WI Supreme Court Hears Pier Issue

The Supreme Court also took testimony in a case involving the Department of Natural Resources and the agency’s order for a homeowners’ association on Green Lake to shrink a pier.

The pier was constructed adjacent to 77-feet of shoreline property in 1966, originally with six slips, and expanded until there were 22 slips in 1990, according to a case synopsis. Under DNR guidelines, a shoreline of 77 feet would be allowed just two or three boat slips, but the DNR did not seek removal until a complaint was filed.

An administrative law judge ordered the number of slips reduced to 11. A circuit court review ruled that decision “arbitrary and not based on sufficient evidence” and ordered that 17 slips remain, which was the number in 1993 when a local ordinance barring the proliferation of multi-slip piers was passed.

“This pier was constructed lawfully and if the law changed after construction it’s no different than if I build a house on a lot … and subsequently an ordinance is adopted that my house does not comply with,” argued Madison attorney John Kassner, who was representing the Wisconsin Builders Association and Wisconsin Realtors Association. The organizations filed friend of the court briefs on behalf of the defendant, Jim Hilton.

Kassner argued that whether or not the pier could be built today is irrelevant, that the focus needs to be whether it was constructed lawfully in the first place.

Assistant Attorney General Joanne Kloppenburg, representing the DNR, argued that the court must balance property rights with the need to maintain the lake as a natural resource that is available to the public. The Legislature, she said, has given the DNR the authority to make encroachments on property rights to defend the public interest.

About halfway through the hearing, Chief Justice Shirley Abrahamson said she was beginning to experience “buyer’s remorse” for agreeing to hear the case.

“My concern is I’m not sure what important principle of law we’re going to be making in this case, which is what we’re supposed to do when we take these cases,” she said.

Hoeper said the court could advance the law by resolving whether and how the DNR may proceed in abatement cases.