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2001  WI  App  223
COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION
Case No.:                                         99-2306
†Petition for review filed
Complete Title
of Case:
ABKA LIMITED PARTNERSHIP, AN ILLINOIS LIMITED
PARTNERSHIP,
PETITIONER-APPELLANT,†
THE ABBEY HARBOR CONDOMINIUM ASSOCIATION, LTD.,
A WISCONSIN NONPROFIT CORPORATION,
PETITIONER-CO-APPELLANT,†
V.
WISCONSIN DEPARTMENT OF NATURAL RESOURCES,
GENEVA LAKE CONSERVANCY, INC., AND ONEIDA
COUNTY,
RESPONDENTS-RESPONDENTS.
WISCONSIN REALTORS ASSOCIATION, INC.,
PETITIONER-APPELLANT,†
V.
WISCONSIN DEPARTMENT OF NATURAL RESOURCES,
RESPONDENT-RESPONDENT.†
ABKA LIMITED PARTNERSHIP, AN ILLINOIS LIMITED
PARTNERSHIP,
PETITIONER-APPELLANT,
THE ABBEY HARBOR CONDOMINIUM ASSOCIATION, LTD.,




A WISCONSIN NONPROFIT CORPORATION,
PETITIONER-CO-APPELLANT,
V.
WISCONSIN DEPARTMENT OF NATURAL RESOURCES,
RESPONDENT-RESPONDENT.
WISCONSIN ASSOCIATION OF LAKES, INC.,
PETITIONER-APPELLANT,
V.
WISCONSIN DEPARTMENT OF NATURAL RESOURCES,
RESPONDENT-RESPONDENT.
WISCONSIN REALTORS ASSOCIATION, INC.,
PETITIONER-APPELLANT,
V.
WISCONSIN DEPARTMENT OF NATURAL RESOURCES,
RESPONDENT-RESPONDENT.
Opinion Filed:                               August 22, 2001
Oral Argument:                               May 1, 2001
JUDGES:                                      Nettesheim, P.J., Brown and Snyder, JJ.
Concurred:
Dissented:                                   Brown, J.




Appellant
ATTORNEYS:                                                                On behalf of the petitioner-appellant ABKA Limited Partnership and the
petitioner-co-appellant The Abbey Harbor Condominium Association,
Ltd., there were joint briefs by Anthony S. Earl, Waltraud A. Arts and
Brian W. Blanchard of Quarles & Brady, LLP of Madison; Alan
Marcuvitz of Weiss, Berzowski, Brady & Donahue, LLP of Milwaukee;
Lisle W. Blackbourn of  Godfrey, Neshek, Worth, Leibsle & Conover, S.C.
of Elkhorn; and Thomas L. Shriner, Jr. of Foley & Lardner of
Milwaukee.  There were oral arguments by Thomas L. Shriner, Jr.
On behalf of the petitioner-appellant Wisconsin Realtors Association,
Inc., there were briefs by Winston A. Ostrow and Donald L. Romundson
of Godfrey & Kahn, S.C. of Green Bay.  There were oral arguments by
Donald L. Romundson.
On behalf of the petitioner-appellant Wisconsin Association of Lakes,
Inc., there were briefs by William P. O’Connor and Mary Beth Peranteau
of Wheeler, Van Sickle & Anderson, S.C. of Madison.  There were oral
arguments by William P. O’Connor.
Respondent
ATTORNEYS:                                                                On behalf of the respondent-respondent Wisconsin Department of
Natural Resources, there was a brief by John S. Greene, assistant
attorney general, and James E. Doyle, attorney general.  There were
oral arguments by John S. Greene.
On behalf of the respondent-respondent Geneva Lake Conservancy,
Inc., there was a brief and oral arguments by Peter B. King of Peter B.
King, Attorney at Law, S.C. of Fontana.
On behalf of the respondent-respondent Oneida County, there were
briefs and oral arguments by Lawrence R. Heath, corporation counsel.




2001  WI  App  223
COURT OF APPEALS
NOTICE
DECISION
DATED AND FILED
This  opinion  is  subject  to  further  editing.  If
published, the official version will appear in the
bound volume of the Official Reports.
August 22, 2001
                                                                                  A  party  may  file  with  the  Supreme  Court  a
                                                                                  petition  to  review  an  adverse  decision  by  the
                                                        Cornelia G. Clark
                                                                                  Court of Appeals.   See WIS. STAT. § 808.10 and
                                                        Clerk, Court of Appeals
                                                                                  RULE 809.62.
                                                        of Wisconsin
No.                                                     99-2306
                                                        STATE OF WISCONSIN        IN COURT OF APPEALS
ABKA LIMITED PARTNERSHIP, AN ILLINOIS LIMITED
PARTNERSHIP,
PETITIONER-APPELLANT,
THE ABBEY HARBOR CONDOMINIUM ASSOCIATION, LTD.,
A WISCONSIN NONPROFIT CORPORATION,
PETITIONER-CO-APPELLANT,
V.
WISCONSIN DEPARTMENT OF NATURAL RESOURCES,
GENEVA LAKE CONSERVANCY, INC., AND ONEIDA
COUNTY,
RESPONDENTS-RESPONDENTS.
WISCONSIN REALTORS ASSOCIATION, INC.,
PETITIONER-APPELLANT,
V.




No.   99-2306
WISCONSIN DEPARTMENT OF NATURAL RESOURCES,
RESPONDENT-RESPONDENT.
ABKA LIMITED PARTNERSHIP, AN ILLINOIS LIMITED
PARTNERSHIP,
PETITIONER-APPELLANT,
THE ABBEY HARBOR CONDOMINIUM ASSOCIATION, LTD.,
A WISCONSIN NONPROFIT CORPORATION,
PETITIONER-CO-APPELLANT,
V.
WISCONSIN DEPARTMENT OF NATURAL RESOURCES,
RESPONDENT-RESPONDENT.
WISCONSIN ASSOCIATION OF LAKES, INC.,
PETITIONER-APPELLANT,
V.
WISCONSIN DEPARTMENT OF NATURAL RESOURCES,
RESPONDENT-RESPONDENT.
WISCONSIN REALTORS ASSOCIATION, INC.,
PETITIONER-APPELLANT,
V.
WISCONSIN DEPARTMENT OF NATURAL RESOURCES,
RESPONDENT-RESPONDENT.
2




No.   99-2306
APPEAL from an order of the circuit court for Walworth County:
MICHAEL S. GIBBS, Judge.  Reversed.
Before Nettesheim, P.J., Brown and Snyder, JJ.
¶1                                                                                       SNYDER,  J.     This  case  is  the  result  of  five  separate  cases
consolidated before the circuit court.   ABKA Limited Partnership (ABKA) and
The Abbey Harbor Condominium Association, Ltd. (the Association) appeal from
a circuit court order denying their joint petition for review of an administrative law
judge’s  (ALJ) decision regarding their WIS. STAT. ch.  30  (1999-2000)1 permit
application to the Wisconsin Department of Natural Resources (DNR).   ABKA
owned a public marina and sought to convert ownership of all 407 boat slips to a
condominium-style  ownership  called                                                     “dockominiums.”     The  ALJ  expressly
limited  the  number  of  boat  slips  that  ABKA  can  convert  to  dockominiums.
ABKA and the Association challenge the DNR’s jurisdiction to require a new
permit and to limit the number of dockominiums in the Marina.    In addition,
ABKA and the Association argue that the ALJ’s decision to limit the number of
dockominiums is arbitrary and unsupported by record evidence.
¶2                                                                                       The Wisconsin Realtors Association, Inc. (WRA) also appeals the
circuit court’s order, arguing that the DNR’s guidances, used by the DNR to arrive
at the appropriate number of dockominiums, are illegal attempts to circumvent the
rule-making requirements of WIS. STAT. ch. 227, that WIS. ADMIN. CODE § NR
326.04(8)  is  invalid,  that  the  change  in  ownership  to  condominium-style
1 All statutory references are to the 1999-2000 version unless otherwise noted.
3




