Fas, LLC v. Town of Bass Lake

• Decision Date: 19 June 2007
• Docket Number: No. 2005AP1689.,2005AP1689.
• Citation: 2007 WI 73,733 N.W.2d 287
• Parties: FAS, LLC, Petitioner-Respondent, v. TOWN OF BASS LAKE, Respondent-Appellant-Petitioner, Sawyer County Zoning Committee, Sawyer County Board of Appeals and Sawyer County Zoning Administrator, Respondents-Respondents, State of Wisconsin, Intervening-Respondent-Respondent.
• Court: Wisconsin Supreme Court

733 N.W.2d 287

2007 WI 73

FAS, LLC, Petitioner-Respondent, v. TOWN OF BASS LAKE, Respondent-Appellant-Petitioner Sawyer County Zoning Committee, Sawyer County Board of Appeals and Sawyer County Zoning Administrator, Respondents-Respondents State of Wisconsin, Intervening-Respondent-Respondent.

No. 2005AP1689.

Supreme Court of Wisconsin.

Argued January 4, 2007.

Decided June 19, 2007.

For the respondent-appellant-petitioner there were briefs by Thomas W. Harnisch

and Thomas Harnisch Law Office, Neillsville, and oral argument by Thomas Harnisch.

For the petitioner-respondent there were briefs and oral argument by Clifford E. Stoner, Hayward.

For the intervening-respondent-respondent the cause was argued by Diane L. Milligan, assistant attorney general, with whom on the brief was Peggy A. Lautenschlager, attorney general.

An amicus curiae brief was filed by Paul G. Kent, Abigail C.S. Potts, and Anderson & Kent, S.C., Madison, on behalf of the Wisconsin Builders Association, and there was oral argument by Paul G. Kent.

An amicus curiae brief was filed by Thomas D. Larson, and Debra P. Conrad, Madison, on behalf of the Wisconsin REALTORS Association.

¶ 1 PATIENCE DRAKE ROGGENSACK, J

This is a review of an unpublished per curiam decision of the court of appeals¹ that affirmed the circuit court's order² concluding that the Sawyer County Board of Appeals (board of appeals) proceeded on an incorrect theory of law when it concluded that a navigable stream meandering through a parcel divides the parcel into two lots and, based on that conclusion, that neither of the lots formed by the stream's division of the parcel had the minimum lakeshore frontage of 100 feet. The circuit court reversed and the court of appeals affirmed the circuit court, reasoning that since a riparian owner holds title to the center of a navigable stream, a landowner who owns both shores of a navigable stream owns the entire streambed. FAS, LLC v. Town of Bass Lake, No. 2005AP1689, unpublished slip op., ¶ 10, 2006 WL 1479799 (Wis.Ct.App. May 31, 2006). As a result, the court of appeals concluded that the parcel was not divided by Johnson Creek. Id.

¶ 2 A riparian owner holds qualified title to the center of a navigable stream. Therefore, when the same riparian owner holds qualified title to the property on both shores of the stream, his ownership is continuous throughout the streambed. Accordingly, a navigable stream meandering over a parcel does not divide the parcel into two parcels when the same riparian owner holds qualified title to the property on both shores of the stream. We also conclude that under the Sawyer County Zoning Ordinances then in effect, the entire parcel, including the streambed, is used to calculate the width of the lakeshore frontage. Therefore, because the board of appeals proceeded on an incorrect theory of law in regard to whether the navigable stream divided the parcel, it inaccurately calculated the width of the parcel at issue under the then effective zoning ordinance. Accordingly, we affirm the court of appeals.

I. BACKGROUND

¶ 3 FAS, LLC (FAS) owned a parcel of real estate on Lac Courte Oreilles in the Town of Bass Lake, Sawyer County, Wisconsin, known as Government Lot 4. On July 12, 2002, FAS recorded a Certified Survey Map (CSM) creating from a portion of Government Lot 4 two CSM lots, each with approximately 104 feet of lake frontage on the shores of Lac Courte Oreilles. The portion of Government Lot 4 that remained after creation of CSM Lots 1 and 2 is the parcel at issue in this review. On September 5, 2002, FAS recorded this parcel as the Bayshore Pines Condominium (hereinafter the condominium parcel). The condominium parcel has approximately 103 feet of lakeshore frontage. This frontage includes approximately seven feet of the mouth of Johnson Creek, a navigable stream that flows through the parcel and terminates at the shoreline of Lac Courte Oreilles.

¶ 4 FAS's original map of the condominium parcel did not make any reference to Johnson Creek. Subsequently, the Town notified the Sawyer County Zoning Administrator (zoning administrator) that it believed the condominium parcel contained a navigable stream that divided the parcel into two lots; and therefore, the minimum lakeshore frontage requirement for a buildable lot was not satisfied. However, contrary to the zoning administrator's determination and the Town's contention, the zoning committee decided that the condominium parcel was not divided into two lots by Johnson Creek and that the mouth of Johnson Creek should be included in the calculation of lakeshore frontage under Sawyer County's zoning ordinance. The zoning committee stated that "the lake classification is based on density and the lot meets that density requirement."

