WI Supreme Court rules DNR's decision to reduce boatslips from 22 to 11 not arbitr.

Byline: David Ziemer

The DNR's decision to reduce the number of boatslips from 22 to 11 was not arbitrary and capricious, the Wisconsin Supreme Court held on July 6.

The holding sparked an ad-monishing three-justice concurrence addressing "the growth of agency power, the decline of judicial power, and the tenuous state of property rights in the 21st Century."

Nelson Page owned a 77-foot wide riparian lot on Green Lake, as well as nearby nonriparian land. In 1958 and again in 1961, Page subdivided, platted, and recorded the nonriparian land, developed a subdivision, and sold the lots.

At the same time, Page conveyed undivided 1/38 interests in the riparian lot and a common pier to the nonriparian owners.

The Pages Homeowners' Association, an unincorporated entity, was established in 1966, and consists of those persons who each own the 1/38 interest in the riparian lot.

Since 1966, the Association has placed an unpermitted pier, with various numbers of boat slips, extending from the riparian lot into Green Lake. In 1966, the pier had six boat slips. In 1974-76, the number of slips increased to 11. In 1990, the number of slips had increased to 20. The slips decreased to 16 in 1994-95 then rose to 21 by 2000.

Currently, the pier is 249 feet long, 3 feet wide, and contains 22 boat slips.

In 1993, when Green Lake County adopted an antipyramiding ordinance, there were 17 slips on the pier. "Pyramiding" is the use of riparian lots to provide lake access for back lot nonriparian owners.

The association contacted the DNR regarding its pier in 1993, at which point they were told that although the pier's size and density were both excessive under DNR "reasonable use" guidance, the DNR would not commence an enforcement action unless a complaint was received. In 1997, the DNR received such a complaint.

In 2001, the DNR requested an abatement hearing, recommending that six slips represented the "reasonable use" that the pier could legally maintain without a permit. The ALJ determined that the association should be limited to a 226-foot pier with no more than 11 slips - the number he found to represent the "historical use" of the pier.

The association appealed, and Green Lake County Circuit Court Judge William M. McMonigal reversed, concluding that the ALJ's determinations were arbitrary. The court found that the proper historic use date was 1993, when the antipyramiding ordinance went into effect, and when there were 17 piers.

The DNR appealed, and the...