2021 WI 6

SUPREME COURT OF WISCONSIN

CASE NO.: 2018AP547

COMPLETE TITLE: State of Wisconsin ex rel. Michael Anderson,

 Petitioner-Appellant-Petitioner,

 v.

Town of Newbold,

 Respondent-Respondent.

REVIEW OF DECISION OF THE COURT OF APPEALS

Reported at 389 Wis. 2d 309,935 N.W.2d 856

PDC No:2109 WI App 59 - Published

OPINION FILED: January 27, 2021 

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: October 1, 2020 

SOURCE OF APPEAL:

COURT: Circuit 

COUNTY: Oneida 

JUDGE: Patrick F. O’Melia 

JUSTICES:

ANN WALSH BRADLEY, J., delivered the majority opinion of the 

Court in which ROGGENSAKC, C.J., ZIEGLER, DALLET, and KAROFSKY, 

JJ., joined. HAGEDORN, J., filed a dissenting opinion, in which 

REBECCA GRASSL BRADLEY, J., joined.

NOT PARTICIPATING:

 

ATTORNEYS:

For the petitioner-appellant-petitioner, there were briefs 

filed by Timothy B. Melms, Mary M. Hogan, and Hogan & Melms, 

LLP, Rhinelander. There was an oral argument by Timothy B. Melms

and Mary M. Hogan.

For the respondent-respondent, there was a brief submitted 

by Daniel L. Vande Zande, Sam Kaufman, and Vande Zande & 

Kaufman, LLP, Waupun. There was an oral argument by Daniel L. 

Vande Zande.
2

An amicus curiae brief was submitted on behalf of Wisconsin 

Association of Lakes, Inc., Big Portage Lake Riparian Owners 

Association, Blue Lake Preservation Association, Ballard-IrvingWhite Birch Lakes Association, Inc., Deer Lake Improvement 

Association, Wildcat Lake Association, Lake Katherine 

Association, Inc. and Plum Lake Association by Christa O. 

Westerberg and Pines Bach LLP, Madison. 

An amicus curiae brief was submitted on behalf of Wisconsin 

Towns Association by Joseph Ruth, Shawano. 

An amicus curiae brief was submitted on behalf of Wisconsin 

Realtors Association and Wisconsin Builders Association by

Thomas D. Larson, Madison. There was an oral argument by Thomas 

D. Larson.
2021 WI 6

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2018AP547

(L.C. No. 2017CV55)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin ex rel. Michael Anderson,

 Petitioner-Appellant-Petitioner,

 v.

Town of Newbold,

 Respondent-Respondent.

FILED

JAN 27, 2021

Sheila T. Reiff

Clerk of Supreme Court

ANN WALSH BRADLEY, J., delivered the majority opinion of the 

Court, in which ROGGENSACK, C.J., ZIEGLER, DALLET, and KAROFSKY, 

JJ., joined. HAGEDORN, J., filed a dissenting opinion, in which 

REBECCA GRASSL BRADLEY, J., joined.

REVIEW of a decision of the Court of Appeals. Affirmed. 

¶1 ANN WALSH BRADLEY, J. The petitioner, Michael 

Anderson, seeks review of a published court of appeals decision 

affirming the circuit court's order upholding the Town of 

Newbold's denial of Anderson's attempt to subdivide his 

property.1 Anderson's proposed subdivision was denied by the 

 

1 State ex rel. Anderson v. Town of Newbold, 2019 WI App 59, 

389 Wis. 2d 309, 935 N.W.2d 856 (affirming order of circuit 

court for Oneida County, Patrick F. O'Melia, Judge).
No. 2018AP547 

2

Town because the two resulting lots would not meet the Town's 

applicable minimum shoreland frontage requirement as set by Town 

ordinance.

¶2 Anderson contends that the Town's minimum shoreland 

frontage requirement is unenforceable because it is a shoreland 

zoning regulation that the Town does not have the authority to 

enact. The Town, on the other hand, argues that the requirement 

is a permissible exercise of its subdivision authority.

¶3 We conclude that the Town ordinance at issue is a 

permissible exercise of the Town's subdivision authority 

pursuant to Wis. Stat. § 236.45 (2017-18).2 The Town thus 

proceeded on a correct theory of law when it denied Anderson's 

request to subdivide his property in a way that would contravene 

the ordinance.

¶4 Accordingly, we affirm the decision of the court of 

appeals.

I

¶5 Anderson owns property on Lake Mildred in the Town of 

Newbold, which includes 358.43 feet of shoreline frontage. 

Seeking to subdivide his property into two separate lots, one 

with 195 feet of shoreline frontage and the other with 163.43 

feet, Anderson submitted a proposal to the Town.

¶6 At its November 3, 2016 meeting, the Town Plan 

Commission considered Anderson's proposal. The commission 

 

2 All subsequent references to the Wisconsin Statutes are to 

the 2017-18 version unless otherwise indicated.
No. 2018AP547 

3

recommended that the Town deny Anderson's proposal based on its 

failure to comply with the Town's subdivision ordinance. 

According to the commission's minutes, denial was recommended 

"because [the plan] does not comply with Town of Newbold OnWater Land Division Standards 13.13 which requires a minimum 225 

foot lot width at the ordinary high water mark" of Lake Mildred. 

Adopting the commission's recommendation, the Town Board denied 

Anderson's proposed subdivision.

¶7 Anderson sought certiorari review of the Town's 

decision in the circuit court. He contended that the Town 

proceeded on an incorrect theory of law by denying his proposal 

to subdivide his property. Specifically, he relied on Wis. 

Stat. § 59.692,3 contending that this statute prevents 

municipalities from enforcing local shoreland zoning standards 

that are more restrictive than the standards that have been 

enacted on a state level. Anderson argued that the Town of 

Newbold ordinance is invalid because it is more restrictive than 

state standards. 

¶8 The circuit court issued a written decision, in 

several places referring to the case as a "close call." 

Although it stated that Anderson "makes a fairly strong case," 

it ultimately did not rule in his favor and affirmed the Town's 

decision. The circuit court concluded that the Town ordinance 

 

3 Wisconsin Stat. § 59.692(1d)(a) provides: "An ordinance 

enacted under this section may not regulate a matter more 

restrictively than the matter is regulated by a shoreland zoning 

standard."
No. 2018AP547 

4

at issue does not fall within the purview of Wis. Stat. 

