American Transmission v. Dane County
| Decision Date | 23 July 2009 |
| Docket Number | No. 2008AP2604.,2008AP2604. |
| Parties | AMERICAN TRANSMISSION CO., LLC, Plaintiff-Respondent, v. DANE COUNTY, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
On behalf of the defendant-appellant, the cause was submitted on the briefs of Marcia MacKenzie, Dane County Corporation Counsel, and Leslie A. Hamilton, Assistant Corporation Counsel.
On behalf of the plaintiff-respondent, the cause was submitted on the brief of Brady C. Williamson and David J. Giles of Godfrey & Kahn, S.C., Madison.
A nonparty brief was filed by Jennifer E. Nashold and David A. Ludwig, Madison, for the Public Service Commission of Wisconsin.
Before DYKMAN, VERGERONT and PETERSON, JJ.
This action for a declaratory judgment arises out of a dispute between American Transmission Co., LLC, and Dane County over whether the construction of three transmission lines in Dane County are subject to county ordinance requirements for various permits. The construction projects were each authorized by the Wisconsin Public Service Commission (PSC) through the issuance of a certificate of public convenience and necessity. The circuit court agreed with American Transmission that Dane County does not have the authority to enforce any ordinance with respect to matters that were or could have been addressed by the PSC in the proceedings on the certificates. Dane County appeals, contending that the circuit court erred in its construction and application of WIS. STAT. § 196.491(3)(i) (2007-08),1 which provides: "If installation or utilization of a facility for which a certificate of convenience and necessity has been granted is precluded or inhibited by a local ordinance, the installation and utilization of the facility may nevertheless proceed." Id.
¶ 2 We conclude that in WIS. STAT. § 196.491(3)(i) the legislature has expressly withdrawn the power of municipalities to act, once the PSC has issued a certificate of public convenience and necessity, on any matter that the PSC has addressed or could have addressed in that administrative proceeding. We also conclude that the local power that is withdrawn by the statute includes requiring the application for local permits of the type that are in dispute in this case. Accordingly, we affirm the circuit court.
¶ 3 American Transmission proposed to build three separate high-voltage transmission lines within Dane County. WISCONSIN STAT. § 196.491(3)(a) and (1)(e) prohibit a person from beginning construction on a high voltage transmission line unless the PSC has issued a certificate of public convenience and necessity.2 American Transmission applied for a certificate of public convenience and necessity for each of the projects and the PSC issued an order for each project granting a certificate, with the first order issued in July 2007 and the third issued in June 2008.
¶ 4 American Transmission involved Dane County officials in certain aspects of the planning of these projects, particularly the two that were wholly within Dane County and involved new rights-of-way. After the first of the three certificates was issued, Dane County took the position that construction could not begin on that project until American Transmission obtained a shoreland erosion control permit under Dane County, Wis., Ordinances § 11.05 (2007) ("Shoreland Erosion Control") and a wetland zoning permit under DANE COUNTY, WIS., ORDINANCES § 11.08(4) (2007) ("Uses . . . Allowed in Shoreland-Wetland . . . Districts Subject to . . . Zoning (Land Use) Permit"). With respect to the second project, Dane County's position was that a general erosion control permit under Dane County, Wis., Ordinances ch. 14 (2009) (". . . Erosion Control and Stormwater Management") was necessary. American Transmission did not apply for these permits because of its view that the county permit process would "inhibit" the construction of the projects within the meaning of WIS. STAT. § 196.491(3)(i) and Dane County therefore did not have the authority to require these permits.
¶ 5 As soon as the PSC issued a certificate of public convenience and necessity for the third project, American Transmission filed this action seeking a judgment declaring that Dane County does not have the authority to require permits relating to the construction of projects for which the PSC has issued a certificate of public convenience and necessity under WIS. STAT. § 196.491(3). The circuit court denied Dane County's motion for summary judgment and entered summary judgment in favor of American Transmission. The court concluded that § 196.491(3)(i) preempts a local ordinance where the PSC or the Department of Natural Resources (DNR), acting in partnership with the PSC,3 has the authority to consider the same subject matter as that of the ordinance in issuing a certificate of public convenience and necessity. Accordingly, the court entered a judgment declaring that Dane County does not have the authority to enforce or apply any ordinance with respect to matters that were addressed or could have been addressed in any administrative proceeding conducted either by the PSC or the DNR concerning American Transmission's applications for certificates of public convenience and necessity.
