Delavan Lake Sanitary District v. Walworth County Board of Adjustment

2023 WI APP 22
COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION

Case No.: 2022AP289

†Petition for Review filed

Complete Title of Case:

DELAVAN LAKE SANITARY DISTRICT,
PETITIONER-APPELLANT,

V.

WALWORTH COUNTY BOARD OF ADJUSTMENT AND WALWORTH
COUNTY,
RESPONDENTS-RESPONDENTS.†

Opinion Filed: March 8, 2023
Submitted on Briefs: December 15, 2022
Oral Argument:

JUDGES: Neubauer, Grogan, and Lazar, JJ.
Concurred:
Dissented:

Appellant
ATTORNEYS: On behalf of the petitioner-appellant, the cause was submitted on the
briefs of H. Stanley Riffle and Luke A. Martell, of Municipal Law &
Litigation Group, S.C., Waukesha.

Respondent
ATTORNEYS: On behalf of the respondents-respondents, the cause was submitted on
the brief of Lee D. Huempfner,.Walworth County Judicial Center,
Elkhorn.
2023 WI App 22

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
March 8, 2023
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.

Appeal No. 2022AP289 Cir. Ct. No. 2020CV501

STATE OF WISCONSIN IN COURT OF APPEALS

DELAVAN LAKE SANITARY DISTRICT,

PETITIONER-APPELLANT,

V.

WALWORTH COUNTY BOARD OF ADJUSTMENT AND WALWORTH COUNTY,

RESPONDENTS-RESPONDENTS.

APPEAL from an order of the circuit court for Walworth County:
DAVID M. REDDY, Judge. Reversed and cause remanded with directions.

Before Neubauer, Grogan and Lazar, JJ.

¶1 NEUBAUER, J. The Delavan Lake Sanitary District appeals from
an order of the circuit court affirming, upon certiorari review, the Walworth County
Board of Adjustment’s decision to deny the District a permit to lay a gravel path

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over land near Delavan Lake. We agree with the District that the Board proceeded
on an incorrect theory of law when it found that the proposed path was not a “utility
structure,” and thus ineligible under WIS. STAT. § 59.692(1n)(d)5. (2019-20)1 for
exemption from the County’s shoreland zoning ordinance which restricts
construction or placement of structures within seventy-five feet of navigable waters.
Accordingly, we reverse the circuit court’s order and remand this case with
instructions to return this matter to the Board for further consideration of the
District’s eligibility for the statutory exemption under § 59.692(1n)(d)5. as further
explained below.

BACKGROUND

¶2 The District is a municipal corporation created and existing under
WIS. STAT. ch. 60 (applicable to towns) to operate and maintain a sewage and
wastewater collection system for public benefit—that is, “for the promotion of the
public health, comfort, convenience or welfare of the district.” WIS. STAT.
§ 60.77(4). It is undisputed that the District is not a “[p]ublic utility” as defined in
WIS. STAT. § 196.01(5).

¶3 The District’s wastewater collection system serves residences in the
View Crest subdivision, which is located at the west end of Delavan Lake. The
District holds an easement on land owned by the Delavan Lake View Crest Estates
Corporation “to lay, operate and maintain a sewer [system].” The components of
the system within the easement include a gravity sewer and sixteen-inch force main
from a lift station, along with manholes that provide access to the sewer piping.
These components are located within: (1) a gravel stone road that runs along a

1
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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channel at the west end of the lake; (2) a grass path at the end of the road that
“extends approximately 350-feet to the east-northeast;” and (3) “a 400[-]foot
unimproved access path that the District mows and uses in dry” conditions to access
the manholes. The access path crosses a wetland and can become saturated or
flooded.

I. The District’s Proposal

¶4 The District became concerned that the pipes and other system
components in the View Crest subdivision were deteriorating, at risk of failure, and
in need of immediate repair. A break in the pipes or groundwater infiltration
through the manholes could result in sewage leaking into the surrounding soil and
ultimately into the lake. The District needed to bring large vehicles and other
equipment onto its easement for inspections and repairs. It concluded that portions
of its easement needed to be reinforced so that they could support the weight of this
equipment.

