(dissenting).
¶ 37. The majority opinion reaches an unfortunate result that diminishes the constitutionally protected public trust rights of all Wisconsin residents in the state's navigable waters. I hesitate to write these words for fear that by shining light on what the majority is doing, I may be compounding the damage that flows from its decision. Yet, I conclude that even a superficial reading of the majority's opinion renders the damage self-exposed.
¶ 38. By declining to admit that it is overruling State v. Kenosha County Bd. of Adjustment, 218 Wis. 2d 396, 577 N.W.2d 813 (1998), the majority attempts to camouflage the consequences of its decision. Instead of forthrightly acknowledging its actions, the majority simply concludes that the holding of Kenosha County is "no longer applicable." Majority op., ¶ 2. What is the *574functional difference between a holding that is overruled and one that is "no longer applicable"? This sub-rosa approach undermines rather than promotes the principle of stare decisis.
¶ 39. More troublesome than the majority's camouflage, however, are the consequences of its decision. The unfortunate result of the majority opinion is that it sacrifices the constitutionally protected public trust rights that all citizens have in the navigable waters of this state in order to promote the local private interests of a few. By functionally overruling Kenosha County, it relaxes the standard necessary to obtain a shoreland variance. In emphasizing flexibility for local boards of adjustment and presuming that their decisions are correct, the majority dilutes appellate review, which will invariably undermine the legislative directive for uniformity of shoreland zoning. Cumulatively, such an approach will vitiate the purposes behind shoreland regulations of preserving the public interest in shore-land and the navigable waters of this state.
I. The Public Interest
¶ 40. In Wisconsin, local boards of adjustment are authorized to grant variances from terms of a zoning ordinance only when specific conditions are met. Wisconsin Stat. § 59.694(7)(c) authorizes boards to grant variances that:
[1] will not be contrary to the public interest, where, [2] owing to special conditions, [3] a literal enforcement of the provisions of the ordinance will result in unnecessary hardship, and so that [4] the spirit of the ordinance shall be observed and substantial justice done.
(Emphasis added.)
*575¶ 41. The threshold requirement for granting a variance is that it not be contrary to the public interest. The legislature has long recognized that strict regulation of buildings near shorelands is,necessary to safeguard the constitutionally protected interests of the public in the state's navigable waters. Wis. Const. Art. IX, § 1 ("Jurisdiction on Rivers and Lakes; Navigable Waters").1
¶ 42. In 1965, the legislature passed the Navigable Waters Protection Law, which mandated that all counties enact shoreland zoning ordinances. The law provides that the purposes of shoreland zoning standards shall "further the maintenance of safe and healthful conditions; prevent and control water pollution; protect spawning grounds, fish and aquatic life; control building sites, placement of structures and land uses and reserve shore cover and natural beauty." See Ch. 614, Laws of 1965, § 42, creating Wis. Stat. § 144.216 (now Wis. Stat. § 281.31(1)).
¶ 43. To aid in the fulfillment of the state's role as trustee of its navigable waters, the legislature directed the Department of Natural Resources to establish minimum standards for shoreland ordinances. Wis. Stat. § 281.31(6). The shoreland setback is the centerpiece of those minimum standards. It protects the value and views of the lakeshore property. The setback further serves as a visual and ecological buffer between protected public rights in navigable waters and develop*576ment in adjacent lands. See Tracy K. Kuczenski, Wisconsin's Shoreland Management Program: An Assessment With Implications for Effective Natural Resources Management and Protection, 1999 Wis. L. Rev. 273, 283-84.
¶ 44. Under the current zoning system, state law requires every county to "zone by ordinance all shore-lands in its unincorporated area." Wis. Stat. § 59.692(lm). Additionally, it requires the ordinance to meet certain shoreland zoning standards. Wis. Stat. § 59.692(6). If the county does not adopt a shoreland zoning ordinance or the state determines that an adopted ordinance does not meet the shoreland zoning standards, the state will adopt an ordinance for the county. Id. Accordingly, it is clear that "[Hands adjacent to or near navigable waters exist in a special relationship to the state." Just v. Marinette County, 56 Wis. 2d 7, 18, 201 N.W.2d 761 (1972).
