Michael Anderson v. Town of Newbold

2021 WI 6

• Court: Wisconsin Supreme Court
• Decided: January 27, 2021
• Docket: 2018AP000547
• Status: Published

Opinion

2021 WI 6

SUPREME COURT OF WISCONSIN CASE NO.: 2018AP547

COMPLETE TITLE: State of Wisconsin ex rel. Michael Anderson, Petitioner-Appellant-Petitioner, v. Town of Newbold, Respondent-Respondent.

REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 389 Wis. 2d 309,935 N.W.2d 856 PDC No:2109 WI App 59 - Published

OPINION FILED: January 27, 2021 SUBMITTED ON BRIEFS: ORAL ARGUMENT: October 1, 2020

SOURCE OF APPEAL: COURT: Circuit COUNTY: Oneida JUDGE: Patrick F. O’Melia

JUSTICES: ANN WALSH BRADLEY, J., delivered the majority opinion of the Court in which ROGGENSAKC, C.J., ZIEGLER, DALLET, and KAROFSKY, JJ., joined. HAGEDORN, J., filed a dissenting opinion, in which REBECCA GRASSL BRADLEY, J., joined. NOT PARTICIPATING:

ATTORNEYS:

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.

2 2021 WI 6

NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2018AP547 (L.C. No. 2017CV55)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin ex rel. Michael Anderson,

Petitioner-Appellant-Petitioner, FILED v. JAN 27, 2021 Town of Newbold, Sheila T. Reiff Respondent-Respondent. Clerk of Supreme Court

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.

REVIEW of a decision of the Court of Appeals. Affirmed.

¶1 ANN WALSH BRADLEY, J. 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

1State ex rel. Anderson v. Town of Newbold, 2019 WI App 59, 389 Wis. 2d 309, 935 N.W.2d 856 (affirming order of circuit court for Oneida County, Patrick F. O'Melia, Judge). No. 2018AP547

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

2 All subsequent references to the Wisconsin Statutes are to the 2017-18 version unless otherwise indicated.

2 No. 2018AP547

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

3 Wisconsin Stat. § 59.692(1d)(a) provides: "An ordinance enacted under this section may not regulate a matter more restrictively than the matter is regulated by a shoreland zoning standard."

3 No. 2018AP547

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.

4 No. 2018AP547

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

5 No. 2018AP547

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.,

6 No. 2018AP547

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 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. Wis. Stat. § 281.31(1); Movrich

v. Lobermeier, 2018 WI 9, ¶25, 379 Wis. 2d 269, 905 N.W.2d 807;

7 No. 2018AP547

R.W. Docks & Slips v. State, 2001 WI 73, ¶19, 244 Wis. 2d 497,

628 N.W.2d 781.

¶22 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." Wis. Stat. § 281.31(1).4 In a full

statement of policy, § 281.31(1) sets forth:

To aid in the fulfillment of the state's role as trustee of its navigable waters and to promote public health, safety, convenience and general welfare, it is declared to be in the public interest to make studies, establish policies, make plans and authorize municipal shoreland zoning regulations for the efficient use, conservation, development and protection of this state's water resources. The regulations shall relate to lands under, abutting or lying close to navigable waters. The purposes of the regulations shall be to further the maintenance of safe and healthful conditions; prevent and control water pollution; protect spawning grounds, fish and aquatic life; control building sites, placement of structure and land uses and reserve shore cover and natural beauty. ¶23 "The basic purpose of a shoreland zoning ordinance is

to protect navigable waters and the public rights therein from

the degradation and deterioration which results from

uncontrolled use and development of shorelands." Forest Cnty.

4Wisconsin has long been a national leader in shoreland protection through zoning. The passage of the Navigable Waters Protection Law, Wis. Stat. § 281.31, made Wisconsin the "first state to enact zoning legislation specifically designed to protect public water resources through the regulation of land use activities on contiguous shorelands." Tracy K. Kuczenski, Wisconsin's Shoreland Management Program: An Assessment With Implications For Effective Natural Resources Management and Protection, 1999 Wis. L. Rev. 273, 274 (1999).

8 No. 2018AP547

v. Goode, 219 Wis. 2d 654, 678, 579 N.W.2d 715 (1998) (citation

omitted); see Just v. Marinette Cnty., 56 Wis. 2d 7, 16-17, 201

N.W.2d 761 (1972). Shoreland zoning also serves to balance the

public and private interests in shoreland areas. Paul G. Kent,

On the Waterfront: New Shoreland Zoning Laws, 90 Wis. Law. 14,

15 (Jan. 2017).

