State ex rel. Anderson v. Town of Newbold

• Decision Date: 29 October 2019
• Docket Number: Appeal No. 2018AP547
• Citation: 935 N.W.2d 856,389 Wis.2d 309,2019 WI App 59
• Parties: STATE of Wisconsin EX REL. Michael ANDERSON, Petitioner-Appellant, v. TOWN OF NEWBOLD, Respondent-Respondent.
• Court: Wisconsin Court of Appeals

389 Wis.2d 309

935 N.W.2d 856

2019 WI App 59

STATE of Wisconsin EX REL. Michael ANDERSON, Petitioner-Appellant,

v.TOWN OF NEWBOLD, Respondent-Respondent.

Appeal No. 2018AP547

Court of Appeals of Wisconsin.

Submitted on Briefs February 19, 2019

Filed October 29, 2019

On behalf of the petitioner-appellant, the cause was submitted on the briefs of Timothy B. Melms and Mary M. Hogan of Hogan & Melms, LLP, Rhinelander.

On behalf of the respondent-respondent, the cause was submitted on the brief of Daniel L. Vande Zande and Sam Kaufman of Vande Zande & Kaufman, LLP, Waupun.

Before Stark, P.J., Hruz and Seidl, JJ.

SEIDL, J.

¶1 Michael Anderson owns shoreland property in the Town of Newbold (the Town) that he sought to divide into two lots. The Town denied Anderson’s proposed division on the ground that the two lots would fail to comply with the Town’s applicable minimum shoreland frontage requirement. The issue before us is whether the Town may lawfully enforce its shoreland frontage requirement, which it enacted under its subdivision authority, even though an identical shoreland frontage requirement would not be enforceable had the Town enacted it under its zoning authority.

¶2 We conclude that the plain language of the applicable subdivision enabling statute gave the Town authority to enact its minimum shoreland frontage requirement. Thus, even though our state legislature has removed shoreland zoning authority for towns through the enactment of WIS. STAT. §§ 281.31 and 59.692 (2017-18),¹ we affirm the circuit court’s order upholding the Town’s decision.

¶3 We recognize in reaching our decision that there is undeniable tension between the legislature’s decision to restrict towns’ shoreland zoning authority while at the same time granting towns the power to enact a shoreland frontage requirement under their subdivision authority. We conclude, however, that in the absence of clear legislative intent demonstrating that the zoning enabling statute takes priority over the subdivision enabling statute, it is not the role of this court to resolve that tension. That task lies within the purview of the legislature alone.

BACKGROUND

¶4 Anderson owns a lot in the Town that has 358.43 feet of shoreland frontage on Lake Mildred, and thus is classified as shoreland property. See WIS. STAT. §§ 59.692(1)(b), 281.31(2)(d). In 2016, Anderson submitted a certified survey map to the Town that proposed dividing his current lot into two lots. The two proposed lots were to have shoreland frontage of 195 and 163.43 feet, respectively.

¶5 The Town’s planning commission considered Anderson’s proposal at its November 3, 2016 meeting. According to the minutes of that meeting, the commission voted to recommend that the Town deny the request "because it does not comply with Town of Newbold On-Water Land Division Standards 13.13[.02 ("the Subdivision Ordinance") ] which requires a minimum 225 foot lot width at the ordinary high water mark" on Lake Mildred. One week later, the town board adopted this recommendation and thereby denied Anderson’s proposal.

¶6 Anderson sought certiorari review of the Town’s decision in the circuit court. The court ultimately affirmed the Town’s authority to enforce the Subdivision Ordinance and therefore upheld the Town’s denial of Anderson’s proposed subdivision. Anderson now appeals.

STANDARD OF REVIEW

¶7 On an appeal from a judgment on certiorari, we review the actions of the town board, not the circuit court. Lake Delavan Prop. Co., LLC v. City of Delavan , 2014 WI App 35, ¶5, 353 Wis. 2d 173, 844 N.W.2d 632. Certiorari review requires us to consider whether the board: (1) kept within its jurisdiction; (2) acted according to law; (3) acted in an arbitrary, oppressive, or unreasonable manner; and (4) whether the evidence was such that the board might reasonably have made the order or determination in question. Id. , ¶4.

¶8 Here, the sole issue is whether the town board acted according to law. To resolve this issue, we must interpret portions of WIS. STAT. §§ 59.692 and 236.45. Statutory interpretation presents a question of law that we review independently. Wood v. City of Madison , 2003 WI 24, ¶11, 260 Wis. 2d 71, 659 N.W.2d 31.

¶9 When interpreting a statute, our objective "is to determine what the statute means so that it may be given its full, proper, and intended effect." State ex rel. Kalal v. Circuit Court for Dane Cty. , 2004 WI 58, ¶44, 271 Wis. 2d 633, 681 N.W.2d 110. Our analysis begins with the plain language of the statute. Id. , ¶45. Statutory language is given its common, ordinary, and accepted meaning, except that technical or specially-defined words or phrases are given their technical or special definitional meaning. Id. In addition, statutory language must be interpreted in the context in 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. Where possible, we must read statutory language so as to give reasonable effect to every word, in order to avoid surplusage. Id.

