Wisconsin Realtors Association v. Public Service Commission of Wisconsin

2015 WI 63
SUPREME COURT OF WISCONSIN
CASE NO.: 2013AP1407
COMPLETE TITLE: Wisconsin Realtors Association, Wisconsin
Builders
Association, Wisconsin Towns Association, John
E.
Morehouse, Sr. and Ervin E. Selk,
Plaintiffs-Appellants-Petitioners,
v.
Public Service Commission of Wisconsin,
Defendant-Respondent.
REVIEW OF A DECISION OF THE COURT OF APPEALS
(Reported at 353 Wis. 2d 554, 846 N.W.2d 34)
(Ct. App. 2014 – Unpublished)
OPINION FILED: June 30, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: February 5, 2015
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Brown
JUDGE: William M. Atkinson
JUSTICES:
CONCURRED:
DISSENTED: ROGGENSACK, C.J., ZIEGLER, J. dissent. (Opinion
Filed.)
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiffs-appellants-petitioners, there were
briefs by John A. Kassner and von Briesen & Roper, S.C., Madison
and oral argument by John Kassner.
For the defendant-respondent, there was a brief by Cynthia
E. Smith, Justin W. Chasco, and Public Service Commission of
Wisconsin, and oral argument by Cynthia E. Smith.
2015 WI 63
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2013AP1407
(L.C. No. 2012CV1203)
STATE OF WISCONSIN : IN SUPREME COURT
Wisconsin Realtors Association, Wisconsin
Builders Association, Wisconsin Towns
Association, John E. Morehouse, Sr. and Ervin
E. Selk,
Plaintiffs-Appellants-Petitioners,
FILED
v. JUN 30, 2015
Public Service Commission of Wisconsin, Diane M. Fremgen
Clerk of Supreme Court
Defendant-Respondent.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 SHIRLEY S. ABRAHAMSON, J. This is a review of an
unpublished decision of the court of appeals affirming a summary
judgment of the Circuit Court for Brown County, William M.
Atkinson, Judge, in favor of the defendant (the Public Service
Commission of Wisconsin) and against the plaintiffs (the
Wisconsin Realtors Association, the Wisconsin Builders
Association, the Wisconsin Towns Association, John E. Morehouse,
No. 2013AP1407
Sr., and Ervin E. Selk).1 We refer to the plaintiffs
collectively as the Wisconsin Realtors Association, or WRA.
¶2 The issue presented is whether Wis. Admin. Code ch.
PSC 128,2 titled "Wind Energy Systems" and sometimes referred to
herein as "the wind energy rules" or "the rules," is invalid
because it was promulgated by the Public Service Commission
"without compliance with statutory rule-making procedures."3
¶3 WRA asserts that in promulgating the wind energy
rules, the Public Service Commission failed to comply with the
procedural requirement set forth at Wis. Stat. § 227.115(2).
Under Wis. Stat. § 227.115(2), if any rule proposed by an agency
(including the Public Service Commission) "directly or
substantially affects the development, construction, cost, or
availability of housing in this state," then the Department of
Commerce shall prepare a report, referred to by the parties and
herein as a "housing impact report," before that rule is
1
Wis. Realtors Ass'n v. Pub. Serv. Comm'n, No. 2013AP1407,
unpublished slip op. (Wis. Ct. App. Mar. 25, 2014).
2
Wisconsin Admin. Code Ch. PSC 128 has not changed since it
went into effect. All references to ch. PSC 128 are therefore
to the current December 2012 version.
3
See Wis. Stat. § 227.40(4)(a) (2009-10) (providing that
the court shall declare an administrative rule invalid if it
finds that (1) the rule violates constitutional provisions; (2)
the rule exceeds the statutory authority of the agency; or (3)
the rule was promulgated without compliance with statutory rule-
making procedures).
All subsequent references to the Wisconsin Statutes are to
the 2009-10 version unless otherwise indicated.
2
No. 2013AP1407
submitted to the Legislative Council staff.4 WRA asserts that a
housing impact report was required for Wis. Admin. Code ch. PSC
128 as a matter of law.
¶4 Thus, the more specific issue presented is whether
under Wis. Stat. § 227.115(2), the Department of Commerce was
required as a matter of law to prepare a housing impact report
before Wis. Admin. Code ch. PSC 128 was submitted to the
Legislative Council staff for review. To decide this issue, the
court must determine based only on the texts of the governing
statutes and the wind energy rules themselves whether the rules
directly or substantially affect the development, construction,
cost, or availability of housing in this state.
¶5 The circuit court granted summary judgment to the
Public Service Commission on its motion, concluding that Wis.
Admin. Code ch. PSC 128 does not directly or substantially
affect the development, construction, cost, or availability of
housing in this state and thus that a housing impact report was
not required.
¶6 The court of appeals affirmed, stating: "We must
presume PSC 128 was duly promulgated, and [WRA] has not cited
any evidence to rebut that presumption."5
4
The version of Wis. Stat. § 227.115(2) applicable in the
instant case assigned the responsibility for preparing housing
impact reports to the Department of Commerce. Responsibility
for preparing housing impact reports is now in the Department of
Administration. See Wis. Stat. § 227.115(1)(a) (2011-12)
(defining "[d]epartment" as "the department of administration").
3
No. 2013AP1407
¶7 We conclude that WRA has not demonstrated that a
housing impact report was required as a matter of law for Wis.
Admin. Code ch. PSC 128. The texts of the governing statutes
and the wind energy rules do not demonstrate as a matter of law
that the rules directly or substantially affect the development,
construction, cost, or availability of housing in this state.
¶8 We further conclude that invalidating Wis. Admin. Code
ch. PSC 128 under the circumstances presented in the instant
case would infringe on the role of the legislature, which we
decline to do.
¶9 Accordingly, WRA's challenge to Wis. Admin. Code ch.
PSC 128 fails.
¶10 Our analysis will proceed as follows. First, we set
forth the relevant facts and procedural history. We then recite
the applicable standard of review. Next, we examine the
statutory framework underlying this dispute. Finally, we
determine that WRA has not demonstrated that a housing impact
report was required as a matter of law for Wis. Admin. Code ch.
PSC 128.
I
¶11 The relevant facts are not in dispute.
5
Wis. Realtors Ass'n v. Pub. Serv. Comm'n, No. 2013AP1407,
unpublished slip op., ¶23 (Wis. Ct. App. Mar. 25, 2014).
4
No. 2013AP1407
¶12 The Public Service Commission is an independent
regulatory agency with "jurisdiction to supervise and regulate
every public utility in this state . . . ."6
¶13 On September 30, 2009, the legislature enacted Wis.
Stat. § 196.378(4g)(b), which provides that "the [Public Service
Commission] shall, with the advice of the wind siting council,
promulgate rules that specify the restrictions a political
subdivision may impose on the installation or use of a wind
energy system . . . ."7
¶14 The statute further provides that the rules to be
promulgated by the Public Service Commission shall include
setback requirements for wind turbines and may include
requirements for other aspects of wind energy systems, such as
their visual appearance, lighting, and electrical connections to
the power grid; the shadow flicker they produce; the noise they
produce and the proper means of measuring that noise; and their
interference with radio, telephone, or television signals. The
statute also states that the setbacks established by the Public
Service Commission shall "provide reasonable protection from any
health effects . . . ."8
¶15 Wisconsin Stat. § 196.378(4g)(b) provides in full as
follows:
6
Wis. Stat. § 196.02(1)
7
See 2009 Wis. Act 40, § 12.
8
Wis. Stat. § 196.378(4g)(b).
