Published: October 31, 2011
Author: Peter Conrad

Oneida County v. Collins Outdoor Advertising, Inc., 2011 WI App 60, 333 Wis. 2d 216, 798 N.W.2d 724.

Issue: Does the adopted official zoning map establish the ordinary high water mark (OHWM)

Collins wanted to erect a sign along a state highway in Oneida County. As part of the permitting process, Collins was advised to contact the county to determine whether the sign would be located in the shoreland zone, and thus falling under the county’s regulation. Collins went to the county and reviewed the zoning maps with staff. As a result of that meeting, the county instructed Collins to determine if the proposed location was at least 1000 feet from an unnamed lake identified during the office visit.

Collins measured the distance between the proposed sign location and the unnamed lake, and determined that the sign would be more than 1000 feet from the lake. Understanding that it had all the approvals necessary, Collins built the sign.

However, later that year, the county notified Collins that it had received complaints about the sign location. Subsequently, the county and the Department of Natural Resources (DNR) then determined that the sign was only about 10 feet from the OHWM from a different lake, which had a large adjacent wetland (the county and DNR determined that the wetland was lakebed). The county had previously said the sign was at least 1,200 feet away based on the official zoning map.

About two years later the county made another OHWM determination – this time that the sign was 660 feet from the lake in question. As a result of its determination the county filed a complaint seeking injunctive relief and damages.

The trial court ruled in favor of the county, essentially holding that Collins had the burden of building in the correct location. The Court of Appeals reversed holding that the official zoning map identified the shoreline of the lake in question as the ordinary high water mark. Any subsequent redetermination of the ordinary high water mark did not render the sign illegal, because according to the official map, the county had no shoreland zoning authority over the area.

For more information on cases involving the Wisconsin Department of Natural Resources, contact Peter Conrad at 608.260.2483 or pconrad@axley.com

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