Capoun Revocable Trust v. Ansari
| Decision Date | 16 March 2000 |
| Docket Number | No. 99-1146.,99-1146. |
| Citation | 234 Wis.2d 335,610 N.W.2d 129,2000 WI App 83 |
| Parties | George J. and Mary V. CAPOUN REVOCABLE TRUST, and George J. and Mary V. Capoun as Trustees, Plaintiffs-Appellants, v. Aftab ANSARI, David H. Schwarz, Department of Administration, Division of Hearings and Appeals, and George Meyer, Secretary, Department of Natural Resources, Defendants-Respondents. |
| Court | Wisconsin Court of Appeals |
On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Walter W. Stern of Law Office of Walter W. Stern of Union Grove.
On behalf of the defendant-respondent Aftab Ansari, the cause was submitted on the brief of Charles J. Labanowsky of Labanowsky & Associates, S.C. of Kenosha.
On behalf of the defendants-respondents DOA and DNR, the cause was submitted on the brief of James E. Doyle, attorney general, and Steven B. Wickland, assistant attorney general.
Before Eich, Vergeront and Roggensack, JJ.
¶ 1.
This appeal arises out of an action George and Mary Capoun2 filed in Dane County Circuit Court seeking to prevent the Department of Administration (DOA) from holding a hearing on Aftab Ansari's request that the Department of Natural Resources (DNR)3 issue a permit for a retention pond he had already constructed on his property. The circuit court granted summary judgment dismissing the Capoun's action. On appeal, the Capouns argue that the DNR did not have subject matter jurisdiction to issue a permit to Ansari for the retention pond because it had already been constructed and the statutes limit the DNR's authority to issue permits to those instances where construction has not yet begun. The Capouns also contend that the granting of this permit denied them due process of law. We conclude that the DNR has subject matter jurisdiction to issue permits relating to waterways, both before and after construction has commenced. We also conclude that the Capouns' claim that they were denied due process is without merit. Accordingly, we affirm the circuit court.
¶ 2. The relevant facts are largely undisputed. The Capouns own property that lies adjacent to property owned by Ansari. Sometime during 1995 or 1996, Ansari constructed a retention pond on his property. The Capouns claim that the pond has created an increase in the water flowing onto their property, causing damage to them.
¶ 3. Ansari did not apply for a WIS. STAT. § 30.19 (1997-98)4 permit5 from the DNR prior to beginning construction of the pond. Ansari did, however, apply for a permit after the pond was constructed. The Capouns, opposing the issuance of the permit, filed objections with the DNR. They also commenced this action seeking a permanent injunction against the DOA and the DNR to prevent them from holding a contested case hearing for the permit Ansari was seeking. However, after the Capouns made their objections, the DOA held a formal contested case hearing to determine whether the DNR should issue a permit for the pond.
¶ 4. It appears that the Capouns had notice of, and also participated in, the hearing, which lasted three days.6 However, before the hearing examiner issued his decision about whether to issue a permit, the Capouns moved for summary judgment in this case, arguing that the DNR did not have subject matter jurisdiction necessary to issue an after-the-fact permit. They also claimed that they were denied the use of their land without due process of law. Before the circuit court ruled on the Capouns' motion, the DNR issued written findings of fact and conclusions of law, granting Ansari the permit. The Capouns appealed that determination to the circuit court in Kenosha County in a WIS. STAT. ch. 227 proceeding.7 Therefore, the procedure used by the DNR in its hearing and the merits of its decision to issue a permit are not before this court on appeal. Later, in the case now before us, the circuit court concluded that the DNR had the authority to issue permits after-the-fact and that no due process violation had been demonstrated. Therefore, it granted summary judgment in favor of Ansari, the DNR and the DOA. It is from this decision that the Capouns appeal.
Standard of Review.