¶24 Although general zoning authority is granted to both

counties and towns, see Wis. Stat. §§ 59.69, 60.61, the

authority to enact zoning ordinances specific to shorelands lies

with counties alone.5 Wis. Stat. § 59.692(1c); see Hegwood v.

Town of Eagle Zoning Bd. of Appeals, 2013 WI App 118, ¶9, 351

Wis. 2d 196, 839 N.W.2d 111;6 Herman v. Cnty. of Walworth, 2005

5 For purposes of Wis. Stat. § 59.692, "shorelands" are defined as:

[T]he area within the following distances from the ordinary high-water mark of navigable waters, as defined under s. 281.31(2)(d):

1. One thousand feet from a lake, pond or flowage. If the navigable water is a glacial pothole lake, this distance shall be measured from the high-water mark of the lake.

2. Three hundred feet from a river or stream or to the landward side of the floodplain, whichever distance is greater.

Wis. Stat. § 59.692(1)(b). 6 In Hegwood, the court of appeals determined that "[t]he plain language of the statutory scheme evinces that by enactment of Wis. Stat. §§ 281.31 and 59.692, the legislature intended that towns would not have authority to regulate shorelands except where such regulation fell within the language of § 59.692(2)(b)," a grandfather clause that no party argues applies here. Hegwood v. Town of Eagle Zoning Bd. of Appeals, 2013 WI App 118, ¶16, 351 Wis. 2d 196, 839 N.W.2d 111. 9 No. 2018AP547

WI App 185, ¶18, 286 Wis. 2d 449, 703 N.W.2d 720. Section

59.692(1c) provides in relevant part: "To effect the purposes

of s. 281.31 and to promote the public health, safety and

general welfare, each county shall zone by ordinance all

shorelands in its unincorporated area. The requirements in this

ordinance shall relate to the purposes in s. 281.31(1)."

¶25 A county shoreland zoning ordinance enacted pursuant

to Wis. Stat. § 59.692 cannot be more restrictive than the

standards that have been enacted at the state level: "An

ordinance enacted under this section may not regulate a matter

more restrictively than the matter is regulated by a shoreland

zoning standard."7 § 59.692(1d)(a). The previous sentence,

however, "does not prohibit a county from enacting a shoreland

zoning ordinance that regulates a matter that is not regulated

by a shoreland zoning standard." § 59.692(1d)(b).

As the court of appeals in the present case observed, subsequent to the Hegwood decision the legislature passed 2015 Wis. Act 41. See Anderson, 389 Wis. 2d 309, ¶11 n.2. The court of appeals stated that this enactment "appear[s] to modify our decision in Hegwood to clarify that although towns do not have authority to enact a zoning ordinance that is specific to shoreland areas, they may still enact and apply a general zoning ordinance that applies in both shoreland and non-shoreland areas." Id. (citing Wis. Stat. §§ 60.61(3r) and 60.62(5)). Act 41 does not affect our analysis and we need not interpret or further discuss the provisions it created. 7A "shoreland zoning standard" is defined as "a standard for ordinances enacted under this section that is promulgated as a rule by the department [of natural resources]." Wis. Stat. § 59.692(1)(c); see Wis. Admin. Code § NR 115.05 (Jan. 2017).

10 No. 2018AP547

¶26 As stated, zoning ordinances are not the only means by

which governmental entities can engage in community planning.

The legislature has additionally given subdivision authority to

certain entities.

¶27 The authority to enact subdivision regulations arises

from Wis. Stat. § 236.45. Setting forth a litany of purposes in

this statutory section, the legislature provided:

The purpose of this section is to promote the public health, safety and general welfare of the community and the regulations authorized to be made are designed to lessen congestion in the streets and highways; to further the orderly layout and use of land; to secure safety from fire, panic and other dangers; to provide adequate light and air, including access to sunlight for solar collectors and to wind for wind energy systems; to prevent the overcrowding of land; to avoid undue concentration of population; to facilitate adequate provision for transportation, water, sewerage, schools, parks, playgrounds and other public requirements; to facilitate the further resubdivision of larger tracts into smaller parcels of land. The regulations provided for by this section shall be made with reasonable consideration, among other things, of the character of the municipality, town or county with a view of conserving the value of the buildings placed upon land, providing the best possible environment for human habitation, and for encouraging the most appropriate use of land throughout the municipality, town or county. § 236.45(1).

