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July 21, 2019

6/29/2019 7:30:00 AM
Appeals court should end Oneida County pier regulations once and for all
Gregg Walker and Richard Moore
Publisher and Columnist

Oneida County is without peers when it comes to zoning overregulation, and it most certainly is without peers when it comes to regulating piers - it is one of the only Wisconsin counties to do so, if not the only one.

That's because the state's navigable waters are the province of the state, not counties, and Oneida County waded into these waters initially - thanks to then corporation counsel and anti-property rights zealot Larry Heath - as a way to limit and deny riparian owners their proper rights to place the structures.

If the state didn't hammer property owners, Mr. Heath wanted to make sure the county did.

Over the years, property rights advocates, especially the late Gary Baier, tried to do away with the regulations, to no avail. Now, as we report in today's edition, a Lake Tomahawk property owner, Sunflower LLC, has sued the county, challenging its authority to regulate piers in the way it does.

Sunflower is correct. The county has overstepped its legal authority in its pier regulations, and the court should scissor out its blatant interference in the reasonable placement of piers under state law.

The case is now in the court of appeals after Oneida County circuit court judge Patrick O'Melia mostly ruled in the county's favor.

That means the issue can now be judged on its merits, where it could not be in Oneida County. Mr. O'Melia, of course, is a pillar of the county's good-old-boy establishment, and his decision, peppered with irrelevancy and mumbo-jumbo, represents the work of a water boy carrying buckets for the larger regime.

In other words, because of the obvious politics and contrived outcome, his decision - not to mention the judge - is irrelevant.

As for the merits of the case itself, state law provides two ways for a pier to be placed without a permit. Under chapter 30.12, a pier is exempt if it meets specified width, depth, and length dimensions and does not exceed the specified number of slips.

Specifically, if the pier is no more than six feet wide, extends no further than to a point where the water is three feet at its maximum depth or to a point where there is adequate depth for mooring, and has no more than two boat slips for the first 50 feet of the riparian owner's shoreline footage and no more than one additional boat slip for each additional 50 feet, the pier is exempt.


Now, if a pier does not qualify for that statutory exemption, the law gives a riparian property owner a second way to place the pier without a permit, under chapter 30.13 - if it does not interfere with public rights in navigable waters, or with the rights of other riparian proprietors; if it allows for the free movement of water beneath it; and if it does not violate any municipal ordinance regulating piers or extend beyond any municipally established pierhead line.

Those first two requirements are not really so relevant to the case - they involve the public trust doctrine and apply to any pier anywhere. The criteria established in 30.12 meet those public trust requirements by definition.

What's important in 30.13 is the municipality's role in establishing an ordinance or pierhead line. Essentially, a pier that does not violate the public trust - no pier can - but does not meet the exemption requirements of 30.12 can be placed if it conforms to a municipal ordinance.

If no ordinance exists, then presumably a pier may be placed so long as it does not interfere with the public's rights in navigable waters, a determination the DNR would almost certainly make. That goes back to Mr. Baier's point that the determination should be left to the state.

The point is, if a pier is exempt under chapter 30.12, that's the end of the story. The 30.13 statute actually says in a particularly lucid moment for statute writers that a pier is exempt "under 30.12 if the pier or wharf is exempt ... under 30.12."

How's that for clarity?

But then, for those piers that aren't exempt under 30.12, the statute gives riparian owners that other option - they can place the pier anyway without a permit if it doesn't interfere with public rights or the rights of other riparian owners, and in such cases, and only in such cases, municipalities can regulate their construction and placement.

Inexplicably, Oneida County and corporation counsel Brian Desmond seek to apply municipal regulations not merely to piers under the 30.13 exemption but to those already exempt under 30.12. It transforms 30.13 from a regulatory alternative into a regulatory requirement.

But an alternative is what the Legislature wanted. That is to say, the key word in the 30.13 exemption is "or": "A riparian proprietor may construct a wharf or pier in a navigable waterway extending beyond the ordinary high-water mark ... without obtaining a permit under s. 30.12 if the pier or wharf is exempt from obtaining a permit under s. 30.12 OR if all the following conditions are met ..."

In other words, a pier can be exempt under 30.12 OR, if it is not, the pier can be placed if it meets the conditions laid out in 30.13, which includes complying with municipal regulations.

By definition, "or" is a function word that indicates an alternative - one or the other, not both. By definition and statutory construction, then, piers are exempt by taking one exemption pathway or the other. Sunflower followed the path of 30.12, which provides for no municipal regulation, not 30.13, which does.

True to Mr. Heath's legacy, Mr. Desmond, who constructed the county's legal argument, would have the court effectively rewrite the statute to conform to his view, which only the Legislature should be able to do.

Under Mr. Desmond's interpretation, chapter 30.12 must include not only the language that actually exists - a pier is exempt if it meets specified width, depth, and length dimensions and does not exceed the specified number of slips - but also "AND meets the requirements of 30.13."

