Larsen v. Munz Corp.

• Decision Date: 13 April 1992
• Docket Number: No. 91-2811,91-2811
• Citation: 167 Wis.2d 583,482 N.W.2d 332
• Parties: Robert W. LARSEN, Plaintiff-Appellant, v. MUNZ CORPORATION, and the State of Wisconsin Department of Administration, and its Secretary, James R. Klauser, Defendants-Respondents-Petitioners. . Opinion Filed
• Court: Wisconsin Supreme Court

Page 332

482 N.W.2d 332

167 Wis.2d 583

Robert W. LARSEN, Plaintiff-Appellant, v. MUNZ CORPORATION, and the State of Wisconsin Department of Administration, and its Secretary, James R Klauser, Defendants-Respondents-Petitioners.

No. 91-2811.

Supreme Court of Wisconsin.

Opinion Filed April 13, 1992.

Oral Argument Feb. 28, 1992.

For the defendants-respondents-petitioners there were briefs by David J. Harth, Douglas B. Clark and Foley & Lardner, Madison and oral argument by David J. Harth.

For the plaintiff-appellant there was a brief by Robert W. Larsen, Monona and oral argument by Robert W. Larsen.

PER CURIAM.

The Munz Corporation (Munz) and the State of Wisconsin Department of Administration (DOA) seek review of a published decision of the court of appeals, 166 Wis.2d 751, 480 N.W.2d 800 (Ct.App.1992). The court of appeals concluded that the DOA was required to obtain an Environmental Impact Statement (EIS) for the state administration building at 101 East Wilson Street in the City of Madison. That decision reversed, in part, the decision of the Dane County Circuit Court, P. Charles Jones, circuit judge, which determined that an EIS was not required, and instead ordered an Environmental Assessment (EA).

The single environmental concern involves "aesthetics," more particularly, the plaintiff's, Robert Larsen, and the public's view of the columns beneath the dome of the state capitol. Mr. Larsen's view of the dome is not obstructed. His view of part of the columns beneath the dome is obstructed.

The issue is not whether the building exceeds the statutory height limits of the State Capitol Preservation View act, sec. 16.842, Stats. The building does not exceed the statutory limits.

Nor is there any question raised that the DOA is attempting to hold itself to a lesser environmental standard than would apply to a private citizen or private business such as Munz. It is undisputed that if this were a wholly private development by Munz, it would not implicate any of the Wisconsin Environmental Policy Act's (WEPA) requirements. Here, the DOA has always recognized the applicability of WEPA.

The issue, rather, is whether the DOA was required to obtain an EIS for this project. ¹ In resolving this issue, we must first decide whether the DOA reasonably determined that this building was not a "Type I" action. Under the DOA's rules, any building that is a Type I automatically requires an EIS.

If the DOA's decision that this was not a Type I action was reasonable, we must further decide two questions: 1) whether the DOA's subsequent actions met the procedural requirements of the Wisconsin Environmental Policy Act (WEPA), and 2) whether the DOA's threshold determination that an EIS was not required was reasonable.

We conclude that it was reasonable for the DOA to determine that the building was not a Type I action. We agree with the DOA that this project was a "hybrid" in that it did not specifically fit into any of the particular category types contained in the DOA's WEPA regulations.

Such a determination by the DOA, however, does not exempt it from the procedural requirements of WEPA that there be an opportunity for public participation and a reviewable record assembled with respect to the threshold EIS decision. Because the DOA prepared both a Preliminary Environmental Impact Assessment (PEIA) and an EA which afforded the opportunity for public participation and a reviewable record on the question of the threshold EIS decision, we conclude that the DOA fully complied with the procedural requirements of WEPA.

Finally, given the presence of a PEIA and the assumed adequacy of the EA, we further conclude that the threshold decision of the DOA that an EIS was not required was reasonable. ²

Accordingly, we reverse the decision of the court of appeals.

I.

We begin with a review of the procedural history of this case. Larsen commenced this action seeking a declaration that the DOA was required to file an EIS under sec. 1.11, Stats., for this project. He alleged that the top two floors of the proposed ten-story building would obstruct his view of the capitol building, specifically the columns supporting the capitol dome. Larsen was the only plaintiff and as noted, his only environmental objection concerned the building's obstruction of the view of the capitol from his house and a nearby park.

