Borsellino v. DNR

• Decision Date: 23 December 1999
• Docket Number: No. 99-1220.,99-1220.
• Citation: 2000 WI App 27,232 Wis.2d 430,606 N.W.2d 255
• Parties: Lewis J. BORSELLINO, Petitioner-Appellant, v. WISCONSIN DEPARTMENT OF NATURAL RESOURCES, Respondent-Respondent, Eileen M. ROTHSTEIN, Samuel Bonanno, and Marilyn Bonanno, Interested Parties-Respondents.
• Court: Wisconsin Court of Appeals

232 Wis.2d 430

2000 WI App 27

606 N.W.2d 255

Lewis J. BORSELLINO, Petitioner-Appellant, v. WISCONSIN DEPARTMENT OF NATURAL RESOURCES, Respondent-Respondent, Eileen M. ROTHSTEIN, Samuel Bonanno, and Marilyn Bonanno, Interested Parties-Respondents.

No. 99-1220.

Court of Appeals of Wisconsin.

Submitted on briefs October 8, 1999.

Decided December 23, 1999.

On behalf of the petitioner-appellant, the cause was submitted on the briefs of Peter B. King of Peter B. King, Attorney at Law, S.C. of Fontana.

On behalf of the respondent-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Joanne F. Kloppenburg, assistant attorney general.

On behalf of the interested parties-respondents, the cause was submitted on the brief of Patrick J. Hudec and Gabrielle Boehm of Hudec Law Offices, S.C.

Before Dykman, P.J., Roggensack and Deininger, JJ.

¶ 1. DYKMAN, P.J.

Lewis J. Borsellino appeals from a circuit court order affirming the Wisconsin Department of Natural Resources' (DNR) decision to grant a pier permit to his neighbors, Samuel and Marilyn Bonanno. Borsellino argues that the DNR erred by granting the permit on the condition that the Bonannos comply with a town pier placement ordinance and with WIS. ADM. CODE § NR 326.07(3). Borsellino also argues that the DNR's decision to grant the permit violated the public trust and reasonable use doctrines. We disagree with each of his arguments. Because we conclude that the DNR's decision to issue the permit was reasonable and supported by substantial evidence, we defer to the DNR's decision and affirm the order of the circuit court.

I. Background

¶ 2. Paul and Catherine Wurtz owned property on the northwest shore of Lake Geneva in the Town of Linn. In 1966, the Wurtz's divided the property into three lots, now owned by Borsellino, the Bonannos, and Ralph and Eileen Rothstein. Borsellino's lot is on the lakeshore, while the Bonannos' and the Rothsteins' lots are upland. The Bonannos also own a twelve-foot-wide strip of land on the shore of the lake between Borsellino's lot and a lot owned by John and Susan Ciciora. When the Wurtzes divided their property, this twelve-foot-wide lot provided access to the lake for the owners of what is currently the Bonannos' and the Rothsteins' lots. Every year since 1968, the owners of the Bonannos' and the Rothsteins' lots placed a 78.7 foot long pier in the lake adjacent to the access lot.

¶ 3. In 1996, Borsellino filed a complaint with the DNR regarding the seventy-eight-foot pier. In 1997, an administrative law judge ordered the Bonannos to remove the pier because it exceeded the reasonable use of public waters and extended into Borsellino's riparian zone. In January 1998, the Bonannos applied to the DNR for a permit to construct a new pier in the water adjacent to the access lot. The proposed pier is ninety-six feet long and six feet wide for most of its length. In its section from forty-eight to seventy-two feet away from shore, the proposed pier is only three feet wide, but has an eight-and-one-half-foot wide boat lift attached.

¶ 4. After the DNR issued a notice of proposed pier, Borsellino and the Cicioras objected, arguing that the Bonannos' pier would interfere with their riparian rights and create too much congestion. The DNR filed a request for a hearing with the Division of Hearings and Appeals (DHA). After the hearing, the DHA administrative law judge (ALJ) granted the Bonannos a permit to build the proposed pier under § 30.12(2), STATS.¹ The ALJ concluded that the pier was permissible under § 30.12(2) because it would not impair navigation and would not be detrimental to the public interest. The ALJ acknowledged that the proximity of the pier to the Borsellino and Ciciora piers presented the potential for conflicts. As a result, the ALJ concluded that the pier should have only one boat slip and only one boat moored next to it at any time. The ALJ granted the permit subject to several conditions. One of the conditions was that the Bonannos "shall obtain any necessary authority needed under local zoning ordinances." The ALJ also stipulated that the Bonannos locate the pier in compliance with WIS. ADM. CODE § NR 326.07(3).² Borsellino petitioned the Dane County Circuit Court to review the decision to grant the permit and the circuit court affirmed. Borsellino appeals.

