State ex rel. Majchrzak v. Bayfield Cnty.

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State of Wisconsin ex rel. Kristle Majchrzak and Robert Glau d/b/a Kristle KLR, Petitioners-Appellants, v. Bayfield County and Bayfield County Board of Adjustment, Respondents-Respondents.

No. 2022AP1241

Court of Appeals of Wisconsin, District III

June 11, 2024

This opinion will not be published. See WIS. STAT. RULE 809.23(1)(b)5.

APPEAL FROM AN ORDER OF THE CIRCUIT COURT FOR BAYFIELD COUNTY, NO 2021CV88 J. MICHAEL BITNEY, JUDGE.

Before Stark, P. J., Hruz and Gill, JJ.

Per curiam opinions may not be cited in any court of this state as precedent or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

PER CURIAM

¶1 Kristle Majchrzak and Robert Glau, d/b/a Kristle KLR ("Kristle"), appeal an order affirming the Bayfield County Board of Adjustment's ("Board") decision to deny Kristle's application for a conditional use permit ("CUP"). On certiorari review, we reject Kristle's arguments and affirm.

BACKGROUND

¶2 Kristle submitted a CUP application to the Bayfield County Planning and Zoning Committee ("Committee") seeking permission to construct a "water collecting facility" on Kristle's property "where tanker trucks w[ould] fill from [two] underground tanks supplied by an artesian well and the water w[ould] then be taken off[-]site for bottling and sale." The listed "conditional use" on the application was "irrigation facility." Prior to Kristle's CUP application, the Department of Natural Resources (DNR) issued Kristle a "well notification," permitting Kristle to construct the artesian well on its property, which Kristle completed in 2019. See WIS. STAT. § 281.34(3)(a) (2021-22).^[1]

¶3 The Committee unanimously denied the CUP application, a decision that Kristle appealed to the Board. The Board denied the CUP application after concluding that it had jurisdiction over Kristle's proposal, that an exception to the CUP requirement did not apply, and that the proposal did not fall under a permissible use for "Residential-Recreational Business" ("R-RB") zoning.

¶4 Kristle filed an action in the circuit court challenging the Board's decision. The court upheld the Board's decision, and this appeal followed. Additional facts will be provided as necessary below.

DISCUSSION

¶5 A person aggrieved by the denial of a CUP may "commence an action [in circuit court] seeking the remedy available by certiorari." WIS. STAT. § 59.694(10). On appeal, we review a board's decision, not the decision of the circuit court. Roberts v. Manitowoc Cnty. Bd. of Adjustment, 2006 WI.App. 169, ¶10, 295 Wis.2d 522 721 N.W.2d 499. A court on certiorari review must accord a presumption of correctness and validity to a board's decision, and the party appealing the decision carries the burden of rebutting that presumption. Id. When, as here, no additional evidence is taken, our review is limited to:

(1) whether the board kept within its jurisdiction; (2) whether it proceeded on a correct theory of law; (3) whether its action was arbitrary, oppressive, or unreasonable and represented its will and not its judgment; and (4) whether the board might reasonably make the order or determination in question based on the evidence.

See State ex rel. Ziervogel v. Washington Cnty. Bd. of Adjustment, 2004 WI 23, ¶14, 269 Wis.2d 549, 676 N.W.2d 401.

¶6 On certiorari review, "courts apply different standards when reviewing a municipality's discretionary determination, a municipality's determination of a question of fact, and a municipality's determination of a question of law." Ottman v. Town of Primrose, 2011 WI 18, ¶52, 332 Wis.2d 3, 796 N.W.2d 411. Generally, "[l]ike the interpretation and application of a state statute, the interpretation and application of an ordinance is a question of law." Id., ¶55. However, when a municipality's ordinance "appears to be unique and does not parrot a state statute but rather ... was drafted by the municipality in an effort to address a local concern," we defer to the municipality's interpretation of that ordinance if it is reasonable.^[2] Id., ¶¶59-61. A municipality's interpretation of its own unique ordinance "is unreasonable if it is, as examples: (a) contrary to law; (b) clearly contrary to the intent, history or purpose of the ordinance; (c) without a rational basis; or (d) the interpretation 'directly contravenes the words of the ordinance.'" Baldwin v. Milwaukee County, 2018 WI.App. 29, ¶17, 382 Wis.2d 145, 913 N.W.2d 194 (citation omitted).

