The SCOW docket: Michael Anderson v. Town of Newbold

Note: We are crunching Supreme Court of Wisconsin decisions down to size. The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The "upshot" and "background" sections do not count as part of the 10 paragraphs because of their summary and very necessary nature. We've also removed citations from the opinion for ease of reading, but have linked to important cases cited or information about them.  ​

This case is a big deal in some circles. An amicus curiae brief was filed on behalf of the 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.

The Wisconsin Towns Association filed an amicus, as did Wisconsin Realtors Association and Wisconsin Builders Association (jointly).

​The full opinion is here.

Majority: Justice Ann Walsh Bradley (19 pp.), joined by Justices Patience Roggensack, Annette Ziegler, Rebecca Dallet, and Jill Karofsky.

Dissent: Justice Brian Hagedorn (14 pp.),  joined by Justice Rebecca Grassl Bradley.

Walsh Bradley

The upshot

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....

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.

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). 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.

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Background

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. 

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 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.

Anderson sought certiorari review of the Town's decision in the circuit court....Anderson argued that the Town of Newbold ordinance is invalid because it is more restrictive than state standards.

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..."It is not a zoning ordinance...at all; instead, it is a subdivision ordinance..." 

​Anderson appealed, and the court of appeals affirmed the circuit court, upholding the Town's denial of Anderson's proposed subdivision....

The guts

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 arise from the fact that shorelands abut navigable waters, the beds of which are held in trust by the State for all of its citizens....

Because shorelands present unique considerations, they are treated differently for purposes of zoning. The legislature has specifically stated that shoreland zoning regulations are "in the public interest...."

The essential question posed in this case is whether Town of Newbold Ordinance 13.13 is a zoning ordinance or a subdivision ordinance. In other words, we must determine the source of the authority under which the ordinance was passed. 

To determine whether the Town of Newbold ordinance at issue here is a zoning ordinance, we apply the Zwiefelhofer framework. Our analysis of the Zwiefelhofer factors is framed by the statutory mandate to liberally construe subdivision ordinances in the Town's favor. Specifically, (state statute) provides that "[t]his section and any ordinance adopted pursuant thereto shall be liberally construed in favor of the municipality, town or county and shall not be deemed a limitation or repeal of any requirement or power granted or appearing in this chapter or elsewhere, relating to the subdivision of lands." 

Pursuant to the Zwiefelhofer framework, and through the lens of the required liberal construction, it is apparent that the Town's ordinance is not a zoning ordinance. Most importantly, Town of Newbold Ordinance 13.13 has nothing to do with the use of land. It says nothing of how Anderson can use his land, only that he cannot split into the portion he seeks. Indeed, the ordinance addresses minimum lot size, an area that this court has recognized can be addressed in both the zoning and subdivision contexts. 

Second, the Town of Newbold ordinance does not divide the land into any type of zone or district. Although it contains different lot size requirements for areas bordering on various lakes within the Town, this does not make it a zoning ordinance. The characteristics of a zoning ordinance recognized by the Zwiefelhofer court indicate that the hallmark of a zoning ordinance is some type of use restriction....No such restriction is present here.

Driving the determination in the present case are the first two Zwiefelhofer factors——division of a geographic area into zones or districts and the allowance or prohibition of certain uses within those zones. ("Some characteristics, under the circumstances of the case, may be more significant than others."). We need not exhaustively analyze the remaining Zwiefelhofer factors because they presuppose that the ordinance in question regulates land use in some way. As stated, Town of Newbold Ordinance 13.13 does not support such a presupposition. 

Because it is not a zoning ordinance, the restrictions on Town enactment of zoning ordinances set by (Wisconsin statute) do not apply.

​We therefore conclude that the Town ordinance at issue is a permissible exercise of the Town's subdivision authority pursuant to (Wisconsin law). 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. 

Hagedorn

The dissent

While I agree that the ordinance in question is a subdivision ordinance and that it is not subject to the restriction in Wis. Stat. § 59.692(1d)(a), I disagree with the ultimate conclusion because these are the right answers to the wrong questions. The relevant and dispositive statutory provision in this case is § 59.692(2)(b). It provides that the more restrictive provisions of any kind of town ordinance relating to shorelands, including a subdivision ordinance, only have effect if the ordinance creating those more restrictive provisions predated the county shoreland zoning ordinance. § 59.692(2)(b). Therefore, while towns have some zoning and subdivision authority over shorelands, their power to regulate more restrictively than provisions in a county shoreland zoning ordinance is preempted unless those more restrictive provisions predate the county shoreland zoning ordinance. The Town does not contend § 59.692(2)(b) operates to save the more restrictive provision at issue here, and therefore it acted contrary to law in relying on its ordinance to deny Anderson's proposed land division. For these reasons, I respectfully dissent.

Wisconsin Stat. § 59.692(2)(b) provides: "If an existing town ordinance relating to shorelands is more restrictive than an ordinance later enacted under this section affecting the same shorelands, it continues as a town ordinance in all respects to the extent of the greater restrictions, but not otherwise." This provision means several things. First, a "town ordinance relating to shorelands" that predates a later-enacted county shoreland zoning ordinance is, with one exception, no longer in effect. A county shoreland zoning ordinance preempts the preexisting town ordinance regulating shorelands. Second, the only exception to this rule is that the more restrictive provisions of a preexisting town ordinance remain in effect. Third, by necessary implication, more restrictive provisions in a later-enacted town ordinance "relating to shorelands" may not take effect. Only the more restrictive provisions of preexisting town ordinances are grandfathered in.

These conclusions are dispositive in this case because this section does not limit itself to town zoning ordinances; it applies to any "town ordinance relating to shorelands." The plain language includes ordinances of any type, including subdivision ordinances. 

Wisconsin Admininistrative Code § NR 115.06 places additional review duties on DNR to ensure any county shoreland zoning or subdivision ordinance complies with Wis. Stat. § 59.692, including by issuing a certificate of compliance and providing advice and assistance to counties. There is simply no reason to think the legislature meant to require county subdivision ordinances to comply with and go no further than the county shoreland zoning ordinance, only to have them superseded by a town subdivision ordinance....

​The practical effect of the majority's approach is to read the shoreland zoning restrictions out of the statutes, at least as applied to towns. If towns can do via subdivision authority exactly the same things that the state says they cannot do, the state's legislative policy choice to limit the power of towns and require some baseline uniformity in county shoreland zoning ordinances over specific matters becomes a dead letter. That is an absurd result; this is not the best way to read the governing law.

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