State v. City of La Crosse

• Decision Date: 06 July 1984
• Docket Number: No. 83-435,83-435
• Parties: STATE of Wisconsin, Plaintiff-Appellant, v. CITY OF LA CROSSE and Paul Hemker, and others, Defendants-Respondents.
• Court: Wisconsin Court of Appeals

Page 738

354 N.W.2d 738

120 Wis.2d 263

STATE of Wisconsin, Plaintiff-Appellant, v. CITY OF LA CROSSE and Paul Hemker, and others, Defendants-Respondents.

No. 83-435.

Court of Appeals of Wisconsin.

Submitted on Briefs April 6, 1984.

Opinion Released July 6, 1984.

Opinion Filed July 6, 1984.

Bronson C. La Follette, Atty. Gen., and Shari Eggleson, Asst. Atty. Gen., for plaintiff-appellant.

Terence R. Collins and Cameron, Nix, Collins & Quillin, Ltd., La Crosse, for defendants-respondents.

Before GARTZKE, P.J., and MARTHA J. BABLITCH and DYKMAN, JJ.

DYKMAN, Judge.

The state appeals from an order which granted Paul Hemker's motion in limine to exclude evidence and granted his motion for summary judgment dismissing the complaint against him. The state alleged that Hemker had placed fill within the La Crosse River flood plain which would cause an increase greater than 0.1 foot in the height of the regional flood, ¹ contrary to sec. 15.03(B)(1) of the flood plain zoning ordinance of the City of La Crosse. The trial court held that because Hemker's property was outside the area designated as floodway on La Crosse's official flood plain zoning map, ² the state could introduce no evidence which was based on an assumption that at the time of the regional flood, the water on Hemker's property would be flowing instead of standing. We reverse the trial court's order, direct the trial court to deny Hemker's motion in limine, and remand the case for further proceedings consistent with this opinion.

Section 15.03(B)(1) of the La Crosse City Ordinances, which is part of La Crosse's flood plain zoning ordinance, provides in part:

No developments shall be allowed which, acting alone or in combination with existing or future similar uses, cause an increase equal to or greater than 0.1 foot in height of the regional flood on any main stem, tributaries to the main stem of any stream, drainage ditches, or any other drainage facilities....

Section 87.30(2), Stats., provides that any "structure, building, fill or development placed or maintained within any flood plain" in violation of a flood plain zoning ordinance is a public nuisance, and that the state, any municipality, or any citizen may bring an action to enjoin or abate it.

In March 1981, La Crosse annexed a parcel of land which was owned by Hemker. The parties agree that the parcel is located within the flood plain of the La Crosse River. The state, believing that La Crosse had erroneously zoned the parcel as being in the flood fringe ³ when it was actually in the floodway, attempted to enjoin Hemker from filling the parcel and requested forfeitures for any illegally placed fill. ⁴ The trial court refused to enjoin Hemker from filling. On April 19, 1982, the state filed an amended complaint alleging that Hemker had placed fill on the property which would increase the elevation of the regional flood by more than 0.1 foot, contrary to sec. 15.03(B)(1) of the La Crosse City Ordinances. Hemker filed a motion in limine to prevent the state from introducing evidence that his fill would increase flood elevations more than 0.1 foot if the evidence was based on a hydraulic analysis, rather than a hydrologic analysis, of the effects of the fill.

The parties agree that if Hemker's property is within the hydraulic floodway, floodwaters will be flowing across the property at the time of the regional flood, and any fill placed on the property will obstruct the flow of the water. If this is the case, a hydraulic analysis, which assumes flowing water, must be done in order to accurately determine the effect of the fill on flood elevations. The state alleges that Hemker's fill is within the hydraulic floodway and that a hydraulic analysis of the fill shows that it will increase flood elevations approximately three feet.

If, on the other hand, Hemker's property is not within the hydraulic floodway, but is in the flood fringe, then water will most likely be standing on the property at the time of the regional flood. If this is the case, any fill placed on the property will merely displace standing floodwaters, and thereby decrease the storage capacity of the flood fringe. The parties agree that if the water is standing on Hemker's property instead of flowing over it, a hydrologic analysis, which assumes standing water, must be done to determine the effect of the fill on flood elevations. The parties also agree that a hydrologic analysis of Hemker's fill will show that the fill would have no significant impact on the flood storage capacity of the flood plain and thus no significant impact on flood elevations.

The trial court held that because La Crosse's flood plain zoning map indicated that Hemker's property was part of the flood fringe, ⁵ which is defined in the ordinance as being associated with standing water, the state could not introduce into evidence the results of its hydraulic analysis, which had assumed floodwater would be flowing over the property. The state conceded that without the hydraulic analysis, it had no evidence to show that Hemker's fill would increase the elevation of the regional flood more than 0.1 foot. The other facts were undisputed. The trial court granted summary judgment for Hemker and dismissed the complaint.

The questions whether an offered item of evidence is relevant, and, if it is, whether it should be admitted, are addressed to the trial court's discretion. State v. Pharr, 115 Wis.2d 334, 344-45, 340 N.W.2d 498, 502 (1983). The trial court abuses its discretion, however, when it grounds its decision upon an erroneous view of the law. Krolikowski v. Chicago & N.W. Trans. Co., 89 Wis.2d 573, 581, 278 N.W.2d 865, 868 (1979).

The trial court excluded the results of the hydraulic analysis on the theory that drawing the boundary between the floodway and the flood fringe was a political decision, not a scientific decision, and that if the official (political) floodway line was not in the same place as the hydraulic (scientific) floodway line, the official line should be the one that determines whether fill may be placed on the flood plain. This was an erroneous view of the law. Section 87.30(1)(a), Stats., and Wis.Adm.Code ch. NR 116, indicate that flood plain regulation and use are to be based on the most accurate assessment possible of actual physical conditions.

Section 87.30(1)(a), Stats., provides that if the DNR adopts a flood plain zoning ordinance applicable to a municipality, the flood plain and floodway limits are to be determined by hydraulic and engineering studies, and that the DNR must ensure that the studies are "reasonable and accurate." Wis.Adm.Code ch. NR 116, provides that local governments must upgrade their flood plain zoning ordinances to reflect the most current flood data, hydrologic data, and technological information and methods. ⁶ Section NR 116.06 provides that municipalities' flood plain zoning maps must "[reflect] the best available data." Section NR 116.10 provides that accepted engineering...