¶5 In early 2017, the District applied to the Walworth County Land
Conservation Division for a construction-site-erosion-control permit to lay a gravel
path on portions of its easement. (We include the Land Conservation Division in
“the County” in this opinion for ease of reference.) A work plan described the
project as “extend[ing] the existing aggregate path” by laying down “fabric, stone,
and gravel which can help prevent ruts and mud from spreading in the area.” The
District also applied for and received permits for the project from the United States
Army Corps of Engineers and the Wisconsin Department of Natural Resources.

¶6 At the County’s request, the District enlisted an engineering
consultant to examine the project site and analyze options for facilitating access to
the system. In a report submitted to the County, the engineer described the soil on

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the non-gravel portions of the path as “uniquely weak” and unable to withstand the
soil-contact pressure that would be exerted by the repair and maintenance vehicles.
The engineer endorsed the District’s proposal to fortify the grass path and the
unimproved access path by adding a layer of stone and sand, describing it as “the
most feasible solution of protecting the District’s investment and hav[ing] the least
amount of wetland impact.” He wrote that extending the path “would enable the
vehicles and equipment to stay on the solid surface of the stone drive and not venture
off the path and damage wetlands.” He also noted that the improved surface would
be seeded and “return to grass within 2 years.”

¶7 The engineer also examined and rejected several other options for
providing heavy equipment access. First, he noted that the District could not access
the system via an alternate route because it would run through several yards whose
owners were not willing to provide access. Next, the engineer considered the use
of fabric, bamboo, or timber mats to lower the soil-contact pressure. He concluded
that the use of these mats would not sufficiently lower the contact pressure and
would not be feasible “for monitoring work or emergency conditions.”

¶8 The engineer next considered the possibility of replacing the existing
gravity sewer in the easement with a new force main, which would “reduce
manholes and monitoring points and eliminate the need for the access path for most
of the easement.” Notwithstanding these advantages, the District rejected this
option “due to the high capital and operating costs.” Finally, the engineer rejected
the option of leaving the path in its current state because the District would be able
to monitor and repair the system only in dry or frozen conditions, and “more
destruction to the wetland areas” would occur in emergencies as vehicles would
have to maneuver around wet portions of the path to avoid getting stuck.

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¶9 Following the submission of the engineer’s report, the District and
County officials had further communications concerning the District’s proposal. In
a letter dated October 30, 2019, the County proposed several steps that the District
should take, including as relevant here, obtaining a zoning variance and rezoning
some of the property since the path would be within seventy-five feet of the
“ordinary high water mark” of the channel to the lake. The District did not agree to
take these steps because, as it would later explain, it did not believe it was legally
required to do so.

II. The County and the Board Deny the District’s Permit Application.

¶10 In January 2020, the County denied the District’s application. Among
its reasons, the County cited the District’s failure to obtain the Walworth County
Zoning Division’s approval for the project and the County’s determination that
construction of the gravel path would violate its shoreland zoning ordinance,
WALWORTH COUNTY, WIS., CODE OF ORDINANCES § 74-174 (2001).2

¶11 The District appealed to the Board, which held hearings in May and
September 2020. At the first hearing in May, the District made a presentation in
support of the proposed gravel path that cited WIS. STAT. § 59.692(1n)(d)5., which
exempts certain structures from shoreland zoning ordinances that restrict or prohibit
construction within setback areas. The County reiterated its position that rezoning
was required and suggested that the Board direct the District to take the steps
outlined in the County’s October 2019 letter.

2
The ordinances cited in this opinion are available at
https://library.municode.com/wi/walworth_county/codes/code_of_ordinances.

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¶12 The Board met again to consider the District’s appeal on September 9,
2020. At that hearing, the president of the Delavan Lake View Crest Estates
Corporation acknowledged the District’s need to access its sewer infrastructure and
indicated a willingness to work with the District to rezone the property if the District
would pay for it. The District reiterated its view that it was not required to obtain
rezoning under WIS. STAT. § 59.692(1n)(d)5. and other legal authorities.

