¶ 34. (dissenting). I agree with the majority opinion on the first issue presented for review: whether the navigable waterway in the instant case legally divides the subject parcel into two or more parcels. The answer is "no."
¶ 35. I cannot, however, join the majority opinion for two reasons:
(1) I do not understand why the majority opinion concludes that the bed of a navigable stream is included in the definition of "lot" and in the calculation of lot area and why a calculation of lot area depends on how wide the navigable stream is. A navigable waterway should not be used to calculate lot area or lakeshore frontage.
*346(2) The case should be remanded to the circuit court to decide issues not addressed by the majority opinion. I would remand the cause to the circuit court to determine whether the condominium parcel should have been reviewed according to local land division rules (including deciding whether this matter is barred by claim preclusion) and to determine what effect, if any, the amended Sawyer County ordinances have on the instant case.
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¶ 36. I cannot follow the majority opinion's discussion of the definition of "lot" in the zoning ordinance. See majority op., ¶¶ 21-24. The majority opinion appears to hold that the definition of "lot" and the calculation of lot area for a parcel include the bed of the navigable stream "owned" by the riparian owner, and then concludes that the width of this stream bed must also be included in lakeshore frontage. Majority op., ¶¶ 26-27.
¶ 37. The majority opinion, however, also concludes that the definition of "lot" is a "functional one." Majority op., ¶ 26. Then why isn't it more logical to hold that because public highways are not included in the definition of "lot" or in the calculation of lot area because no building is permitted on the highway, other public thoroughfares that the "owner" cannot build on or freely use (that is, similarly non-functional spaces), like navigable waterways, ought not count in the definition or "lot," or in the calculation of lot area, or in the calculation of lakeshore frontage? Thus, regardless of whether the parcel at issue is one lot or whether the navigable water divides the parcel into two lots, the width of the navigable water should not count in the calculation of lakeshore frontage.
*347¶ 38. Because it focuses on a "functional" definition of "lot," the majority opinion concludes that "[t]hat definition may prevent a parcel with a very wide meandering stream from meeting the zoning ordinance's definition of a 'lot'...." Majority op., ¶ 26. Why would the width of the navigable stream change the definition of "lot" or calculation of lot area under the zoning ordinance? How wide does the navigable stream have to be to be too wide under ¶ 24 of the majority opinion?
¶ 39. I also do not understand how, on the one hand, the majority opinion can conclude that the "functional" definition of "lot" and lot area is useful in determining the effect of a navigable waterway in determining lot area and, on the other hand, declare unpersuasive the 1977 attorney general opinion that took a functional approach to calculating lot size. Both the majority opinion and the 1977 attorney general opinion examine whether navigable waterways can be used in determining "lot" measurements, like lot area. Both recognize that the question of what constitutes a "lot" is a matter of the function of the ordinance in question. Yet, the majority opinion, without recognizing the irony and inconsistency of its position, scoffs at the reasoning and conclusion of the 1977 attorney general opinion.
II
¶ 40. Even though I agree with the majority opinion's holding that a navigable stream meandering over a parcel does not divide the parcel into two parcels when the same riparian owner holds title to the property on both shores of the stream, majority op., ¶ 2,1 *348would remand the cause to the circuit court to address two issues that are not sufficiently addressed by the majority opinion.
¶ 41. First, more consideration than the majority opinion's two paragraphs (¶¶ 31-32) should be given to the State's well-developed argument that the condominium parcel resulted from a subdivision of land that was subject to (but did not get) subdivision review pursuant to Wis. Admin. Code § NR 115.05(4) and the Sawyer County Subdivision Control Ordinance § 2.4. FAS had one parcel of land (Government Lot 4) from which it allegedly carved off two parcels of land. The "remaining portion" of Government Lot 4 was later recorded as a condominium parcel. Wasn't this "remaining portion" of the original lot, in effect, the third piece of land created by the subdivision? Sounds to me like a good argument worthy of a court's full consideration. FAS argues that this argument was waived, or in the alternative, is barred by claim preclusion.1 A decision on this subdivision issue may be determinative of all issues presented in the instant case. I would remand to the circuit court to decide this issue.
¶ 42. Second, the County amended the ordinances governing lot area and land division after the Board decided the present matter. Navigable waterways are now excluded from the definition of "lot, area" and navigable waterways now divide a contiguous parcel of land. The majority opinion acknowledges this change in *349a footnote but fails to analyze the effect, if any, of the amendments. Majority op., ¶ 27 n.ll. The circuit court should determine whether the amended ordinances affect the calculation of lakeshore frontage in the present case.
¶ 43. For the reasons set forth, I write separately.
¶ 44. I am authorized to state that Justice ANN WALSH BRADLEY joins this opinion.
In Sawyer County Circuit Court Case No. 2004CV139, Appeal No. 2005AP1691, the Town and County challenged whether the other two parcels complied with certain zoning regulations. That case, however, did not involve the remaining portion of the land (what is now the condominium parcel) nor was the State a party.