Michael Dwyer v. City of Monona

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.
May 15, 2025
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2024AP1725 Cir. Ct. No. 2023CV2924

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

MICHAEL DWYER,

PLAINTIFF-APPELLANT,

V.

CITY OF MONONA, CITY OF MONONA BUILDING
INSPECTION DEPARTMENT, ZONING BOARD OF
APPEALS OF THE CITY OF MONONA, AND
DOUGLAS PLOWMAN,

DEFENDANTS-RESPONDENTS.

APPEAL from an order of the circuit court for Dane County:
STEPHEN E. EHLKE, Judge. Affirmed.

Before Kloppenburg, P.J., Blanchard, and Taylor, JJ.

¶1 BLANCHARD, J. This case arises out of the decision of the City of
Monona building inspector to partially rescind a building permit issued to Michael
Dwyer to allow construction of a boathouse on Lake Monona. Under the initial
No. 2024AP1725

permit, Dwyer could run plumbing into the boathouse. The inspector partially
rescinded the permit to the extent that it violated the City’s zoning ordinances
prohibiting boathouse “facilities” used “for the purpose of habitation.” The
inspector’s action amounted to a rescission of the part of the permit that authorizes
plumbing for the boathouse.

¶2 Explaining that he wanted the plumbing for a boathouse bathroom,
Dwyer sought review of the partial rescission before the Zoning Board of Appeals
of the City of Monona (the Zoning Board, or the Board). The Board upheld the
inspector’s decision. Dwyer sought certiorari review of the Board’s decision in
the circuit court. The court affirmed the Zoning Board.

¶3 In this appeal, Dwyer argues that the Zoning Board proceeded under
an incorrect theory of law because it applied an unreasonable interpretation of a
City zoning ordinance that prohibits “the use of a boathouse for human
habitation.” We conclude that Dwyer fails to show that the Board proceeded on
an incorrect theory of law, given our interpretation of the ordinance and the record
evidence. The Board’s decision was sound under one reasonable application of
the pertinent ordinance.

¶4 In a related argument, Dwyer contends that there was not substantial
record support for the Zoning Board’s decision that the boathouse, as designed,
would be suitable for “human habitation” if it includes plumbing. We conclude
that the Board’s decision was supported by substantial evidence in the record.
This includes evidence that the boathouse is designed and permitted to include
features in addition to plumbing, such as electricity and heating, ventilation, and
air conditioning (HVAC).

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¶5 In the alternative, Dwyer argues that the Zoning Board’s decision
was arbitrary and capricious. We conclude that this argument is unsupported.

¶6 Accordingly, we affirm.

BACKGROUND

¶7 Dwyer owns residential property with lake frontage on Lake
Monona in the City of Monona. Dwyer applied to the City for a permit to build a
boathouse on this property. The boathouse would be detached from the residence
and located on the lakeshore. Dwyer averred that the boathouse would be used
primarily for the storage of boats and equipment related to water recreation. A
permit was issued to Dwyer in November 2020.

¶8 The face of the permit contained boxes, each checked, on topics that
included “Constr[uction],” “Electric[al],” “Erosion Control,” “HVAC,” and
“Plumbing.” There is no dispute that the checked box for “Plumbing” reflected
that the initial permit allowed Dwyer to pursue construction of the boathouse with
plumbing of some kind, although the permit did not give plumbing specifications
or state how the plumbing could be used. There is also no dispute that, as
reflected in designs contained in the record and Dwyer’s consistent
representations, Dwyer seeks to install the plumbing for a bathroom, specifically a
toilet and sink.

¶9 After Dwyer made some construction progress on the boathouse, the
City building inspector sent Dwyer a letter in July 2021 notifying him of the
following. On behalf of the City, the inspector was “rescind[ing]” any “right” that
Dwyer had under the permit to include in the boathouse “facilities for the purpose
of habitation.” The letter stated that this was because the City’s ordinances

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“expressly prohibit[]” “[t]he use of boathouses for human habitation,” and that
therefore Dwyer’s boathouse could not include “facilities for the purpose of
habitation.” See CITY OF MONONA, WIS., ORD. § 466-28.B. (Sept. 2014) (“The
use of a boathouse for human habitation … [is] prohibited.”).1 We will sometimes
refer to § 466-28.B. as “the no-habitation ordinance.” The letter requested that
Dwyer “share revised interior plans for review by the City prior to any interior
buildout taking place.”

¶10 The permit was set to expire in November 2022, and Dwyer sought
to extend the permit. Dwyer was issued a new building permit in December 2022,
with terms that matched those in the original permit. But this time the “Plumbing”
box was not checked.

¶11 Dwyer appealed to the Zoning Board to overrule the inspector’s
partial recission decision.2 At a public hearing of the Board in September 2023,
Dwyer submitted materials in support of his position, and members of the public
submitted letters in opposition. The Board also heard comments from legal
counsel for Dwyer, from community members, and from the City’s attorney and

1
The City of Monona’s ordinances are not part of the certiorari record. We take judicial
notice of the accuracy and applicability of the version of ordinances provided in the City’s
appendix. See WIS. STAT. § 902.03(1)(a) (2023-2024) (the court of appeals “shall take judicial
notice of[]” “municipal ordinances in those counties in which the … court has jurisdiction”). For
the remainder of this opinion, these ordinances are referenced as “MONONA ORD.,” or simply
“ORD.” All references to MONONA ORD. ch. 466 are to the version last amended in September
2014. All references to MONONA ORD. ch. 175 are as adopted in 1994.

