Marina slip 'lock boxes' cannot be condominium units.

• Date: 24 July 2002
• Author: Anderson, Tony

Byline: Tony Anderson

The state Supreme Court last week found an attempt to transform a 407-slip privately owned marina into a condominium-style of ownership violated state statutes.

The majority court in its July 16 decision, written by Justice Ann Walsh Bradley, made a couple significant observations with regard to the definition of condominium units and the ability to attach riparian rights.

First, the court determined that lock boxes, measuring 4-by-5-by-6 inches, could not be defined as condominium units under Chapter 703 of the state statutes. Second, the court determined that an attempt to transfer riparian rights to owners of those lock boxes violated Chapter 30.

Justice William Bablitch concurred with the majority decision. Justice Diane S. Sykes, joined by Justice David T. Prosser Jr., dissented. Justice Jon P. Wilcox did not participate.

Transfer of Marina Ownership

The case focuses on the efforts of ABKA Limited Partnership to convert its 407-slip marina on Lake Geneva to a condominium style of ownership, referred to as "dockominiums." The marina was originally created in 1962. An initial permit was required to dredge the area and create the marina. ABKA purchased the marina in 1973.

In 1995, ABKA filed a condominium declaration, which provided for the creation of a collection of lock boxes corresponding to each of the boat slips. The lock boxes constituted condominium units, which included "as an appurtenance, standard riparian rights of owners to waterfront real estate under Wisconsin Law, and the use of an assigned boat slip corresponding to the unit designation as a part of the common elements of The Abbey Harbor Condominium."

The majority court's decision indicated that ABKA and the Department of Natural Resources agreed that ABKA would apply for a new permit as part of the conversion to condominiums. That permit request was challenged as a violation of Chapter 30. The issue went before an administrative law judge with the Wisconsin Realtors Association and the Wisconsin Association of Lakes joining as parties to the proceedings. The Condominium Association became a co-applicant with ABKA.

ABKA challenged the DNR's jurisdiction over the conversion of ownership, but the ALJ found that the DNR had the right to review the permit. The ALJ went on to approve the permit, while reducing the number of slips that could be converted to condominium ownership to 120. The remaining 287 had to remain rental property.

The circuit court affirmed the ALJ's decision; however, the court of appeals reversed in a decision with broad ramifications. The court of appeals determined that the conversion of the marina to private dockominiums violated the public trust doctrine.

The DNR, ABKA, the condominium association and realtors association all petitioned the Supreme Court for review.

In the...