No.   99-2306
ownership is allowed, and that the DNR did not have the authority to require a
new WIS. STAT. § 30.12 permit.
¶3                                                                                        In  addition,  the  Wisconsin  Association  of  Lakes,  Inc.      (WAL)
appeals the circuit court’s order.   In contrast to ABKA and WRA, WAL argues
that  ABKA’s  dockominium development  violates  the  public  trust  doctrine  by
purporting to convey a perpetual exclusive right to a portion of Lake Geneva,
exceeds  reasonable  riparian  rights,  and  violates  the  provisions  of  WIS.  STAT.
§ 30.133.
¶4                                                                                        We agree with WAL that the dockominium development proposed
by ABKA and the Association violates the public trust doctrine.
FACTS
¶5                                                                                        In  1994, ABKA was the owner of the Abbey at Fontana at Lake
Geneva;  the  Abbey  Harbor                                                               (the  Harbor)  was  created  by  the  dredging  of
Potawatomi Creek pursuant to a permit issued in July  1962 by the Wisconsin
Public Service Commission.   When issuing this permit, the PSC also authorized
the construction of the first 200 boat slips of what would eventually become the
407-slip Marina.   Additional permits were later issued, the most recent issued in
1987 for the construction of additional piers and slips in the Harbor.
¶6                                                                                        The Harbor consists of a man-made basin with  407 boat slips, a
swimming pool, a parking area, and a Harbor House.   The Marina’s 407 boat slips
were rented to boat owners on an annual basis with the option to renew.   In late
1994, ABKA, the private owner of the Marina, decided to convert the Marina to a
condominium  form  of  ownership  and  began  preparation  of  a  condominium
declaration.   ABKA’s proposal did not change the number, size or configuration of
any structure in the Marina, but simply changed the ownership to condominium
4




No.   99-2306
style.   During these preparations, the DNR contacted ABKA and asked to review
the language of the proposed condominium declaration.
¶7                                                                                        After  reviewing  the  language  of  the  proposed  condominium
declaration, the DNR insisted upon language changes in the declaration.    The
DNR approved the revised language changes of the Abbey Harbor Condominium
Declaration (Declaration), which was filed on February 28, 1995.
¶8                                                                                        Under the revised terms of the Declaration, each unit is separately
owned property held in fee simple title by the unit owner.   A dockominium unit is
defined as a cubicle of space in a lock-box located within a building known as the
Harbor House at the Marina.   Each unit/lock-box has a number which corresponds
to an existing boat slip at the Marina.   Each unit owner has the right to use the
space beside the pier or piers corresponding to the unit number.
¶9                                                                                        In  addition  to  the  independent  ownership  of  each  unit,  the  unit
owners own, as tenants in common with each other, all of the common elements of
the condominium, including all of the real estate, the Harbor House, the parking
lots, all docks and piers, and the swimming pool.   A unit owner is entitled to freely
sell, lease, sublease, rent or license the unit, and is required to keep the structures
adjacent to the unit in good repair.
¶10    Under the terms of the Declaration, each unit owner is required to be
a member of the Association, which is responsible for the maintenance, repair and
replacement of all common elements, dredging the Harbor and landscaping.   The
Declaration also endows the Association with the authority to enforce compliance
with its terms and to assess unit owners for the costs associated with the operation,
maintenance and repair of the Marina.
5




No.   99-2306
¶11    After  the  language  of  the  Declaration  was  changed,  the  DNR
maintained that ABKA had to apply for a new WIS. STAT.  § 30.12 permit to
convert the Marina to condominium ownership.   The DNR maintained that under
§ 30.12, a certain number of boat slips needed to be withheld from sale and set
aside  for  seasonal rental to the  public.    While  ABKA  challenged the  DNR’s
authority to require both a new permit and a certain number of set-asides, on
March 13, 1995, ABKA filed an application for a new § 30.12 permit, requesting
authorization for the conveyance of  407 boat slips to private owners under a
condominium form of ownership and reserving the right to challenge the DNR’s
jurisdiction in this matter.   The Association was subsequently made a co-applicant
in the proceedings.   On April 5, 1995, Geneva Lake Conservancy, Inc. (Geneva
Lake) objected to the permit application, which was then referred to the Division
of Hearings and Appeals for a contested case hearing.   Pending a hearing on the
permit application, the DNR and ABKA reached an agreement that ABKA could
file  the  Declaration;  that  the  current  structures  at  the  Marina  were  validly
permitted; that a contested case hearing would determine how many boat slips, if
any, needed to be set aside; and that ABKA could begin selling up to 282 units,
setting aside at least 125 units until a hearing decision was rendered.
¶12    On  November  13-17  and  December  18,  1995,  a  contested  case
hearing was held before an ALJ regarding ABKA and the Association’s permit
application.    Geneva  Lake,  WRA,  WAL  and  Oneida  County  (Oneida)  fully
participated in the contested case hearing as intervening parties; WRA was in
support of the condominium project, while Geneva Lake, WAL and Oneida were
opposed.   On July 29, 1996, the ALJ issued his decision, finding that the DNR did
have jurisdiction to require a new WIS. STAT. § 30.12 permit, and that 287 of the
407 slips at the Marina must be set aside for seasonal rental.
6




No.   99-2306
¶13    On August 23, 1996, ABKA filed a petition for judicial review of
the ALJ’s decision in both Walworth county and Dane county.   WRA also filed a
petition for judicial review in Walworth and Dane counties.   WAL then filed a
petition for review of the ALJ’s decision in Dane county.    By stipulation, on
October                                                                                                 14,                    1996,  the  Walworth  County  Circuit  Court  entered  an  order
transferring the Dane county cases to Walworth county and consolidating all of the
above actions.2
¶14    After briefing and oral argument, on June 4, 1999, the circuit court
issued a decision affirming the ALJ’s decision and entered a final order denying
the petitions for review on June  24, 1999.   ABKA, the Association, WRA and
WAL filed notices of appeal.   Geneva Lake and Oneida filed separate petitions to
intervene.   On October 19, 1999, ABKA filed a motion, with all parties agreeing
to  said  motion,  to  consolidate  the  above  appeals.                                                We  determined  that
consolidation  of  the  above  actions  was  unnecessary  because  the  cases  were
consolidated in the circuit court and were resolved in a single circuit court order;
thus, the notices of appeal of the various appellants gave rise to a single appeal
proceeding.    Furthermore, we denied Oneida’s and Geneva Lake’s petitions to
intervene.   However, we held that because they were parties in the circuit court,
and were adverse to some or all of the appellants, they were respondents who
could  defend  the  circuit  court’s  order  against  challenges  made  to  it  by  the
appellants.
2 In addition, in October 1996, DFS Development, Inc., Charles E. Eklund and Chicago
Title Insurance Company filed in the circuit court a proposed petition for judicial review by
applicants for intervention as party petitioners.  This motion to intervene was denied by the circuit
court on December 12, 1996; we ultimately affirmed this denial on December 10, 1997.
7




