Citizens for Sensible Zoning, Inc. v. Department of Natural Resources, Columbia County

Decision Date29 June 1979
Docket NumberNo. 76-132,76-132
Citation90 Wis.2d 804,280 N.W.2d 702
PartiesCITIZENS FOR SENSIBLE ZONING, INC., an Association Incorporated Under the Laws of Wisconsin, and representing its members, Respondent, v. DEPARTMENT OF NATURAL RESOURCES, COLUMBIA COUNTY, and Robert Irwin, Columbia County Zoning Administrator, Appellants.
CourtWisconsin Supreme Court

Shari Eggelson, Asst. Atty. Gen. (argued), for appellant Department of Natural Resources; Bronson C. La Follette, Atty. Gen., and John E. Kofron, Asst. Atty. Gen., on brief.

Richard O. Wright, Oxford (argued), for respondent; Thompson & Wright, Oxford, on brief.

ABRAHAMSON, Justice.

The Wisconsin Department of Natural Resources (DNR) appeals from an order of the circuit court for Columbia County denying DNR's motion to dismiss the declaratory judgment action commenced by Citizens for Sensible Zoning, Inc., challenging the flood plain ordinance adopted by the DNR pursuant to sec. 87.30, Stats.1973. We reverse the order.

Pursuant to sec. 87.30(1), Stats.1973, 1 upon petition of twelve freeholders in Columbia County the DNR held hearings and on February 22, 1974, issued an order fixing the limits of a flood plain in the unincorporated areas of Columbia County. On March 24, 1975, after further public hearings, the DNR issued an order which found that Columbia County had not enacted a reasonable and effective flood plain zoning ordinance and which adopted a zoning ordinance for the delineated flood plain.

After the DNR delineated the Columbia County flood plain but before it held hearings on a proposed flood plain zoning ordinance, Citizens for Sensible Zoning, Inc. (CSZ) was incorporated with its stated purpose being to promote fair and just zoning laws and ordinances for Columbia County. Most if not all of the members of CSZ then had interests in land lying within the newly delineated Columbia County flood plain. The individuals who had organized CSZ had appeared at the previous hearings concerning the delineation of the flood plain, and CSZ representatives appeared and participated at the DNR hearing on the proposed flood plain ordinance.

No one sought judicial review of either the February 22, 1974 DNR order delineating the flood plain or the March 24, 1975 DNR order adopting the flood plain ordinance.

On February 17, 1976, more than ten months after the DNR promulgated the Columbia County flood plain zoning ordinance, CSZ sought a declaratory judgment in the circuit court for Columbia County under sec. 269.56, Stats.1973, 2 that the DNR flood plain zoning ordinance and sec. 87.30, Stats.1973, were invalid. CSZ also prayed that the DNR, Columbia County, and the Columbia County Zoning Administrator be enjoined from enforcing the DNR-promulgated zoning ordinance against members of CSZ.

DNR moved to dismiss the counts of the complaint which challenge the DNR's flood plain zoning ordinance on the ground that the DNR's adoption of the ordinance pursuant to sec. 87.30 is reviewable under sec. 227.15, Stats.1973, 3 that such judicial review is exclusive, and that CSZ having failed to seek judicial review within the thirty-day time limit prescribed for such review by sec. 227.16(1), 4 Stats.1973, is barred from seeking review. The DNR appeals from the order of the circuit court denying its motion. We reverse the order and remand the cause.

Sec. 87.30(1), Stats.1973, authorizing the DNR to promulgate a county flood plain zoning ordinance, prescribes these administrative proceedings and actions:

(1) The DNR, after public hearing, "determines" and fixes by "order" the limits of any or all flood plains within the county.

(2) The DNR makes a "decision" in writing of the insufficiency of a county flood plain zoning ordinance before adopting a flood plain zoning ordinance.

(3) The DNR, after further public hearing, adopts a flood plain zoning ordinance applicable to the county and superceding any county ordinance.

Section 87.30(1), Stats.1973, provides that "(a)ll final orders, determinations or decisions made under this subsection shall be subject to review under ch. 227 . . . ." (Emphasis added.) Sec. 87.30(1) does not characterize the third type of administrative action it authorizes, viz. the adoption of a flood plain zoning ordinance, as a final order, determination or decision. 5 CSZ maintains that the phrase "(a)ll final orders, determinations or decisions" does not include within its scope a sec. 87.30(1) flood plain zoning ordinance and that therefore the ordinance is not subject to review under ch. 227.

