In Carlin Lake Association, Inc. v. Carlin Club Properties, LLC (2017AP2439), the Court of Appeals District III upheld an injunction on a business’s pumping and transporting well water on its property and allowed riparian property owners’ claims that the activity violated county ordinances to proceed.

Carlin Club owned a lodge on Carlin Lake that was deemed a legal nonconforming use with respect to a Vilas County zoning ordinance prohibiting commercial use of the property. When Carlin Club began making changes to the property in order to start transporting, bottling, and selling well water, seven landowners and the Carlin Lake Association filed the instant lawsuit claiming the activity was distinct from the legal nonconforming use of the lodge and thus in violation of county ordinances. The circuit court issued an injunction on Carlin Club’s new pumping and transporting activities and declared them in violation of the Vilas County ordinances.

On appeal, Carlin Club argued:

1. The landowners lacked standing to sue under the state statute for enforcement of county ordinances (Wis. Stat. § 59.69(11)) because they were not “affected by the regulation.”
2. The Lake Association lacked standing under § 59.69(11) because it was not an “owner of real estate” in the regulated zone.
3. The landowners’ claims were not ripe because Carlin Club had not yet engaged in commercial activity in violation of the ordinance.
4. The injunction was not equitable.
5. The county ordinance is preempted by the Department of Natural Resources’s (DNR) authority to regulate groundwater withdrawal.

The appeals court rejected all Carlin Club’s arguments but the second. The court said:

1. The language “affected by regulation” refers to the “district” not the “owner of real estate” in § 59.69(11). Therefore, the landowners did not need to show they suffered special damages in order for their claims to stand.
2. The Lake Association was made up of individual property owners but did not own property itself, so its claims could not stand under § 59.69(11). The appeals court ordered the Lake Association to be removed as a party.
3. An enforcement claim under § 59.69(11) is ripe, even before a zoning violation actually occurs, if plaintiffs show a “sufficient probability” that a violation will occur. Here, Carlin Club’s activities in preparation for pumping and transporting well water were enough for the landowners to show a sufficient probability the violation would occur.
4. Circuit courts should not shift the burden of showing whether an injunction would be equitable from the plaintiff to the defendant in § 59.69(11) cases. Although the circuit court should not have shifted this burden to Carlin Club, the facts presented in the case still led the appeals court to the “only reasonable conclusion” that the injunction should be upheld.
5. The general duty of DNR to regulate groundwater withdrawal does not interfere with the local ordinances at issue here.