5
No. 2013AP1407
The commission shall, with the advice of the wind
siting council, promulgate rules that specify the
restrictions a political subdivision may impose on the
installation or use of a wind energy system consistent
with the conditions specified in s. 66.0401(1m)(a) to
(c). The subject matter of these rules shall include
setback requirements that provide reasonable
protection from any health effects, including health
effects from noise and shadow flicker, associated with
wind energy systems. The subject matter of these
rules shall also include decommissioning and may
include visual appearance, lighting, electrical
connections to the power grid, setback distances,
maximum audible sound levels, shadow flicker, proper
means of measuring noise, interference with radio,
telephone, or television signals, or other matters. A
political subdivision may not place a restriction on
the installation or use of a wind energy system that
is more restrictive than these rules.9
¶16 The enactment of Wis. Stat. § 196.378(4g)(b) began a
three-year process that culminated in the promulgation of Wis.
Admin. Code ch. PSC 128.
¶17 Shortly after Wis. Stat. § 196.378(4g)(b) was enacted,
the Public Service Commission appointed the members of the Wind
Siting Council. The Wind Siting Council was created by the
legislature to provide research and advice to the Public Service
Commission on the regulation of wind energy systems.10
9
See also Wis. Stat. § 66.0401(1m) ("No political
subdivision may place any restriction . . . on the installation
or use of a wind energy system that is more restrictive than the
rules promulgated by the [Public Service Commission] under s.
196.378(4g)(b).").
10
Wis. Stat. § 15.797(1)(b) ("There is created in the
public service commission a wind siting council that consists
of . . . members appointed by the public service commission for
3-year terms . . . .").
6
No. 2013AP1407
¶18 Between March 29, 2010, and August 4, 2010, the Wind
Siting Council met 20 times to discuss the restrictions a
political subdivision should be permitted to impose on wind
energy systems. At three of these meetings, the Wind Siting
Council spent all or a substantial portion of its time
considering the impact of wind energy systems on property
values.
¶19 The Wind Siting Council ultimately concluded that
there is no causal relationship between the siting of wind
turbines and a measurable change in property values. The Wind
Siting Council set forth this conclusion (along with various
other findings and recommendations) in its final recommendations
to the Public Service Commission dated August 9, 2010.
¶20 In developing the wind energy rules, the Public
Service Commission considered the Wind Siting Council's findings
and recommendations in conjunction with information gathered
from various other sources, including:
• Wind-siting regulations and guidelines from a variety
of states, including those immediately adjacent to
Wisconsin;
• A wide variety of local ordinances and community
agreements from throughout the state;
• Various white papers and best practices;
• Papers from a conference on wind-siting effects;
• Commission experience and precedent in wind-siting
decisions;
• Environmental impact statements prepared for wind
energy projects in Wisconsin;
7
No. 2013AP1407
• Technical and scientific research and writing on wind
siting;
• Presentations and lectures given on wind-siting
issues;
• Research by non-profit organizations and educational
institutions on wind siting;
• Expert testimony on wind-siting issues;
• Other states' investigations and precedent on wind
siting;
• Advice from consulting professionals with public
health experience in Wisconsin;
• Court cases on wind-siting issues;
• Joint development agreements between wind energy
developers and political subdivisions;
• Lease agreements for wind energy developments;
• Complaint resolution documentation from past
complaints about wind energy projects;
• The Public Service Commission's noise measurement
protocols, stray voltage protocols, and application
filing requirements;
• Federal regulations and Federal Aviation
Administration processes, standards, and provisions;
• Other state agencies' processes regarding political
subdivision decision-making; and
• Research, writing, and presentations by the federal
government and national energy labs on wind-siting
issues.
¶21 On May 17, 2010, the Public Service Commission
submitted the first draft of its proposed wind energy rules to
8
No. 2013AP1407
the Legislative Council staff.11 On June 14, 2010, after
reviewing the Public Service Commission's proposal, the
Legislative Council submitted a report to the Public Service
Commission suggesting specific changes to the rules. The Public
Service Commission incorporated many of the Legislative
Council's suggestions.
¶22 The Public Service Commission then held three public
hearings around the state on its proposed wind energy rules:
one in Fond du Lac on June 28, 2010; one in Tomah on June 29,
2010; and one in Madison on June 30, 2010. Written comments
from the public were accepted until noon on July 7, 2010.
¶23 On August 31, 2010, pursuant to Wis. Stat. § 227.19,
which provides for legislative review of proposed rules, the
Public Service Commission submitted its proposed wind energy
rules to the legislature.
¶24 The proposed rules were accompanied by a report to the
legislature, as required by Wis. Stat. § 227.19(2).12
11
See Wis. Stat. § 227.15 ("Prior to a public hearing on a
proposed rule . . . an agency shall submit the proposed rule to
the legislative council staff for review."). See also Wis.
Stat. § 13.91 (creating a nonpartisan bureau entitled
"Legislative Council Staff" and setting forth its duty to review
proposed administrative rules).
12
Wisconsin Stat. § 227.19(2) provides that "[a]n agency
shall submit a notice to the chief clerk of each house of the
legislature when a proposed rule is in final draft form. The
notice shall be submitted in triplicate and shall be accompanied
by a report in the form specified under sub. (3). . . ."
(continued)
9
No. 2013AP1407
¶25 The Public Service Commission did not submit a housing
impact report. The Public Service Commission's report to the
legislature did, however, comment on the likely effect of the
proposed rules on property values.13 The report states as
follows:
Comments submitted by members of the public and
government officials [c]ite studies, report individual
experiences, and express fears that large wind energy
systems have a negative impact on property
values. . . . The property value impacts described
included not being able to get a real estate company
to list a property, a greatly reduced number of
interested buyers, an increased length of time
required to sell a property, and offers well below the
appraised value of the property. . . . Existing
property value studies contain insufficient data to
quantify property value impacts to properties one-half
mile and closer to turbines (emphasis added).
Subsection (3)(g) lists numerous matters to be included in
the report an agency submits to the legislature with a proposed
rule, including "[t]he report of the department of commerce, as
required by s. 227.115, if a proposed rule directly or
substantially affects the development, construction, cost, or
availability of housing in this state." See note 4, supra.
13
See Wis. Stat. § 227.115(3)(a) (explaining that housing
impact reports shall contain information about the effect of a
proposed agency rule on housing in this state, including the
"policies, strategies and recommendations of the state housing
strategy plan," the "cost of constructing, rehabilitating,
improving or maintaining single family or multifamily dwellings,
the "purchase price of housing," the "cost and availability of
financing to purchase or develop housing," and "housing costs,"
as defined in Wis. Stat. § 560.9801(3)(a) and (b)).
The state housing strategy plan, a comprehensive five-year
housing strategy plan, is governed by Wis. Stat. § 560.9802.
The plan is submitted to the governor, the legislature, and the
federal Department of Housing and Urban Development.
10
No. 2013AP1407
¶26 The proposed wind energy rules were then subject to a
lengthy legislative review process.14
¶27 The Senate Committee on Commerce, Utilities, Energy
and Rail considered the proposed wind energy rules at a
Committee hearing held on October 13, 2010. At the hearing,
lobbyists and members of the public offered criticism and
suggested changes to the proposed rules. Representatives from
the Wisconsin Realtors Association and the Wisconsin Towns
Association, two of the plaintiffs in the present case, were
among those who shared their perspectives with the Senate
Committee.
¶28 Based on its review of the proposed rules and the
testimony presented, the Senate Committee voted to return the
proposed rules to the Public Service Commission for further
consideration and potential modification.
¶29 In a letter to the Public Service Commission dated
November 30, 2010, Senator Jon Erpenbach, a member of the Senate
Committee, "share[d] some perspective as to why" the proposed
rules were being returned to the Public Service Commission. The
letter summarizes the concerns raised by various parties at the
Senate Committee hearing, including the concerns raised by the
Wisconsin Realtors Association and the Wisconsin Towns
Association. The letter then states: "I think the above
14
See Wis. Stat. § 227.19 (governing legislative review of
proposed administrative rules).
11
No. 2013AP1407
outline gives the [Public Service] Commission a number of
particular issues to re-examine within the rule[s]."
¶30 Senator Erpenbach's letter is silent about the failure
to file a housing impact report and says nothing about the
effect of the proposed wind energy rules on property values or
on housing generally.