No.   99-2306
¶15    On September 20, 2000, we certified this matter to the Wisconsin
Supreme Court, as the matters at issue are ones of first impression and represent
important public policy questions regarding riparian rights and the public trust
doctrine.     We certified as to one issue:   Is a dockominium development, based
upon condominium real estate law, that limits public access to navigable waters in
favor  of  private  riparian  ownership  a  violation  of  the  Wisconsin  public  trust
doctrine and WIS. STAT. ch. 30?    After our request for certification, ABKA filed a
motion for leave to file a supplemental brief.    The Wisconsin Supreme Court
accepted certification on October 19, 2000.
¶16    On November 13, 2000, ABKA and the Association filed a motion
to clarify the scope of the issues certified.   Following all parties’ numerous and
varied responses to ABKA and the Association’s motion, the Wisconsin Supreme
Court rescinded and withdrew its order accepting certification, and this matter was
returned to us.
STANDARD OF REVIEW
¶17    This case involves an appeal from a circuit court order affirming the
decision of an administrative agency.   In an appeal from such an order, we review
the decision of the agency, not the circuit court.   Sea View Estates Beach Club,
Inc. v. DNR, 223 Wis. 2d 138, 145, 588 N.W.2d 667 (Ct. App. 1998).   Review of
an agency’s decision is confined to the record.    Sterlingworth Condo. Ass’n,
Inc. v. DNR, 205 Wis. 2d 710, 720, 556 N.W.2d 791 (Ct. App. 1996).
¶18    A different standard of review for agency decisions is applied for
questions of law and questions of fact.   Sea View Estates, 223 Wis. 2d at 148.   If
presented with a question of fact, we employ the “substantial evidence” standard.
Id.   Substantial evidence is such relevant evidence as a reasonable mind would
8




No.   99-2306
accept as adequate to support a conclusion.   Id.   If the issue presents a question of
law, we must set aside or modify the agency action if we find that the agency has
erroneously interpreted a provision of law and a correct interpretation compels a
particular action, or we shall remand the case to the agency for further action
under a correct interpretation of the provision of law.   Id.   To this end, we apply
one of three levels of deference to the conclusion of the agency:                            “great weight,”
“due weight” or “de novo.”   Id.
¶19    An  agency’s  interpretation  or  application  of  a  statute  may  be
accorded  great  weight  deference,  due  weight  deference  or  de  novo  review,
depending on the circumstances.    UFE Inc. v. LIRC,  201 Wis.  2d  274,  284,
548 N.W.2d 57 (1996).   We accord great weight deference only when all four of
the following requirements are met:   the agency was charged by the legislature
with the duty of administering the statute; the interpretation of the agency is one of
long standing; the agency employed its expertise or specialized knowledge in
forming the interpretation; and the agency’s interpretation will provide uniformity
and consistency in the application of the statute.    Id.    Under the great weight
standard, we will uphold an agency’s reasonable interpretation that is not contrary
to  the  clear  meaning  of  the  statute,  even  if  we  determine  that  an  alternative
interpretation is more reasonable.   Id. at 287.
¶20    We will accord due weight deference when “the agency has some
experience in an area, but has not developed the expertise which necessarily places
it in a better position to make judgments regarding the interpretation of the statute
than a court.”   Id. at 286.   The deference allowed an administrative agency under
due weight review is accorded largely because the legislature has charged the
agency with the enforcement of the statute in question.   Id.   Under this standard,
we will not overturn a reasonable agency decision that furthers the purpose of the
9




No.   99-2306
statute unless we determine that there is a more reasonable interpretation under the
applicable facts than that made by the agency.   Id. at 286-87.   Finally, we will
employ de novo review when the legal conclusion reached by the agency is one of
first  impression  or  when  the  agency’s  position  on  the  statute  has  been  so
inconsistent as to provide no real guidance.   Id. at 285.
¶21    While Oneida argues that the DNR’s decision should be accorded
great weight, ABKA, the Association, WRA, WAL, the DNR and Geneva Lake all
maintain that the agency’s decision should be accorded no weight and should be
reviewed  de  novo.    The  agency’s  decision  does  not  meet  the  “great  weight”
standard; although the legislature has charged the DNR with the duty of enforcing
environmental laws, including the regulation of piers in navigable water, Sea View
Estates, 223 Wis. 2d at 149, the issue of a public marina’s conversion to private
property and condominium ownership is an issue of first impression.   This also
precludes “due weight” deference, and thus de novo review is required.
PRINCIPLES OF PROPERTY OWNERSHIP,
REAL AND RIPARIAN
¶22    The instant issue involves the conversion of real riparian property, a
marina  privately  owned  by  a  limited  partnership,  to  another  form  of  private
property ownership.   Identification and definition of the pertinent legal terms and
doctrines is necessary for a thorough understanding of the issues.
¶23    In 1995, ABKA privately owned the 407-slip Marina.   A “marina” is
defined as “[a] boat basin that has docks, moorings, supplies, and other facilities
for small boats.”   AMERICAN HERITAGE DICTIONARY 766 (2d College ed. 1982).
The ownership of land has often been referred to as a “bundle of rights.”   State ex
rel. Wis. Edison Corp. v. Robertson, 99 Wis. 2d 561, 569, 299 N.W.2d 626 (Ct.
App. 1980).  This “bundle of rights” real property theory asserts that the owner has
10




No.   99-2306
the right to enter it, use it, sell it, lease it, or give it away, as he or she so chooses.
Id. at 569 n.11.   These rights are guaranteed by law but are also subject to certain
governmental and private restrictions.   Id.
¶24    The  Marina,  because  it  borders  Lake  Geneva,  is  also  riparian
property, and thus ABKA is a riparian owner.   Riparian owners are those who
have title to the ownership of land on the bank of a body of water.   Ellingsworth v.
Swiggum, 195 Wis. 2d 142, 148, 536 N.W.2d 112 (Ct. App. 1995).   A riparian
owner is accorded certain rights based upon title to the ownership of shorefront
property.   Sea View Estates, 223 Wis. 2d at 157.   These rights are well defined
and include the right to use the shoreline and have access to the waters, the right to
reasonable use of the waters for domestic, agricultural and recreational purposes,
and the right to construct a pier or similar structure in aid of navigation.   Id.   A
riparian owner is entitled to exclusive possession to the extent necessary to reach
navigable water and to have reasonable access for bathing and swimming.  Id.
¶25    In  February                                                                           1995,  ABKA  filed  a  condominium  Declaration  to
convert and sell the Marina boat slips to private owners as “dockominium” units;
this dockominium scheme is, in essence, a condominium type of ownership of the
Marina.  Dockominium  projects  are  typically  premised  on  condominium  law
because a dockominium is similar to a condominium in that both involve the
division  and  co-ownership  of  an  asset  previously  owned  by  a  single  entity.
Karin J. Wagner, Geneva Lake Dockominiums:   An Exercise of Riparian Rights in
Violation of the Public Trust Doctrine,  4 WIS. ENVTL. L.J.  243,  245  (Summer
1997).
¶26                                                                                           “Condominium” is defined as “property subject to a condominium
declaration  established  under  this  chapter.”                                              WIS.  STAT.                                                      § 703.02(4).     A
11




