Riparian Rights; Condominiums

ABKA Limited Partnership v Wisconsin Dept of Natural Resources, 255 Wis 2d 486, 648 NW2d 854 (Wis 2002).

Facts: ABKA Limited Partnership (ABKA) attempted to convert its marina to a condominium, or "dockominium," form of ownership. The condominium declaration defined each unit as a "lock box," that included, as an appurtenance, riparian rights, and use of a boat slip. ABKA had purchased the marina in 1973, and pursuant to a Wisconsin Department of Natural Resources (DNR) permit had rented boat slips to the public. ABKA and the DNR agreed that ABKA would apply to the DNR for a permit authorizing the conversion of the marina into condominium property. ABKA applied for the permit, but the DNR received an objection to the permit application.

A hearing was held in front of an administrative law judge (ALJ) in which the ALJ granted a permit to convert to condominium property but required that some of the slips in the marina remain as rentals. The circuit court affirmed the ALJ's decision. The court of appeals, however, reversed the decision, holding that the proposed conversion to condominium property violated the public trust doctrine because it transferred ownership of public waters to private individuals.

Holding: The Supreme Court affirmed the court of appeals' decision, but on different grounds. Initially, the court upheld DNR's jurisdiction over ABKA based on Wis Stat § 30.03(4), which gives the DNR jurisdiction over matters that might violate the public trust doctrine.

Next, the Court held that the "lock boxes" did not meet the statutory definition of "unit" contained in Wisconsin's Condominium Ownership Act. Wis Stat § 703.02(15). As such, the Court found that there was not a valid condominium conveyance of real property. Without a valid condominium unit, the Court held that, "The transfer of riparian rights that ABKA's declaration purports to accomplish is in violation of [Wis Stat] § 30.133." Since Section 30.133 appears inapposite on its face, the Court went on to provide some "additional background," explaining that the provision in question prohibits the conveyance of riparian rights apart from riparian property. In other words, because the condominium property did not satisfy the statutory definition of "unit," conveyance of any boat slips would contravene Section 30.133 because the "dockominium" owners did not actually own the shoreline property adjacent to the boat slips. Finally, the Court noted that "residential condominium units that provide for the use of boat slips are readily distinguishable from ABKA's lock boxes."

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