¶31 In response to the legislature's concerns, the Public
Service Commission modified the proposed rules. The rules were
resubmitted to the legislature on December 9, 2010.
¶32 On February 28, 2011, after the legislature's review
period expired, the Public Service Commission promulgated its
wind energy rules by publication in the Wisconsin Administrative
Register. The rules, codified as Wis. Admin. Code ch. PSC 128,
were to take effect the next day.
¶33 On the first day the rules became effective (March 1,
2011), the Joint Committee for Review of Administrative Rules
suspended application of the rules pursuant to Wis. Stat.
§ 227.26(2)(d).15
¶34 Suspension of a rule is temporary unless the rule is
repealed.16 Wisconsin Admin. Code ch. PSC 128 was not repealed.
Accordingly, Wis. Admin. Code ch. PSC 128 took effect on March
15
Wisconsin Stat. § 227.26(2)(d), titled "Temporary
suspension of rules," provides that the Joint Committee for
Review of Administrative Rules "may suspend any rule by a
majority vote of a quorum of the committee. . . ."
16
See Wis. Stat. § 227.26(2)(i) (governing the repeal of a
suspended rule).
12
No. 2013AP1407
16, 2012. Nearly three years had elapsed since the legislature
had initially directed the Public Service Commission to
promulgate rules governing wind energy systems.
¶35 On June 6, 2012, WRA filed a lawsuit in the circuit
court (the subject of this review), seeking a declaration under
Wis. Stat. § 227.40(4)(a) that Wis. Admin. Code ch. PSC 128 is
invalid because it was promulgated without complying with
statutory rule-making procedures
¶36 Both WRA and the Public Service Commission filed
motions for summary judgment. The circuit court heard the
motions on April 29, 2013. At the conclusion of the hearing,
the circuit court granted the Public Service Commission's motion
for summary judgment, stating:
I'm satisfied, when you look at the exact wording of
the rule of 227.015 [sic], "If a proposed rule
directly or substantially affects the development,
construction costs, or availability of housing in the
State," and it goes on, I'm satisfied that these wind
siting rules——wind turbine siting rules do not and
that there was no requirement to have a report.
¶37 In an unpublished decision, the court of appeals
affirmed the circuit court's summary judgment ruling. The court
of appeals reasoned as follows:
Wisconsin Stat. § 227.115(2) requires a housing impact
report only when a proposed rule "directly or
substantially affects the development, construction,
cost, or availability of housing in this
state[.]" . . . Although neither the [Public Service]
Commission nor the wind siting council explicitly
addressed § 227.115(2), both entities clearly found
that wind energy systems do not substantially affect
property values. Based on that finding, the [Public
Service] Commission could reasonably conclude its
13
No. 2013AP1407
proposed rules . . . would not directly or
substantially affect the development, construction,
cost, or availability of housing in Wisconsin.
. . . .
We must . . . presume that [Wis. Admin. Code ch.] PSC
128 was duly promulgated and that the [Public Service
Commission] complied with Wis. Stat. § 227.115(2). In
other words, we must presume no housing impact report
was required . . . .17
II
¶38 We review the summary judgment in favor of the Public
Service Commission using the same standards and methods applied
by the circuit court.18 Under Wis. Stat. § 802.08(2), a moving
party is entitled to summary judgment if there are no genuine
issues of material fact and the moving party is entitled to
judgment as a matter of law.
¶39 In the instant case, the parties do not dispute the
facts. The instant case raises only a question of law, namely
whether the wind energy rules were promulgated by the Public
Service Commission without compliance with statutory rule-making
procedures.19 More specifically, the question is whether under
17
Wis. Realtors Ass'n v. Pub. Serv. Comm'n, No. 2013AP1407,
unpublished slip op., ¶¶12-13 (Wis. Ct. App. Mar. 25, 2014).
18
Pawlowski v. Am. Family Mut. Ins. Co., 2009 WI 105, ¶15,
322 Wis. 2d 21, 777 N.W.2d 67.
19
See Wis. Stat. § 227.40(4)(a) (providing that the court
shall declare an administrative rule invalid if it finds that
(1) the rule violates constitutional provisions; (2) the rule
exceeds the statutory authority of the agency; or (3) the rule
was promulgated without compliance with statutory rule-making
procedures).
14
No. 2013AP1407
Wis. Stat. § 227.115(2), the Department of Commerce was required
as a matter of law to prepare a housing impact report before
Wis. Admin. Code ch. PSC 128 was submitted to the Legislative
Council staff for review. As WRA acknowledges, the
interpretation and application of statutes ordinarily present
questions of law this court decides independently of the circuit
court and the court of appeals, but benefitting from their
analyses.20
III
¶40 Before addressing whether a housing impact report was
required as a matter of law for Wis. Admin. Code ch. PSC 128, we
set forth the statutory framework within which this dispute
arises.
¶41 The instant case involves the 2009-10 version of the
Wisconsin Statutes. We caution that the statutory landscape of
agency rule-making has since changed. See 2011 Wis. Act 21.
One commentator has summarized these changes as follows:
2011 Wisconsin Act 21 significantly changes how
administrative rules are promulgated. Among other
things, it narrows state agencies' rule-making
authority, gives the governor new powers to approve or
prevent the adoption of rules, expands the economic-
impact-analysis requirement to all agencies, and
20
Brown v. LIRC, 2003 WI 142, ¶11, 267 Wis. 2d 31, 671
N.W.2d 279.
15
No. 2013AP1407
expands venue in declaratory judgment actions to all
counties.21
¶42 None of the changes enacted in 2011 are at issue in
the instant case. Thus, we turn to the 2009-10 statutes that
govern the present dispute.
¶43 We previously set forth the statutory provision that
directs the Public Service Commission to promulgate rules
specifying the restrictions a political subdivision may impose
on the installation or use of a wind energy system. See Wis.
Stat. § 196.378(4g)(b), set forth in full at ¶15, above. The
Public Service Commission adopted Wis. Admin. Code ch. PSC 128,
the wind energy rules at issue, pursuant to this statutory
authority.
¶44 The promulgation of a rule by the Public Service
Commission and judicial review of a rule promulgated by the
Public Service Commission are both governed by Chapter 227 of
the Wisconsin Statutes (titled "Administrative Procedure and
Review"). Several statutory provisions within this chapter are
relevant to the instant case. We set them forth in turn.
¶45 Wisconsin Stat. § 227.40(1) provides that the
exclusive method for judicial review of the validity of an
21
Ronald Sklansky, Changing the Rules on Rulemaking, Wis.
Lawyer, Aug. 2011, at 10, available at
http://www.wisbar.org/newspublications/wisconsinlawyer/pages/wis
consin-lawyer.aspx?Volume=84&Issue=8.
For a challenge to 2011 Wis. Act 21, see Coyne v. Walker,
2015 WI App 21, 361 Wis. 2d 225, ___ N.W.2d ___ (petition for
review filed Mar. 20, 2015).
16
No. 2013AP1407
agency rule is a declaratory judgment action challenging the
rule filed in the circuit court. The text of Wis. Stat.
§ 227.40(1) is as follows: "[T]he exclusive means of judicial
review of the validity of a rule shall be an action for
declaratory judgment as to the validity of such rule brought in
the circuit court . . . ."22
¶46 WRA sought declaratory relief in the instant case
pursuant to this statutory provision.
¶47 When a declaratory judgment action challenging a rule
is filed, Wis. Stat. § 227.40(4)(a) governs the limited
circumstances under which a court grants relief. Under Wis.
Stat. § 227.40(4)(a), a court shall declare a challenged rule
invalid if it finds that (1) the rule violates constitutional
provisions; (2) the rule exceeds the statutory authority of the
agency; or (3) the rule was promulgated without compliance with
statutory rule-making procedures.
