State v. Village of Lake Delton
| Decision Date | 21 November 1979 |
| Docket Number | No. 77-722,77-722 |
| Citation | 93 Wis.2d 78,286 N.W.2d 622 |
| Parties | STATE of Wisconsin, Plaintiff-Appellant, v. VILLAGE OF LAKE DELTON, a Municipal Corporation, Town of Delton, an unincorporated Township, and Tommy Bartlett, Inc., an Illinois Corporation, Defendants-Respondents. |
| Court | Wisconsin Court of Appeals |
Review Denied.
Robert B. McConnell, Asst. Atty. Gen. (argued), for plaintiff-appellant; Bronson C. La Follette, Atty. Gen., on brief.
Francis R. Bannen and Francis R. Bannen, S.C., Wisconsin Dells, for defendant-respondent Village of Lake Delton.
Robert L. Greenhalgh and Greenhalgh, Jenks & Dithmar, Baraboo, submitted on brief, for defendant-respondent Town of Delton.
Phillip Owens and Rogers & Owens, Portage (argued), for defendant-respondent Tommy Bartlett, Inc.; Ralph J. Ehlinger, Dennis L. Fisher and Hoyt, Greene & Meissner, S.C., Milwaukee, (argued).
Before GARTZKE, P. J., and BABLITCH and DYKMAN, JJ.
This is an appeal from a judgment of the circuit court for Sauk County dismissing the state's complaint for declaratory and injunctive relief. The suit was brought on behalf of the Department of Natural Resources (DNR) to enjoin the enforcement of an ordinance regulating the use of Lake Delton. The issues on appeal are whether the ordinance violates the public trust doctrine and the Wisconsin or federal constitutions, and whether it was enacted within the scope of the pertinent statutory authority.
The respondents Village of Lake Delton (village) and Town of Delton (town) have enacted an ordinance which they contend is necessary and reasonable to protect a particular historical use of Lake Delton, upon the continuation of which their economies and those of surrounding tourist-catering communities depend. The use is the presentation of public water ski exhibitions, which have attracted many thousands of tourists to the area each summer for many years.
In effect, the ordinance "zones" a small area of Lake Delton which has been used for public water ski exhibitions performed by respondent Tommy Bartlett Water Show, Inc. (Bartlett) for more than 24 years, and provides for the exclusive use of that area by water exhibition licensees during the times specified in the licenses. The area is unrestricted during all other times. To date, only one such license has been applied for or granted. That license was issued by the municipalities to Bartlett. The license grants Bartlett the exclusive use of the restricted area during three 50-minute periods per day during the summer months, which are the times traditionally consumed by the performances.
The state contends that the ordinance is a "scheme to sell" Lake Delton to a private commercial enterprise, and that its prohibition against uses other than the licensee's during the specified times destroys public rights in the area, in violation of the public trust doctrine. It also contends that the ordinance was enacted without statutory authority.
The respondents contend that the ordinance represents a miniscule and necessary intrusion on some public rights in the zoned area in order to preserve the safety, legality and continuing existence of a use for which a great public demand has been demonstrated, and which will be destroyed if the ordinance falls. It cites as its statutory authority sec. 30.77(3), Stats., which empowers municipalities to enact local boating regulations under certain conditions discussed later in this opinion, and sec. 61.34(1), which embodies the general grant of police powers to villages. 1
The constitutional and statutory issues presented by this appeal intertwine, though they are legally distinct. For the sake of clarity, we will first summarize the facts leading to the enactment of the ordinance, most of which have been stipulated. We will then examine the design of the ordinance, and address the constitutional and statutory issues in that order.
Lake Delton is an artificial lake located wholly within the boundaries of the village and town, both in Sauk County, Wisconsin. It has a surface area of 254 acres, and a maximum depth of 16 feet. The lake is within the tourist area of Baraboo, Wisconsin Dells and Devils Lake. This area attracts a great number of tourists during the summer. During those months Lake Delton is used heavily for a variety of recreational purposes.
The village and town have a combined population of approximately 2,141 permanent residents. A large number of primarily seasonal commercial establishments are located along the shoreline of Lake Delton. These include resorts, water craft rentals, amphibious tours, a sea plane facility providing plane rides over the area, and a water ski exhibition establishment owned and operated by Bartlett.
