ABKA Limited Partnership v. DNR, 99-2306.
| Decision Date | 22 August 2001 |
| Docket Number | No. 99-2306.,99-2306. |
| Citation | 2001 WI App 223,635 N.W.2d 168,247 Wis.2d 793 |
| Parties | ABKA LIMITED PARTNERSHIP, an Illinois limited partnership, Petitioner-Appellant, THE ABBEY HARBOR CONDOMINIUM ASSOCIATION, LTD., a Wisconsin nonprofit corporation, Petitioner-Co-Appellant, v. WISCONSIN DEPARTMENT OF NATURAL RESOURCES, Geneva Lake Conservancy, Inc., and Oneida County, Respondents-Respondents. WISCONSIN REALTORS ASSOCIATION, INC., Petitioner-Appellant, v. WISCONSIN DEPARTMENT OF NATURAL RESOURCES, Respondent-Respondent. ABKA LIMITED PARTNERSHIP, an Illinois limited partnership, Petitioner-Appellant, THE ABBEY HARBOR CONDOMINIUM ASSOCIATION, LTD., a Wisconsin nonprofit corporation, Petitioner-Co-Appellant, v. WISCONSIN DEPARTMENT OF NATURAL RESOURCES, Respondent-Respondent. WISCONSIN ASSOCIATION OF LAKES, INC., Petitioner-Appellant, v. WISCONSIN DEPARTMENT OF NATURAL RESOURCES, Respondent-Respondent. WISCONSIN REALTORS ASSOCIATION, INC., Petitioner-Appellant, v. WISCONSIN DEPARTMENT OF NATURAL RESOURCES, Respondent-Respondent. |
| Court | Wisconsin Court of Appeals |
On behalf of the petitioner-appellant ABKA Limited Partnership and the petitioner-co-appellant The Abbey Harbor Condominium Association, Ltd., there were joint briefs by Anthony S. Earl, Waltraud A. Arts and Brian W. Blanchard of Quarles & Brady, LLP of Madison; Alan Marcuvitz of Weiss, Berzowski, Brady & Donahue, LLP of Milwaukee; Lisle W. Blackbourn of Godfrey, Neshek, Worth, Leibsle & Conover, S.C. of Elkhorn; and Thomas L. Shriner, Jr. of Foley & Lardner of Milwaukee. There were oral arguments by Thomas L. Shriner, Jr.
On behalf of the petitioner-appellant Wisconsin Realtors Association, Inc., there were briefs by Winston A. Ostrow and Donald L. Romundson of Godfrey & Kahn, S.C. of Green Bay. There were oral arguments by Donald L. Romundson.
On behalf of the petitioner-appellant Wisconsin Association of Lakes, Inc., there were briefs by William P. O'Connor and Mary Beth Peranteau of Wheeler, Van Sickle & Anderson, S.C. of Madison. There were oral arguments by William P. O'Connor.
On behalf of the respondent-respondent Wisconsin Department of Natural Resources, there was a brief by John S. Greene, assistant attorney general, and James E. Doyle, attorney general. There were oral arguments by John S. Greene.
On behalf of the respondent-respondent Geneva Lake Conservancy, Inc., there was a brief and oral arguments by Peter B. King of Peter B. King, Attorney at Law, S.C. of Fontana.
On behalf of the respondent-respondent Oneida County, there were briefs and oral arguments by Lawrence R. Health, corporation counsel.
Before Nettesheim, P.J., Brown and Snyder, JJ.
¶ 1.
This case is the result of five separate cases consolidated before the circuit court. ABKA Limited Partnership (ABKA) and The Abbey Harbor Condominium Association, Ltd. (the Association) appeal from a circuit court order denying their joint petition for review of an administrative law judge's (ALJ) decision regarding their WIS. STAT. ch. 30 (1999-2000)2 permit application to the Wisconsin Department of Natural Resources (DNR). ABKA owned a public marina and sought to convert ownership of all 407 boat slips to a condominium-style ownership called "dockominiums." The ALJ expressly limited the number of boat slips that ABKA can convert to dockominiums. ABKA and the Association challenge the DNR's jurisdiction to require a new permit and to limit the number of dockominiums in the Marina. In addition, ABKA and the Association argue that the ALJ's decision to limit the number of dockominiums is arbitrary and unsupported by record evidence.
¶ 2. The Wisconsin Realtors Association, Inc. (WRA) also appeals the circuit court's order, arguing that the DNR's guidances, used by the DNR to arrive at the appropriate number of dockominiums, are illegal attempts to circumvent the rule-making requirements of WIS. STAT. ch. 227, that WIS. ADMIN. CODE § NR 326.04(8) is invalid, that the change in ownership to condominium-style ownership is allowed, and that the DNR did not have the authority to require a new WIS. STAT. § 30.12 permit.