¶48 Wisconsin Stat. § 227.40(4)(a) states in full as
follows: "In any proceeding pursuant to this section for
judicial review of a rule, the court shall declare the rule
invalid if it finds that it violates constitutional provisions
or exceeds the statutory authority of the agency or was
22
See also Wis. Stat. § 227.01(13) (defining "rule" for
purposes of Wis. Stat. ch. 227 as "a regulation, standard,
statement of policy or general order of general application
which has the effect of law and which is issued by an agency to
implement, interpret or make specific legislation enforced or
administered by the agency or to govern the organization or
procedure of the agency").
17
No. 2013AP1407
promulgated without compliance with statutory rule-making
procedures."
¶49 WRA does not assert that Wis. Admin. Code ch. PSC 128
violates constitutional provisions or exceeds the statutory
authority of the Public Service Commission.23 Instead, WRA
describes its challenge to Wis. Admin. Code ch. PSC 128 as a
"facial challenge to the rule[s]," arguing only that the rules
were promulgated without compliance with statutory rule-making
procedures.
¶50 Thus, we continue by setting forth the statutory rule-
making procedures that are relevant to the instant case.
¶51 Wisconsin Stat. § 227.20(1) requires an agency
promulgating a rule to file a certified copy of the rule it is
promulgating with the Legislative Reference Bureau.24 The
statute provides: "An agency shall file a certified copy of
each rule it promulgates with the legislative reference bureau.
23
The Public Service Commission clearly had statutory
authority to promulgate Wis. Admin. Code ch. PSC 128. Several
provisions within Wis. Stat. ch. 196 (titled "Regulation of
Public Utilities") authorize the Public Service Commission to
promulgate rules governing public utilities. The provision
relevant here, which we discussed previously, is Wis. Stat.
§ 196.378(4g)(b) (directing the Public Service Commission to
promulgate rules governing wind energy systems).
24
The Legislative Reference Bureau is a nonpartisan bureau
established by the legislature to provide "reference services"
to the legislature, other government officials, and the public.
See Wis. Stat. § 13.92.
18
No. 2013AP1407
No rule is valid until the certified copy has been
filed. . . ."25
¶52 The Public Service Commission filed a certified copy
of the rules at issue with the Legislative Reference Bureau.
¶53 Filing a certified copy of a rule with the Legislative
Reference Bureau gives rise to a legislatively enacted
presumption that the process by which the rules were promulgated
was proper. More specifically, Wis. Stat. § 227.20(3) creates a
presumption that a rule filed with the Legislative Reference
Bureau was "duly promulgated" and that "all of the rule-making
procedures required by [Chapter 227] were complied with."
¶54 The full text of Wis. Stat. § 227.20(3) is as follows:
(3) Filing a certified copy of a rule with the
legislative reference bureau creates a
presumption of all of the following:
(a) That the rule was duly promulgated by the
agency.
(b) That the rule was filed and made available
for public inspection on the date and time
endorsed on it.
(c) That all of the rule-making procedures
required by this chapter were complied with.
(d) That the text of the certified copy of the
rule is the text as promulgated by the
agency.
¶55 Chapter 227 of the Wisconsin Statutes does not discuss
this presumption further.
25
Wis. Stat. § 227.20(1).
19
No. 2013AP1407
¶56 Finally, we return to the statute with which we began:
Wis. Stat. § 227.115(2), which governs housing impact reports.
The full text of Wis. Stat. § 227.115(2) is as follows:
(2) Report on rules affecting housing. If a proposed
rule directly or substantially affects the
development, construction, cost, or availability of
housing in this state, the department [of
administration] shall prepare a report on the proposed
rule before it is submitted to the legislative council
staff under s. 227.15. The department may request any
information from other state agencies, local
governments or individuals or organizations that is
reasonably necessary for the department to prepare the
report. The department shall prepare the report
within 30 days after the rule is submitted to the
department.
¶57 These statutes provide the foundation for our analysis
of the legal issue presented.
IV
¶58 As previously explained, the issue presented is
whether the wind energy rules were promulgated without
compliance with statutory rule-making procedures, that is,
whether the rules were promulgated without a housing impact
report in violation of the law.
¶59 We decide this issue as follows.
¶60 First, we explain that because there is a
legislatively enacted presumption that the wind energy rules
were duly promulgated and that all statutory rule-making
procedures were complied with, and because WRA is the party
challenging the validity of the rules, WRA bears the burden of
proof. WRA must prove that a housing impact report was required
20
No. 2013AP1407
as a matter of law for the promulgation of Wis. Admin. Code ch.
PSC 128.
¶61 Second, we conclude that WRA has not fulfilled its
burden of proving that as a matter of law, Wis. Admin. Code ch.
PSC 128 was promulgated without compliance with statutory rule-
making procedures.
¶62 Third, and finally, we explain that this court's
respect for the doctrine of separation of powers and the role of
the legislature counsels against our invalidating a chapter of
agency rules that survived the statutorily prescribed process of
legislative review.
¶63 For these reasons, we uphold Wis. Admin. Code ch. PSC
128 against WRA's challenge and declare on the basis of the
record before us that the rules at issue were not promulgated
without compliance with statutory rule-making procedures.
A
¶64 Because WRA contests what showing it must make in the
instant case, we begin by explaining that WRA has the burden to
prove that a housing impact report was required as a matter of
law for Wis. Admin. Code ch. PSC 128.
¶65 The Public Service Commission stresses that it filed a
certified copy of Wis. Admin. Code ch. PSC 128 with the
Legislative Reference Bureau and therefore has the benefit of
the statutory presumption that it complied with all statutory
rule-making procedures.
¶66 The text of Wis. Stat. § 227.20(3) directs us to
presume that the rule was duly promulgated by the agency and
21
No. 2013AP1407
that all statutory rule-making procedures have been followed,
including those pertaining to the preparation of a housing
impact report. The statute apparently creates a rebuttable
presumption, similar in operation to the generally recognized
rebuttable presumption of the constitutionality of a statute; a
court is to presume that the agency that promulgated the rule
followed the statute regarding housing reports, but a party
challenging the rule may rebut that presumption. The statute
also requires courts to respect the legislature's role in
reviewing and approving agency rules by presuming the validity
of rules that have survived the legislature's scrutiny.
¶67 In any event, as the party challenging the validity of
the wind energy rules, WRA has the burden of proving the
invalidity of the rules.26 Thus, even without the statutory
presumption, WRA has the burden to prove that a housing impact
report was required as a matter of law for Wis. Admin. Code ch.
PSC 128.
B
¶68 WRA attempts to meet its burden of proof by setting
forth unconvincing interpretations of Wis. Stat. § 227.115(2)
26
"The burdens of pleading and proof with regard to most
facts have been and should be assigned to the plaintiff who
generally seeks to change the present state of affairs and who
therefore naturally should be expected to bear the risk of
failure of proof or persuasion." 2 Kenneth S. Brown, McCormick
on Evidence § 337, at 648 (7th ed. 2013). See also Loeb v.
Board of Regents, 29 Wis. 2d 159, 164, 138 N.W.2d 227 (1965);
Currie v. DILHR, 210 Wis. 2d 380, 387, 565 N.W.2d 253 (Ct. App.
1997).
22
No. 2013AP1407
(governing housing impact reports) and Wis. Stat.
§ 196.378(4g)(b) (directing the legislature to promulgate wind
energy rules).
¶69 WRA first contends that a housing impact report is
required under Wis. Stat. § 227.115(2) whenever a proposed rule
relates to housing and that rules promulgated pursuant to Wis.
Stat. § 196.378(4g)(b) necessarily relate to housing. WRA
further argues that under Wis. Stat. § 227.115(5), the Public
Service Commission was required to, but did not, make an
explicit determination of whether a housing impact report was
required.
¶70 We examine these arguments in turn.
¶71 WRA asserts that in the context of Wis. Stat.
§ 227.115(2), which requires the preparation of a housing impact
report for proposed rules that directly or substantially affect
the development, construction, cost, or availability of housing
in this state, "the word 'affect' should be interpreted to mean
'concern' or 'deal with.'"27
¶72 WRA does not attempt to define the meaning of the
other words in the statute. WRA does not explain what the
phrase "directly or substantially" means, what it means to
affect the "cost" of housing, or what it means to affect housing
"in this state."