No.   99-2306
“declaration” is defined as “the instrument by which a property becomes subject to
this chapter, and that declaration as amended from time to time,” § 703.02(8), and
must contain all of the elements set forth at WIS. STAT. § 703.09.   A condominium
“unit” is defined as
a  part  of  a  condominium  intended  for  any  type  of
independent use, including one or more cubicles of air at
one  or  more  levels  of  space  or  one  or  more  rooms  or
enclosed spaces located on one or more floors, or parts
thereof,  in  a  building.    A  unit  may  include                                   2  or  more
noncontiguous areas.
Sec. 703.02(15).      The “common elements” of a condominium are defined as “all
of  a  condominium except  its  units,”  § 703.02(2),  while  the  “limited  common
elements” are defined as “those common elements identified in a declaration or on
a condominium plat as reserved for the exclusive use of one or more but less than
all of the unit owners.”   Sec. 703.02(10).
¶27    No similar statutory definition for “dockominium” exists.   While a
dockominium  can  be  considered,  from  the  mere  origin  of  its  name,  a
condominium-style marina, a dockominium has been more precisely defined as a
“dockside community of privately owned boats moored in slips that are purchased
for year-round living….   A slip in such a community.”   AMERICAN HERITAGE
DICTIONARY (4th ed. 2000) at http://www.bartleby.com/61/53/D0315300.html.   A
“slip”  is  defined  as  a                                                            “docking  place  for  a  ship  between  two  piers.”    Id.  at
http://www.bartleby.com/61/54/S0475400.html.
¶28    Here, under the Declaration, a dockominium unit consists of
that  separate  area  of  the  condominium  intended  for
independent, private use, comprised of a cubicle of space
12




No.   99-2306
defined by a “Lock Box” located within the Harbor House
….   Each unit shall include as an appurtenance,3 standard
riparian rights of owners of waterfront real estate under
Wisconsin  Law,  and  the  use  of  an  assigned  boat  slip
corresponding  to  the  unit  designation  as  a  part  of  the
common elements ….
The Declaration also states that the common elements do not include the above-
described individual units, but “[e]ach unit owner, as a limited common element
appurtenant exclusively to his unit, shall have riparian rights to use of the space
beside the pier or piers corresponding to his unit number … for use as a boat slip.”
Each unit owner has a fee simple interest in his or her dockominium unit, and an
undivided interest in the common elements and facilities and limited common
elements as a tenant in common with all other unit owners.   A fee simple interest
means “[a]n interest in land that, being the broadest property interest allowed by
law,  endures  until  the  current  holder  dies  without  heirs                                .”    BLACK’S  LAW
DICTIONARY 630 (7th ed. 1999).   “Tenancy in common” is defined as “[a] tenancy
by two or more persons, in equal or unequal undivided shares, each person having
an equal right to possess the whole property but no right of survivorship.”   Id. at
1478.
¶29    While riparian owners such as ABKA have certain well-established
rights that are incidents of their ownership of property adjacent to the water, under
the  public  trust  doctrine,  these  rights  are  subject  to  the  public’s  right  to  use
navigable waters.   State v. Bleck, 114 Wis. 2d 454, 469, 338 N.W.2d 492 (1983).
The public trust doctrine has its roots in article IX, section 1 of the Wisconsin
Constitution, under which the state holds the beds of navigable waters in trust for
3 An “appurtenance” is defined as “[s]omething that belongs or is attached to something
else.”  BLACK’S LAW DICTIONARY 98 (7th ed. 1999).
13




No.   99-2306
public use.4   Borsellino v. DNR, 232 Wis. 2d 430, 443, 606 N.W.2d 255 (Ct. App.
1999).    The  regulation  and  enforcement  of  this  public  trust  rests  with  the
legislature and the DNR.   Id.
¶30    Although the public trust doctrine was originally designed to protect
commercial  navigation,  it  has  been  expanded  to  protect  the  public’s  use  of
navigable waters for purely recreational and nonmonetary purposes.   Bleck, 114
Wis. 2d at 465.   Public policy factors signifying the public interest include the
wish to preserve the natural beauty of our navigable waters, to obtain the fullest
public use of these waters, including but not limited to navigation, and to provide
for the convenience of riparian owners.   Sea View Estates, 223 Wis. 2d at 159.
Such  public  interest  concerns  also  include  maintaining  the  safe  and  healthful
condition of the water, protecting spawning grounds and aquatic life, controlling
the placement of structures and land uses, preserving shore cover and natural
beauty, and promoting the general attractiveness and character of the community
environment.   Id. at 160.
¶31    The common law also requires reasonable use by riparian owners.
Sterlingworth,  205 Wis.  2d at  731.                                                           “[E]very  ... right which a riparian owner
acquires, as such, to the waters ... by his land, is restricted always to that which is
a ... reasonable use, and these terms are to be measured and determined by the
extent and capacity of the [lake], the uses to which it has been put, and the rights
that other riparian owners on the same [lake] also have.”   Id. (citation omitted).
4 In fact, the public trust doctrine precedes our state constitution.  Borsellino v. DNR, 232
Wis. 2d 430, 443 n.6, 606 N.W.2d 255 (Ct. App. 1999), citing to article IV of the Northwest
Ordinance of 1787.
14




No.   99-2306
¶32    The legislature has charged the DNR with the duty of enforcing
environmental laws, including the regulation of piers in navigable waters pursuant
to WIS. STAT. §§ 30.12 and 30.13.   Both § 30.12 and WIS. STAT. ch. 30 generally
codify a number of common law doctrines regarding the ownership of the beds of
navigable  waters.    State v. Trudeau,  139  Wis.  2d  91,  101,  408  N.W.2d  337
(1987).    Section  30.12 is a codification of the common law restriction against
encroachments on publicly held lake beds, Trudeau, 139 Wis. 2d at 102, and its
function is to regulate the placement of fill or structures on the beds of navigable
waters, but not to regulate the use and enjoyment of those waters.   Bleck, 114
Wis. 2d at 467.   Section 30.12 is a rational way of accommodating both the public
trust doctrine and the reasonable use doctrine, as it “recognizes the tradition of
certain rights unique to riparian owners, yet ensures that riparians will not be able
to place structures on the beds of navigable waters if they are detrimental to the
paramount public interest.”   Bleck, 114 Wis. 2d at 469-70.   A § 30.12 permit will
not  be  authorized  if  the  structure  proposed  by  the  riparian  owner  materially
obstructs navigation or if the structure infringes upon the public interest.   Bleck,
114 Wis. 2d at 469.
¶33    The Wisconsin Supreme Court has stated that
[t]he title to the beds of all lakes and ponds, and of rivers
navigable in fact as well, up to the line of ordinary high-
water  mark,  within  the  boundaries  of  the  state,  became
vested in it at the instant of its admission into the Union, in
trust  to  hold  the  same  so  as  to  preserve  to  the  people
forever the enjoyment of the waters of such lakes, ponds,
and rivers, to the same extent that the public are entitled to
enjoy tidal waters at the common law.
Trudeau, 139 Wis. 2d at 101 (citation omitted).
15