¶13 The next day, the Board voted unanimously to uphold the County’s
decision. Shortly after the meeting, the Board filed a notice that set forth the
following findings:

BOARD OF ADJUSTMENT FINDINGS: The Board
found that the proposed drive is a structure. The Board
found the drive is not a structure exempted from shoreland
zoning requirements by WIS. STAT. § 59.692(1n)(d). The
Board found that the Delavan Lake Sanitary District can use
other methods or designs for accessing the site and
facilitating maintenance. The Board found that the
Wisconsin Department of Natural Resources approval and
Army Corp of Engineers approval both cited the possibility
of local approvals being required. The Board found the
[C]ounty provided the Delavan Lake Sanitary District with
the process necessary to obtain approvals for the drive as
proposed. The Board found that the applicant failed to
pursue that process.

III. Circuit Court Proceedings

¶14 The District filed a petition for certiorari asking the circuit court to
vacate the Board’s decision and remand for further proceedings on the District’s
application. The circuit court denied relief, agreeing with the Board that the
proposed gravel path was not a “utility structure” under WIS. STAT.
§ 59.692(1n)(d)5. and thus not exempt from the County’s shoreland zoning
ordinance.

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No. 2022AP289

DISCUSSION

I. Standards Governing Certiorari Review

¶15 On appeal, we review the Board’s decision, not that of the circuit
court. Oneida Seven Generations Corp. v. City of Green Bay, 2015 WI 50, ¶42,
362 Wis. 2d 290, 865 N.W.2d 162. The Board’s decision is presumed to be valid
and correct, Arndorfer v. Sauk County Board of Adjustment, 162 Wis. 2d 246, 253,
469 N.W.2d 831 (1991), but the Board “must apply the appropriate legal standards
and adequately express the reasons for its decision on the record.” Driehaus v.
Walworth County, 2009 WI App 63, ¶13, 317 Wis. 2d 734, 767 N.W.2d 343.

¶16 Our review of the Board’s decision is de novo, but limited. Propp v.
Sauk Cnty. Bd. of Adjustment, 2010 WI App 25, ¶9, 323 Wis. 2d 495, 779 N.W.2d
705. We consider only whether the Board: (1) acted within its jurisdiction;
(2) “proceeded on a correct theory of law”; (3) acted in an “arbitrary, oppressive, or
unreasonable” manner that “represented its will and not its judgment”; and (4) could
reasonably have reached its decision based on the evidence before it. Murr v.
St. Croix Cnty. Bd. of Adjustment, 2011 WI App 29, ¶7, 332 Wis. 2d 172, 796
N.W.2d 837. We conclude that the Board’s decision does not satisfy the second and
third prongs of this test.

II. The Board Did Not Proceed on a Correct Theory of Law.

¶17 WISCONSIN STAT. § 59.692 addresses the zoning of shorelands on
navigable waters. Among other things, the statute requires county shoreland zoning
ordinances to establish a “setback,” which is the “distance that a shoreland setback
area extends from the ordinary high-water mark,” of seventy-five feet.
Sec. 59.692(1n)(a), (am).

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¶18 Within the “[s]horeland setback area,” a county may limit or prohibit
“the construction or placement of structures.” WIS. STAT. § 59.692(1)(bn). The
County’s shoreland zoning ordinance includes such a prohibition. See WALWORTH
COUNTY, WIS., CODE OF ORDINANCES § 74-174(B)1. But this power is subject to
certain exemptions set forth in the statute. As relevant here, a county shoreland
zoning ordinance “may not prohibit the construction of” the following within the
seventy-five-foot setback area:

A utility transmission line, utility distribution line, pole,
tower, water tower, pumping station, well pumphouse cover,
private on-site wastewater treatment system that complies
with ch. 145, and any other utility structure for which no
feasible alternative location outside of the setback exists and
which is constructed and placed using best management
practices to infiltrate or otherwise control storm water runoff
from the structure.

Sec. 59.692(1n)(d)5. (emphasis added).3

¶19 The Board found that the gravel path is not an exempt structure under
the statute. The Board did not specifically state that the proposed gravel path is not
a “utility structure” under WIS. STAT. § 59.692(1n)(d)5. But that is how both the
parties and the circuit court construe its finding, and we agree that the Board’s
finding that the path is a “structure,” but not an exempt structure, is appropriately
read that way.

