Murphy v. Oconto Cnty. Drainage Bd.

Decision Date01 March 2016
Docket NumberNos. 2014AP2206,2015AP738.,s. 2014AP2206
Citation879 N.W.2d 808 (Table),369 Wis.2d 71
PartiesPaul M. MURPHY, John J. Murphy Revocable Trust, by Rosalie A. Murphy, Trustee and Jerome P. Murphy Revocable Trust, by Rosalie A. Murphy, Trustee, Plaintiffs–Appellants, v. OCONTO COUNTY DRAINAGE BOARD, Defendant–Respondent. Paul M. Murphy, John J. Murphy, by Rosalie A. Murphy, Trustee and Jerome P. Murphy Revocable Trust, by Rosalie A. Murphy, Trustee, Plaintiffs–Appellants, v. Oconto County Drainage Board, Defendant–Respondent.
CourtWisconsin Court of Appeals

¶ 1 PER CURIAM.

In these consolidated appeals, Paul Murphy and Rosalie Murphy1 (the Murphys) appeal circuit court orders affirming the Oconto County Drainage Board's (the Board) decisions to (1) deny the Murphys' maintenance petitions requesting that the Board perform certain drainage activities, and (2) grant suspension petitions filed on behalf of other landowners requesting that the Stiles/Lena Drainage District (the District) conduct no further proceedings and incur no further expenses. The Murphys raise numerous challenges to the Board's decisions on both sets of petitions, claiming, among other things, that they have a “vested right” to drainage and the Board was biased against them. Under certiorari review, we conclude the Board acted appropriately: contrary to the Murphys' assertions, the Board's decisions were not contrary to law or arbitrary or unreasonable, and its decision on the maintenance petition was supported by substantial evidence. Accordingly, we affirm the circuit court's orders.

BACKGROUND

¶ 2 The District was established by order of the Oconto County Circuit Court in 1918. See Town of Stiles v. Stiles/Lena Drainage Dist., 2010 WI App 87, ¶ 2, 327 Wis.2d 491, 787 N.W.2d 876

. Drainage districts are special purpose districts formed to drain land, primarily for agricultural use. See Note, Wis. Admin. Code ch. ATCP 48.2 Lands within a district are drained by common drains that traverse individual property lines. Id. A drainage board oversees district operations and may levy assessments against landowners within the drainage district for the design, construction and maintenance of district drains, and to pay for district operating costs. Id.; see also Wis. Stat. §§ 88.23, 88.35.3

¶ 3 As we explained in a prior appeal involving the District, the District endured long periods of dormancy after construction of the three primary drainage ditches in the 1920s. See Town of Stiles, 327 Wis.2d 491, ¶¶ 2–3, 787 N.W.2d 876

. In 2001, the District remapped its boundaries, conducted a benefits reassessment, and prepared plans to bring the District into compliance with new administrative regulations from the State of Wisconsin. Id., ¶ 3. Pursuant to these efforts, the District hired a firm to develop preliminary drainage specifications, which were to be sent to the Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) for approval.4 DATCP conditionally approved the specifications on June 26, 2007.

¶ 4 On August 6, 2007, various landowners petitioned the circuit court for dissolution of the District. Id., ¶ 4. Charles Kehl and Jeff Sagen, who were later appointed to the District board in 2009 and 2011, respectively, were among the dissolution petitioners.5 Following a public hearing in 2008, the circuit court ordered the District dissolved pursuant to Wis. Stat. § 88.82

, which requires a finding, among other things, that “the public welfare will be promoted by dissolution.” Town of Stiles, 327 Wis.2d 491, ¶ 9, 787 N.W.2d 876 ; see also § 88.82(3). The court acknowledged the District provided beneficial drainage and would require future maintenance, but concluded municipalities within the District could provide effective drainage and dissolution would foster accord between the District and affected landowners. Town of Stiles, 327 Wis.2d 491, ¶ 9, 787 N.W.2d 876. We reversed on appeal, concluding the circuit court's “public welfare” determination could not withstand scrutiny. Id., ¶¶ 17–19.

¶ 5 Following this court's decision, the Murphys filed several maintenance petitions in the circuit court. Paul Murphy signed a pro se maintenance petition on March 14, 2011, which was followed by a joint pro se maintenance petition from John and Jerome Murphy on April 26, 2011. On September 20, 2011, the Murphys, having retained counsel, filed a joint petition that was more specific and detailed. In totality, the petitions requested that the District perform maintenance on ditch numbers one and two and ditch lateral number two, correcting any violations of state law and restoring proper drainage of District lands. One of the petitions contemplated it would take at least five years to bring the District into compliance with DATCP specifications.

