Michael Anderson v. Town of Newbold

2021 WI 6SUPREME COURT OF WISCONSIN
CASE NO.: 2018AP547
COMPLETE TITLE: State of Wisconsin ex rel. Michael Anderson,
Petitioner-Appellant-Petitioner,
v.
Town of Newbold,
Respondent-Respondent.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 389 Wis. 2d 309,935 N.W.2d 856PDC No:2109 WI App 59 - Published
OPINION FILED: January 27, 2021
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: October 1, 2020
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Oneida
JUDGE: Patrick F. O’Melia
JUSTICES:
ANN WALSH BRADLEY, J., delivered the majority opinion of the
Court in which ROGGENSAKC, C.J., ZIEGLER, DALLET, and KAROFSKY,
JJ., joined. HAGEDORN, J., filed a dissenting opinion, in which
REBECCA GRASSL BRADLEY, J., joined.
NOT PARTICIPATING:
ATTORNEYS:
For the petitioner-appellant-petitioner, there were briefs
filed by Timothy B. Melms, Mary M. Hogan, and Hogan & Melms,
LLP, Rhinelander. There was an oral argument by Timothy B. Melms
and Mary M. Hogan.
For the respondent-respondent, there was a brief submitted
by Daniel L. Vande Zande, Sam Kaufman, and Vande Zande &
Kaufman, LLP, Waupun. There was an oral argument by Daniel L.
Vande Zande.
An amicus curiae brief was submitted on behalf of Wisconsin
Association of Lakes, Inc., Big Portage Lake Riparian Owners
Association, Blue Lake Preservation Association, Ballard-Irving-
White Birch Lakes Association, Inc., Deer Lake Improvement
Association, Wildcat Lake Association, Lake Katherine
Association, Inc. and Plum Lake Association by Christa O.
Westerberg and Pines Bach LLP, Madison.
An amicus curiae brief was submitted on behalf of Wisconsin
Towns Association by Joseph Ruth, Shawano.
An amicus curiae brief was submitted on behalf of Wisconsin
Realtors Association and Wisconsin Builders Association by
Thomas D. Larson, Madison. There was an oral argument by Thomas
D. Larson.
2
2021 WI 6NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2018AP547
(L.C. No. 2017CV55)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin ex rel. Michael Anderson,
Petitioner-Appellant-Petitioner,
FILED
v.
JAN 27, 2021
Town of Newbold,
Sheila T. Reiff
Respondent-Respondent. Clerk of Supreme Court
ANN WALSH BRADLEY, J., delivered the majority opinion of the
Court, in which ROGGENSACK, C.J., ZIEGLER, DALLET, and KAROFSKY,
JJ., joined. HAGEDORN, J., filed a dissenting opinion, in which
REBECCA GRASSL BRADLEY, J., joined.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 ANN WALSH BRADLEY, J. The petitioner, Michael
Anderson, seeks review of a published court of appeals decision
affirming the circuit court's order upholding the Town of
Newbold's denial of Anderson's attempt to subdivide his
property.1 Anderson's proposed subdivision was denied by the
1State ex rel. Anderson v. Town of Newbold, 2019 WI App 59,
389 Wis. 2d 309, 935 N.W.2d 856 (affirming order of circuit
court for Oneida County, Patrick F. O'Melia, Judge).
No. 2018AP547
Town because the two resulting lots would not meet the Town's
applicable minimum shoreland frontage requirement as set by Town
ordinance.
¶2 Anderson contends that the Town's minimum shoreland
frontage requirement is unenforceable because it is a shoreland
zoning regulation that the Town does not have the authority to
enact. The Town, on the other hand, argues that the requirement
is a permissible exercise of its subdivision authority.
¶3 We conclude that the Town ordinance at issue is a
permissible exercise of the Town's subdivision authority
pursuant to Wis. Stat. § 236.45 (2017-18).2 The Town thus
proceeded on a correct theory of law when it denied Anderson's
request to subdivide his property in a way that would contravene
the ordinance.
¶4 Accordingly, we affirm the decision of the court of
appeals.
I
¶5 Anderson owns property on Lake Mildred in the Town of
Newbold, which includes 358.43 feet of shoreline frontage.
Seeking to subdivide his property into two separate lots, one
with 195 feet of shoreline frontage and the other with 163.43
feet, Anderson submitted a proposal to the Town.
¶6 At its November 3, 2016 meeting, the Town Plan
Commission considered Anderson's proposal. The commission
2 All subsequent references to the Wisconsin Statutes are to
the 2017-18 version unless otherwise indicated.
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No. 2018AP547
recommended that the Town deny Anderson's proposal based on its
failure to comply with the Town's subdivision ordinance.
According to the commission's minutes, denial was recommended
"because [the plan] does not comply with Town of Newbold On-
Water Land Division Standards 13.13 which requires a minimum 225
foot lot width at the ordinary high water mark" of Lake Mildred.
Adopting the commission's recommendation, the Town Board denied
Anderson's proposed subdivision.
¶7 Anderson sought certiorari review of the Town's
decision in the circuit court. He contended that the Town
proceeded on an incorrect theory of law by denying his proposal
to subdivide his property. Specifically, he relied on Wis.
Stat. § 59.692,3 contending that this statute prevents
municipalities from enforcing local shoreland zoning standards
that are more restrictive than the standards that have been
enacted on a state level. Anderson argued that the Town of
Newbold ordinance is invalid because it is more restrictive than
state standards.
¶8 The circuit court issued a written decision, in
several places referring to the case as a "close call."
Although it stated that Anderson "makes a fairly strong case,"
it ultimately did not rule in his favor and affirmed the Town's
decision. The circuit court concluded that the Town ordinance
3 Wisconsin Stat. § 59.692(1d)(a) provides: "An ordinance
enacted under this section may not regulate a matter more
restrictively than the matter is regulated by a shoreland zoning
standard."
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No. 2018AP547
at issue does not fall within the purview of Wis. Stat.
§ 59.692: "It is not a zoning ordinance enacted under Wis.
Stat. Ch. 59 at all; instead, it is a subdivision ordinance
enacted under Wis. Stat. Ch. 236."