¶20 The Board also found that the District failed to follow the process laid
out by the County for obtaining approvals for the project. These steps, which
included obtaining a zoning variance since the path would be within the seventy-
five-foot setback area and rezoning certain areas of the property, were premised on

The County’s shoreland zoning ordinance contains a similar exemption.
3
See
WALWORTH COUNTY, WIS., CODE OF ORDINANCES § 74-174(B)3.d. (2001).

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the Board’s determination that the statutory exemption did not apply because the
path was not a “utility structure.”

¶21 The parties’ dispute over whether the path is a “utility structure” under
the statutory exemption implicates the Board’s theory of law because it focuses on
whether the Board “relie[d] on the applicable [legal authorities] and applie[d] them
properly.” Edward Kraemer & Sons, Inc. v. Sauk Cnty. Bd. of Adjustment, 183
Wis. 2d 1, 8-9, 515 N.W.2d 256 (1994).

¶22 To date, no Wisconsin Supreme Court decision or published court of
appeals decision has interpreted WIS. STAT. § 59.692(1n)(d)5. When interpreting
statutory language, our aim “is to determine what the statute means so that it may
be given its full, proper, and intended effect.” State ex rel. Kalal v. Circuit Ct. for
Dane Cnty., 2004 WI 58, ¶44, 271 Wis. 2d 633, 681 N.W.2d 110. To do so, we
give the language “its common, ordinary, and accepted meaning, except that
technical or specially-defined words or phrases are given their technical or special
definitional meaning.” Id., ¶45. We interpret statutory language “in the context in
which it is used; not in isolation but as part of a whole; in relation to the language
of surrounding or closely-related statutes; and reasonably, to avoid absurd or
unreasonable results.” Id., ¶46. “If this process of analysis yields a plain, clear
statutory meaning, then there is no ambiguity, and the statute is applied according
to this ascertainment of its meaning.” Id. (citation omitted).

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¶23 The Board found that the gravel path constituted a “[s]tructure,” and
neither party challenges that finding on appeal.4 So, the crux of the parties’ dispute
is whether the District is a “utility.”

¶24 WISCONSIN STAT. § 59.692 does not define “utility.” In determining
the meaning of this term, we consider other language in the statute. Kalal, 271
Wis. 2d 633, ¶46 (statutory language is to be interpreted in context and “as part of
a whole”). Section 59.692(1n)(d)5. includes the catch-all phrase “any other utility
structure” at the end of a list of specific items that are exempted from shoreland
zoning ordinance restrictions. The word “any” in this phrase signals that we are to
construe the phrase broadly. See State v. Jensen, 2010 WI 38, ¶46, 324 Wis. 2d
586, 782 N.W.2d 415.

¶25 In addition, the inclusion of the words “any other” before “utility
structure” indicates that the legislature considered the specific items which precede
the catch-all phrase to be “utility structure[s].” See WIS. STAT. § 59.692(1n)(d)5.;
cf. Miller v. Hanover Ins. Co., 2010 WI 75, ¶32, 326 Wis. 2d 640, 785 N.W.2d 493
(examining WIS. STAT. § 806.07(1), which lists “specific circumstances for which
relief [from judgment] may be granted” followed by “a catch-all provision allowing
relief from judgment for any other reasons justifying relief.” (citation omitted)).

4
A “[s]tructure” under the statute is “a principal structure or any accessory structure
including a garage, shed, boathouse, sidewalk, stairway, walkway, patio, deck, retaining wall,
porch, or fire pit.” WIS. STAT. § 59.692(1)(e).

The County notes that the District argued that the gravel path is not a “structure” at one of
the Board’s hearings. The hearing transcript is not clear as to whether the District had the statutory
definition of “structure” in mind when it made this point. If anything, the District’s remarks suggest
it was merely trying to contrast structures like buildings, which rise up from the ground, from the
gravel path, which was intended to “match the existing ground elevation.” Regardless, the Board
found that the gravel path is a “structure” and the County does not challenge that finding on appeal.

