Wisconsin Builders Ass'n v. Wisconsin Dep't of Transp.
| Citation | 2005 WI App 160,285 Wis.2d 472,702 N.W.2d 433 |
| Decision Date | 16 June 2005 |
| Docket Number | No. 2004AP2388.,2004AP2388. |
| Parties | WISCONSIN BUILDERS ASSOCIATION, Wisconsin Merchants Federation, Wisconsin Manufacturers and Commerce, Wisconsin Realtors Association, Lake States Lumber Association of Wisconsin & Michigan, National Federation of Independent Business Wisconsin Chapter, Outdoor Advertising Association of Wisconsin, Timber Producers Association of Wisconsin & Michigan, Wisconsin Fireworks Association and Wisconsin Grocers Association and Wisconsin Farm Bureau Federation Cooperative, Plaintiffs-Respondents, v. WISCONSIN DEPARTMENT OF TRANSPORTATION and Frank J. Busalacchi, Defendants-Appellants. |
| Court | Court of Appeals of Wisconsin |
On behalf of the defendants-appellants, the cause was submitted on the briefs of Peggy A. Lautenschlager, attorney general, and Thomas C. Bellavia, assistant attorney general.
On behalf of the plaintiffs-respondents, the cause was submitted on the brief of John A. Kassner and Jennifer M. Krueger, Murphy Desmond S.C., Madison.
Before Deininger, P.J., Dykman and Vergeront, JJ.
¶ 1.
The Wisconsin Builders Association and others1 challenge the validity of certain provisions of WIS. ADMIN. CODE ch. TRANS 233, as amended in 1999 and 2001, on the ground that they are not statutorily authorized and effect an unconstitutional taking of property without just compensation. The challenged rules concern land divisions abutting public highways. The circuit court agreed with Wisconsin Builders, and the Wisconsin Department of Transportation (DOT) appeals.
¶ 2. We conclude WIS. STAT. ch. 236 does not authorize DOT to regulate land divisions that are not subdivisions within the meaning of WIS. STAT. § 236.02(12)2 and no other statute relied on by DOT grants this authority. Accordingly, the challenged rules are invalid to the extent they apply to land divisions that are not subdivisions. We also conclude the enactment of the setback restrictions do not constitute a Fifth Amendment taking under the theories advanced by Wisconsin Builders. Accordingly, we affirm in part and reverse in part.
¶ 3. Prior to 1999, WIS. ADMIN. CODE ch. TRANS 233, Division of Land Abutting a State Trunk Highway or Connecting Highway, established the procedures that were to be applied when DOT reviewed subdivision plats pursuant to WIS. STAT. ch. 236.3 In 1999, DOT revised the rules to provide that DOT is to review all land divisions abutting the highway that are accomplished by any method—not only subdivision plats, but also condominium plats, certified survey maps, and other land divisions. WIS. ADMIN. CODE § TRANS 233.03(3)-(4). Thus the substantive requirements regarding highway access, drainage, noise, visibility, and setback restrictions became applicable to all land divisions, not just subdivision plats under ch. 236. WIS. ADMIN. CODE §§ TRANS 233.05, 233.105, 233.08.
¶ 4. In general, the setback is the area within 110 feet of the centerline of a state trunk highway or connecting highway or within fifty feet of the nearer right-of-way line, whichever is furthest from the centerline. WIS. ADMIN. CODE § TRANS 233.08(2)(a). Structures and improvements within this area are generally prohibited.4Id., subsec. 1. The original version of the rule provided for special exceptions to its terms where application would result in "practical difficulty or unnecessary hardship ... and not contrary to the public interest." WIS. ADMIN. CODE § HY 33.11 (September, 1956, No. 9).5 The 1999 amendments to ch. 233 added a provision prohibiting DOT from granting special exceptions for "the erection or installation of any structure or improvement" within a setback area unless the owner executed an agreement providing that, if DOT needed to acquire land within the setback area, DOT "is not required to pay compensation, relocation cost or damages relating to any structure or improvement authorized by the [special exception]." WIS. ADMIN. CODE § TRANS 233.11(2) (Register, January 1999, No. 517).6
¶ 5. In 2001, DOT revised the setback restrictions to make a reduced setback of fifteen feet from the nearest right of way applicable to a subset of less important and congested highways. WIS. ADMIN. CODE § TRANS 233.08(3n). The condition for a special exception—an agreement that DOT need not pay compensation for structures and improvements within the setback—remained. WIS. ADMIN. CODE § TRANS 233.11(3)(d). (We will refer to the requirement of this agreement as "the special exception condition.")