¶28 To accomplish the purposes listed in subsec. (1), Wis.

Stat. § 236.45(2)(ac) grants to "any municipality, town or

county that has established a planning agency" the authority to

"enact ordinances governing the subdivision or other division of

land that are more restrictive than the provisions of this chapter, except that no ordinance may modify in a more

11 No. 2018AP547

restrictive way time limits, deadlines, notice requirements, or

other provisions of this chapter that provide protections for a

subdivider." Such ordinances "may include provisions regulating

divisions of land into parcels larger than 1 1/2 acres or

divisions of land into less than 5 parcels." § 236.45(2)(am).

¶29 Although they often work together, zoning and

subdivision regulations provide separate and distinct means of

regulating the development of land. In Storms, the court

considered the question of whether the Town of Sun Prairie had

authority under Wis. Stat. § 236.45 to adopt an ordinance

regulating minimum lot size. 110 Wis. 2d at 60. Answering in

the affirmative, the court explained that lot size regulation

furthers several of the policy goals of ch. 236, including

orderly layout and use of land, preventing overcrowding of land,

avoiding undue concentration of population, providing the best

possible environment for human habitation, encouraging the most

appropriate use of land and providing for adequate light and

air. Id. at 65. ¶30 The court further addressed the relationship between

zoning and subdivision, indicating that both may deal with

minimum lot sizes. Id. at 67. There are areas of overlap

between the two powers, but there are also key differences.

Both are aimed at the orderly development of a community. Though zoning is aimed at controlling the uses of land and existing resources, subdivision regulations are designed to control the division of land and to assure that such developments thereon are designed to accommodate the needs of the occupants of the subdivision.

12 No. 2018AP547

Id. at 68 (quotation omitted). "The purpose of zoning is to

provide an overall comprehensive plan for land use, while

subdivision regulations govern the planning of new streets,

standards for plotting new neighborhoods, and the protection of

the community from financial loss due to poor development." Id.

(quotation omitted).

¶31 In other words, zoning and subdivision are

"complementary land planning devices. Subdivision control is

concerned with the initial division of undeveloped land, while

zoning more specifically regulates the further use of this

land." Id. "The fact that minimum lot size may also be

regulated by zoning ordinances does not detract from the power

of local governments to exercise such power pursuant to ch. 236,

Stats." Id. at 70.

¶32 Thus, Storms stands for the proposition that zoning

and subdivision regulation are separate, yet sometimes

overlapping, powers. See also Wood v. City of Madison, 2003 WI

24, ¶23, 260 Wis. 2d 71, 659 N.W.2d 31 (recognizing a similarity between the purposes of zoning and subdivision plat approval

authority). The Storms court was also careful to delineate that

the two powers stem from separate enabling legislation. "As

long as the regulation is authorized by and within the purposes

of ch. 236, the fact that it may also fall under the zoning

power does not preclude a local government from enacting the

regulation pursuant to the conditions and procedures of ch.

236." Storms, 110 Wis. 2d at 70-71.

13 No. 2018AP547

B

¶33 With this necessary background in hand, we examine

next Anderson's specific arguments.

¶34 Anderson contends that the Town of Newbold Ordinance

13.13 is a zoning ordinance in disguise that impermissibly

regulates shorelands in a manner contrary to Wis. Stat.

§ 59.692. He observes a dissonance in a statutory scheme that

allows the Town to regulate shoreland property as an exercise of

subdivision authority when it would be prohibited from doing so

by means of its zoning authority.

¶35 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.

¶36 This court has previously offered guidance and a

framework of analysis for the determination of whether an

ordinance springs from a governmental entity's zoning authority.

See Zwiefelhofer v. Town of Cooks Valley, 2012 WI 7, 338 Wis. 2d 488, 809 N.W.2d 362. In Zwiefelhofer, the court

addressed whether the Town of Cooks Valley's nonmetallic mining

ordinance is a zoning ordinance so as to require approval of the

county board. Id., ¶2.

¶37 In determining that the ordinance at issue was not a

zoning ordinance, the court did not set a bright-line rule.

Id., ¶8. Instead, it used a functional approach where it

"catalogue[d] the characteristics of traditional zoning ordinances and the commonly accepted purposes of zoning 14 No. 2018AP547

ordinances. We then compare[d] the characteristics and purposes

of the Ordinance to the characteristics and purposes of

traditional zoning ordinances to determine whether the Ordinance

should be classified as a zoning ordinance." Id.