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One of those items identified in § 59.692(1n)(d)5. is a “private on-site wastewater
treatment system that complies with [WIS. STAT.] ch. 145.” Chapter 145 defines a
“[p]rivate on-site waste water treatment system” to include “a sewage treatment and
disposal system serving a single structure.” WIS. STAT. § 145.01(12). The inclusion
of such a system as a specific example of a “utility structure” in § 59.692(1n)(d)5.
suggests that the legislature intended the range of activities and services
encompassed within the word “utility” to include sewage disposal and treatment.5

¶26 The County argues that we should construe “utility” to have the same
meaning given to the term “[p]ublic utility” in WIS. STAT. § 196.01(5), which would
exclude the District because the definition excludes sewage services provided by a
governmental unit.6 We are not persuaded by this argument.

¶27 When the legislature wishes to inject the definition of “[p]ublic
utility” in WIS. STAT. § 196.01(5) into another statute, it uses clear and specific
language to do so. Indeed, one need look no further than the very shoreland zoning
statute at issue in this case for an example of such a clear legislative pronouncement.
WISCONSIN STAT. § 59.692(7)(a), which neither party cites, specifically addresses
5
We might draw the same conclusion from the inclusion of “pumping station” in the
statute, but we cannot determine from the briefing and the record whether that term encompasses
any of the District’s infrastructure or equipment. WIS. STAT. § 59.692(1n)(d)5.

6
The statute defines a “[p]ublic utility” as:

every corporation, company, individual, association … and every
sanitary district, town, village or city that may own, operate,
manage or control … all or any part of a plant or equipment, within
the state, for the production, transmission, delivery or furnishing
of heat, light, water or power either directly or indirectly to or for
the public.

WIS. STAT. § 196.01(5)(a). The statute provides further that a “[p]ublic utility” includes “any
person, except a governmental unit, who furnishes services by means of a sewerage system either
directly or indirectly to or for the public.” Sec. 196.01(5)(a)1.

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the requirements to construct and maintain a “facility” under the shoreland statute
and expressly incorporates the definition of “[p]ublic utility” in § 196.01(5):

In this subsection, “facility” means any property or
equipment of a public utility, as defined in [§] 196.01(5), or
a cooperative association organized under ch. 185 for the
purpose of producing or furnishing heat, light, or power to
its members only, that is used for the transmission, delivery,
or furnishing of natural gas, heat, light, or power.

Sec. 59.692(7)(a) (emphasis added). Subsection (7)(a) specifically incorporates the
definition in § 196.01(5), whereas subsection (1n)(d)5. does not. And the specific
language used in subsection (7)(a)—“In this subsection, ‘facility’ means…”
(emphasis added)—“limits the application” of the definition of “[p]ublic utility” to
subsection (7). See Quick Charge Kiosk LLC v. Kaul, 2019 WI App 51, ¶¶19-20,
388 Wis. 2d 525, 934 N.W.2d 18, aff’d, 2020 WI 54, 392 Wis. 2d 35, 944 N.W.2d
598.

¶28 In addition to WIS. STAT. § 59.692(7)(a), our research has unearthed
more than twenty statutory provisions scattered across our code that use the same
express language to incorporate the definition of “[p]ublic utility” in WIS. STAT.
§ 196.01(5).7 The absence of similar incorporating language in § 59.692(1n)(d)5.
confirms that “utility” is not limited to the definition of “[p]ublic utility” in
§ 196.01(5).8

7
See WIS. STAT. §§ 16.27(9), 16.958(1)(c), 26.03(1v)(c), 30.206(1)(ag)2., 30.208(3)(e),
66.0404(1)(u), 76.28(1)(d), 101.647(3)(am)1., 101.91(6m), 133.07(2), 182.0175(5),
281.344(1)(wr), 281.346(1)(wr), 281.36(3n)(d)2., 283.55(1m), 292.63(3)(cp)2., 346.50(1)(c),
347.26(9), 348.16(3)(b), 349.16(3)(c), 443.14(8m)(a)4., 710.20(4)(a)2. (2021-22), and
946.69(1)(a).
8
The County cites WIS. STAT. § 59.693(11), which specifies conditions under which the
construction of a “facility,” which includes “any property or equipment of a public utility, as

