Propp v. Sauk County Bd. of Adjustment, 2009AP209.
| Decision Date | 07 January 2010 |
| Docket Number | No. 2009AP209.,2009AP209. |
| Citation | 779 NW 2d 705,2010 WI App 25 |
| Parties | Evelyn PROPP, Plaintiff-Respondent, v. SAUK COUNTY BOARD OF ADJUSTMENT, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
On behalf of the defendant-appellant, the cause was submitted on the briefs of Michele M. Ford of Crivello Carlson S.C., Milwaukee.
On behalf of the plaintiff-respondent, the cause was submitted on the brief of Richard A. Lehmann and Richard L. Bolton of Boardman, Suhr, Curry & Field LLP, Madison.
Before LUNDSTEN, HIGGINBOTHAM and BRIDGE, JJ.
The Sauk County Board of Adjustment appeals an order of the circuit court reversing the Board's decision to deny Evelyn Propp's application for a special land use permit under WIS. STAT. § 59.692(1v) (2007-08)1 and SAUK COUNTY SHORELAND PROTECTION ORDINANCE § 8.06 (May 2003).2 The Board contends the circuit court erred in its interpretation of the terms "floor area" and "structure" which appear in § 59.692(1v)(b) as well as § 8.06(6)(b), and thus incorrectly determined that Propp satisfied the requirements of both, thereby entitling her to the permit. We disagree and affirm the circuit court.
¶ 2 Propp owns a house located on Lake Wisconsin with a walkout basement on the lakeside. She began construction on a deck above the walkout area. The deck was to be forty feet along the house and was to extend fifteen feet toward the lake. The first five feet from the house is seventy-five feet or more from the shoreline. When completed, the remaining ten by forty feet part of the deck (a total of 400 square feet) would be within a protected seventy-five feet shoreland setback area in violation of SAUK COUNTY SHORELAND PROTECTION ORDINANCE § 8.06(2), which requires that all decks be at least seventy-five feet from the lakeshore. After construction of the deck had begun, the Sauk County Planning and Zoning Department determined the ten by forty feet part of the deck violated § 8.06(2) and issued Propp a notice of violation.
¶ 3 Propp then applied for a special land use permit under WIS. STAT. § 59.692(1v) and SAUK COUNTY SHORELAND PROTECTION ORDINANCE § 8.06(6). Propp proposed to remove approximately the outermost five feet of deck floorboards, leaving 200 square feet within the shoreland setback area. According to Propp, the remaining deck would be in compliance with a statute, and a corresponding ordinance, that require granting a special permit for structures with a total floor area not exceeding 200 square feet. Section 59.692(1v) provides:
Similarly, § 8.06(6) provides in relevant part:
Section 59.692(1v) further provides that a county "shall grant special zoning permission for the construction or placement of a structure" if the statute's criteria are met.
¶ 4 Propp's proposal leaves the deck support system in place, but removes enough of the deck floorboards so that the remaining part of the deck floor in the shoreland setback area is 200 square feet. The support system apparently includes exposed floor joists, an I-beam and two posts.
¶ 5 Propp took the position that by removing a portion of the floorboards, she would meet the provisions of WIS. STAT. § 59.692(1v) and SAUK COUNTY SHORELAND PROTECTION ORDINANCE § 8.06(6) because, although the deck would extend into the shoreland setback area, the total floor area of the deck would not exceed 200 feet.3 The Department denied Propp's application, stating that, "despite the proposed removal of deck surface, the remaining substructure encroaches on the shoreland setback area in excess of the maximum allowable 200 s.f."
¶ 6 Propp challenged the Department's decision before the Board, and the Board also denied her application for a special land use permit. Propp then sought review of the Board's decision in circuit court. The court rejected the Board's argument that the term "floor area" should be construed to include the total area within the perimeter of the deck's support system. Instead, the court determined that the term "floor area" unambiguously refers to the portion of the deck upon which a person can stand. The Board appeals.
¶ 7 The Board defends its decision on two distinct grounds. First, the Board contends that the term "floor area" includes the entire footprint of the structure supporting a floor, not just the portion upon which a person is able to stand. Second, the Board contends that, even if "total floor area" includes only the area covered with floorboards, Propp's proposal still does not meet the total floor area limit of 200 square feet because the floor area calculation must include the "total floor area" of the "structure," including portions of that structure outside the protected shoreland setback area. We reject both arguments.
¶ 8 Before proceeding to the merits, we note that the Board devotes considerable space in its briefing to its contention that our review is of the Board's decision, not the circuit court's decision. Propp does not dispute the Board's contention, and does not suggest our review is anything other than by certiorari. She has therefore conceded the issue. See Schlieper v. DNR, 188 Wis.2d 318, 322, 525 N.W.2d 99 (Ct.App.1994) ()
¶ 9 On certiorari, we review the decision of the Board, not that of the circuit court, and we do so de novo. State ex rel. Sprewell v. McCaughtry, 226 Wis.2d 389, 393, 595 N.W.2d 39 (Ct.App.1999). Our review on certiorari is limited to:
(1) whether the Board kept within its jurisdiction; (2) whether it proceeded on the 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 v. Waushara County Bd. of Adjustment, 2004 WI 56, ¶ 12, 271 Wis.2d 547, 679 N.W.2d 514.
¶ 10 Our certiorari review in the present matter raises the question of whether the Board proceeded on a correct theory of law when it denied Propp's application for a special land use permit. Our analysis begins with the interpretation of the term "floor area" in both WIS. STAT. § 59.692(1v) and SAUK COUNTY SHORELAND PROTECTION ORDINANCE § 8.06(6)(b). Statutory and ordinance interpretation present questions of law subject to our de novo review. See Town of Delton v. Liston, 2007 WI App 120, ¶ 8, 301 Wis.2d 720, 731 N.W.2d 308. We occasionally accord deference to an interpretation adopted by a board or agency, see, e.g., Board of Regents of the Univ. of Wis. v. Dane County Bd. of Adjustment, 2000 WI App 211, ¶ 11, 238 Wis.2d 810, 618 N.W.2d 537, and the Board argues we should do so here. However, for reasons we discuss below, our interpretation of the term "floor area" would be the same regardless of the level of deference accorded to the Board's interpretation.
¶ 11 The Board contends that the term "floor area" unambiguously includes the entire footprint of the structure supporting a floor, not just the portion upon which a person is able to stand. As a result, the Board argues, the circuit court erred in determining that by removing the outermost five feet of the deck flooring, the total square footage would be reduced to 200 square feet, thereby requiring that Propp be granted special zoning permission under WIS. STAT. § 59.692(1v) and SAUK COUNTY SHORELAND ZONING ORDINANCE § 8.06.
¶ 12 Propp also argues that the term "floor area" is unambiguous. According to Propp, however, the term is plain and commonly understood to refer to a horizontal surface on which one may stand.
¶ 13 Our interpretation of a statute begins with the statutory text, which is given its common, ordinary, and accepted meaning, except that technical or specially defined words are given their technical or special definitions. State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 45, 271 Wis.2d 633, 681 N.W.2d 110. We interpret statutory language in the context within which it is used, "not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes; and reasonably, to avoid absurd or unreasonable results." Id., ¶ 46. If this process of analysis yields a plain meaning, then there is no ambiguity and we apply that plain meaning. Id. We apply the same rules of interpretation to ordinances as we do to statutes. State ex rel. Village...
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