¶38 In conducting such an analysis, "[n]o single

characteristic or consideration is dispositive of the question

whether the Ordinance is a zoning ordinance." Id., ¶9. Nor is

the conclusion a result of a simple tally of the similarities

and differences. Indeed, a court may not "simply add up the

number of similarities a challenged ordinance has to traditional

zoning ordinances or the number of differences a challenged

ordinance has from traditional zoning ordinances to determine

whether a challenged ordinance is a zoning ordinance." Id.

¶39 The analysis must be specific to the ordinance at

issue in the particular case. "Some characteristics, under the

circumstances of the case, may be more significant than others."

Id.

¶40 Characteristics of an ordinance that inform the determination of whether the ordinance is a zoning ordinance

include: (1) zoning ordinances typically divide a geographic

area into multiple zones or districts, id., ¶36; (2) within the

established districts or zones, certain uses are typically

allowed as of right and certain uses are prohibited, id., ¶38;

(3) zoning ordinances are traditionally aimed at directly

controlling where a use takes place as opposed to how it takes

place, id., ¶39; (4) traditionally classifying uses in general terms, zoning ordinances attempt to comprehensively address all 15 No. 2018AP547

possible uses in the geographic area, id., ¶40; (5) zoning

ordinances traditionally make a fixed, forward-looking

determination regarding what uses will be permitted as opposed

to case-by-case determinations, id., ¶41; and (6) traditional

zoning ordinances allow certain landowners whose land use was

legal prior to the adoption of the zoning ordinance to maintain

their land use despite its failure to conform to the ordinance.

Id., ¶42.

¶41 This list is not intended to be exhaustive. Id., ¶43.

As the Zwiefelhofer court recognized, "[m]any jurisdictions,

including Wisconsin, have certainly recognized the possibility

that an ordinance need not fit the traditional mold perfectly in

order to constitute zoning." Id. However, the characteristics

identified constitute the "heart of traditional zoning

ordinances." Id.

¶42 The Zwiefelhofer court further detailed both broad and

narrow purposes of zoning ordinances. Broadly, zoning

ordinances have the purpose of promoting the welfare of the community, regulating the growth and development of a city in an

orderly manner, conserving property values, and encouraging the

most appropriate use of land. Id., ¶¶45-46. These purposes

provide little assistance to the analysis, however, due to their

breadth and the fact that they "could apply to a far-reaching

range of planning and regulation undertaken by local

governments." Id., ¶46. More specific purposes of zoning

include confining certain classes of buildings and uses to

16 No. 2018AP547

certain localities and separating incompatible from compatible

land uses. Id., ¶¶47-48.

¶43 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, Wis. Stat.

§ 236.45(2)(b) 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." This court has recognized that

§ 236.45(2)(b) reserves to the Town "a broad area of discretion

in implementing subdivision control" and constitutes a "grant of

wide discretion which a municipality may exercise by ordinance

or appropriate resolution." City of Mequon v. Lake Estates Co.,

52 Wis. 2d 765, 774, 190 N.W.2d 912 (1971). ¶44 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. See Storms, 110 Wis. 2d at 70. 17 No. 2018AP547

¶45 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. See Zwiefelhofer,

338 Wis. 2d 488, ¶¶38-42. No such restriction is present here.

¶46 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. See id., ¶9 ("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. ¶47 Thus, pursuant to the Zwiefelhofer factors, Town of

Newbold Ordinance 13.13 is not a zoning ordinance. It does not

concern land use and it does not separate compatible and

incompatible land uses, which is a key purpose of a zoning

ordinance. See id., ¶48.

¶48 Because it is not a zoning ordinance, the restrictions

on Town enactment of zoning ordinances set by Wis. Stat.

§ 59.692 do not apply. Pursuant to § 59.692(1d), "[a]n ordinance enacted under this section may not regulate a matter 18 No. 2018AP547

more restrictively than the matter is regulated by a shoreland

zoning standard." Yet, the Town of Newbold ordinance at issue

was not "enacted under this section," as it is not a zoning

¶49 Instead, Ordinance 13.13 is a subdivision ordinance

enacted pursuant to Wis. Stat. § 236.45. As this court has

previously determined, just because an area may be susceptible

to regulation through zoning does not mean that regulation

through subdivision is precluded. Storms, 110 Wis. 2d at 70-71.