§ 59.692: "It is not a zoning ordinance enacted under Wis. 

Stat. Ch. 59 at all; instead, it is a subdivision ordinance 

enacted under Wis. Stat. Ch. 236."

¶9 Recognizing a distinction between zoning ordinances 

and subdivision ordinances, the circuit court also observed an 

overlap between the two concepts that ultimately proved 

dispositive: "Because there is a recognized overlap between 

these two functions (i.e. zoning and subdivision controls), Mr. 

Anderson's concern that 'the Town of Newbold is performing a 

zoning function' with its subdivision ordinance cannot 

ultimately prevail." It reached this conclusion because "the 

statutory 'enacted under this section' language chosen by the 

legislature [in Wis. Stat. § 59.692] is difficult to apply to a 

local subdivision ordinance enacted under Wis. Stat. Ch. 236." 

¶10 Anderson appealed, and the court of appeals affirmed 

the circuit court, upholding the Town's denial of Anderson's 

proposed subdivision. State ex rel. Anderson v. Town of 

Newbold, 2019 WI App 59, 389 Wis. 2d 309, 935 N.W.2d 856. The 

court of appeals recognized what it described as an "undeniable 

tension between Wis. Stat. §§ 59.692 and 236.45[,]" yet like the 

circuit court, it determined that "the Town has the authority to 

enforce the Shoreland Ordinance, which, again, was undisputedly 

enacted as a lawful exercise of the Town's subdivision authority 

under Wis. Stat. § 236.45." Id., ¶¶21-22. Anderson petitioned 

for review in this court.
No. 2018AP547 

5

II

¶11 This case arrives here on certiorari review. 

"Certiorari is a mechanism by which a court may test the 

validity of a decision rendered by a municipality, an 

administrative agency, or an inferior tribunal." Ottman v. Town 

of Primrose, 2011 WI 18, ¶34, 332 Wis. 2d 3, 796 N.W.2d 411. 

¶12 On certiorari review, we examine the decision of the 

Town Board, not the decision 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. Our review 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. Wisconsin Dolls, LLC v. Town of Dell 

Prairie, 2012 WI 76, ¶18, 342 Wis. 2d 350, 815 N.W.2d 690.

¶13 In our review, we must interpret several statutes. 

Statutory interpretation presents a question of law this court 

reviews independently of the determinations rendered by the 

circuit court and court of appeals. Shugarts v. Mohr, 2018 WI 

27, ¶18, 380 Wis. 2d 512, 909 N.W.2d 402.

III

¶14 We begin by setting forth necessary background 

regarding the statutory authority of various governmental 

entities to regulate land use and subdivision, with a specific 
No. 2018AP547 

6

eye to shorelands. Subsequently, we examine Anderson's 

arguments advanced in this case.

A

¶15 At issue is the validity of the Town's minimum 

shoreland lot size requirements found in Town of Newbold 

Ordinance 13.13. In Ordinance 13.13.01, the Town sets forth the 

purpose and intent of the provision: 

The Town Board has determined that in order to enhance 

the quality of the division or subdivision of land 

within areas of the Town affecting properties having 

frontage on any of the lakes, flowages, ponds, 

navigable rivers and/or streams located within the 

Town, that standards more stringent than current 

County development standards be established as 

provided . . . .

¶16 Accordingly, the Town set minimum lot frontage 

requirements for each lake within its borders. As applicable to 

Lake Mildred, such minimum lot frontage is 225 feet. Anderson 

challenges this regulation as outside the statutory authority of 

the Town to enact.

¶17 In terms of this certiorari review, the issue focuses 

on the second prong of such review——whether the Town proceeded 

on a correct theory of law in enacting the above-cited minimum 

shoreland lot size requirement. To determine whether the Town 

proceeded on a correct theory of law, we must interpret the 

relevant statutes that set the parameters for the regulation of 

land use controls by various governmental entities.

¶18 Statutory interpretation begins with the language of 

the statute. State ex rel. Kalal v. Cir. Ct. for Dane Cnty., 
No. 2018AP547 

7

2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110. If the 

meaning of the statute is plain, we need not further the 

inquiry. Id. 

¶19 "Statutory language is given its common, ordinary, and 

accepted meaning, except that technical or specially-defined 

words or phrases are given their technical or special 

definitional meaning." Id. 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 closelyrelated statutes; and reasonably, to avoid absurd or 

unreasonable results." Id., ¶46.

¶20 The Wisconsin Statutes provide a framework for the 

regulation of land use by various governmental entities. Such 

regulation can take the form of planning, zoning, or platting. 

Town of Sun Prairie v. Storms, 110 Wis. 2d 58, 68, 327 

N.W.2d 642 (1983). This court has recognized that "[z]oning and 

planning must be viewed as complementary devices used in 

community planning." Id. (quoting E.C. Yokley, Law of 

Subdivisions, § 39 at 157-58 (2d ed. 1981)).

¶21 Not all lands are treated equally in terms of 

community planning. Indeed, the legislature has recognized that 

shorelands are subject to unique considerations. These 

considerations arise from the fact that shorelands abut 

navigable waters, the beds of which are held in trust by the 

State for all of its citizens. Wis. Stat. § 281.31(1); Movrich 

v. Lobermeier, 2018 WI 9, ¶25, 379 Wis. 2d 269, 905 N.W.2d 807; 
No. 2018AP547 

8

R.W. Docks & Slips v. State, 2001 WI 73, ¶19, 244 Wis. 2d 497, 

628 N.W.2d 781. 

¶22 Because shorelands present unique considerations, they 

are treated differently for purposes of zoning. The legislature 

has specifically stated that shoreland zoning regulations are 

"in the public interest." Wis. Stat. § 281.31(1).4 In a full 

statement of policy, § 281.31(1) sets forth: 

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 make studies, 

establish policies, make plans and authorize municipal 

shoreland zoning regulations for the efficient use, 

conservation, development and protection of this 

state's water resources. The regulations shall relate 

to lands under, abutting or lying close to navigable 

waters. The purposes of the regulations shall be 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 and 

land uses and reserve shore cover and natural beauty.

¶23 "The basic purpose of a shoreland zoning ordinance is 

to protect navigable waters and the public rights therein from 

the degradation and deterioration which results from 

uncontrolled use and development of shorelands." Forest Cnty. 

