Borsellino v. Wisconsin Department of Natural Resources

In 1966, the owners of lakefront property divided it into three lots, one on the lakeshore and two upland, with a 12-foot-wide strip providing the rear lots access to the shoreline. The upland owners placed a 78-foot pier extending from the access lot into the water every year for nearly 30 years until lakefront-lot owner Lewis Borsellino (plaintiff) filed a complaint with the Wisconsin Department of Natural Resources (DNR) (defendant). An administrative law judge (ALJ) ordered Samuel and Marilyn Bonnano, who owned the access strip and one upland lot, to remove the pier. The next year, the Bonnanos applied for a permit to build a new six-foot-wide, 96-foot pier with a boat lift. Borsellino and the neighbors on the other side of the access strip had their own piers and argued the new pier would interfere with their riparian rights and cause excessive congestion. At the hearing, a DNR water-management specialist testified that a 96-foot pier with two boats moored to it would be a reasonable use. The specialist said the pier’s length would prevent environmental damage in shallow habitats, that allowing a pier on a 12-foot-wide strip would have no significant cumulative impact on the lake, and that the Bonnanos’ pier would be consistent with other riparian uses of the lake. The ALJ granted the permit, conditioned on the Bonnanos placing the new pier in compliance with the local zoning ordinance, but acknowledged the potential for conflicts due to the closeness of the neighboring piers and concluded that the new pier could have only one boat slip and one boat moored next to it at any time. After the circuit court affirmed, Borsellino appealed to the Wisconsin appellate court.