Indeed, lot size may be regulated by use of both zoning and

subdivision authority and there is nothing in ch. 236 to

indicate that shoreland areas are exempt from subdivision

regulation. For the reasons stated, the regulation at issue

here stems from subdivision authority and not zoning authority.

IV

¶50 We therefore conclude that the Town ordinance at issue

is a permissible exercise of the Town's subdivision authority

pursuant to Wis. Stat. § 236.45. 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

¶51 Accordingly, we affirm the decision of the court of

By the Court.—The decision of the court of appeals is

affirmed.

19 No. 2018AP547.bh

¶52 BRIAN HAGEDORN, J. (dissenting). This case

considers the interplay of two different local government

powers——the power to divide land and the power to zone——and even

more importantly, how these powers may or may not be exercised

by towns on shorelands. The majority's analysis turns on

whether the ordinance the Town of Newbold relied on to deny

Anderson's proposed land division is a zoning ordinance or a

subdivision ordinance. After concluding it is a subdivision

ordinance, the majority reasons that a town subdivision

ordinance is not subject to the restriction that ordinances

enacted under Wis. Stat. § 59.692 (2019-20)1——that is, county

shoreland zoning ordinances——"may not regulate a matter more

restrictively than the matter is regulated by a shoreland zoning

standard." § 59.692(1d)(a). In other words, the Town is

exercising subdivision authority, and § 59.692(1d)(a) does not

prohibit the Town from regulating more restrictively.

¶53 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

All subsequent references to the Wisconsin Statutes are to 1

the 2019-20 version.

1 No. 2018AP547.bh

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 its ordinance to deny Anderson's proposed land

division. For these reasons, I respectfully dissent.

I. BACKGROUND

¶54 The relevant facts are straightforward. Michael

Anderson owned a lakefront lot in the Town of Newbold with

358.43 feet of riparian frontage. He proposed dividing his lot

into two, with riparian frontage widths of 195 and 163.43 feet,

respectively. The county shoreline zoning ordinance requires a minimum riparian frontage width of 100 feet.2 The proposed

division therefore satisfied the requirements of the county

shoreline zoning ordinance. The Town, meanwhile, adopted an

ordinance that has a separate, more restrictive 225-foot minimum

riparian frontage width on the particular lake in question.

Town of Newbold Ordinance 13.13.02. On this basis, the Town

denied Anderson's proposed division.

2The county ordinance is not in the record, but the parties do not appear to disagree on this point.

2 No. 2018AP547.bh

¶55 On appeal of this decision, we must decide whether the

Town may enforce a minimum riparian frontage width more

restrictive than the riparian frontage width regulations in the

county shoreland zoning ordinance. It may not.

II. DISCUSSION

¶56 Anderson's claim is before us on a petition for

certiorari review under Wis. Stat. § 68.13(1). On certiorari,

this court's

review is limited to: (1) whether the board kept within its jurisdiction; (2) whether it proceeded on 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. Snyder v. Waukesha Cnty. Zoning Bd. of Adjustment, 74

Wis. 2d 468, 475, 247 N.W.2d 98 (1976). The specific challenge

here is whether the Town proceeded on a correct theory of law.

This rests on an interpretation of the statutory powers of

towns, which we review de novo. See Wood v. City of Madison,

2003 WI 24, ¶12, 260 Wis. 2d 71, 659 N.W.2d 31.

¶57 The legislature has given various powers and duties to

local government. This litigation concerns two of them: the

power to zone and the power to subdivide. These two powers are

separate, but complementary and overlapping land planning

devices. Town of Sun Prairie v. Storms, 110 Wis. 2d 58, 68-69,

327 N.W.2d 642 (1983). The specific question in this case concerns the extent to which towns may exercise their

3 No. 2018AP547.bh

subdivision powers on shorelands in ways that are more

restrictive than a county shoreland zoning ordinance enacted

under Wis. Stat. § 59.692.

A. General Statutory Background

¶58 The power to divide undeveloped land or larger parcels

of land into smaller parcels is of longstanding origins, even

predating Wisconsin statehood. See Stat. 1839, ch. 41, p. 159-

61. The legislature granted local governments this power in

Wis. Stat. § 236.45, extending it to "any municipality, town or

county." § 236.45(2)(ac). Provided those governmental entities

have a planning agency, they "may enact ordinances governing the

subdivision or other division of land." Id. Generally

speaking, the power to subdivide is broad and construed

liberally. § 236.45(2)(b) ("This 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.").

