*1 limited ABKA Limited an Illinois Partnership, Petitioner-Appellant,† partnership, Abbey Association, Ltd., The Harbor Condominium Petitioner-Co-Appellant,† nonprofit corporation, a Wisconsin
v . Department Resources, of Wisconsin Natural Conservancy, and Oneida Inc., Geneva Lake County, Respondents-Respondents. Petitioner-A Association, Inc., Realtors
Wisconsin ppellant,† v. Department Resources, Wisconsin Natural Respondent-Respondent.† limited ABKA Limited an Illinois Partnership, partnership, Petitioner-Appellant, The Abbey Association, Ltd., Harbor Condominium nonprofit corporation, Petitioner-Co- a Wisconsin
Appellant, v. Department Resources, of Natural Wisconsin
Respondent-Respondent. granted 12-17-01. † Petition to review Petitioner- Association Lakes, Inc., Wisconsin Appellant, *2 v. Department Resources, Wisconsin Natural
Respondent-Respondent. Petitioner- Realtors Association, Inc., Wisconsin Appellant, v. Department Resources, Wisconsin of Natural
Respondent-Respondent.
Court of Appeals 1, argument May No. 99-2306. Oral 2001.—Decided 22, August 2001 WI App (Also 168.) reported in 635 N.W.2d *7 petitioner-appellant ABKALimited On behalf of the Abbey Partnership petitioner-co-appellant The and the *8 Association, Ltd., there were Harbor Condominium joint by Anthony Earl, briefs S. Waltraud A. Arts Brady, & LLP of Madi- Quarles
Brian W.Blanchard of Brady Weiss, Berzowski, son; Alan Marcuvitz of & Donahue, Milwaukee; LLP of Lisle W. Blackbourn of Godfrey, Neshek, Worth, Conover, Leibsle & S.C. of Foley Shriner, oí & Elkhorn; and Thomas L. Jr. Lardner by arguments of Milwaukee. There were oral Thomas Shriner, L. Jr. petitioner-appellant
On behalf of the Wisconsin by Association, Inc., Realtors there were briefs Winston Godfrey A. Ostrow and Donald L. Romundson of & Bay. arguments by Kahn, S.C. of Green There were oral Donald L. Romundson. petitioner-appellant
On behalf of the Wisconsin Lakes, Inc., Association of there were briefs William Mary Wheeler, P. O'Connor and Beth Peranteau of Van Anderson, Sickle & S.C. of There were oral Madison. arguments by William P. O'Connor. respondent-respondent
On behalf of the Wisconsin Department Resources, of Natural there was a brief attorney general, Greene, John S. assistant and James arguments Doyle, attorney general. E. There were oral by John S. Greene. respondent-respondent
On behalf of the Geneva Conservancy, Inc., Lake there was a brief and oral arguments by King King, Attorney Peter B. of Peter B. at Law, S.C. of Fontana. respondent-respondent
On behalf of the Oneida County, arguments by there were briefs and oral corporation Heath, Lawrence R. counsel. Snyder, Nettesheim, EJ.,
Before Brown and JJ. SNYDER, J. This case is the result of five separate cases consolidated before the circuit court. (ABKA) Partnership Abbey ABKA Limited and The *9 (the Association, Harbor Condominium Ltd. Associa- tion) appeal denying from a circuit court order their joint petition judge's for of an review administrative law (ALJ) regarding decision their Wis. Stat. ch. '30 (1999-2000)1 permit application to the Wisconsin De- (DNR). partment of Natural Resources ABKA owned sought ownership marina and to convert of all slips condominium-style ownership 407 boat to a called expressly "dockominiums." The ALJ limited the number slips of boat ABKA that can convert to dockominiums. challenge juris- ABKA and the Association the DNR's require permit diction to a new and to limit the number of dockominiums in addition, the Marina. In ABKAand argue the Association that the ALJ's decision to limit arbitrary unsup- the number of dockominiums is ported by record evidence.
¶ 2. The Association, Wisconsin Realtors Inc. (WRA) appeals arguing order, also the circuit court's guidances, that the DNR's used the DNR to arrive at appropriate illegal number dockominiums, are attempts rule-making requirements to circumvent the § 227, of Wis. Stat. ch. that Wis. Admin. Code NR 326.04(8) change invalid, is that the to condominium-style ownership allowed, and that the authority require DNR did not have the a new Wis. § permit. 30.12 Stat.
¶ In addition, the Wisconsin Association of (WAL)appeals Lakes, Inc. the circuit In court's order. argues to ABKA WRA, contrast that WAL ABKA's development dockominium violates the trust by purporting convey perpetual doctrine exclusive statutory All references are to the 1999-2000 version unless otherwise noted.
right portion Geneva, to a of Lake exceeds reasonable rights, provisions and violates the of Wis. § Stat. 30.133. agree that the dockominium 4. We with WAL
development proposed ABKA and the Association *10 doctrine. violates the trust
FACTS Abbey ¶ 1994, 5. In ABKAwas the owner of the at (the Abbey Geneva; Fontana at Lake the Harbor Har- bor) by dredging created the of Potawatomi Creek was July pursuant permit a in issued the Wis- issuing consin Public Service Commission. When this permit, the PSC also authorized the construction of the eventually slips first 200 boat 407-slip of what would become the permits issued, Marina. Additional were later the most recent issued 1987 for the construction of piers slips in additional and the Harbor.
¶ The 6. Harbor consists of a man-made basin slips, swimming pool, parking area, with 407 boat a a slips and a Harbor House. The Marina's 407 boat were rented to boat owners on an annual basis with the option private 1994, ABKA, to renew. In late the owner Marina, of the decided to convert the Marina to a ownership began preparation condominium form of and proposal of a condominium declaration. ABKA's did not change configuration any number, the size or struc- simply changed Marina, ture in the but the style. During preparations, to condominium these the language ABKA DNR contacted and asked to review the proposed of the condominium declaration. reviewing language proposed
¶ 7. After of the upon declaration, condominium the DNR insisted lan- guage changes approved in the declaration. The DNR language changes Abbey the revised Harbor (Declaration), Condominium Declaration which was February filed on 28, 1995.