All references to the Wisconsin Statutes are to the 2023-24 version unless otherwise
noted.
2
In the alternative, Dwyer sought a variance to the pertinent zoning ordinance that
would allow him to build the boathouse with a bathroom. After separately considering Dwyer’s
request to review the building inspector’s decision, the Zoning Board rejected Dwyer’s request
for a variance. Dwyer does not appeal the rejection of his variance request.

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its zoning administrator. There is a transcript of the hearing in the certiorari
record. The Board voted unanimously to uphold the inspector’s decision, which it
later memorialized in a written decision.

¶12 Dwyer sought certiorari review of the Zoning Board’s decision in
the circuit court. The court affirmed the Board’s decision. Dwyer appeals. The
respondents have filed a joint brief on appeal. We refer to both the respondents
collectively, and to the municipality, as “the City.”

DISCUSSION

¶13 “On appeal of a circuit court certiorari decision, we review the
decision of the local governmental body, not the decision of the circuit court.”
Miller v. Zoning Bd. of Appeals of Vill. of Lyndon Station, 2022 WI App 51,
¶18, 404 Wis. 2d 539, 980 N.W.2d 295. The circuit court here did not take
additional evidence, and therefore the record under review is limited to the record
before the Zoning Board. See id.; Ottman v. Town of Primrose, 2011 WI 18, ¶41,
332 Wis. 2d 3, 796 N.W.2d 411; WIS. STAT. § 62.23(7)(e)10.a.

¶14 Certiorari review of a municipal decision is limited to: “‘(1) whether
the municipality 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 evidence was such
that it might reasonably make the order or determination in question.’” Oneida
Seven Generations Corp. v. City of Green Bay, 2015 WI 50, ¶41, 362 Wis. 2d
290, 865 N.W.2d 162 (quoted source omitted); see also Ottman, 332 Wis. 2d 3,
¶¶37, 43 (scope of certiorari review provided by statute is identical to common law
certiorari except as altered by statute); WIS. STAT. § 62.23(7)(e)10.a. (any person
aggrieved by a decision of a city zoning board of appeals may commence an

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action in circuit court “seeking the remedy available by certiorari”). Dwyer
challenges the Zoning Board’s decision to uphold the building inspector’s partial
rescission of the initial building permit based on the second, third, and fourth
grounds. We presume that the Zoning Board’s decision is correct, and Dwyer
bears the burden to overcome this presumption. See Ottman, 332 Wis. 2d 3, ¶¶50-
51.

I. Correct Theory of Law

¶15 Dwyer argues that the Zoning Board did not proceed on a correct
theory of law because, to the extent that it relied on any interpretation at all, it
unreasonably interpreted ORD. § 466-28.B., the no-habitation ordinance, to uphold
the building inspector’s partial permit rescission. To repeat, this ordinance
prohibits “the use of a boathouse for human habitation.” More generally, Dwyer
argues that the Board failed to express any clear understanding of the no-
habitation ordinance and failed to meaningfully apply it to the relevant facts.

¶16 We first address our standard of review in interpreting the no-
habitation ordinance. More specifically, we explain why we conclude that we owe
no deference to any interpretation or understanding expressed by members of the
Zoning Board, because the ordinance essentially mirrors a statewide standard in
the form of a legislatively authorized agency regulation. Then we interpret the
ordinance and explain why we reject the interpretation advanced by Dwyer.
Further below, we explain why we conclude that Dwyer does not carry his burden
to show that the Board acted in a manner inconsistent with our interpretation of the
no-habitation ordinance.

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Lack of Judicial Deference to the Zoning Board’s Interpretation of a
Statewide Standard

¶17 Regarding our standard of review, courts do not “defer to a
municipality’s interpretation of a statewide standard.” See Ottman, 332 Wis. 2d 3,
¶59. In contrast, courts do defer to a municipality’s reasonable interpretation of
language that the municipality drafted “to address a local concern” when the
ordinance is “unique and does not parrot a state statute.” See id., ¶60. Dwyer
contends that we should not defer to the Board’s interpretation of the no-habitation
ordinance because it essentially mirrors a “statewide standard,” namely, a
provision in zoning standards promulgated by the Wisconsin Department of
Natural Resources. See WIS. ADMIN. CODE § NR 115.05(1)(b)3. (Nov. 2024).3

¶18 The City does not dispute that the text of the no-habitation ordinance
and WIS. ADMIN. CODE § NR 115.05(1)(b)3. are sufficiently similar to satisfy the
rule in Ottman against judicial deference—so long as § NR 115.05(1)(b)3. is the
type of statewide standard that the court contemplated in Ottman. But the City
argues that § NR 115.05(1)(b)3. is not that type of standard. The City observes
that § NR 115.05(1)(b)3. is one of many zoning standards that counties, and

3
There is no meaningful difference between the two provisions for purposes of this
appeal. MONONA ORD. § 466-28.B. states, “The use of a boathouse for human habitation and the
construction or placement of a boathouse or fixed houseboat below the ordinary high-water mark
of any navigable waters are prohibited.” WISCONSIN ADMIN. CODE § NR 115.05(1)(b)3. states,
“The use of boathouses for human habitation and the construction or placing of boathouses
beyond the ordinary high-water mark of any navigable waters shall be prohibited.”

All references to the Wisconsin Administrative Code are current through the November
2024 register.