¶59 State law, however, treats navigable waters and their

shorelands with special care. Wisconsin Stat. § 281.31 of the

Wisconsin statutes is entitled, "Navigable waters protection

law."3 It explains that the regulation of shorelands is in

3Chapter 281 of the Wisconsin statutes governs water and sewage generally.

4 No. 2018AP547.bh

"fulfillment of the state's role as trustee of its navigable

waters." § 281.31(1). In particular, "it is declared to be in

the public interest" to "authorize municipal shoreland zoning

regulations," among other things. Id. The purposes of these

regulations include "control [of] building sites, placement of

structure and land uses and reserve shore cover and natural

beauty." Id.

¶60 Wisconsin Stat. § 281.31 points to a statewide scheme

for shoreland regulation. It directs the Department of Natural

Resources (DNR) to create "a comprehensive plan" for "municipal

ordinances regulating navigable waters and their shorelands,"

and to "prepare and provide to municipalities general

recommended standards and criteria for . . . navigable water

protection regulations." Wis. Stat. § 281.01(3); § 281.31(5),

(6). Subsection (7) mandates intergovernmental consultation and

cooperation with the goal of "voluntary uniformity of

regulations, so far as practicable." § 281.31(7). In other

words, the hope is that the state can work with municipalities to achieve as much uniformity in shoreland regulations statewide

as possible.

¶61 This section also tells us what it means by the

"regulations" it authorizes and discusses.

"Regulation" means ordinances enacted under [Wis. Stat. §§] 59.692, 61.351, 61.353, 62.23(7), 62.231, and 62.233 and refers to subdivision and zoning regulations which include control of uses of lands under, abutting, or lying close to navigable waters for the purposes specified in sub. (1), pursuant to

5 No. 2018AP547.bh

any of the zoning and subdivision control powers delegated by law to cities, villages, and counties. Wis. Stat. § 281.31(2)(e) (emphasis added). Each of the

enumerated statutes in this provision outline the power to zone

by ordinance in shorelands. Wisconsin Stat. §§ 61.351 and

61.353 discuss village shoreland zoning power, while Wis. Stat.

§§ 62.23(7), 62.231, and 62.233 govern city zoning power

generally and over shorelands. And of course, Wis. Stat.

§ 59.692 involves county shoreland zoning ordinances based on

statewide shoreland zoning standards.

¶62 Connecting these dots, regulations under Wis. Stat.

§ 281.31 refer to ordinances adopted under zoning provisions

"and refers to subdivision and zoning regulations which include

control of uses of lands under, abutting, or lying close to

navigable waters." § 281.31(2)(e) (emphasis added). The

reference to "subdivision" regulations here can only refer to

Wis. Stat. § 236.45 because that is where that power is located.

Thus, county and municipal regulations governing shorelands

include both subdivision and zoning regulations. ¶63 Lest the relevance of this be missed, Wis. Stat.

§ 281.31 is not an otherwise unrelated section that occasionally

references Wis. Stat. § 59.692. These two sections are

parallel, overlapping, and interdependent; one cannot be read

6 No. 2018AP547.bh

without the other.4 We know this because the text says so in

§ 281.13(8): "This section and [§§] 59.692 [and the village and

city shoreland zoning provisions] shall be construed together to

accomplish the purposes and objective of this section."

Multiple provisions reinforce this with cross referenced

definitions, exclusions, and requirements.5 To state it plainly,

we are instructed by the statutes to construe the county

shoreland zoning powers in Wis. Stat. § 59.692 consistent with

and together with Wis. Stat. § 281.31 in order to accomplish the

statewide purposes of protecting navigable waters and their

shorelands.

B. County Shoreland Zoning Ordinances & Town Power

¶64 This brings us to the main question before us: the

power of towns to regulate in ways more restrictive than county

shoreland zoning ordinances.

¶65 Wisconsin towns have some zoning authority. See Wis.

Stat. § 60.61. However, they have limited zoning power over shorelands on navigable waters. Section 60.61(3r) provides that

4For example, Wis. Stat. § 281.31(2)(f) defines shorelands by reference in part to Wis. Stat. § 59.692(1)(b). Section 281.31(2m) also indicates some areas where a required county shoreland zoning ordinance under § 59.692 does not apply. These are two of many examples which lend contextual and structural support to reading these provisions together. See State v. Powers, 2004 WI App 156, ¶12, 276 Wis. 2d 107, 687 N.W.2d 50 (discussing cross-references as contextual and structural textual clues). 5The original versions of these statutes were enacted at the same time. §§ 22, 42, ch. 614, Laws of 1965.

