Jan. 27, 2021 – The Wisconsin Supreme Court has ruled (5-2) that the Town of Newbold had authority to prohibit a property owner from dividing his lakefront lot into two parcels, rejecting the claim that the town’s ordinance was preempted.

Michael Anderson owns property on Lake Mildred, northwest of Rhinelander, with more than 250 feet of shoreline frontage. He wanted to divide the lot into two parcels.

However, the Town of Newbold’s Plan Commission denied his request under an ordinance which requires lakefront lots to be a minimum of 225 feet in width. Under Anderson’s proposal, the divided parcels would be less than 225 feet in width.

In circuit court, Anderson pointed to Wis. Stat. section 59.692(1d)(a), which says shoreland zoning ordinances “may not regulate a matter more restrictively than the matter is regulated” by the Wisconsin Department of Natural Resources (DNR).

The circuit court observed that Anderson made a “fairly strong case” but ultimately affirmed the town’s decision, concluding the ordinance was not a shoreland zoning ordinance at all, but a “subdivision ordinance” not subject to section 59.692.

A state appeals court affirmed. In Anderson v. Town of Newbold, 2021 WI 6 (Jan. 27, 2021), the state supreme court affirmed the appeals court (5-2).

Town had Authority to Regulate

Reviewing the decision of Newbold’s Plan Commission (town), the majority noted that “shorelands present unique” considerations” because of the state’s role as trustee of navigable waters, and state law says counties have shoreland zoning authority.

“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,” wrote Justice Ann Walsh Bradley.

Towns, however, can enact ordinances with respect to subdivisions of land and have more leeway to impose more restrictive subdivision standards.

Anderson argued that the Town of Newbold’s ordinance “is a zoning ordinance in disguise that impermissibly regulates shorelands in a manner contrary to Wis. Stat. § 59.692.” The question: is it a zoning ordinance, or a subdivision ordinance?

In making that determination, the majority applied the Zwiefelhofer framework, set out in Zwiefelhofer v. Town of Cooks Valley, 2012 WI 7, 338 Wis. 2d 488, 809 N.W.2d 362.

“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,” wrote Justice A.W. Bradley.

“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,” Justice A.W. Bradley continued. “No such restriction is present here.”

The majority concluded that the town’s width requirement ordinance was not a zoning ordinance – it was a subdivision ordinance – and thus the town had authority to enact it.

“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,” A.W. Bradley wrote.

“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.”

Dissent

Justice Brian Hagedorn wrote a dissenting opinion, joined by Justice Rebecca Bradley, concluding subdivision ordinances relating to shorelands, even if not zoning ordinances, cannot be more restrictive than the standards that have been enacted by the county.

“[W]hile 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,” Justice Hagedorn wrote.

The county shoreline ordinance requires lakefront properties to be 100 feet wide, less restrictive than the 225 feet required by the town’s ordinance, Justice Hagedorn noted. He said the town’s ordinance cannot be more restrictive than the county’s 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,” Justice Hagedorn wrote.

“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.”