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counties alone, are required to adopt.4 In contrast, while cities are required to
adopt the separate standards for “shoreland-wetland” zoning established by the
department of natural resources, these standards do not contain a provision
prohibiting, or even addressing, the habitation of boathouses. See WIS. ADMIN.
CODE § NR 117.05; WIS. STAT. § 62.231(3), (6). Based on these regulations, the
City argues that ch. NR 115 “is not a statewide standard because it does not dictate
or govern the requirements of municipal zoning.”

¶19 The City construes Ottman too narrowly. The opinion does not
suggest that the only legal standards that are “statewide” for purposes of
interpreting ordinances are standards that apply everywhere in the state. Rather,
the rationale expressed by the court supports a broader interpretation. The court in
Ottman noted as an example of a statewide standard an ordinance using language
that is “‘substantially similar to a state statute and to ordinances across the state.’”
See Ottman, 332 Wis. 2d 3, ¶57 (quoting Marris v. City of Cedarburg, 176
Wis. 2d 14, 33, 498 N.W.2d 842 (1993)); see also id., ¶¶57-58 (City of Cedarburg
ordinance at issue in Marris “essentially parroted” language in then WIS. STAT.
§ 62.23(7)(h)). The court considered this to be sufficient to raise the concern that
deference by courts to one municipality’s interpretation of that language would
give that municipality “disproportionate authority to influence state standards
established by the legislature.” See id., ¶¶58-59. The Ottman court contrasted this

4
See WIS. ADMIN. CODE §§ NR 115.01 (“The purpose of [WIS. ADMIN. CODE
ch. NR 115] is to establish minimum shoreland zoning standards for ordinances enacted under”
county zoning statute, WIS. STAT. § 59.692); NR 115.05(1) (shoreland zoning ordinance “adopted
by each county” shall “[a]t a minimum … include” provisions including § NR 115.05(1)(b)3.);
§ 59.692(1c) (in part “to promote the public health, safety and general welfare, each county shall
zone by ordinance all shorelands in its unincorporated area”); but see 2015 Wis. Act 55, § 1922d
(creating § 59.692(1d)(a) (prohibiting counties from enacting ordinances more restrictive than
rules promulgated by department)).

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with ordinances that “appear[] to be unique” and are drafted by municipalities in
order to address “local concern[s].” See id., ¶60.

¶20 Although the standard at issue here is a regulation and not a standard
directly “established by the legislature,” see id., ¶59, the rationale behind
Ottman’s rule against judicial deference applies with equal force under these
circumstances. The department of natural resources duly promulgated WIS.
ADMIN. CODE § NR 115.05(1)(b)3. as charged by the legislature.5 Further, the
City here has chosen to adopt this standard, which a state statute provides cities
may voluntarily do, using language that is not merely substantively the same, but
that essentially mirrors the state regulation for purposes of this case. Dwyer notes
that numerous other Wisconsin cities have also adopted this standard, a point that
the City concedes through silence. Thus, while the City is presumed to have
adopted its ordinance with the purpose of protecting the welfare of its particular
shorelands, the City chose to do so in the specific manner contained in the
statewide standard. This is a standard that aims to achieve the purposes of WIS.
STAT. § 281.31, and that calls for consistent interpretation statewide. See
§ 281.31(7) (“the department shall consult with the governing bodies of
municipalities to secure voluntary uniformity of regulations”). Under these
circumstances, if courts were to defer to the City’s interpretation of the no-

5
See WIS. STAT. § 281.31(1) (“To aid in the fulfillment of the state’s role as trustee of its
navigable waters and to promote public health, safety, convenience and general welfare, it is
declared to be in the public interest to … authorize municipal shoreland zoning regulations for the
efficient use, conservation, development and protection of this state’s water resources.”); WIS.
ADMIN. CODE § NR 115.01. And, to repeat, WIS. ADMIN. CODE § NR 115.05(1)(b)3. was
promulgated as a statewide standard for all counties to adopt, and was available for all cities to
adopt voluntarily. See § 281.31(2)(c), (6)-(7) (“the department [of natural resources] shall
prepare and provide to municipalities general recommended standards and criteria … for
navigable water protection regulations and their administration”; “[t]he department [and] the
municipalities … shall mutually cooperate to accomplish the objective of” § 281.31).

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habitation ordinance, this could risk granting the City disproportionate influence
over how the standard in § NR 115.05(1)(b)3. is applied by counties and
municipalities across the state. This is the risk that the Ottman rule about
statewide standards seeks to avoid.

¶21 In sum on this issue, we interpret the meaning of the no-habitation
ordinance without deference to the Zoning Board.

Interpretation of “Use for Human Habitation”

¶22 We generally interpret ordinances in the same way that we interpret
statutes. See Milwaukee Dist. Council 48 v. Milwaukee County, 2019 WI 24,
¶11, 385 Wis. 2d 748, 924 N.W.2d 153. Under this approach, we give the
language of the ordinance “‘its common, ordinary, and accepted meaning, except
that technical or specially-defined words or phrases are given their technical or
special definitional meaning.’” Id. (quoted source omitted). “Context and
structure are also important” to the meaning of the ordinance. Id. We interpret
the language of the ordinance “‘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.’” See id. (quoted
source omitted).

¶23 At the heart of each issue raised in this appeal is the meaning and
application of the City’s prohibition on the “use of a boathouse for human
habitation.” For example, Dwyer does not contest that the no-habitation ordinance
applies to his planned boathouse. This ordinance is part of the City’s zoning rules
addressing its “wetland-shoreland” zoning district, and Dwyer does not dispute
that the boathouse is located inside the City’s wetland-shoreland district. See
MONONA ORD. § 466-26.A(1) (defining part of scope of wetland-shoreland

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district). Similarly, he does not dispute that he needs a permit from the City to
construct the boathouse. See MONONA ORD. § 175-8.E. (permits required for
“accessory structures”), § 175-20 (defining accessory structure in part to include
“structures such as boathouses …”).