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¶29 We must also interpret “utility” relative to “the language of
surrounding or closely-related statutes.” Kalal, 271 Wis. 2d 633, ¶46. The District
cites several provisions in Subchapter VIII of WIS. STAT. ch. 66 in which town
sanitary districts (such as the District) or other enterprises that operate sewerage
systems are referred to or treated as utilities. For example, WIS. STAT. § 66.0813(1)
permits a town sanitary district to “serve persons or places outside its corporate
limits, including adjoining municipalities not owning or operating a similar utility.”
Section 66.0813(5m)(b) allows certain Wisconsin counties to “request the extension
of water or sewer service from another municipality in that county that owns and
operates a water or sewer utility.” Finally, WIS. STAT. § 66.0827(5)(a) allows a
town board to establish a “utility district” and dissolve a sanitary district in the town,
if it exists, at which point “all assets, liabilities and functions of the sanitary district
shall be taken over by the utility district.” These provisions further support the
notion that the term “utility” as used in WIS. STAT. § 59.692(1n)(d)5. encompasses
municipal sanitary districts, which are not public utilities as defined in WIS. STAT.
§ 196.01(5).

¶30 Moreover, we note that the term “public utility” does not have a
single, fixed meaning in our statutes. In some statutes, that term is defined using
language that would encompass the District or the operation of a sewerage system.
See, e.g., WIS. STAT. § 66.0621(1)(b) (defining “[p]ublic utility” for purposes of
statute governing municipal revenue obligations to include “any revenue producing
facility or enterprise owned by a municipality and operated for a public purpose …
including … sewerage systems”); WIS. STAT. § 66.0821(3)(b) (stating that where a

defined in [WIS. STAT. §] 196.01(5),” is deemed to satisfy a county ordinance for construction site
erosion control and storm-water management. Again, this is yet another example of the express
language the legislature uses to incorporate the definition in § 196.01(5) into another statute,
language that is absent from WIS. STAT. § 59.692(1n)(d)5.

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municipality issues revenue bonds to fund sewerage system, bonds are to be paid
“as provided in [§] 66.0621” and the term “‘public utility’ as used in [§] 66.0621
includes the sewerage system, accessories, equipment and other property, including
land”); WIS. STAT. § 66.0819(3) (empowering municipalities that “own[] or
acquire[] a water system and a plant or system for the treatment or disposal of
sewage” to enact ordinances “consolidat[ing] the systems into a single public
utility”). We disagree with the County’s contention that the definition of “[p]ublic
utility” in WIS. STAT. § 196.01(5) provides better guidance in interpreting “utility”
than these statutes, which specifically apply to town sanitary districts, such as the
District, that operate sewerage systems. These provisions align more closely with
WIS. STAT. § 59.692(1n)(d)5.’s use of the word “utility” to include other “public”
utilities, such as municipal sewage disposal and treatment.

¶31 Finally, construing the term “utility” to include the District produces
a reasonable result consistent with the statute’s purpose. See Milwaukee Police
Ass’n v. City of Milwaukee, 2018 WI 86, ¶29, 383 Wis. 2d 247, 914 N.W.2d 597.
WISCONSIN STAT. § 59.692(1c) requires counties to enact shoreland zoning
ordinances “[t]o effect the purposes of [WIS. STAT. §] 281.31 and to promote the
public health, safety and general welfare.” Section 281.31(1) authorizes the
regulation of shoreland areas “to further the maintenance of safe and healthful
conditions; prevent and control water pollution; protect spawning grounds, fish and
aquatic life; control building sites, placement of structure[s] and land uses and
reserve shore cover and natural beauty.” The District presented evidence to the
Board, which the County has not challenged, that the pipes and manholes located
on the District’s easement are approaching or are beyond their expected lives and in
urgent need of inspection and repair. Absent these needed interventions, failures in
the system could introduce raw sewage into the surrounding soil and Delavan Lake.

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No. 2022AP289

Construing “utility” in § 59.692(1n)(d)5. to include the District enables the District
to reinforce its easement so that it may take actions it deems necessary to prevent
the lake from becoming polluted and to promote public health.

¶32 For these reasons, we conclude that the District’s proposed gravel path
constitutes a “utility structure” under WIS. STAT. § 59.692(1n)(d)5. The Board
proceeded under an incorrect theory of law in making a contrary finding.

