Court of Appeals to Decide Local Pierhead Ordinance Case


 Tom Larson  |    October 05, 2011
PierheadLRG

In the upcoming months, the Wisconsin Court of Appeals will be deciding a case involving the legality of a local pierhead ordinance that applies retroactively to existing piers. Specifically, the court has been asked to decide whether a property owner with an existing pier must comply with the maximum length requirements set forth in the city of Lake Geneva’s pierhead ordinance. While the case has some specific facts that are likely applicable only to the parties involved, the court’s ruling could be more far-reaching, by clarifying the relationship between local pierhead ordinances and state grandfathering standards.

Background

Since 1979, Marina Bay Boat Rentals has operated a pier and marina in the city of Lake Geneva. From 1979 to 1998, the pier extended 165 feet into the waters of Lake Geneva. In 1983, the city adopted a pierhead ordinance that prohibits piers within the city from extending into Lake Geneva more than 100 feet from the shore. In 1997, the city maintained that Marina Bay had lost its grandfather status and began to demand that Marina Bay shorten its existing 165-foot pier to conform to the pierhead ordinance. Marina Bay sued to maintain its existing pier.

Marina Bay and the city entered into an agreement in which Marina Bay agreed to reduce the length of the pier by 11 feet beginning with the 1999 boating season, and then to reduce the pier to within 100 feet beginning with the 2003 season. Marina Bay reduced the size of its pier by 11 feet in 1999, but has not reduced the pier to 100 feet. In addition, the agreement stated that if the pierhead ordinance was amended, Marina Bay would be allowed to extend its pier to the maximum length allowed by the ordinance. Finally, Marina Bay obtained a permit from the DNR to maintain the 154-foot pier with 12 boat slips.

In 2005, the city of Lake Geneva replaced its municipal pier with a new, larger pier that would be approximately 200 feet long with 40 boat slips. Because the municipal pier would have violated the city’s pierhead ordinance, the city amended the ordinance to
exempt municipal piers from the ordinance requirements.

Five other private piers on Lake Geneva exceed the 100-foot length requirement in the ordinance. These piers range in size from 103 feet to 184 feet. To date, the city of Lake Geneva has not required the other pier owners to reduce the size of their piers. The city filed a lawsuit to force Marina Bay to reduce its pier to 100 feet, as per the pierhead ordinance and stipulation. Marina Bay argued, among other things, that:

 • Per the stipulation, the 2005 amendment to the ordinance, which exempted the municipal pier, allows Marina Bay to extend its pier to 200 feet or, at a minimum, keep the current 154-foot length.

• The city has engaged in selective enforcement of the pier ordinance by allowing the other five private piers to remain in the water despite the fact that they exceed the 100-foot pierhead ordinance.

 • It is unlawful for the city to exempt its own pier from the ordinance, while enforcing it against private piers.

The circuit court ruled in favor of the city, declaring that the city pier is different than private piers because it is used for a public purpose and, therefore, different regulations are warranted. The circuit court declined to address Marina Bay’s other legal arguments.

Marina Bay has appealed.

Important Legal Issues 1

1. Whether a municipal ordinance can invalidate a pier permit obtained by the DNR.

2. Whether an existing pier is grandfathered from changes to municipal ordinances if the pier meets (a) common law nonconforming structure or vested rights standards, or (b) the pier grandfathering standards found in the state statutes.

Potential Impact on Property Owners

Chapter 30 authorizes riparian owners to place a pier without a permit if the pier meets certain permit exemption standards, or with a permit obtained from the DNR if the pier exceeds the permit exemption standards. Under Wis. Stat. § 30.13, municipalities have the authority to enact pierhead ordinances, but such ordinances may not be inconsistent with the pier regulations under Chapter 30 of the Wisconsin Statutes.

Over the last ten years, the WRA has spent considerable time protecting the rights of waterfront property owners to place a pier. The regulatory framework that has been developed is intended to strike a balance between private property rights and protecting the quality of our important water resources. Moreover, the regulatory framework is intended to provide waterfront property owners with certainty as to which new and existing piers are legal with and without a permit, and which are not.

If a municipal ordinance can invalidate a permit obtained by the DNR to place a pier or override the pier grandfathering standards set forth in the statutes, thousands of property owners who have obtained permits from the DNR to place a pier, or who believe their pier is grandfathered from future pier regulations, will be uncertain whether they will be required to modify or remove their piers in the future if a municipality adopts a conflicting pierhead ordinance.

WRA Involvement

Because this case presents several legal issues that could have a significant impact on waterfront property owners throughout Wisconsin, the WRA, through the WRA Legal Action Program, will be filing an amicus brief asking the court of appeals to clarify that municipal ordinances cannot invalidate permits issued by the DNR to place a pier or conflict with the pier grandfathering standards in Chapter 30.

For more information on this case, please contact Tom Larson (tlarson@wra.org) at (608) 240-8254.

Tom Larson is Chief Lobbyist and Director of Legal and Public Affairs for the WRA.

 1 Marina Bay will likely raise other issues on appeal that are more specific to the facts of this case and thus don’t have a statewide significance such as whether (a) the City’s amendment to the pierhead ordinance authorizes Marina Bay to extend its pier or maintain the current length of the pier, as per the stipulation, and (b) a municipality can exempt itself from a pierhead ordinance, which effectively provides the municipality with a competitive advantage in the commercial marina business. 

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