¶9 Recognizing a distinction between zoning ordinances
and subdivision ordinances, the circuit court also observed an
overlap between the two concepts that ultimately proved
dispositive: "Because there is a recognized overlap between
these two functions (i.e. zoning and subdivision controls), Mr.
Anderson's concern that 'the Town of Newbold is performing a
zoning function' with its subdivision ordinance cannot
ultimately prevail." It reached this conclusion because "the
statutory 'enacted under this section' language chosen by the
legislature [in Wis. Stat. § 59.692] is difficult to apply to a
local subdivision ordinance enacted under Wis. Stat. Ch. 236."
¶10 Anderson appealed, and the court of appeals affirmed
the circuit court, upholding the Town's denial of Anderson's
proposed subdivision. State ex rel. Anderson v. Town of
Newbold, 2019 WI App 59, 389 Wis. 2d 309, 935 N.W.2d 856. The
court of appeals recognized what it described as an "undeniable
tension between Wis. Stat. §§ 59.692 and 236.45[,]" yet like the
circuit court, it determined that "the Town has the authority to
enforce the Shoreland Ordinance, which, again, was undisputedly
enacted as a lawful exercise of the Town's subdivision authority
under Wis. Stat. § 236.45." Id., ¶¶21-22. Anderson petitioned
for review in this court.
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No. 2018AP547
II
¶11 This case arrives here on certiorari review.
"Certiorari is a mechanism by which a court may test the
validity of a decision rendered by a municipality, an
administrative agency, or an inferior tribunal." Ottman v. Town
of Primrose, 2011 WI 18, ¶34, 332 Wis. 2d 3, 796 N.W.2d 411.
¶12 On certiorari review, we examine the decision of the
Town Board, not the decision of the circuit court. Oneida Seven
Generations Corp. v. City of Green Bay, 2015 WI 50, ¶42, 362
Wis. 2d 290, 865 N.W.2d 162. Our review is limited to (1)
whether the municipality kept within its jurisdiction; (2)
whether it proceeded on a correct theory of law; (3) whether its
action was arbitrary, oppressive, or unreasonable and
represented its will and not its judgment; and (4) whether the
evidence was such that it might reasonably make the order or
determination in question. Wisconsin Dolls, LLC v. Town of Dell
Prairie, 2012 WI 76, ¶18, 342 Wis. 2d 350, 815 N.W.2d 690.
¶13 In our review, we must interpret several statutes.
Statutory interpretation presents a question of law this court
reviews independently of the determinations rendered by the
circuit court and court of appeals. Shugarts v. Mohr, 2018 WI
27, ¶18, 380 Wis. 2d 512, 909 N.W.2d 402.
III
¶14 We begin by setting forth necessary background
regarding the statutory authority of various governmental
entities to regulate land use and subdivision, with a specific
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No. 2018AP547
eye to shorelands. Subsequently, we examine Anderson's
arguments advanced in this case.
A
¶15 At issue is the validity of the Town's minimum
shoreland lot size requirements found in Town of Newbold
Ordinance 13.13. In Ordinance 13.13.01, the Town sets forth the
purpose and intent of the provision:
The Town Board has determined that in order to enhance
the quality of the division or subdivision of land
within areas of the Town affecting properties having
frontage on any of the lakes, flowages, ponds,
navigable rivers and/or streams located within the
Town, that standards more stringent than current
County development standards be established as
provided . . . .
¶16 Accordingly, the Town set minimum lot frontage
requirements for each lake within its borders. As applicable to
Lake Mildred, such minimum lot frontage is 225 feet. Anderson
challenges this regulation as outside the statutory authority of
the Town to enact.
¶17 In terms of this certiorari review, the issue focuses
on the second prong of such review——whether the Town proceeded
on a correct theory of law in enacting the above-cited minimum
shoreland lot size requirement. To determine whether the Town
proceeded on a correct theory of law, we must interpret the
relevant statutes that set the parameters for the regulation of
land use controls by various governmental entities.
¶18 Statutory interpretation begins with the language of
the statute. State ex rel. Kalal v. Cir. Ct. for Dane Cnty.,
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No. 2018AP547
2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110. If the
meaning of the statute is plain, we need not further the
inquiry. Id.¶19 "Statutory language is given its common, ordinary, and
accepted meaning, except that technical or specially-defined
words or phrases are given their technical or special
definitional meaning." Id. We interpret statutory language "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.
¶20 The Wisconsin Statutes provide a framework for the
regulation of land use by various governmental entities. Such
regulation can take the form of planning, zoning, or platting.
Town of Sun Prairie v. Storms, 110 Wis. 2d 58, 68, 327
N.W.2d 642 (1983). This court has recognized that "[z]oning and
planning must be viewed as complementary devices used in
community planning." Id. (quoting E.C. Yokley, Law of
Subdivisions, § 39 at 157-58 (2d ed. 1981)).
¶21 Not all lands are treated equally in terms of
community planning. Indeed, the legislature has recognized that
shorelands are subject to unique considerations. These
considerations arise from the fact that shorelands abut
navigable waters, the beds of which are held in trust by the
State for all of its citizens. Wis. Stat. § 281.31(1); Movrich
v. Lobermeier, 2018 WI 9, ¶25, 379 Wis. 2d 269, 905 N.W.2d 807;
7
No. 2018AP547
R.W. Docks & Slips v. State, 2001 WI 73, ¶19, 244 Wis. 2d 497,
628 N.W.2d 781.
¶22 Because shorelands present unique considerations, they
are treated differently for purposes of zoning. The legislature
has specifically stated that shoreland zoning regulations are
"in the public interest." Wis. Stat. § 281.31(1).4 In a full
statement of policy, § 281.31(1) sets forth:
To aid in the fulfillment of the state's role as
trustee of its navigable waters and to promote public
health, safety, convenience and general welfare, it is
declared to be in the public interest to make studies,
establish policies, make plans and authorize municipal
shoreland zoning regulations for the efficient use,
conservation, development and protection of this
state's water resources. The regulations shall relate
to lands under, abutting or lying close to navigable
waters. The purposes of the regulations shall be to
further the maintenance of safe and healthful
conditions; prevent and control water pollution;
protect spawning grounds, fish and aquatic life;
control building sites, placement of structure and
land uses and reserve shore cover and natural beauty.
