State ex rel. Anderson v. Town of Newbold

• Decision Date: 27 January 2021
• Docket Number: No. 2018AP547,2018AP547
• Citation: 2021 WI 6,954 N.W.2d 323,395 Wis.2d 351
• Parties: STATE of Wisconsin EX REL. Michael ANDERSON, Petitioner-Appellant-Petitioner, v. TOWN OF NEWBOLD, Respondent-Respondent.
• Court: Wisconsin Supreme Court

395 Wis.2d 351

954 N.W.2d 323

2021 WI 6

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

v.TOWN OF NEWBOLD, Respondent-Respondent.

No. 2018AP547

Supreme Court of Wisconsin.

Oral Argument: October 1, 2020

Opinion Filed: January 27, 2021

For the petitioner-appellant-petitioner, there were briefs filed by Timothy B. Melms, Mary M. Hogan, and Hogan & Melms, LLP, Rhinelander. There was an oral argument by Timothy B. Melms and Mary M. Hogan.

For the respondent-respondent, there was a brief submitted by Daniel L. Vande Zande, Sam Kaufman, and Vande Zande & Kaufman, LLP, Waupun. There was an oral argument by Daniel L. Vande Zande.

An amicus curiae brief was submitted on behalf of Wisconsin Association of Lakes, Inc., Big Portage Lake Riparian Owners Association, Blue Lake Preservation Association, Ballard-Irving-White Birch Lakes Association, Inc., Deer Lake Improvement Association, Wildcat Lake Association, Lake Katherine Association, Inc. and Plum Lake Association by Christa O. Westerberg and Pines Bach LLP, Madison.

An amicus curiae brief was submitted on behalf of Wisconsin Towns Association by Joseph Ruth, Shawano.

An amicus curiae brief was submitted on behalf of Wisconsin Realtors Association and Wisconsin Builders Association by Thomas D. Larson, Madison. There was an oral argument by Thomas D. Larson.

ANN WALSH BRADLEY, J., delivered the majority opinion of the Court in which ROGGENSACK, C.J., ZIEGLER, DALLET, and KAROFSKY, JJ., joined. HAGEDORN, J., filed a dissenting opinion, in which REBECCA GRASSL BRADLEY, J., joined.

ANN WALSH BRADLEY, J.

¶1 The petitioner, Michael Anderson, seeks review of a published court of appeals decision affirming the circuit court's order upholding the Town of Newbold's denial of Anderson's attempt to subdivide his property.¹ Anderson's proposed subdivision was denied by the Town because the two resulting lots would not meet the Town's applicable minimum shoreland frontage requirement as set by Town ordinance.

¶2 Anderson contends that the Town's minimum shoreland frontage requirement is unenforceable because it is a shoreland zoning regulation that the Town does not have the authority to enact. The Town, on the other hand, argues that the requirement is a permissible exercise of its subdivision authority.

¶3 We conclude that the Town ordinance at issue is a permissible exercise of the Town's subdivision authority pursuant to Wis. Stat. § 236.45 (2017-18).² The Town thus proceeded on a correct theory of law when it denied Anderson's request to subdivide his property in a way that would contravene the ordinance.

¶4 Accordingly, we affirm the decision of the court of appeals.

I

¶5 Anderson owns property on Lake Mildred in the Town of Newbold, which includes 358.43 feet of shoreline frontage. Seeking to subdivide his property into two separate lots, one with 195 feet of shoreline frontage and the other with 163.43 feet, Anderson submitted a proposal to the Town.

¶6 At its November 3, 2016 meeting, the Town Plan Commission considered Anderson's proposal. The commission recommended that the Town deny Anderson's proposal based on its failure to comply with the Town's subdivision ordinance. According to the commission's minutes, denial was recommended "because [the plan] does not comply with Town of Newbold On-Water Land Division Standards 13.13 which requires a minimum 225 foot lot width at the ordinary high water mark" of Lake Mildred. Adopting the commission's recommendation, the Town Board denied Anderson's proposed subdivision.

¶7 Anderson sought certiorari review of the Town's decision in the circuit court. He contended that the Town proceeded on an incorrect theory of law by denying his proposal to subdivide his property. Specifically, he relied on Wis. Stat. § 59.692,³ contending that this statute prevents municipalities from enforcing local shoreland zoning standards that are more restrictive than the standards that have been enacted on a state level. Anderson argued that the Town of Newbold ordinance is invalid because it is more restrictive than state standards.