27
WRA's brief at 36.
23
No. 2013AP1407
¶73 WRA implies, however, that the housing impact report
requirement is far-reaching and that Wis. Stat. § 227.115(2)
mandates the preparation of a housing impact report for all
proposed rules that may in any way affect any kind of housing in
the state.
¶74 With this expansive interpretation of Wis. Stat.
§ 227.115(2) in mind, WRA next contends that any and all rules
promulgated pursuant to Wis. Stat. § 196.378(4g)(b), which
directs the Public Service Commission to promulgate wind energy
rules, require a housing impact report.28 WRA reasons that rules
promulgated pursuant to Wis. Stat. § 196.378(4g)(b) will
necessarily "concern" or "deal with" housing because such rules
are intended to provide reasonable protection from the health
effects of wind turbines, because "improper [wind turbine]
setback[s] could unreasonably affect the health of those living
near wind turbines,"29 and because such unreasonable health
effects could in turn affect property values.30
¶75 WRA also reasons that rules promulgated pursuant to
Wis. Stat. § 196.378(4g)(b) will necessarily "concern" or "deal
with" housing because such rules limit the ability of local
28
"On its face, Wis. Stat. § 196.378(4g)(b) directed the
PSC to create a rule that the Legislature expected would 'affect
housing' in this state." WRA's brief at 18.
29
WRA's brief at 15.
30
"Logically, if living in houses located too close to wind
turbines would be unhealthy, that knowledge would affect the
desirability and value of such homes." WRA's brief at 38.
24
No. 2013AP1407
governmental units to regulate the installation and use of wind
turbines in their communities for the purpose of protecting
housing. Thus, in WRA's view, the content of the rules
established pursuant to Wis. Stat. § 196.378(4g)(b) is
irrelevant; a housing impact report is required no matter what
the rules provide.
¶76 Based on WRA's interpretation of these two statutes,
WRA concludes that all wind energy rules have the potential to
affect property values and, consequently, that a housing impact
report was required for the specific wind energy rules at issue.
¶77 WRA's reasoning is not convincing.
¶78 First, WRA seems to view Wis. Stat. § 227.115(2) as
requiring a housing impact report whenever a proposed rule in
any way relates to housing. This reading of the statute ignores
the statutory text. The statute uses the phrase "directly or
substantially," which demonstrates that not just any effect will
trigger the housing impact report requirement. WRA reads this
phrase out of the statute.
¶79 The court of appeals explained that "a housing impact
report is not required simply because the subject matter of a
proposed rule relates to housing, or because the rule
tangentially affects housing in some way."31 We agree. The
ordinary meaning of the phrase "directly or substantially
affects" is not "affects in any way" or "relates to in some
31
Wis. Realtors Ass'n v. Pub. Serv. Comm'n, No. 2013AP1407,
unpublished slip op., ¶14 (Wis. Ct. App. Mar. 25, 2014).
25
No. 2013AP1407
way," as WRA seems to believe. Wisconsin Stat. § 227.115(2)
requires something more.
¶80 The drafting history of Wis. Stat. § 227.115(2)
supports our interpretation of the housing impact report
requirement. During the drafting process, the words "directly
or indirectly" were replaced with the words "directly or
substantially." See 1995 A.B. 384, Assembly Substitute Am. 1.
We agree with the court of appeals that this modification of the
bill's language suggests that the legislature did not intend for
a housing impact report to be prepared every time a proposed
rule has some indirect or incidental effect on housing.
¶81 WRA's interpretation of Wis. Stat. § 196.378(4g)(b),
which directs the Public Service Commission to promulgate wind
energy rules, is equally implausible. Nothing in Wis. Stat.
§ 196.378(4g)(b) states explicitly or implicitly that rules
governing wind energy systems will necessarily directly or
substantially affect the development, construction, cost, or
availability of housing in this state, such that a housing
impact report will be required.
¶82 Wisconsin Stat. § 196.378(4g)(b) instructs the Public
Service Commission to develop rules that "provide reasonable
protection from any health effects . . . associated with wind
energy systems." (Emphasis added.) There is no mention in Wis.
Stat. § 196.378(4g)(b) of protecting housing generally or of
protecting property values specifically. See Wis. Stat.
§ 196.378(4g)(b), set forth in full at ¶15, above.
26
No. 2013AP1407
¶83 A review of Wis. Stat. § 13.099(2) supports our
conclusion that rules promulgated pursuant to Wis. Stat.
§ 196.378(4g)(b) do not necessarily require a housing impact
report.
¶84 Wisconsin Stat. § 13.099(2) requires a housing impact
report for any bill introduced in the legislature that "directly
or substantially affects the development, construction, cost or
availability of housing in this state . . . ." Thus, Wis. Stat.
§ 13.099(2) creates a housing impact report requirement for
bills similar to the housing impact report requirement for
proposed rules.
¶85 When the legislature introduced the bill that was
subsequently enacted as Wis. Stat. § 196.378(4g)(b), it did not
request a housing impact report and no housing impact report was
prepared. The strong, unrebutted implication is that the
legislature did not consider introduction of the bill that
became Wis. Stat. § 196.378(4g)(b) (or the wind energy rules
that would be promulgated thereunder) as "directly or
substantially affect[ing] the development, construction, cost or
availability of housing in this state."
¶86 There is, in sum, no foundation for WRA's assertion
that the legislature "expected" the wind energy rules
promulgated pursuant to Wis. Stat. § 196.378(4g)(b) to
necessarily require a housing impact report under Wis. Stat.
§ 227.115(2). WRA's interpretations of Wis. Stat. §§ 227.115(2)
and 196.378(4g)(b) are not cogent.
27
No. 2013AP1407
¶87 We turn next to WRA's argument that the wind energy
rules were necessarily promulgated without compliance with
statutory rule-making procedures because the Public Service
Commission was required to, but did not, make an explicit
determination of whether a housing impact report was required.
¶88 According to WRA, the record shows that during the
time the Public Service Commission was engaged in the
promulgation of Wis. Admin. Code ch. PSC 128, neither the Public
Service Commission itself nor the Wind Siting Council ever
discussed or voted upon whether a housing impact report was
necessary. WRA apparently believes that an explicit, on-the-
record determination by the Public Service Commission regarding
whether a housing impact report is needed was required before
the wind energy rules could be promulgated.
¶89 WRA does not, however, point to any statutory
provision mandating such an explicit determination by the Public
Service Commission or any other entity, and we find none. We
decline to read a procedural requirement into the statutes that
the legislature opted not to impose.32
¶90 The absence of an explicit, on-the-record
determination regarding whether a housing impact report is
required is therefore not dispositive and it does not persuade
32
"We should not read into the statute language that the
legislature did not put in." State v. Matasek, 2014 WI 27, ¶20,
353 Wis. 2d 601, 846 N.W.2d 811 (quoting Brauneis v. LIRC, 2000
WI 69, ¶27, 236 Wis. 2d 27, 612 N.W.2d 635).
28
No. 2013AP1407
us that the wind energy rules were promulgated without
compliance with statutory rule-making procedures.
¶91 In sum, WRA's interpretations of Wis. Stat.
§§ 227.115(2) and 196.378(4g)(b) are unconvincing, and we are
not persuaded that the Public Service Commission was required to
make an on-the-record determination regarding the necessity of a
housing impact report. WRA has not fulfilled its burden of
proving that a housing impact report was required as a matter of
law for Wis. Admin. Code ch. PSC 128.
C
¶92 We turn to one final consideration that weighs against
our granting WRA relief in the present case.
¶93 Although WRA recognizes that Wis. Admin. Code ch. PSC
128 was promulgated after an active and lengthy legislative
review process, WRA nevertheless asks this court to declare that
the failure to submit a housing impact report renders Wis.