¶23 "The basic purpose of a shoreland zoning ordinance is
to protect navigable waters and the public rights therein from
the degradation and deterioration which results from
uncontrolled use and development of shorelands." Forest Cnty.
4Wisconsin has long been a national leader in shoreland
protection through zoning. The passage of the Navigable Waters
Protection Law, Wis. Stat. § 281.31, made Wisconsin the "first
state to enact zoning legislation specifically designed to
protect public water resources through the regulation of land
use activities on contiguous shorelands." Tracy K. Kuczenski,
Wisconsin's Shoreland Management Program: An Assessment With
Implications For Effective Natural Resources Management and
Protection, 1999 Wis. L. Rev. 273, 274 (1999).
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No. 2018AP547
v. Goode, 219 Wis. 2d 654, 678, 579 N.W.2d 715 (1998) (citation
omitted); see Just v. Marinette Cnty., 56 Wis. 2d 7, 16-17, 201
N.W.2d 761 (1972). Shoreland zoning also serves to balance the
public and private interests in shoreland areas. Paul G. Kent,
On the Waterfront: New Shoreland Zoning Laws, 90 Wis. Law. 14,
15 (Jan. 2017).
¶24 Although general zoning authority is granted to both
counties and towns, see Wis. Stat. §§ 59.69, 60.61, the
authority to enact zoning ordinances specific to shorelands lies
with counties alone.5 Wis. Stat. § 59.692(1c); see Hegwood v.
Town of Eagle Zoning Bd. of Appeals, 2013 WI App 118, ¶9, 351
Wis. 2d 196, 839 N.W.2d 111;6 Herman v. Cnty. of Walworth, 2005
5 For purposes of Wis. Stat. § 59.692, "shorelands" are
defined as:
[T]he area within the following distances from the
ordinary high-water mark of navigable waters, as
defined under s. 281.31(2)(d):
1. One thousand feet from a lake, pond or flowage. If
the navigable water is a glacial pothole lake, this
distance shall be measured from the high-water mark of
the lake.
2. Three hundred feet from a river or stream or to the
landward side of the floodplain, whichever distance is
greater.
Wis. Stat. § 59.692(1)(b).
6 In Hegwood, the court of appeals determined that "[t]he
plain language of the statutory scheme evinces that by enactment
of Wis. Stat. §§ 281.31 and 59.692, the legislature intended
that towns would not have authority to regulate shorelands
except where such regulation fell within the language of
§ 59.692(2)(b)," a grandfather clause that no party argues
applies here. Hegwood v. Town of Eagle Zoning Bd. of Appeals,
2013 WI App 118, ¶16, 351 Wis. 2d 196, 839 N.W.2d 111.
9
No. 2018AP547
WI App 185, ¶18, 286 Wis. 2d 449, 703 N.W.2d 720. Section
59.692(1c) provides in relevant part: "To effect the purposes
of s. 281.31 and to promote the public health, safety and
general welfare, each county shall zone by ordinance all
shorelands in its unincorporated area. The requirements in this
ordinance shall relate to the purposes in s. 281.31(1)."
¶25 A county shoreland zoning ordinance enacted pursuant
to Wis. Stat. § 59.692 cannot be more restrictive than the
standards that have been enacted at the state level: "An
ordinance enacted under this section may not regulate a matter
more restrictively than the matter is regulated by a shoreland
zoning standard."7 § 59.692(1d)(a). The previous sentence,
however, "does not prohibit a county from enacting a shoreland
zoning ordinance that regulates a matter that is not regulated
by a shoreland zoning standard." § 59.692(1d)(b).
As the court of appeals in the present case observed,
subsequent to the Hegwood decision the legislature passed 2015
Wis. Act 41. See Anderson, 389 Wis. 2d 309, ¶11 n.2. The court
of appeals stated that this enactment "appear[s] to modify our
decision in Hegwood to clarify that although towns do not have
authority to enact a zoning ordinance that is specific to
shoreland areas, they may still enact and apply a general zoning
ordinance that applies in both shoreland and non-shoreland
areas." Id. (citing Wis. Stat. §§ 60.61(3r) and 60.62(5)). Act
41 does not affect our analysis and we need not interpret or
further discuss the provisions it created.
7A "shoreland zoning standard" is defined as "a standard
for ordinances enacted under this section that is promulgated as
a rule by the department [of natural resources]." Wis. Stat.
§ 59.692(1)(c); see Wis. Admin. Code § NR 115.05 (Jan. 2017).
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No. 2018AP547
¶26 As stated, zoning ordinances are not the only means by
which governmental entities can engage in community planning.
The legislature has additionally given subdivision authority to
certain entities.
¶27 The authority to enact subdivision regulations arises
from Wis. Stat. § 236.45. Setting forth a litany of purposes in
this statutory section, the legislature provided:
The purpose of this section is to promote the public
health, safety and general welfare of the community
and the regulations authorized to be made are designed
to lessen congestion in the streets and highways; to
further the orderly layout and use of land; to secure
safety from fire, panic and other dangers; to provide
adequate light and air, including access to sunlight
for solar collectors and to wind for wind energy
systems; to prevent the overcrowding of land; to avoid
undue concentration of population; to facilitate
adequate provision for transportation, water,
sewerage, schools, parks, playgrounds and other public
requirements; to facilitate the further resubdivision
of larger tracts into smaller parcels of land. The
regulations provided for by this section shall be made
with reasonable consideration, among other things, of
the character of the municipality, town or county with
a view of conserving the value of the buildings placed
upon land, providing the best possible environment for
human habitation, and for encouraging the most
appropriate use of land throughout the municipality,
town or county.
§ 236.45(1).
¶28 To accomplish the purposes listed in subsec. (1), Wis.
Stat. § 236.45(2)(ac) grants to "any municipality, town or
county that has established a planning agency" the authority to
"enact ordinances governing the subdivision or other division of
land that are more restrictive than the provisions of this
chapter, except that no ordinance may modify in a more
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No. 2018AP547
restrictive way time limits, deadlines, notice requirements, or
other provisions of this chapter that provide protections for a
subdivider." Such ordinances "may include provisions regulating
divisions of land into parcels larger than 1 1/2 acres or
divisions of land into less than 5 parcels." § 236.45(2)(am).