¶8 The circuit court issued a written decision, in several places referring to the case as a "close call." Although it stated that Anderson "makes a fairly strong case," it ultimately did not rule in his favor and affirmed the Town's decision. The circuit court concluded that the Town ordinance at issue does not fall within the purview of Wis. Stat. § 59.692 : "It is not a zoning ordinance enacted under Wis. Stat. Ch. 59 at all; instead, it is a subdivision ordinance enacted under Wis. Stat. Ch. 236."

¶9 Recognizing a distinction between zoning ordinances and subdivision ordinances, the circuit court also observed an overlap between the two concepts that ultimately proved dispositive: "Because there is a recognized overlap between these two functions (i.e. zoning and subdivision controls), Mr. Anderson's concern that ‘the Town of Newbold is performing a zoning function’ with its subdivision ordinance cannot ultimately prevail." It reached this conclusion because "the statutory ‘enacted under this section’ language chosen by the legislature [in Wis. Stat. § 59.692 ] is difficult to apply to a local subdivision ordinance enacted under Wis. Stat. Ch. 236."

¶10 Anderson appealed, and the court of appeals affirmed the circuit court, upholding the Town's denial of Anderson's proposed subdivision. State ex rel. Anderson v. Town of Newbold, 2019 WI App 59, 389 Wis. 2d 309, 935 N.W.2d 856. The court of appeals recognized what it described as an "undeniable tension between Wis. Stat. §§ 59.692 and 236.45 [,]" yet like the circuit court, it determined that "the Town has the authority to enforce the Shoreland Ordinance, which, again, was undisputedly enacted as a lawful exercise of the Town's subdivision authority under Wis. Stat. § 236.45." Id., ¶¶21-22. Anderson petitioned for review in this court.

II

¶11 This case arrives here on certiorari review. "Certiorari is a mechanism by which a court may test the validity of a decision rendered by a municipality, an administrative agency, or an inferior tribunal." Ottman v. Town of Primrose, 2011 WI 18, ¶34, 332 Wis. 2d 3, 796 N.W.2d 411.

¶12 On certiorari review, we examine the decision of the Town Board, not the decision of the circuit court. Oneida Seven Generations Corp. v. City of Green Bay, 2015 WI 50, ¶42, 362 Wis. 2d 290, 865 N.W.2d 162. Our review is limited to (1) whether the municipality 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 evidence was such that it might reasonably make the order or determination in question. Wisconsin Dolls, LLC v. Town of Dell Prairie, 2012 WI 76, ¶18, 342 Wis. 2d 350, 815 N.W.2d 690.

¶13 In our review, we must interpret several statutes. Statutory interpretation presents a question of law this court reviews independently of the determinations rendered by the circuit court and court of appeals. Shugarts v. Mohr, 2018 WI 27, ¶18, 380 Wis. 2d 512, 909 N.W.2d 402.

III

¶14 We begin by setting forth necessary background regarding the statutory authority of various governmental entities to regulate land use and subdivision, with a specific eye to shorelands. Subsequently, we examine Anderson's arguments advanced in this case.

A

¶15 At issue is the validity of the Town's minimum shoreland lot size requirements found in Town of Newbold Ordinance 13.13. In Ordinance 13.13.01, the Town sets forth the purpose and intent of the provision:

The Town Board has determined that in order to enhance the quality of the division or subdivision of land within areas of the Town affecting properties having frontage on any of the lakes, flowages, ponds, navigable rivers and/or streams located within the Town, that standards more stringent than current County development standards be established as provided ....

¶16 Accordingly, the Town set minimum lot frontage requirements for each lake within its borders. As applicable to Lake Mildred, such minimum lot frontage is 225 feet. Anderson challenges this regulation as outside the statutory authority of the Town to enact.

¶17 In terms of this certiorari review, the issue focuses on the second prong of such review—whether the Town proceeded on a correct theory of law in enacting the above-cited minimum shoreland lot size requirement. To determine whether the Town proceeded on a correct theory of law, we must interpret the relevant statutes that set the parameters for the regulation of land use controls by various governmental entities.

¶18 Statutory interpretation begins with the language of the statute. State ex rel. Kalal v. Cir. Ct. for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110. If the meaning of the statute is plain, we need not further the inquiry. Id.

¶19 "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. We interpret statutory language "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.

¶20 The Wisconsin Statutes provide a framework for the regulation of land use by various governmental entities. Such regulation can take the form of planning, zoning, or platting. Town of Sun Prairie v. Storms, 110 Wis. 2d 58, 68, 327 N.W.2d 642 (1983). This court has recognized that "[z]oning and planning must be viewed as complementary devices used in community planning." Id. (quoting E.C. Yokley, Law of Subdivisions, § 39 at 157-58 (2d ed. 1981)).

¶21 Not all lands are treated equally in terms of community planning. Indeed, the legislature has recognized that shorelands are subject to unique considerations.

These considerations...