839 N.W.2d 111
Wis. Ct. App.2013Background
- Hegwood owns shoreline property in Eagle and built an outdoor fireplace and a pergola at 14 and 8 feet from the lot line respectively.
- The county approved the pergola (subject to removal of the roof) and determined the fireplace may remain in its location, under the county shoreland ordinance.
- Hegwood sought variances from the town to satisfy its 20-foot setback requirement, and the Town Zoning Board of Appeals denied the variances after a hearing.
- Hegwood filed a certiorari action in circuit court to reverse the Board's decision; the circuit court reversed, and the Board appealed.
- The issue on appeal is whether certiorari review was proper and whether the Board erred in applying the town ordinance to the shoreland property.
- The court held the Board had no authority to enforce the town ordinance on shorelands and that the circuit court correctly reversed the Board's decision on a correct theory of law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether certiorari was proper for Hegwood’s challenge | Hegwood buttressed certiorari review under § 62.23(7)(e)10. | Board argued declaratory judgment was required. | Certiorari proper; Hegwood could seek relief by certiorari. |
| Whether the Board proceeded on a correct theory of law | Board misapplied town ordinance to shoreland property contrary to law. | Board acted within concurrent zoning authority with county. | Board proceeded on an incorrect theory of law. |
| Whether towns have authority to regulate shorelands alongside county under the statutes | Wis. Stat. § 59.692 vests exclusive shoreland zoning in counties; towns lack authority. | Towns have concurrent authority via village powers. | Towns generally do not have shoreland zoning authority; county shoreland ordinance governs Hegwood’s property. |
Key Cases Cited
- Murr v. St. Croix Cnty. Bd. of Adjustment, 332 Wis. 2d 172 (2011 WI App 29) (set standards for certiorari review of agency decisions)
- State ex rel. Ziervogel v. Washington Cnty. Bd. of Adjustment, 269 Wis. 2d 549 (2004 WI) (presumption of correctness and validity in board decisions)
- Master Disposal, Inc. v. Village of Menomonee Falls, 211 N.W.2d 477 (1973 WI) (certiorari action scope for agency decisions)
- Kmiec v. Town of Spider Lake, 211 N.W.2d 471 (1973 WI) (certiorari review context for board decisions)
- Osterhues v. Board of Adjustment for Washburn Cnty., 282 Wis. 2d 228 (2005 WI) (propriety of certiorari review and theory of law)
- J.L.W. v. Waukesha Cnty., 143 Wis. 2d 126 (Ct. App. 1988) (statutory interpretation guiding shoreland regulation)