¶ 8. Under the revised terms of the Declaration, separately property each unit owned held in fee simple title the unit owner. A dockominium unit is space defined aas cubicle of in a lock-box located within building known as the Harbor House at the Marina. corresponds Each has number which unit/lock-box existing slip an boat at the Marina. Each unit owner has right space pier piers to use the beside the or corresponding to the unit number. independent ownership In addition to the
each unit, the own, unit owners as tenants common with each other, all of the common elements of the including condominium, all of estate, the real parking piers, House, Harbor lots, all docks swimming pool. freely A unit owner is entitled to sell, lease, sublease, rent or license the unit, and is *11 required keep adjacent to the structures to the unit in good repair.
¶ 10. Under the terms of the Declaration, each required unit owner is to be a member of the Associa- responsible repair tion, which is maintenance, for the replacement dredging and of all elements, common landscaping. Harbor and The Declaration also endows authority compli- the Association with the to enforce ance with its terms and to assess unit owners for the operation, costs associated with the maintenance and repair of the Marina. language
¶ 11. After the of the Declaration was changed, apply the DNR maintained that ABKAhad to § permit for a new Wis. Stat. 30.12 to convert the ownership. Marina to condominium The DNR main- § tained 30.12, that under a certain number of boat slips and set aside for to be withheld from sale needed challenged public. ABKA While rental to the seasonal authority require permit and to both a new the DNR's 13, 1995, March set-asides, on a certain number § permit, application for a new 30.12 ABKA filed an conveyance requesting for the of 407 boat authorization slips private form of under a condominium owners reserving right challenge and jurisdiction in this matter. The Association was DNR's proceedings. co-applicant subsequently made a Conservancy, April Inc. 5, 1995, Geneva Lake On (Geneva Lake) objected permit application, to the Hearings and referred to the Division of which was then hearing. Pending hearing Appeals a contested case for permit application, the and ABKAreached on the DNR agreement Declaration; file the an that ABKA could validly current structures at the Marina were that the hearing permitted; case would deter- that a contested any, many slips, aside; if needed to be set mine how boat selling begin up units, that ABKA could to 282 and setting hearing at least 125 units until a decision aside rendered. was 18, and December 12. On November 13-17 hearing held an ALJ
1995, a contested case was before permit applica- regarding ABKA Association's County Lake, WRA, tion. WAL Oneida Geneva (Oneida) fully participated hear- the contested case intervening parties; support ing was in as WRA project, Lake, WAL and condominium while Geneva opposed. July 1996, the ALJ issued 29, Oneida On were jurisdiction finding decision, that the DNR did have his *12 § permit, require 30.12 and that 287 to a new Wis. Stat. slips the Marina must be set aside for of the 407 at seasonal rental.
806 August ¶ petition 23, 13. On 1996, ABKA filed a judicial for review of the ALJ's decision in both Wal- county county. worth peti- and Dane WRA also filed a judicial tion for in review Walworth and Dane counties. petition
WAL then filed a for review of the ALJ's county. By stipulation, decision in Dane on 14, October County 1996, the Walworth Circuit Court entered an transferring county order the Dane cases to Walworth county consolidating all of the above actions.2 briefing argument, 14. After and oral on 4, June affirming 1999, the circuit court issued a decision denying ALJ's decision and entered a final order petitions for review on June 24, 1999. ABKA, the Association, appeal. WRA and WAL filed notices of separate petitions Geneva Lake and Oneida filed to intervene. On 19, 1999, October ABKA filed a motion, parties agreeing with all to motion, said to consolidate appeals. the above We determined that consolidation of unnecessary the above actions was because the cases were in consolidated the circuit court and were resolved single in a order; circuit court thus, the notices of appeal appellants gave single of the various rise to a appeal proceeding. Furthermore, we denied Oneida's petitions and Geneva Lake's However, intervene. we they parties held that because were court, the circuit appellants, they were adverse some or all respondents were who could defend the circuit court's against challenges by appellants. order made to it addition, 1996, In Inc., October Development, DFS Chicago Charles E. Eklund and Title Company Insurance filed in the circuit proposed petition court a judicial for review applicants for party petitioners. intervention as This motion to intervene was denied 12,1996; circuit court on December ultimately we 10, affirmed this denial on December *13 September certified this
¶ 20, 2000, we On 15. Supreme Court, as the matters matter to the Wisconsin represent impression and are ones of first at issue important regarding riparian public policy questions public certified as to trust doctrine. We and the development, upon based a dockominium one issue: Is law, that limits access real estate condominium navigable private owner- in favor of to waters ship trust doctrine a violation of the Wisconsin request certification, After our for and Stat. ch. 30? Wis. supplemental to file a ABKA filed a motion for leave Supreme accepted certifica- Court The Wisconsin brief. 19, 2000. tion on October
¶ 13, 2000, ABKA and the As- 16. On November clarify scope of the issues filed a motion to sociation Following parties' and all numerous varied certified. responses motion, the ABKA and the Association's Supreme its Court rescinded withdrew Wisconsin accepting certification, and matter was re- this order to us. turned OF
STANDARD REVIEW appeal ¶ an from a circuit 17. This case involves affirming an the decision of administrative court order agency. appeal order, an we review In an from such agency, circuit court. Sea View not the decision Club, 138, 145, 2d DNR, Inc. v. 223 Wis. Estates Beach (Ct. 1998). agency's App. an Review of 588 N.W.2d667 Sterlingworth to the record. Condo. decision is confined Ass'n, 710, 720, 2d 556 N.W.2d791 DNR, Inc. v. 205 Wis. (Ct. 1996). App. agency A of review for 18. different standard questions applied questions for of law
decisions is pre- Estates, of fact. Sea View 223 Wis. 2d at If question employ sented fact, with a we the "substan- tial evidence" standard. Id. Substantial evidence is such accept relevant evidence as a reasonable mind would as adequate support a conclusion. Id. If the issue presents question modify law, we must set aside or *14 agency agency the action if we find that the has erroneously interpreted provision of law and a correct interpretation compels particular action, or we shall agency remand the case to the for further action under interpretation provision a correct of law. Id. To apply end, this we one of three levels of deference to the agency: "great weight," weight" conclusion of the "due or "de novo." Id. agency's interpretation
