6/29/2019 7:30:00 AM Oneida County sued over pier regulations Can county impose local regulations on piers already exempt under state law?
Oneida County has long promoted itself as the place where nature lingered longer, but one thing which has lingered just about as long is a battle over whether the county's pier regulations are even legal.
Oneida County is one of the only counties in the state to regulate piers - if not the only one - with other counties leaving regulation to the Department of Natural Resources and state regulations.
Indeed, property rights advocates have long argued the county has no authority under state statutes to impose restrictions on already exempt piers, and they have unsuccessfully tried to have them repealed for more than 15 years.
Now, almost inevitably after all those years of contention, the matter has made its way to court. A Lake Tomahawk property owner, Sunflower LLC, has sued the county over the regulations after being cited for violating the county's pier ordinance.
Sunflower's pier meets state requirements which allow piers to be placed without a permit if they meet specified width, depth, and length dimensions and do not exceed the specified number of slips. However, the county argues it can impose pier size, shape, and configuration requirements which are more restrictive than statewide exemption standards.
Sunflower disagrees and maintains the county cannot regulate piers meeting those exemption requirements.
Specifically, the county requires lateral extensions of piers must be in a "T" or "L" configuration and must not exceed 20 feet in total width, requirements the county says Sunflower violated. The case is now in the court of appeals after Oneida County circuit judge Patrick O'Melia ruled in favor of the county on the specific issue of the 20-foot width limitation.
On the larger issue, O'Melia ruled the county did in fact have the ability to impose its own pier regulations and its ordinance was enforceable and consistent with state law.
Spearheading the case for Sunflower are well-known property-rights attorneys Paul Kent and Larry Konopacki, and former state legislator Adam Jarchow, another prominent property-rights advocate and attorney. Oneida County corporation counsel Brian Desmond is aggressively defending the county's position, just as his predecessor, Larry Heath, did in the early to mid-2000s.
Though they have tried repeatedly, opponents of local pier regulations have never been able to muster enough support to have them repealed. In 2005, for example, then supervisor and zoning committee chairman Gary Baier led a major effort to rescind the regulations but fell short.
Baier said he felt the DNR was the appropriate agency to patrol the state's waters and what's in them.
"I feel our jurisdiction should stop at the water's edge," Baier said then. "We should stay off and out of the water and on the shoreline where we belong. With new (state) pier rules coming into effect, the DNR should handle it."
But Heath, the corporation counsel at the time, led a successful countercharge.
"With the county's own ordinance, the county doesn't have to rely on the whims of the DNR," Heath wrote in a memo to county supervisors.
Back then, Oneida County zoning director Karl Jennrich told the zoning committee Heath was the reason the provision even existed: "Our counsel has told us that we have the right to regulate piers and boathouses," Jennrich said.
Since then, state pier regulations have changed. What hasn't changed is the county's insistence on its right to regulate.
Now Desmond is taking that position in a case which will finally determine who is right on the question of local pier regulations.
In the case, according to the Sunflower's brief, Sunflower owns property on Tomahawk Lake, a property which consists of two adjoining parcels with 370 feet of combined water frontage on the lake.
Sunflower spent more than $170,000 constructing its new permanent pier, the brief states, which extends six to eight feet waterward of the shoreline and branches out left and right parallel to the shoreline.
"There are five extensions extending waterward and perpendicular to these branches of the pier," the brief states. "This configuration created no more than seven berthing slips for boats, and includes a boat lift in four of these slips."
The county cited Sunflower, contending that the piers violated the county ordinance that requires that any lateral extensions on piers must be a "T or "L" shape and must not exceed 20 feet in total width.
As Sunflower sees it, the primary legal issue is whether a county or other local government can impose pier size, shape, and configuration requirements which are more restrictive than statewide exemption standards.
"Like almost all regulatory authority relating to the waters of the state, our state's statutory pier regulations confer the management and control of the regulatory system for piers on the Department of Natural Resources," the brief states. "Some limited authority is also provided to municipalities, such as counties, to regulate piers."