 

4 Wisconsin has long been a national leader in shoreland 

protection through zoning. The passage of the Navigable Waters 

Protection Law, Wis. Stat. § 281.31, made Wisconsin the "first 

state to enact zoning legislation specifically designed to 

protect public water resources through the regulation of land 

use activities on contiguous shorelands." Tracy K. Kuczenski, 

Wisconsin's Shoreland Management Program: An Assessment With 

Implications For Effective Natural Resources Management and 

Protection, 1999 Wis. L. Rev. 273, 274 (1999).
No. 2018AP547 

9

v. Goode, 219 Wis. 2d 654, 678, 579 N.W.2d 715 (1998) (citation 

omitted); see Just v. Marinette Cnty., 56 Wis. 2d 7, 16-17, 201 

N.W.2d 761 (1972). Shoreland zoning also serves to balance the 

public and private interests in shoreland areas. Paul G. Kent, 

On the Waterfront: New Shoreland Zoning Laws, 90 Wis. Law. 14, 

15 (Jan. 2017).

¶24 Although general zoning authority is granted to both 

counties and towns, see Wis. Stat. §§ 59.69, 60.61, the 

authority to enact zoning ordinances specific to shorelands lies 

with counties alone.5 Wis. Stat. § 59.692(1c); see Hegwood v. 

Town of Eagle Zoning Bd. of Appeals, 2013 WI App 118, ¶9, 351 

Wis. 2d 196, 839 N.W.2d 111;6 Herman v. Cnty. of Walworth, 2005 

 

5 For purposes of Wis. Stat. § 59.692, "shorelands" are 

defined as: 

[T]he area within the following distances from the 

ordinary high-water mark of navigable waters, as 

defined under s. 281.31(2)(d): 

1. One thousand feet from a lake, pond or flowage. If 

the navigable water is a glacial pothole lake, this 

distance shall be measured from the high-water mark of 

the lake.

2. Three hundred feet from a river or stream or to the 

landward side of the floodplain, whichever distance is 

greater.

Wis. Stat. § 59.692(1)(b).

6 In Hegwood, the court of appeals determined that "[t]he 

plain language of the statutory scheme evinces that by enactment 

of Wis. Stat. §§ 281.31 and 59.692, the legislature intended 

that towns would not have authority to regulate shorelands 

except where such regulation fell within the language of 

§ 59.692(2)(b)," a grandfather clause that no party argues 

applies here. Hegwood v. Town of Eagle Zoning Bd. of Appeals, 

2013 WI App 118, ¶16, 351 Wis. 2d 196, 839 N.W.2d 111.
No. 2018AP547 

10

WI App 185, ¶18, 286 Wis. 2d 449, 703 N.W.2d 720. Section 

59.692(1c) provides in relevant part: "To effect the purposes 

of s. 281.31 and to promote the public health, safety and 

general welfare, each county shall zone by ordinance all 

shorelands in its unincorporated area. The requirements in this 

ordinance shall relate to the purposes in s. 281.31(1)."

¶25 A county shoreland zoning ordinance enacted pursuant 

to Wis. Stat. § 59.692 cannot be more restrictive than the 

standards that have been enacted at the state level: "An 

ordinance enacted under this section may not regulate a matter 

more restrictively than the matter is regulated by a shoreland 

zoning standard."7 § 59.692(1d)(a). The previous sentence, 

however, "does not prohibit a county from enacting a shoreland 

zoning ordinance that regulates a matter that is not regulated 

by a shoreland zoning standard." § 59.692(1d)(b).

 

As the court of appeals in the present case observed, 

subsequent to the Hegwood decision the legislature passed 2015 

Wis. Act 41. See Anderson, 389 Wis. 2d 309, ¶11 n.2. The court 

of appeals stated that this enactment "appear[s] to modify our 

decision in Hegwood to clarify that although towns do not have 

authority to enact a zoning ordinance that is specific to 

shoreland areas, they may still enact and apply a general zoning 

ordinance that applies in both shoreland and non-shoreland 

areas." Id. (citing Wis. Stat. §§ 60.61(3r) and 60.62(5)). Act 

41 does not affect our analysis and we need not interpret or 

further discuss the provisions it created.

7 A "shoreland zoning standard" is defined as "a standard 

for ordinances enacted under this section that is promulgated as 

a rule by the department [of natural resources]." Wis. Stat. 

§ 59.692(1)(c); see Wis. Admin. Code § NR 115.05 (Jan. 2017).
No. 2018AP547 

11

¶26 As stated, zoning ordinances are not the only means by 

which governmental entities can engage in community planning. 

The legislature has additionally given subdivision authority to 

certain entities.

¶27 The authority to enact subdivision regulations arises 

from Wis. Stat. § 236.45. Setting forth a litany of purposes in 

this statutory section, the legislature provided:

The purpose of this section is to promote the public 

health, safety and general welfare of the community 

and the regulations authorized to be made are designed 

to lessen congestion in the streets and highways; to 

further the orderly layout and use of land; to secure 

safety from fire, panic and other dangers; to provide 

adequate light and air, including access to sunlight 

for solar collectors and to wind for wind energy 

systems; to prevent the overcrowding of land; to avoid 

undue concentration of population; to facilitate 

adequate provision for transportation, water, 

sewerage, schools, parks, playgrounds and other public 

requirements; to facilitate the further resubdivision 

of larger tracts into smaller parcels of land. The 

regulations provided for by this section shall be made 

with reasonable consideration, among other things, of 

the character of the municipality, town or county with 

a view of conserving the value of the buildings placed 

upon land, providing the best possible environment for 

human habitation, and for encouraging the most 

appropriate use of land throughout the municipality, 

town or county.

§ 236.45(1).

¶28 To accomplish the purposes listed in subsec. (1), Wis. 

Stat. § 236.45(2)(ac) grants to "any municipality, town or 

county that has established a planning agency" the authority to 

"enact ordinances governing the subdivision or other division of 

land that are more restrictive than the provisions of this 

chapter, except that no ordinance may modify in a more 
No. 2018AP547 

12

restrictive way time limits, deadlines, notice requirements, or 

other provisions of this chapter that provide protections for a 

subdivider." Such ordinances "may include provisions regulating 

divisions of land into parcels larger than 1 1/2 acres or 

divisions of land into less than 5 parcels." § 236.45(2)(am).