¶ 6 On appeal Dane County challenges the circuit court's construction of WIS. STAT. § 196.491(3)(i), asserting that the plain language of the statute does not prevent local regulation unless it "blocks" a project. Dane County contends that simply requiring American Transmission to apply for permits does not have that effect. According to Dane County, the statute does not expressly preempt local regulation and the alternative standards for establishing preemption are not met.
¶ 7 American Transmission responds that WIS. STAT. § 196.491(3)(i) plainly and expressly preempts the local ordinances Dane County seeks to enforce. According to American Transmission, requiring American Transmission to apply for permits under the Dane County ordinances on shoreland erosion control, wetland zoning, and general erosion control would plainly "inhibit" the construction of the three projects for which the PSC has issued certificates of public convenience and necessity.4
¶ 8 We review de novo the grant or denial of summary judgment, employing the same methodology as the circuit court. Green Spring Farms v. Kersten, 136 Wis.2d 304, 314-15, 401 N.W.2d 816 (1987). Where, as here, there are no material factual disputes, the issue is which party is entitled to judgment as a matter of law. See WIS. STAT. § 802.08(2). In this case the answer to that question requires that we interpret WIS. STAT. § 196.491(3)(i) in the context of the preemption doctrine.5
¶ 9 Under the preemption doctrine, where a matter is of statewide concern, local control must yield if: (1) the legislature has clearly and expressly withdrawn the power of municipalities to act; (2) the local regulation logically conflicts with state legislation; (3) the local regulation defeats the purpose of state legislation; or (4) the local regulation violates the spirit of state legislation. DeRosso Landfill Co. v. City of Oak Creek, 200 Wis.2d 642, 657, 547 N.W.2d 770 (1996). Dane County does not dispute that the regulation of high-voltage transmission lines is a matter of statewide concern.
¶ 10 We agree with the circuit court and American Transmission that there is preemption on the first ground—express withdrawal in WIS. STAT. § 196.491(3)(i) of the power of municipalities to act. We therefore do not address Dane County's argument that there is no preemption on the other grounds.
¶ 11 WISCONSIN STAT. § 196.491(3)(i) provides: "If installation or utilization of a facility for which a certificate of convenience and necessity has been granted is precluded or inhibited by a local ordinance, the installation and utilization of the facility may nevertheless proceed." Because the supreme court in RURAL v. PSC, 2000 WI 129, 239 Wis.2d 660, 619 N.W.2d 888, has interpreted § 196.491(3)(i) and applied it in a context that is relevant to this case, we begin our analysis with a discussion of RURAL.
¶ 12 In RURAL the Village of Rockdale opposed some of the conditions the PSC imposed in a certificate of public convenience and necessity on the ground that the conditions "had the effect of wrongfully excluding Rockdale from its extraterritorial zoning authority over the Town of Christiana." RURAL, 239 Wis.2d 660, ¶ 64, 619 N.W.2d 888. The condition Rockdale pointed to as an example provided that the company constructing the power plant "`shall seek [certain rezoning] from the town of Christiana and, if applicable, the village of Rockdale. . . .'" Id. The court rejected Rockdale's position, concluding that the PSC had "reasonably interpreted and applied statutory authority [WIS. STAT. § 196.491(3)(i)] that precludes zoning or other local ordinances from inhibiting the construction or operation of a facility." Id., ¶ 65.
¶ 13 In arriving at this conclusion, the court in RURAL stated that the Id. While the court noted that it was unnecessary to look to legislative history, it did so and concluded the legislative history supported its construction of the statute. "According to the legislative analysis . . . one of the three effects of a certificate is to abrogate those local zoning ordinances that would impede the construction of a facility that was found to be of public convenience and necessity." Id., ¶ 66 (). The court emphasized that §...
To continue reading
Request your trial
- Thom v. 1st Auto & Cas. Ins. Co.
-
Thom v. 1st Auto & Cas. Ins. Co.
...of an insurance policy presents a question of law); American Transmission Co. v. Dane Cnty., 2009 WI App 126, ¶8 n.5, 321 Wis. 2d 138, 772 N.W.2d 731 (providing that a request for declaratory judgment that turns upon the interpretation of a statute presents a question of law). We review the......
- State v. Stanley (In re Commitment of Stanley)
- Milwaukee Police Ass'n v. Flynn