But in exercising that authority, the brief continues, counties may not stray beyond the scope of that limited authority, or make illogical interpretations of their ordinances.
Under state law, there are two statutory sections that pertain to pier exemptions from permits, Sunflower argues. One section, ch. 30.12, provides for a general exemption from permitting based on location, size, and configuration of a pier.
"Determining whether a pier may be placed under this exemption is simple," the brief states. "If the pier meets the specified width, depth, and length dimensions and does not exceed the specified number of slips, it is allowable without a permit. There are no other requirements. This statutory scheme does not provide a regulatory role for county ordinances."
There is no dispute Sunflower meets the standards in that state exemption, the attorneys argue.
The other section pertaining to pier exemptions, ch. 30.13, provides that "a riparian proprietor may construct a wharf or pier in a navigable waterway extending beyond the ordinary high-water mark or an established bulkhead line in aid of navigation without obtaining a permit if the pier is exempt" (under 30.12) or if it meets certain conditions (such as not interfering with the riparian rights of others or impeding navigation).
Under 30.13, a county or other municipality is also authorized to enact ordinances which regulate the construction and location of wharves, piers, and swimming rafts within or attached to land within that municipality, provided those regulations are consistent with the other provisions of 30.13.
Those wishing to place a pier under this statutory provision must comply with those local ordinances.
The problem is, Sunflower argues, while the counties can play a role, that role is limited. Indeed, the brief argues, the two statutory sections are separate sources of authority to place a pier without the need to apply for a permit, but Oneida County attempts to use its authority under 30.13 to regulate a pier already exempt under 30.12.
Sunflower's attorneys point to the introduction of the section which allows for municipal regulation, noting that under 30.13 a pier is exempt if it is already exempt under 30.12 or if it meets the other conditions of 30.13.
Simply put, Sunflower argues, a pier already exempt under 30.12 does not have to comply with those other conditions of 30.13, including compliance with local ordinances, precisely because it is already exempt.
Because Sunflower is already exempt under 30.12, the 30.13 conditions do not apply and so neither do any municipal regulations imposed under 30.13, Sunflower's attorneys contend, and they further say legislative intent supports their claims.
For example, the attorneys wrote, the bill drafting files for legislation that became 2007 Act 204 contained a drafting note which underscored that very point:
"Current law regulates piers and wharves placed by riparian owners under both s. 30.12 and 30.13," the note states. "Those provisions in current law are not entirely consistent. This provision is my attempt to reconcile these provisions and to make clear that 30.13 does not apply to those piers and wharves that are regulated under 30.12."
That says it all, the attorneys argue.
"There could not be a more clear expression of intent: Wis. Stat. 30.13 does not apply to the size, shape, or configuration of piers regulated under 30.12," the Sunflower brief states.
Indeed, the Sunflower attorneys argue, the county's attempt to use the authority in 30.13 to override the exemption in 30.12 conflicts with the specific limits on the grant of that very authority.
"As noted above, local ordinances under Wis. Stat. 30.13(2) must not be 'inconsistent with' Wis. Stat. §30.13,'" the brief contends. "Front and center at the beginning of Wis. Stat.30.13(1) is a clear instruction that a pier is exempt from permitting requirements under either the 30.12 exemption, to which a municipal ordinance does not apply, or the 30.13 exemption, to which such an ordinance may apply. Therefore, it violates the statutory 'consistency' requirement for the county to apply its municipal pier ordinance to the 30.12 exemption, which is obviously outside of the scope of 30.13."
As the Senate amendment drafter notes, the brief states, "30.13 does not apply to those piers and wharves that are regulated under 30.12."
If the pier is exempt under 30.12, then no further regulation is authorized, the brief argues.
Misreading all you see
The county also misreads the law when it attempts to assert regulatory authority under two shoreland zoning statutes, chapters 281 and chapter 59, Sunflower argues.
Those chapters establish a statutory framework for shoreland zoning which provide roles for the DNR and for the counties, the brief states: "The DNR is required to establish state standards for shoreland zoning through administrative regulations. The counties are then required to adopt shoreland zoning ordinances which comply with the state regulations."