¶29 Although they often work together, zoning and 

subdivision regulations provide separate and distinct means of 

regulating the development of land. In Storms, the court 

considered the question of whether the Town of Sun Prairie had 

authority under Wis. Stat. § 236.45 to adopt an ordinance 

regulating minimum lot size. 110 Wis. 2d at 60. Answering in 

the affirmative, the court explained that lot size regulation 

furthers several of the policy goals of ch. 236, including 

orderly layout and use of land, preventing overcrowding of land, 

avoiding undue concentration of population, providing the best 

possible environment for human habitation, encouraging the most 

appropriate use of land and providing for adequate light and 

air. Id. at 65.

¶30 The court further addressed the relationship between 

zoning and subdivision, indicating that both may deal with 

minimum lot sizes. Id. at 67. There are areas of overlap 

between the two powers, but there are also key differences. 

Both are aimed at the orderly development of a 

community. Though zoning is aimed at controlling the 

uses of land and existing resources, subdivision 

regulations are designed to control the division of 

land and to assure that such developments thereon are 

designed to accommodate the needs of the occupants of 

the subdivision. 
No. 2018AP547 

13

Id. at 68 (quotation omitted). "The purpose of zoning is to 

provide an overall comprehensive plan for land use, while

subdivision regulations govern the planning of new streets, 

standards for plotting new neighborhoods, and the protection of 

the community from financial loss due to poor development." Id.

(quotation omitted).

¶31 In other words, zoning and subdivision are 

"complementary land planning devices. Subdivision control is 

concerned with the initial division of undeveloped land, while 

zoning more specifically regulates the further use of this 

land." Id. "The fact that minimum lot size may also be 

regulated by zoning ordinances does not detract from the power 

of local governments to exercise such power pursuant to ch. 236, 

Stats." Id. at 70.

¶32 Thus, Storms stands for the proposition that zoning 

and subdivision regulation are separate, yet sometimes 

overlapping, powers. See also Wood v. City of Madison, 2003 WI 

24, ¶23, 260 Wis. 2d 71, 659 N.W.2d 31 (recognizing a similarity 

between the purposes of zoning and subdivision plat approval 

authority). The Storms court was also careful to delineate that 

the two powers stem from separate enabling legislation. "As 

long as the regulation is authorized by and within the purposes 

of ch. 236, the fact that it may also fall under the zoning 

power does not preclude a local government from enacting the 

regulation pursuant to the conditions and procedures of ch. 

236." Storms, 110 Wis. 2d at 70-71.
No. 2018AP547 

14

B

¶33 With this necessary background in hand, we examine 

next Anderson's specific arguments.

¶34 Anderson contends that the Town of Newbold Ordinance 

13.13 is a zoning ordinance in disguise that impermissibly 

regulates shorelands in a manner contrary to Wis. Stat. 

§ 59.692. He observes a dissonance in a statutory scheme that 

allows the Town to regulate shoreland property as an exercise of 

subdivision authority when it would be prohibited from doing so 

by means of its zoning authority.

¶35 The essential question posed in this case is whether 

Town of Newbold Ordinance 13.13 is a zoning ordinance or a 

subdivision ordinance. In other words, we must determine the 

source of the authority under which the ordinance was passed. 

¶36 This court has previously offered guidance and a 

framework of analysis for the determination of whether an 

ordinance springs from a governmental entity's zoning authority. 

See Zwiefelhofer v. Town of Cooks Valley, 2012 WI 7, 338 

Wis. 2d 488, 809 N.W.2d 362. In Zwiefelhofer, the court 

addressed whether the Town of Cooks Valley's nonmetallic mining 

ordinance is a zoning ordinance so as to require approval of the 

county board. Id., ¶2. 

¶37 In determining that the ordinance at issue was not a 

zoning ordinance, the court did not set a bright-line rule. 

Id., ¶8. Instead, it used a functional approach where it 

"catalogue[d] the characteristics of traditional zoning 

ordinances and the commonly accepted purposes of zoning 
No. 2018AP547 

15

ordinances. We then compare[d] the characteristics and purposes 

of the Ordinance to the characteristics and purposes of 

traditional zoning ordinances to determine whether the Ordinance 

should be classified as a zoning ordinance." Id. 

¶38 In conducting such an analysis, "[n]o single 

characteristic or consideration is dispositive of the question 

whether the Ordinance is a zoning ordinance." Id., ¶9. Nor is 

the conclusion a result of a simple tally of the similarities 

and differences. Indeed, a court may not "simply add up the 

number of similarities a challenged ordinance has to traditional 

zoning ordinances or the number of differences a challenged 

ordinance has from traditional zoning ordinances to determine 

whether a challenged ordinance is a zoning ordinance." Id. 

¶39 The analysis must be specific to the ordinance at 

issue in the particular case. "Some characteristics, under the 

circumstances of the case, may be more significant than others." 

Id.

¶40 Characteristics of an ordinance that inform the 

determination of whether the ordinance is a zoning ordinance 

include: (1) zoning ordinances typically divide a geographic 

area into multiple zones or districts, id., ¶36; (2) within the 

established districts or zones, certain uses are typically 

allowed as of right and certain uses are prohibited, id., ¶38; 

(3) zoning ordinances are traditionally aimed at directly 

controlling where a use takes place as opposed to how it takes 

place, id., ¶39; (4) traditionally classifying uses in general 

terms, zoning ordinances attempt to comprehensively address all 
No. 2018AP547 

16

possible uses in the geographic area, id., ¶40; (5) zoning 

ordinances traditionally make a fixed, forward-looking 

determination regarding what uses will be permitted as opposed 

to case-by-case determinations, id., ¶41; and (6) traditional 

zoning ordinances allow certain landowners whose land use was 

legal prior to the adoption of the zoning ordinance to maintain 

their land use despite its failure to conform to the ordinance. 

Id., ¶42.

¶41 This list is not intended to be exhaustive. Id., ¶43. 

As the Zwiefelhofer court recognized, "[m]any jurisdictions, 

including Wisconsin, have certainly recognized the possibility 

that an ordinance need not fit the traditional mold perfectly in 

order to constitute zoning." Id. However, the characteristics 

identified constitute the "heart of traditional zoning 

ordinances." Id.