¶ application 19. An or of may great weight a statute be accorded deference, due weight depending deference or de review, novo on the circumstances. UFE Inc. LIRC, 274, 284, v. 201 Wis. 2d (1996). great weight 548 N.W.2d57 We accord deference only following requirements when all four of the are agency charged by legislature met: the was the with duty administering interpreta- the of statute; the the agency long standing; agency tion of the is one of the employed expertise specialized knowledge its or forming interpretation; agency's interpre- the and the provide uniformity consistency tation will in the application great weight of the statute. Id. Under the uphold agency's standard, we will an reasonable inter- pretation contrary meaning that is not to the clear statute, the if even we determine that an alternative
interpretation is more reasonable. Id. at 287. weight
¶ 20. We will accord due deference when agency experience "the has some in an area, but has not necessarily places expertise developed it in a which the regarding judgments position inter- the make better pretation The Id. at 286. than a court." of the statute agency due under an administrative deference allowed legisla- largely weight because the accorded review is charged agency the enforcement the with ture has question. standard, will this we Id. Under the statute agency furthers decision that a reasonable not overturn purpose determine that unless we of the statute interpretation under the a more reasonable there is agency. applicable Id. at made than that facts Finally, employ de novo review when we will 286-87. agency legal of first is one reached conclusion position agency's impression on the statute or when guidance. provide no real as to been so inconsistent has Id. at 285. argues deci- that the DNR's Oneida While weight, great ABKA,the Asso- accorded
sion should be *15 Lake all and Geneva WRA, WAL, the DNR ciation, agency's be accorded decision should maintain that the agency's weight The de novo. and be reviewed no should "great weight" standard; not meet the decision does charged although legislature with the has the DNR including duty enforcing laws, environmental of navigable piers regulation Estates, water, Sea View of 149, of a marina's 2d at the issue 223 Wis. apd private property own- condominium conversion pre- impression. ership also This an issue of first is weight" deference, and thus de novo review "due cludes required. is
810 OWNERSHIP, OF PRINCIPLES PROPERTY REAL AND RIPARIAN ¶ 22. The instant issue involves conversion of riparian property, privately real a marina owned partnership, private property limited to another form of ownership. perti- Identification and definition of legal necessary nent and terms doctrines is for a thor- ough understanding of the issues. privately 407-slip
¶ 1995, In ABKA owned the "[a] Marina. A "marina" is as defined boat basin that has moorings, supplies, docks, and other facilities for small (2d College Heritage boats." American Dictionary 766 ed. 1982). ownership The of land has often been referred to rights." Corp. as a "bundle of ex rel. State Wis.Edison v. (Ct. Robertson, App. 569, Wis. 2d 561, 99 299 626 N.W.2d 1980). rights" theory property This "bundle real right it, it, asserts that the owner has the to enter use away, give it, it, sell lease or it as he or so she chooses. rights guaranteed by Id. at n.11. These are 569 law but subject governmental private are also certain restrictions. Id. Marina, 24. The it Lake because borders riparian property, ABKA
Geneva, is also is a thus riparian Riparian who owner. owners are those have body title to the on of land the bank of Ellingsworth Swiggum, 142, 148, water. v. 195 Wis. 2d (Ct. 1995). App. A owner N.W.2d rights upon accorded certain based title to owner- ship property. Estates, of shorefront Sea View 223 Wis. 2d at 157. These right are defined and include the well *16 waters, to shoreline have use the and access to right domestic, to reasonable use of the waters for to right and the purposes, recreational and agricultural navigation. in aid of similar structure construct a or pier to to exclusive possession Id. A riparian owner is entitled and to reach water necessary navigable extent Id. swimming. bathing access for have reasonable ABKA filed a condo- 1995, In February 25. ¶ Marina boat and sell the Declaration to convert minium units; this as "dockominium" owners private slips essence, in a condominium is, type scheme dockominium are Marina. Dockominium projects of a docko- law because on condominium premised typically involve in that both minium is similar to a condominium an previously of asset co-ownership division Lake Geneva Wagner, Karin J. single entity. owned aby Riparian Rights An Exercise Dockominiums: of Doctrine, 4 Wis. Envtl. L.J. the Public Trust Violation of 1997). (Summer 243, 245 defined as sub- "property "Condominium" is under declaration established to a condominium
ject 703.02(4). A § "declaration" Wis. Stat. chapter." this a becomes property as "the instrument which defined declaration as amended to this and that subject chapter, contain all of 703.02(8), § and must time," from time to A § 703.09. condo- elements set forth at Wis. Stat. defined as minium "unit" is any type for a condominium intended part air use, including one or more cubicles of
independent space one or more rooms or at or more levels of or one floors, parts more or spaces on one or enclosed located may include 2 or more thereof, building. A unit noncontiguous areas. 703.02(15). elements" of a condo- The "common
Section its except "all of a condominium minium are defined as *17 703.02(2), § units," while the "limited common ele- ments" are defined as "those common elements identi- plat fied in a declaration or on a condominium as reserved for the exclusive use of one or more but less 703.02(10). all than of the unit owners." Sec. statutory 27. No similar definition for "docko-
¶ minium" exists. While a dockominium can be consid- origin ered, from the mere name, of its a condominium- style precisely marina, a dockominium has been more community privately defined as a "dockside slips purchased owned boats moored in that are for year-round living.... slip community." A in such a (4th ed. Heritage at Dictionary 2000) American "slip" A http://www.bartleby.com/61/53/D0315300.html. "docking place ship
defined as a for between two piers." Id. at http://www.bartleby.com/61/54/S0475400.html. Here, Declaration, under a docko-
minium unit consists of separate
that area of the condominium intended for independent, use, private comprised aof cubicle of space defined a "Lock Box" located within the Harbor House.... Each unit shall include as an appurte- nance,3 riparian rights standard of owners of water- Law, front real estate under Wisconsin and the use of an assigned slip corresponding boat desig- to the unit part nation as a common elements....
