exemption, it is directed to dismiss the
citation in accordance with our statutory analysis above. If the court determines that
Sunflower’s pier does not qualify for the (1g)(f) exemption, it may conduct further
proceedings as are appropriate to resolve the case.
¶24 Finally, the County has filed a cross-appeal, challenging the circuit
court’s conclusion that the Ordinance is ambiguous with respect to whether the pier
as a whole must be shaped as a “T” or an “L,” or whether those shapes are merely
required of pier extensions. The County argues the Ordinance’s definition of a
“pier” requires the pier to be viewed as a whole structure, rather than as separate
parts, as Sunflower contends. In the County’s view, the term “finger extensions” in
Ordinance § 9.98 F.2., and the term “lateral extensions” in Ordinance § 9.98 F.3.,
refer to the same thing.
¶25 We decline to reach the issue of the proper interpretation of the
Ordinance at this juncture, given that we are reversing the judgment in its entirety
and the statutory analysis outlined above regarding WIS. STAT. §§ 30.12 and 30.13
may be dispositive. If the circuit court concludes Sunflower’s pier does not satisfy
the requirements of § 30.12(1g)(f), it must determine whether the pier qualifies for
a permit exemption under the alternative criteria of § 30.13(1), including whether
the pier violates any ordinances established under § 30.13(2). See § 30.13(1)(d).
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No. 2018AP2366
By the Court.—Judgment reversed and cause remanded with
directions; cross-appeal dismissed.
15