¶42 The Zwiefelhofer court further detailed both broad and 

narrow purposes of zoning ordinances. Broadly, zoning 

ordinances have the purpose of promoting the welfare of the 

community, regulating the growth and development of a city in an 

orderly manner, conserving property values, and encouraging the 

most appropriate use of land. Id., ¶¶45-46. These purposes 

provide little assistance to the analysis, however, due to their 

breadth and the fact that they "could apply to a far-reaching 

range of planning and regulation undertaken by local 

governments." Id., ¶46. More specific purposes of zoning 

include confining certain classes of buildings and uses to 
No. 2018AP547 

17

certain localities and separating incompatible from compatible 

land uses. Id., ¶¶47-48.

¶43 To determine whether the Town of Newbold ordinance at 

issue here is a zoning ordinance, we apply the Zwiefelhofer

framework. Our analysis of the Zwiefelhofer factors is framed 

by the statutory mandate to liberally construe subdivision 

ordinances in the Town's favor. Specifically, Wis. Stat. 

§ 236.45(2)(b) provides that "[t]his section and any ordinance 

adopted pursuant thereto shall be liberally construed in favor 

of the municipality, town or county and shall not be deemed a 

limitation or repeal of any requirement or power granted or 

appearing in this chapter or elsewhere, relating to the 

subdivision of lands." This court has recognized that 

§ 236.45(2)(b) reserves to the Town "a broad area of discretion 

in implementing subdivision control" and constitutes a "grant of 

wide discretion which a municipality may exercise by ordinance 

or appropriate resolution." City of Mequon v. Lake Estates Co., 

52 Wis. 2d 765, 774, 190 N.W.2d 912 (1971).

¶44 Pursuant to the Zwiefelhofer framework, and through 

the lens of the required liberal construction, it is apparent 

that the Town's ordinance is not a zoning ordinance. Most 

importantly, Town of Newbold Ordinance 13.13 has nothing to do 

with the use of land. It says nothing of how Anderson can use 

his land, only that he cannot split into the portion he seeks. 

Indeed, the ordinance addresses minimum lot size, an area that 

this court has recognized can be addressed in both the zoning 

and subdivision contexts. See Storms, 110 Wis. 2d at 70.
No. 2018AP547 

18

¶45 Second, the Town of Newbold ordinance does not divide 

the land into any type of zone or district. Although it 

contains different lot size requirements for areas bordering on 

various lakes within the Town, this does not make it a zoning 

ordinance. The characteristics of a zoning ordinance recognized 

by the Zwiefelhofer court indicate that the hallmark of a zoning 

ordinance is some type of use restriction. See Zwiefelhofer, 

338 Wis. 2d 488, ¶¶38-42. No such restriction is present here.

¶46 Driving the determination in the present case are the 

first two Zwiefelhofer factors——division of a geographic area 

into zones or districts and the allowance or prohibition of 

certain uses within those zones. See id., ¶9 ("Some 

characteristics, under the circumstances of the case, may be 

more significant than others."). We need not exhaustively 

analyze the remaining Zwiefelhofer factors because they 

presuppose that the ordinance in question regulates land use in 

some way. As stated, Town of Newbold Ordinance 13.13 does not 

support such a presupposition.

¶47 Thus, pursuant to the Zwiefelhofer factors, Town of 

Newbold Ordinance 13.13 is not a zoning ordinance. It does not 

concern land use and it does not separate compatible and 

incompatible land uses, which is a key purpose of a zoning 

ordinance. See id., ¶48.

¶48 Because it is not a zoning ordinance, the restrictions 

on Town enactment of zoning ordinances set by Wis. Stat. 

§ 59.692 do not apply. Pursuant to § 59.692(1d), "[a]n 

ordinance enacted under this section may not regulate a matter 
No. 2018AP547 

19

more restrictively than the matter is regulated by a shoreland 

zoning standard." Yet, the Town of Newbold ordinance at issue 

was not "enacted under this section," as it is not a zoning 

ordinance.

¶49 Instead, Ordinance 13.13 is a subdivision ordinance 

enacted pursuant to Wis. Stat. § 236.45. As this court has 

previously determined, just because an area may be susceptible 

to regulation through zoning does not mean that regulation 

through subdivision is precluded. Storms, 110 Wis. 2d at 70-71. 

Indeed, lot size may be regulated by use of both zoning and 

subdivision authority and there is nothing in ch. 236 to 

indicate that shoreland areas are exempt from subdivision 

regulation. For the reasons stated, the regulation at issue 

here stems from subdivision authority and not zoning authority.

IV

¶50 We therefore conclude that the Town ordinance at issue 

is a permissible exercise of the Town's subdivision authority 

pursuant to Wis. Stat. § 236.45. The Town thus proceeded on a 

correct theory of law when it denied Anderson's request to 

subdivide his property in a way that would contravene the 

ordinance.

¶51 Accordingly, we affirm the decision of the court of 

appeals.

By the Court.—The decision of the court of appeals is 

affirmed.
No. 2018AP547.bh

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¶52 BRIAN HAGEDORN, J. (dissenting). This case 

considers the interplay of two different local government 

powers——the power to divide land and the power to zone——and even 

more importantly, how these powers may or may not be exercised 

by towns on shorelands. The majority's analysis turns on 

whether the ordinance the Town of Newbold relied on to deny 

Anderson's proposed land division is a zoning ordinance or a 

subdivision ordinance. After concluding it is a subdivision 

ordinance, the majority reasons that a town subdivision 

ordinance is not subject to the restriction that ordinances 

enacted under Wis. Stat. § 59.692 (2019-20)1——that is, county 

shoreland zoning ordinances——"may not regulate a matter more 

restrictively than the matter is regulated by a shoreland zoning 

standard." § 59.692(1d)(a). In other words, the Town is 

exercising subdivision authority, and § 59.692(1d)(a) does not 

prohibit the Town from regulating more restrictively. 

¶53 While I agree that the ordinance in question is a 

subdivision ordinance and that it is not subject to the 

restriction in Wis. Stat. § 59.692(1d)(a), I disagree with the 

ultimate conclusion because these are the right answers to the 

wrong questions. The relevant and dispositive statutory 

provision in this case is § 59.692(2)(b). It provides that the 

more restrictive provisions of any kind of town ordinance 

relating to shorelands, including a subdivision ordinance, only 

 

1 All subsequent references to the Wisconsin Statutes are to 

the 2019-20 version.
No. 2018AP547.bh

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have effect if the ordinance creating those more restrictive 

provisions predated the county shoreland zoning ordinance. 