No.   99-2306
DISCUSSION
Jurisdiction of the DNR
¶34    ABKA5 first argues that the DNR lacked jurisdiction to require it
and the Association to apply for a new WIS. STAT. § 30.12 permit.   Specifically,
ABKA argues that § 30.12 does not provide a valid basis for the DNR to review
its existing permit.
¶35    ABKA and the DNR reached an agreement wherein ABKA agreed
to apply for a new permit, but reserved the right to contest the DNR’s jurisdiction.
However, as both this agreement and the ALJ noted, we are not bound by this
understanding.   In addition, while the ALJ provided a thorough and well-reasoned
analysis of the reach of WIS. STAT. § 30.12 and the DNR’s authority, we hold that
ABKA waived this argument by applying for the new permit in the first place.
¶36    The  application  filed  by  ABKA  specifically  states  that  the
application is filed pursuant to WIS. STAT. ch. 30.   While ABKA asserts in the
application that “the DNR has no jurisdiction to require a review or modification
of” the permit, and that ABKA was not “waiving or limiting its rights to contest”
the DNR’s jurisdiction, by applying for the permit it willingly placed itself under
the  DNR’s  jurisdiction  and  the  reach  of  ch. 30.    ABKA  may  have  filed  the
application under protest, but the DNR did not force it to file the application.
ABKA  could  have  refused  to  file  the  application  and  risked  an  enforcement
proceeding  or  the  imposition  of  fines  and  penalties,  wherein  it  could  have
5 ABKA submitted briefs and provided oral arguments on both its and the Association’s
behalf.
16




No.   99-2306
challenged  the  DNR’s  authority.    See  Sterlingworth,  205  Wis.  2d at  726-27.
Furthermore, ABKA could have filed a declaratory judgment action in circuit
court under WIS. STAT. § 227.40, asking a circuit court to determine its rights and
obligations under WIS. STAT. § 30.12.   Instead, it chose to file a ch. 30 permit
application.    As  both  the  agreement  and  the  ALJ  noted,  any reliance  on  the
agreement was the result of a calculated business gamble by ABKA, done at
ABKA’s own risk.   As applicants, ABKA and the Association placed themselves
under the DNR’s jurisdiction, thereby foreclosing the argument that the DNR had
no jurisdiction over this project.
Public Trust Doctrine
¶37    WAL argues that ABKA’s dockominium development violates the
public trust doctrine by attempting to convey a perpetual exclusive right to a
portion of Lake Geneva.
¶38    We  pause  to  commend  the  ALJ  for  the  careful,  extensive  and
professional analysis that resulted in the agency decision under review.   As the
ALJ noted in his comprehensive and in-depth analysis, this is a matter of first
impression  in  Wisconsin  and  the  law  is  silent  on  the  issue  of  whether  the
dockominium form of ownership is permissible under the public trust doctrine.   It
is clear that the dockominium concept represents a confrontation between a private
claim  in  boat  slip  space  and  public  interests  in  the  water.    Mark  Cheung,
Dockominiums:   An Expansion of Riparian Rights that Violates the Public Trust
Doctrine, 16 B.C. ENVTL. AFF. L. REV. 821, 825 (Summer 1989).
¶39    The United States Supreme Court’s seminal decision on the public
trust doctrine held that the state is directed to act as trustee of the waters within its
borders and to protect the public’s right to use the waters.   Illinois Cent. R.R. Co.
17




No.   99-2306
v. Illinois, 146 U.S. 387, 435 (1892).   The public trust doctrine is premised on the
idea that private ownership of public resources is improper and provides the public
with a right to the benefit of certain public resources.   Cheung, supra, at 830-31.
This right supplants any private interests and imposes strict responsibilities upon
the government as trustee of these public resources.   Id.   The government cannot
relinquish its trust duties associated with any public property.  Id. at 831.
¶40    Regulation of private riparian uses is essential if the state is to fulfill
its role of protecting state waters. Wagner, supra, at 247.   When conflicts occur
over the use of the waters of the state, riparian rights must always surrender to the
public interest.   Id. at 248.   Wisconsin has repeatedly acknowledged its obligation
to safeguard the state’s navigable water resources for the use, enjoyment and
benefit of the public.   Id. at 247.
¶41    Here,  section                                                                   5  of  the  Declaration  provides  definitions  and  a
description of the units; a dockominium unit is
that  separate  area  of  the  condominium  intended  for
independent, private use, comprised of a cubicle of space
defined by a “Lock Box” located within the Harbor House
as  shown  in  the  Condominium  Plat...                                                Each  unit  shall
include  as  an  appurtenance,  standard  riparian  rights  of
owners of waterfront real estate under Wisconsin Law, and
the use of an assigned boat slip corresponding to the unit
designation  as  a  part  of  the  common  elements  of  THE
ABBEY HARBOR CONDOMINIUM.
According to the Declaration, the common elements and facilities consist of the
real  property,  and  real  property  interests,  improvements  and  appurtenances
described in this Declaration, except the above-described individual units; the
common elements and facilities
shall include, without limitation, the land and real property
interests described  … herein including the buildings and
improvements located thereon, the  marina  shoreline, sea
18




No.   99-2306
wall  and  sidewalk  along  said  shoreline                                                 …  all  docks,
boardwalks, piers and pilings contained within the marina,
all  as  shown  on  the  Condominium  Plat                                                  ...  the  Harbor
House,  outdoor  swimming  pool,  boat  launching  ramp,
sidewalks, driveways and walkways, utility services, utility
lines and conduits including those leading up to the utility
pedestal boxes serving the respective boat slips, parking
areas   within   the   condominium   Property,   and   those
improvements,  structures  and  facilities  shown  on  the
Condominium Plat as well as certain “Dock Boxes” located
on  the  condominium  Property,  but  not  shown  on  the
Condominium Plat, and any and all other parts or elements
of   the   condominium   Property  as   described   in   this
Declaration and additions thereto in the future made by the
unit owners or the Association of Unit Owners (hereinafter
described).
The limited common elements include the boat slips:
Each unit owner, as a limited common element appurtenant
exclusively to his unit, shall have riparian rights to use of
the space beside the pier or piers corresponding to his unit
number as shown in the Condominium Plat, for use as a
boat slip.…   The placement of riparian structures in, and
the use of, the  waters  of the marina  as a  part  of THE
ABBEY HARBOR CONDOMINIUM is subject to the
rights  of  the  members  of  the  public  and  the  State  of
Wisconsin  under  Wisconsin  law  and  subject  to  permits
issued by the State of Wisconsin.
¶42    Each  unit  owner  owns  a  fee  simple  interest  in                                his                or   her
condominium unit and an undivided interest in the common elements and facilities
and limited common elements as a tenant in common with all other unit owners.
Unit owners can sell, lease, sublease, rent, license or otherwise contract for the
usage of their respective boat slip, without restriction, subject to state permits, on a
long-term or short-term basis, in their sole discretion.   Individual unit owners are
required  to  maintain  or  provide  all  necessary insurance  for  their  unit  and  its
appurtenance.
¶43    Technically, the conveyance of the dockominium unit as defined by
the Declaration fulfills the requirements of Wisconsin’s condominium law because
19