The Declaration also states that the common elements do not include the units, above-described individual but "[e]ach appur- owner, unit aas limited common element
3An "appurtenance" "[s]omething belongs is defined as that (7th something or is attached to else." Black's Law DiotionaRY 1999). ed. exclusively have unit, to his shall tenant piers correspond- pier space or beside use of the slip." ing Each . . . for use as boat to his unit number simple interest in his or her fee has a unit owner in the interest unit, and an undivided dockominium common and limited and facilities common elements all other unit in common with elements as a tenant *18 "[a]n simple in interest interest means A fee owners. property being allowed interest that, the broadest land holder dies without until the current law, endures 1999). (7th 630 ed. heirs . . ." Black's Dictionary Law tenancy by "[a] "Tenancy two defined as in common" is equal unequal persons, shares, undivided or or more having equal right possess person the whole an to each right survivorship." property at Id. 1478. but no of riparian ABKA have such as 29. While owners rights incidents of that are certain well-established adjacent property water, to the of their subject public are doctrine, these under the trust navigable right public's State v. to use waters. to the (1983). The 454, 469, 338 N.W.2d492 Bleck, 114 Wis. 2d public IX, roots in article section doctrine has its trust Constitution, under which the state 1 of the Wisconsin public navigable for waters trust holds the beds of 443, DNR, 430, 232 2d 606 Borsellino v. Wis. use.4 1999). (Ct. regulation App. The and enforce- N.W.2d255 legislature public and the ment of this trust rests with the Id. DNR.
4 precedes our state fact, public trust doctrine In the n.6, 430, DNR, 2d 443 606 v. 232 Wis. constitution. Borsellino (Ct. 1999), of the Northwest citing to article IV App. 255 N.W.2d of 1787. Ordinance Although public origi-
¶ 30.
the
trust doctrine was
nally designed
protect
navigation,
to
commercial
it has
expanded
protect
public's
navigable
been
to
the
use of
purely
nonmonetary pur-
waters for
and
recreational
poses.
policy
Bleck,
¶ 31. The common also reasonable law Sterlingworth, use owners. 205 Wis. 2d at *19 "[E]very right riparian acquires, . . . which owner such, land, as to the waters ... his restricted always use, to that which is a reasonable and ... these by the terms are to be measured and determined extent capacity it [lake], and put, the uses to which has been of the riparian
and the that other on the owners (citation omitted). [lake] same also have." Id. legislature charged
¶ DNR 32. The has the with duty enforcing including the the laws, of environmental regulation piers navigable pursuant to of waters Wis. § §§ and 30.12 30.13. Both 30.12 and Wis. Stat. Stat. codify generally ch. law doc- 30 a number of common 815 navigable regarding of the beds of the trines 101, 408 91, 2d Trudeau, 139 Wis. State v. waters. (1987). of the is a codification Section 30.12 N.W.2d pub against on encroachments law restriction common licly 102, and its Trudeau, 2d at beds, 139 Wis. held lake placement regulate fill or structures the of to function is regulate navigable not to the waters, but the beds of on enjoyment Bleck, 114 2dWis. of those waters. use way accommodat a rational of 30.12 is at 467. Section public ing reasonable doctrine and the trust both "recognizes of certain the tradition doctrine, as it use yet riparian rights unique that owners, ensures to place riparians on the beds to structures will not be able they navigable to the if are detrimental waters paramount Bleck, 114 2d at interest." Wis. § permit if the authorized A 30.12 will not be 469-70. materially proposed owner structure infringes upon navigation or if the structure obstructs 2d at 469. Bleck, 114 Wis. interest. Supreme stated Court has 33. The Wisconsin that ponds, all lakes and and of to the beds of
[t]he title well, ordinary line up in fact as to the navigable rivers state, mark, within the boundaries high-water into in it the instant of its admission became vested at Union, preserve the same so as to in trust to hold enjoyment of the waters of such people forever the lakes, rivers, the same extent that the ponds, at the common enjoy tidal waters public are entitled to law. omitted). (citation
Trudeau, 139 Wis. 2d at
DISCUSSION the DNR Jurisdiction of argues
¶ 34. ABKA5 first that the DNR lacked jurisdiction require apply to it and the Association to § permit. Specifically, for a new Wis. Stat. 30.12 ABKA argues § provide that 30.12 does not a valid basis for the existing permit. DNR to review its agreement ABKA and the DNR reached an agreed apply permit,
wherein ABKA to for a new but right jurisdiction. reserved the contest DNR's agreement However, as both this and the noted, ALJ we understanding. are not bound this addition, In while provided thorough analy- the ALJ and well-reasoned § sis authority, reach of Wis. Stat. 30.12 and the DNR's argument by we hold that ABKAwaived this applying permit place. for the new in the first application specifically
¶ 36. The filed ABKA application pursuant states that the is filed to Wis. Stat. application ch. 30. While ABKA asserts that "the jurisdiction require DNR has no a review or modifi- permit, "waiving cation of' the and that ABKA not was limiting jurisdiction, or its to contest" the DNR's by applying permit willingly placed for the it itself jurisdiction under the DNR's and the reach of ch. 30. may application protest,
ABKA
filed the
have
under
but
application.
the DNR did not force it to file the
ABKA
application
could have refused to file the
and risked an
proceeding
imposition
enforcement
or the
of fines and
penalties,
challenged
wherein it could have
the DNR's
authority.
Sterlingworth,
See
judgment under Wis. in circuit court action asking § its court to determine 227.40, a circuit Stat. § obligations Instead, 30.12. under Wis. Stat. and permit application. As both file a ch. 30 it chose to any agreement reliance on the noted, ALJ and the agreement of a calculated business the result was appli- gamble by As ABKA, at ABKA's own risk. done placed themselves cants, ABKA and the Association foreclosing thereby jurisdiction, under the DNR's jurisdiction argument over this had no that the DNR project.
