Town of Barton v. Division of Hearings & Appeals

Citation2002 WI App 169,649 N.W.2d 293,256 Wis.2d 628
Decision Date06 June 2002
Docket NumberNo. 01-1209.,01-1209.
PartiesTOWN OF BARTON, Petitioner-Respondent, v. DIVISION OF HEARINGS AND APPEALS, Respondent, CITY OF WEST BEND, Interested Party-Appellant.
CourtCourt of Appeals of Wisconsin

On behalf of the interested party-appellant, the cause was submitted on the briefs of Richard C. Yde, of Stafford Rosenbaum LLP, of Madison.

On behalf of the petitioner-respondent, the cause was submitted on the brief of Timothy J. Andringa of Cramer, Multhauf & Hammes, LLP of Waukesha.

Brief of amicus curiae was filed by Daniel M. Olson of League of Wisconsin Municipalities of Madison on behalf of League of Wisconsin Municipalities.

Before Dykman, Roggensack and Deininger, JJ.


The City of West Bend appeals the circuit court's reversal of a decision of the Division of Hearings and Appeals of the Department of Administration (DHA), wherein DHA ordered the Town of Barton to permit the City to install a sanitary sewer interceptor and laterals in two highways in the Town, pursuant to its authority under WIS. STAT. § 86.16(5) (1999-2000).2 The circuit court reversed DHA because it concluded that DHA did not have jurisdiction to review the Town's refusal to grant permission to the City to build the sewer interceptor, or in the alternative, because DHA should have required the City to permit abutting land owners to immediately connect to city sewer through the laterals DHA required as a condition of its order. Because we conclude DHA had authority under § 86.16(5) to determine whether, and on what conditions, the City could build a sanitary sewer in highways in the Town, and because the circuit court's decision that if the sewer interceptor is constructed the residents who abut the highway must be permitted to hook up immediately is not more reasonable than DHA's decision, we reverse the decision of the circuit court and remand to reinstate DHA's order.


¶ 2. The City designed an addition to its sanitary sewer system that it refers to as the "Northwest Interceptor." This interceptor is to assist in providing sewer service for three areas of the City: the "Wink lands," anticipated expansion of the Moraine Park Technical College and anticipated growth of "Young America." It will also eliminate a lift station. The City needed the Town's permission to construct a 2640-foot segment of the Northwest Interceptor in the rights-of-way of River Drive and Woodford Drive that are located in the Town.

¶ 3. In a letter dated August 7, 1996, the City requested permission. The Town refused to permit the construction unless all of the Town's residents who abut the interceptor were given immediate sewer system access. The City denied the Town's access request because it has a policy of not providing sewer access to properties located outside of the City. It proposed to wait to provide service until annexation of the properties. However, the City agreed to construct laterals as part of the interceptor's initial installation, thereby avoiding any further disruption of the highways in the event that the properties adjacent to the interceptor were later provided sewer service.

¶ 4. The Town refused permission, and the City appealed the refusal to DHA pursuant to WIS. STAT. § 86.16(5). DHA held a hearing and concluded that under § 86.16(5) and WIS. STAT. § 227.43(1)(bg), DHA had jurisdiction to hear the City's appeal, and it ordered the Town to grant the City a permit to construct and maintain the proposed sewer interceptor within the rights-of-way of River Drive and Woodford Drive, conditioned on the City's installing laterals and keeping at least one lane of traffic open on each roadway during construction.

¶ 5. The Town appealed, and the circuit court concluded that DHA did not have jurisdiction over the City's appeal. In the alternative, the circuit court also concluded that if DHA did have jurisdiction under WIS. STAT. § 86.16(5), DHA should have ordered that the Town residents who abut the interceptor be permitted to connect to sewer service immediately. The City appeals.


Standard of Review.


¶ 6. The scope of an agency's authority to act is a legal issue that we review de novo. Loomis v. Wisconsin Pers. Comm'n, 179 Wis. 2d 25, 30, 505 N.W.2d 462, 464 (Ct. App. 1993)