¶7 "The rules for the construction of statutes and municipal ordinances are the same." Id., ¶18 (citation omitted). We begin with the language of the ordinance and, if it is plain, we ordinarily stop the inquiry. See State ex rel. Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶45, 271 Wis.2d 633, 681 N.W.2d 110 (citation omitted). "Words in an ordinance ... must be given their common meaning. Technical words or phrases with a peculiar meaning in the law must be construed according to such meaning." Baldwin, 382 Wis.2d 145, ¶18. An ordinance is ambiguous if "it is capable of being understood by reasonably well-informed persons in two or more senses." See Kalal, 271 Wis.2d 633, ¶47.

¶8 First, Kristle argues that the Board erred by concluding that the Board did not share "concurrent jurisdiction" with the DNR pursuant to BAYFIELD CNTY., WIS., ZONING CODE § 13-l-21(b)(6) (July 31, 2018). That provision states that a land use permit "may not be required where the [DNR] has concurrent jurisdiction and the substantive concerns of [zoning code] are addressed and resolved by issuance of a permit under the authority of that regulatory agency." Second, Kristle asserts that the Board erred by concluding that Kristle's proposal did not meet the definition of "Irrigation Facilities, Canals, Dams, Reservoirs, Etc.," as identified in ZONING CODE § 13-l-62(a) (Mar. 30, 2021) and by concluding that the proposal was not permitted by any other conditional use listed in § 13-l-62(a).^[3]

¶9 As an initial, overarching matter, Kristle contends that we should not apply deference to the Board's interpretations of the relevant zoning code provisions, even if those interpretations are reasonable, because there is no evidence in the record that those ordinances are unique or were drafted to address a local concern.^[4] We disagree and conclude that the Board's interpretations of the ordinances are entitled to deference under Ottman because the ordinances are unique to Bayfield County.

¶10 As the Board asserts on appeal, both zoning code provisions in this case are not "substantially similar to state statute [or] to ordinances across the state." See Ottman, 332 Wis.2d 3, ¶57 (citation omitted). We are not aware of, nor has Kristle pointed to, any state statute or other ordinance that contains a "concurrent jurisdiction" provision similar to ZONING CODE § 13-1-21(b)(6).

Likewise, we are not aware of, nor has Kristle pointed to any state statute or other ordinance that permits a CUP for "Irrigation Facilities, Canals, Dams, Reservoirs, Etc." like ZONING CODE § 13-l-62(a).^[5] Because the ordinances "appear[] to be unique," the Board is "uniquely poised to determine what" those ordinances mean, and we apply deference to the Board's interpretations of those ordinances if reasonable. See Ottman, 332 Wis.2d 3, ¶60.

I. Concurrent jurisdiction

¶11 Kristle argues that the Board erred by concluding that the DNR and the County did not have "concurrent jurisdiction" over the proposed water collection facility.^[6] See ZONING CODE § 13-1-21(b)(6). According to Kristle, the well notification that the DNR issued to Kristle for the artesian well should have prevented the Board from requiring Kristle to obtain a CUP for its proposal.

¶12 The zoning code identifies five "classes of land use"-"land uses that are prohibited, permitted by right, permitted as a Class A special use, permitted as a Class B special use, or permitted as a conditional use." ZONING CODE § 13-l-21(a) (Aug. 27, 2002). Regardless of the land use class, "[a] land use permit shall be required for any new residence, any building or structure erected, relocated, rebuilt or structurally altered ...; any change in the use of the land; or where any use of the land is altered." ZONING CODE § 13-l-21(b)(1) (Oct. 29, 2013). Here, the Kristle property is zoned as R-RB and, pursuant to the zoning code, "Irrigation Facilities, Canals, Dams, Reservoirs, Etc." require a land use permit, here a CUP, in that zoning district. See ZONING CODE § 13-l-62(a).

¶13 As explained above, ZONING CODE § 13-1-21(b)(6) provides an exception for land use permits "where the [DNR] has concurrent jurisdiction and the substantive concerns of [the zoning code] are addressed and resolved by issuance of a permit under the authority of that regulatory agency." Thus, in order for the exception to apply, Kristle was required to demonstrate that: (1) there is "concurrent jurisdiction" between the DNR and the Board; (2) the DNR issued a permit; and (3) the DNR's permit addressed the substantive concerns of the zoning code.

¶14 The Board concluded that it had jurisdiction over Kristle's proposal because Kristle did not receive a "permit" from the DNR and, accordingly, "the concerns of the County were not addressed." Even if the DNR's well notification qualified as a permit, the Board determined that "there was nothing implemented by the [DNR] which will alleviate the substantial concerns of the County pursuant to its zoning ordinances."

A. Concurrent jurisdiction requirement

¶15 Citing Brandt v. Pewaukee Town Board, 15 Wis.2d 6 112 N.W.2d 157 (1961), Kristle contends that the first requirement was not met in this case because the Board "never addressed whether the DNR 'ha[d] concurrent jurisdiction.'" In Brandt, our state supreme...