University of Wisconsin v. Dane County, 99-2662.

• Decision Date: 31 August 2000
• Docket Number: No. 99-2662.,99-2662.
• Citation: 238 Wis.2d 810,2000 WI App 211,618 N.W.2d 537
• Parties: BOARD OF REGENTS OF the UNIVERSITY OF WISCONSIN, Plaintiff-Respondent, v. DANE COUNTY BOARD OF ADJUSTMENT, Defendant, TOWN BOARD OF MONTROSE, Laura Dulski, and Bill Warner, Intervenors-Appellants.
• Court: Wisconsin Court of Appeals

238 Wis.2d 810

2000 WI App 211

618 N.W.2d 537

BOARD OF REGENTS OF the UNIVERSITY OF WISCONSIN, Plaintiff-Respondent, v. DANE COUNTY BOARD OF ADJUSTMENT, Defendant, TOWN BOARD OF MONTROSE, Laura Dulski, and Bill Warner, Intervenors-Appellants.¹

No. 99-2662.

Court of Appeals of Wisconsin.

Submitted on briefs May 19, 2000.

Decided August 31, 2000.

On behalf of the intervenors-appellants, the cause was submitted on the briefs of Laura Dulski and James D. Cooley of Belleville.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and F. Thomas Creeron III, assistant attorney general.

Before Vergeront, Roggensack and Deininger, JJ.

¶ 1. VERGERONT, J.

This appeal concerns the interpretation of "governmental use," a conditional use in the A-1 Agriculture District Exclusive under the Dane County Zoning Ordinance. The Dane County Board of Adjustment (BOA) determined that a tower for a University of Wisconsin-Madison student-run radio station was not a governmental use because the testimony failed to show that operation of such a radio station by the University of Wisconsin "is an integral part of its educational mission." The circuit court reversed that determination and the Town of Montrose, Laura Dulski, and Bill Warner appeal that determination. They contend the BOA correctly applied the law, the record supports its decision, and the circuit court erred in substituting its interpretation of the law and facts for that of the BOA.

¶ 2. We affirm the circuit court's order reversing the BOA's decision, although we do so on different grounds. We conclude that the BOA erred in its interpretation of "governmental use," and that, applying the correct standard to the undisputed facts in this case, the proposed tower is a governmental use.

BACKGROUND²

¶ 3. Mario Gobel, a landowner in the Town of Montrose, applied for a conditional use permit (CUP) for the construction of a radio tower on his property, with the intent of leasing his land to the Board of Regents of the University of Wisconsin (Board of Regents) to erect the tower and operate a student-run radio station. The property is zoned A-1 Agriculture District Exclusive (A-1 Exclusive). Gobel designated his application as one for "governmental use," a conditional use in the A-1 Exclusive District. See DANE COUNTY, WIS., ORDINANCES § 10.123(3)(c).³ The Dane County Zoning and Natural Resources (ZNR) Committee scheduled a public hearing on the application. The threshold issue arose whether the proposed radio tower was a "governmental use" within the meaning of the ordinance. The zoning administrator opined in a memo to the committee that the proposed tower was a governmental use. The ZNR Committee adopted that view and voted to grant the conditional use permit.

¶ 4. The Town of Montrose, Dulski, and Warner (collectively Montrose) appealed to the BOA the zoning administrator's determination that the proposed tower was a governmental use, contending that his decision was based on an incorrect theory of law and was arbitrary. The issue before the BOA was limited to the zoning administrator's interpretation of "governmental use" and did not include the ZNR's decision to grant a conditional use permit.⁴

¶ 5. The following information concerning the proposed tower was provided by counsel for the Board of Regents, Professor James Hoyt of the UW-Madison School of Journalism and Mass Communication, and David Black, General Manager of WSUM (the UW-Madison student radio station) and a graduate student in Journalism and Mass Communication. The Board of Regents will own the tower and hold the Federal Communications Commission (FCC) license. The tower will be funded with student fees. Gobel will continue to own the land and farm other portions. The University of Wisconsin has twelve radio stations functioning now on various campuses and only Parkside Campus and Madison do not have a radio station. The stations vary, with some being more student-operated than others; some are public radio and some are not.