¶ 6. Wisconsin Builders filed this action seeking a declaration judgment that the 1999 and 2001 amendments expanding DOT's authority to review all land divisions was without statutory authority. Wisconsin Builders also sought a declaration that the setback restrictions and the special exception condition violated the Fifth and Fourteenth Amendments to the United States Constitution and article I, section 1 of the Wisconsin Constitution because they constituted a taking without just compensation.
¶ 7. The circuit court concluded that WIS. STAT. § 236.03(1) authorized DOT to regulate land divisions abutting highways only if they are subdivisions as defined in WIS. STAT. § 236.02(12) and (8). The circuit court also concluded that WIS. STAT. § 86.07(2), relating to permits for excavations, culverts, or other alterations of a highway, did not confer on DOT the authority to regulate all land divisions abutting the highway. Finally, the court concluded that the 1999 and 2001 amendments relating to setback restrictions and the special exception condition violated the state and federal constitutional protections against public takings without just compensation. The court therefore declared the challenged provisions of WIS. ADMIN. CODE ch. TRANS 233 invalid.
¶ 8. On appeal, DOT argues that the circuit court erred in concluding that it does not have the statutory authority to regulate all land divisions and that its ruling on the constitutionality of the setback restrictions and special exception condition was in error. Both parties agree that our review of these issues is de novo. The issue whether administrative rules exceed an agency's statutory authority presents a question of law, which we review de novo. Wisconsin Citizens Concerned for Cranes & Doves v. DNR, 2004 WI 40, ¶ 10, 270 Wis. 2d 318, 677 N.W.2d 612. The issue whether a regulation constitutes an unconstitutional taking is also question of law. Zealy v. City of Waukesha, 201 Wis. 2d 365, 372, 548 N.W.2d 528 (1996).
¶ 9. An administrative agency has only those powers expressly conferred or necessarily implied from the statutory provisions under which it operates. Wisconsin Citizens Concerned for Cranes & Doves, 270 Wis. 2d 318, ¶ 14. To determine whether a rule exceeds an agency's statutory authority, we examine the enabling statute to ascertain whether the statute grants express or implied authorization for the rule. Id. An agency's enabling statute is to be strictly construed, and we resolve any reasonable doubt pertaining to an agency's implied powers against the agency. Id. An administrative rule that exceeds an agency's statutory authority is invalid. Id.
¶ 10. When we construe a statute, we begin with the language of the statute and give it its common, ordinary, and accepted meaning, except that technical or specially defined words are given their technical or special definitions. State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 45, 271 Wis. 2d 633, 681 N.W.2d 110. We interpret statutory language in the context in which it is used, not in isolation but as part of a whole, in relation to the language of surrounding or closely related statutes, and we interpret it reasonably to avoid absurd or unreasonable results. Id., ¶ 46. We also consider the scope, context, and purpose of the statute insofar as they are ascertainable from the text and structure of the statute itself. Id., ¶ 48. If, employing these principles, statutory language is ambiguous— that is, capable of being understood by reasonably well-informed persons in two or more senses—then we may employ sources extrinsic to the statutory text. Id., ¶¶ 47, 50. These extrinsic sources are typically items of legislative history. Id., ¶ 50.
¶ 11. DOT contends there are a number of statutes that give it the authority to promulgate rules that apply to all land divisions abutting highways. According to DOT, it has broad authority to regulate matters relating to state highways under several sections in WIS. STAT. chs. 84, 85, and 86, and this authority is broad enough to include regulating all land divisions abutting highways. In addition, DOT contends, WIS. STAT. § 236.03(1) authorizes it to regulate all land divisions abutting highways, even though they are not subdivisions, and the circuit court erred in construing it to the contrary.
¶ 12. DOT also points out that it is authorized by WIS. STAT. § 85.16(1) to "make reasonable and uniform orders and rules deemed necessary to the discharge of the powers, duties and functions vested in the department." DOT describes this as "broad rulemaking power," and it is—so long as the rules are "deemed necessary" to discharge the "powers, duties and functions" that other statutes vest in DOT. Thus, the proper focus is on the statutes that vest substantive powers, duties, and functions in DOT.
¶ 13. We begin with a discussion of WIS. STAT. ch. 236 because that relates specifically to land divisions. WISCONSIN STAT. § 236.03(1) provides:
Any division of land which results in a subdivision as defined in s. 236.02 (12) (a) shall be, and any other division may be, surveyed and a plat thereof approved and recorded as required by this chapter. No map or survey purporting to create divisions of land or intending to clarify metes and bounds descriptions may be recorded except as provided by this...
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