¶29 Although they often work together, zoning and
subdivision regulations provide separate and distinct means of
regulating the development of land. In Storms, the court
considered the question of whether the Town of Sun Prairie had
authority under Wis. Stat. § 236.45 to adopt an ordinance
regulating minimum lot size. 110 Wis. 2d at 60. Answering in
the affirmative, the court explained that lot size regulation
furthers several of the policy goals of ch. 236, including
orderly layout and use of land, preventing overcrowding of land,
avoiding undue concentration of population, providing the best
possible environment for human habitation, encouraging the most
appropriate use of land and providing for adequate light and
air. Id. at 65.
¶30 The court further addressed the relationship between
zoning and subdivision, indicating that both may deal with
minimum lot sizes. Id. at 67. There are areas of overlap
between the two powers, but there are also key differences.
Both are aimed at the orderly development of a
community. Though zoning is aimed at controlling the
uses of land and existing resources, subdivision
regulations are designed to control the division of
land and to assure that such developments thereon are
designed to accommodate the needs of the occupants of
the subdivision.
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No. 2018AP547
Id. at 68 (quotation omitted). "The purpose of zoning is to
provide an overall comprehensive plan for land use, while
subdivision regulations govern the planning of new streets,
standards for plotting new neighborhoods, and the protection of
the community from financial loss due to poor development." Id.(quotation omitted).
¶31 In other words, zoning and subdivision are
"complementary land planning devices. Subdivision control is
concerned with the initial division of undeveloped land, while
zoning more specifically regulates the further use of this
land." Id. "The fact that minimum lot size may also be
regulated by zoning ordinances does not detract from the power
of local governments to exercise such power pursuant to ch. 236,
Stats." Id. at 70.
¶32 Thus, Storms stands for the proposition that zoning
and subdivision regulation are separate, yet sometimes
overlapping, powers. See also Wood v. City of Madison, 2003 WI
24, ¶23, 260 Wis. 2d 71, 659 N.W.2d 31 (recognizing a similarity
between the purposes of zoning and subdivision plat approval
authority). The Storms court was also careful to delineate that
the two powers stem from separate enabling legislation. "As
long as the regulation is authorized by and within the purposes
of ch. 236, the fact that it may also fall under the zoning
power does not preclude a local government from enacting the
regulation pursuant to the conditions and procedures of ch.
236." Storms, 110 Wis. 2d at 70-71.
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No. 2018AP547
B
¶33 With this necessary background in hand, we examine
next Anderson's specific arguments.
¶34 Anderson contends that the Town of Newbold Ordinance
13.13 is a zoning ordinance in disguise that impermissibly
regulates shorelands in a manner contrary to Wis. Stat.
§ 59.692. He observes a dissonance in a statutory scheme that
allows the Town to regulate shoreland property as an exercise of
subdivision authority when it would be prohibited from doing so
by means of its zoning authority.
¶35 The essential question posed in this case is whether
Town of Newbold Ordinance 13.13 is a zoning ordinance or a
subdivision ordinance. In other words, we must determine the
source of the authority under which the ordinance was passed.
¶36 This court has previously offered guidance and a
framework of analysis for the determination of whether an
ordinance springs from a governmental entity's zoning authority.
See Zwiefelhofer v. Town of Cooks Valley, 2012 WI 7, 338
Wis. 2d 488, 809 N.W.2d 362. In Zwiefelhofer, the court
addressed whether the Town of Cooks Valley's nonmetallic mining
ordinance is a zoning ordinance so as to require approval of the
county board. Id., ¶2.
¶37 In determining that the ordinance at issue was not a
zoning ordinance, the court did not set a bright-line rule.
Id., ¶8. Instead, it used a functional approach where it
"catalogue[d] the characteristics of traditional zoning
ordinances and the commonly accepted purposes of zoning
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No. 2018AP547
ordinances. We then compare[d] the characteristics and purposes
of the Ordinance to the characteristics and purposes of
traditional zoning ordinances to determine whether the Ordinance
should be classified as a zoning ordinance." Id.
¶38 In conducting such an analysis, "[n]o single
characteristic or consideration is dispositive of the question
whether the Ordinance is a zoning ordinance." Id., ¶9. Nor is
the conclusion a result of a simple tally of the similarities
and differences. Indeed, a court may not "simply add up the
number of similarities a challenged ordinance has to traditional
zoning ordinances or the number of differences a challenged
ordinance has from traditional zoning ordinances to determine
whether a challenged ordinance is a zoning ordinance." Id.
¶39 The analysis must be specific to the ordinance at
issue in the particular case. "Some characteristics, under the
circumstances of the case, may be more significant than others."
Id.
¶40 Characteristics of an ordinance that inform the
determination of whether the ordinance is a zoning ordinance
include: (1) zoning ordinances typically divide a geographic
area into multiple zones or districts, id., ¶36; (2) within the
established districts or zones, certain uses are typically
allowed as of right and certain uses are prohibited, id., ¶38;
(3) zoning ordinances are traditionally aimed at directly
controlling where a use takes place as opposed to how it takes
place, id., ¶39; (4) traditionally classifying uses in general
terms, zoning ordinances attempt to comprehensively address all
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No. 2018AP547
possible uses in the geographic area, id., ¶40; (5) zoning
ordinances traditionally make a fixed, forward-looking
determination regarding what uses will be permitted as opposed
to case-by-case determinations, id., ¶41; and (6) traditional
zoning ordinances allow certain landowners whose land use was
legal prior to the adoption of the zoning ordinance to maintain
their land use despite its failure to conform to the ordinance.
Id., ¶42.
¶41 This list is not intended to be exhaustive. Id., ¶43.
As the Zwiefelhofer court recognized, "[m]any jurisdictions,
including Wisconsin, have certainly recognized the possibility
that an ordinance need not fit the traditional mold perfectly in
order to constitute zoning." Id. However, the characteristics
identified constitute the "heart of traditional zoning
ordinances." Id.