The circuit court rejected Larsen's request that the DOA be ordered to prepare an EIS with respect to this building. Noting that the building was being developed and constructed by Munz, a private organization on private land not previously owned or developed by the state, the circuit court concluded that this proposed action did not constitute a Type I "Facilities development" by DOA under its WEPA regulations, Wis.Admin.Code Sec. Adm 60. Instead, the circuit court found this to be a Type II action under Wis.Admin.Code Sec. Adm 60.03, and ordered DOA to prepare an EA so as to determine whether an EIS was needed for this building project.

The court of appeals concluded that this was a Type I action within the meaning of Wis.Admin.Code Sec. Adm 60.03 and, therefore, that an EIS was required.

II.

We turn now to a review of the relevant law and legal history surrounding this case. WEPA requires each state agency to consider the environmental implications of all its proposals and before proceeding with any major action significantly affecting the quality of the human environment, prepare a detailed statement--an EIS--concerning the environmental effects of the proposed action. Section 1.11(2)(c), Stats. That statute also requires all state agencies to follow substantially the guidelines of the United States Council on environmental Quality (CEQ) which are adopted to facilitate the administration of the National Environmental Policy Act (NEPA), 42 U.S.C. § 4341, et seq., the federal statute on which WEPA is patterned. These CEQ guidelines are found in 40 C.F.R. § 1500, et seq. By executive order, the governor of this state has promulgated suggested guidelines for state agencies to follow in complying with WEPA. See Guidelines for the Implementation of the Wisconsin Environmental Policy Act, issued by Executive Order No. 69, of December 5, 1973 (hereafter the Guidelines ); Revised Order, Guidelines for the Implementation of the Wisconsin Environmental Policy Act, Executive Order No. 26 of February 12, 1976 (hereafter Revised Guidelines ). These guidelines, intended to facilitate administrative decisions under WEPA, are adaptations of the CEQ guidelines and require each state agency to classify its actions into the following categories:

(1) Type I actions clearly are major ... and thus will always require environmental impact statements;

(2) Type II actions may or may not be major or significantly affect the quality of the human environment depending on the facts of the particular case, and thus may not require environmental impact statement preparation; ... and

(3) Type III actions are ones where the action could not be major ... and thus will not require environmental impact statements.

Revised Guidelines at 5.

Although WEPA requires the preparation of an EIS for "major actions significantly affecting the quality of the human environment," sec. 1.11(2)(c), Stats., the statute does not define what constitutes "major" action, what environmental effects are "significant," nor how an agency should make the threshold determination of whether an action requires an EIS. The guidelines for the implementation of WEPA issued by the governor's executive order suggested that each agency should apply the definition of "significantly affecting the quality of the human environment" to various types of agency actions. The Guidelines identified several examples of agency actions including:

(a) Facilities development: Planning, designing and construction of physical facilities to be owned and operated by state agencies or the state. Examples include highways, buildings and park facilities.

. . . . .

(g) Plans: Formal plans, both short and long term, which through their implementation could have a significant environmental effect. Examples include transportation plans, land use plans, and facilities plans.

Revised Guidelines at 2-3 (emphasis added).

DOA, with some modifications, adopted these suggested guidelines as regulations in Wis.Admin.Code Sec. Adm 60. DOA's WEPA regulations defined "action" as "any activity, initiated by department or initiated by someone outside state government, which could not have occurred but for the department and which may affect the human environment." Wis.Admin.Code Sec. Adm 60.02(1). To facilitate DOA's analysis of whether the proposed action was a "[m]ajor action ... significantly affect[ing] the quality of the human environment," Id. at 60.02(8), DOA categorized its actions into an "action type list." Wis.Admin.Code Sec. Adm 60.03. This list categorizes specific agency actions into the three types noted above. Under the DOA list, the only identified Type I action which would always require the preparation of an EIS is "Facilities development." The DOA list describes "Facilities development" as "planning, designing, contracting for and constructing physical facilities when the department of administration is to be the managing authority as defined in ss. 16.84 and 16.845, Stats., i.e. the 'lead agency,' " when the facilities are "new and are on parcels not previously developed by the state." This description of "Facilities development" is similar but not identical to the "Facilities development" action described in the governor's suggested guidelines. ³ The DOA "Facilities development" action does not include the requirement that the facilities are to be owned by the state.

Type I actions under DOA regulations always require an EIS. Type II actions require an EA, and a subsequent EIS only if the EA reveals, on a case-specific basis, that the action involves significant environmental...