## Facts

- In 1966, owners of lakeside property on Lake Geneva divided the land into three lots: one shore lot and two upland lots, with a 12-foot-wide shoreline strip providing water access for the rear lots.
- Over time, ownership changed. Lewis J. Borsellino owned the shore lot adjacent to the access strip; Samuel and Marilyn Bonnano owned the 12-foot access strip and one upland lot.
- For nearly 30 years, the upland owners placed a pier each year extending from the access strip into the lake (about 78 feet).
- After Borsellino complained to the Wisconsin Department of Natural Resources (DNR), an administrative law judge (ALJ) ordered the existing pier removed as not authorized under the DNR’s permitting requirements.
- The following year, the Bonnanos applied for a DNR permit to build a new six-foot-wide, 96-foot-long pier with a boat lift from the 12-foot access strip.
- Borsellino and neighbors on the other side of the strip (who also had piers) objected that the new pier would interfere with their riparian rights and create excessive congestion given the close spacing of existing piers.
- At the hearing, a DNR water-management specialist testified that a 96-foot pier was needed to avoid harm to shallow-water habitat and that a pier of that length, with two boats moored, would be a reasonable use and would not create a significant cumulative impact on the lake.
- The ALJ granted the permit but imposed conditions, including that the pier be placed in compliance with the applicable town pier-placement ordinance and that the pier be limited to one boat slip with only one boat moored next to it at any time.
- The DNR adopted the ALJ’s decision as its final agency decision; the circuit court affirmed; Borsellino appealed to the Wisconsin Court of Appeals.

## Issues

1. Whether the DNR acted within its authority by issuing a pier permit conditioned on compliance with a town pier-placement ordinance and Wis. Admin. Code § NR 326.07(3).
2. Whether the DNR’s issuance of the conditioned permit violated Wisconsin’s public trust obligations in navigable waters.
3. Whether the DNR reasonably determined that the permitted pier, as conditioned, was a reasonable riparian use that did not unreasonably interfere with neighboring riparian owners.

## Decision

- The Court of Appeals affirmed the circuit court’s order upholding the DNR’s permit decision.
- The court held the DNR could impose permit conditions requiring compliance with the town ordinance and Wis. Admin. Code § NR 326.07(3).
- The court concluded substantial evidence supported the DNR’s findings that the pier, as limited by conditions, did not unreasonably impair public rights protected by the public trust doctrine.
- The court concluded substantial evidence supported the DNR’s determination that the pier, as conditioned (including the one-slip/one-boat limit), was a reasonable riparian use that did not unreasonably interfere with adjacent riparian rights.

## Legal Principles

- On judicial review of an administrative decision, the appellate court reviews the agency’s decision and sustains findings of fact supported by substantial evidence in the record.
- Courts give due weight to an agency’s reasonable interpretation and application of statutes and administrative rules within the agency’s assigned regulatory area.
- The DNR may issue pier permits with conditions designed to address site-specific impacts and to coordinate with valid local shoreline regulations, so long as the DNR retains final permitting authority and makes its own decision.
- Under Wisconsin’s public trust doctrine, private shoreline structures may be allowed when the record supports a finding that the structure, particularly as conditioned, does not unreasonably interfere with public uses of navigable waters.
- Riparian rights are correlative and limited by reasonable use; a riparian owner’s structure or use may be restricted when needed to avoid unreasonable interference with neighboring riparian owners.
- Reasonableness determinations are fact-intensive, and permit conditions (such as limits on slips or moored boats) may be used to reduce crowding and conflicts where piers are closely spaced.

## Conclusion

The Wisconsin Court of Appeals upheld the DNR’s decision to grant the Bonnanos a permit for a 96-foot pier extending from a 12-foot access strip on Lake Geneva because the DNR acted within its permitting authority, supported its determinations with substantial evidence, and used conditions—such as compliance with the town ordinance and a one-slip/one-boat limit—to address public trust concerns and competing riparian rights.


Borsellino v. Wisconsin Department of Natural Resources, 606 N.W.2d 255 (1999)