from an order of the circuit court for Washington County No.
2016CV93 ANDREW T. GONRING, Judge.
Neubauer, C.J., Gundrum and Hagedorn, JJ.
Lagoon Lane, LLC owns shoreland property in the Town of West
Bend in Washington County that it sought to divide into
several lots. The Town,  however, denied Lagoon Lane's
certified survey map (CSM) seeking subdivision on the grounds
that it failed to comply with the Town's setback, minimum
lot size, and frontage requirements. This case comes to us
following certiorari review in the circuit court. The
question presented is whether the Town may enforce these
ordinances and deny the CSM on these grounds. We conclude
that the Town was without this authority.
While towns generally possess the authority to enact zoning
regulations, the legislature has removed shoreland zoning
authority for towns through the enactment of WIS . STAT .
§§ 281.31 and 59.692 (2015-16). We conclude this
means that the legislature has withdrawn all exercises of
shoreland zoning authority that do not fall within the
limited exception in § 59.692(2)(b)- including zoning
power that overlaps with subdivision authority. The
Town's setback and minimum lot size requirements are
admittedly zoning enactments, and thus have plainly been
removed of their efficacy in shoreland areas. The Town's
frontage requirement was enacted under both its zoning and
subdivision ordinances. Because the frontage requirement
falls within the zoning power, we hold that it is without
effect. Therefore, the Town erred by denying the CSM, and we
affirm the circuit court's order so holding.
Lagoon Lane owns property located in the Town of West Bend in
Washington County. The property is within 1000 feet of Big
Cedar Lake and thus, is classified as shorelands.
See Wis. Stat. §§ 59.692(1)(b),
281.31(2)(d). Lagoon Lane prepared a CSM proposing to divide
the property into three lots corresponding to three
residential structures already in place. The CSM was
submitted to both Washington County and the Town for
approval. The Washington County Planning, Conservation and
Parks Committee approved the CSM; the Town had other
The Town's Plan Commission recommended that the West Bend
Town Board deny approval of the CSM for three reasons: (1)
the proposed CSM did not meet the Town's sixty-six foot
frontage requirement per lot, (2) the lots were below the
Town's minimum size requirements, and (3) "several
encroachments" violated the Town's setback
requirements. Based on these recommendations, the town board
denied Lagoon Lane's proposed CSM. Though the plan
commission did not specify the specific ordinances the CSM
violated, the parties agree that the minimum lot size and
setback requirements are found in the Town's zoning
ordinance. The parties also agree that identical sixty-six
foot frontage requirements appear in both the Town's
zoning and subdivision ordinances.
Lagoon Lane responded to the denial of its CSM with an action
for certiorari review in the circuit court. The circuit court
concluded that the Town lacked jurisdiction to zone shoreland
areas within the Town's limits-like Lagoon Lane's
property-pursuant to Wis.Stat. § 59.692 and our decision
in Hegwood v. Town of Eagle Zoning Bd. of
Appeals, 2013 WI.App. 118, 351 Wis.2d 196, 839 N.W.2d
111. Because the town board denied the CSM "for zoning
reasons, " the court concluded that the CSM was
improperly denied. The Town appeals.
On an appeal from a judgment on certiorari, we review the
actions of the town board, not the circuit court. Herman
v. County of Walworth, 2005 WI.App. 185, ¶9, 286
Wis.2d 449, 703 N.W.2d 720');">703 N.W.2d 720. We review whether the board (1)
kept within its jurisdiction; (2) acted according to law; (3)
acted in an arbitrary, oppressive, or unreasonable manner;
and (4) whether the evidence was such that the town board
"might reasonably have made the order or determination
in question." Id.
The issue before us involves the authority of counties and
towns to zone. As a general matter, both towns and counties
possess the authority to zone. See Wis. Stat.
§§ 59.69, 60.22(3) (towns exercising village
powers), and 60.62 (town board exercising village powers may
adopt zoning ordinances). Though counties possess the power
to zone, a county zoning ordinance "shall not be
effective in any town until it has been approved by the town
board." Section 59.69(5)(c).
However, in 1965, the legislature enacted what are now
denominated Wis.Stat. §§ 281.31 and 59.692, thereby
crafting an alternative statutory zoning scheme specifically
applicable to shorelands. 1965 Wis. Laws, ch. 614,
§§ 22, 42. In order to "promote public health,
safety, convenience and general welfare, " § 281.31
generally authorizes "municipal shoreland zoning
regulations." Sec. 281.31(1). The statute defines
"municipality" as "a county, village or city,
" and in so doing conspicuously excludes towns from this
enumerated grant of authority. See §
281.31(2)(c). The statute similarly defines
"regulation" as only including ordinances enacted
by counties, villages, and cities. See §
281.31(2)(e). Based on the deliberate exclusion of town
regulation in § ...