¶24 But this leaves undefined the following core terms: “use” and
“habitation.” These terms are not given specific or technical definitions in either
the City’s ordinances or WIS. ADMIN. CODE ch. NR 115. See MONONA ORD.
§ 466-48 (defining “terms” for purposes of “floodplain and shoreland-wetland
zoning” chapter of ordinances); § NR 115.03 (providing definitions for
ch. NR 115).

¶25 We begin with the verb “use.” The no-habitation ordinance
prohibits a specified “use” of a boathouse. Viewed in isolation, this might suggest
that the no-habitation ordinance is not violated until there is an actual human
habitation use. But, in the context of the Zoning Board’s review of the building
inspector’s decision regarding a permit for a not-yet-complete boathouse, the
inspector could certainly interpret “use” to include whatever he could reasonably
predict about human habitation of the boathouse following its construction.
Moreover, “use” is not limited to the specific uses that the current owner may plan
to pursue, or does in fact pursue, following completion of construction. Instead,
when additional, related City ordinances are taken into account, the regulated
“use” would include that by any current or future owner, given the design of the
boathouse.

¶26 We now explain this idea further, with reference to additional
ordinances. The City’s building inspector is obligated to enforce zoning rules
through tools that include the ability to rescind permits for planned buildings that

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merely or mostly exist as designs on paper. See MONONA ORD. § 175-7.C.
(inspector must “revoke” already issued permit if he or she “finds at any time that
the ordinances … are not being complied with …”); see also MONONA ORD.
§ 175-8.E. (“If the Building Inspector finds that the proposed building will comply
with all ordinances of the City … [the inspector] shall officially approve the same
and shall issue a building permit.”).6 Such planned buildings will, of course, not
yet have been given any meaningful use by the current owner, and therefore the
inspector is required to assess whether the design of a planned building complies
with zoning regulations before the building is ready for use. For these reasons, it
would not be reasonable to interpret the no-habitation ordinance to require the
inspector to wait to revoke all or part of a building permit until after the current
owner has actually inhabited a new boathouse. Having to wait for completion of
construction would prevent the inspector from playing a meaningful role in
enforcing the no-habitation ordinance. Accordingly, we apply a design-based
definition of “use” that is not limited to those uses that Dwyer has expressed that
he plans to pursue.

¶27 On appeal, Dwyer refers to positions that he took before the Zoning
Board, namely, that he intended to limit uses of a bathroom-equipped boathouse to
recreational uses and that he did not intend to include the bathroom to facilitate
overnight or extended occupation of the boathouse. But he does not develop an

6
Dwyer does not contest that these directives to the inspector—involving revocation
because of noncompliance and approval of permits when there is compliance—include
compliance with the City’s zoning ordinances. Nor does he contend that the inspector lacked the
general authority to partially rescind a permit of the type at issue here based on the inspector’s
determination, if justified, that a permitted project would violate a City ordinance if it were
completed as designed and initially permitted. For example, Dwyer raises no version of a vested
right or estoppel argument.

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argument that the Board was required to accept those positions or to take them into
account in reviewing the inspector’s decision.7 In any case, our design-based
interpretation of “use” directly undermines any argument suggested by Dwyer that
his expressed plans for how he would use the boathouse were unreasonably
ignored by the Board.

¶28 Turning to “habitation,” according to dictionary definitions that we
consider to be apt, this is the act of persons dwelling in, inhabiting, occupying, or
residing at or in a location.8 See Habitation, OXFORD ENGLISH DICTIONARY (“The
action of dwelling in or inhabiting as a place of residence; occupancy by
inhabitants.”) (last modified Mar. 2025); Habitation, MERRIAM-WEBSTER
DICTIONARY (“the act of inhabiting; occupancy”) (last updated Mar. 2025);
Habitation, AMERICAN HERITAGE DICTIONARY (“[t]he act of inhabiting or the
state of being inhabited”; “[a] residence”) (5th ed. 2022); see also WIS. ADMIN.
CODE § NR 116.03(26) (defining “human habitation” to mean “a human residence
or dwelling” for purposes of the department of natural resources’ floodplain
regulations in WIS. ADMIN. CODE ch. NR 116).9

7
On appeal, Dwyer refers to the fact that he offered to provide the City with a restrictive
covenant, or to submit to a conditional use permit, providing that the boathouse could not be used
for human habitation if the plumbing for a bathroom were allowed. The Zoning Board did not
appear to factor this offer into its review of the building inspector’s decision. But Dwyer does not
develop a related legal argument and accordingly we do not address this concept further.
8
“‘A dictionary may be utilized to guide the common, ordinary meaning of words.’”
See Amazon Logistics, Inc. v. LIRC, 2023 WI App 26, ¶44, 407 Wis. 2d 807, 992 N.W.2d 168
(quoting Noffke ex rel. Swenson v. Bakke, 2009 WI 10, ¶10, 315 Wis. 2d 350, 760 N.W.2d 156).
9
At least for purposes of this case, the term “human,” in the phrase “human habitation,”
appears to add nothing that is not already obvious. The definitions that we quote regarding
“habitation” unambiguously contemplate people, as opposed to animals or inanimate objects,
inhabiting or occupying a place other than on a transient or passing basis, and neither side in this
appeal suggests differently.

