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Carlin Lake Association, Inc. v. Carlin Club Properties, LLC

Court of Appeals of Wisconsin, District III

April 23, 2019

Carlin Lake Association, Inc., Robert Ruch, Ramona Kubica, Barbara Lapean, Carmen Farwell, Jerry Glashagel, Cecil Davis and Mary Watkins, Plaintiffs-Respondents,
Carlin Club Properties, LLC, Defendant-Appellant.

          APPEAL from a judgment of the circuit court for Vilas County: No. 2016CV146 LEON D. STENZ, Judge.

          Before Stark, P.J. Hruz and Seidl, JJ.

          SEIDL, J.

         ¶1 Carlin Club Properties, LLC ("Carlin Club") appeals a summary judgment granted in favor of Carlin Lake Association, Inc. ("the Association") and seven individual owners of riparian property on Carlin Lake ("the Landowners").[1] The judgment granted the Landowners' request for a judgment declaring that Carlin Club's proposed use of its property-to pump water from a well and then transport that water off-site for bottling and commercial sale-would be in violation of Vilas County's general and shoreland zoning ordinances. Further, the judgment permanently enjoined Carlin Club from conducting any activities related to the pumping and transporting of its well water for off-site commercial sale.

         ¶2 On appeal, Carlin Club argues the circuit court erred in granting the Landowners summary judgment for multiple reasons. Specifically, Carlin Club contends: (1) the Landowners lacked standing under Wis.Stat. § 59.69(11) (2017-18)[2] to enforce the applicable county zoning ordinance because they did not demonstrate they suffered any special damages; (2) the Association also lacked standing under § 59.69(11) because it did not own any real property within the district affected by the ordinance;[3] (3) the Landowners' action was not ripe for adjudication because Carlin Club had not yet violated the ordinance; (4) the court erroneously exercised its discretion by determining that equitable factors did not preclude the issuance of an injunction; and (5) the county zoning ordinance at issue is invalid because it is preempted by the Department of Natural Resources' (DNR) authority to regulate groundwater withdrawal.

         ¶3 We reject Carlin Club's arguments, with one exception-we agree with Carlin Club that the Association did not have authority to maintain an action to enforce the county zoning ordinance at issue. In all, we conclude: (1) the plain language of Wis.Stat. § 59.69(11) grants the individual Landowners authority to maintain this enforcement action, as they own real property in the district affected by the ordinance; (2) conversely, the Association cannot maintain this enforcement action under § 59.69(11) because it does not own any real property in the district affected by the ordinance; (3) the Landowners' claims were ripe for adjudication because Carlin Club's affirmative actions demonstrated a sufficient probability that it was going to violate the ordinance; (4) although the circuit court improperly placed the burden on Carlin Club to show that equitable factors precluded the issuance of a prospective injunction, on this record the only reasonable conclusion is that the court's decision to issue an injunction was equitable; and (5) the ordinance was not preempted because it did not conflict with the DNR's authority to regulate groundwater withdrawal. Accordingly, we affirm in part, reverse in part, and remand with directions to dismiss the Association as a party to this action.


         ¶4 The following facts are undisputed. Carlin Club owns two adjacent parcels of riparian property on Carlin Lake, which is located in Vilas County. Carlin Club operated a lodge, bar and restaurant on one of these properties ("the Lodge property") until early 2015, at which time the bar and restaurant ceased operations. The second property ("the Sorenson property") is a residential property. Both properties have water wells on their premises.

         ¶5 The Lodge and Sorensen properties both fall within Vilas County's single-family residential zoning district ("the R-1 district"). The properties are also within 1000 feet of Carlin Lake, a navigable waterway, making them subject to the Vilas County shoreland zoning ordinance. The Vilas County shoreland zoning ordinance incorporates all provisions of the Vilas County general zoning ordinance.

         ¶6 The R-1 district generally prohibits commercial uses of property, absent an applicable exception. One such exception is a legal, nonconforming use existing at the time the general zoning ordinance was adopted. Although the appellate record does not indicate when Carlin Club began operating the lodge, bar and restaurant on the Lodge property, it is undisputed that those operations "predated the adoption" of the general zoning ordinance and therefore constituted legal, nonconforming commercial uses of property in the R-1 district.

         ¶7 All of the Landowners also own real property within the R-1 district. The Association is an organization comprised exclusively of members who own property in the R-1 district. However, the Association itself does not own any real property in the R-1 district.

         ¶8 In April 2015, licensed well driller Marc Debrock performed a "pump test" on the Lodge property well. He determined that the well was capable of pumping fifty gallons of water per minute. One month later, it was "brought to the attention" of Vilas County zoning administrator Dawn Schmidt that Carlin Club was planning to pump water from the Lodge property well "for the purpose of being transported, bottled and sold as a commercial product at another site." Schmidt notified Carlin Club in a memorandum that this activity was not a permissible use of its property because it was "in violation" of the R-1 district's prohibition against commercial activities. Further, because Carlin Club's planned use was "separate and distinct" from the legal, nonconforming uses of the Lodge property as a resort, bar and restaurant, she informed Carlin Club that its planned activity would be an "illegal change in use."

         ¶9 In July 2016, upon Schmidt's request, Vilas County corporation counsel Martha Milanowski issued her own memorandum addressing whether Carlin Club's intended use of its property would violate the county zoning ordinance. Milanowski concluded it would not, as pumping and transporting water for commercial sale would not be "inconsistent with the property's present grandfathered use." Milanowski based her conclusion on her "understanding [that] the proposed plan does not include any new building construction and the water will be pumped into a truck that will then transport the water off[-]site." She reasoned that because the Carlin Club's legal, nonconforming uses of the Lodge property "undoubtedly [involved] trucks driving to and from the property, bringing in various commodities for the resort and also providing utility services[, ]" "[t]he plan as proposed does not appear to introduce any new non-conforming use on the property."