¶42 The Zwiefelhofer court further detailed both broad and
narrow purposes of zoning ordinances. Broadly, zoning
ordinances have the purpose of promoting the welfare of the
community, regulating the growth and development of a city in an
orderly manner, conserving property values, and encouraging the
most appropriate use of land. Id., ¶¶45-46. These purposes
provide little assistance to the analysis, however, due to their
breadth and the fact that they "could apply to a far-reaching
range of planning and regulation undertaken by local
governments." Id., ¶46. More specific purposes of zoning
include confining certain classes of buildings and uses to
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No. 2018AP547
certain localities and separating incompatible from compatible
land uses. Id., ¶¶47-48.
¶43 To determine whether the Town of Newbold ordinance at
issue here is a zoning ordinance, we apply the Zwiefelhofer
framework. Our analysis of the Zwiefelhofer factors is framed
by the statutory mandate to liberally construe subdivision
ordinances in the Town's favor. Specifically, Wis. Stat.
§ 236.45(2)(b) provides that "[t]his section and any ordinance
adopted pursuant thereto shall be liberally construed in favor
of the municipality, town or county and shall not be deemed a
limitation or repeal of any requirement or power granted or
appearing in this chapter or elsewhere, relating to the
subdivision of lands." This court has recognized that
§ 236.45(2)(b) reserves to the Town "a broad area of discretion
in implementing subdivision control" and constitutes a "grant of
wide discretion which a municipality may exercise by ordinance
or appropriate resolution." City of Mequon v. Lake Estates Co.,
52 Wis. 2d 765, 774, 190 N.W.2d 912 (1971).
¶44 Pursuant to the Zwiefelhofer framework, and through
the lens of the required liberal construction, it is apparent
that the Town's ordinance is not a zoning ordinance. Most
importantly, Town of Newbold Ordinance 13.13 has nothing to do
with the use of land. It says nothing of how Anderson can use
his land, only that he cannot split into the portion he seeks.
Indeed, the ordinance addresses minimum lot size, an area that
this court has recognized can be addressed in both the zoning
and subdivision contexts. See Storms, 110 Wis. 2d at 70.
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No. 2018AP547
¶45 Second, the Town of Newbold ordinance does not divide
the land into any type of zone or district. Although it
contains different lot size requirements for areas bordering on
various lakes within the Town, this does not make it a zoning
ordinance. 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. See Zwiefelhofer,
338 Wis. 2d 488, ¶¶38-42. No such restriction is present here.
¶46 Driving the determination in the present case are the
first two Zwiefelhofer factors——division of a geographic area
into zones or districts and the allowance or prohibition of
certain uses within those zones. See id., ¶9 ("Some
characteristics, under the circumstances of the case, may be
more significant than others."). We need not exhaustively
analyze the remaining Zwiefelhofer factors because they
presuppose that the ordinance in question regulates land use in
some way. As stated, Town of Newbold Ordinance 13.13 does not
support such a presupposition.
¶47 Thus, pursuant to the Zwiefelhofer factors, Town of
Newbold Ordinance 13.13 is not a zoning ordinance. It does not
concern land use and it does not separate compatible and
incompatible land uses, which is a key purpose of a zoning
ordinance. See id., ¶48.
¶48 Because it is not a zoning ordinance, the restrictions
on Town enactment of zoning ordinances set by Wis. Stat.
§ 59.692 do not apply. Pursuant to § 59.692(1d), "[a]n
ordinance enacted under this section may not regulate a matter
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No. 2018AP547
more restrictively than the matter is regulated by a shoreland
zoning standard." Yet, the Town of Newbold ordinance at issue
was not "enacted under this section," as it is not a zoning
ordinance.
¶49 Instead, Ordinance 13.13 is a subdivision ordinance
enacted pursuant to Wis. Stat. § 236.45. As this court has
previously determined, just because an area may be susceptible
to regulation through zoning does not mean that regulation
through subdivision is precluded. Storms, 110 Wis. 2d at 70-71.
Indeed, lot size may be regulated by use of both zoning and
subdivision authority and there is nothing in ch. 236 to
indicate that shoreland areas are exempt from subdivision
regulation. For the reasons stated, the regulation at issue
here stems from subdivision authority and not zoning authority.
IV
¶50 We therefore conclude that the Town ordinance at issue
is a permissible exercise of the Town's subdivision authority
pursuant to Wis. Stat. § 236.45. The Town thus proceeded on a
correct theory of law when it denied Anderson's request to
subdivide his property in a way that would contravene the
ordinance.
¶51 Accordingly, we affirm the decision of the court of
appeals.
By the Court.—The decision of the court of appeals is
affirmed.
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No. 2018AP547.bh
¶52 BRIAN HAGEDORN, J. (dissenting). This case
considers the interplay of two different local government
powers——the power to divide land and the power to zone——and even
more importantly, how these powers may or may not be exercised
by towns on shorelands. The majority's analysis turns on
whether the ordinance the Town of Newbold relied on to deny
Anderson's proposed land division is a zoning ordinance or a
subdivision ordinance. After concluding it is a subdivision
ordinance, the majority reasons that a town subdivision
ordinance is not subject to the restriction that ordinances
enacted under Wis. Stat. § 59.692 (2019-20)1——that is, county
shoreland zoning ordinances——"may not regulate a matter more
restrictively than the matter is regulated by a shoreland zoning
standard." § 59.692(1d)(a). In other words, the Town is
exercising subdivision authority, and § 59.692(1d)(a) does not
prohibit the Town from regulating more restrictively.
¶53 While I agree that the ordinance in question is a
subdivision ordinance and that it is not subject to the
restriction in Wis. Stat. § 59.692(1d)(a), I disagree with the
ultimate conclusion because these are the right answers to the
wrong questions. The relevant and dispositive statutory
provision in this case is § 59.692(2)(b). It provides that the
more restrictive provisions of any kind of town ordinance
relating to shorelands, including a subdivision ordinance, only
All subsequent references to the Wisconsin Statutes are to
1
the 2019-20 version.
1
No. 2018AP547.bh
have effect if the ordinance creating those more restrictive
provisions predated the county shoreland zoning ordinance.