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¶29 In addition, dictionaries confirm our intuition that “habitation”
generally connotes at least some level of consistency and permanency, in contrast
to merely a transient or passing presence in a place. For example, someone
visiting a boathouse during the course of a day or over multiple days, but without
ever staying overnight, would typically be a mere transient visitor and not one who
inhabits the boathouse. As one dictionary puts it, “habitation” is the act of being
inhabited, i.e., “having inhabitants,” and “inhabitant[s]” are those who “inhabit a
place, especially as a permanent resident.” See Habitation, Inhabited, Inhabitant,
AMERICAN HERITAGE DICTIONARY (5th ed. 2022); see also Occupancy,
MERRIAM-WEBSTER DICTIONARY (“the fact or condition of holding, possessing,
or residing in or on something”).

¶30 Summing up on these definitions, given the nature of the building
inspector’s ordinance-based authority and obligation to enforce zoning
requirements, the inspector could determine how a prospective boathouse’s design
could allow use for human habitation, that is, use of the boathouse as a structure
suitable for occupancy by persons other than on a transient or passing basis.

¶31 We note that this set of definitions is consistent with the statutory
and regulatory purposes stated in WIS. ADMIN. CODE § NR 115.05 and in the
Monona Ordinance containing the no-habitation ordinance. See WIS. ADMIN.
CODE § NR 115.01 (noting purposes for WIS. ADMIN. CODE ch. NR 115 that
include “‘further[ing] the maintenance of safe and healthful conditions;
prevent[ing] and control[ling] water pollution; … control[ling] building sites,
placement of structure and land uses and reserve[ing] shore cover and natural
beauty’” (quoting WIS. STAT. § 281.31(1)); MONONA ORD. § 466-3 (noting
purposes of ordinance chapter including the no-habitation ordinance that include
“Protect[ing] life, health and property”). That is, our interpretation comports with

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purposes that include discouraging persons from residing in such proximity to the
lake with enough consistency to elevate the risks of either water pollution or
injuries or property damage arising from water hazards.

¶32 To be sure, the generic wording of the no-habitation ordinance
dictates a relatively broad definition. The combinations of boathouse features that
will cause a particular design to render the structure suitable for habitation by
persons for non-transitory periods will necessarily vary based on particular factual
circumstances. Dwyer argues for a degree of specificity that is not conveyed by
the broad-reaching language of the no-habitation ordinance. We now explain why
we reject Dwyer’s more specific interpretation.

¶33 Dwyer makes a two-step argument to the effect that the no-
habitation ordinance prohibits only boathouses that have “living, cooking,
sanitary[,] and sleeping facilities.” Dwyer’s first step is to note, as we already
have above, that some dictionary definitions of “habitation” include “dwelling.”
See supra, Habitation, OXFORD ENGLISH DICTIONARY. Dwyer’s second step is to
observe that the City’s building code defines “dwelling unit” as “[o]ne or more
rooms with provisions for living, cooking, sanitary[,] and sleeping facilities
arranged for habitation by one family.” See MONONA ORD. § 175-27.A. (also
defining “dwelling” to mean “[a] place of abode, a residence or house for use by
one or more persons, excluding hotels or motels.”).

¶34 The second step in Dwyer’s argument is contradicted by the
ordinances. As the City notes, the “dwelling unit” definition identified by Dwyer
applies to special regulations relating to the City’s “Construction Standards Code,”
which are not applicable to boathouses. See MONONA ORD. § 175-27.A. (listing
“dwelling unit” among definitions that “shall be applicable in this section,” i.e.,

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ORD. § 175-27 (emphasis added)). Instead, these regulations govern the
construction of multi-unit or rental residences. See, e.g., ORD. § 175-27.F(1)(a)[1]
(setting parking space limits for “properties on which three or more dwelling units
exist”). Dwyer fails to support the proposition that the building code definition
that he identifies aids in the interpretation of “human habitation” involving
boathouses in the no-habitation ordinance. So far as he shows, the purpose of
defining “dwelling unit” in the building code (which involves regulating multi-unit
or rental residences) has no evident connection to the purposes of the wetland-
shoreland zoning scheme at issue here (which involves policy goals that include
prohibiting “certain uses detrimental to the shoreland-wetland area”). See
MONONA ORD. § 466-3 (statement of purpose for floodplain and shoreland-
wetland zoning ordinance).

Application to Zoning Board’s Decision

¶35 Having provided an interpretation of the pertinent terms in the no-
habitation ordinance, we now determine whether Dwyer overcomes the
presumption that the Zoning Board applied that provision using a correct theory of
law. Much of Dwyer’s argument on this issue focuses on the Zoning Board’s
written order; he largely ignores other parts of the record. However, we must
consider both the Board’s written decision and the transcript of the Board’s
hearing. See Lamar Cent. Outdoor, Inc. v. Board of Zoning Appeals of City of
Milwaukee, 2005 WI 117, ¶35 & n.15, 284 Wis. 2d 1, 700 N.W.2d 87; Block v.
Waupaca Cnty. Bd. of Zoning Adjustment, 2007 WI App 199, ¶7, 305 Wis. 2d
325, 738 N.W.2d 132.

¶36 A key feature of Dwyer’s argument is that, in the written order, the
Zoning Board failed to state or explicitly apply a definition of “human habitation.”