No.   99-2306
the unit is intended for independent use and is an enclosed space located within a
building, a lock-box in the Harbor House. Wagner, supra, at  251.    However,
unlike most condominium units, the lock-box itself has no inherent value; rather,
the appurtenant rights attached to the conveyance are the valuable commodity.   Id.
We agree with the ALJ that, to some degree, “the dockominium concept involves
a legal fiction:   that ABKA is selling the lock-box condominium units, rather than
the pier slips.”
¶44    By  definition,  a                                                                “dockominium”  is  a                                                    “dockside  community  of
privately owned boats moored in slips that are purchased for year-round living….
A slip in such a community.”   AMERICAN HERITAGE DICTIONARY (4th ed. 2000) at
http://www.bartleby.com/61/53/D0315300.html.   Here, while a dockominium unit
is labeled a  lock-box,  appurtenant to the lock-box is the exclusive use of  an
assigned boat slip as part of the common elements.   As a common element, the
boat slip is conveyed to the unit owners and the Association as tenants in common.
But a boat “slip” is, by definition, a “docking place for a ship between two piers.”
Id. at http://www.bartleby.com/61/54/S0475400.html.   In other words, a boat slip
is the water and the lake bed under the water.   Thus, ABKA is attempting to
convey a portion of the waters of Lake Geneva to the unit owners as tenants in
common.   The ALJ’s decision acknowledges that under the Declaration, the “pier
slip is                                                                                  [the individual owner’s] and cannot be considered to provide a public
benefit.”     The  public  trust  doctrine  should  not  be  manipulated  to  allow  a
conveyance of interest in the water as tenants in common.   Cheung, supra, at 852.
¶45    An examination of  existing literature on dockominiums confirms
this  conclusion.    A  dockominium  does  not  adversely  impact  water  quality,
quantity or flow, but despite the dockominium’s creative manipulation of riparian
rights, it does obstruct the public’s complete access to the waterways and creates a
20




No.   99-2306
claim of private ownership upon water owned by the public.   Id. at 825.   In fact,
the  dockominium  concept  is  founded  on  the  idea  that  individuals  may  own
exclusive control of the water within a boat slip space.  Id. at 822.
¶46    Dockominium purchasers become riparian owners of the individual
parcels of riparian rights and understandably expect that no other boater, or even a
swimmer, can occupy the slip space.   Id. at 844.   This expectation suggests that
the dockominium owner owns the water within the slip space.   Id.   As the ALJ
noted, the use of the waters of Abbey Harbor, including the waters in the boat
slips,  is  legally  open  to  members  of  the  public.     However,  the  ALJ  also
acknowledged that “there is an inherent conflict between the public’s use of these
waters and the expectations of an exclusive property interest in the pier slips.”
¶47    ABKA’s marketing materials do nothing to dispel that expectation.
One advertisement purporting to explain the dockominium program addresses the
purchase price of a slip and the advantages of owning a slip versus renting one.
This advertisement asserts that a dockominium can be sold, transferred or passed
by inheritance at any time.   ABKA and the Association advised prospective buyers
to “look into a permanent berth” at the Marina and stated that “individual slips can
be owned and transferred by deed.”   The ALJ commented that without question
the initial marketing of the dockominiums “sought to blatantly sell public waters
for private benefit.”   As the ALJ noted, the marketing language was less blatant in
more recent versions; however, “dockominium purchasers may still believe they
are purchasing permanent rights in public waters as a result of the purchase of a …
unit.”
¶48    ABKA argued before the ALJ that a dockominium conveyance is
consistent with the public trust doctrine because the language in the Declaration
21




No.   99-2306
continues to subject dockominium slip holders to state regulation.   However, we
agree with the ALJ that “[m]arketing of the pier slips … could give unit owners a
false expectation of a property interest in public waters” and that any restrictions
“could be rendered meaningless once the expectation of a property interest has
been established.”6
6  A  recent  United  States  Supreme  Court  opinion  lends  weight  to  this  expectation.
Palazzolo v. Rhode Island, 533 U.S. ___, 121 S. Ct. 2448 (2001), could have an impact on
whether a purchaser of a dockominium would have a future takings action against the state if his
or her riparian real estate interest in a boat slip were later challenged.
Palazzolo was a shareholder in a corporation that purchased a waterfront parcel in 1959,
most of which is salt marsh subject to tidal flooding.   Id. at 2455.   In 1971, Rhode Island created
an agency (Council) to protect coastal wetlands that included this wetland parcel.  Id. at 2456.   In
1978, Palazzolo obtained sole ownership of the parcel after the corporation terminated.   Id.   In
1983, Palazzolo asked permission to construct a wooden bulkhead and to fill in the entire
marshland area.   Id.   Council denied this request.   Id.   In 1985, Palazzolo asked permission to fill
in eleven of eighteen wetland acres to build a private beach club.  Id.  Council denied this request
on the basis that no compelling public purpose would be served.   Id.   Palazzolo filed an inverse
condemnation  action,  arguing  that  the  wetlands  regulation  had  taken  his  property  without
compensation even though the regulation had existed at the time he became the sole owner.  Id.
In effect, Palazzolo indicates that a buyer’s acquisition of title, even after regulatory rules
become effective, does not bar a takings claim:
Were we to accept the State’s rule, the postenactment transfer of
title would absolve the State of its obligation to defend any
action  restricting  land  use,  no  matter  how  extreme  or
unreasonable.   A State would be allowed, in effect, to put an
expiration date on the Takings Clause.   This ought not to be the
rule.                                                                                                      Future  generations,  too,  have  a  right  to  challenge
unreasonable limitations on the use and value of land.
Nor does the justification of notice take into account the effect
on owners at the time of enactment, who are prejudiced as well.
Should an owner attempt to challenge a new regulation, but not
survive the process of ripening his or her claim  ... under the
proposed rule the right to compensation may not be asserted by
an heir or successor, and so may not be asserted at all.   The
State’s rule would work a critical alteration to the nature of
property, as the newly regulated landowner is stripped of the
ability to transfer the interest which was possessed prior to the
regulation.   The State may not by this means secure a windfall
(continued)
22