§ 59.692(2)(b). Therefore, while towns have some zoning and
subdivision authority over shorelands, their power to regulate
more restrictively than provisions in a county shoreland zoning
ordinance is preempted unless those more restrictive provisions
predate the county shoreland zoning ordinance. The Town does
not contend § 59.692(2)(b) operates to save the more restrictive
provision at issue here, and therefore it acted contrary to law
in relying on its ordinance to deny Anderson's proposed land
division. For these reasons, I respectfully dissent.
I. BACKGROUND
¶54 The relevant facts are straightforward. Michael
Anderson owned a lakefront lot in the Town of Newbold with
358.43 feet of riparian frontage. He proposed dividing his lot
into two, with riparian frontage widths of 195 and 163.43 feet,
respectively. The county shoreline zoning ordinance requires a
minimum riparian frontage width of 100 feet.2 The proposed
division therefore satisfied the requirements of the county
shoreline zoning ordinance. The Town, meanwhile, adopted an
ordinance that has a separate, more restrictive 225-foot minimum
riparian frontage width on the particular lake in question.
Town of Newbold Ordinance 13.13.02. On this basis, the Town
denied Anderson's proposed division.
2 The county ordinance is not in the record, but the parties
do not appear to disagree on this point.
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No. 2018AP547.bh
¶55 On appeal of this decision, we must decide whether the
Town may enforce a minimum riparian frontage width more
restrictive than the riparian frontage width regulations in the
county shoreland zoning ordinance. It may not.
II. DISCUSSION
¶56 Anderson's claim is before us on a petition for
certiorari review under Wis. Stat. § 68.13(1). On certiorari,
this court's
review is limited to: (1) whether the board kept
within its jurisdiction; (2) whether it proceeded on
correct theory of law; (3) whether its action was
arbitrary, oppressive, or unreasonable and represented
its will and not its judgment; and (4) whether the
evidence was such that it might reasonably make the
order or determination in question.
Snyder v. Waukesha Cnty. Zoning Bd. of Adjustment, 74
Wis. 2d 468, 475, 247 N.W.2d 98 (1976). The specific challenge
here is whether the Town proceeded on a correct theory of law.
This rests on an interpretation of the statutory powers of
towns, which we review de novo. See Wood v. City of Madison,
2003 WI 24, ¶12, 260 Wis. 2d 71, 659 N.W.2d 31.
¶57 The legislature has given various powers and duties to
local government. This litigation concerns two of them: the
power to zone and the power to subdivide. These two powers are
separate, but complementary and overlapping land planning
devices. Town of Sun Prairie v. Storms, 110 Wis. 2d 58, 68-69,
327 N.W.2d 642 (1983). The specific question in this case
concerns the extent to which towns may exercise their
3
No. 2018AP547.bh
subdivision powers on shorelands in ways that are more
restrictive than a county shoreland zoning ordinance enacted
under Wis. Stat. § 59.692.
A. General Statutory Background
¶58 The power to divide undeveloped land or larger parcels
of land into smaller parcels is of longstanding origins, even
predating Wisconsin statehood. See Stat. 1839, ch. 41, p. 159-
61. The legislature granted local governments this power in
Wis. Stat. § 236.45, extending it to "any municipality, town or
county." § 236.45(2)(ac). Provided those governmental entities
have a planning agency, they "may enact ordinances governing the
subdivision or other division of land." Id. Generally
speaking, the power to subdivide is broad and construed
liberally. § 236.45(2)(b) ("This section and any ordinance
adopted pursuant thereto shall be liberally construed in favor
of the municipality, town or county and shall not be deemed a
limitation or repeal of any requirement or power granted or
appearing in this chapter or elsewhere, relating to the
subdivision of lands.").
¶59 State law, however, treats navigable waters and their
shorelands with special care. Wisconsin Stat. § 281.31 of the
Wisconsin statutes is entitled, "Navigable waters protection
law."3 It explains that the regulation of shorelands is in
3Chapter 281 of the Wisconsin statutes governs water and
sewage generally.
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No. 2018AP547.bh
"fulfillment of the state's role as trustee of its navigable
waters." § 281.31(1). In particular, "it is declared to be in
the public interest" to "authorize municipal shoreland zoning
regulations," among other things. Id. The purposes of these
regulations include "control [of] building sites, placement of
structure and land uses and reserve shore cover and natural
beauty." Id.
¶60 Wisconsin Stat. § 281.31 points to a statewide scheme
for shoreland regulation. It directs the Department of Natural
Resources (DNR) to create "a comprehensive plan" for "municipal
ordinances regulating navigable waters and their shorelands,"
and to "prepare and provide to municipalities general
recommended standards and criteria for . . . navigable water
protection regulations." Wis. Stat. § 281.01(3); § 281.31(5),
(6). Subsection (7) mandates intergovernmental consultation and
cooperation with the goal of "voluntary uniformity of
regulations, so far as practicable." § 281.31(7). In other
words, the hope is that the state can work with municipalities
to achieve as much uniformity in shoreland regulations statewide
as possible.
¶61 This section also tells us what it means by the
"regulations" it authorizes and discusses.
"Regulation" means ordinances enacted under [Wis.
Stat. §§] 59.692, 61.351, 61.353, 62.23(7), 62.231,
and 62.233 and refers to subdivision and zoning
regulations which include control of uses of lands
under, abutting, or lying close to navigable waters
for the purposes specified in sub. (1), pursuant to
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No. 2018AP547.bh
any of the zoning and subdivision control powers
delegated by law to cities, villages, and counties.
Wis. Stat. § 281.31(2)(e) (emphasis added). Each of the
enumerated statutes in this provision outline the power to zone
by ordinance in shorelands. Wisconsin Stat. §§ 61.351 and
61.353 discuss village shoreland zoning power, while Wis. Stat.
§§ 62.23(7), 62.231, and 62.233 govern city zoning power
generally and over shorelands. And of course, Wis. Stat.
§ 59.692 involves county shoreland zoning ordinances based on
statewide shoreland zoning standards.
¶62 Connecting these dots, regulations under Wis. Stat.
§ 281.31 refer to ordinances adopted under zoning provisions
"and refers to subdivision and zoning regulations which include
control of uses of lands under, abutting, or lying close to
navigable waters." § 281.31(2)(e) (emphasis added). The
reference to "subdivision" regulations here can only refer to
Wis. Stat. § 236.45 because that is where that power is located.