¶ 5 The Town appealed the zoning committee's decision to the board of appeals, and the board of appeals overturned the zoning committee's decision. It did so because it determined that Johnson Creek divided the condominium parcel into two unequally sized lots, neither of which met the minimum lakeshore frontage requirement of 100 feet. The board of appeals concluded that the zoning committee erred as a matter of law by not following an attorney general opinion, 66 Op. Att'y Gen. 2 (1977). The board of appeals quoted the following portion of the 1977 attorney general opinion as the basis for its decision:

A body of navigable water separates a parcel of land as effectively as does a public highway. Land owners abutting on navigable streams hold a qualified title to the center of the stream bed. . . . Therefore, parcels separated by navigable waters are no more susceptible to functional integration than parcels separated by public highways.

66 Op. Att'y Gen. at 8.

¶ 6 FAS appealed the board of appeals' decision to the Sawyer County Circuit Court by statutory certiorari pursuant to Wis. Stat. § 59.694(10) (2003-04).³ The circuit court reversed the decision, concluding that a landowner holds title to the center of a navigable streambed, and therefore, when a landowner owns both shores of the stream, the stream does not divide the parcel into two parcels or lots. Thereafter, the circuit court reviewed the zoning ordinance and concluded that the condominium parcel satisfied the minimum lakeshore frontage requirement for a "lot." The circuit court stated that attorney general opinions are only of persuasive value and are not precedent. Since the circuit court concluded the 1977 opinion contained an erroneous statement of law, the court also concluded that the board of appeals proceeded on an incorrect theory.

¶ 7 The Town appealed the circuit court's decision and in a per curiam opinion, the court of appeals affirmed the circuit court's conclusion that a navigable stream does not legally divide a parcel when the same owner owns the land on both sides of the stream. FAS, No 2005AP1689, unpublished slip op., ¶ 2.⁴ The court of appeals also recognized that attorney general opinions are not binding authority. Id., ¶ 9. The court of appeals reasoned that since abutting landowners hold title to the center of the creek, "where a single landowner owns both banks, the landowner `owns' the entire creek." Id., ¶ 10. The court also noted that the Town cited "no state law or county ordinance supporting its contention that a parcel bisected by a creek is not treated as a single lot or that a creek mouth bisecting a lot cannot be included for purposes of determining lakeshore frontage." Id. The Town petitioned for review, which we granted.

II. DISCUSSION

A. Standard of Review

¶ 8 This case is before us on certiorari review, pursuant to Wis. Stat. § 59.694(10).⁵ "On appeal from an order or judgment entered on certiorari, a reviewing court reviews the record of the agency, not the findings or judgment of the circuit court." Wood v. City of Madison, 2003 WI 24, ¶ 12, 260 Wis.2d 71, 659 N.W.2d 31. In statutory certiorari, when additional evidence is not taken, review is confined to the record before the board of appeals and is limited to an examination of:

(1) whether the board kept within its jurisdiction; (2) whether it proceeded on a correct theory of law; (3) whether its action was arbitrary, oppressive, or unreasonable and represented its will and not its judgment; and (4) whether the board might reasonably make the order or determination in question based on the evidence.

State ex rel. Ziervogel v. Wash. County Bd. of Adjustment, 2004 WI 23, ¶ 14, 269 Wis.2d 549, 676 N.W.2d 401. The second of these issues is the only issue implicated in our review of the board of appeals' decision. Whether an agency has proceeded on a correct theory of law is subject to independent appellate review. Id.

¶ 9 In reviewing the board of appeals' decision, we interpret provisions in the Sawyer County Zoning Ordinances and in the Wisconsin Statutes. The interpretation of an ordinance is a question of law that we review independently. Bruno v. Milwaukee County, 2003 WI 28, ¶ 6, 260 Wis.2d 633, 660 N.W.2d 656. The interpretation of a statute is also a question of law that we review independently, "but benefiting from the analyses of the court of appeals and the circuit court." Marder v. Bd. of Regents of the Univ. of Wis. Sys., 2005 WI 159, ¶ 19, 286 Wis.2d 252, 706 N.W.2d 110.

B. Condominium Parcel's Lakeshore Width

¶ 10 As we begin our discussion, it is important to focus on the question that this review is to address: Whether the seven feet of lake frontage that is occupied by the mouth of Johnson Creek should be counted in determining the lakeshore width of the condominium parcel under the applicable zoning ordinance. If it can be counted, then the condominium parcel has sufficient shoreline, at least 100 feet, to constitute a buildable parcel or lot under the Sawyer County Zoning Ordinances then in effect. See Wis. Admin. Code § NR 115.05(3)(a)2.;⁶ Sawyer County Zoning Ordinance § 18.3 (last amended January 18, 2007).⁷ It is the Town's...