Chapter 281 defines the authority of the DNR over water resources, Sunflower states, including a charge to the DNR to fulfill its role as trustee under the public trust doctrine. That charge includes authorizing municipal shoreland zoning regulations which relate to lands under, abutting, or lying close to navigable waters.
Chapter 59 requires counties to adopt shoreland zoning ordinances, and Oneida County argues that that justifies regulations relating to "lands under, abutting or lying close to navigable waters," which would justify pier regulations.
Not so, Sunflower claims, saying the chapter 59 regulations clearly limit county authority to shoreland areas: "each county shall zone by ordinance all shorelands in its unincorporated area."
"Thus, the county's argument that the general authorization for county shoreland zoning regulations to 'relate to lands under, abutting or lying close to navigable waters' is contrary to the express statutory language," the brief states. "That is language that is applicable to the DNR, not to counties."
Moreover, the attorneys contend, the county's argument that it can use its shoreland zoning authority to regulate piers is contrary to the entire structure of shoreland zoning.
"Shoreland zoning, as its name implies, applies to shorelands," the brief contends. "Shorelands are defined by statute as areas that are specified distances from the ordinary high water mark. By contrast, piers, by their very nature, are structures placed in the water below the OHWM."
What's more, Sunflower argues, state law preempts the county's attempt to use 30.13 to regulate piers exempt under 30.12.
Conflict preemption arises where there is an issue of state concern and the municipality attempts to prohibit what the legislation has expressly authorized or required, the attorneys argue.
"(T) the regulation of piers is clearly an area of statewide concern," the brief states. "Under state law, the size and configuration of the Sunflower pier is specifically authorized under the provisions of §30.12(1g)(t). The county ordinance purports to impose additional standards and criteria that would have the effect of denying the right to place the pier as authorized under state law."
The clearest example of how the county ordinance conflicts with the state authorization is that it requires that any lateral extensions on piers shall be a "T" or "L" shape and must not exceed 20 feet in total width, the attorneys argue.
"State law provides that piers that meet specified length, width and depth requirements are authorized," the brief states. "The county wants to impose additional independent standards that restrict, and would actually prohibit, piers that are otherwise authorized or permitted by DNR. As the court held in Lake Beulah, that is a conflict and it is not permitted."
In conclusion, the attorneys argued, Oneida County adopted its last comprehensive re-write of its pier ordinance at a time when state statutes authorized counties to impose restrictions on all piers that were exempt from state permitting requirements.
"Those state requirements changed, and the county's ordinance, and its application of that ordinance, has not," the brief states. "As a result, the county is intruding into the regulatory role of the state by applying its ordinance to piers for which it has no express authority to do so and by applying its ordinance in a manner that is inconsistent with its specific, limited statutory authority to regulate piers and in conflict with state law."
The county's case
Oneida County and corporation counsel Brian Desmond see it differently. In their view, Oneida County has the legal authority to regulate piers on lakes and rivers in Oneida County and they point to state statute 281 to bolster their case.
That statutory chapter declares it is in the public interest for the state to "authorize municipal shoreland regulations" and that those "regulations shall relate to lands under, abutting or lying close to navigable waters."
Accordingly, Desmond contends, the county can enact regulations relating to lands under navigable waters, thus enabling pier regulations, and in fact he writes, "Oneida County's pier regulations have been enacted in order to effectuate that policy goal."
In addition, Desmond writes, chapter 59 requires counties to "zone by ordinance all shorelands in its unincorporated area," but, he contends, Sunflower's argument that that restricts the county to shorelands above the ordinary high water mark "falls flat" because of the county's foregoing authority under chapter 281 to regulate lands under navigable waters.
What's more, he contends, the actual county shoreland zoning statute enacted to accomplish the policy goals of 281, chapter 59, does not prohibit Oneida County from regulating piers.
"There is no language in (the statute) that states that counties do not have authority to regulate piers," Desmond wrote. "It is clear that there is no limit in the statutes with regard to the county's ability to regulate piers. The county pier regulations further the goals of the state in Wis Stats 281.31 to regulate 'lands under navigable waters' (emphasis added)."