Public Trust Doctrine argues de-
¶ that ABKA's dockominium 37. WAL by attempt- public velopment trust doctrine violates the right portion ing convey perpetual to a of exclusive Lake Geneva. pause
¶ ALJ for the to commend the 38. We analysis professional that re- and careful, extensive agency ALJ under review. As the in the decision sulted in-depth analysis, comprehensive and this in his noted impression and the law Wisconsin is a matter of first form of whether the dockominium is silent on the issue public permissible trust under the of is concept the dockominium doctrine. It is clear that private represents claim a confrontation between public slip space in the water. Mark and interests boat Riparian Expansion Cheung, An Dockominiums: Rights Doctrine, 16 B.C. the Public Trust that Violates 1989). (Summer 821, L. Rev. 825 Envtl. Aft. Supreme Court's seminal The United States public held that the state trust doctrine
decision on the its of the waters within is directed to act as trustee protect public's right borders and to to use the Illinois, 387, waters. Illinois Cent. R.R. Co. v. 146 U.S. (1892). public premised The trust doctrine is on the private ownership public idea that proper resources im- provides public right with a to the Cheung, supra, benefit of certain resources. at right supplants any private 830-31. This interests imposes responsibilities upon government strict as government trustee of these Id. The resources. *22 relinquish any cannot its trust duties associated with public property. Id. at 831. Regulation private riparian
¶ 40. uses is essen- protecting if tial the state is to fulfill its role of state Wagner, supra, waters. at 247. When conflicts occur riparian rights state, over the use of the of the waters always must surrender to interest. Id. at 248. repeatedly acknowledged obligation Wisconsin has its safeguard navigable the state's water resources for enjoyment public. use, and benefit of the Id. at 247. provides Here, section 5 of the Declaration description and a units; definitions of the docko- minium unit is separate
that area of the condominium intended for use, independent, private comprised of a cubicle of by a space defined "Lock Box" located within the Harbor House as in the Condominium Plat.. . Each shown ripar- appurtenance, unit shall include as an standard ian of owners of waterfront real estate under Law, assigned slip Wisconsin and the use of an boat corresponding designation part to the unit as a common elements of THE ABBEY HARBOR CON- DOMINIUM.
According Declaration, to the the common elements property, and of the real and real facilities consist improvements appurtenances property and interests, except Declaration, the above- in this described and units; the common elements described individual facilities limitation, include, the land and real without
shall including herein property interests described... thereon, the ma-
buildings improvements and located shoreline, along sidewalk said shore- rina sea wall and boardwalks, docks, piers pilings and con- line ... all marina, all as shown on the tained within the House, Plat ... the Harbor outdoor Condominium sidewalks, launching swimming pool, ramp, boat drive- services, ways walkways, utility utility lines and including leading up utility ped- to the conduits those respective slips, parking serving estal boxes boat Property, and those areas within the condominium improvements, structures and facilities shown on the Plat as certain "Dock Boxes" Condominium as well Property, on the condominium but not shown located Plat, any parts and all other on the Condominium Property of the condominium as described or elements in the future in this Declaration and additions thereto unit or the Association of Unit made owners *23 (hereinafter described). Owners slips: include the boat
The limited common elements owner, appur- a limited common element Each unit as unit, rights exclusively tenant to his shall have space pier piers correspond- the the or to use of beside ing unit number as in the Condominium to his shown Plat, slip.... placement The of for use as a boat in, of, the the riparian structures and use waters ABBEY part marina as a of THE HARBOR CONDO- subject rights MINIUM is to the of the members of public and the under Wisconsin law State Wisconsin subject permits issued the State of Wisconsin. simple ¶ 42. Each unit owner owns a fee interest in his or her condominium unit and an undivided in interest the common elements and facilities and limited common elements as a tenant in common with all other unit sell, owners. Unit owners can lease, sublease, rent, license or otherwise contract for the usage respective slip, of their boat without restriction, subject permits, long-term to state on a or short-term basis, in their sole discretion. Individual unit owners required provide necessary are to maintain or all insur- appurtenance. ance for their unit and its Technically, conveyance ¶ 43. of the docko- minium unit as defined the Declaration fulfills requirements of Wisconsin's condominium law because independent the unit is intended for use is an space building, enclosed located within a a lock-box Wagner, supra, the Harbor House. at 251. However, unlike units, most condominium the lock-box itself has appurtenant value; no rather, inherent at- conveyance commodity. tached to the are the valuable agree degree, Id. We the ALJ that, with to some "the concept legal dockominium involves a fiction: that selling ABKA is units, lock-box condominium rather pier slips." than the By definition, a "dockominium"is a "dockside
community privately slips owned boats moored in that purchased year-round living.... slip are for A in such a (4th community." ed. Heritage Dictionary 2000) American http://www.bartleby.com/61/53/D0315300.html. at Here, lock-box, while dockominium unit is labeled a appurtenant to the lock-box is the of an exclusive use assigned slip part boat as of the common elements. As slip conveyed element, common the boat to the unit owners and the Association as tenants common. *24 "slip" "docking place is, definition, a a
But boat ship piers." Id. for a between two at http://www.bartleby.com/61/54/S0475400.html.In other slip words, a the water and the lake bed under the boat is attempting convey portion Thus, ABKA of water. is the waters of Lake Geneva to the unit owners as acknowledges tenants in common. The ALJ's decision "pier [the slip Declaration, the the indi- that under is provide owner's] and cannot be considered to vidual benefit." The trust doctrine should not be manipulated conveyance to allow a of interest the Cheung, supra, at water as tenants common. 852. existing An examination of literature on dockominiums this conclusion. A docko- confirms adversely impact quality, quan- minium does not water tity despite flow, or but the dockominium's creative manipulation riparian rights, of it does obstruct the waterways public's complete access to the and creates a private ownership upon claim of water owned public. concept fact, Id. at 825. In the dockominium is may founded on the idea that individuals own exclusive slip space. control of the water within a boat Id. at 822. purchasers riparian ¶ 46. Dockominium become parcels owners of the individual
understandably expect boater, that no other or even a occupy slip space. swimmer, can Id. at 844. This suggests expectation that the dockominium owner slip space. the water owns within Id. As the ALJ Abbey including noted, Harbor, of the use waters legally open slips, in the waters boat to members public. acknowledged However, the ALJ also that public's "there is an inherent conflict between the use of expectations prop- these waters and the of an exclusive erty pier slips." interest in the *25 marketing nothing
¶ 47. ABKA's materials do to dispel expectation. purporting One advertisement that explain program to the dockominium addresses the purchase price slip advantages owning of a and the a slip renting versus one. This advertisement asserts that passed by a dockominium can sold, be transferred or any the, inheritance at time. ABKA and Association prospective buyers permanent advised to "look into a slips berth" at the Marina and stated that "individual can be owned transferred deed." The ALJ question marketing commented that without the initial "sought blatantly public of the dockominiums to sell private waters for benefit." As the noted, ALJ marketing language was less blatant in more recent purchasers may versions; however, "dockominium still they purchasing permanent rights public believe are in purchase waters as result of the of a . . . unit." argued ABKA before the ALJ that a docko- conveyance minium is consistent with the trust language doctrine because the in the Declaration con- subject slip tinues to regulation. dockominium to holders state agree
However, we with the ALJ that "[mjarketing pier slips give . . . could unit owners expectation property a false of a interest in any waters" and that meaningless restrictions "could be rendered expectation property once the of a interest has been established."6 Despite language
¶ 49. the use of the restrictive approval application Declaration, of ABKA's would Supreme A recent United States opinion Court lends Island, Palazzolo v. Rhode weight expectation. to this 533 U.S.