No.   99-2306
¶49    Despite  the  use  of  the  restrictive  language  in  the  Declaration,
approval  of  ABKA’s  application  would  give  prospective  unit  owners  the
expectation that they would gain vested private rights in public waters.   ABKA’s
plan purports to create permanent rights in an area of public water.   The ALJ aptly
stated that  “[c]onversion of all  407 slips to dockominium status would violate
long-held notions of the reasonable use of public trust waters by a riparian.”   We
fail to see how the conveyance of 407 separate private property interests in public
waters is violative of the public trust doctrine, but the conveyance of 120 separate
private property interests in public waters is not.   Put simply, the conveyance of 7
or the conveyance of 407 boat slips in the manner proposed by ABKA violates the
public trust doctrine.
¶50    In essence, a dockominium development attempts to offer a small
class of boat owners the exclusive and permanent right to own and to occupy a
portion of public trust waters and provides access to the waters to a select group of
the public, which fails to satisfy the purpose of the public trust doctrine.   Catherine
Robinson  Hall,  Dockominiums:    In  Conflict  with  the  Public  Trust  Doctrine,
for itself....   The Takings Clause is not so quixotic.   A blanket
rule that purchasers with notice have no compensation right
when a claim becomes ripe is too blunt an instrument to accord
with the duty to compensate for what is taken.
Id. at 2462-63.
Palazzolo suggests that a dockominium owner would have a ripened takings claim in the
future if the state, exercising its public trust doctrine responsibility, ever tried to interfere with the
owner’s entitlement to the appurtenant pier and boat slip.
However, none of the parties in the case at hand have had a chance to address Palazzolo
and develop arguments regarding its issues; thus, we do not rely on Palazzolo in making our
decision.  We mention it only for its potential implications in cases such as this.
23




No.   99-2306
24 SUFFOLK U. L. REV. 331, 343 (Summer 1990).   A dockominium removes a
portion  of  the  public  trust  area  from  free  availability  for  the  citizens,  which
directly conflicts with the underpinning and careful limitations of the public trust
doctrine.   Id.   Exclusive private ownership of water is completely contrary to the
foundation of the public trust doctrine.   Id.
¶51    The DNR may allow individuals to place docks in the water for
access and reasonable use of the water by issuing permits but may not allow the
passing  of  title  to  the  water.  Cheung,  supra,  at                                      852.   Navigable  waters
unquestionably belong to the people, and to allow private individuals to claim the
dockominium slip space or the water within the slip as a property interest is
violative of the public trust doctrine.   Id.   By permitting the conversion of marinas
to private dockominiums as ABKA proposed here, the DNR has allowed control
over public trust lands to be vested in private individuals, in violation of the public
trust doctrine.7
CONCLUSION
¶52    A boat slip is by definition the water and lake bed between two
piers; but no one but the state can own the water and the lake bed.    Riparian
owners do not possess water in a lake, but only the right to reasonable use of the
water in the lake;  “[r]iparian owners acquire at most the usufructuary right to
water based on possession or dominion, but not outright ownership of the water.”
Id. at 839.
7 Because our resolution of this issue disposes of the appeal, we need not address the
remaining arguments.  Sweet v. Berge, 113 Wis. 2d 61, 67, 334 N.W.2d 559 (Ct. App. 1983).
24




No.   99-2306
¶53    ABKA’s dockominium proposal allows ABKA and the Association
to transfer ownership of public waters to private individuals and therefore is in
direct conflict with the public trust doctrine.   We therefore reverse the order of the
circuit court affirming the ALJ’s decision granting ABKA a WIS. STAT. ch. 30
permit.
By the Court.—Order reversed.
25




No.                                                                                       99-2306(D)
¶54    BROWN, J. (dissenting).   I join in the majority’s commendation of
the ALJ’s work.8   Unlike the majority, however, I agree with the ALJ’s reasoning
and  conclusions.    I  would  affirm the  circuit  court  which  affirmed  the  ALJ’s
decision.
¶55    At bottom, the engine powering the majority opinion is the thought
that dockominiums are a marketing “scheme” or “creative manipulation” by which
persons purport to sell the water within a boat slip space.   The factual predicate for
this idea is that the purchaser is not really a riparian owner in the normal sense of
the term, but the owner of a lock-box, a small metal enclosure that looks like a
post office box.   The majority likens this to a ruse because the lock-box is absent
any value without the ownership of the water within the slip.   What the majority
opinion attempts to do is to outlaw this marketing concept as antithetical to the
public trust doctrine.
¶56    The factual predicate is wrong and, once we understand the true
facts at hand, then the conclusion that the concept violates the public trust doctrine
must fall.   The purchasers here do not own simply a lock-box.   They own more
and when we understand what they own, it is apparent that they are common
owners of riparian land.  I quote the ALJ:
8  The ALJ was Jeffrey Boldt.




No. 99-2306(D)
The individual “condominium unit” owners individually
own only a lock-box, similar to a post office box, located in
the Harbor House….   The lock-box constitutes “the unit”
within the meaning of sec. 703.02(15), Stats.   The unit is
separately and independently owned by each condominium
owner  and is intended  for independent, private  use.    In
itself,  the  lock-box  does  not  confer  riparian  status  on
condominium unit owners.
However, the Declaration provides that the unit owners
are  tenants  in  common  with  each  other  of  all  of  the
common elements including all of the riparian real estate
and  improvements  such  as  the  Harbor  House,  seawall,
sidewalk,  boat  launch,  parking  lot,  docks  and  piers  and
swimming pool….   The legal question is whether holding
such  property  in  the  form  of  a  common  element  of  a
Condominium  Declaration  constitutes                                                    “riparian”  status
under sec.  30.12, Stats.    Section  703.04, Stats., provides
that:                                                                                    “A unit, together with its undivided interest in the
common   elements,   for   all   purposes   constitutes   real
property.”    The  individual  lock-box  condominium  unit
owners are tenants in common in the property subject to the
Declaration, including approximately 20 acres of riparian
property  and  nearly                                                                    4200  feet  of  riparian  shoreline
property….      Accordingly,  riparian  status  vests  from
holding  these  lands  in  common  under  the  terms  of  the
Declaration.
¶57                                                                                      From the above passage, it is clear that the purchasers are more than
simply owners of a lock-box.   They are not bogus riparian owners.   They share
ownership of more shoreline than most individual owners of riparian land in this
state.   They also share twenty acres of total land.   They further share ownership of
a swimming pool and a Harbor House.   Certainly, the owners do not live on the
land.   But there is no law that says they have to before they can be considered
riparian owners.   I think where the majority opinion goes wrong is that it considers
the purchasers to be fake riparian owners.   They are not.   They are real owners,
albeit sharing the property in common.
2