As for Sunflower's argument that the county's authority to regulate 30.13 cannot be applied to a pier that is already exempt under 30.12, Desmond says it is Sunflower's team which has misread the law.
More specifically, Desmond contends, a closer examination of the law demonstrates the county can regulate piers. He points out that, in fact, the county's pier ordinance is consistent with the criteria for exemption in 30.12.
"The (county shoreland ordinance) is consistent with state law," he wrote. "The (county shoreland ordinance) requires permits when the requirements listed in Chapter 30 are exceeded. There is no conflict with state law, and the (county shoreland ordinance) does not undermine the state law. The (county shoreland ordinance) merely complements the state law, and is well within the county's authority to regulate in (an) area that state law also regulates."
Under chapter 30.13, Desmond continues, Oneida County has the authority to enact regulations regarding piers that are "not inconsistent with this section," and that, in Fox v. Racine, the court found that "municipalities may enact ordinances in the same field and on the same subject covered by state legislation where such ordinances do not conflict with, but rather complement, the state legislation."
"As a general rule, additional regulation to that of the State law does not constitute a conflict therewith," that court case states. "The fact that an ordinance enlarges upon the provisions of a statute by requiring more than the statute requires creates no conflict therewith unless the statute limits the requirement for all cases to its own prescriptions."
Desmond also observes that 30.12 only exempts a citizen from the permit requirements of "this section" of the statutes.
The corporation counsel then points to O'Melia's ruling that "there is a fairly obvious distinction between: (A) Being exempt 'from the permit requirements under this section' and (B) Being exempt 'from the state's pier regulations.'"
O'Melia also wrote: "(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."
As O'Melia found, so Desmond argues the relevant language in 30.12 was "under this section," which he contends provides only an exemption from the permit that is required under 30.12.
"As the court correctly noted, this language does not eliminate regulation from any other municipality," Desmond wrote.
Had the legislature intended on enacting the statute in the way Sunflower sees it, it could have added language adding further restrictions on a municipality's ability to regulate, Desmond wrote.
"The Legislature did not do that," he wrote. "Counties are not precluded from regulating piers so long as they are not inconsistent with state statutes."
As for the drafter's notes related to legislative intent, Desmond asserts that those notes were not part of the official record on appeal and should be ignored. But, the corporation counsel argued, even if they are not ignored, the drafter's notes merely express intent and are not applicable to a resolution of the case.
That is to say, case law dictates that when looking at and interpreting ordinance language, the search for extrinsic evidence should not be undertaken unless there is ambiguity within the statute.
"Sunflower does not argue that there is ambiguity in the statutes," he wrote. "Sunflower argues the exact opposite in their brief, indicating that the statutes are clear that the county may not enact regulations on piers. Given that there is no argument on ambiguity, the extrinsic evidence should not be reviewed by the court."
Moreover, Desmond argued, the notes represent the intent of the drafter, but that's not necessarily the intent of the final statutory language.
"Absent ambiguity, we are left with the black and white words on the page in the statute book," he wrote. "These words may or may not contain the drafter's intent. Courts have to follow the law passed by the Legislature when it is unambiguous as it is here. As stated previously, those words from the Legislature do not preclude the county's regulation of piers."
Finally, Desmond argues, the county's pier regulations are not preempted by state law as Sunflower argues because the ordinance does not conflict with state law but complements it.
"The language of (shoreland zoning ordinance) with regards to piers does not illogically conflict with the state legislation," he wrote. "In fact, the (shoreland zoning ordinance) complements the state legislation (and in some instances duplicates) and only regulates any areas that the state has not legislated."
The circuit court correctly found that a state law and a county ordinance are in conflict only if a landowner cannot comply with both at the same time, Desmond wrote.
"A landowner can simultaneously comply with both the state regulations (and gain an exemption from state permits) and the county regulations regarding piers," he concluded.
Richard Moore is the author of the forthcoming "Storyfinding: From the Journey to the Story" and can be reached at richardmoorebooks.com.
Posted: Monday, July 1, 2019
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