|
COURT OF APPEALS DECISION DATED AND RELEASED JULY 5, 1995 |
NOTICE |
|
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 94-3177-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
COUNTY OF DOOR,
Plaintiff-Appellant,
v.
EARL F. LINDSAY and
ELEANOR C. LINDSAY,
Defendants-Respondents.
APPEAL from a judgment
of the circuit court for Door County:
DENNIS J. MLEZIVA, Judge. Reversed
and cause remanded with directions.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER CURIAM. Door County appeals a
judgment dismissing a forfeiture action commenced against Earl F. Lindsay and Eleanor
C. Lindsay as a result of a zoning violation alleged to have occurred when the
Lindsays stored a boat in a building authorized as an accessory building
associated with a forestry operation being conducted on land owned by the
Lindsays.[1] Door County contends that the trial court
erred by finding that the storage of a boat was not prohibited under the
ordinance that permitted accessory buildings to be built when associated with
the conduct of the permitted use in the zoning district. Because this court concludes that boat
storage is not a permitted use of an accessory building on property used for
forestry purposes, the judgment is reversed and the matter remanded to the
trial court for further proceedings.
The facts giving rise to
this case are stipulated. The Lindsays
own a parcel of land zoned as prime agriculture land (A-4) upon which they
operate a tree farm. The Lindsays
applied for a permit to construct an accessory building, which the County
granted. At that time the zoning
administrator cautioned the Lindsays that the ordinance provided that the
accessory building could be used only for purposes related to their tree farm
operation and that boat storage would not be permitted. The Lindsays constructed a thirty- by
forty-eight-foot building in which they stored their eight- by twenty-four-foot
power boat. Door County issued a
citation to the Lindsays for violation of the zoning code, which was ultimately
dismissed by the trial court based upon the trial court's conclusion that the
storage of a boat was not prohibited by the zoning ordinances in question.
The interpretation of a
zoning ordinance presents an issue of law which this court resolves without
deference to the trial court. Hambleton
v. Friedmann, 117 Wis.2d 460, 461-62, 344 N.W.2d 212, 213 (Ct. App.
1984).
The zoning ordinance in
question, § III, CCCC., (1)(c) of the Door County Zoning Ordinance, page III-11
provides:
The primary purpose and intent of this
district is to maintain, preserve, and enhance agricultural lands historically
demonstrating high agricultural productivity. ... As a matter of policy
it is hereby determined that the highest and best use of these lands is
agricultural.
Permitted uses include:
a. Apiculture, dairying,
floriculture, forage crop production, forestry, gardening, general farming,
greenhouses, grain production, grazing, horticulture, plant nurseries,
orchards, paddocks, pasturage, stables for livestock, truck farming,
viticulture, livestock farming (except commercial feed lots), sod farming. Farm buildings housing animals, barn yards,
and feed lots shall be at least 100 feet from any navigable water and shall be
located so that manure will not drain into any navigable water. (Amended:
27 March 1990)
....
c.
Customary accessory buildings associated with the conduct of a permitted use in
this zoning district. Customary
accessory buildings shall include those involving the storage of vehicles,
equipment, housing of livestock, and noncommercial incidental repairs. (Amended:
27 March 1990)
The
trial court read the zoning ordinance to exclude uses only as they are
enumerated. Such a reading misconstrues
the ordinance in question. The
ordinance authorizes specific uses on specifically zoned parcels. Only those uses enumerated are
permitted. See County of
Columbia v. Bylewski, 94 Wis.2d 153, 169, 288 N.W.2d 129, 137
(1980). Thus, all uses not enumerated
under the terms of the ordinance are not permitted. Id.
An accessory building is
permitted under the terms of the ordinance, which is further conditioned by the
requirement that the building be associated with the conduct of the permitted
use in the zoning district. In this
case, the permitted use is a tree farm and, accordingly, the accessory building
must be associated with the operation of the tree farm. Because the storage of a power boat is
totally unrelated to this operation, it is not a permitted use within the terms
of this ordinance.
Although the parties do
not raise the issue, the question of ancillary uses of accessory buildings must
be addressed. While we conclude that
using the accessory building as a boathouse is prohibited by the ordinance, we
do not mean to indicate that any ancillary storage of personal property is
prohibited. When storage of personal
property unrelated to the use of the property is minor and incidental use, the
scope of the ordinance would not be so broad as to make such use unlawful. The degree of ancillary use will have to be
determined on a case-by-case basis, and, because it is not an issue here, we do
not address the extent to which such ancillary use is permitted. Here, however, the accessory building was
being used as storage for a boat of significant size. A significant portion of the building was dedicated to that
purpose and the use for boat storage was so important that the building was
constructed around the boat. Such use
is not minor or incidental to the building in issue and is accordingly
prohibited by the ordinance.
We therefore conclude
that the trial court erred by finding that the storage of a power boat was a
permitted use under the zoning ordinance in question. Because the storage of this boat is not a permitted activity as
enumerated within the statute and such storage cannot be accurately described
as a minor or merely incidental use, the trial court erred by dismissing Door
County's citation.
By the Court.—Judgment
reversed and cause remanded with directions.
This opinions will not
be published. Rule 809.23(1)(b)5, Stats.