Murr v. St. Croix County Bd. of Adjustment
| Decision Date | 15 February 2011 |
| Docket Number | No. 2008AP2728.,2008AP2728. |
| Citation | 796 N.W.2d 837,2011 WI App 29,332 Wis.2d 172 |
| Parties | Donna J. MURR, Petitioner–Appellant–Cross–Respondent,†v.ST. CROIX COUNTY BOARD OF ADJUSTMENT, Respondent–Respondent–Cross–Appellant,State of Wisconsin, Appellate-Intervenor-Respondent-Cross-Appellant. |
| Court | Wisconsin Court of Appeals |
OPINION TEXT STARTS HERE
On behalf of the petitioner-appellant-cross-respondent, the cause was submitted on the briefs of R. Michael Waterman of Mudge Porter Lundeen & Seguin, S.C., Hudson.On behalf of the respondent-respondent-cross-appellant, the cause was submitted on the brief of Donald J. Gillen, assistant corporation counsel of Hudson.On behalf of the combined brief of appellate-intervenor-respondent-cross-appellant, the cause was submitted on the briefs of Lorraine C. Stoltzfus, assistant attorney general, and J.B. Van Hollen, attorney general.Before HOOVER, P.J., PETERSON and BRUNNER, JJ.HOOVER, P.J.
Donna Murr appeals a circuit court judgment that affirmed in part, and reversed in part, a St. Croix County Board of Adjustment decision denying Murr's request for six variances and two special exception permits. The Board and the State of Wisconsin (collectively, the Board) cross-appeal.1
¶ 2 Murr argues a St. Croix County ordinance that mirrors Wis. Admin. Code § NR 118.08(4) does not apply to merge her two contiguous parcels, because the parcels did not come under common ownership until after the effective date identified in the ordinance.2 We disagree and conclude the ordinance applies to all abutting properties that existed on the specified date, regardless of when they come under common ownership. We therefore affirm the portion of the judgment affirming the Board's decision on that issue.
¶ 3 In its cross-appeal, the Board asserts its decision was proper in all respects and contends the circuit court applied an incorrect standard of review, substituting its judgment for that of the Board. We agree and reverse the portion of the judgment reversing the Board's decision.
¶ 4 Murr's parents purchased a lot on the St. Croix River in 1960. After building a cabin near the river, they transferred title to their plumbing company. In 1963, Murr's parents purchased an adjacent lot, which has remained vacant ever since. The approximately one and one-quarter acre lots are moderately level at the top and at the river, but are bisected by a steep 130 foot bluff, with the top and bottom of the lots being served by separate roads. The two lots contain approximately .48 and .50 acres of net project area.3 The lots were transferred to Murr and her siblings in 1994 and 1995.4
¶ 5 Due to repeated flooding, Murr sought to reconstruct the cabin on higher ground by using fill. She initially planned to build in the same location. However, as suggested by a town planning commission, Murr ultimately requested to build further from the river to reduce the environmental impact. Murr requested the following eight variances or special exception permits: (1) variance to sell or use two contiguous substandard lots in common ownership as separate building sites; (2) variance to reconstruct and expand a nonconforming structure outside its original footprint; (3) variance to fill, grade, and place a structure in the slope preservation zone; (4) special exception to fill and grade within forty feet of the slope preservation zone; (5) special exception to fill and grade more than 2000 square feet; (6) variance to construct retaining walls and stairs inside the ordinary high-water mark setback; (7) variance to reconstruct a patio within the ordinary high-water mark setback; and (8) variance to construct a deck within the ordinary high-water mark setback.
¶ 6 The Board conducted a public hearing at which the DNR and county zoning staff opposed Murr's application. The Board denied all of Murr's requests in a written decision. Murr sought Wis. Stat. § 59.694(10) 5 certiorari review before the circuit court. After hearing arguments and viewing the property, the circuit court affirmed the Board's denial of Murr's request to sell or use the two lots as separate building sites. However, the court reversed the Board on the remaining seven requests. Murr now appeals, and the Board cross-appeals, the circuit court decision.
¶ 7 Certiorari review under Wis. Stat. § 59.694(10) is limited to: (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. Klinger v. Oneida Cnty., 149 Wis.2d 838, 843, 440 N.W.2d 348 (1989).
