WI Appeals Court Upholds Denial of Proposed Shoreland Lot Division

This post was authored by Matthew Loeser, Esq.

Michael Anderson owned a lot, which he sought to divide, which included shoreland frontage on Lake Mildred. The Town denied Anderson’s proposed division on the basis that the two lots would fail to comply with the Town’s applicable minimum shoreland frontage requirement. Anderson sought certiorari review of the Town’s decision in the circuit court, but the court ultimately affirmed the Town’s authority to enforce the Subdivision Ordinance and therefore upheld the Town’s denial of Anderson’s proposed subdivision.

On appeal, Anderson first argued that although the Town undisputedly enacted the Shoreland Ordinance pursuant to the conditions and procedures of WIS. STAT. ch. 236, it was actually a disguised zoning ordinance. As such, Anderson posited, the Town had no authority to enact a shoreland zoning ordinance, and therefore could not enforce the Shoreland Ordinance. The court rejected this contention, finding that as long as the regulation was authorized by WIS. STAT. ch. 236, the fact that it could also fall under the zoning power did not preclude a local government from enacting the regulation pursuant to the conditions and procedures of ch. 236. Since Anderson failed to develop any argument that the Shoreland Ordinance was not enacted “pursuant to the conditions and procedures of ch. 236,” and only articulated how it shares characteristics of a zoning ordinance, the court rejected this argument.

Next, Anderson contended that even had the Town lawfully enacted the Shoreland Ordinance under the authority granted by WIS. STAT. ch. 236, the fact that an identical frontage restriction would be unlawful if the Town attempted to enact it as a zoning ordinance created a statutory conflict. Additionally, to resolve this conflict, Anderson argued the court must reconcile the statutes by concluding that the power granted to towns under WIS. STAT. §236.45 was impliedly revoked by the enactment of WIS. STAT. §59.692. However, the subdivision ordinance enacted under WIS. STAT. ch. 236 was not enacted under § 59.692, the court determined that a plain reading of §59.692 did not support the conclusion that the legislature intended to revoke a town’s ability to exercise its valid subdivision authority under ch. 236 through its adoption of § 59.692.

As a final matter, the court noted that while it may be 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, that issue was beyond the scope of this case. Accordingly, the court affirmed the circuit court’s order upholding the Town’s denial of Anderson’s proposed division.

State of Wisconsin ex rel Michael Anderson v Town of Newbold, 2019 WL 5556275 (WI App. 10/29/2019)