§ 59.692(2)(b). Therefore, while towns have some zoning and 

subdivision authority over shorelands, their power to regulate 

more restrictively than provisions in a county shoreland zoning 

ordinance is preempted unless those more restrictive provisions 

predate the county shoreland zoning ordinance. The Town does 

not contend § 59.692(2)(b) operates to save the more restrictive 

provision at issue here, and therefore it acted contrary to law 

in relying its ordinance to deny Anderson's proposed land 

division. For these reasons, I respectfully dissent.

I. BACKGROUND

¶54 The relevant facts are straightforward. Michael 

Anderson owned a lakefront lot in the Town of Newbold with 

358.43 feet of riparian frontage. He proposed dividing his lot 

into two, with riparian frontage widths of 195 and 163.43 feet, 

respectively. The county shoreline zoning ordinance requires a 

minimum riparian frontage width of 100 feet.2 The proposed 

division therefore satisfied the requirements of the county 

shoreline zoning ordinance. The Town, meanwhile, adopted an 

ordinance that has a separate, more restrictive 225-foot minimum 

riparian frontage width on the particular lake in question. 

Town of Newbold Ordinance 13.13.02. On this basis, the Town 

denied Anderson's proposed division.

 

2 The county ordinance is not in the record, but the parties 

do not appear to disagree on this point.
No. 2018AP547.bh

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¶55 On appeal of this decision, we must decide whether the 

Town may enforce a minimum riparian frontage width more 

restrictive than the riparian frontage width regulations in the 

county shoreland zoning ordinance. It may not.

II. DISCUSSION

¶56 Anderson's claim is before us on a petition for 

certiorari review under Wis. Stat. § 68.13(1). On certiorari, 

this court's

review is limited to: (1) whether the board kept 

within its jurisdiction; (2) whether it proceeded on 

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. 

Snyder v. Waukesha Cnty. Zoning Bd. of Adjustment, 74 

Wis. 2d 468, 475, 247 N.W.2d 98 (1976). The specific challenge 

here is whether the Town proceeded on a correct theory of law. 

This rests on an interpretation of the statutory powers of 

towns, which we review de novo. See Wood v. City of Madison, 

2003 WI 24, ¶12, 260 Wis. 2d 71, 659 N.W.2d 31.

¶57 The legislature has given various powers and duties to 

local government. This litigation concerns two of them: the 

power to zone and the power to subdivide. These two powers are 

separate, but complementary and overlapping land planning 

devices. Town of Sun Prairie v. Storms, 110 Wis. 2d 58, 68-69, 

327 N.W.2d 642 (1983). The specific question in this case 

concerns the extent to which towns may exercise their 
No. 2018AP547.bh

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subdivision powers on shorelands in ways that are more 

restrictive than a county shoreland zoning ordinance enacted 

under Wis. Stat. § 59.692.

A. General Statutory Background

¶58 The power to divide undeveloped land or larger parcels 

of land into smaller parcels is of longstanding origins, even 

predating Wisconsin statehood. See Stat. 1839, ch. 41, p. 159-

61. The legislature granted local governments this power in 

Wis. Stat. § 236.45, extending it to "any municipality, town or 

county." § 236.45(2)(ac). Provided those governmental entities 

have a planning agency, they "may enact ordinances governing the 

subdivision or other division of land." Id. Generally 

speaking, the power to subdivide is broad and construed 

liberally. § 236.45(2)(b) ("This section and any ordinance 

adopted pursuant thereto shall be liberally construed in favor 

of the municipality, town or county and shall not be deemed a 

limitation or repeal of any requirement or power granted or 

appearing in this chapter or elsewhere, relating to the 

subdivision of lands.").

¶59 State law, however, treats navigable waters and their 

shorelands with special care. Wisconsin Stat. § 281.31 of the 

Wisconsin statutes is entitled, "Navigable waters protection 

law."3 It explains that the regulation of shorelands is in 

 

3 Chapter 281 of the Wisconsin statutes governs water and 

sewage generally.
No. 2018AP547.bh

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"fulfillment of the state's role as trustee of its navigable 

waters." § 281.31(1). In particular, "it is declared to be in 

the public interest" to "authorize municipal shoreland zoning 

regulations," among other things. Id. The purposes of these 

regulations include "control [of] building sites, placement of 

structure and land uses and reserve shore cover and natural 

beauty." Id.

¶60 Wisconsin Stat. § 281.31 points to a statewide scheme 

for shoreland regulation. It directs the Department of Natural 

Resources (DNR) to create "a comprehensive plan" for "municipal 

ordinances regulating navigable waters and their shorelands," 

and to "prepare and provide to municipalities general 

recommended standards and criteria for . . . navigable water 

protection regulations." Wis. Stat. § 281.01(3); § 281.31(5), 

(6). Subsection (7) mandates intergovernmental consultation and 

cooperation with the goal of "voluntary uniformity of 

regulations, so far as practicable." § 281.31(7). In other 

words, the hope is that the state can work with municipalities 

to achieve as much uniformity in shoreland regulations statewide 

as possible.

¶61 This section also tells us what it means by the 

"regulations" it authorizes and discusses. 

"Regulation" means ordinances enacted under [Wis. 

Stat. §§] 59.692, 61.351, 61.353, 62.23(7), 62.231, 

and 62.233 and refers to subdivision and zoning 

regulations which include control of uses of lands 

under, abutting, or lying close to navigable waters 

for the purposes specified in sub. (1), pursuant to 
No. 2018AP547.bh

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any of the zoning and subdivision control powers

delegated by law to cities, villages, and counties. 

Wis. Stat. § 281.31(2)(e) (emphasis added). Each of the 

enumerated statutes in this provision outline the power to zone

by ordinance in shorelands. Wisconsin Stat. §§ 61.351 and 

61.353 discuss village shoreland zoning power, while Wis. Stat. 

§§ 62.23(7), 62.231, and 62.233 govern city zoning power 

generally and over shorelands. And of course, Wis. Stat. 

§ 59.692 involves county shoreland zoning ordinances based on 

statewide shoreland zoning standards. 

¶62 Connecting these dots, regulations under Wis. Stat. 

§ 281.31 refer to ordinances adopted under zoning provisions 

"and refers to subdivision and zoning regulations which include 

control of uses of lands under, abutting, or lying close to 

navigable waters." § 281.31(2)(e) (emphasis added). The 

reference to "subdivision" regulations here can only refer to 

Wis. Stat. § 236.45 because that is where that power is located. 

