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Lagoon Lane, LLC v. Rice

Court of Appeals of Wisconsin, District II

February 28, 2018

Lagoon Lane, LLC, Plaintiff-Respondent,
Paul Rice a/k/a Town Chairman, Town of West Bend, Rebecca Schuster a/k/a Town Clerk, Town of West Bend and The Town of West Bend, Defendants-Appellants.

         APPEAL from an order of the circuit court for Washington County No. 2016CV93 ANDREW T. GONRING, Judge.

          Before Neubauer, C.J., Gundrum and Hagedorn, JJ.

          HAGEDORN, J.

         ¶1 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, [1] 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.

         ¶2 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 §§ 281.31 and 59.692 (2015-16).[2] We conclude this means that the legislature has withdrawn all exercises of shoreland zoning authority that do not fall within the limited exception in § 59.692(2)(b)- including zoning power that overlaps with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.


         ¶3 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 thoughts.

         ¶4 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.

         ¶5 Lagoon Lane responded to the denial of its CSM with an action for certiorari review in the circuit court.[3] 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.


         ¶6 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.

         A. Legal Background

         ¶7 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).

         ¶8 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.[4] 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 § ...

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