Shoreline Park Preservation, Inc. v. Wisconsin Dept. of Admin.

• Decision Date: 06 July 1995
• Docket Number: No. 94-2512,94-2512
• Citation: 195 Wis.2d 750,537 N.W.2d 388
• Parties: SHORELINE PARK PRESERVATION, INC., and Ann E. Fleischli, Petitioners-Appellants, v. WISCONSIN DEPARTMENT OF ADMINISTRATION, Defendant-Respondent.
• Court: Wisconsin Court of Appeals

Page 388

537 N.W.2d 388

195 Wis.2d 750

SHORELINE PARK PRESERVATION, INC., and Ann E. Fleischli Petitioners-Appellants, v. WISCONSIN DEPARTMENT OF ADMINISTRATION, Defendant-Respondent.

No. 94-2512.

Court of Appeals of Wisconsin.

Submitted on Briefs June 13, 1995.

Opinion Released July 6, 1995.

Opinion Filed July 6, 1995.

For the petitioners-appellants the cause was submitted on the briefs of Ann E. Fleischli and Jack Longert, Madison.

For the defendant-respondent the cause was submitted on the brief of James E. Doyle, Attorney General, Daniel S. Farwell, and Kathleen M. Ptacek, Assistant Attorneys General, Madison.

Before EICH, C.J., GARTZKE, P.J., and SUNDBY, J.

EICH, Chief Judge.

Shoreline Park Preservation, Inc., and Ann E. Fleischli (hereafter Shoreline) appeal from an order dismissing their petition to review a decision of the Department of Administration. The department ruled that a proposal, authorized by the Wisconsin legislature, to construct a parking facility adjacent to a state office building in Madison and ancillary to a convention center being constructed on the Lake Monona shoreline complies with the Wisconsin Environmental Policy Act, § 1.11, STATS., and applicable administrative rules.

Shoreline claims that: (1) the legislation authorizing the project is an unconstitutional "private bill"; (2) the department's decision should be nullified because of the "impermissible bias" of its hearing examiner; (3) the final environmental impact statement prepared by the department is inadequate for its failure to "present[ ] all feasible alternatives" to the project; and (4) the trial court improperly denied Shoreline's petition to supplement the record. We reject the arguments and affirm the order.

In 1990, the City of Madison began to study the possibility of constructing a convention center at a site known as Monona Terrace, using a design adapted from one developed by architect Frank Lloyd Wright many years earlier. After determining the center to be economically feasible and of benefit to Madison and Dane County, the city obtained the necessary authorizations from the Madison Common Council and sought commitments from the county and the state to assist in its funding.

In the 1991-92 biennial budget, the legislature approved the expenditure of funds to construct a parking ramp for the state office building at 1 West Wilson Street, adjacent to the Monona Terrace project. 1991 Wis.Act 269, § 9108(1). The legislature conditioned funding on the city's "irrevocably" providing "for the construction of the Frank Lloyd Wright Monona terrace project on or before December 31, 1994." 1991 Wis.Act 269, § 9108(4g).

The Wisconsin Environmental Policy Act (WEPA) requires state agencies to prepare environmental impact statements for all major state actions "significantly affecting the quality of the human environment." Section 1.11(2)(c), STATS. The Department of Administration, in cooperation with the City of Madison, undertook to prepare the environmental impact statement (EIS) for the project.

It was a lengthy process. In September 1992, the department sent a preliminary list of potential environmental impacts, which had been identified by a "scoping" process, ¹ to the secretaries of the state departments of transportation and natural resources and to the director of the State Historical Society of Wisconsin, and asked them to comment.

After meeting with representatives of these and other agencies and the City of Madison, the department retained a consulting firm, Woodward-Clyde Consultants, to prepare a draft EIS. A draft statement was issued October 13, 1992, for comment by the public and interested agencies. The following month Madison voters approved a referendum authorizing funding for the center, conditioned on a sound environmental basis for the project. In December, the department held a public hearing on the draft EIS to receive additional public comment on the draft and to allow for cross-examination of the Woodward-Clyde staff who had prepared the document.

The final EIS was completed in July 1993, and the department again solicited comment from the public and interested agencies on its contents and scheduled an additional public hearing.

After reviewing the draft and final statements and comments, the department ruled that the final EIS complied with WEPA and relevant provisions of the administrative code. It concluded as follows The final EIS identifies all practicable means to avoid or minimize the environmental harm that may be caused by the proposed action. The funding and other authorization for both City and Department participation in the proposed action is specific and limited to the Frank Lloyd Wright Monona Terrace Project. The impacts that are directly related to that unique design are identified in the final EIS and these impacts cannot be practicably avoided or minimized without compromising the integrity of the approved design.