We conclude that CSZ's reading of the phrase "(a)ll final orders, determinations (and) decisions" is contrary to the legislative intent of sec. 87.30(1), Stats.1973. Sec. 87.30(1) authorizes a series of proceedings and actions by the DNR that culminates in the DNR's promulgation of a flood plain zoning ordinance. The legislature set forth three interrelated aspects of flood plain zoning by the DNR: determining the limits of the flood plain; deciding whether a flood plain zoning ordinance adopted by a local unit of government is insufficient; and adopting a flood plain zoning ordinance. CSZ apparently does not contend that either of the first two types of administrative proceedings and actions authorized by sec. 87.30(1) is outside the scope of the phrase "(a)ll final orders, determinations or decisions." 6

It appears that the DNR flood plain zoning ordinance cannot be reviewed fully without inquiry into the agency proceedings and actions that preceded its promulgation. Judicial review of the flood plain zoning ordinance itself will typically, as here, involve a review of the determination of the flood plain limits and of the decision regarding the sufficiency of a county flood plain zoning ordinance. 7 It is therefore appropriate that flood plain zoning ordinances adopted by the DNR be subject to review under ch. 227, the administrative procedure act. We cannot in the absence of evidence to the contrary accept CSZ's argument that the legislature intended to exclude from review under ch. 227 the zoning ordinance, whose promulgation is the goal of the various agency actions in sec. 87.30(1), while nonetheless providing ch. 227 review for the preliminary actions. 8 We therefore conclude that a flood plain zoning ordinance adopted by the DNR pursuant to sec. 87.30(1) is a final order, determination or decision made under that section and is therefore subject to review under ch. 227, Stats. 9

Although sec. 87.30 states that judicial review shall be pursuant to ch. 227, Stats., it does not specify which provisions of ch. 227, Stats., shall apply.

Chapter 227 of the statutes provides judicial review for two distinct types of administrative agency actions: rules (sec. 227.05, Stats.) 10 and administrative decisions (sec. 227.15 Et seq., Stats.). 11 The DNR asserts that a flood plain zoning ordinance adopted under sec. 87.30 is an administrative decision and that CSZ failed to petition for review within the thirty-day time limit provided by sec. 227.16(1), Stats.1973. We conclude however that the flood plain zoning ordinance adopted by the DNR under sec. 87.30 is a rule, subject to judicial review pursuant to sec. 227.05, Stats. For that reason we hold that CSZ may not maintain the present declaratory judgment action under sec. 269.56, Stats.1973, but may maintain an action for declaratory judgment as to the validity of the rule in the circuit court for Dane County pursuant to sec. 227.05, Stats.

The term "administrative decision" used in sec. 227.15 is not defined in chapter 227. However the term "rule" is defined in sec. 227.01(3), Stats.1973, as follows:

"(3) 'Rule' means a regulation, standard, statement of policy or general order (including the amendment or repeal of any of the foregoing), of general application and having the effect of law, issued by an agency to implement, interpret or make specific legislation enforced or administered by such agency or to govern the organization or procedure of such agency."

Thus a rule for purposes of ch. 227 is (1) a regulation, standard, statement of policy or general order; (2) of general application; (3) having the effect of law; (4) issued by an agency; (5) to implement, interpret or make specific legislation enforced or administered by such agency as to govern the interpretation or procedure of such agency.

A flood plain zoning ordinance adopted pursuant to sec. 87.30 satisfies these criteria.

Although the DNR argues otherwise, we conclude that the ordinance is "a regulation . . . or general order of general application." It is not always easy to determine whether an agency action is a rule and is of general application or is a determination which affects specific parties. 12 The Columbia County flood plain zoning ordinance applies only to land within the flood plain in unincorporated areas of Columbia County. The ordinance restricts the conduct of only those persons with a legal interest in such land. Nevertheless, to be of general application, a rule need not apply to all persons within the state. Even though an action applies only to persons within a small class, the action is of general application if that class is described in general terms and new members can be added to the class. Thus we held that an instruction by an administrative agency applying only to partners in licensed real estate partnerships is of general application within the meaning of ch. 227. Frankenthal v. Wisconsin Real Estate Brokers' Board, 3 Wis.2d 249, 257b, 88 N.W.2d 352, 89 N.W.2d 825 (1958). We conclude that the Columbia County flood plain zoning ordinance is a regulation of general application.

Under sec. 227.01(3) a rule must not only have general application, but also "have the effect of law" and be "issued by an agency to implement, interpret or make specific legislation enforced or administered by such agency or to govern the organization or procedure of such agency." The...

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