         ¶10 In November 2016, the Landowners filed their complaint in the present action. The Landowners also filed a motion for a temporary restraining order and temporary injunction ("the TRO motion"), arguing Carlin Club's "proposed use of [the Lodge property] to pump and transport well water to a facility off[-]site for bottling and commercial sale constitutes a new and different use of the [Lodge property], in violation of the Vilas County General Zoning Ordinance." Further, the Landowners stated that Milanowski's "attempt to support the new activity as a variation of delivery trucks and septic pumping equipment traveling to and from the property fails to acknowledge the new and different commercial activity proposed for the property." Accordingly, the Landowners requested "an order enjoining the defendant from pumping and removing well water from [the Lodge property] for transport and bottling at a commercial facility."

         ¶11 While the TRO motion was pending, Carlin Club began constructing a "driveway for the trucks hauling water" as well as a "shed … to house the valve and filling equipment" on the Sorenson property. As part of this project, Debrock disconnected the Carlin Club lodge facility's waterlines from the Lodge property well and connected them to the Sorenson property well. Debrock stated in his deposition that this reconfiguration was necessary because if the Lodge property well were to be used when "filling a tanker, you won't have any water to feed the Carlin Club" lodge.

         ¶12 Vilas County zoning officials ordered Carlin Club to cease its construction activities after it was discovered that Carlin Club had not secured an appropriate shoreland alteration permit. Carlin Club subsequently applied for this permit, but Vilas County deputy zoning administrator James Janet denied this application. Janet based his denial on the fact that the construction was taking place on the Sorenson property, which-in contrast to the Lodge property-did not have authorization for any legal, nonconforming commercial uses.

         ¶13 On March 17, 2017, the circuit court held an evidentiary hearing on the TRO motion and ultimately granted the Landowners' request for a temporary injunction. The court's order provided:

Until further order of this Court, [Carlin Club] is enjoined from using, or allowing the use of its property on Carlin Lake in Vilas County, Wisconsin, for the purpose of pumping well water to be transported off of [Carlin Club's] property for bottling and/or commercial sale. [Carlin Club] is further enjoined from erecting any new structure, driveway or other facility on its Carlin Lake property for use in the aforementioned pumping and transport of well water.

         ¶14 In May 2017, Debrock returned to the Lodge property and installed a new pump on the Lodge property well. Debrock testified this new pump allowed the Lodge property well to pump water at its maximum capacity-i.e., fifty gallons per minute. Debrock also installed a globe valve at the top of the well. Debrock then tested the well by "temporarily" pumping water for approximately one hour and testified that, assuming Carlin Club had "an electrician … hook up a switch[, ]" that at that point the Lodge property well was ready to pump water directly into tanker trucks.

         ¶15 On June 1, 2017, Trygve Solberg, a forty-percent owner of Carlin Club, met with two of the Landowners to discuss Carlin Club's plans for the Lodge property well. Solberg informed the Landowners that Carlin Club intended to create "a turnaround at the [Lodge] property for tanker trucks, and that each truck would hold 6000 gallons of water, which would take two hours to fill." Carlin Club then intended to transport the water to a water bottling facility in Marinesco, Michigan, that was owned by Superior Springs, LLC ("Superior Springs").[4] Solberg stated that the Marinesco facility "would use 20, 000 gallons of water per day, bottling 6000 gallons per shift and allotting for 2000 gallons of spillage."

         ¶16 On July 13, 2017, the Landowners filed a motion for imposition of a remedial sanction against Carlin Club. In support, the Landowners argued the work Debrock performed for Carlin Club in May 2017 violated "both the spirit and letter of the injunction order entered in March 2017." Following an evidentiary hearing, the circuit court determined that Carlin Club had violated its injunction order and awarded the Landowners $4000 in costs.

         ¶17 In August 2017, the parties filed cross-motions for summary judgment. Following a hearing, the circuit court granted summary judgment to the Landowners. The court found there was no genuine issue of material fact and declared that Carlin Club intended to use its property for a commercial activity not authorized within the R-1 district. However, the court granted Carlin Club's request to allow further briefing as to whether it would be equitable for the court to issue a permanent injunction.

         ¶18 At a subsequent hearing, the circuit court determined that, based on its previous finding that Carlin Club's proposed use of its property would violate a zoning ordinance, there was a "rebuttable presumption that the Court must grant the injunction." As such, the court stated it would grant the Landowners a permanent injunction unless Carlin Club could show "compelling equitable reasons not to do so." After taking testimony from both parties, the court ultimately concluded "in all, the [Landowners'] interest outweighs any potential loss to [Carlin Club] and, therefore, equitable relief will not be granted." Accordingly, the court entered a final judgment granting the Landowners a permanent injunction. Carlin Club now appeals.[5] Additional relevant facts are included below.


         ¶19 We review a grant of summary judgment independently, applying the same methodology as the circuit court. Tews v. NHI, LLC, 2010 WI 137, ¶40, 330 Wis.2d 389, 793 N.W.2d 860. Summary judgment is appropriate where there are no material facts in dispute and the moving party is entitled to judgment as a matter of law. See Wis. Stat. § 802.08(2). Generally, when both parties file cross-motions for summary judgment, it is the equivalent of a stipulation of facts permitting the case to be decided solely on the legal issues presented. See BMO Harris Bank, N.A. v. European Motor Works, 2016 WI.App. 91, ¶15, 372 Wis.2d 656, 889 N.W.2d 165. Here, the parties do not argue any exceptions to this general rule, or that there are material facts in dispute, and so we proceed to decide the contested issues as matters of law.

         I. Right to enforce a ...

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