606,
(2001),
impact
give prospective expectation they unit owners the that corporation
Palazzolo was a shareholder in a that pur- 1959, parcel chased a waterfront most of which is salt marsh subject 1971, flooding. to tidal Id. at 2455. In Rhode Island (Council) agency created protect an coastal wetlands that parcel. 1978, included this wetland Id. at 2456. In Palazzolo obtained sole parcel corporation after the 1983, terminated. Id. In permission Palazzolo asked to con- struct a wooden bulkhead and fill in the entire marshland request. 1985, area. Id. Council denied this In Id. Palazzolo *26 permission eighteen asked to fill in eleven of wetland acres to private build a beach club. Id. Council request denied this on the that compelling public purpose basis no would be served. Id. action, arguing Palazzolo filed an inverse condemnation that regulation the wetlands had taken property his without com- pensation though regulation even the had existed at the time he became the sole owner. Id. effect,
In buyer's Palazzolo indicates that a acquisition of title, regulatory effective, even after rules become does not bar takings a claim: accept rale, postenactment
Were we to the State's transfer of obligation any title would absolve the State of its to defend action restricting use, land no matter how extreme or unreasonable. A allowed, effect, put expiration State would be in to an date on the Takings ought generations, Clause. This not to be the rale. Future too, right challenge have a to unreasonable limitations on the use and value of land. justification Nor does the of notice take into account the effect on enactment, prejudiced at owners the time of who are as well. attempt challenge regulation, Should an owner to a new but not process ripening survive the of his or her claim... under the proposed right compensation may by rale the to not be asserted an successor, may heir or and so not be asserted at all. The State's rale property, would work a critical alteration to the nature of as the newly regulated stripped ability landowner is of the to transfer possessed prior regulation. interest which was The State may Takings not this a means secure windfall for itself.... The quixotic. purchasers Clause is not so A blanket rale that with gain private rights public in would vested waters. plan purports permanent ABKA's to create in an aptly "[c] public The ALJ that area water. stated on- slips all version of to dockominium status would long-held public violate notions of the reasonable use of riparian." fail to trust waters We see how the conveyance separate private property of 407 interests public public doctrine, of the waters is violative trust conveyance separate private property but the of 120 public simply, interests waters is not. Put the con- veyance conveyance slips in of 7 or the of 407 boat proposed by public manner ABKA violates the trust doctrine. development In essence, a dockominium at-
tempts to offer a small class of boat the exclu- owners permanent right occupy and to sive own portion provides to the trust waters and access group public, waters to a select of the which fails to satisfy purpose trust doctrine. Cathe- In Hall, rine Robinson Dockominiums: with Conflict right ripe compensation notice have no when a claim becomes *27 duty compensate an for too blunt instrument to accord with the is taken. what Id. at 2462-63. suggests
Palazzolo that a dockominium owner would have state, ripened takings exercising claim in the future if the its public responsibility, trust doctrine ever tried to interfere with appurtenant pier slip. and boat the owner's entitlement to the However, parties in the case at hand have had none arguments regarding develop a chance to address Palazzolo and issues; thus, making in rely its we do not on Palazzolo our in only potential implications mention it for its decision. We as cases such this.
825 Doctrine, the 331, Public Trust Suffolk U. L. Rev.
(Summer 1990). portion A dockominium removes of public availability trust area from free for the directly underpinning citizens, which conflicts with the public and careful limitations of the trust doctrine. Id. private ownership completely Exclusive contrary of water is public to the foundation of the trust doctrine. Id. may place
¶ 51. The DNR allow individuals to docks the water for access reasonable use of the by issuing permits may passing water but not allow Cheung, supra, Navigable of title to the water. at 852. unquestionably belong people, waters to the and to private slip allow to claim individuals the dockominium space slip property or the water within the as a interest public By permit- is violative of the ting trust doctrine. Id. private the conversion of marinas to dockominiums proposed as ABKA here, the DNR has allowed control private over trust lands be vested in individu- als, in violation of the trust doctrine.7
CONCLUSION slip A boat definition the water and piers; lake bed between two no one but state can Riparian own the water and the lake bed. owners do not possess only right lake, water in a but to reasonable "[r]iparian acquire use of the lake; water owners usufructuary right at most the to water based on possession outright ownership dominion, or but not the water." Id. at 839.
7 Because our
disposes
resolution of this issue
the appeal,
we need not
remaining arguments.
address the
Berge,
Sweet v.
(Ct.
1983).
61, 67,
113 Wis. 2d
App.