Thus, county and municipal regulations governing shorelands 

include both subdivision and zoning regulations.

¶63 Lest the relevance of this be missed, Wis. Stat. 

§ 281.31 is not an otherwise unrelated section that occasionally 

references Wis. Stat. § 59.692. These two sections are 

parallel, overlapping, and interdependent; one cannot be read 
No. 2018AP547.bh

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without the other.4 We know this because the text says so in 

§ 281.13(8): "This section and [§§] 59.692 [and the village and 

city shoreland zoning provisions] shall be construed together to 

accomplish the purposes and objective of this section." 

Multiple provisions reinforce this with cross referenced 

definitions, exclusions, and requirements.5 To state it plainly, 

we are instructed by the statutes to construe the county 

shoreland zoning powers in Wis. Stat. § 59.692 consistent with 

and together with Wis. Stat. § 281.31 in order to accomplish the 

statewide purposes of protecting navigable waters and their 

shorelands. 

B. County Shoreland Zoning Ordinances & Town Power

¶64 This brings us to the main question before us: the 

power of towns to regulate in ways more restrictive than county 

shoreland zoning ordinances.

¶65 Wisconsin towns have some zoning authority. See Wis. 

Stat. § 60.61. However, they have limited zoning power over 

shorelands on navigable waters. Section 60.61(3r) provides that

 

4 For example, Wis. Stat. § 281.31(2)(f) defines shorelands 

by reference in part to Wis. Stat. § 59.692(1)(b). Section 

281.31(2m) also indicates some areas where a required county 

shoreland zoning ordinance under § 59.692 does not apply. These 

are two of many examples which lend contextual and structural 

support to reading these provisions together. See State v. 

Powers, 2004 WI App 156, ¶12, 276 Wis. 2d 107, 687 N.W.2d 50 

(discussing cross-references as contextual and structural 

textual clues).

5 The original versions of these statutes were enacted at 

the same time. §§ 22, 42, ch. 614, Laws of 1965.
No. 2018AP547.bh

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towns "may enact a zoning ordinance . . . that applies in 

shorelands," but "[a] town zoning ordinance . . . may not impose 

restrictions or requirements in shorelands with respect to 

matters regulated by a county shoreland zoning 

ordinance . . . affecting the same shorelands." § 60.61(3r)(b), 

(c); see also Wis. Stat. § 60.62(5). The legislature gave 

primacy to county shoreland zoning ordinances in 1966. § 22, 

ch. 614, Laws of 1965. Therefore, a town's zoning power over 

shorelands is limited; it may not be more restrictive than a 

county shoreland zoning ordinance adopted pursuant to Wis. Stat. 

§ 59.692.

¶66 Chapter 59 of the Wisconsin Statutes is dedicated to 

counties. Wisconsin Stat. § 59.692 governs, as its title says, 

"zoning of shorelands on navigable waters."6 Subsection (1c) 

gives the basic requirement and its rationale. Each county must 

"zone by ordinance all shorelands in its unincorporated area." 

§ 59.692(1c). The reason for this requirement is "[t]o effect 

the purposes of [Wis. Stat. §] 281.31." Id. Consequently, 

ordinances must "relate to the purposes in [§] 281.31(1)." Id.

¶67 While the municipal zoning powers described in Wis. 

Stat. § 281.31 aim for voluntary uniformity, Wis. Stat. § 59.692 

mandates a degree of uniformity for shorelands regulated by a 

county shoreland zoning ordinance——including shorelands in 

towns. Paragraph (1d)(a) provides that a county shoreland 

 

6 This language is another explicit tie to Wis. Stat. 

§ 281.31, whose title says it is about protecting "navigable 

waters." Compare Wis. Stat. § 59.692 with § 281.31.
No. 2018AP547.bh

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zoning ordinance "may not regulate a matter more restrictively 

than the matter is regulated by a shoreland zoning standard." 

§ 59.692(1d)(a). And a "shoreland zoning standard" is defined 

as "a standard for ordinances enacted under this section that is 

promulgated as a rule by the department." § 59.692(1)(c); see 

also § 59.692(1)(a) (defining "department" as DNR). Thus, DNR 

will by rule specify certain matters——shoreland zoning 

standards——and county shoreland zoning ordinances may not be 

more restrictive than the specific standards adopted by rule. 

¶68 However, paragraph (1d)(b) allows counties to adopt 

shoreland zoning ordinances that regulate "a matter that is not 

regulated by a shoreland zoning standard." Wis. Stat. 

§ 59.692(1d)(b). Therefore, if the matter is not covered by one 

of the statewide shoreland zoning standards adopted by rule, a 

county retains power through a county shoreland zoning ordinance 

to regulate it.

¶69 What, then, of the power of towns? The statute 

tackles this question head-on in Wis. Stat. § 59.692(2)(b). In 

my view, this provision is the dispositive statutory section 

governing this case.

¶70 Wisconsin Stat. § 59.692(2)(b) provides: "If an 

existing town ordinance relating to shorelands is more 

restrictive than an ordinance later enacted under this section 

affecting the same shorelands, it continues as a town ordinance 

in all respects to the extent of the greater restrictions, but 

not otherwise." This provision means several things. First, a 

"town ordinance relating to shorelands" that predates a later-
No. 2018AP547.bh

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enacted county shoreland zoning ordinance is, with one 

exception, no longer in effect. A county shoreland zoning 

ordinance preempts the preexisting town ordinance regulating 

shorelands. Second, the only exception to this rule is that the 

more restrictive provisions of a preexisting town ordinance 

remain in effect. Third, by necessary implication, more 

restrictive provisions in a later-enacted town ordinance 

"relating to shorelands" may not take effect. Only the more 

restrictive provisions of preexisting town ordinances are 

grandfathered in.

¶71 These conclusions are dispositive in this case because 

this section does not limit itself to town zoning ordinances; it 

applies to any "town ordinance relating to shorelands." The 

plain language includes ordinances of any type, including 

subdivision ordinances. If there be any doubt on this point, 

paragraph (2)(bg) settles the matter. It provides: "A town may 

enact a zoning ordinance affecting the same shorelands as an 

ordinance enacted under this section, subject to the 

restrictions in ss. 60.61(3r) and 60.62(5)." Wis. Stat. 