II. The Standard
¶ 45. The controlling authority for shoreland zoning setback requirements was Kenosha County, a case decided unanimously by this court six years ago. By functionally overruling Kenosha County, the majority lowers the standard that must be met in order to obtain a shoreland variance. Consequently, it diminishes the protection afforded to shorelands and navigable waters.
¶ 46. In Kenosha County, a property owner sought a variance enabling her to build a deck into protected shorelands. 218 Wis. 2d at 398. The proposed deck would have reduced her shoreline setback to 64 feet. Id. at 401. This court considered whether the Kenosha County Board of Adjustment applied the cor*577rect legal standard for determining "unnecessary hardship" in order to grant a petition for the variance. Id. at 398.
¶ 47. The Outagamie County concurrence of Justices Crooks and Wilcox2 aptly summarized the Kenosha County holding. It noted that the issue before the court was the definition of "unnecessary hardship," (the very same issue in this case). See State v. Outagamie County Bd. of Adjustment, 2001 WI 78, ¶ 73, 244 Wis. 2d 613, 628 N.W.2d 376 (Crooks, J., concurring). The state wanted to define it as "no reasonable use," while the property owner wanted to define it as "unnecessarily burdensome." Id. The concurrence explained that the majority's holding in Kenosha County was that the state's standard of "no reasonable use" better incorporated the purpose underlying the shoreland regulations. Id. It observed:
Kenosha County did consider the parties' definition of the unnecessary hardship standard in fight of the purpose of the shoreland zoning regulations at issue. The State proffered a "no reasonable use in the absence of a variance" standard; the Board proffered an "unnecessarily burdensome" standard. Id. at 411-12. This court concluded that the State's test better incorporated the purpose underlying the regulations, "to enforce a uniform setback that preserves the public's interest in shoreland and the navigable waters of the state." Id. at 413.
Id. (emphasis added).
¶ 48. Now, the majority does an about-face and concludes that the "unnecessarily burdensome" standard better promotes the underlying purposes of the *578shoreland regulation at hand. On its facts, Kenosha County cannot be meaningfully distinguished from the present case. Both involve a lakefront property owner seeking to expand an existing residence within (or into) the shoreland setback area.3 If anything, the facts in this case are more troubling than those of Kenosha County, for the petitioners' home is a nonconforming structure located a mere 30 to 34 feet from the water's edge and squarely within the shorelands of Silver Lake.4
¶ 49. Under the rule of stare decisis, similar facts should produce similar results. Adherence to stare decisis is critical because "[r]espect for precedent 'promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.'" Johnson Controls, Inc. v. Employers Ins. of Wausau, 2003 WI 108, ¶ 138, 264 Wis. 2d 60, 665 N.W.2d 257 (Wilcox, J., dissenting) (citation omitted).
¶ 50. However, the majority here abandons the "no reasonable use" standard and appears to adopt the very position advanced by the losing party in Kenosha County. Majority op., ¶ 2. This begs the question: what exactly is left of Kenosha County after today's decision?
*579¶ 51. Instead of answering this, the majority attempts to assuage readers' fears by noting that "the proposed addition would not bring the Howes' home any closer to Silver Lake." Id. In the context of state shorelands, such a comment ignores the cumulative effect of shoreland budding.
¶ 52. The Wisconsin Association of Lakes, an organization that represents the interests of thousands of lakeshore property owners all across Wisconsin, warns in its amicus brief, "[g]eneral availability of variances permitting the horizontal expansion of structures so close to the water's edge would have the cumulative effect of enclosing our inland lakes within a wall of impermeable surfaces to the exclusion of vegetation and impairing the ecological functions of the shoreland buffer."
¶ 53. Indeed, the cumulative effect of such changes was the very reason the Department of Natural Resources became involved in this case. See Hixon v. Public Service Comm., 32 Wis. 2d 608, 631, 146 N.W.2d 577 (1966) ("one fill, though comparatively inconsequential, may lead to another, and another, and before long a great body of water may be eaten away..."); Sterlingworth Condominium Ass'n v. DNR, 205 Wis. 2d 710, 721-22, 556 N.W.2d 791 (Ct. App. 1996) (DNR's public interest duty is to protect lakes against "cumulative impact").
