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Published: June 23, 2010
Authors:
Peter Conrad,
Carl Sinderbrand and
Charles (Buck) Sweeney
In Lake Geneva Club v. Town of Linn, [1] the Wisconsin Court of Appeals considered whether a local ordinance can prohibit a pier once the Department of Natural Resources (DNR) issues a permit for that pier. The court held that, once the DNR issues a permit, a municipal ordinance cannot prohibit that pier.
In this case, the Lake Geneva Club applied to the DNR to modify an existing 200 foot pier, as well as construct a new 136 foot pier in Geneva Lake. Despite local opposition to the piers, the DNR determined that the proposed project complied with the applicable law and granted Lake Geneva Club a permit subject to 23 conditions, including reducing the size of the new pier to 100 feet. After that approval, for a variety of reasons, the Lake Geneva Club, with the DNR's approval, made several modifications to the original permit. However, none of the modifications substantively changed the location or size of the permitted piers.
In addition to obtaining a DNR permit, the Lake Geneva Club also sought approval from the town of Linn pursuant to the town's pier ordinance. Upon receipt of the permit application, the town building inspector recommended to the town board that the permit should be issued. Despite the building inspector's recommended approval, the town board denied the permit.
The Lake Geneva Club appealed the town board's decision by filing a petition for certiorari review with the circuit court. The circuit court found that the proposed pier satisfied the town's setback and size requirements and consequently held that the town could not refuse the permit because "under Wis. Stat. §30.12, the DNR has preeminent regulatory control over LGC’s pier.” The circuit court remanded the matter to the town with instructions to issue the permit.
The town appealed the circuit court’s decision. The court of appeals affirmed the circuit court’s holding that a municipal ordinance relating to pier construction and placement only applies when a DNR permit is not required. The court reasoned that “the legislature has the primary authority to administer the public trust,” and that the legislature delegated that duty as related to piers to the DNR under Wis. Stat. §30.12 and §30.13. Furthermore, the court concluded that the DNR may, but does not have to, consider a local ordinance when it renders its decision on whether to issue a pier permit. As the court of appeals explains, “Any local control under ch. 30 clearly is subordinate to DNR authority.”
A minor, but potentially important, point raised by the court of appeals has to do with one of the conditions of approval by the DNR. That condition provided that “any permit or approval that may be required to [LGC’s] project by local zoning ordinance and by the U.S. Corps of Engineers.” In this case, the town’s ordinance was not a “zoning ordinance,” as the town was subject to county zoning. Therefore, an open question remains as to whether Lake Geneva Club’s piers would have been prohibited had the pier regulation been included in a zoning ordinance.
The Lake Geneva Club decision is not published and has limited precedential value in Wisconsin. Nevertheless, the court’s analysis is instructive for future pier permit applicants located in municipalities with pier ordnances.
Mr. Sweeney is a partner in the firm, practicing in the areas of environmental and construction law. Mr. Sinderbrand is also a partner in the firm, practicing in the areas of environmental and construction law. Peter Conrad is an attorney at Axley Brynelson, practicing primarily in zoning and land use, real estate, water and municipal law. Special thanks to Hannah Lindholm, a summer intern with Axley Brynelson, for her assistance with this article.
For more information, contact Peter Conrad at 608.260.2483, pconrad@axley.com; Buck Sweeney at 608.260.2743, csweeney@axley.com; or Carl Sinderbrand at 608.260.2472, csinderbrand@axley.com.
[1] 2009AP2001 (June 9, 2010).
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