§ 59.692(2)(bg).7 And again, Wis. Stat. §§ 60.61(3r) and 

60.62(5) authorize towns to enact zoning ordinances relating to 

shorelands, except that they may not regulate more restrictively 

on matters regulated by a county shoreland zoning ordinance. 

This means that paragraph (2)(b) cannot be referring to town 

zoning ordinances alone. The language in (2)(bg) shows that the 

 

7 This paragraph was created by 2019 Wis. Act 145. 
No. 2018AP547.bh

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legislature knows how to specify zoning ordinances if it wants 

to. It plainly did not limit the restriction in (2)(b) to town 

zoning ordinances.8

¶72 This reading is further reinforced by the 

administrative code. As noted above, Wis. Stat. § 281.31 and 

Wis. Stat. § 59.692 do not stand alone. They explicitly 

reference standards to be adopted by rule. The relevant rule 

provisions are found in Wis. Admin. Code ch. NR 115 (Jan. 2017).9

¶73 Wisconsin Admin. Code § NR 115.01 states the purpose 

and statutory grounding for this provision, and provides in 

relevant part:

Section 281.31, Stats., provides that shoreland 

subdivision and zoning regulations shall: "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 and land uses and 

reserve shore cover and natural beauty." Section 

59.692, Stats., requires counties to effect the 

purposes of [§] 281.31, Stats., and to promote the 

public health, safety and general welfare by adopting 

zoning regulations for the protection of all 

shorelands in unincorporated areas that meet shoreland 

zoning standards promulgated by the department. The 

purpose of this chapter is to establish minimum 

shoreland zoning standards for ordinances enacted 

under [§] 59.692, Stats., for the purposes specified 

in [§] 281.31 (1), Stats., and to limit the direct and 

 

8 State v. Quintana, 2008 WI 33, ¶32, 308 Wis. 2d 615, 748 

N.W.2d 447 ("When the legislature does not use words in a 

restricted manner, the general terms should be interpreted 

broadly to give effect to the legislature's intent.").

9 All subsequent references to Wisconsin Administrative Code 

ch. NR 115 are to the January 2017 register date unless 

otherwise indicated.
No. 2018AP547.bh

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cumulative impacts of shoreland development on water 

quality; near−shore aquatic, wetland and upland 

wildlife habitat; and natural scenic beauty. 

§ NR 115.01 (emphasis added). The broader import of these 

provisions is that they were written to mean something, to have 

statewide effect. And the very first sentence makes clear that 

Wis. Stat. § 281.31, including its specific inclusion of 

ordinances adopted under Wis. Stat. § 59.692, is directed at 

limitations on both "shoreland subdivision and zoning 

regulations." § NR 115.01

¶74 The specific shoreland zoning standards referenced in 

Wis. Stat. § 59.692 are delineated in Wis. Admin. Code § NR 

115.05. They cover minimum lot sizes; building setbacks; 

vegetation; filling, grading, lagooning, dredging, ditching, and 

excavating; impervious surfaces; height; and nonconforming 

structures and uses. § NR 115.05(1). But the language of this 

section contains a broad and preemptive flair: "The shoreland 

zoning ordinance adopted by each county shall control use of 

shorelands." Id. (emphasis added).

¶75 Wisconsin Admin. Code § NR 115.06 places additional 

review duties on DNR to ensure any county shoreland zoning or 

subdivision ordinance complies with Wis. Stat. § 59.692, 

including by issuing a certificate of compliance and providing 

advice and assistance to counties. § NR 115.06(1), (2). There 

is simply no reason to think the legislature meant to require 

county subdivision ordinances to comply with and go no further 

than the county shoreland zoning ordinance, only to have them 

superseded by a town subdivision ordinance. 
No. 2018AP547.bh

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¶76 The statutes and administrative rules point in the 

same direction: a county shoreland zoning ordinance controls 

where it speaks, and other county or town ordinances may not be 

more restrictive——excepting a preexisting town ordinance's more 

restrictive provisions.

¶77 Like the court of appeals, the majority relies on the 

language in Wis. Stat. § 59.692(1d) that county shoreland zoning 

ordinances "may not regulate a matter more restrictively than 

the matter is regulated by a shoreland zoning standard." 

§ 59.692(1d). Since a town subdivision ordinance is not a 

county shoreland zoning ordinance, the majority reasons that 

this section does not limit town subdivision authority. I agree 

that the Town's ordinance is a subdivision ordinance. But 

§ 59.692(2)(b) does not concern itself with this distinction. 

That provision limits the authority of a town to override the

provisions in a county shoreland zoning ordinance regardless of 

whether the Town utilizes its zoning or subdivision authority. 

That is the on-point statute that decides this case.

¶78 The practical effect of the majority's approach is to 

read the shoreland zoning restrictions out of the statutes, at 

least as applied to towns. If towns can do via subdivision 

authority exactly the same things that the state says they 

cannot do, the state's legislative policy choice to limit the 

power of towns and require some baseline uniformity in county 

shoreland zoning ordinances over specific matters becomes a dead 

letter. That is an absurd result; this is not the best way to 

read the governing law. Section 59.692(2)(b), along with the 
No. 2018AP547.bh

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associated provisions in Wis. Stat. §§ 281.31, 60.61 and 60.62, 

and in Wis. Admin. Code § NR 115 demonstrate that reading is not 

correct.

C. Application

¶79 In this case, the Town of Newbold's subdivision 

ordinance adopts a more restrictive riparian frontage width (225 

feet) than that adopted in the county shoreland zoning ordinance 

(100 feet). Under Wis. Stat. § 59.692(2)(b), this more 

restrictive provision cannot have effect unless it was adopted 

prior to the county shoreland zoning ordinance. Counsel for the 

Town was asked at oral argument whether § 59.692(2)(b) applied, 

and counsel said it did not. We have no other evidence in the 

record that suggests the Town's more restrictive provision was 

adopted prior to the county shoreland zoning ordinance. 

Therefore, the Town's more restrictive riparian frontage width 

requirement is preempted and without effect; the 100-foot 

riparian frontage width in the county shoreland zoning ordinance 

controls. As a consequence, the Town proceeded on an incorrect 

theory of law when it denied Anderson's proposed land division 

based on its preempted ordinance provision. 

¶80 I would reverse the court of appeals on this basis and 

respectfully dissent.

¶81 I am authorized to state that Justice REBECCA GRASSL 

BRADLEY joins this dissent.
No. 2018AP547.bh

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