(Emphasis in original.)

The department also found, among other things, that the project was not expected to result in measurable long-term adverse impacts on air or water quality or area fish and wildlife resources and that, while construction could result in short-term and "localized" adverse effects on Lake Monona water quality in the immediate area, "mitigation measures" outlined in the EIS would "avoid and/or minimize" any such impacts. The department also noted that "the Project is based upon a site- and design-specific" facility approved in a referendum and that the city was not considering other locations or designs for the project.

Shoreline sought a rehearing, claiming that the EIS was inadequate for failing to consider alternatives to the proposal and that the officer conducting the hearings on the draft and final statements was biased because he also served as the department's legal counsel. The department denied Shoreline's motion, concluding that there was no evidence of bias on the part of the hearing officer and that no reasonable alternatives to approval or rejection of the project existed because the location, design and site for the project had been preselected by the city, the state legislature and the referendum vote of the people of Madison.

Shoreline petitioned the circuit court for review of the department's decision and, while the petition was pending, moved to present additional evidence to the department on various environmental and hydrogeologic matters and on the alleged bias of the hearing officer. The court denied the motion, concluding that: (1) Shoreline had presented no evidence that the hearing officer was biased; (2) Shoreline failed to put forth any reasons for not presenting the evidence to the department in the first place; and (3) to the extent the evidence involved matters arising after the hearings, it was more properly the subject of a supplemental EIS to be sought in proceedings independent of the action for judicial review of the original statement.

In August 1994 the court ruled on the remainder of Shoreline's arguments to overturn the department's decision. The court again rejected the charge of bias on the part of the hearing officer and concluded that, given the act of the legislature and the resolution passed by the common council, the department did not err in failing to consider alternative sites and designs for the Monona Terrace project. ² The trial court entered an order dismissing Shoreline's petition and affirmed the department's approval of the EIS. Other facts will be discussed below.

I. Standard of Review

We begin by noting that we review the department's decision, not the circuit court's, Hoell v. LIRC, 186 Wis.2d 603, 612, 522 N.W.2d 234, 238 (Ct.App.1994), and the burden is on Shoreline to establish grounds to overturn that decision. Wisconsin Cent. Ltd. v. Public Serv. Comm'n, 170 Wis.2d 558, 567, 490 N.W.2d 27, 31 (Ct.App.1992).

An administrative agency's findings of fact will not be upset on review unless they are unsupported by substantial evidence in the record; we do not weigh the evidence independently or pass on the credibility of the witnesses. Holtz & Krause, Inc. v. DNR, 85 Wis.2d 198, 204, 270 N.W.2d 409, 413 (1978). And this standard does not permit us to overturn an agency's finding even if it is against the great weight and clear preponderance of the evidence. Id. Finally, "[s]ubstantial evidence" is "that degree of evidence which would allow a reasonable mind to reach the same conclusion as the agency." Carrion Corp. v. DOR, 179 Wis.2d 254, 264, 507 N.W.2d 356, 359 (Ct.App.1993).

An agency's legal conclusions and its interpretation of statutes are subject to varying degrees of deference on appeal. If an agency's interpretation of the law or statute is long-standing or entails its expertise, experience or specialized knowledge--or the legal question is intertwined with factual determinations or with value or policy determinations--we will affirm its interpretation if it is reasonable, even if another conclusion would be equally reasonable. Carrion Corp., 179 Wis.2d at 264-65, 507 N.W.2d at 359. Where, however, the case is one of first impression for the agency and it lacks special experience or expertise in considering the question presented, its decision is not entitled to deference, and we consider it de novo. Soo Line R.R. Co. v. Commissioner of Transp., 170 Wis.2d 543, 549, 489 N.W.2d 672, 675 (Ct.App.1992).

Applying these principles to the case at hand, we review de novo Shoreline's argument challenging the constitutionality of the legislation authorizing the parking project. See State v. Corcoran, 186 Wis.2d 616, 628, 522 N.W.2d 226, 231 (Ct.App.1994). The same is true with respect to its challenge of the impartiality of the hearing officer, which is, in essence, a due process claim. ³

The trial court's denial of Shoreline's motion to supplement the record before the department under § 227.56(1), STATS., is a discretionary determination ⁴ tha...