Sterlingworth Condominium Ass'n, Inc. v. State, Dept. of Natural Resources

• Decision Date: 30 October 1996
• Docket Number: No. 95-3526,95-3526
• Citation: 556 N.W.2d 791,205 Wis.2d 710
• Parties: STERLINGWORTH CONDOMINIUM ASSOCIATION, INC., a Wisconsin corporation, Petitioner-Appellant, v. STATE of Wisconsin, DEPARTMENT OF NATURAL RESOURCES, Respondent-Respondent.
• Court: Wisconsin Court of Appeals

Page 791

556 N.W.2d 791

205 Wis.2d 710

STERLINGWORTH CONDOMINIUM ASSOCIATION, INC., a Wisconsin corporation, Petitioner-Appellant, v. STATE of Wisconsin, DEPARTMENT OF NATURAL RESOURCES Respondent-Respondent.

No. 95-3526.

Court of Appeals of Wisconsin.

Submitted on Briefs Sept. 16, 1996.

Opinion Released Oct. 30, 1996.

Opinion Filed Oct. 30, 1996.

[205 Wis.2d 717] On behalf of the petitioner-appellant, the cause was submitted on the briefs of Cheryl A. Mick, S.C. and James P. Martin, S.C. of Lake Geneva.

On behalf of the respondent-respondent, the cause was submitted on the briefs of James E. Doyle, Attorney General, and Ann M. Zimmerman, Assistant Attorney General.

Before ANDERSON, P.J., and BROWN and NETTESHEIM, JJ.

ANDERSON, Presiding Judge.

This case arises from the Wisconsin Department of Natural Resources' (DNR) issuance of a pier permit that expressly limited the number of boat slips Sterlingworth Condominium Association, Inc. (Sterlingworth) may construct or maintain to twenty-five. Sterlingworth challenges the administrative law judge's determination, upheld by the circuit court, that the DNR had the authority to issue the permit; that the permit is supported by substantial evidence in the record; and that the permit condition is reasonable. Because we find no error in the statutory or evidentiary issues raised by Sterlingworth, we affirm the order in its entirety.

Sterlingworth owns property which abuts 331 feet of frontage on Mill Lake and 429 feet of frontage on Sterlingworth Bay in the town of LaGrange in Walworth County. Prior to the condominium development, Sterlingworth Inn operated as a resort, including a hotel, restaurant and meeting center. The former inn was converted to condominiums in 1990. The lakefront plan contemplated thirty-four pier slips which would utilize existing structures and would require the construction of additional structures. ¹

On February 26, 1992, Sterlingworth submitted an application with the DNR for a permit, pursuant to § 30.12, STATS. On May 1, Liesa K. Nesta, a DNR water management specialist, conducted a site inspection of the Sterlingworth property. In a letter dated On August 30, 1993, the DNR issued findings of fact, conclusions of law and permit (the permit) to Sterlingworth. The permit authorized additional crib pier placement for the 107-foot pier on Mill Lake. The permit also approved all noncribbed piers which existed on May 1, 1992, for a total of twenty-five pier slips. The number of pier slips could not be expanded without an amendment to the permit by the DNR.

May 13, 1992, Nesta expressed the DNR's concern with the number of proposed piers and suggested sixteen slips as a more reasonable number. After several discussions with DNR staff, Sterlingworth filed an amended application on March 3, 1993. Sterlingworth sought to maintain an existing pier 107 feet in length, relocate three existing slip cribs and add three new slip cribs. ²

On September 28, 1993, Sterlingworth submitted a petition for review of the permit pursuant to § 227.42, STATS. A contested case hearing was held on October 5, and November 1, 1994, before Administrative Law Judge Mark Kaiser (ALJ), who affirmed the DNR's permit in an opinion dated December 9, 1994. ³ Sterlingworth next sought review in the circuit court for Walworth County. On August 25, 1995, the circuit court affirmed the DNR's findings. Sterlingworth appeals.

STANDARD OF REVIEW

When an appeal is taken from a circuit court order affirming an agency decision, we review the decision of the agency, not the circuit court. Barnes v. DNR, 178 Wis.2d 290, 302, 506 N.W.2d 155, 160 (Ct.App.1993), aff'd, 184 Wis.2d 645, 516 N.W.2d 730 (1994). Although we do not defer to the opinion of the circuit court, that court's reasoning may assist us. Id. Review of an agency's decision is confined to the record. Section 227.57(1), STATS.

The reviewing court must affirm the agency's action "[u]nless the court finds a ground for setting aside, modifying, remanding or ordering agency action or ancillary relief under a specified provision of [§ 227.57, STATS.]." Section 227.57(2), STATS. Sections 227.57(4)-(8) list instances where a reviewing court may set aside or modify an agency action or remand the case to the agency for further action, keeping in mind that due weight is accorded to the agency's decision. Sterlingworth challenges the DNR's permit under three of these provisions.