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Dwyer notes that our supreme court has explained in a similar context that zoning
boards must “provide reasons for determination[s].” See Lamar, 284 Wis. 2d 1,
¶¶26-29; Driehaus v. Walworth County, 2009 WI App 63, ¶13, 317 Wis. 2d 734,
767 N.W.2d 343 (county zoning “board must apply the appropriate legal standards
and adequately express the reasons for its decision on the record” (citing Lamar,
284 Wis. 2d 1, ¶4)).10 However, the Zoning Board was not required to provide “a
detailed or explicit explanation” of its reasoning. See Oneida Seven Generations,
362 Wis. 2d 290, ¶49. Rather, the Board’s “decision need only contain enough
information” for this court “to discern the basis” of the decision. See id.; see also
AllEnergy Corp. v. Trempealeau Cnty. Env’t & Land Use Comm., 2017 WI 52,
¶23 n.14, 375 Wis. 2d 329, 895 N.W.2d 368 (“for meaningful review, a reviewing
court must be able to discern from the record or the transcript of the proceedings
before the board the reasons for” the board’s decision (citing Lamar, 284 Wis. 2d
1, ¶¶31-35)). Applying these standards here, we conclude that Dwyer does not
meet his burden.

10
We assume in Dwyer’s favor that statements of our supreme court in Lamar apply
here in full, namely, the court’s statements that a city zoning board was required to “provide
reasons for its determination” that statutory criteria were not met, instead of merely stating this in
a conclusory fashion. See Lamar Cent. Outdoor, Inc. v. Board of Zoning Appeals of City of
Milwaukee, 2005 WI 117, ¶¶26-29, 284 Wis. 2d 1, 700 N.W.2d 87. We make this assumption
even though the court in Lamar relied at least in part on a statute that has been repealed since
Lamar was decided. See id., ¶¶11 n.6, 27-28 (referring to WIS. STAT. § 62.23(7)(e)9. (2001-02)
as “the controlling statute”); 2005 Wis. Act 34, § 6 (repealing § 62.23(7)(e)9.). In favor of the
assumption we now make, the court in Lamar also referenced: secondary authority, see id., ¶26
(citing, e.g., Yokley, ZONING LAW AND PRACTICE § 20-16 at 20-68); common law principles of
certiorari review, see id., ¶¶16, 26 (“‘absence of discretion’” caused by a board’s failure to state
its reasoning is “a violation of the third prong of certiorari review,” i.e., the board acting
arbitrarily); and “traditional notions of due process,” see id., ¶29. Further, our supreme court has
applied aspects of Lamar following the repeal of the pertinent statute. See AllEnergy Corp. v.
Trempealeau Cnty. Env’t & Land Use Comm., 2017 WI 52, ¶23 n.14, 375 Wis. 2d 329, 895
N.W.2d 368. As we explain in the text, we conclude that Dwyer fails to establish that the Zoning
Board should be reversed on certiorari review based on an alleged failure to provide reasons for
its determination.

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No. 2024AP1725

¶37 We begin with a basic point. There is record support for the way
that the Zoning Board identified the issue before it. That is, the hearing transcript
reflects that Board members properly understood that the issue was whether the
building inspector could, consistent with the no-habitation ordinance, partially
rescind the building permit based on the inspector’s determination that the
boathouse, as designed, would be suited for use for human habitation. More
specifically, the record shows a reasonable basis for the Board’s understanding
that the inspector determined that the inclusion of plumbing for a bathroom, as the
design called for, would allow the boathouse to be used for human habitation,
when all permitted features are taken into account, including electricity and
HVAC.11

¶38 Dwyer observes that the inspector did not testify or submit materials
to the Zoning Board. Further, he notes that the inspector’s written notice to Dwyer
did not explicitly state that including plumbing in the boathouse was what, in the
inspector’s view, made its design capable of use for human habitation. However,
under the circumstances, we conclude that it was reasonable for the Zoning Board
to interpret the inspector’s decision to reflect the inspector’s determination that
including plumbing in the boathouse made the difference, triggering a violation of
the no-habitation ordinance. The Board had before it both the inspector’s notice

11
The following are examples of this framing. After the close of comments, legal
counsel for the City said that the issue before the Zoning Board was whether the building
inspector properly determined that the proposed boathouse was going to be what the City’s
attorney described as a “habitable structure” under the no-habitation ordinance. The attorney said
that this turned on whether the boathouse would become a “structure or portion thereof used for
or designed for human habitation.” The next board member to speak (Brad Schweiger) framed
the issue as “whether or not the building inspector made a proper determination that the
boathouse is constructed for human habitation.”

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No. 2024AP1725

and design plans submitted by Dwyer showing the inclusion of a bathroom, as
well as the renewed permit that did not allow plumbing.

¶39 With this understanding of the issue, several Board members
proceeded to discuss a variety of design features of boathouses that the members
thought would render them suitable for human habitation. Member Brad
Schweiger said that, based on how some “towns,” “such as Bayfield,” define
“building use for human habitation,” the following is necessary to define the
phrase “use for human habitation”: “a dwelling or a business that has or needs a
water supply or that has or needs a drain, drain system or plumbing fixture ….” If
Dwyer’s boathouse includes plumbing, Schweiger continued, it “can easily be
used for human habitation.” Schweiger also expressed the view that the prohibited
boathouse “human habitation” can include occupancy that lasts for only “a
temporary time”—“it just has to be habitable for an indefinite period of time or a
short period of time.”