Admin. Code ch. PSC 128 invalid.
¶94 According to WRA, the Public Service Commission
"usurped the Legislature's power when it decided that it had
adequately protected the public [through Wis. Admin. Code ch.
PSC 128] and that no second opinion [in the form of a housing
impact report] [wa]s therefore required."33
¶95 Like WRA, we are concerned about usurpation of the
legislative function. We conclude, however, that if we granted
33
WRA's brief at 15.
29
No. 2013AP1407
WRA its requested relief in the instant case, we would be
usurping the legislative function by striking down rules that
survived the legislature's scrutiny.
¶96 The separation of powers doctrine informs us in this
matter. "The Wisconsin constitution creates three separate co-
ordinate branches of government, no branch subordinate to the
other, no branch to arrogate to itself control over the other
except as is provided by the constitution, and no branch to
exercise the power committed by the constitution to another."34
¶97 Chapter 227 of the Wisconsin Statutes governs agency
rule-making and legislative review of agency rules, among other
things. These statutes comprise a system devised by the
legislature itself to govern the legislature's role in and
oversight of agency rule-making. Chapter 227 provides for
expansive legislative review of rules both before their
promulgation35 and after their promulgation.36
¶98 Pursuant to these statutes, the legislature has the
opportunity to request modifications to proposed rules,37 to
34
State v. Holmes, 106 Wis. 2d 31, 42, 315 N.W.2d 703
(1982).
35
See Wis. Stat. § 227.19 ("Legislative Review Prior to
Promulgation").
36
See Wis. Stat. § 227.26 ("Legislative Review After
Promulgation; Joint Committee for Review of Administrative
Rules").
37
See Wis. Stat. § 227.19(4)(b); Wis. Stat. § 227.19(4)(d);
Wis. Stat. § 227.19(5)(b).
30
No. 2013AP1407
prevent the promulgation of proposed rules,38 to temporarily
suspend rules that have been promulgated,39 and to repeal
promulgated rules altogether.40
¶99 In light of the statutes' providing for expansive
legislative review of rules and limited judicial review of
rules, it is incumbent upon the court to exercise both deference
and restraint in the present case.
¶100 The legislature did not merely passively permit the
promulgation of Wis. Admin. Code ch. PSC 128. On the contrary,
the legislature held a hearing on Wis. Admin. Code ch. PSC 128
prior to its promulgation and then sent the rules back to the
Public Service Commission for further consideration.
¶101 WRA had an opportunity to register its objections to
the rules before the legislature. The rules were modified in
response to the legislature's concerns, which encompassed WRA's
concerns.
¶102 Even after its promulgation, Wis. Admin. Code ch. PSC
128 was temporarily suspended for yet another round of
legislative review.
¶103 In sum, the legislature had ample opportunity to
express reservations about the proposed wind energy rules, to
request changes to the proposed rules, to prevent promulgation
38
Wis. Stat. § 227.19(5)(e); Wis. Stat. § 227.19(5)(f).
39
Wis. Stat. § 227.26(2)(d).
40
Wis. Stat. § 227.26(2)(f); Wis. Stat. § 227.26(2)(i).
31
No. 2013AP1407
of the proposed rules, and to suspend and even repeal the rules
after they were promulgated.
¶104 The fact is, after a lengthy and active period of
review, the legislature allowed the rules set forth in Wis.
Admin. Code ch. PSC 128 to go into effect.
¶105 The Public Service Commission's wind energy rules
survived the legislative review process and now have "the force
and effect of law in Wisconsin."41
¶106 In the instant case, the court's role is limited. We
may determine only whether the rules were promulgated without
compliance with statutory rule-making procedures. WRA has
failed to meet its burden of proving non-compliance.
¶107 Nonetheless, our opinion in the instant case should
not be read to imply that WRA's frustration with the process by
which Wis. Admin. Code ch. PSC 128 was promulgated is entirely
unwarranted.
¶108 WRA stated at oral argument that it greatly values
Wis. Stat. § 227.115(2). In WRA's view, the second opinion a
housing impact report provides to the legislature constitutes a
necessary check in the process of promulgating a rule that
affects housing.
¶109 WRA also stated at oral argument that to its
knowledge, no housing impact report has ever been requested or
41
See State ex rel. Staples v. DHSS, 115 Wis. 2d 363, 367,
340 N.W.2d 194 (1983).
32
No. 2013AP1407
produced under Wis. Stat. § 227.115(2).42 Thus, WRA believes a
critical step in the process of promulgating a rule that affects
housing has been routinely ignored and has been circumvented in
the instant case.
¶110 WRA's concerns, while understandable, do not persuade
us to grant it relief.
¶111 We conclude that WRA has not demonstrated that a
housing impact report was required as a matter of law for Wis.
Admin. Code ch. PSC 128. The texts of the governing statutes
and the wind energy rules do not demonstrate as a matter of law
that the rules directly or substantially affect the development,
construction, cost, or availability of housing in this state.
¶112 We further conclude that invalidating Wis. Admin. Code
ch. PSC 128 under the circumstances presented in the instant
case would infringe on the role of the legislature, which we
decline to do.
¶113 Accordingly, WRA's challenge to Wis. Admin. Code ch.
PSC 128 fails.
By the Court.—The decision of the court of appeals is
affirmed.
42
We, too, have been unable to confirm that any housing
impact report has ever been prepared pursuant to Wis. Stat.
§ 227.115(2).
33
No. 2013AP1407.pdr
¶114 PATIENCE DRAKE ROGGENSACK, C.J.
(dissenting). Wisconsin Realtors Association, Wisconsin
Builders Association, Wisconsin Towns Association, Jon E.
Morehouse, Sr. and Ervin E. Selk (hereinafter Wisconsin
Realtors) challenge the Public Service Commission's (the
Commission) promulgation of Wis. Admin. Code ch. PSC 128 because
the Commission did not follow the required rule-making procedure
set out in Wis. Stat. § 227.115(2) (2009-10).1 I conclude that
the Commission was obligated, as a matter of law, to obtain a
§ 227.115(2) housing report because ch. PSC 128 directly affects
housing. The Commission failed to obtain a § 227.115(2) housing
report; therefore, ch. PSC 128 is invalid. Wis. Stat.
§ 227.40(4)(a). Accordingly, I respectfully dissent from the
majority opinion.
I. BACKGROUND
¶115 This case reaches us on competing motions for summary
judgment in regard to whether Wis. Admin. Code ch. PSC 128 was
lawfully promulgated. Chapter PSC 128 regulates wind energy
systems. In relation to housing, it establishes the following:
maximum setbacks of wind turbines from dwellings; permissible
wind turbine noise levels, as measured at nearby dwellings; the
number of hours per year during which dwellings can be subjected
to shadow flicker cast by wind turbines.
¶116 The legislature was concerned that wind turbines may
affect both the health of Wisconsin citizens and housing. Wis.
1
All subsequent references to the Wisconsin Statutes are to
the 2009-10 version unless otherwise indicated.
1
No. 2013AP1407.pdr
Stat. § 196.378(4g)(e); Wis. Stat. § 227.115(2). However, the
legislature did not want each local unit of government imposing
its own regulations, which could unnecessarily impede the
development of wind energy in Wisconsin. Accordingly, the
legislature directed the Commission to promulgate rules that
would reasonably protect people in their homes from health
effects and reduced property values that could result from
nearby wind turbines, while at the same time creating a uniform
system of regulations for wind energy systems throughout the
state. § 196.378(4g)(b).
¶117 In promulgating Wis. Admin. Code ch. PSC 128, the
Commission was required to obtain a comprehensive housing report
from the Department of Commerce2 if its proposed rule "directly
or substantially affects the development, construction, cost, or
availability of housing in this state." Wis. Stat.
§ 227.115(2). The required housing report was to be prepared
"before [the proposed rule] is submitted to the legislative
council staff under s. 227.15." Id.
