State v. Chippewa Cable Co.
| Decision Date | 03 November 1970 |
| Docket Number | No. 161,161 |
| Parties | STATE of Wisconsin, Appellant, v. CHIPPEWA CABLE CO., Inc., Respondent. |
| Court | Wisconsin Supreme Court |
On August 10, 1960, a representative of the Chippewa Cable Company (respondent) wrote a letter to what was then the Wisconsin Aeronautics Commission (hereinafter the commission) advising that it would begin erection of a community antenna system. 1 The letter gave the geographic location of the 400-foot tower and stated that it was to be completed by August 16th. On August 12th, F. E. Wolf, then operations consultant for the commission, wrote the respondent requesting geographic coordinates and other information. On August 24th the commission notified respondent that a permit for the tower was required under sec. 114.135(6) and (7), Stats. On August 26th the respondent applied for a permit. On September 19th Keith Coleman, president of respondent company, telephoned Mr. Wolf and inquired about the permit. Wolf said that the Eau Claire airport authorities had not objected to the issuance of a permit but that the Federal Aviation Agency (FAA) had not yet expressed its opinion on the application. On September 28th Wolf wrote Coleman advising him that if the tower had been erected it was in violation of sec. 114.135(6), (7) and (8), and that if the tower had not been completed, construction should be halted. The tower had been erected by this time. On October 25th Wolf notified Coleman by phone that the FAA had disapproved the tower and that no permit would be issued. On November 8th Wolf told Coleman that the matter had been turned over to the attorney general for disposition.
On November 14th, at the request of the commission, suit was commenced in the Circuit Court for Chippewa county by the attorney general 2 to require respondent to reduce the height of its tower. The suit was a civil action to abate a public nuisance (sec. 280.02, Stats.) and was necessary because ch. 114, Stats., does not give the commission power to issue injunctions. The complaint alleged that respondent's tower violated sec. 114.135(6)--(9), because it was more than '500 feet above the ground * * * within one mile of the location' of the tower and respondent had no permit.
On November 15th or 16th a conference was held between respondent's officers, an assistant attorney general and Mr. Wolf, during which respondent's officers requested that suit be withheld until a hearing could be held on respondent's application for a permit. The request was denied. Respondent's officers were told that no hearing would be held and that the height of the tower should be reduced or preferably the tower should be removed to another area.
After the state's request for a temporary injunction was denied, respondent entered a demurrer to the complaint, which was overruled on September 15, 1961. Respondent appealed from the order overruling the demurrer, contending that sec. 114.135(6) and (7), Stats., applies only to towers '500 feet above the ground * * * within one mile of the location of the object' and this should be measured from the highest point within one mile. The complaint alleged that respondent's tower was 400 feet tall (at least 100 feet below the highest point). This court rejected respondent's contention and reserved judgment on whether the 500 feet should be measured from the average ground level within one mile or from the lowest point within one mile of the tower. 3
Thereupon, on return of the proceedings to the circuit court, respondent answered on June 19, 1962, denying the allegations of the complaint and setting up six separate defenses. The state's demurrer to all six of the defenses was sustained by the trial court and respondent appealed from the order sustaining it. This court affirmed the circuit court 4 as to all but the fifth defense, which was that the trial court should in its discretion deny the state equitable relief because the commission had refused for almost two years to hold a hearing on respondent's application for a permit. We held:
'* * * unless the proof at the trial shows that the tower is, by reason of exceeding the height allowable without a permit, so substantial a hazard to air traffic that the application was foredoomed to denial at a hearing, the failure of the commission to hold a hearing might, in the discretion of the court, deprive the state of equitable relief.' 5
On June 30, 1964, the commission notified respondent of the time and place at which a hearing would be held on whether a permit should issue. On July 20, 1964, respondent notified the commission by letter and by telegram that it felt the commission had no jurisdiction over its tower, that it did not wish to waive any rights it might have to contest the commission's jurisdiction and that its application for a permit was thereby withdrawn. The commission received both the letter and the telegram prior to July 22, 1964, the date that the hearing was held. Respondent's attorney appeared specially at the hearing, noted from the record that respondent's application for a tower permit had been withdrawn, and challenged the commission's jurisdiction. Respondent did not participate in the hearing in any other respects. The state presented witnesses and other evidence. The hearing examiner entered findings and conclusions that respondent's tower was in violation of sec. 114.135(6)--(9), Stats., and that it was a substantial hazard to aircraft. These findings and conclusions were adopted by the commission on December 4, 1964. No permit was granted.