Thus, county and municipal regulations governing shorelands
include both subdivision and zoning regulations.
¶63 Lest the relevance of this be missed, Wis. Stat.
§ 281.31 is not an otherwise unrelated section that occasionally
references Wis. Stat. § 59.692. These two sections are
parallel, overlapping, and interdependent; one cannot be read
6
No. 2018AP547.bh
without the other.4 We know this because the text says so in
§ 281.13(8): "This section and [§§] 59.692 [and the village and
city shoreland zoning provisions] shall be construed together to
accomplish the purposes and objective of this section."
Multiple provisions reinforce this with cross referenced
definitions, exclusions, and requirements.5 To state it plainly,
we are instructed by the statutes to construe the county
shoreland zoning powers in Wis. Stat. § 59.692 consistent with
and together with Wis. Stat. § 281.31 in order to accomplish the
statewide purposes of protecting navigable waters and their
shorelands.
B. County Shoreland Zoning Ordinances & Town Power
¶64 This brings us to the main question before us: the
power of towns to regulate in ways more restrictive than county
shoreland zoning ordinances.
¶65 Wisconsin towns have some zoning authority. See Wis.
Stat. § 60.61. However, they have limited zoning power over
shorelands on navigable waters. Section 60.61(3r) provides that
4For example, Wis. Stat. § 281.31(2)(f) defines shorelands
by reference in part to Wis. Stat. § 59.692(1)(b). Section
281.31(2m) also indicates some areas where a required county
shoreland zoning ordinance under § 59.692 does not apply. These
are two of many examples which lend contextual and structural
support to reading these provisions together. See State v.
Powers, 2004 WI App 156, ¶12, 276 Wis. 2d 107, 687 N.W.2d 50(discussing cross-references as contextual and structural
textual clues).
5The original versions of these statutes were enacted at
the same time. §§ 22, 42, ch. 614, Laws of 1965.
7
No. 2018AP547.bh
towns "may enact a zoning ordinance . . . that applies in
shorelands," but "[a] town zoning ordinance . . . may not impose
restrictions or requirements in shorelands with respect to
matters regulated by a county shoreland zoning
ordinance . . . affecting the same shorelands." § 60.61(3r)(b),
(c); see also Wis. Stat. § 60.62(5). The legislature gave
primacy to county shoreland zoning ordinances in 1966. § 22,
ch. 614, Laws of 1965. Therefore, a town's zoning power over
shorelands is limited; it may not be more restrictive than a
county shoreland zoning ordinance adopted pursuant to Wis. Stat.
§ 59.692.
¶66 Chapter 59 of the Wisconsin Statutes is dedicated to
counties. Wisconsin Stat. § 59.692 governs, as its title says,
"zoning of shorelands on navigable waters."6 Subsection (1c)
gives the basic requirement and its rationale. Each county must
"zone by ordinance all shorelands in its unincorporated area."
§ 59.692(1c). The reason for this requirement is "[t]o effect
the purposes of [Wis. Stat. §] 281.31." Id. Consequently,
ordinances must "relate to the purposes in [§] 281.31(1)." Id.
¶67 While the municipal zoning powers described in Wis.
Stat. § 281.31 aim for voluntary uniformity, Wis. Stat. § 59.692mandates a degree of uniformity for shorelands regulated by a
county shoreland zoning ordinance——including shorelands in
towns. Paragraph (1d)(a) provides that a county shoreland
This language is another explicit tie to Wis. Stat.
6
§ 281.31, whose title says it is about protecting "navigable
waters." Compare Wis. Stat. § 59.692 with § 281.31.
8
No. 2018AP547.bh
zoning ordinance "may not regulate a matter more restrictively
than the matter is regulated by a shoreland zoning standard."
§ 59.692(1d)(a). And a "shoreland zoning standard" is defined
as "a standard for ordinances enacted under this section that is
promulgated as a rule by the department." § 59.692(1)(c); see
also § 59.692(1)(a) (defining "department" as DNR). Thus, DNR
will by rule specify certain matters——shoreland zoning
standards——and county shoreland zoning ordinances may not be
more restrictive than the specific standards adopted by rule.
¶68 However, paragraph (1d)(b) allows counties to adopt
shoreland zoning ordinances that regulate "a matter that is not
regulated by a shoreland zoning standard." Wis. Stat.
§ 59.692(1d)(b). Therefore, if the matter is not covered by one
of the statewide shoreland zoning standards adopted by rule, a
county retains power through a county shoreland zoning ordinance
to regulate it.
¶69 What, then, of the power of towns? The statute
tackles this question head-on in Wis. Stat. § 59.692(2)(b). In
my view, this provision is the dispositive statutory section
governing this case.
¶70 Wisconsin Stat. § 59.692(2)(b) provides: "If an
existing town ordinance relating to shorelands is more
restrictive than an ordinance later enacted under this section
affecting the same shorelands, it continues as a town ordinance
in all respects to the extent of the greater restrictions, but
not otherwise." This provision means several things. First, a
"town ordinance relating to shorelands" that predates a later-
9
No. 2018AP547.bh
enacted county shoreland zoning ordinance is, with one
exception, no longer in effect. A county shoreland zoning
ordinance preempts the preexisting town ordinance regulating
shorelands. Second, the only exception to this rule is that the
more restrictive provisions of a preexisting town ordinance
remain in effect. Third, by necessary implication, more
restrictive provisions in a later-enacted town ordinance
"relating to shorelands" may not take effect. Only the more
restrictive provisions of preexisting town ordinances are
grandfathered in.
¶71 These conclusions are dispositive in this case because
this section does not limit itself to town zoning ordinances; it
applies to any "town ordinance relating to shorelands." The
plain language includes ordinances of any type, including
subdivision ordinances. If there be any doubt on this point,
paragraph (2)(bg) settles the matter. It provides: "A town may
enact a zoning ordinance affecting the same shorelands as an
ordinance enacted under this section, subject to the
restrictions in ss. 60.61(3r) and 60.62(5)." Wis. Stat.
