Limit on Local Regulation of Piers

April 23, 2020

In Oneida County v. Sunflower Prop II, LLC, the Wisconsin Court of Appeals (Court) addressed whether a county could regulate a pier by local ordinance, when the pier is exempt from state permitting requirements under one of the specific statutory exemptions. The Court concluded that a pier that meets the state criteria for an exemption is not subject to local regulation.

Sunflower owned adjacent properties with 370 feet of lakeshore on Lake Tomahawk in Oneida County (County). Sunflower constructed a pier that extended six to eight feet from the shoreline. The end of the pier connected with a ninety-foot-long extension that ran parallel to the shoreline. Five branches protruded from the extension into the lake, perpendicular to the shoreline, resulting in a “pitch fork” configuration.

The County cited Sunflower, contending that the pier violated its local ordinance, which required lateral extensions on piers to be “T” or “L” shaped, and limited total width to 20 feet. The circuit court determined that the pier violated the 20-foot limitation, and that the County had the authority to regulate the pier. Sunflower appealed the circuit court’s ruling, arguing that state statutes relating to piers preempted the County’s ordinance and, therefore, the County did not have authority to regulate its pier.

The Court began its analysis by reviewing the relevant statutory provisions. The Court noted that a permit from the Wisconsin Department of Natural Resources (WDNR) is generally required in order to place material or structures on the beds of navigable waters. There are, however, a number of statutory exemptions from this permitting requirement. The Court focused on two exemptions for piers and wharves.

Under Wis. Stat. § 30.12(1g)(f)(1) (30.12 Exemption), a pier is exempt from permitting if it is not located in an area of special natural resource interest, does not interfere with riparian rights, and also meets all of the following:

  1. is not more than six feet wide;
  2. does not extend further than a point at which the depth of the water is three feet as measured at summer low levels, or to a point deep enough for mooring a boat, or using a boat hoist or lift, whichever is farther from the shoreline; and
  3. has no more than two boat slips for the first 50 feet of shoreline, and no more than one additional slip for each additional 50 feet of shoreline.

Another permitting exemption for piers is contained in Wis. Stat. § 30.13(1) (30.13 Exemption). This provision specifies that a pier may be built without a permit if the pier meets the 30.12 Exemption requirements or the pier meets all of the following 30.13 Exemption requirements:

  1. does not interfere with public rights in navigable waters;
  2. does not interfere with riparian rights;
  3. does not go beyond any pierhead line that was established under the statute;
  4. does not violate any municipal ordinances enacted under Wis. Stat. § 30.13(2); and
  5. is constructed to allow movement of water underneath so that land will not be formed on the bed of the waterway.

The Court highlighted that Wis. Stat. § 30.13(2), referenced above, authorized municipalities, including counties, to enact ordinances “not inconsistent with this section” regulating the construction and location piers.

The Court then turned to Sunflower’s argument that the County’s authority over piers did not extend to piers exempt under the 30.12 Exemption as contrasted to piers exempt under 30.13 Exemption. The Court noted that the 30.13 Exemption specified that a pier was exempt from permitting if it met the requirements of the 30.12 Exemption, or the 30.13 Exemption. Moreover, the Court indicated that only the requirements of the 30.13 Exemption required compliance with municipal ordinances. Consequently, the Court concluded only piers falling under the 30.13 Exemption were subject to municipal ordinance requirements. In contrast, municipal ordinance provisions were not applicable to piers exempted under Wis. Stat. § 30.12.

The County also contended that it had authority to regulate piers under its shoreland zoning authority. The Court, however, noted that “shoreland” consisted of lands within 1000 feet of a navigable lake, and that did not include a grant of authority to regulate piers. Therefore, the Court rejected the County’s contention that it could regulate piers that fell within the 30.12 Exemption under its shoreland zoning authority.

The Court indicated, however, the record in this case was unclear regarding whether Sunflower actually qualified for the 30.12 Exemption. More specifically, the record was not clear that Sunflower met the requirement for the pier to be no more than six feet wide. Consequently, the Court reversed and remanded the case. The Court directed the circuit court to dismiss the citations against Sunflower if the circuit court determined that Sunflower’s pier met the 30.12 Exemption criteria.

This decision is important for riparian owners whose property is located in areas in which local governments have ordinances promulgated under Wis. Stat. § 30.13(2) that attempt to regulate piers. For those riparian owners that qualify for an exemption under the 30.12 Exemption, their piers may not be subject to such local pier ordinances.

There is another statutory pier exemption that was not discussed in the Sunflower case. Wis. Stat. § 30.12(1k) provides that “a riparian owner of a pier or wharf that was placed on the bed of a navigable water before April 17, 2012, is exempt from the permit requirements” unless WDNR notified the owner that the pier was detrimental to the public interest prior to August 1, 2012, or the pier interferes with the riparian rights of others. Moreover, such piers can be maintained and repaired without obtaining a permit from WDNR, unless the pier is enlarged. While written somewhat differently, it could be argued, based on the rationale in Sunflower, that piers exempt under this provision are also exempt from local pier ordinances developed pursuant to Wis. Stat. §30.13(2).

If you have questions or issues regarding piers, or other matters pertaining to waterfront or riparian rights, please contact us.