No. 99-2306(D)
¶58    The majority is disturbed by the marketing concept of the sellers.
They are disturbed by the notion that the buyers will consider themselves owners
of the water.   The ALJ spoke to that as well.  I quote the ALJ again:
There is no question that the initial marketing of the
dockominiums sought to blatantly sell public  waters  for
private benefit….   While the language has been less blatant
in  recent  versions,  dockominium  purchasers  may  still
believe  they  are  purchasing  permanent  rights  in  public
waters as a result of the purchase of a condominium unit.
Section  7.2 of the Declaration states that each boat slip
owner will have “as a limited common element appurtenant
exclusively to his unit … riparian rights to use of the space
beside the pier or piers corresponding to his unit number.”
However, it is clear that riparian rights derive not from the
purchase of a unit as such, but from the common elements
which include riparian lands.   (Emphasis added.)
¶59    The ALJ had it correct.    The purchasers  may believe  they have
bought ownership rights to the water.    However, this does not mean that they
actually own it.   If ownership of the water is illegal, and it is, then they have
bought only common ownership of the terra firma with right of access to the
water.   If they think they got a raw deal because they bought something they are
not entitled to buy, their recourse is to sue the developer or the seller or even the
broker for selling an illusion.9
9   The majority cites Palazzolo v. Rhode Island, 533 U.S. ___, 121 S. Ct. 2448 (2001), for
the proposition that it “suggests that a dockominium owner would have a ripened takings claim in
the future if the state, exercising its public trust doctrine responsibility, ever tried to interfere with
the owner’s entitlement to the appurtenant pier and boat slip.”  Majority at ¶48 n.6.   I disagree with
that characterization of Palazzolo.
Palazzolo has owned eighteen acres of “coastal wetlands” adjoining uplands in Rhode
Island since 1959.   Id. at 2455.   At that time, he subdivided this property into eighty lots.   He still
owns seventy-four of them.   Id.   He desired to develop the land, but because most of it was
marshland, he wanted to add dirt to raise the level of his lots and convert them to dry land capable
(continued)
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No. 99-2306(D)
¶60    There is nothing inherently wrong or illegal about taking a piece of
riparian land and selling it in condominium form so that the end result is many
owners of that land.   There is nothing inherently wrong with these owners sharing
common access to the water and assigning between themselves who is going to get
which boat slip.   It is not as if the riparian rights are increased by increasing the
number of owners.    The riparian rights remain the same and those rights are
regulated by the DNR.   I fail to see how that violates the public trust doctrine.   The
bottom line is that the water is not sold because it cannot be sold.   Any marketing
scheme purporting to sell the water within the slip is the selling of an illusion.   But
we are not today faced with a question of whether the seller should be exposed to
suit because it sold an illusion.   Our purpose is to ask whether the dockominium
owners are real riparian owners.   If they are, then they have a right to put a pier in
the water and sell the exclusive, perpetual right to have a pier in the water subject
of development.   The applications were denied based on regulations in place before his purchase.
Id. at 2456.  He appealed.  The case made its way to the United States Supreme Court.
Three issues were before the Court:   (1) whether a regulatory takings claim is categorically
barred whenever the enactment of the regulations predates the claimant’s acquisition of the
property; (2) whether a landowner must file additional applications seeking permission for “less
ambitious uses” in order to ripen a takings claim; and (3) whether the remaining permissible uses of
regulated property are economically viable merely because the property retains a value greater than
zero.   Id. at 2457-58.   The Supreme Court held that:                                                     (1) the claims were ripe for adjudication, see
id. at 2462; (2) acquisition of title after the effective date of the regulations does not bar a takings
claim, see id. at 2464; and (3) since there was undisputed value of a portion of his land, he was
precluded from making a claim that the denial deprived him of all economic use.  See id.
Palazzolo was therefore about a person who owned terra firma; it was not about a person
claiming to own a bed of water.   It was about whether a regulation in place before an owner’s
purchase could bar his takings claim to land for which he had valid title.  It was his land.  He owned
it.   The Supreme Court said that even if he bought valid title after a regulation was in place, he
could still claim that a takings occurred.   The opinion says nothing about whether a person would
have a takings claim for something he or she never validly owned in the first place.   In sum,
Palazzolo is totally irrelevant to the issues in this case, both factually and analytically.
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No. 99-2306(D)
to DNR regulations.    The bottom line is that a change in ownership is not a
violation of the public trust doctrine and that is all this is:   a change in ownership
from one big hotel concern to many different persons who own big boats.
¶61    I add that I view the dockominium concept under the facts of this
case as passing muster.   If the purchasers were to own no riparian land and were
sold only the pier slips, I believe that this status would be illegal.   But this is
because the purchasers would not be riparian owners, not because the purchasers
believed they were purchasing ownership in the water appurtenant to a pier.   I can
think of several other instances where the dockominium project would probably
not get off the ground.   But this is not the time to discuss them.   Suffice it to say,
each project must stand or fall on its own facts.
¶62    Before leaving this subject, I quote the ALJ once more:
[C]ondominium ownership of the marina does not in itself
violate the public trust doctrine.   Conversion of all of the
pier slips to dockominium status would violate the public
trust  doctrine  and  would  be  detrimental  to  the  public
interest  in  maintaining  public  access  to  public  waters.
However, complete rejection of the proposed dockominium
conversion   would   unfairly   discriminate   against   the
condominium  form  of  ownership.    Riparian  owners  in
Wisconsin, including riparians who gain such a status by
holding land in common through the condominium form of
ownership,  have  the  limited  right  to  place  a  reasonable
number of pier slips in public waters to gain access to said
waters.   The condominium unit-holders in this matter own
riparian lands in common with other unit holders including
ABKA….   Condominium unit-owning riparians are entitled
to no more and no less access than other riparians.
¶63    I  agree  with  the  sentiments  expressed  by  the  ALJ.                            The
dockominium concept is simply a creative means by which to convey riparian
land.   It does no violence, per se, to the public’s right to use the waters.   Riparians
have always had rights of use to the water.   The dockominium concept does not
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No. 99-2306(D)
change that fact.   These rights of use are regulated by the DNR on behalf of the
public.   This does not change with the advent of dockominiums.
¶64    If  the  public  trust  doctrine  is  not  violated  by  the  dockominium
concept, then we get to the next two questions, whether the DNR had the power to
reduce the number of slips that the condominium owners could enjoy and, if so,
whether the exercise of that power was reasonable.    The parties briefed these
issues voluminously and raised and argued subissues.   If this were the majority
opinion, I would address each point made.   But in a dissent, it is unnecessary.   All
I need to do is get my point across.
¶65    ABKA notes that it originally had a permit from the DNR to put up
407 piers when it owned the property by itself.   Since all that has occurred is a
change in ownership from one owner to multiple owners of riparian land, ABKA
asserts  that  there  is  no  justification  for  the  DNR  to  regulate  the  conversion.
ABKA observes that this was always a private dock, never a public dock.   It then
reasons that the public trust doctrine is not violated by maintaining the status quo.
ABKA argues that the riparian use is not changed and since it is not changed, the
use of the waters is not changed and the DNR simply has no authority to come in
absent a change in the use.   ABKA therefore asserts that its permit is still good.
¶66    I disagree.   As ABKA itself stated at oral argument, the docks in
question here are meant to harbor big boats.   I now quote a statement made during
oral argument by ABKA’s counsel:   “This case is really about one rich person who
leases versus one rich person who owns, not the average little guy who wants to
take his family out for an outing.   This is not a meaningful distinction relevant to
the public trust doctrine.”   I agree that this case is about big boat owners who own
riparian land versus big boat owners who lease slips on a seasonal basis.   But just
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No. 99-2306(D)
because we are not dealing with “the little guy” does not mean that the public trust
doctrine is irrelevant.
¶67    The burning question is still access.     The person who can afford to
own a big boat, but who does not have a riparian right, is entitled to access to the
lake just as is the person with a similar size boat who does have riparian status.
There are simply too few places in Wisconsin’s inland waters for people with big
boats.   Lake Geneva is one lake where big boats can harbor.   The DNR’s concern
here is about access to that lake.   If ABKA’s dockominium were to end up taking
away all availability for leasing, the person who had a big boat but did not have
riparian rights would have less access to the water.   I would ask:   where is that
person going to go?    This is why, in my opinion, the conversion plan is the
business of the DNR, because the DNR is in the business of assuring access to
everybody, even wealthy people.
¶68    And whe

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