¶ 54. Recognizing these concerns, the circuit court in this case concluded that the "no reasonable use" standard was appropriate. Ironically, it did so even after discussing and applying the Outagamie County concurrence relied upon by the majority. The circuit court stated, "I would find that the no reasonable use standard is implicated even under the Crooks-Wilcox analysis because of the shoreland zoning concerns being the *580background and the public interest accordingly." Although the majority acknowledges this fact in its opinion, majority op., ¶ 8, it makes no attempt explain it.
¶ 55. Apparently the circuit court is not alone in its interpretation of the principles set forth in the Outagamie County concurrence. The concurring opinion in Ziervogel v. Washington County Bd. of Adjustment, 2003 WI App 82, 263 Wis. 2d 321, 661 N.W.2d 884 (Brown, J., concurring), discussed the Outagamie County concurrence at length. It praised the concurrence as "nicely explaining]" and "nicely summing] up the law." Id., ¶ 31, ¶ 48. The opinion then cited it to explain why the distinction between area and use variances should be rejected in lieu of purpose. It observed, "Justice Crooks' concurrence teaches that there is no reason to hold on to the artificial distinctions of 'area variances' and 'use variances' and of 'unnecessary hardship' versus 'practical difficulties.'" Id., ¶ 40.
¶ 56. In describing the holding of Kenosha County, the concurring opinion in Ziervogel further relied on Justice Crooks and Justice Wilcox's analysis. It stated: "[T]he [.Kenosha County] court looked to the purpose of the shoreland zoning regulation at issue. It then decided that because the purpose of the shoreland zoning ordinance was being invaded by the requested variance, the 'no reasonable use' definition of unnecessary hardship should adhere." Id. (citations omitted).
¶ 57. Contrary to the Kenosha County holding, the majority adopts the lower standard of "unnecessarily burdensome." Its decision to do so is a perplexing one. The majority claims that it is not overruling Kenosha County, 218 Wis. 2d at 396. Majority op., ¶ 32. Yet, it reverses the court of appeals for relying upon that decision. Similarly, the majority purports to adopt the principles set forth in the concurrence in Outa-*581gamie County, 244 Wis. 2d 613. See id., ¶ 24. However, it disagrees with the circuit court, which applied those principles here.
III. The Consequences
¶ 58. The majority's decision to resurrect and apply the area-use distinction in the context of shore-land regulation is a dangerous one. Shoreland regulations, after all, consist primarily of area, not use restrictions.5 Under the majority opinion, the shoreland setback requirement will always be subject to the lesser standard of "unnecessarily burdensome" despite its central role in shoreland regulation.
¶ 59. The majority further undermines shoreland regulations by diluting appellate review. It grants great deference to boards of adjustment. Majority op., ¶ 25. The majority emphasizes that appellate courts should accord great flexibility to local boards and imbues their decisions with a presumption that they are correct. Id., ¶ 24. Yet in doing so, it ignores the threshold requirement that the variance must be in the public interest. Such presumptions and flexibility are inconsistent with the well-recognized legislative purposes underlying shoreland regulations of (1) uniformity of shoreland zoning and (2) preservation of the public's interest in shoreland and navigable waters of the state.6
*582¶ 60. The problem with the majority's approach is illustrated by the case at hand. Here, the petitioners had already obtained two variances from the local board to increase the size of their "cottage," one of which resulted in a direct loss of shoreland. They then sought and received a third variance to construct a 10-foot by 20.5-foot addition to their living room and to build a 4-foot by 10-foot porch. Although the petitioners' desire for a larger home is understandable, the sentiment that "more room would be nice" should not be treated as an "unnecessary hardship," regardless of the standard.
¶ 61. There may very well be legitimate arguments for the application of a more relaxed standard to determine unnecessary hardship when the variance involved does not implicate shorelands, a matter subject to specific legislative direction and constitutionally protected public interests. Perhaps in the non-shoreland context, there is even a place for distinguishing between area and use regulations. But those arguments have no place here, where the proposed variance would enlarge the existence of a nonconforming structure within the shoreland setback. In the context of *583environmental regulations such as shoreland zoning, the "no reasonable use" rule simply makes more sense. See David M. Freibus, A New Uncertainty in Local Land Use: A Comparative Institutional Analysis of State v. Outagamie County Board of Adjustment, 2003 Wis. L. Rev. 571, 609.