¶ 6. The operation of WSUM will be under the administration of Professor Hoyt and Black. Professor Hoyt is a member of the board of directors of the station and is the liaison to the Board of Regents. It is his responsibility to see that the station operates consistent with the educational mission of the University of Wisconsin. The station's mission statement filed with the FCC provides:

(1) The primary mission of the station will be to act in a service and outreach capacity for the students of the University of Wisconsin-Madison and people of Madison and surrounding communities. (2) The secondary mission of the station will be to provide an educational environment and valuable hands-on experience for student [sic] aspiring to a career in or with a genuine interest in broadcast communication or a related field. At this time, the University plans to use the station as a teaching and learning tool for students expressing interest in communications and broadcast experience. Interested students will have significant educational benefits from exposure to the station's operations. (3) The station will also provide an alternative source of music entertainment to the campus and community. The University has identified a need for an alternative source of music entertainment in the area and believes this programming will serve an unserved need in the campus and surrounding community.

¶ 7. UW-Madison students may initiate independent study projects at the station with individual faculty members who will supervise them, set the requirements for the project, and grade them. Professor Hoyt and other professors teaching courses in broadcast news and management, in the School of Journalism and other departments, will use the station as a laboratory for the students in their courses.

¶ 8. After hearing this testimony, hearing other persons speak both in support of and against Montrose's appeal, receiving briefs and other submissions, and discussing their views, the BOA voted 3-1 to reverse the zoning administrator's determination on governmental use. The brief written report of the BOA's decision makes a finding that "testimony failed to show operation of a student radio station by the University of Wisconsin is an integral part of its educational mission." Although the report did not expressly so state, the majority of the BOA implicitly adopted the standard proposed by the assistant corporation counsel on behalf of the zoning administrator—that the proposed tower is a governmental use if it is an integral part of the educational mission of the university. The majority decided the facts did not meet this standard.⁵ ¶ 9. The Board of Regents filed a complaint in circuit court seeking certiorari review of the BOA's interpretation of "governmental use." The Town of Montrose, Dulski, and Warner moved to intervene, and their motion was granted. The BOA chose not to participate. The circuit court decided the BOA exceeded its jurisdiction and there was not substantial evidence in the record to support its decision. The court concluded there was "overwhelming evidence" the station was "an integral part of the University in its educational system," and, therefore, a governmental use.

DISCUSSION

Standard of Review

[1, 2]

¶ 10. On certiorari review, the appellate court reviews the decision of the board, not the decision of the circuit court. See Clark v. Waupaca County BOA, 186 Wis. 2d 300, 303, 519 N.W.2d 782 (Ct. App. 1994). We, like the circuit court, limit our certiorari review to: (1) whether the board kept within its jurisdiction; (2) whether it proceeded on a correct theory of law; (3) whether its action was arbitrary, oppressive or unreasonable and represented its will and not its judgment; and (4) whether the evidence was such that it might make the decision it did. See id. at 304. On this appeal, we address only the Board of Regents' challenge to the BOA's decision under the second criteria—that it made errors of law in interpreting and applying the term "governmental use." [3, 4]

¶ 11. The interpretation of an ordinance is a question of law, which is generally subject to de novo review. See Marris v. City of Cedarburg, 176 Wis. 2d 14, 32, 498 N.W.2d 842 (1993). However, the reviewing court may accord deference to the interpretation adopted by a board or agency. See id. at 33. In the context of state boards and state agencies, two degrees of deference to the administrative tribunal's legal determinations have been established—due weight and great weight, each with its own set of criteria. See UFE Inc. v. LIRC, 201 Wis. 2d 274, 284-87, 548 N.W.2d 57 (1996).⁶ Therefore, the first issue we must resolve is whether to accord deference to the BOA's interpretation of "governmental use," and, if so, how much.

[5, 6]

¶ 12. Montrose contends we must presume the decision is correct citing, among other cases, Miswald v. Waukesha Co. BOA, 202 Wis. 2d 401, 550 N.W.2d 434 (Ct. App. 1996),review denied. However, that case concerned a decision on whether a variance should be granted, not an interpretation of an ordinance, which is a question of law that courts ordinarily review de novo. See Marris, 176 Wis. 2d at 32. We find more on point two decisions in which the supreme court decided that de novo review of a local board's interpretation of an ordinance was appropriate because the decision was likely to have state-wide impact, given that the language at issue appeared in the ordinances of many counties. See Weber v. Town of Saukville, 209 Wis. 2d 214, 223-24, 562 N.W.2d 412 (1997); Marris, 176 Wis. 2d at 33. The rationale in these decisions is that one county agency's interpretation of the language in a single case should not be controlling or persuasive for the many other counties that have ordinances with the same or similar language. See Marris, 176 Wis. 2d at 33.

¶ 13. The Marris/Weber rationale is applicable here because...