826 proposal allows ¶ dockominium 53. ABKA's ownership of to transfer and the Association ABKA private public individuals and therefore is to waters doctrine. We there- the trust direct conflict with affirming the of the circuit court the order fore reverse granting ABKA a ch. 30 Wis. ALJ's decision Stat. permit.
By reversed. the Court.—Order join {dissenting). in the
¶ I BROWN, J. 54. majority's Unlike of the ALJ's work.1 commendation reasoning agree majority, I with the ALJ's however, the circuit court which I would affirm the and conclusions. decision. affirmed the ALJ's majority engine powering the
¶ bottom, At the 55. thought opinion a mar- are the that dockominiums is manipulation" keting which "creative "scheme" or slip persons purport a within boat to sell the water predicate space. idea is that for this The factual really riparian purchaser in the normal a owner not is a lock-box, small term, the owner of but sense post The box. looks like a office enclosure that metal majority is the lock-box to a ruse because likens this any of the water value without the absent attempts majority opinion slip. What within marketing concept as antithetical this do is to outlaw public trust doctrine. wrong predicate we and, once The factual the conclusion hand, then the true facts at understand concept must doctrine trust violates that the simply purchasers lock-box. here do not own The fall. they They what we understand more and when own they apparent owners are common that own, it is quote I the ALJ: land. Jeffrey Boldt. The ALJ was *29 The individual "condominium unit" owners indi- vidually only lock-box, box, own post similar to a office in located the Harbor House.... The lock-box consti- meaning 703.02(15), tutes "the unit" within the of sec.
Stats. The separately independently unit is owned by each condominium owner and is intended for inde- itself, pendent, private use. In the lock-box not does riparian confer status on condominium unit owners.
However, the provides Declaration that the unit are owners tenants common with each other of all of the common including riparian elements all of the real improvements estate and House, such as the Harbor seawall, sidewalk, launch, lot, boat parking docks and piers and swimming pool. legal . .. The question is holding whether property such in the form aof common element of a Condominium Declaration constitutes "riparian" 30.12, status under sec. Stats. Section 703.04, Stats., unit, provides that: "A together with its elements, undivided interest in the common for all purposes property." constitutes real The individual lock-box condominium unit owners are tenants in com- property subject mon in the Declaration, to the includ- ing approximately riparian 20 acres of property nearly riparian 4200 feet of property. shoreline ... Accordingly, riparian holding status vests from these lands in common under the terms of the Declaration. passage,
¶ 57. From the above it is clear that the purchasers simply are more than owners of a lock-box. They bogus riparian They are not owners. share own- ership of more shoreline than most individual owners of riparian They twenty land this state. also share acres They of total land. further share of a swim- ming pool Certainly, and a Harbor House. the owners do says they not live on the land. But there is no law that they riparian have to before can be considered owners. majority opinion goes wrong I think where the is that it purchasers fake considers be owners. They They sharing owners, are real are not. albeit property in common. majority marketing
¶ 58. The is disturbed They concept sellers. are disturbed the notion buyers that the will considér themselves owners spoke quote The ALJ to that I water. as well. the ALJ again: question marketing
There is no
that the initial
sought
blatantly
the dockominiums
sell
wa-
*30
private
language
ters for
benefit. ... While the
has
versions,
been less blatant
in recent
dockominium
purchasers may
they
purchasing per-
still
are
believe
rights
manent
waters as a result of the
purchase of a condominium unit. Section 7.2 of the
slip
Declaration states that each boat
owner will have
exclusively
a limited
appurtenant
"as
common element
riparian rights
space
to his unit..
.
to use of the
beside
pier
piers corresponding
the
or
to his unit number."
However,
riparian rights
it is clear that
derive not from
such,
purchase
the
a unit as
but
the common
of
from
(Emphasis
elements which include
lands.
added.)
may
purchasers
¶ 59. The ALJ had it correct. The
they
bought
ownership
believe
have
water.
they actually
However,
not mean that
own it.
this does
illegal,
they
ownership
is,
If
and it
then
of the water is
bought only
common
of the terra
have
firma
they got
right
they
If
of access to the water.
think
with
they bought something they
are not
raw deal because
buy,
developer or
entitled to
their recourse is to sue the
selling
or
for
an illusion.2
seller
even
broker
606,
Island,
majority
The
cites Palazzolo v. Rhode
533 U.S.
(2001),
proposition
"suggests
that it
that
Palazzolo has owned acres of "coastal wetlands" adjoining uplands in Rhode Island since 1959. Id. at 2455. At time, property that he subdivided this eighty into lots. He still seventy-four owns develop land, of them. Id. He desired to marshland, but because most of it was he wanted to add dirt to dry raise the level of his lots and capable convert them to land development. applications The regula- were denied based on place purchase. tions in before his appealed. Id. at 2456. He The way case made Supreme its to the United States Court. (1)
Three issues regu- were before the Court: whether a latory takings categorically claim is barred whenever the enact- regulations ment of the predates the acquisition claimant's (2) the property; whether a landowner must file additional applications seeking permission for "less ambitious uses" in (3) ripen claim; order takings remaining whether the permissible regulated uses of property economically are viable merely property greater because the retains a value than zero. (1) Id. at Supreme 2457-58. The Court held that: the claims (2) ripe adjudication, 2462; were for acquisition see id. at of title after the regulations effective date of the takings does not bar a (3) claim, 2464; see id. at undisputed since there was value *31 portion land, of a of his precluded making he was from a claim that the deprived denial him of all economic use. See id.
Palazzolo person was therefore about a who owned terra firma; it was not a person claiming about to a own bed of water.