[1]
¶ 5. A grant or denial of summary judgment is an issue of law which we review de novo, applying the same methodology as the circuit court. See Smith v. Dodgeville Mut. Ins. Co., 212 Wis. 2d 226, 232, 568 N.W.2d 31, 34 (Ct. App. 1997)
. We first examine the complaint to determine whether it states a claim, and then we review the answer to determine whether it joins a material issue of fact or law. See id. If we conclude that the complaint and answer are sufficient to join issue, we examine the moving party's affidavits to determine whether they establish a prima facie case for summary judgment. See id. at 232-33, 568 N.W.2d at 34. If they do, we look to the opposing party's affidavits to determine whether there are any material facts in dispute which entitle the opposing party to a trial. See id. at 233, 568 N.W.2d at 34.
review denied, 225 Wis. 2d 489, 594 N.W.2d 383 (1999). If the construction of a statute involves the scope of an agency's power, we do not give any deference to the opinion of the agency, but rather, we interpret the statute de novo. See Loomis v. Wisconsin Personnel Comm'n, 179 Wis. 2d 25, 30, 505 N.W.2d 462, 464 (Ct. App. 1993). We also review allegations of due process violations de novo. See Tateoka v. City of Waukesha Bd. of Zoning Appeals, 220 Wis. 2d 656, 669, 583 N.W.2d 871, 876 (Ct. App. 1998).
Authority to Issue After-the-Fact Permits.
[4]
¶ 7. The Capouns assert that whether the DNR has the authority to issue a permit after-the-fact is a question of subject matter jurisdiction, requiring a de novo review by this court. When we are asked to construe the breadth of power an agency has been delegated by the legislature, we note that, as a creature of the state, an agency has only those powers the state has given it. See Silver Lake Sanitary Dist. v. DNR, 232 Wis. 2d 217, 221, 607 N.W.2d 50, 52 (Ct. App. 1999)
; Jocz v. LIRC, 196 Wis. 2d 273, 291-92, 538 N.W.2d 588, 593 (Ct. App. 1995).
¶ 8. The DNR and Ansari, without contesting the framing of the issue as one of subject matter jurisdiction,8 urge us to defer to the DNR's interpretation of the statute, citing Harnischfeger Corp. v. LIRC, 196 Wis. 2d 650, 539 N.W.2d 98 (1995), and its progeny, which set forth levels of deference that are often applied to statutory interpretations by agencies. However, the standards of deference set out in Harnischfeger have no relevance when we are asked to determine whether an agency has subject matter jurisdiction to take a particular action, as we have been here.9 As we stated above in setting out the standard of review for the various issues addressed in this opinion, if an agency's construction of a statute involves interpreting the scope of the agency's power, we do not give any deference to the opinion of the agency, but rather, we interpret the statute de novo. See Loomis, 179 Wis. 2d at 30,
505 N.W.2d at 464; Froebel v. DNR, 217 Wis. 2d 652, 662-63, 579 N.W.2d 774, 779 (Ct. App. 1998).
¶ 9. It is WIS. STAT. § 30.19 which we are asked to construe in this appeal. It provides in relevant part:
[5]
¶ 10. The Capouns contend that because WIS. STAT. § 30.19(2) clearly states that a permit must be obtained before work is undertaken, the DNR has no subject matter jurisdiction to consider any requests for after-the-fact permits. The Capouns' argument presents a question of statutory construction. Our goal in interpreting a statute is to discern legislative intent and to give meaning to the statute which comports with that intent. See Rolo v. Goers, 174 Wis. 2d 709, 715, 497 N.W.2d 724, 726 (1993)
. We first look to the statutory language; and if it is clear and unambiguous on its face, we apply that language. See State v. Michael J.W., 210 Wis. 2d 132, 146, 565 N.W.2d 179, 186 (Ct. App. 1997). However, an "unambiguous statute can be rendered ambiguous by its interaction with and its relation to other statutes." A. v. Racine County, 119 Wis. 2d 349, 351, 349 N.W.2d 743, 744 (Ct. App. 1984) (citation omitted).
¶ 11. We note that the legislature formed the DNR in 1965 "`to protect human life and health, fish and aquatic life, scenic and ecological values and domestic, municipal, recreational, industrial, agricultural and other uses of water.'" See Reuter v. DNR, 43 Wis. 2d 272, 275-76, 168 N.W.2d 860, 861 (1969)
(citation omitted). In creating WIS. STAT. ch. 30, the legislature established a framework to regulate the state's navigable waters and delegated the enforcement of ch. 30 to the DNR. WISCONSIN STAT. § 30.19 specifically contemplates that the DNR will be responsible for balancing competing interests in the use of state waters, requiring the DNR to deny a permit if the project will cause a "material injury to the rights of any riparian owners. ..." See § 30.19(4). Therefore, we conclude that the DNR has been charged by the legislature with administering permits relating to waterways pursuant to § 30.19.
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