¶ 3. In addition, the Wisconsin Association of Lakes, Inc. (WAL) appeals the circuit court's order. In contrast to ABKA and WRA, WAL argues that ABKA's dockominium development violates the public trust doctrine by purporting to convey a perpetual exclusive right to a portion of Lake Geneva, exceeds reasonable riparian rights, and violates the provisions of WIS. STAT. § 30.133.
¶ 4. We agree with WAL that the dockominium development proposed by ABKA and the Association violates the public trust doctrine.
¶ 5. In 1994, ABKA was the owner of the Abbey at Fontana at Lake Geneva; the Abbey Harbor (the Harbor) was created by the dredging of Potawatomi Creek pursuant to a permit issued in July 1962 by the Wisconsin Public Service Commission. When issuing this permit, the PSC also authorized the construction of the first 200 boat slips of what would eventually become the 407-slip Marina. Additional permits were later issued, the most recent issued in 1987 for the construction of additional piers and slips in the Harbor.
¶ 6. The Harbor consists of a man-made basin with 407 boat slips, a swimming pool, a parking area, and a Harbor House. The Marina's 407 boat slips were rented to boat owners on an annual basis with the option to renew. In late 1994, ABKA, the private owner of the Marina, decided to convert the Marina to a condominium form of ownership and began preparation of a condominium declaration. ABKA's proposal did not change the number, size or configuration of any structure in the Marina, but simply changed the ownership to condominium style. During these preparations, the DNR contacted ABKA and asked to review the language of the proposed condominium declaration.
¶ 7. After reviewing the language of the proposed condominium declaration, the DNR insisted upon language changes in the declaration. The DNR approved the revised language changes of the Abbey Harbor Condominium Declaration (Declaration), which was filed on February 28, 1995.
¶ 8. Under the revised terms of the Declaration, each unit is separately owned property held in fee simple title by the unit owner. A dockominium unit is defined as a cubicle of space in a lock-box located within a building known as the Harbor House at the Marina. Each unit/lock-box has a number which corresponds to an existing boat slip at the Marina. Each unit owner has the right to use the space beside the pier or piers corresponding to the unit number.
¶ 9. In addition to the independent ownership of each unit, the unit owners own, as tenants in common with each other, all of the common elements of the condominium, including all of the real estate, the Harbor House, the parking lots, all docks and piers, and the swimming pool. A unit owner is entitled to freely sell, lease, sublease, rent or license the unit, and is required to keep the structures adjacent to the unit in good repair.
¶ 10. Under the terms of the Declaration, each unit owner is required to be a member of the Association, which is responsible for the maintenance, repair and replacement of all common elements, dredging the Harbor and landscaping. The Declaration also endows the Association with the authority to enforce compliance with its terms and to assess unit owners for the costs associated with the operation, maintenance and repair of the Marina.
¶ 11. After the language of the Declaration was changed, the DNR maintained that ABKA had to apply for a new WIS. STAT. § 30.12 permit to convert the Marina to condominium ownership. The DNR maintained that under § 30.12, a certain number of boat slips needed to be withheld from sale and set aside for seasonal rental to the public. While ABKA challenged the DNR's authority to require both a new permit and a certain number of set-asides, on March 13, 1995, ABKA filed an application for a new § 30.12 permit, requesting authorization for the conveyance of 407 boat slips to private owners under a condominium form of ownership and reserving the right to challenge the DNR's jurisdiction in this matter. The Association was subsequently made a co-applicant in the proceedings. On April 5, 1995, Geneva Lake Conservancy, Inc. (Geneva Lake) objected to the permit application, which was then referred to the Division of Hearings and Appeals for a contested case hearing. Pending a hearing on the permit application, the DNR and ABKA reached an agreement that ABKA could file the Declaration; that the current structures at the Marina were validly permitted; that a contested case hearing would determine how many boat slips, if any, needed to be set aside; and that ABKA could begin selling up to 282 units, setting aside at least 125 units until a hearing decision was rendered.
¶ 12. On November 13-17 and December 18, 1995, a contested case hearing was held before an ALJ regarding ABKA and the Association's permit application. Geneva Lake, WRA, WAL and Oneida County (Oneida) fully participated in the contested case hearing as intervening parties; WRA was in support of the condominium project, while Geneva Lake, WAL and Oneida were opposed. On July 29, 1996, the ALJ issued his decision, finding that the DNR did have jurisdiction to require a new WIS. STAT. § 30.12 permit, and that 287 of the 407 slips at the Marina must be set aside for seasonal rental. ¶ 13. On August 23, 1996, ABKA filed a petition for judicial review of the ALJ's decision in both Walworth county and Dane county. WRA also filed a petition for judicial review in Walworth and Dane counties. WAL then filed a petition for review of the ALJ's decision in Dane county. By stipulation, on October 14, 1996, the Walworth County Circuit Court entered an order transferring the Dane county cases to Walworth county and consolidating all of the above actions.3
¶ 14. After briefing and oral argument, on June 4, 1999, the circuit...
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