DISCUSSION

¶10 This case concerns the interplay between two "complementary land planning devices"—zoning and subdivision control. See Town of Sun Prairie v. Storms , 110 Wis. 2d 58, 68, 327 N.W.2d 642 (1983). More specifically, the question on appeal is whether a town retains the authority, granted to it under WIS. STAT. § 236.45, to enact subdivision regulations in a shoreland area, despite the fact that our legislature has prohibited a town from enacting shoreland zoning regulations, pursuant to WIS. STAT. § 59.692. To answer this question, we must first provide a brief overview of the "separate and independent enabling legislation" that governs a town’s authority to enact subdivision control regulations and zoning regulations. See Town of Sun Prairie , 110 Wis. 2d at 70, 327 N.W.2d 642.

¶11 As a general matter, both towns and counties possess the authority to zone. See WIS. STAT. §§ 59.69, 60.22(3), and 60.61. Only counties, however, may enact shoreland zoning ordinances,² except for in a limited circumstance that the parties do not argue exists in this case.³ See Hegwood v. Town of Eagle Zoning Bd. of Appeals , 2013 WI App 118, ¶9, 351 Wis. 2d 196, 839 N.W.2d 111. As explained in Hegwood , the conclusion that towns may not enact shoreland zoning ordinances is compelled by the "plain language of the statutory scheme [which] evinces that by enactment of WIS. STAT. §§ 281.31 and 59.692, the legislature intended that towns would not have authority to regulate shorelands" through the passage of zoning ordinances. Id. , ¶16.

¶12 Although towns are prohibited from enacting shoreland zoning ordinances, they do have the general authority to enact subdivision regulations. See WIS. STAT. § 236.45. As our supreme court has explained, WIS. STAT. ch. 236 provides "separate and independent enabling legislation [as compared to zoning legislation] for local governments to enact subdivision control regulations. Separate and distinct procedures are required for the adoption of such regulation as compared to zoning ordinances." Town of Sun Prairie , 110 Wis. 2d at 70, 327 N.W.2d 642 (footnote omitted).

¶13 With this legal background in mind, we turn to the specifics of Anderson’s arguments on appeal. He first contends that although the Town undisputedly enacted the Shoreland Ordinance pursuant to the conditions and procedures of WIS. STAT. ch. 236, it is in actuality a disguised zoning ordinance.⁴ Thus, because the Town has no authority to enact a shoreland zoning ordinance, he argues the Town may not enforce the Shoreland Ordinance.⁵

¶14 Anderson’s argument that the Shoreland Ordinance is a disguised zoning ordinance relies primarily on the fact that it shares many characteristics with a zoning ordinance. In short, he states that "if it looks like a zoning function, and acts like a zoning function, it is a zoning function."

¶15 The main problem with Anderson’s argument is that there is inherently a significant overlap between subdivision and zoning powers. See Wood , 260 Wis. 2d 71, ¶¶23, 29, 659 N.W.2d 31. This overlap results from the fact that zoning and subdivision are "complementary land devices," which makes it difficult—at best—to definitively classify a particular regulation as being either a subdivision or zoning ordinance. See Town of Sun Prairie , 110 Wis. 2d at 68, 327 N.W.2d 642. Stated differently, "there is no sharp distinction between zoning and platting,"⁶ as both share common objectives like "dividing a municipality into districts and adoption of a comprehensive plan with regard to roads, streets, transportation facilities, schools, parks, etc., usually on recommendations by an appropriate commission." State ex rel. Albert Realty Co. v. Village Bd. , 7 Wis. 2d 93, 97-98, 95 N.W.2d 808 (1959) (citation omitted).

¶16 It was against this murky backdrop that our supreme court provided guidance for determining whether a regulation is a valid exercise of a municipality’s subdivision authority in Town of Sun Prairie . Specifically, the court stated: "As long as the regulation is authorized by and within the purposes of [ WIS. STAT. ] ch. 236, the fact that it may also fall under the zoning power does not preclude a local government from enacting the regulation pursuant to the conditions and procedures of ch. 236." Town of Sun Prairie , 110 Wis. 2d at 70-71, 327 N.W.2d 642. Given that Anderson fails to develop any argument that the Shoreland Ordinance was not enacted "pursuant to the conditions and procedures of ch. 236," and instead focuses merely on how it shares characteristics of a zoning ordinance, we reject his argument.⁷ See State v. Pettit , 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992).

¶17 Anderson next argues that even if the Town lawfully enacted the Shoreland Ordinance under the authority granted by WIS. STAT. ch. 236, the fact that an identical frontage restriction would be...