¶118 The record and arguments of the parties reveal that
the Commission never requested or obtained the required housing
report from the Department. Apparently, the Commission never
considered its obligations under Wis. Stat. § 227.115(2) because
§ 227.115 is not listed in the Commission's "Plain Language
2
At the time Wis. Admin. Code ch. PSC 128 was created, the
Department of Commerce was to have prepared the housing report.
Wis. Stat. § 227.115(1)(a). The current version of
§ 227.115(1)(a) (2013-14) requires that the report be prepared
by the Department of Administration.
2
No. 2013AP1407.pdr
Analysis" that it submitted to the Legislature and in which the
Commission mentioned other statutes.
II. DISCUSSION
¶119 The majority opinion employs three methods by which it
permits the Commission to ignore the command of the legislature.
First, it misunderstands Wisconsin Realtors' argument, and
therefore, never addresses it. Second, without deciding what
Wis. Stat. § 227.115(2) means, the majority opinion chooses not
to apply § 227.115(2) to Wis. Admin. Code ch. PSC 128.3 In so
doing, it ignores the policy choice of the legislature, which
requires a housing report if a Commission rule directly or
substantially affects housing. Third, the majority opinion
employs Wis. Stat. § 227.20(3) to create a presumption that the
Commission followed all applicable rule-making procedures based
on the Commission's filing of a certified copy of ch. PSC 128
with the Legislative Reference Bureau.4
A. Standard of Review
¶120 We review summary judgment granted to the Commission
by the circuit court and affirmed by the court of appeals. We
review independently, as a matter of law, whether summary
judgment was properly granted. Grygiel v. Monches Fish & Game
Club, Inc., 2010 WI 93, ¶12, 328 Wis. 2d 436, 787 N.W.2d 6. Our
review centers on interpretation and application of statutes.
Statutory interpretation and application present questions of
3
Majority op., ¶7.
4
Id., ¶¶66-67.
3
 No. 2013AP1407.pdr
law for our independent review; however, we benefit from the
reasoning of other courts' decisions. Richards v. Badger Mut.
Ins. Co., 2008 WI 52, ¶14, 309 Wis. 2d 541, 749 N.W.2d 581.
This controversy also involves the interpretation and
application of administrative rules. These too present
questions of law for our independent review. Brown v. Brown,
177 Wis. 2d 512, 516, 503 N.W.2d 280 (Ct. App. 1993).
B. Rule Promulgation
1. "Directly affects"
¶121 All parties agree that if Wis. Admin. Code ch. PSC 128
directly affects housing, the Commission was required to obtain
a housing report from the Department before it filed the rule
with the Legislative Reference Bureau. The parties' dispute
centers on the meaning of "directly affects" in Wis. Stat.
§ 227.115(2). This issue is clouded in the majority opinion
because it never bothers to interpret § 227.115(2) and tell the
reader what "directly affects" means. It is also clouded by the
majority opinion's repeated mischaracterization of Wisconsin
Realtors' argument.5
¶122 Determination of the meaning of "directly affects" is
informed by the meaning of Wis. Stat. § 196.378(4g)(b) because
§ 196.378(4g)(b) is the enabling legislation for Wis. Admin.
5
For example, the majority asserts, that Wisconsin Realtors
"contends that a housing impact report is required under Wis.
Stat. § 227.115(2) whenever a proposed rule relates to housing."
Majority op., ¶69. That is not an accurate representation of
Wisconsin Realtors' contention. Rather, Wisconsin Realtors
contends that a housing report is required when a Commission's
rule directly or substantially affects housing.
4
No. 2013AP1407.pdr
Code ch. PSC 128. Therefore, the Commission was required to
follow the legislative directives of § 196.378(4g)(b) when it
promulgated ch. PSC 128. Wis. Hosp. Ass'n v. Natural Res. Bd.,
156 Wis. 2d 688, 706, 457 N.W.2d 879 (Ct. App. 1990) (explaining
that on review "court[s] should identify the elements of the
enabling statute and match the rule against those elements").
The meaning of Wis. Stat. § 227.115(2) also informs the
controversy before us because of the proximity of wind turbines
to housing.
¶123 I interpret Wis. Stat. § 196.378(4g)(b) and Wis. Stat.
§ 227.115(2) to ascertain their meaning. Kalal v. Circuit Court
for Dane Cnty., 2004 WI 58, ¶43, 271 Wis. 2d 633, 681 N.W.2d
110. Scope, context and purpose are relevant to a plain meaning
analysis. Id., ¶48. I also note that "[a]n administrative
agency has only those powers which are expressly conferred or
can be fairly implied from the statutes under which it
operates." Oneida Cnty. v. Converse, 180 Wis. 2d 120, 125, 508
N.W.2d 416 (1993).
¶124 Wisconsin Stat. § 227.115(2) addresses rules that
affect housing such that, together with Wis. Stat.
§ 196.378(4g)(b), they establish requirements for the
Commission's promulgation of Wis. Admin. Code ch. PSC 128.
Furthermore, because these statutes bear on the same subject
matter, here, the promulgation of administrative rules that
regulate wind turbines, they are construed in that context so
that they are consistent with one another. McDonough v. DWD,
227 Wis. 2d 271, 279, 595 N.W.2d 686 (1999). Accordingly, the
5
No. 2013AP1407.pdr
Commission was required to have exercised its rule-making
authority within the framework established by these statutes.
¶125 I begin with the words chosen by the legislature in
its enabling legislation. Wisconsin Stat. § 196.378(4g)(b)
provides in relevant part:
The commission shall . . . promulgate rules that
specify the restrictions a political subdivision may
impose on the installation or use of a wind energy
system consistent with the conditions specified in s.
66.0401(1m)(a) to (c). The subject matter of these
rules shall include setback requirements that provide
reasonable protection from any health effects,
including health effects from noise and shadow
flicker, associated with wind energy systems. The
subject matter of these rules . . . may include . . .
set-back distances, maximum audible sound levels,
shadow flicker, proper means of measuring noise,
interference with radio, telephone, or television
signals, or other matters. A political subdivision
may not place a restriction on the installation or use
of a wind energy system that is more restrictive than
these rules.
¶126 The legislative grant of authority to the Commission
in Wis. Stat. § 196.378(4g)(b) described the legislature's
purpose and topics that the Commission was required to address
when promulgating Wis. Admin. Code ch. PSC 128. Section
196.378(4g)(b) plainly states that the rules enacted "shall
include setback requirements that provide reasonable protection
from any health effects, including health effects from noise and
shadow flicker." Section 196.378(4g)(b) also granted the
Commission discretionary authority in other areas.
¶127 There are good reasons for the legislature's mandate
that the Commission enact setback requirements for wind
turbines. It is well known that wind turbines may be harmful to
6
No. 2013AP1407.pdr
the health of those who live close to them and are sensitive to
the noise and shadow flicker they produce. See Roy D. Jeffery,
et al., Adverse Health Effects of Industrial Wind Turbines, 59
Canadian Family Physician 473 (2013); Jerry Punch & Richard
James, Negative Health Effects of Noise from Industrial Wind
Turbines: Some Background,
http://www.hearinghealthmatters.org/hearingviews/2014/wind-
turbine-health-problems-noise (last visited March 26, 2015).
¶128 Directly connected to legislatively focused health
concerns, Wis. Admin. Code § PSC 128.13 establishes siting
criteria for wind turbines in regard to setback distance and
height requirements; Wis. Admin. Code § PSC 128.14 addresses
noise criteria;6 Wis. Admin. Code § PSC 128.15 addresses shadow
flicker.7 Accordingly, the Commission's application of Wis.
Stat. § 196.378(4g)(b) is driven by wind turbines' effects on
the health of people who live or work in proximity to wind
turbines.
6
Wisconsin Admin. Code § PSC 128.14 provides in relevant
part: "[A]n owner shall operate the wind energy system so that
the noise attributable to the wind energy system does not exceed
50 dBA during daytime hours and 45 dBA during nighttime hours."