II. Standard of Review

[1, 2]

¶ 5. In an appeal from a circuit court order affirming an agency determination, we review the decision of the agency, not that of the circuit court. See Sea View Estates Beach Club, Inc. v. DNR, 223 Wis. 2d 138, 145, 588 N.W.2d 667, 670 (Ct. App. 1998),review denied, 225 Wis. 2d 489, 594 N.W.2d 383 (1999). In this case, the DNR did not petition for judicial review of the ALJ's decision, and adopted the decision as its own pursuant to § 227.46(3)(a), STATS.,³ and WIS. ADM. CODE § NR 2.155(1).⁴ We thus review the ALJ's determination as a DNR decision. See Sea View, 223 Wis. 2d at 146-47,588 N.W.2d at 671.

[3, 4]

¶ 6. We apply different standards of review to agency conclusions of law and agency findings of fact. See id. at 148, 588 N.W.2d at 671. For questions of law, we generally apply one of three levels of deference to the agency's conclusion: "great weight," "due weight," or no deference. See id. at 148, 588 N.W.2d at 672. In this case, we will apply great weight deference to the DNR's legal conclusions because the legislature has charged the DNR with regulating piers under §§ 30.12 and 30.13, STATS., and the DNR has technical expertise in regulating piers and waterways. See id. at 149, 588 N.W.2d at 672. Under great weight deference, we will uphold an agency's conclusion if it is reasonable, even if there is a more reasonable conclusion available. See Zignego Co. v. DOR, 211 Wis. 2d 819, 823, 565 N.W.2d 590, 592 (Ct. App. 1997).

¶ 7. For agency findings of fact, we apply the "substantial evidence" standard. See Sea View, 223 Wis. 2d at 148, 588 N.W.2d at 671. Under § 227.57(6), STATS., we must set aside an agency action or remand a case to the agency if the agency's decision depends on any findings of fact not supported by substantial evidence in the record. Substantial evidence is such relevant evidence that a reasonable person might find sufficient to support a conclusion. See Sea View, 223 Wis. 2d at 148, 588 N.W.2d at 671.

III. Analysis

A. The Town of Linn's Pier Placement Ordinance

¶ 8. The Town of Linn has enacted a pier placement ordinance that provides, in part:

(c) Location of Wharves, Piers and Slips Regulated. No person shall erect, construct, place, extend or maintain any wharf, pier, boat slip, swimming raft or any structure attached thereto so that it is less than 12-1/2 feet from a riparian proprietor's property line where such property line intersects the shoreline, nor shall the above be erected, constructed, placed, extended or maintained within a distance of 12-1/2 feet from a riparian proprietor's property line, as extended waterward from the shoreline.

Town of Linn Ordinance No. 13.14. In conditioning the Bonannos' permit on obtaining the necessary authority under local zoning ordinances, the ALJ explained:

It is the responsibility of the applicants to persuade the town authorities that the proposed pier complies with the local zoning ordinances or obtain a variance from the setback requirement. It is beyond the scope of this hearing to interpret the application of the Town of Linn's zoning ordinance to the proposed pier.

¶ 9. Borsellino argues that the DNR exceeded its authority under § 30.12, STATS., by issuing a permit conditioned on the Bonannos obtaining the necessary authority under local zoning ordinances. He explains that, under § 30.12(2), the DNR may not grant a permit for a pier that "materially obstruct[s] navigation." He points out that, under § 30.13, STATS., "[a] wharf or pier which violates the regulations contained in sub. (2) or in any ordinance enacted under sub. (2) constitutes an unlawful obstruction of navigable waters." Section 30.13(4)(d) (emphasis added). Borsellino asserts that an "unlawful obstruction" under § 30.13 necessarily "materially obstruct[s] navigation." Borsellino contends that the proposed pier cannot comply with the Town's pier placement ordinance because it is impossible for the Bonannos to set it back twelve-and-one-half feet from their riparian lines. Thus, he argues that the DNR erred by issuing the permit without first interpreting the Town's ordinance to determine whether the pier is an "unlawful obstruction."

¶ 10. We conclude that the DNR's decision to issue the permit conditioned on compliance with the town's pier placement ordinance was reasonable. Under Sea View, an ALJ may review local ordinances in making a permit determination under § 30.12(2), STATS., but an ALJ is not required to do so. Sea View, 223 Wis. 2d at 159-60, 588 N.W.2d at 676. We do not agree with Borsellino that the proposed pier is barred as a matter of law by the pier placement ordinance. Although the width of their riparian space precludes the Bonannos from meeting the twelve-and-one-half foot setback requirement, the Town of Linn's attorney testified at the hearing before the ALJ that the Bonannos' could request a variance hearing before the town board.

[5]

¶ 11. Borsellino asserts that Ordinance No. 13.14 is not a zoning ordinance, but a pier placement ordinance enacted under § 30.13(2), STATS. Thus, he argues the ordinance is not subject to variance procedures or to appeal before the town board as might be a zoning ordinance. He also argues that our conclusion in Sea View was based on a zoning ordinance and is not applicable here. Whether or not our holding in Sea View is applicable, Borsellino has provided no authority for his assertion that the pier placement ordinance is not subject to appeal or variance procedures as would be zoning ordinances. He has also provided no authority for the argument that the DNR should have...