Watts, Dawn

English

University of Denver

Water Law Review Volume 4 Issue 1 Article 78 9-1-2000 Grafft v. Wis. Dep't of Natural Res., 618 N.W.2d 897 (Wis. Ct. App. 2000) Dawn Watts Follow this and additional works at: https://digitalcommons.du.edu/wlr Custom Citation Dawn Watts, Court Report, Grafft v. Wis. Dep't of Natural Res., 618 N.W.2d 897 (Wis. Ct. App. 2000), 4 U. Denv. Water L. Rev. 264 (2000). This Court Report is brought to you for free and open access by the University of Denver Sturm College of Law at Digital Commons @ DU. It has been accepted for inclusion in Water Law Review by an authorized editor of Digital Commons @ DU. For more information, please contact jennifer.cox@du.edu,dig-commons@du.edu. WATER LA W REVIEWof sewer or water systems in the Town. Additionally, due to the natureof the inceptor, no financial or impact provision on the Townresidents existed. The court concluded the sewer interceptor,constructed by the City, received sewage from main-line sewers but notfrom laterals or collectors. Also, the interceptor did not permit aproperty owner to connect with or use the sewer because it was not apart of a sewer system to which an abutting property owner couldconnect. Thus, the court held the City was not required to seek townapproval prior to either the condemnation for or the construction ofthe contested interceptor.Most condemnations required that the condemning municipalitymake a relocation order pursuant to Wisconsin law. Danielson and theTown contended the relocation order was the required first step in thecondemnation process. The City disagreed. The court looked to theplain language of the relevant Wisconsin statutory law and determinedit was facially unambiguous. The court reasoned that such relevantWisconsin statutory law permitted several steps to take place beforeinitiating a relocation order. Therefore, the court held that theWisconsin law clearly and unambiguously permitted a condemningauthority to take some steps before making a relocation order.In sum, the court of appeals affirmed the judgment of the circuitcourt and held both that Wisconsin law was not applicable to theinterceptor and that the Wisconsin law did not require the City tomake a relocation order as the first step in the condemnation process.Kimberley E. MontanaroGrafft v. Wis. Dep't of Natural Res., 618 N.W.2d 897 (Wis. Ct. App.2000) (holding the Wisconsin Department of Natural Resources didnot exceed its regulatory authority by promulgating the undevelopedshoreline standard).Grafft applied to the Department of Natural Resources ("DNR")for a permit to construct a permanent boat shelter. DNR denied thepermit pursuant to Wisconsin statutory law, finding the proposedproject contrary to the public interest. Specifically, DNR concludedthe proposed boat shelter did not conform with a Wisconsinadministrative regulation code, which provided that permits couldonly be granted for locations adjacent to developed shorelines. Thisregulation defined developed shorelines as having at least five visuallyintrusive structures when viewed from a location on the water. DNRfound only four visually intrusive structures and concluded theproposed project was located adjacent to an undeveloped shoreline,thus precluding it from granting Grafft's permit application.Grafft petitioned the circuit court to review the denial of hispermit application. The circuit court concluded that the WisconsinVolume 4COURT REPORTSadministrative regulation was invalid because the DNR exceeded itsrulemaking authority. DNR appealed.Grafft asserted that the enabling statute did not expressly authorizeDNR to grant or deny permanent boat shelter permits based on the"undeveloped shoreline" standard. Rather, Grafft argued the statutorylanguage authorized DNR to promulgate rules necessary to effectuateits discretionary authority to either grant or deny a riparian owner thepermit to construct a permanent boat shelter adjacent to his or herproperty.The court agreed and looked to statutory construction rules inorder to determine if the legislature implicitly authorized DNR topromulgate the "undeveloped shoreline" standard. The court noted ithad recognized in previous case law that Wisconsin statutory lawprohibited structures detrimental to the public interest. Within suchcase law, the court further recognized that the statute authorized theDNR to weigh relevant policy factors when granting permits.Accordingly, the court determined that the enabling statute implicitlyauthorized DNR to promulgate its regulation regarding theundeveloped shoreline standard.In addition, Grafft contended the regulation contradicted theenabling statute's legislative intent and, thus, DNR had exceeded itsauthority in promulgating the regulation. The court recognized thatthe initial enabling statute allowed DNR to promulgate rules toestablish minimum standards governing boat shelters' architecturaland aesthetic features. These standards assured the structuralsoundness and durability of a boat shelter and minimized a boatshelter's visual intrusiveness with respect to the surrounding body ofwater and shoreline. The court acknowledged that the amendedenabling statute removed any language regarding the aesthetics ofboat shelters. The amended statute provided that the rules couldneither govern the aesthetic features nor color of boat shelters andwere designed to assure boat shelters' structural soundness anddurability. Grafft argued DNR's "undeveloped shoreline" standarddetermined the visual intrusiveness of principal structures locatedadjacent to the proposed boat shelter site. Accordingly, the courtconcluded DNR exceeded its rulemaking authority when it deniedpermits based upon such standard.The court found DNR's regulation did not conflict with theamended enabling statute. The statute's legislative intent was toremove regulations based on the aesthetics and color of proposed boatshelters. The court reasoned that the "undeveloped shoreline"standard neither involved the aesthetics, color, nor visual intrusivenessof a proposed boat shelter, but rather, limited the number of boatshelters based on the number of visually intrusive principal structuressurrounding the proposed boat shelter site.Dawn WattsIssue I

Grafft v. Wis. Dep\u27t of Natural Res., 618 N.W.2d 897 (Wis. Ct. App. 2000)

https://digitalcommons.du.edu/cgi/viewcontent.cgi?article=2732&amp;context=wlr

Grafft v. Wis. Dep\u27t of Natural Res., 618 N.W.2d 897 (Wis. Ct. App. 2000)

Abstract

Similar works

Full text

Available Versions

University of Denver