¶40 Board member Elizabeth Piliouras expressed the view that what
makes a structure habitable “includes plumbing and heating and cooling.” This
idea was echoed by board member Wynn Davies, who said that, in order to use
plumbing to facilitate a space for habitation in Monona, Wisconsin, “constant
heat” is required to avoid frozen pipes. “[T]hat means … you would have to retain
heat inside that building year-round so you do not damage any plumbing fixtures,”
and therefore heat and plumbing are both required “if it is or could be habitable
space.” Davies said that Dwyer’s boathouse was designed to be “weather-
protected” and thus, if it included plumbing for a bathroom, it would be “suitable
[for habitation] in that sense.”

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No. 2024AP1725

¶41 This discussion represents sufficient evidence that Board members
applied an understanding of “human habitation” that is consistent with our
interpretation above. To clarify, we do not conclude that our interpretation
necessarily requires the result that the Board reached. Rather, we conclude that
Dwyer fails to overcome the presumption that this discussion was consistent with
the broad definition of “human habitation” that we identify above. In sum,
members expressly considered which kinds of structural features would make a
boathouse habitable in general—taking into account relevant factors such as the
climate in south central Wisconsin—and the role of plumbing in rendering a
boathouse with this design habitable.

¶42 Dwyer essentially argues that we should ignore the more
substantively robust portions of the Zoning Board’s discussion of “human
habitation” and instead focus on specific aspects of the Board’s reasoning that he
submits are erroneous. But this would not be consistent with applicable review
standards, under which we presume the correctness of the Board’s decision and
consider the Board’s decision in light of the record as a whole.

¶43 Explaining further, instead of coming to grips with the Zoning
Board’s discussion of the meaning of “human habitation,” Dwyer focuses
narrowly on what he argues are two errors reflected in the Board’s written order
and what various Board members said at the hearing. The first alleged error was
reliance on a “Bayfield” ordinance regarding habitability. Dwyer alleges that
there is no such ordinance. There appears to be no dispute that the Town of
Bayfield, Wisconsin, does not have an ordinance matching member Schweiger’s
description of what “other towns … such as Bayfield,” do to regulate boathouses.
Yet Dwyer does not persuade us that, regardless how this reference came about or
what it meant, it undermines the Board members’ discussion of reasonable

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No. 2024AP1725

considerations regarding the meaning of human habitation as it applies to the
design of Dwyer’s boathouse. Put differently, Dwyer does not explain how
Schweiger’s reference to a Bayfield ordinance, or anything else that Schweiger
said, was erroneous in a way that undermined the substance of the Board’s
discussions. See Lamar, 284 Wis. 2d 1, ¶¶30-31 (“most board members are not
attorneys …. We do not expect boards of zoning appeal to produce judicial
opinions.”). Dwyer does not support his assertion that Schweiger’s reference to a
Bayfield ordinance amounted to an attempt to “invent law” to justify a desired
result.

¶44 The second legal error alleged by Dwyer involves the following
statement in the Zoning Board’s written decision:

The determination of habitable is to the Building
Inspector’s interpretation. Given the subject matter
expertise of the Inspector, the Board shared that [Board
members] had not heard enough to definitively say the
Inspector was in error and overturn the decision.

It is true that, considered in isolation, this statement suggests that the Zoning
Board could abdicate its responsibility to apply its own understanding of the
meaning of “human habitation” to the facts, and defer entirely to the inspector’s
views or positions, which as Dwyer points out were not articulated in detail in the
inspector’s notice of partial recission. However, Dwyer fails to show that, when
the hearing transcript and the written decision are construed in their entirety, the
Board as a whole, or even its majority, understood that they were required to, or
did in fact, rely on the building inspector to establish the legal standard and to
apply that standard here without exercising their discretion. Notably, when
construed in the fuller context, one reasonable interpretation of this statement
would be that the Zoning Board concluded that Dwyer failed to show that the

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No. 2024AP1725

inspector’s determination was improper under the correct legal standard as applied
to these facts, based on the assessment of Board members regarding the
significance of plumbing to the concept of “human habitation,” when added to all
other design features of the boathouse. In other words, one reasonable
interpretation of the record is that the Board was simply expressing agreement
with the inspector’s decision, and not expressing blind adherence to his views and
positions.

II. Substantial Evidence

¶45 Dwyer argues that the Zoning Board’s decision was not supported
by substantial evidence. Again here, the argument rests heavily on the Board’s
written order, this time with an emphasis on a statement that the Board
denominated as a “factual finding.” This “factual finding” was the following:
“Affirming the determination of the City’s Building Inspector … rescinding [the
initial permit] because the Inspector determined the Boathouse is constructed for
human habitation ….” Dwyer apparently means to suggest that our determination
of whether the Zoning Board’s decision was supported by substantial evidence
depends on whether the written statement contains explicit findings supported by
substantial evidence. As noted above, however, our review is not limited to the
Board’s written decision. We consider the record as a whole to discern the
Board’s findings and reasoning. See Lamar, 284 Wis. 2d 1, ¶35 & n.15; Oneida
Seven Generations, 362 Wis. 2d 290, ¶49. Similarly, when applying the
“substantial evidence test” on certiorari review, we “‘take into account all the
evidence in the record,’” including evidence that the Board did not explicitly rely
on. See Oneida Seven Generations, 362 Wis. 2d 290, ¶45 (quoted source
omitted).

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No. 2024AP1725

¶46 Based on these standards, Dwyer completely fails to show that the
Board’s decision was not supported by substantial evidence. Our brief outline of
the nature of the evidence below is sufficient to meet the pertinent standards,
which we now summarize.