It was about regulation place whether a in before an owner's purchase takings could bar his claim to land for which he had valid title. It was his Supreme land. He owned it. The Court said bought that if regulation even he valid title after place, a was in he takings could still claim that a opinion says occurred. The nothing person about whether a takings would have a claim for taking piece riparian selling about a land and it in many form that the condominium so end result is nothing inherently wrong of that land. There is owners sharing these common with owners access to the water assigning going get between themselves iswho to slip. riparian rights if which boat It is not as the are by increasing increased riparian rights the number of The owners.
remain the same and those are regulated by I the fail to see that the DNR. how violates The trust doctrine. bottom line is that the water Any marketing is not sold because it cannot be sold. purporting slip the scheme to sell the water within selling today the of an illusion. But we are not faced question exposed a with whether seller should be purpose to suit because it sold an illusion. Our is to ask riparian the dockominium owners are real whether they they right put pier are, If then a owners. have to right perpetual in to exclusive, the water and sell the pier subject regulations. have a in the water to DNR change ownership The bottom line is that a is not doctrine and that is all violation trust this big change is: a from one hotel concern many persons big different who own boats. concept I I add that view dockominium passing If under the facts of this case as purchasers muster. no land and sold
were own were only pier slips, I believe that this status would be illegal. purchasers But because the would not be this is purchasers riparian owners, not because believed appurte- they purchasing ownership in were the water pier. I nant to a can think of several other instances project probably get the dockominium would not where something validly place. owned in the first In he or she never sum, case, totally to the issues in this Palazzolo is irrelevant factually analytically. both *32 ground.
off the But this is not the time to discuss them. say, project Suffice it to each must stand or fall on its own facts. leaving subject, quote
¶ I 62. Before this the ALJ once more:
[CJondommium of the marina does not in itself the public violate trust doctrine. Conversion of all pier slips the of to dockominium status would violate public the trust doctrine and would be detrimental to public the in maintaining public interest access to However, public complete rejection waters. pro- of the posed unfairly dockominium conversion would dis- against criminate the condominium form ownership.
Riparian Wisconsin, in including riparians owners who gain by holding such a status land in through common the ownership, condominium form of have the limited right place to a reasonable pier slips number of in gain waters access to said waters. The condo- minium riparian unit-holders this matter own lands including common with other unit holders ABKA.... unit-owning riparians Condominium are entitled to no more and no less access than other riparians. agree expressed by
¶ 63. I with sentiments concept simply ALJ. The dockominium a creative convey means which land. It does no per public's right violence, se, to the to use the waters. Riparians always rights have had of use to the water. concept change The dockominium does not that fact. regulated by These of use are on DNR behalf public. change This does not with the advent of dockominiums. If trust doctrine is not violated concept, get
the dockominium then we to the next two questions, power whether the DNR had the to reduce slips number that the condominium owners could *33 power enjoy the of that was and, so, if whether exercise parties The these issues volumi- briefed reasonable. nously argued If this the and raised and subissues. were point majority opinion, I each made. But would address get my unnecessary. All I do dissent, in it need to is a is point across. originally permit
¶ ABKA it had a 65. notes that put up piers it the to when owned from the DNR property by a all that has occurred is itself. Since multiple change to own- in from one owner riparian ABKA there is no land, asserts that ers of justification regulate the for the DNR to conversion. always private dock, ABKA this was a observes that public public reasons that the never a dock. It then maintaining the status doctrine is not violated trust changed argues riparian quo. not ABKA that the use is changed, not of the waters is and changed it is not use since authority simply no to come and the DNR has change in the ABKA therefore asserts in a use. absent good. permit that its is still disagree.
¶ at oral I As ABKA itself stated 66. argument, question in here are meant the docks during quote big made I now a statement harbor boats. really argument counsel: "This case is oral ABKA's person person versus one rich one rich who leases about average guy little who wants to take owns, not the who meaningful outing. family a for an This is not his out agree I trust doctrine." relevant to the distinction big owners who own that riparian this case is about boat slips big lease on boat owners who land versus dealing just are not But because we a seasonal basis. guy" trust does not mean that with "the little doctrine is irrelevant. burning question The is still access. The big
person does boat, but who can afford to own who riparian right, not have a entitled to to the is access lake just person as is with similar size boat who does riparian simply places have status. There are too few people big Wisconsin's inland waters for with boats. big Lake is one lake Geneva where boats can harbor. The DNR's here is about that If concern access to lake. up taking away ABKA's dockominium were to end all availability leasing, person big for who had a boat did not but have would have less access person going to the I why, my opinion, water. would ask: where that is go? plan This is the conversion DNR, business because the is in the DNR *34 assuring everybody, wealthy of business people. access to even ¶ 68. And when the DNR looked at the facts surrounding plan, the conversion this is it found, what as evidenced from the record before the ALJ. There are (1) ways by being riparian three to access water: a (2) (3) by renting slip, by public owner, a and access. In big public ramps simply boats, case of access are money big unfeasible. It takes time and to launch these money get boats and time and them out. So, that renting riparian leaves or The access. ALJ cited testi- mony from a warden that ABKA's conversion would slips by reduce the number of available on Lake Geneva almost half. It stands to reason that if the number of slips big available for boats on Lake Geneva is reduced by compromised. just half, access is That is common ultimately sense. And that is what drove the DNR's determination in this case.
¶ related, 69. As the ALJ one witness testified up how she and to 100 of her friends were forced to Abbey high ($46,500) leave the of the because cost of purchasing pier slip, paying meeting taxes and con- along dominium sentiments, assessments. Similar with deep regret, having sense at been Lake forced off high expressed by Geneva because of the costs were another witness. correctly public
¶ 70. The ALJ observed that the doctrine trust reflects an effort the law to balance riparians rights public with of the public held in waters trust. What constitutes reason- use, able under the common test, law is a factual varying determination, case, from case to in- which factoring subject cludes matter of the use and the application. occasion and manner of its The ALJ con- "subject cluded that matter of the use" and the application" and manner "occasion of its at the Marina changed fundamentally would be if the entire Marina were converted to dockominium status the boat slips longer regularly consistently were no made public way to the available agree. of seasonal rental. I authority I conclude that the DNR had the step protect big in to the owners of who are not boats expressed people before, owners. As I these are public just members and entitled to access like anyone else. The trust doctrine not is irrelevant people to these as ABKA contends. only remaining question The is whether the slips
DNR's determination that 287 of the 407 remain available to the Here, reasonable. the DNR is *35 great accorded discretion. The facts and circumstances support this determination. I would affirm the circuit upheld court which affirmed the ALJ's decision which the DNR's determination.