¶ 6 On October 19, 2011, and November 21, 2011, District landowners submitted, through their attorney, petitions to suspend the District pursuant to Wis. Stat. § 88.81

. Becky Dietzler circulated petitions and obtained fifty-nine signatures from landowners with confirmed benefits6 in the District, which signatures she certified on August 29, 2011, the same day she was sworn in as a newly appointed Board member. Kehl and Sagen added their signatures to the suspension petitions on January 15, 2013, and February 19, 2013, respectively.

¶ 7 In January 2012, the Murphys filed in the circuit court a petition for a writ of mandamus to require the Board to respond to their maintenance petitions. The Murphys observed that, by rule, the Board was required to respond in writing to the petitions within sixty days of their filing. See Wis. Admin. Code § ATCP 48.45(1)(c)

. On April 18, 2012, the parties stipulated that the Board would provide a written response to the three maintenance petitions within the next forty-five days. The parties further stipulated the Board would take no formal actions on other pending petitions, including the suspension petitions, until ordered by the circuit court. This effectively stayed further proceedings until the Board resolved the maintenance petitions.

¶ 8 On May 21, 2012, the Board denied the Murphys' maintenance petitions. The Board gave “due consideration” to the existence of other pending petitions before the Board, including the petitions to suspend the District. The Board stated, “It preliminarily appears to the Board that the suspension petition was signed by the requisite 67% or more of the landowners receiving confirmed benefits from the District.” The Board noted that if the statutory prerequisites to suspension were met, it was required by statute to suspend District operations. See Wis. Stat. § 88.81(2)

. Given the outstanding suspension petitions, the Board found it not “prudent to undertake a multiple year compliance plan with associated significant expense going forward.” The Board noted that a firm it hired to assess the cost of complying with the Murphy petitions had estimated the engineering work alone could cost as much as $70,000. The Board further noted that if it subsequently granted the suspension petitions, the suspension petitioners would be statutorily required “to pay for the entirety of any maintenance program adopted by the Board going forward over the next five, ten or fifteen years.” The Board found this would place an “unfair and undue burden” on a majority of District property owners. It also found the costs of any such maintenance plan would “far exceed benefits conferred to District property owners.”

¶ 9 The Board noted other factors that contributed to its denial of the Murphys' maintenance petitions. First, the Board concluded that, based on an inspection by Board members Kehl, Sagen and Dietzler in December 2011, “the drainage systems reasonably operate and accomplish their intended objectives,” including draining properties within the District under normal circumstances. The Board noted the Murphys were “actively involved in Board affairs for many years,” with either John or Rosalie Murphy serving as Board chair between 1995 and 2011, and that [d]espite holding Board leadership positions, there were no maintenance petitions filed or plans developed during their tenure on the Board.” Second, the Board found that portions of John Murphy's drain were obstructed as the result of a “problematic forestry operation” on his property that affected downstream landowners, including Paul Murphy. Finally, it found that Jerome Murphy had attached an unapproved and unmaintained private drain to the District drain on his and the adjoining property.

¶ 10 The Murphys filed a motion for reconsideration on June 21, 2012. They argued the Board applied the wrong legal standard when it determined the District provided adequate drainage. Instead, the Murphys argued that under Wis. Admin. Code § ATCP 48.26(3)

, District drains were required to conform to DATCP specifications. The Murphys claimed the cost of complying with this mandate was “irrelevant and inaccurate” because the Board had failed to create a statutorily required fund for maintenance and repair, the Board could spread out projects or borrow the necessary funds, and the Board had overestimated the necessary engineering costs. The Murphys claimed the Board's findings regarding the problems on John and Jerome Murphys' properties were also “irrelevant and inaccurate .”

¶ 11 The Board denied the motion for reconsideration on September 24, 2012. It addressed only the Murphys' claim that it applied the wrong legal standard. The Board provided an extensive history of its activities between 2001 and 2007 and concluded the specifications DATCP approved in 2007 had not been properly approved by the Board. The Board therefore deemed Wis. Admin. Code § ATCP 48.26(3)

inapplicable and concluded its only duty was to ensure that drains were generally in good condition under Wis. Stat. § 88.63(1m).7 The Board reiterated that given the pending petitions for suspension, which it deemed “facially valid,” it could “not conceive of any reasonable or cost effective...

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