¶47 “‘Substantial evidence is evidence of such convincing power that
reasonable persons could reach the same decision as the board.’” Id., ¶43 (quoted
source omitted). “[S]ubstantial evidence is less than a preponderance of the
evidence,” but “it is ‘more than a mere scintilla’ of evidence and more than
‘conjecture and speculation.’” Id., ¶44 (quoted source omitted).

¶48 Dwyer submitted materials to the Zoning Board that included:
construction plans for the boathouse, some reflecting plumbing for a sink and
toilet; the initial building permit; the building inspector’s letter partially rescinding
the initial permit; the subsequently issued permit that did not allow plumbing; and
photographs of the boathouse showing substantial progress in construction. These
materials established the following undisputed facts before the Zoning Board that
we have already noted above and briefly summarize now. At the time of the
partial rescission of the initial permit, Dwyer’s boathouse was designed to include
plumbing for a bathroom, in addition to electrical service and HVAC. The initial
building permit allowed plumbing, electrical service, and HVAC. The building
inspector sent Dwyer a notice that the inspector rescinded any right to include
facilities for human habitation in the boathouse, as designed. The later-issued
permit no longer allowed plumbing, although it continued to allow electrical
service and HVAC. The zoning administrator described for the Zoning Board his
meeting with the building inspector to discuss the permit, and the administrator’s
understanding of how plumbing has been used for recreational purposes in other

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No. 2024AP1725

boathouses in the City, such as water lines and spigots for cleaning related to
boating and fishing.

¶49 In addition, several members of the Board expressed the view that
Dwyer’s boathouse, as initially designed, had features that qualified it for year-
round use for human habitation. Taken together, the evidence and what appear to
have been reasonable inferences by Board members amount to much more than a
“mere scintilla.” See Town of Hudson v. Hudson Town Bd. of Adjustment, 158
Wis. 2d 263, 277, 461 N.W.2d 827 (Ct. App. 1990) (town board of adjustment
could reasonably infer information in a permit application reflecting that truck
parking would be added to the applicant’s property, that granting a permit would
increase town’s traffic volume).

III. Not Arbitrary or Unreasonable

¶50 Dwyer contends that the Zoning Board’s challenged decision was
arbitrary. Whether the Zoning Board acted “arbitrarily or unreasonably” in a way
that requires relief under certiorari review depends on whether the Board’s action
“‘represented its will and not its judgment,’ such that it ‘is the result of an
unconsidered, willful or irrational choice.’” See Halter v. Wisconsin
Interscholastic Athletic Ass’n, 2025 WI 10, ¶30, 415 Wis. 2d 384, 19 N.W.3d 58
(citing Van Ermen v. DHSS, 84 Wis. 2d 57, 63-65, 267 N.W.2d 17 (1978)). We
now address the two specific arguments that Dwyer makes on this topic: (1) the
Board decision was arbitrary because there are other boathouses in the City with
bathrooms; and (2) the Board was improperly swayed by public opinion.

¶51 Regarding the other-bathrooms argument, Dwyer fails to provide
sufficient factual support from the record to show arbitrariness. The beginnings of
such an argument would appear to require proof that it was the Zoning Board’s

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No. 2024AP1725

actions that caused unjustified differences in outcomes between similarly situated
permit applicants. See WIS. STAT. § 62.23(7)(e)10.; see Lamar, 284 Wis. 2d 1,
¶16 (describing limited nature of certiorari review, focusing on the decision of the
zoning board). Yet Dwyer merely directs us to record evidence suggesting that at
least one of his neighbors had been recently allowed to build a boathouse with a
bathroom. He identifies no evidence that this alleged outcome was the result of
the Board’s actions or inactions, as opposed to actions or inactions of city staff
that were never brought before the Board. Further, even if we assume without
deciding that the Board had some involvement in allowing bathroom plumbing to
be installed for one or more other boathouses in the City, the evidence identified
by Dwyer does not show the specific circumstances under which this occurred, as
would be necessary to support a determination of arbitrariness.

¶52 Beyond those shortcomings, Dwyer does not provide legal support
for the premise that the Zoning Board taking actions to allow bathrooms in other
boathouses, to the extent this may have occurred, would necessarily render the
challenged decision arbitrary. Success on this issue would require Dwyer to show
that the Zoning Board applied an arbitrary process in making the decision to
affirm the partial recission in this case. See Halter, 415 Wis. 2d 384, ¶30
(describing issue before the court as “whether in … Halter’s case,” the decision-
making body at issue “applied its rules arbitrarily or unreasonably”).

¶53 Turning to Dwyer’s public-pressure argument, again he fails here to
support his argument with record evidence that shows arbitrariness. Dwyer
accurately observes that public comment was uniform in opposing his plans for a
boathouse generally—or at least opposing all boathouses that have bathrooms.
Many public comments did not appear to be relevant to the specific issue before
the Board involving the inspector’s partial revocation of the permit. For example,

25
No. 2024AP1725

some commenters expressed concerns about the noise caused by construction of
the boathouse or that once completed it would be an “eyesore.” But Dwyer does
not identify any aspect of the Board’s reasoning process, as expressed by any
member of the Board, much less a majority of the Board, that actually relied on
irrelevant public comment. Dwyer may mean to argue that public opposition must
have improperly swayed the Board because the Board failed to apply a rational
process of reasoning supported by substantial evidence. But, as explained above,
we conclude that Dwyer does not show such a failure.

CONCLUSION

¶54 For all of these reasons, we affirm the circuit court’s order denying
Dwyer’s certiorari challenge to the Zoning Board’s decision.

By the Court.—Order affirmed.

Recommended for publication in the official reports.

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