March/April 2023 Issue

Also in this issue: Wisconsin Supreme Court Addresses Dark Store Evidence & Presumption of Correctness in Tax Assessment Claims     |     Public Service Commission Rules on Third Party Decisions     |     Public Service Commission Distributes $10 Million in Energy Innovation Grants     |     Wisconsin Public Records Law: Risk Of Attorney’s Fees Remains, Despite Voluntary Release

Denial of Permit Reversed on Certiorari Review as Being Based on an Incorrect Theory of Law

Lawrie J. Kobza | 03.30.23

Sanitary District’s Gravel Path a Utility Structure Exempt from County Shoreland Zoning

Delavan Lake Sanitary District sought to lay a gravel path over land near Delavan Lake so that it could bring in heavy equipment to repair its sewer pipes in the area. The District applied to the Walworth County Land Conservation Division for a construction site erosion control permit to lay down the path. The County told the District it needed to petition for rezoning and a zoning variance because the path would be within 75 feet of the ordinary high water mark of the channel to the lake. The District contended that it was not required to obtain rezoning because its path was an exempt utility structure under Wis. Stat. § 59.692(1n)(d)5. The County, and then the Board of Adjustment, denied the District’s application for an erosion control permit in part because of the County’s conclusion that construction of the path would violate its shoreland zoning ordinance and the District’s unwillingness to obtain rezoning. 

The District filed a petition for certiorari challenging the Board’s decision. The circuit court agreed with Board and denied relief. The District appealed and the Court of Appeals in Delavan Lake Sanitary District v. Walworth Board of Adjustment, No. 2022AP289 (Ct. App. Dist. II, March 8, 2023), reversed.

The court’s decision, which is recommended for publication, began with a discussion on the standards applicable to certiorari review. The Board’s decision is presumed to be valid but the Board must apply the appropriate legal standards and adequately express the reasons for its decision in the record. The court’s review of whether the Board applied the appropriate legal standards is de novo. The court is to consider whether the Board (1) acted within its jurisdiction, (2) proceeded on a correct theory of law, (3) acted in an arbitrary, oppressive, or unreasonable manner that represented its will and not its judgment, and (4) could reasonably have reached its decision based on the evidence before it.

The court’s decision focused on the second prong of review — whether the Board proceeded on a correct theory of law. Wisconsin statutes require a county shoreland zoning ordinance to establish a setback of 75 feet from the ordinary high water mark. Within the shoreland setback area, a county may limit or prohibit the construction or placement of structures. This authority is subject to certain exemptions set forth in the statute. One of those exceptions is in Wis. Stat. § 59.692(1n)(d)5 and provides that a county shoreland zoning ordinance may not prohibit the construction of “[a] utility transmission line, utility distribution line, pole, tower, water tower, pumping station, well pumphouse cover, private on-site wastewater treatment system that complies with ch. 145, and any other utility structure for which no feasible alternative location outside of the setback exists and which is constructed and placed using best management practices to infiltrate or otherwise control storm water runoff from the structure.” 

The court’s decision turned to interpretating the language of Wis. Stat. § 59.692(1n)(d)5 — and in particular the word ​“utility” — using numerous statutory construction rules. The court concluded that the term ​“utility” as used in Wis. Stat. § 59.692(1n)(d)5 includes town sanitary districts and the provision of municipal sewage disposal and treatment. The term is not limited to ​“public utilities” as defined in Wis. Stat. § 196.01(5). The court thus found that the Board proceeded under an incorrect theory of law when it based its decision on its conclusion that rezoning was required because the gravel path was not an exempt utility structure. The court further found that the Board did not make any findings as to whether a feasible alternative location outside of the setback existed for the proposed gravel path and that denying the permit on that basis now would be arbitrary and unreasonable and would represent the Board’s will and not its judgment. The Board’s order was therefore reversed.