7 No. 2018AP547.bh

towns "may enact a zoning ordinance . . . that applies in

shorelands," but "[a] town zoning ordinance . . . may not impose

restrictions or requirements in shorelands with respect to

matters regulated by a county shoreland zoning

ordinance . . . affecting the same shorelands." § 60.61(3r)(b),

(c); see also Wis. Stat. § 60.62(5). The legislature gave

primacy to county shoreland zoning ordinances in 1966. § 22,

ch. 614, Laws of 1965. Therefore, a town's zoning power over

shorelands is limited; it may not be more restrictive than a

county shoreland zoning ordinance adopted pursuant to Wis. Stat.

§ 59.692.

¶66 Chapter 59 of the Wisconsin Statutes is dedicated to

counties. Wisconsin Stat. § 59.692 governs, as its title says,

"zoning of shorelands on navigable waters."6 Subsection (1c)

gives the basic requirement and its rationale. Each county must

"zone by ordinance all shorelands in its unincorporated area."

§ 59.692(1c). The reason for this requirement is "[t]o effect

the purposes of [Wis. Stat. §] 281.31." Id. Consequently, ordinances must "relate to the purposes in [§] 281.31(1)." Id.

¶67 While the municipal zoning powers described in Wis.

Stat. § 281.31 aim for voluntary uniformity, Wis. Stat. § 59.692

mandates a degree of uniformity for shorelands regulated by a

county shoreland zoning ordinance——including shorelands in

towns. Paragraph (1d)(a) provides that a county shoreland

This language is another explicit tie to Wis. Stat. 6

§ 281.31, whose title says it is about protecting "navigable waters." Compare Wis. Stat. § 59.692 with § 281.31.

8 No. 2018AP547.bh

zoning ordinance "may not regulate a matter more restrictively

than the matter is regulated by a shoreland zoning standard."

§ 59.692(1d)(a). And a "shoreland zoning standard" is defined

as "a standard for ordinances enacted under this section that is

promulgated as a rule by the department." § 59.692(1)(c); see

also § 59.692(1)(a) (defining "department" as DNR). Thus, DNR

will by rule specify certain matters——shoreland zoning

standards——and county shoreland zoning ordinances may not be

more restrictive than the specific standards adopted by rule.

¶68 However, paragraph (1d)(b) allows counties to adopt

shoreland zoning ordinances that regulate "a matter that is not

regulated by a shoreland zoning standard." Wis. Stat.

§ 59.692(1d)(b). Therefore, if the matter is not covered by one

of the statewide shoreland zoning standards adopted by rule, a

county retains power through a county shoreland zoning ordinance

to regulate it.

¶69 What, then, of the power of towns? The statute

tackles this question head-on in Wis. Stat. § 59.692(2)(b). In my view, this provision is the dispositive statutory section

governing this case.

¶70 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- 9 No. 2018AP547.bh

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.

¶71 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. If there be any doubt on this point,

paragraph (2)(bg) settles the matter. It provides: "A town may

enact a zoning ordinance affecting the same shorelands as an

ordinance enacted under this section, subject to the restrictions in ss. 60.61(3r) and 60.62(5)." Wis. Stat.

§ 59.692(2)(bg).7 And again, Wis. Stat. §§ 60.61(3r) and

60.62(5) authorize towns to enact zoning ordinances relating to

shorelands, except that they may not regulate more restrictively

on matters regulated by a county shoreland zoning ordinance.

This means that paragraph (2)(b) cannot be referring to town

zoning ordinances alone. The language in (2)(bg) shows that the

7 This paragraph was created by 2019 Wis. Act 145.

10 No. 2018AP547.bh

legislature knows how to specify zoning ordinances if it wants

to. It plainly did not limit the restriction in (2)(b) to town

zoning ordinances.8

¶72 This reading is further reinforced by the

administrative code. As noted above, Wis. Stat. § 281.31 and

Wis. Stat. § 59.692 do not stand alone. They explicitly

reference standards to be adopted by rule. The relevant rule

provisions are found in Wis. Admin. Code ch. NR 115 (Jan. 2017).9

¶73 Wisconsin Admin. Code § NR 115.01 states the purpose

and statutory grounding for this provision, and provides in

relevant part:

Section 281.31, Stats., provides that shoreland subdivision and zoning regulations shall: "further the maintenance of safe and healthful conditions; prevent and control water pollution; protect spawning grounds, fish and aquatic life; control building sites, placement of structure and land uses and reserve shore cover and natural beauty." Section 59.692, Stats., requires counties to effect the purposes of [§] 281.31, Stats., and to promote the public health, safety and general welfare by adopting zoning regulations for the protection of all shorelands in unincorporated areas that meet shoreland zoning standards promulgated by the department. The purpose of this chapter is to establish minimum shoreland zoning standards for ordinances enacted under [§] 59.692, Stats., for the purposes specified in [§] 281.31 (1), Stats., and to limit the direct and

State v. Quintana, 2008 WI 33, ¶32, 308 Wis. 2d 615, 748 8

N.W.2d 447 ("When the legislature does not use words in a restricted manner, the general terms should be interpreted broadly to give effect to the legislature's intent.").

All subsequent references to Wisconsin Administrative Code 9

ch. NR 115 are to the January 2017 register date unless otherwise indicated.

11 No. 2018AP547.bh

cumulative impacts of shoreland development on water quality; near−shore aquatic, wetland and upland wildlife habitat; and natural scenic beauty. § NR 115.01 (emphasis added). The broader import of these

provisions is that they were written to mean something, to have

statewide effect. And the very first sentence makes clear that

Wis. Stat. § 281.31, including its specific inclusion of

ordinances adopted under Wis. Stat. § 59.692, is directed at

limitations on both "shoreland subdivision and zoning

regulations." § NR 115.01 ¶74 The specific shoreland zoning standards referenced in

Wis. Stat. § 59.692 are delineated in Wis. Admin. Code § NR

115.05. They cover minimum lot sizes; building setbacks;

vegetation; filling, grading, lagooning, dredging, ditching, and

excavating; impervious surfaces; height; and nonconforming

structures and uses. § NR 115.05(1). But the language of this

section contains a broad and preemptive flair: "The shoreland

zoning ordinance adopted by each county shall control use of

shorelands." Id. (emphasis added).

¶75 Wisconsin Admin. 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. § NR 115.06(1), (2). 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.

12 No. 2018AP547.bh

¶76 The statutes and administrative rules point in the

same direction: a county shoreland zoning ordinance controls

where it speaks, and other county or town ordinances may not be

more restrictive——excepting a preexisting town ordinance's more

restrictive provisions.

¶77 Like the court of appeals, the majority relies on the

language in Wis. Stat. § 59.692(1d) that county shoreland zoning

ordinances "may not regulate a matter more restrictively than

the matter is regulated by a shoreland zoning standard."

§ 59.692(1d). Since a town subdivision ordinance is not a

county shoreland zoning ordinance, the majority reasons that

this section does not limit town subdivision authority. I agree

that the Town's ordinance is a subdivision ordinance. But

§ 59.692(2)(b) does not concern itself with this distinction.

That provision limits the authority of a town to override the

provisions in a county shoreland zoning ordinance regardless of

whether the Town utilizes its zoning or subdivision authority.

That is the on-point statute that decides this case. ¶78 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. Section 59.692(2)(b), along with the 13 No. 2018AP547.bh

associated provisions in Wis. Stat. §§ 281.31, 60.61 and 60.62,

and in Wis. Admin. Code § NR 115 demonstrate that reading is not

correct.

C. Application

¶79 In this case, the Town of Newbold's subdivision

ordinance adopts a more restrictive riparian frontage width (225

feet) than that adopted in the county shoreland zoning ordinance

(100 feet). Under Wis. Stat. § 59.692(2)(b), this more

restrictive provision cannot have effect unless it was adopted

prior to the county shoreland zoning ordinance. Counsel for the

Town was asked at oral argument whether § 59.692(2)(b) applied,

and counsel said it did not. We have no other evidence in the

record that suggests the Town's more restrictive provision was

adopted prior to the county shoreland zoning ordinance.

Therefore, the Town's more restrictive riparian frontage width

requirement is preempted and without effect; the 100-foot

riparian frontage width in the county shoreland zoning ordinance controls. As a consequence, the Town proceeded on an incorrect

theory of law when it denied Anderson's proposed land division

based on its preempted ordinance provision.

¶80 I would reverse the court of appeals on this basis and

respectfully dissent.

¶81 I am authorized to state that Justice REBECCA GRASSL

BRADLEY joins this dissent.

14 No. 2018AP547.bh