III. The District Established that There Is No Feasible Alternative
Location Outside the Setback Area.

¶33 As set forth above, to qualify for the exemption, the gravel path must:

(1) Be a “utility transmission line, utility distribution
line, pole, tower, water tower, pumping station,
well pumphouse cover, private on-site wastewater
treatment system that complies with [WIS. STAT.]
ch. 145” or “other utility structure”;
(2) Lack a “feasible alternative location outside of the setback”
area; and
(3) Be “constructed and placed using best management
practices to infiltrate or otherwise control storm
water runoff from the structure.”

WIS. STAT. § 59.692(1n)(d)5. We have already explained that the Board proceeded
on an incorrect legal theory with respect to the first element.

¶34 As to the second element, the Board did not make any findings as to
whether a “feasible alternative location outside of the setback exists” for the
proposed gravel path. See WIS. STAT. § 59.692(1n)(d)5. On appeal, the County
fails to point to any record evidence that an alternative placement outside the setback
is available. The District has an easement over land that is within the setback and
runs along the channel. It seeks to reinforce portions of that easement to allow
heavier vehicles to access the manholes and pipes underneath the easement. The

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No. 2022AP289

evidence presented by the District, which the County does not challenge, shows that
the easement itself must be reinforced to facilitate access to this equipment. Laying
the gravel path outside of the setback area, and thus outside the bounds of the
District’s easement, would not enable the District to access and maintain its
equipment. Given the absence of any findings or evidence to the contrary, a denial
on this basis would be arbitrary and unreasonable and would represent the Board’s
will and not its judgment. See Hartland Sportsmen’s Club, Inc. v. City of
Delafield, 2020 WI App 44, ¶¶16-18, 393 Wis. 2d 496, 947 N.W.2d 214 (when a
denial lacks a factual basis, government decision-maker may not supplement the
record with new evidence or assert new grounds on remand).9

IV. The Board Did Not Adequately Explain Its Reasoning as to Whether
the District’s Permit Application Set Forth Best Management
Practices to Control Storm-Water Runoff.

¶35 The Board also did not make any specific findings concerning the
third element of the statute—whether the gravel path would be “constructed and
placed using best management practices to infiltrate or otherwise control storm
water runoff.” See WIS. STAT. § 59.692(1n)(d)5. The parties do not adequately
address this issue. Neither points to record evidence as to whether or not the County
had grounds to deny the permit based on this element. The County’s October 30,
2019 letter to the District asked it to submit “a stormwater management plan, if the

9
The Board also found that the District “can use other methods or designs for accessing
the site and facilitating maintenance.” The Board did not identify the legal basis for such a
requirement or the specific methods or designs it had in mind. The County contends that this refers
to the option to rezone, which we have already addressed, and the use of timber matting. To the
extent that this statement supported the Board’s conclusion that the path is not an exempt “utility
structure,” the only evidence in the record regarding alternative means of access is the engineer’s
report, but that document explains why several alternatives either would not provide sufficient
access or were cost prohibitive, including the use of timber matting. This evidence was
unchallenged before the Board.

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No. 2022AP289

[gravel path] creates more than 0.5 acres of impervious surface or disturbs one or
more acres of ground.” This suggests that the County may not have required such
a plan if the project did not exceed those parameters. The Board should make
specific findings on remand concerning whether and why the District’s proposal
does (or does not) satisfy this element.10

CONCLUSION

¶36 The Board’s decision is premised on the incorrect legal theory that the
proposed gravel path is not a “utility structure” under WIS. STAT. § 59.692(1n)(d)5.
We reverse the order of the circuit court denying the District’s petition for a writ of
certiorari and remand this case to the circuit court with instructions to remand this
matter to the Board for further consideration of the District’s permit application
regarding eligibility for the statutory exemption regarding the best management
practices to manage storm-water runoff.

By the Court.—Order reversed and cause remanded with directions.

10
Our conclusion that the Board proceeded on an incorrect legal theory and did not
adequately explain the reasons for its findings makes it unnecessary to address the District’s
argument that the Board’s decision violated its right as an easement holder to make improvements
to its easement. See Sweet v. Berge, 113 Wis. 2d 61, 67, 334 N.W.2d 559 (Ct. App. 1983) (when
one issue is dispositive of an appeal, we need not reach other issues).

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