Bartlett owns and rents land on the northerly shore of a small natural bay or "finger" of Lake Delton. The average depth of this bay is three feet. The Bartlett water show has been performed daily within the bay every summer season since 1953. Bartlett maintains bleachers, a stage, a pier, a dock, lighting equipment, a motel and a restaurant on this land. It also maintains two wooden water ski jumps in the bay, which are located approximately 60 and 85 feet, respectively, from shore.
The Bartlett Water Show is the second most popular tourist attraction in the Wisconsin Dells-Lake Delton area. It presents three 50-minute shows each day during the summer season, at 1:00, 5:00 and 8:30 p. m. In 1975 approximately 220,000 persons paid between $2.25 and $6.50 to watch performances from bleachers on land owned by Bartlett adjacent to the exhibition area. The testimony established that nonpaying viewers were able to watch the performances from other areas of the lake and shoreline and did so regularly. The average daily attendance of paying patrons was 2,600, with an average of 1,500 attending the 8:30 p. m. performance. The gross revenue for that season was over $900,000. In 1976, the number of paying viewers was over 235,000, and the gross revenue was over $1,000,000. In 1975, Bartlett paid Wisconsin sales taxes of over $36,000 and substantial local property taxes.
The show consists of synchronized acrobatics and "trick" water skiing by paid performers. The show regularly includes the operation of high horsepower motor boats which tow between one and five performers at speeds ranging from 16 to 40 miles per hour. The wooden jumps are used for long and short distance trick jumping by performers in groups of as many as four persons. The performers use ski tows between 60 and 75 feet in length. The jumps are also used by high horsepower motor boats which leap into the air by running up the jumps.
The parties agree, and the trial court found, that the presence of boats or other obstructions in the performance area during the show would be hazardous for performers and non-performers alike. Their presence would also render the performances unlawful, since motor boats would pass within 100 feet of "other users" in violation of state boating regulations contained in secs. 30.66(3), 30.68(5), and 30.69(3), Stats.
On July 4, 1975, five individuals positioned two boats near the jumps used in the show and refused to leave on request of Bartlett employees and law enforcement officers. As a result, the show was delayed for over an hour. The individuals were ultimately arrested for disorderly conduct. This incident received considerable statewide publicity, as did the subsequent lawsuit they filed in federal court claiming violation of their constitutional rights.
The incident prompted a meeting between representatives of the village and Bartlett to discuss actual and potential conflicts between the show and other persons using the lake. Subsequent to the meeting, the village and town drafted a proposed ordinance regulating the use of Lake Delton and submitted it to the DNR for an "advisory review" pursuant to sec. 30.77, Stats. The DNR responded by letter dated November 4, 1975, which contained several criticisms of the ordinance, and made suggestions for changes.
Second and third drafts of the ordinance, incorporating the suggestions, were submitted to the DNR. By letter dated February 16, 1976, the DNR stated that the third version of the ordinance appeared consistent with the applicable statutes. This version was enacted by the village on April 12, 1976 and by the town on May 4, 1976. It became effective on May 12, 1976. On that date Bartlett applied for and was granted a license to operate a water ski exhibition show in the restricted area specified in the ordinance. The license granted Bartlett the exclusive use of the area during three 50-minute periods at 1:00, 5:00, and 8:30 p. m. each day from approximately May 27 through September 17 of the years 1976 through 1979. Pursuant to the ordinance, Bartlett pays an annual license fee of $100.
By letter dated May 20, 1976, the DNR withdrew the findings contained in its letter of February 16, stating that it had re-reviewed the ordinance because of "the recent public controversy" concerning it, and had concluded that "the grant of exclusive rights to use a portion of Lake Delton to a licensee . . . does not fully recognize the rights of citizens of the State to navigate on Lake Delton." The letter asserted, without specifying why, that the ordinance was inconsistent with the statutes. It also stated:
(T)he ordinance as presently drafted raises constitutional issues concerning the authority of a municipality to establish exclusive use zones for certain classes of activities and for charging of a fee for utilization of such an exclusive use zone.
This action for declaratory judgment was commenced at the request of the DNR, on May 21, 1976, the day after the date of its letter.
Trial was held on March 28, 1977. Judgment was entered February 27, 1978, declaring the ordinance to be valid and constitutional and...
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