March 20, 2023 – A gravel path that a sanitary district proposed to lay to allow it to repair its pipes qualified for an exemption from a county’s shoreland zoning ordinance, the Wisconsin Court of Appeals has ruled.

In Delavan Lake Sanitary District v. Walworth County Board of Adjustment, 2022AP 289 (March 8, 2023), the Court of Appeals District II held that the district qualified as a utility under the state statute that creates the exemption.

Easement for Sewer Pipes

The Delavan Lake Sanitary District (District) is a municipal corporation that operates a sewage system. The District provides services to residents of a subdivision located on the west end of Lake Delavan in Walworth County.

The subdivision granted the District an easement to install, operate, and maintain its sewage system. The District installed a gravity sewer, a main pipe that runs from a lift station, and manholes that allow access to the sewer pipes.

The sewer system components inside the easement are located in:

• a gravel stone road that runs along a channel at the lake’s west end;

• a grassy path that lies at the end of road; and

• an unimproved access path that the District uses to access the manholes.

The access path crosses a wetland.

System Failure

The District was worried that sewer components in the subdivision would fail if they weren’t repaired soon. District employees had noticed the manhole covers shifting and tilting and they knew that the 40-year-old pipes were between five and ten years past the end of their regular lifespan.

Consequently, in February 2017, the District applied for an erosion control permit from the County, so that it could lay a gravel path over portions of the easement.

According to a work plan filed with the permit application, the District would extend the two paths by laying down fabric and stone and gravel, to allow heavy vehicles to travel over the path without rutting the soil and spreading mud.

Application Denied

In October 2019, the County proposed that the District apply for a zoning variance, and rezone some of the property over which the paths traveled because they were within 75 feet of the ordinary high-water mark of the channel.

District officials wouldn’t agree to seek a variance and a rezoning because they didn’t think they were legally required to do so.

In January 2020, the County denied the District’s application.

Appeal to Board, Circuit Court

In its denial, the County cited the District’s refusal to obtain approval from the County’s zoning division, as well as a County determination that bolstering the paths with fabric, stone, and gravel would violate the County’s shoreland zoning ordinance.

The District appealed to the County’s Board of Adjustment (Board). The District argued that Wis. Stat. section 59.692(1n)(d)5., which exempts certain structures from shoreland zoning ordinances that restrict construction within setback areas, applied.

In September 2020, the Board concluded that the proposed gravel path was not a structure exempted under section 59.692(1n)5. and denied the District’s appeal.

The District appealed to Walworth County Circuit Court. The circuit court denied relief to the District, and the District appealed.

The Importance of ‘Any’

Writing for a three-judge panel, Judge Lisa Neubauer noted that no Wisconsin Supreme Court or published court of appeals decision had ever interpreted section 59.692(1n)(d)5.

The section exempts a list of specific utility structures, and “any other utility structure,” from a shoreland zoning ordinance’s prohibition on construction inside a setback zone.

The inclusion of the word “any” in the relevant statutory phrase, Neubauer wrote, “signals that we are to construe the phrase broadly.”

Furthermore, she reasoned, the inclusion of “private on-site wastewater treatment system that complies with ch. 145” in section 59.692(1n)(d)5. before the phrase “any other utility structure” means that the legislature intended the term “utility” to include sewer system providers for purposes of the statute.

Narrow Definition Doesn’t Apply

The county argued that the court of appeals should construe the word “utility” in section 59.692(1n)(d)5. in congruence with the definition in section 196.01(5) – a definition that excludes sewage services provided by a governmental unit.

But Judge Neubauer explained that when the legislature wanted to link the definition (and exceptions) contained in section 196.01(5) to a statute, it did so in clear and specific wording. She pointed out that the legislature had done so in 20 statutes, including the shoreland zoning statute at issue in the case before the court of appeals.

“The absence of similar incorporating language in section 59.692(1n)(d)5. confirms that ‘utility’ is not limited to the definition of ‘[p]ublic utility’ in section 196.01(5),” Neubauer wrote.

The wording of statutes that were closely related to section 59.692(1n)(d)5. supported such a conclusion, Judge Neubauer reasoned, in three specific provisions of chapter 66 – sections 66.0813(1), 66.0813(5m(b), and 66.0827(5)(a).

“These provisions further support the notion that the term ‘utility’ as used in Wis. Stat. section 59.69(1n)(d)5. encompasses municipal sanitary districts, which are not public utilities as defined in Wis. Stat. section 196.01(5),” Neubauer wrote.

Judge Neubauer also pointed out the term “public utility” had no single fixed meaning in state statutes.

Consistent with Purpose of Statute

Neubauer wrote that construing the term “utility” in section 59.692(1n)(d)5. was consistent with the purpose of the statute, because it “enables the District to reinforce its easement so that it may take actions it deems necessary to prevent the lake from becoming polluted and to promote public health.”

Judge Neubauer concluded that the District had also demonstrated that there was no feasible alternative to building the path inside the setback zone, another requirement under section 59.692(1n)(d)5.

“Laying the gravel path outside of the setback area, and thus outside the bounds of the District’s easement, would not enable the District to access and maintain its equipment,” Neubauer wrote.

“Given the absence of any findings or evidence to the contrary, a denial on this basis would be arbitrary and unreasonable and would represent the Board’s will and not its judgment.”