Sterlingworth contends that the DNR exceeded its statutory authority in the issuance of Sterlingworth's permit contrary to § 227.57(5), STATS.; that the DNR's permit is not supported by substantial evidence in the record as required under § 227.57(6); and that the permit condition limiting Sterlingworth to twenty-five piers is arbitrary and capricious contrary to § 227.57(8). Essentially, Sterlingworth questions the inconsequential effect nine additional pier slips will have on the public's interest in both Mill Lake and Sterlingworth Bay, especially in comparison to the economic loss Sterlingworth will suffer without the full thirty-four boat slips.

Although nine additional boat slips may seem inconsequential to a proprietor such as Sterlingworth, we approach it differently. Whether it is one, nine or ninety boat slips, each slip allows one more boat which inevitably risks further damage to the environment and impairs the public's interest in the lakes. The potential ecological impacts include direct impacts on water quality and sediment quality alteration, as well as direct and indirect influences on flora and fauna. For this very reason, the consideration of "cumulative A little fill here and there may seem to be nothing to become excited about. But one fill, though comparatively inconsequential, may lead to another, and another, and before long a great body of water may be eaten away until it may no longer exist. Our navigable waters are a precious natural heritage; once gone, they disappear forever. Although the legislature has constitutionally permitted some structures and deposits in navigable waters, it permitted them under sec. 30.12(2)(a), STATS., only if the Public Service Commission [now the DNR] found that 'such structure does not materially obstruct navigation ... and is not detrimental to the public interest.'

impact" must be taken into account. As was explained by the supreme court:

Hixon v. Public Serv. Comm'n, 32 Wis.2d 608, 631-32, 146 N.W.2d 577, 589 (1966). In our opinion, the DNR, in limiting Sterlingworth's permit to twenty-five boat slips, carried out its assigned duty as protector of the overall public interest in maintaining one of Wisconsin's most important natural resources. See id. at 632, 146 N.W.2d at 589. We now turn to Sterlingworth's arguments.

DISCUSSION

Erroneous Interpretation of Law

Sterlingworth first argues that the DNR exceeded the scope of its permitting authority, under § 30.12, STATS., by limiting Sterlingworth's rights, as authorized by § 30.13, STATS., and that the ALJ failed to place the burden of proof on the DNR to establish Sterlingworth's noncompliance with the requirements of § 30.13. This argument requires us to construe §§ 30.12 and 30.13. The construction of a statute when the facts are not disputed presents an issue of law subject to our independent review under § 227.57(5), STATS. See Ellingsworth v. Swiggum, 195 Wis.2d 142, 147, 536 N.W.2d 112, 114 (Ct.App.1995). We first consider the language of the statute to determine whether the intent of the legislature is clear on its face. See id.

It is well established that the state holds the beds underlying navigable waters in trust for all of its citizens. Muench v. Public Serv. Comm'n, 261 Wis. 492, 501, 53 N.W.2d 514, 517 (1952). The legislature, in furtherance of that trust, has declared it to be unlawful to place any structure on the bed of a navigable water unless a permit has been granted by the DNR, or unless the structure is otherwise authorized by statute. Cassidy v. DNR, 132 Wis.2d 153, 158, 390 N.W.2d 81, 83 (Ct.App.1986). Sections 30.12 and 30.13, STATS., specify the conditions under which a riparian owner may build a pier without a permit. See Ellingsworth, 195 Wis.2d at 147-48, 536 N.W.2d at 114.

The plain language of § 30.12(1), STATS., states that "unless a permit has been granted by the [DNR] pursuant to statute or the legislature has otherwise authorized structures or deposits in navigable waters, it is unlawful: (a) to deposit any material or to place any structure upon the bed of any navigable water." The DNR may "grant to any riparian owner a permit to build or maintain for the owner's use a structure otherwise prohibited under sub. (1), if the structure ... is not detrimental to the public interest." Section 30.12(2).

Section 30.13, STATS., is equally clear. Under § 30.13(1)(a), the legislature authorized a riparian owner to construct a pier in a navigable waterway without obtaining a permit under § 30.12, STATS., if the "pier does not interfere with public rights in navigable waters." ⁴ However, a pier which interferes with public rights in navigable waters constitutes an unlawful obstruction of navigable waters unless a permit is issued for the pier under § 30.12. Section 30.13(4)(a).

Both §§ 30.12 and 30.13, STATS., prohibit structures that are detrimental to the public interest. ⁵ Both statutes authorize the DNR to weigh the relevant policy factors which include "the desire to preserve the natural beauty of our navigable waters, to obtain the fullest public use of such waters, including but not limited to navigation, and to provide for the convenience of riparian owners." Hixon, 32 Wis.2d at 620, 146 N.W.2d at 583. In addition, any person who constructs or places any structure in navigable waters in violation of §§ 30.12 or 30.13 may be fined up to $500 to $1000 per day for each offense. Section 30.15(1)(d), STATS. "Statutes relating to the same subject matter are to be construed together and...