¶ 54. {dissenting). I join in the majority's commendation of the ALJ's work.1 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:
*828The 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 *829considers the purchasers to be fake riparian owners. They are not. They are real owners, albeit sharing the property in common.
¶ 58. The majority is disturbed by the marketing concept of the sellers. They are disturbed by the notion that the buyers will considér 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.2
*830¶ 60. There is nothing inherently wrong or illegal *831about 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 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 *832off 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:
[CJondommium 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 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 *833enjoy 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 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 *834not 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 when the DNR looked at the facts surrounding the conversion plan, this is what it found, as evidenced from the record before the ALJ. There are three ways to access water: (1) by being a riparian owner, (2) by renting a slip, and (3) by public access. In the case of big boats, public access ramps are simply unfeasible. It takes time and money to launch these big boats and time and money to get them out. So, that leaves renting or riparian access. The ALJ cited testimony from a warden that ABKA's conversion would reduce the number of slips available on Lake Geneva by almost half. It stands to reason that if the number of available slips for big boats on Lake Geneva is reduced by half, access is compromised. That is just common sense. And that is what ultimately drove the DNR's determination in this case.
¶ 69. As the ALJ related, one witness testified how she and up to 100 of her friends were forced to leave the Abbey because of the high cost ($46,500) of purchasing a pier slip, paying taxes and meeting condominium assessments. Similar sentiments, along with *835a deep sense of regret, at having been forced off Lake Geneva because of the high costs were expressed by another witness.
¶ 70. The ALJ correctly observed that the public trust doctrine reflects an effort by the law to balance the rights of riparians with the rights of the public in waters held in public trust. What constitutes reasonable use, under the common law test, is a factual determination, varying from case to case, which includes factoring the subject matter of the use and the occasion and manner of its application. The ALJ concluded that the "subject matter of the use" and the "occasion and manner of its application" at the Marina would be changed fundamentally if the entire Marina were converted to dockominium status and the boat slips were no longer regularly and consistently made available to the public by way of seasonal rental. I agree. I conclude that the DNR had the authority to step in to protect the owners of big boats who are not riparian owners. As I expressed before, these people are members of the public and entitled to access just like anyone else. The public trust doctrine is not irrelevant to these people as ABKA contends.
¶ 71. The only remaining question is whether the DNR's determination that 287 of the 407 slips remain available to the public is reasonable. Here, the DNR is accorded great discretion. The facts and circumstances support this determination. I would affirm the circuit court which affirmed the ALJ's decision which upheld the DNR's determination.
The ALJ was Jeffrey Boldt.
The majority cites Palazzolo v. Rhode Island, 533 U.S. 606, 121 S. Ct. 2448 (2001), for the proposition that it "suggests that a dockominium owner would have a ripened takings claim in *830the 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 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 *831something 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.