Redetermination of high water mark does not invalidate previous permit

by Melanie Thwing

Oneida County v. Collins Outdoor Advertising
(Wisconsin Court of Appeals, April 26, 2001)

Collins Outdoor Advertising began looking into constructing a billboard in the Town of Sugar Camp, Wisconsin in 2003. The Town of Sugar Camp is generally un-zoned, but Oneida County has zoning authority over land within 1,000 feet of the ordinary high water marks of navigable lakes. In this particular area there are two lakes, Jennie Webber Lake and an unnamed lake 34-16.

Keith Carson, a Collins’ employee, obtained a lease from the landowners of the desired location. A signature was given from the Town’s foreman stating the land was un-zoned and the Department of Transportation (DOT) approved a permit application. The DOT also instructed Carson to check with the Department of Natural Resources (DNR) because the land boarded a swamp. The DNR approved the site but then instructed Carson to check with the County to make sure no zoning authority existed.

After meeting with Theresa Kennedy, a permit specialist for the County, and looking at several zoning maps and aerial photographs it was determined the location would not pose a problem with Jennie Webber Lake. It was Carson’s responsibility however to determine the distance from 34-16 which he did with a handheld GPS. This also met the 1,000 foot requirement.

In July 2003 the billboard was erected. Then, in October the County sent a letter indicating there had been complaints that the sign was illegally constructed. This letter referenced a “large wetland complex” attached to Jennie Webber Lake and stated that, when taking these wetlands into account, the sign was only 10 feet from the high water mark.  Collins responded to this complaint in January of 2004 with a letter reciting the above facts.  The County did not respond again until September 2006.  The County stated it had re-determined the high water mark and, as a result, had determined that the sign was 600 feet away from Jennie Webber Lake.  In August 2008 the County filed for injunctive relief and damages in the circuit court. Summary judgment was granted in favor of the County. Collins was ordered to remove the sign and pay $25,000 in forfeitures.

Collins appealed to the Wisconsin Court of Appeals, arguing that when the sign was originally constructed the County’s zoning map identified the shorelines and any redeterminations cannot render the sign unlawful.

Under Wis. Stat. § 59.692(1m),(6) the state is required to adopt and enforce shoreland zoning ordinances. Each county is required to include “[m]apped zoning districts and the recording, on an official copy of such map, of all district boundary amendments.” Wis. Admin. Code § NR 115.05(4)(i). Also the DNR must be given notice for any interpretation of a map or amendment.  The County argued that it was unreasonable for Carson to rely on the zoning map rather than on-site measurements; however the Court rejected this argument.  The Court of Appeals observed that if Carson had determined the measurements of high water mark himself they would have no legal force. The ordinance does not give landowners authority to determine high water marks. That burden is placed on the County and DNR to set ordinary high water mark.  This determination can be very subjective. 

The County’s argument that “[t]he standards for such determinations are clearly set forth in the ordinance,” was found to be unpersuasive.  The County’s argument would require landowners to roam large portions of private property to identify the correct high water marks. Carson followed the ordinance by contacting the zoning department who ultimately provided the map for determination.

Finally there is no conflict between the zoning map and the zoning ordinance. Ordinary high water marks are usually identified on official maps or on aerial photographs. If the public were not allowed to put any reliance on the maps, the Court questions why they are required or why the DNR must be contacted when a question arises about the maps.

It is undisputed that at the time the sign was built it was over 1,000 feet from the shoreline as then determined, and the County does not dispute that the sign would be legal as an existing nonconforming structure using that determination. The decision of the circuit court was reversed and remanded.

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