But the Legislature did not add that language. In fact, as the Wisconsin Realtors Association points out in its brief, 30.13 exemption requirements preceded those in 30.12, and the Legislature departed from 30.13 when it created the 30.12 exemptions. Here's how the Realtors explain it:

"For years, Wis. Stat. 30.13 was the only statute that allowed property owners to place and maintain a pier without a permit. If a pier did not meet the requirements under Wis. Stat. 30.13, a permit was required under Wis. Stat. 30.12."

Then, in the Job Creation Act of 2004, the WRA observes, the Legislature carved out a second option for riparian owners to place a pier without a permit if the pier met certain dimensional requirements, which are now the requirements referred to in 30.12.

There was indeed some confusion, so, in 2008, in Act 204, the Legislature clarified that piers exempt under 30.12 did not have to abide by the conditions of 30.13. The old language read: "A riparian proprietor may construct a wharf or pier in a navigable waterway extending beyond the ordinary high-water mark .. without obtaining a permit under s. 30.12 if all the following conditions are met ..."

The new language read: "A riparian proprietor may construct a wharf or pier in a navigable waterway extending beyond the ordinary high-water mark ... without obtaining a permit under s. 30.12 if the pier or wharf is exempt from obtaining a permit under s. 30.12 or if all the following conditions are met ..."

The language specifically added was an alternative to the old 30.13 requirements: "if the pier or wharf is exempt from obtaining a permit under s. 30.12 or ..."

The Legislature would not have added the functional alternative had it not meant for the two provisions to be separate and distinct, as one OR the other, as the Realtors point out in their brief: "If the legislature had intended for riparian owners to satisfy the requirements in both Wis. Stat. §§ 30.12(1g)(f) and 30.13(1), the legislature would have maintained the language that existed in Wis. Stat. § 30.13 prior to Act 204."

Precisely. Mr. Desmond's interpretation effectively reinstates the old statute that existed before the Legislature created the separate 30.12 exemption. If, in the end, all piers must satisfy 30.13 conditions, those meeting 30.12 exemption criteria as well as those that don't, why create the 30.12 exemption at all?

Under Mr. Desmond's interpretation, the exemption criteria in chapter 30.12 would be superfluous.

All that said, Sunflower's attorneys - Adam Jarchow, Paul Kent, and Larry Konopacki - were sometimes sloppy, creating potential traps for their client and giving Mr. Desmond some openings.

For example, they argue that chapter 281, which "authorizes municipal shoreland zoning regulations" and which further states that "the regulations shall relate to lands under, abutting or lying close to navigable waters," applies only to DNR regulations, not to those of counties. But that interpretation clearly contradicts the plain language of the statute, as Mr. Desmond observes.

The plaintiffs also argue that shoreland zoning statutes restrict counties to only regulating actual shorelands above the ordinary high-water mark, but that seems clearly contravened by the above language in 281. Clearly, the state means to include lands abutting and under navigable waters to be included in municipal shoreland ordinances, in addition to actual shorelands.

In any case, and even more damaging to Sunflower, its attorneys elsewhere concede that counties have limited authority to regulate piers over navigable waters, something that would be impossible if they can only regulate shorelands above the high water mark.

They cannot have it both ways. Either counties can regulate piers or they can't.

Still, the core of their argument is strong - because the county can regulate piers in some limited ways doesn't mean they can override the exemptions provided for in state statutes - and Mr. Desmond's brief, following in the footsteps of Mr. O'Melia's decision and indeed quoting often from it, is far more simplistic and loaded with truisms.

For example, Mr. Desmond quotes judge O'Melia's fine observation that "(U)nder any applicable regulatory framework, there may be a requirement that an actor apply for and obtain a permit to take a certain action. However, it does not logically follow that - if the actor is not required to obtain a permit - that the actor is subject to no regulations whatsoever."

True, but so what? No one is saying that those exempt under 30.12 are subject to no regulation whatsoever - they must meet both 30.12 exemption criteria and public trust standards - they're just not subject to 30.13 regulations.

It's an idiotic, vacuous observation by the judge, swallowed whole by Mr. Desmond.

In the end, this is an important case that could impact riparian owners statewide - a victory by the county could open the floodgates to assaults on riparian property rights across Wisconsin - and the county's rogue charade has gone on far too long.

As is typical of government, the county is actually trying to subvert a state law that was intended to help property owners. While the state added an option intended to make it easier to place a pier without a permit, the county has twisted that language and tried to turn it into a weapon with which to make it harder to place piers, or to prohibit them altogether.

Much like the DNR tried to subvert the Job Creation Act by writing a rule that turned the law on its head, the county through its ordinance seeks to turn legislative intent on its head.

The Oneida County board of supervisors should have long ago repealed this ordinance and put an end to the subversive state tactics of bureaucrats such as Mr. Heath and Mr. Desmond.

They did not do their duty. The court of appeals should.

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