¶ 7. When we review the merits of the decision previously made, we review the agency's decision, not that of the circuit court. Gordon v. State Med. Examining Bd., 225 Wis. 2d 552, 556, 593 N.W.2d 481, 483 (Ct. App. 1999). We will not disturb an agency's factual findings if they are supported by credible and substantial evidence. CBS, Inc. v. LIRC, 219 Wis. 2d 564, 570, 579 N.W.2d 668, 671 (1998). DHA's statutory construction and its application of a statute to undisputed facts are questions of law, and we are not bound by an agency's legal conclusions. DOR v. Caterpillar, Inc., 2001 WI App 35, ¶ 6, 241 Wis. 2d 282, 625 N.W.2d 338. However, under some circumstances, we may deem it appropriate to grant deference to the legal conclusions of an administrative agency. See Behnke v. DHSS, 146 Wis. 2d 178, 184, 430 N.W.2d 600, 602 (Ct. App. 1988)


[5, 6]

¶ 8. An agency's interpretation or the application of an ambiguous statute may be accorded great weight deference, due weight deference or de novo review, depending on the circumstances. UFE Inc. v. LIRC, 201 Wis. 2d 274, 284, 548 N.W.2d 57, 61 (1996). We accord great weight deference only when all four of the following requirements are met: (1) the agency was charged by the legislature with the duty of administering the statute; (2) the agency's interpretation is of long standing; (3) the agency employed its expertise or specialized knowledge in forming the interpretation; and (4) the agency's interpretation will provide uniformity and consistency in the application of the statute. Id.


¶ 9. We will accord due weight deference when "the agency has some experience in an area, but has not developed the expertise which necessarily places it in a better position to make judgments regarding the interpretation of the statute than a court." Id. at 286, 548 N.W.2d at 62. The deference allowed under the due weight standard is accorded largely because the legislature has charged the agency with the enforcement of the statute in question. Id. Under this standard, we will not overturn a reasonable agency decision that furthers the purpose of the statute unless we determine that there is a more reasonable interpretation than that made by the agency. Id. at 286-87, 548 N.W.2d at 62.

¶ 10. Here, DHA has been charged with administering WIS. STAT. § 86.16(5), and it has some experience, even though its experience is not of long standing because the Transportation Commission formerly was responsible for appeals, see City of Appleton v. Transportation Comm'n, 116 Wis. 2d 352, 342 N.W.2d 68 (Ct. App. 1983)

. Accordingly, if we conclude that the scope of DHA's authority extends to this controversy, we will apply due weight deference to DHA's order directing the Town to grant permission to the City to construct the Northwest Interceptor, conditioned on the City's meeting DHA's requirements.

Scope of DHA's Authority.

¶ 11. The circuit court concluded that WIS. STAT. § 86.16(5) provided no authority for DHA to resolve the dispute about whether, and on what terms, the City would be permitted to build a portion of the Northwest Interceptor in two highways within the Town. The court was persuaded that any review of the Town's refusal to issue a permit to build the interceptor had to be found in sections of the statutes other than § 86.16. The Town agrees with the circuit court's position and focuses its argument to us on terms used in § 86.16(1), contending § 86.16 applies to laying pipelines that transport fresh water, not to those that transport waste water. Therefore, the Town argues that because § 86.16(1) does not apply to the proposed construction in the first instance, § 86.16(5) does not give DHA authority to resolve this dispute between the Town and the City. The City contends that the statute employs only general categories of substances that may be transported within pipelines that can be constructed in public ways and that "water" is a broad enough category to include waste water as well as fresh water. Therefore, argues the City, DHA's review of the Town's denial is proper under subsec. (5).


¶ 12. These conflicting positions present a question of statutory construction that involves the scope of DHA's authority. Therefore, we decide it without deference to DHA's interpretation of the statute. Loomis, 179 Wis. 2d at 30, 505 N.W.2d at 464. When we are asked to apply a statute whose meaning is in dispute, we direct our efforts at determining what the legislature intended the statute to mean. Truttschel v. Martin, 208 Wis. 2d 361, 365, 560 N.W.2d 315, 317 (Ct. App. 1997). We begin with the words chosen by the legislature. WISCONSIN STAT. § 86.16 states in relevant part:

(1) Any person, firm or corporation ... may ... with the written consent of local authorities with respect to highways under their jurisdiction, including connecting highways, construct and operate telegraph, telephone or electric lines, or pipes or pipelines for the purpose of transmitting messages, water, heat, light or power along, across or within the limits of the highway.
(5) Any person, firm or corporation whose written application for permission to construct such lines within the limits of a highway has been refused, or has been on file with the ... local authority for 20 days and no action has been taken thereon, may file with the ... local authority a notice of appeal to the division of hearings and appeals.... [T]he division of hearings and appeals shall hear and try and determine the appeal on 10 days' notice to the ... local authority, and the applicant.


¶ 13. In determining...

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