¶ 62. The majority opinion is consistent with the lead opinion in Outagamie County, 244 Wis. 2d at 613. One commentator viewed that lead opinion as preoccupied with "the rights of individual homeowners compromised for a vision of the greater good." Friebus at 606. The same malady is evidenced here. In the long run, such a preoccupation with the rights of individual property owners forfeits the rights of all citizens in the shorelands and navigable waters of this state.
¶ 63. Even in the short run, however, the majority opinion falls wide of the mark. By heralding the rights of individual property owners in the shorelands of this state, the majority is actually undermining the rights of the rest of the shoreland owners. The Wisconsin Association of Lakes advanced in its amicus brief that this court should retain the no reasonable use standard. That standard, it asserts, best protects the public resource while at the same time enhancing the economic value of their private land. It explained:
Some may find it ironic that the largest state association representing lakefront property owners would urge the Court to retain restrictive standards for building on lakeshores. After all, these are the property owners most directly regulated by shoreland zoning.
But WAL's members recognize that shoreland zoning is a win-win policy for riparian owners. It protects water quality and habitat values of the public resource at their borders, while supporting the economic value of *584their private land.... The investments of these property owners would be jeopardized by a relaxed variance standard....
¶ 64. In the end, I fear that the majority opinion threatens the public trust rights of all Wisconsin residents in the state's navigable waters. By striking a balance contrary to the public interest, its decision squarely conflicts with longstanding public policy in Wisconsin. Given the purpose of shoreland zoning, the public interest involved, and the principle of stare decisis, the standard set forth in Kenosha County should prevail in this case. Accordingly, I dissent.
¶ 65. I am authorized to state that SHIRLEY S. ABRAHAMSQN, C.J. joins this dissent.Although the public trust doctrine originally existed to protect commercial navigation, it has been expansively interpreted to safeguard the public's use of navigable waters for other purposes. R.W. Docks & Slips v. State, 2001 WI 73, ¶ 19, n. 1, 244 Wis. 2d 497, 628 N.W.2d 781. For a detailed discussion of the evolution of the public trust doctrine, see Muench v. PSC, 261 Wis. 492, 53 N.W.2d 514 (1952).
The concurrence of Justices Crooks and Wilcox in State v. Outagamie County Bd. of Adjustment, 2001 WI 78, 244 Wis. 2d 613, 628 N.W.2d 376, is hereinafter referred to as the Outa-gamie County concurrence.
The "shoreland setback area" is defined in Wis. Stat. § 59.692(1)(bn) as "an area in a shoreland that is within a certain distance of the ordinary high-water mark in which the construction or placement of buildings or structures has been limited or prohibited under an ordinance enacted under [section 59.692]."
Shorelands are defined as the area within 1000 feet from a lake, pond or flowage. See Wis. Stat. §§ 281.31(2)(f), and 59.692(l)(b).
Statewide minimum standards for county shoreland zoning ordinances include a minimum setback of 75 feet from the ordinary high-water mark for most structures, minimum lot sizes, and limitations on the clearing of vegetation within 35 feet of the ordinary high-water mark. Wis. Admin. Code ch. NR 115.05 (March 2004).
The majority attempts to address these concerns by emphasizing that "the Howes sought a variance from the 50 *582percent rule . .., not from a shoreland zoning provision." Majority op., ¶ 5, n. 7. Such a response merely continues the majority's effort to mask the consequences of its opinion.
I challenge the majority to boldly and clearly state: This opinion addresses only variances from the 50 percent rule. It does not implicate the standard for variances in the context of shoreland zoning.
The majority will not meet this challenge because it cannot. Indeed, from the beginning the circuit court judge realized that although this case was brought seeking a variance from the 50 percent rule, "the concerns of the State with regard to the water rights, with regard to the setbacks from bodies of water are implicated in this matter .. . ."