One Badger, LLC v. Waukesha Cnty. Bd. of Adjustment, Appeal No. 2017AP2523

• Court: Court of Appeals of Wisconsin
• Citation: 2019 WI App 8,385 Wis.2d 847,926 N.W.2d 505 (Table)
• Docket Number: Appeal No. 2017AP2523
• Parties: ONE BADGER, LLC, Plaintiff-Appellant, v. WAUKESHA COUNTY BOARD OF ADJUSTMENT, Defendant-Respondent.
• Decision Date: 23 January 2019

385 Wis.2d 847
926 N.W.2d 505 (Table)
2019 WI App 8

ONE BADGER, LLC, Plaintiff-Appellant,
v.
WAUKESHA COUNTY BOARD OF ADJUSTMENT, Defendant-Respondent.

Appeal No. 2017AP2523

Court of Appeals of Wisconsin.

DATED AND FILED January 23, 2019

PER CURIAM.

¶1 One Badger, LLC, appeals a circuit court order affirming a decision of the Waukesha County Board of Adjustment ("the Board"). The Board had denied the appeal of an administrative decision to declare a zoning violation with respect to property owned by One Badger. For the reasons that follow, we affirm.

¶2 One Badger is a limited liability company created by Wallace and Ann Burt. In December 2015, One Badger purchased a single family residential property located on Pewaukee Lake in the Town of Delafield. That property, which we will refer to as the "Badger Parcel," was adjacent to property already owned by the Burts in their individual capacity, which we will refer to as the "Burt Parcel."

¶3 The Burt Parcel was improved with a single family residential structure that the Burts had used as a residence since 2008. Meanwhile, the Badger Parcel was improved with both a single family residential structure and a boathouse. The single family residence on the Badger Parcel was vacant and uninhabitable at the time of One Badger’s purchase.

¶4 Following acquisition of the Badger Parcel, the Burts considered combining the Burt Parcel and the Badger Parcel by a certified survey map. Indeed, a map was prepared and approved by the Town of Delafield and Waukesha County. However, the Burts ultimately decided against the action, so the parcels remained separate.

¶5 In August 2016, the Burts razed the residential structure on the Badger Parcel. Thereafter, the Badger Parcel contained only an accessory structure (i.e., the boathouse) without a principal building.

¶6 In November 2016, the Waukesha County Department of Parks and Land Use (PLU) issued a letter declaring a zoning violation with respect to the Badger Parcel. The letter noted that, pursuant to Section 3(d)1 of the Waukesha County Shoreland and Floodland Protection Ordinance ("the Shoreland Ordinance"), which was enacted in December 2010, no accessory structure could remain on a parcel without a principal building.¹ The letter went on to warn the Burts:

[If] your property remains in violation, our office is authorized under Section 41 of the Waukesha County Shoreland and Floodland Protection Ordinance to issue citations for each day the property remains in noncompliance. In addition to collecting forfeitures in the form of a cash deposit, a court appearance may be required, additional fines imposed and further legal action or enforcement methods may be used to bring the property into compliance.

¶7 The Burts, acting in their capacity as One Badger, appealed the PLU’s decision. One Badger argued that the boathouse was a legal nonconforming structure protected by WIS. STAT . § 59.69(10)(am) (2015-16).² It further argued that Section 3(d)1 of the Shoreland Ordinance is illegal, as the County lacked authority to require the removal of an otherwise lawful structure.

¶8 Following a hearing on the matter, the Board denied the appeal. The Board was not convinced that the boathouse was a legal nonconforming structure. Moreover, the Board opined that Section 3(d)1 of the Shoreland Ordinance is legal, though it did not believe that it was the proper body to make such a determination. Finally, the Board noted that the PLU never required removal of the boathouse and actually provided One Badger with several potential solutions to avoid legal liability.³

¶9 One Badger then sought...