County of Adams v. Romeo, 93-0781

• Court: United States State Supreme Court of Wisconsin
• Citation: 528 N.W.2d 418,191 Wis.2d 379
• Docket Number: No. 93-0781,93-0781
• Parties: COUNTY OF ADAMS, Plaintiff-Respondent, v. Irene ROMEO and Matthew T. Romeo, Defendants-Appellants-Petitioners.
• Decision Date: 14 March 1995

Page 418

528 N.W.2d 418 191 Wis.2d 379 COUNTY OF ADAMS, Plaintiff-Respondent,
v.
Irene ROMEO and Matthew T. Romeo, Defendants-Appellants-Petitioners. No. 93-0781. Supreme Court of Wisconsin. Argued Oct. 11, 1994.
Decided March 14, 1995.

Page 419

[191 Wis.2d 381] For the defendants-appellants-petitioners there were briefs by Richard O. Wright and Richard O. Wright Law Offices, S.C., Montello and oral argument by Richard O. Wright.

For the plaintiff-respondent there was a brief by Michael J. McKenna, Adams County Corp. Counsel, Friendship and oral argument by Michael J. McKenna.

Amicus curiae was filed by Robert W. Mulcahy, William F. White and Michael, Best & Friedrich, Madison, for the Wisconsin Counties Ass'n and Wisconsin Towns Ass'n.

Amicus curiae was filed by Lorraine C. Stoltzfus, Asst. Atty. Gen., with whom on the brief was James E. Doyle, Atty. Gen., for the Wisconsin Dept. of Natural Resources, Wisconsin Public Intervenor and Wisconsin's Environmental Decade, Inc.

STEINMETZ, Justice.

Irene and Matthew Romeo seek review of a decision of the court of appeals, which affirmed a decision of the circuit court for Adams county, the Honorable Duane H. Polivka, imposing a forfeiture on the Romeos for violating the Adams County Shoreland Protection Ordinance (ordinance) [191 Wis.2d 382] and enjoining them from engaging in certain activities within an Adams county conservancy district.

There are two issues in this case. The first issue is whether the ordinance prohibits the Romeos from charging the public a fee to fish from ponds that are located on property within a conservancy district. Because the ordinance expressly permits fishing in a conservancy district, we hold that the Romeos may charge the public to fish from their ponds. The second issue is whether the ordinance prohibits the Romeos from using a non-residential building that is located on property within a conservancy district to sell fresh fish, smoked fish, and jams. Because the ordinance does not expressly permit the use of a building to sell these items, we hold that they may not be sold within a conservancy district. Accordingly, we reverse in part and affirm in part the decision of the court of appeals.

The Adams County Shoreland Protection Ordinance lists several land uses that are permitted in any area designated as a conservancy district. The Romeos own land that is located in a conservancy district. On this land, the Romeos raise fish and stock them in various ponds. For a fee, the public is permitted to fish from these ponds. Persons who catch fish can purchase them and have them cleaned. The cleaning takes place in a 480 square foot, nonresidential building that is located on the premises. This building is also used as a general fish market where the Romeos sell fresh fish, smoked fish, and jams. The Romeos have signs posted to advertise their business to the public.

Adams county issued citations to the Romeos for allegedly engaging in prohibited activities under the ordinance. Based on these citations, the county subsequently filed a complaint in circuit court seeking a judgment against the Romeos and seeking to enjoin [191 Wis.2d 383] them from engaging in commercial activities associated with raising fish in a conservancy district. The circuit court ruled that the Romeos violated the statute by engaging in the following activities within a conservancy

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district: (1) running a fee-fishing business, (2) selling fresh fish, smoked fish, and jams from a building located on the premises, and (3) using signs to advertise such business operations. The court then ordered the Romeos to forfeit $393 and enjoined them from further engaging in any of the prohibited activities. The Romeos filed an appeal.

In a published opinion, the court of appeals affirmed the circuit court's decision. County of Adams v. Romeo, 181 Wis.2d 183, 510 N.W.2d 693 (Ct.App.1993). Distinguishing between commercial and non-commercial activities, the court of appeals held that the ordinance prohibits the operation of a commercial fee-fishing business and the retail sale of fish and other products from a building located on property within a conservancy district. Id. at 191, 510 N.W.2d 693. The court noted that under the ordinance, the Romeos may use their building solely in conjunction with the raising of fish. Id. at 189-90, 510 N.W.2d 693. However, according to the appellate court, selling fish and other products from the building transforms the building's use from agricultural to commercial, and to the extent that the building's use is commercial, its use is prohibited under the ordinance. Id. The Romeos petitioned this court for review, which was granted.

To resolve the two issues at bar, this court must interpret an ordinance and apply it to undisputed facts. The interpretation of an ordinance and its application to undisputed facts is a question of law, which this court decides without deference to the lower courts. [191 Wis.2d 384] Browndale International v. Board of Adjustment, 60 Wis.2d 182, 199, 208 N.W.2d 121, 130 (1973).

Adams county promulgated the Adams County Shoreland Protection Ordinance in 1990. The ordinance mirrors the language of Wis.Adm.Code ch. NR 115. ¹ The general purpose of the ordinance is to "protect navigable waters and the public rights therein from the degradation and deterioration which results from uncontrolled use and development of shorelands." See Just v. Marinette County, 56 Wis.2d 7, 10, 201 N.W.2d 761 (1972). The ordinance also states more specific purposes that apply to specific types of shoreland. See, e.g., Adams County, WI, Ordinance secs. 1.3, 8.2, 9.2.

Section 9 of the ordinance regulates the use of land that is located within a conservancy district. Section 9.41 provides that property located within a conservancy district may not be put to any use that is prohibited under sec. 8.4 of the ordinance. Section 8.4 provides that "any use not listed in Sections 8.31, 8.32, or 8.33 is prohibited."

[191 Wis.2d 385] With respect to the first issue, the Romeos argue that sec. 8.31 of the ordinance ² expressly permits them to charge the public a fee to fish on their property. We agree. Section 8.31(1) provides that "fishing" is a permitted use of property within a conservancy district. Charging a fee does not alter the meaning of the word "fishing." Fishing is the capturing of fish, regardless of whether the angler pays a fee or fishes for free. ³

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The county urges this court to draw a distinction between commercial and noncommercial uses and then hold that the ordinance prohibits commercial uses. However, the ordinance does not make such a distinction. Nor has the county demonstrated that the commercial aspect of charging a fee creates a greater [191 Wis.2d 386] risk of harm to land or water within a conservancy district. We therefore decline to engraft such a distinction on the ordinance. The relevant consideration is not whether the activity is commercial, but whether it is expressly permitted. Because the ordinance expressly permits fishing, the Romeos may charge the public a fee to fish on their property. Accordingly, we reverse the decision of the court of appeals insofar as it held that fishing for a fee is not a permitted use under the ordinance.

With respect to the second issue, the Romeos argue that secs. 8.31(5) and 8.33(2) of the ordinance expressly permit the use of a nonresidential building to sell fish and other related products. We disagree. Section 8.31(5) of the ordinance ⁴ provides that the "cultivation of agricultural crops" is a permitted use of property within a...