¶ 8 Murr asks us to interpret St. Croix County, WI, Code of Ordinances, Land Use and Development, Subchapter III.V, Lower St. Croix Riverway Overlay District § 17.36I.4.a. (July 1, 2007), and decide whether it applies to her situation.6 Murr's challenge appears to question whether the Board proceeded under the correct theory of law.7
[332 Wis.2d 180] ¶ 9 The rules for construction of statutes and ordinances are the same. Sauk County v. Trager, 113 Wis.2d 48, 55, 334 N.W.2d 272 (Ct.App.1983). Statutory interpretation presents a question of law that we decide without deference to the trial court's decision. Orion Flight Servs., Inc. v. Basler Flight Serv., 2006 WI 51, ¶ 16, 290 Wis.2d 421, 714 N.W.2d 130. The purpose of statutory interpretation is to determine what a statute means in order to give the statute its full, proper, and intended effect. Id. Generally, language is given its common, ordinary, and accepted meaning. Id. In addition, statutory language is interpreted in the context in which it is used, in relation to the language of surrounding or closely related statutes, and interpreted to avoid absurd or unreasonable results. Id.
¶ 10 Wisconsin Stat. § 30.27(1), consistent with federal code provisions identified therein, recognizes the Lower St. Croix River as part of the national wild and scenic rivers system. Subsection 30.27(2) requires the DNR to “adopt, by rule, guidelines and specific standards for local zoning ordinances which apply to the banks, bluffs and bluff tops of the Lower St. Croix River.” Subsection 30.27(3), in turn, requires all affected municipalities to adopt ordinances at least as restrictive as those adopted by the DNR. St. Croix County adopted an ordinance essentially mirroring Wis. Admin. Code § NR 118.08(4). The ordinance provides:
(4) Substandard Lots Lots of record in the Register Of Deeds office on January 1, 1976 or on the date of the enactment of an amendment to this subchapter that makes the lot substandard, which do not meet the requirements of this subchapter, may be allowed as building sites provided that the following criteria are met:
(a) 1. The lot is in separate ownership from abutting lands, or
2. The lot by itself or in combination with an adjacent lot or lots under common ownership in an existing subdivision has at least one acre of net project area. Adjacent substandard lots in common ownership may only be sold or developed as separate lots if each of the lots has at least one acre of net project area.
(b) All structures that are proposed to be constructed or placed on the lot and the proposed use of the lot comply with the requirements of this subchapter and any underlying zoning or sanitary code requirements.
St. Croix County, WI, Code of Ordinances, Land Use and Development, Subch. III.V, Lower St. Croix Riverway Overlay DistrictT § 17.36I.4.a. (July 1, 2007) (internal lettering and numbering modified); 8see also Wis. Admin. Code § NR 118.08(4).
¶ 11 Murr argues that any existing substandard lot that was not under common ownership on January 1, 1976, remains forever exempt under the ordinance, regardless of whether it subsequently comes under common ownership with an abutting lot. Murr asserts this case involves the doctrine of merger, and relies on principles of law set forth in treatises, see 3 Rathkopf's The Law of Zoning and Planning § 49.13 (4th ed.2008); 2 Anderson's American Zoning § 9.67 (4th ed.2006), and foreign state cases. Based on those authorities, Murr contends the ordinance was required to include an “explicit merger clause.” We reject Murr's reliance on nonbinding authority to create ambiguity in the ordinance. The administrative code provision on which the ordinance is based is not a model of clear draftsmanship. Nonetheless, we discern no ambiguity in its application here, and we reject as unreasonable Murr's interpretation that the ordinance applies only to lots that were under common ownership on the effective date.9
¶ 12 Paraphrased, the first paragraph of the ordinance states: “Lots that are already in existence (i.e., those on record with the register of deeds) when the riverway district ordinance declares them substandard may be allowed as building sites if the following criteria are met.” Nothing in that paragraph ties either the initial January 1, 1976 effective date or potential future effective dates to the subsequently listed criteria. The date simply establishes the point in time by which the lot must have been recorded to be eligible under the subsection's exception for building on substandard lots.
Accordingly, neither subds. (a)1. or (a)2., which are specifically at issue in this case, refer to any particular date. Moreover, these subdivisions utilize the present tense. If the DNR or local zoning authority had intended these provisions to apply only to the facts as they existed on the effective date, then they likely would have said so, and would have used the past tense.10 Use of the present tense, on the other hand, indicates the criteria are to be applied to the state of facts existing at the time an owner seeks to sell or build.
¶ 14 Our interpretation is also consistent with the manifest...
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