In November, 1966, respondent's motion to exclude the summary, findings and conclusions of the commission from the trial was denied by the circuit court.
A motion to quash subpoenas served on several commission officials was made by the state in June, 1967. This motion was made to prevent the respondent from introducing evidence going to the proper interpretation of sec. 114.135(6)--(9), Stats., or the substantiality of the hazard to aircraft created by respondent's tower. The motion was denied in July, 1967. This court later denied the state's petition for a writ of prohibition to stop the circuit court proceedings.
The case came to trial on December 11, 1967. The state made an opening statement and rested on the record before the court. The record already contained the summary, findings and conclusions of the commission. The respondent presented evidence to show that the tower was not in violation of sec. 114.135(6)--(9), Stats., and that even if it were, the tower was not such a substantial hazard to aircraft that respondent's application for a permit was foredoomed to denial at a hearing.
On March 14, 1968, the circuit judge handed down a memorandum decision in which he concluded that respondent's tower was not in violation of sec. 114.135, Stats., and that even if it were, the tower was not so substantial a hazard to aircraft that repondent's application for a permit was foredoomed to denial. In its discretion the court decided that the commission's failure to hold a hearing for such a long time precluded the granting of equitable relief. The judgment, findings of fact and conclusions of law were entered on September 30, 1969. The state appeals from this judgment.
Robert W. Warren, Atty. Gen., George B. Schwahn, Asst. Atty. Gen., Madison, for appellant.
Thomas Devine, Chippewa Falls, for respondent.
The issues presented on this appeal are as follows:
1. Did the commission lack jurisdiction to control the erection of respondent's tower under sec. 114.135(6)--(9), Stats.?
2. Did the commission have primary jurisdiction to determine whether the respondent's tower was so great a hazard to air travel as to require denial of respondent's application for a permit under sec. 114.135(6), Stats., thereby preventing the circuit court from making an independent determination of whether respondent's tower was so substantial a hazard that the application for a permit was foredoomed to denial at a hearing?
3. Was the circuit court's determination that the tower was not so substantial a hazard to air traffic that the respondent's application for a permit would have been foredoomed to denial at a timely hearing against the great weight and clear preponderance of the evidence?
erection of respondent's tower.
What are the critical facts concerning the actual height of the tower in relation to the surrounding heights within a mile radius of that tower?
At the request of the commission, Edgar J. Carrington, a professional consulting engineer, did a topographical survey of the area within one mile of respondent's tower. That survey revealed that the low point in the area was located at the edge of a creek in Irvine Park near Chippewa Falls, in the periphery of the one-mile radius. That point was 854 feet above mean sea level (MSL). The base of respondent's tower was 1,099.75 feet above MSL and the top of the tower was 1,462.04 feet above MSL. Thus, the tower measured 362.29 feet from its base to its top. George M. Sklom, also a consulting engineer, did a topographic survey of the same area and determined that the average terrain within one mile of the tower was 1,001.75 feet above MSL.
Sec. 114.135(7), Stats., prescribes the limits of the commission's power to control the erection of towers:
'For the purposes of sub. (6) the power and authority to control the erection of buildings, structures, towers and other objects by the state aeronautics commission shall be limited to those objects that would either extend to a height of more than 500 feet above the ground or surface of the water within one mile of the location of the object, or above a height determined by the ratio of one foot verticle to 40 feet horizontal measured from the nearest boundary of the nearest public airport within the state * * *.' (Emphasis supplied.)
It is clear that respondent's tower does not violate the '40...
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