§ 59.692(2)(bg).7 And again, Wis. Stat. §§ 60.61(3r) and
60.62(5) authorize towns to enact zoning ordinances relating to
shorelands, except that they may not regulate more restrictively
on matters regulated by a county shoreland zoning ordinance.
This means that paragraph (2)(b) cannot be referring to town
zoning ordinances alone. The language in (2)(bg) shows that the
7 This paragraph was created by 2019 Wis. Act 145.
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No. 2018AP547.bh
legislature knows how to specify zoning ordinances if it wants
to. It plainly did not limit the restriction in (2)(b) to town
zoning ordinances.8
¶72 This reading is further reinforced by the
administrative code. As noted above, Wis. Stat. § 281.31 and
Wis. Stat. § 59.692 do not stand alone. They explicitly
reference standards to be adopted by rule. The relevant rule
provisions are found in Wis. Admin. Code ch. NR 115 (Jan. 2017).9
¶73 Wisconsin Admin. Code § NR 115.01 states the purpose
and statutory grounding for this provision, and provides in
relevant part:
Section 281.31, Stats., provides that shoreland
subdivision and zoning regulations shall: "further
the maintenance of safe and healthful conditions;
prevent and control water pollution; protect spawning
grounds, fish and aquatic life; control building
sites, placement of structure and land uses and
reserve shore cover and natural beauty." Section
59.692, Stats., requires counties to effect the
purposes of [§] 281.31, Stats., and to promote the
public health, safety and general welfare by adopting
zoning regulations for the protection of all
shorelands in unincorporated areas that meet shoreland
zoning standards promulgated by the department. The
purpose of this chapter is to establish minimum
shoreland zoning standards for ordinances enacted
under [§] 59.692, Stats., for the purposes specified
in [§] 281.31 (1), Stats., and to limit the direct and
State v. Quintana, 2008 WI 33, ¶32, 308 Wis. 2d 615, 748
8
N.W.2d 447 ("When the legislature does not use words in a
restricted manner, the general terms should be interpreted
broadly to give effect to the legislature's intent.").
All subsequent references to Wisconsin Administrative Code
9
ch. NR 115 are to the January 2017 register date unless
otherwise indicated.
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No. 2018AP547.bh
cumulative impacts of shoreland development on water
quality; near−shore aquatic, wetland and upland
wildlife habitat; and natural scenic beauty.
§ NR 115.01 (emphasis added). The broader import of these
provisions is that they were written to mean something, to have
statewide effect. And the very first sentence makes clear that
Wis. Stat. § 281.31, including its specific inclusion of
ordinances adopted under Wis. Stat. § 59.692, is directed at
limitations on both "shoreland subdivision and zoning
regulations." § NR 115.01
¶74 The specific shoreland zoning standards referenced in
Wis. Stat. § 59.692 are delineated in Wis. Admin. Code § NR
115.05. They cover minimum lot sizes; building setbacks;
vegetation; filling, grading, lagooning, dredging, ditching, and
excavating; impervious surfaces; height; and nonconforming
structures and uses. § NR 115.05(1). But the language of this
section contains a broad and preemptive flair: "The shoreland
zoning ordinance adopted by each county shall control use of
shorelands." Id. (emphasis added).
¶75 Wisconsin Admin. Code § NR 115.06 places additional
review duties on DNR to ensure any county shoreland zoning or
subdivision ordinance complies with Wis. Stat. § 59.692,
including by issuing a certificate of compliance and providing
advice and assistance to counties. § NR 115.06(1), (2). There
is simply no reason to think the legislature meant to require
county subdivision ordinances to comply with and go no further
than the county shoreland zoning ordinance, only to have them
superseded by a town subdivision ordinance.
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No. 2018AP547.bh
¶76 The statutes and administrative rules point in the
same direction: a county shoreland zoning ordinance controls
where it speaks, and other county or town ordinances may not be
more restrictive——excepting a preexisting town ordinance's more
restrictive provisions.
¶77 Like the court of appeals, the majority relies on the
language in Wis. Stat. § 59.692(1d) that county shoreland zoning
ordinances "may not regulate a matter more restrictively than
the matter is regulated by a shoreland zoning standard."
§ 59.692(1d). Since a town subdivision ordinance is not a
county shoreland zoning ordinance, the majority reasons that
this section does not limit town subdivision authority. I agree
that the Town's ordinance is a subdivision ordinance. But
§ 59.692(2)(b) does not concern itself with this distinction.
That provision limits the authority of a town to override the
provisions in a county shoreland zoning ordinance regardless of
whether the Town utilizes its zoning or subdivision authority.
That is the on-point statute that decides this case.
¶78 The practical effect of the majority's approach is to
read the shoreland zoning restrictions out of the statutes, at
least as applied to towns. If towns can do via subdivision
authority exactly the same things that the state says they
cannot do, the state's legislative policy choice to limit the
power of towns and require some baseline uniformity in county
shoreland zoning ordinances over specific matters becomes a dead
letter. That is an absurd result; this is not the best way to
read the governing law. Section 59.692(2)(b), along with the
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No. 2018AP547.bh
associated provisions in Wis. Stat. §§ 281.31, 60.61 and 60.62,
and in Wis. Admin. Code § NR 115 demonstrate that reading is not
correct.
C. Application
¶79 In this case, the Town of Newbold's subdivision
ordinance adopts a more restrictive riparian frontage width (225
feet) than that adopted in the county shoreland zoning ordinance
(100 feet). Under Wis. Stat. § 59.692(2)(b), this more
restrictive provision cannot have effect unless it was adopted
prior to the county shoreland zoning ordinance. Counsel for the
Town was asked at oral argument whether § 59.692(2)(b) applied,
and counsel said it did not. We have no other evidence in the
record that suggests the Town's more restrictive provision was
adopted prior to the county shoreland zoning ordinance.
Therefore, the Town's more restrictive riparian frontage width
requirement is preempted and without effect; the 100-foot
riparian frontage width in the county shoreland zoning ordinance
controls. 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.
¶80 I would reverse the court of appeals on this basis and
respectfully dissent.
¶81 I am authorized to state that Justice REBECCA GRASSL
BRADLEY joins this dissent.
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