County of Adams v. Romeo, 93-0781
| Decision Date | 16 December 1993 |
| Docket Number | No. 93-0781,93-0781 |
| Citation | 181 Wis.2d 183,510 N.W.2d 693 |
| Parties | COUNTY OF ADAMS, Plaintiff-Respondent, v. Irene ROMEO, and Matthew T. Romeo, Defendants-Appellants. d |
| Court | Wisconsin Court of Appeals |
Before EICH, C.J., GARTZKE, P.J., and SUNDBY, J.
Irene and Matthew Romeo appeal from a judgment imposing a forfeiture on them for violating the Adams County Shoreland Protection Ordinance and enjoining them from operating various commercial activities associated with a trout farm within the shoreland conservancy district.
The issue is whether the trial court erred in ruling that the ordinance prohibits the activities in question: operation of a public fish-for-a-fee business, retail sale of fish and other products, and use of a building to support the operation. We conclude that the court properly applied the ordinance to the Romeos and affirm the judgment.
There is an initial question as to the scope of our review of the trial court's decision. The county suggests in its brief that our review should be deferential. Citing Ballenger v. Door County, 131 Wis.2d 422, 426, 388 N.W.2d 624, 627 (Ct.App.1986), it states that we review such decisions for "abuse of discretion, excess of power, or error of law." While that standard generally applies to the review of zoning decisions, the Romeos argue that the trial court erred in interpreting the ordinance and applying its terms to the undisputed facts. We conclude that the question is thus one of law, which we decide independently. Jackson County Iron Co. v. Musolf, 134 Wis.2d 95, 100, 396 N.W.2d 323, 325 (1986).
Adams County adopted a shoreland protection ordinance in 1990, based on the following "Finding of Fact":
Uncontrolled use of the Shorelands and pollution of the navigable waters of Adams County ... adversely affects the public health, safety, convenience and general welfare, and impairs the tax base. The legislature of Wisconsin has delegated responsibilities to ... counties to further the maintenance of safe and healthful conditions, prevent and control water pollution, protect[ ] ... fish spawning grounds, fish and aquatic life, control building sites, placement of structures and land uses, preserving shore cover and natural beauty.... 1
The Romeos' property is located in an area designated as a shoreland "conservancy district." The ordinance lists several land uses that are permitted in conservancy districts and specifically prohibits any uses not so listed. The question becomes, then, whether the activities determined by the trial court to have violated the ordinance--the Romeos' "operation of [a] retail commercial ... trout farm" and "the sale [of fish] and maintenance of a fee fishing operation"--constitute permitted uses.
The Romeos describe their operation as follows:
Defendants['] ... trout farm includes ... ponds stocked with trout. For a fee, people fish in the ponds, and for the lucky ones who catch trout, defendants ... clean the fish and sell the cleaned fish to the angler. A building [they] call a farm market is used for this purpose. It is 480 square feet. They also sell fish from the ponds from the building, which is used as a market for the fish.
The Romeos argue: (1) that theirs is an "agricultural" use of the property, which is permitted under the ordinance; and (2) that a provision allowing the construction of "nonresidential buildings used solely in conjunction with raising ... minnows or other wetland or aquatic animals" should be interpreted as allowing them to engage in these endeavors.
As to the first assertion, sec. 8.31 of the ordinance states that "[t]he cultivation of agricultural crops" is a permitted use, and the Romeos argue that their activities come within this section because they are agricultural in nature. Adams County, Wis., Adams County Shoreland Protection Ordinance (June 27, 1990). The trial court did not hold, however, that the raising of fish, in and of itself, was not an agricultural pursuit permitted under the ordinance. Indeed, the judgment appealed from does not in any way prohibit the Romeos from engaging in fish farming; it bans only such activities in connection therewith that are best described as "retail" or "commercial" activities: inviting the general public to fish for a fee and selling fish and certain other products to the general public on the property. 2
We agree with the trial court and the county that these retail or commercial activities are not among the permitted uses set forth in the ordinance. And if they are not specifically permitted by the ordinance, they are prohibited in conservancy districts by the plain language of sec. 8.4: "Any use not listed in [the sections stating the permitted uses] is prohibited...." 3
The Romeos argue otherwise: they point to what they consider the "absurdity" of allowing the raising of fish, but prohibiting their retail sale, within the district. They assert, for example, that such a construction would prohibit farmers engaged in a permitted agricultural use of their land from maintaining a roadside stand for the sale of their produce. That precise issue is not before us, but even so, the choice of permitted land uses is for the legislative body--here the county board--and the wisdom of any given provision or restriction is for that body, not the courts, to assess. Howard v. Village of Elm Grove, 80 Wis.2d 33, 42-43, 257 N.W.2d 850, 854-55 (1977).
The Romeos concede that "[a] general retail store, selling fish not raised at the location ..., could be prohibited." But they contend that, "by raising the fish there, a permitted activity, [they should be] permitted to sell them there." Again, we disagree. We believe that the board could reasonably conclude that the cultivation of crops--or the raising of fish--may be one thing, but that their sale at retail in a conservancy district is quite another.
Nor are we persuaded by the Romeos' assertion that the provision allowing the construction and maintenance of nonresidential buildings "used solely in conjunction with raising ... aquatic animals" permits the uses to which they have put their property: the ordinance expressly limits the use of such buildings to the "raising" of the fish; it does not say "raising and selling." We agree with the county that selling fish and other products from the building transforms the building's use from agricultural--or aquacultural--to commercial, and that such a use is not permitted by the plain language of the ordinance.
A municipality may legally restrict businesses or business activities to certain areas. 8 E. MCQUILLIN, THE LAW OF MUNICIPAL CORPORATIONS § 25.110 (3d ed. 1991). We have discussed the general purposes of the ordinance earlier in this opinion, and the Adams County Board has determined that one of the means of achieving those purposes is through "[c]ontrol[ling] building sites, placement of structures and land uses" and prohibiting in their entirety certain uses considered to be "detrimental to the shoreland area." Section 1.32. In the Romeos' case, so long as their building meets other applicable zoning requirements and is used solely in conjunction with the raising of fish, they have committed no violation. However, to the extent the building is used in the retail sale...
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