§ PSC 128.14(3)(a). The determination of noise level is made at
"the outside wall nearest to the closest wind turbine." § PSC
128.14(4).
7
Wisconsin Admin. Code § PSC 128.15(1)(b) and (2) provides
in relevant part: "An owner shall design the proposed wind
energy system to minimize shadow flicker at a residence or
occupied community building . . . [so it] does not cause more
than 30 hours per year of shadow flicker."
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¶129 Wisconsin Admin. Code § PSC 128.13(1)(a) provides for
permissible setbacks, depending on the type of building that is
nearby. The largest setback is 1,250 feet. The setback from
wind turbines generally is measured as the distance from the
wind turbine tower to the nearest point on the foundation of a
residence or occupied community building. § PSC 128.13(1)(b).
¶130 The setbacks of Wis. Admin. Code § PSC 128.13 lessen
the noise and shadow flicker impacts of wind turbines on
residents and real estate that are as far away from the wind
turbines as § PSC 128.13(1)(a) provides. Stated otherwise,
without consideration of the setbacks of § PSC 128.13, wind
turbines could be placed in the middle of residential
communities with houses only a few feet away so long as no local
ordinance regulated placement.
¶131 Because Wis. Admin. Code ch. PSC 128 prevents
placement of wind turbines that are inconsistent with its
provisions, ch. PSC 128 lessens the effects of wind turbines on
the health of people who reside nearby. Chapter PSC 128 does so
by subjecting the housing in which people live to less noise and
less shadow flicker. Stated otherwise, §§ PSC 128.13, 128.14
and 128.15 directly affect the levels of noise and shadow
flicker that wind turbines inflict on nearby housing.
¶132 The effect of wind turbines on the health of people
living nearby was considered by the Wind Siting Council when ch.
PSC 128 was enacted. Furthermore, Wis. Stat. § 196.378(4g)(e)
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requires periodic review of wind turbines' effects on health.8
Because wind turbines have the potential to affect the health of
those who live nearby, wind turbines also will affect the market
for those properties because some buyers will reject the
properties because they believe that wind turbines will have a
negative effect on their health. See, e.g., Nina Pierpont, Wind
Turbine Syndrome: A Report on a Natural Experiment (2009)
(available at http://www.windturbinesyndrome.com).
¶133 The legislature recognized that health effects
associated with wind turbines may be connected to the distance
between wind turbines and housing when it required that setbacks
provide "reasonable protection from any health effects." Wis.
Stat. § 196.378(4g)(b). As health effects caused by wind
turbines also affect the real estate market, the legislature
required the Commission to obtain a housing report while it was
in the process of promulgating Wis. Admin. Code ch. PSC 128.
Wisconsin Stat. § 227.115 specified the findings that the
Department was required to make in assessing a proposed rule's
effect on housing. Section 227.115(3) provides:
(a) The report of the department shall contain
information about the effect of the proposed rule on
housing in this state, including information on the
effect of the proposed rule on all of the following:
8
The Wind Siting Council is required to "survey the peer-
reviewed scientific research regarding the health impacts of
wind energy systems." Wis. Stat. § 196.378(4g)(e); see
Wisconsin Wind Siting Council, Wind Turbine Siting-Health Review
and Wind Siting Policy Update, 3-4, 14 (2014). The Wind Siting
Council addressed health concerns, not housing concerns.
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1. The policies, strategies and recommendations
of the state housing strategy plan.
2. The cost of constructing, rehabilitating,
improving or maintaining single family or multifamily
dwellings.
3. The purchase price of housing.
4. The cost and availability of financing to
purchase or develop housing.
5. Housing costs, as defined in s. 560.9801(3)(a)
and (b).
(b) The report shall analyze the relative impact
of the effects of the proposed rule on low– and
moderate– income households.
¶134 The legislature required the Commission to request a
housing report from the Department if a "proposed rule directly
or substantially affects the development, construction, cost, or
availability of housing" in Wisconsin. Wis. Stat. § 227.115(2).
Section 227.115(2) requires the Commission to do so before the
proposed rule is forwarded to the legislative council staff
under Wis. Stat. § 227.15.
¶135 Wisconsin Stat. § 227.115(2)'s phrase, "directly or
substantially affects," is not defined in § 227.115, nor has it
been interpreted in prior cases. However, the phrase "directly
affects" has been interpreted in other contexts. For example,
Sausen v. Town of Black Creek Bd. of Review, 2014 WI 9, ¶3, 352
Wis. 2d 576, 843 N.W.2d 39, concludes that an assessor's
classification of property "directly affects" the property's
assessment because of the classification's relationship to
statutory percentages of assessment. State v. Long, 2009 WI 36,
¶51, 317 Wis. 2d 92, 765 N.W.2d 557, explains that proof of a
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prior conviction "directly affects" a liberty interest because
such proof is relevant to the term of incarceration to which a
defendant may be subjected. City of Appleton v. Town of
Menasha, 142 Wis. 2d 870, 879, 419 N.W.2d 249 (1988), concludes
that any illegal expenditure of public funds "directly affects"
taxpayers because taxpayers suffer a pecuniary loss as a result.
¶136 In each decision, "directly affects" has been defined
by a nexus between an act and the interest of a person that is
influenced by the act. Accordingly, I conclude that the plain
meaning of "directly affects" in Wis. Stat. § 227.115(2)
includes an act that has a nexus to housing. That is, in order
for a proposed rule to "directly affect" housing, there must be
a nexus between the proposed rule and housing.
¶137 As I have explained, Wis. Admin. Code ch. PSC 128 has
a nexus to housing due to the setbacks of § PSC 128.13, the
decibel noise levels of § PSC 128.14 and the minimization of
shadow flicker in § PSC 128.15, all of which regulate wind
turbines' effects on nearby housing. Stated otherwise, the
plain meaning of "directly affects" in Wis. Stat. § 227.115(2)
includes those proposed rules that regulate wind turbine
setbacks, noise levels and shadow flicker.
¶138 These obvious nexuses are the core of Wisconsin
Realtors' contention from which it concluded that a housing
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report was required by Wis. Stat. § 227.115(2).9 Stated
otherwise, it is the position of Wisconsin Realtors that
§ 227.115(2) does not require that a rule have a negative effect
on housing before a housing report is required by § 227.115(2).10
Rather, the legislative threshold for requiring a housing report
under § 227.115(2) is triggered whenever housing is "directly
affected" by the terms of a proposed rule. I agree with
Wisconsin Realtors. The statute says nothing about obtaining a
housing report only when a rule negatively or inadequately
affects housing.
¶139 Furthermore, Wis. Stat. § 196.378(4g)(b) and Wis.
Stat. § 227.115(2) must be read together because they bear on
the same subject matter, proposed administrative rules.
McDonough, 227 Wis. 2d at 279. When we do so, the nexus between
the health effects of wind turbines and housing becomes
apparent.
¶140 Wisconsin Admin. Code §§ PSC 128.13, 128.14 and 128.15
directly affect noise levels and shadow flicker to which housing
is subjected by the operation of wind turbines. It follows then
as a matter of course that the effect of wind turbines on
9
The majority opinion repeatedly misstates Wisconsin
Realtors' position. See majority op., e.g., ¶¶69-76. In so
doing, the majority opinion sets up straw men that it can knock
down. However, more importantly, this device permits the
majority opinion to escape addressing Wisconsin Realtors' actual
argument about why Wis. Admin. Code ch. PSC 128 directly affects
housing.
10
If there was ever any doubt, Wisconsin Realtors' position
in this regard was clearly stated at oral argument under
questioning by the court.
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housing is central to carrying out the plain meaning of
§ 196.378(4g)(b), which required the Commission to draft rules
that addressed wind turbines' effects on health. Stated
otherwise, housing is central to the Commission's compliance
with § 196.378(4g)(b) because it is due to living in nearby
housing that the health of Wisconsin residents is most affected
by wind turbines. Therefore, if the Commission's rules did not
directly affect housing, those rules would have a limited impact
on health, contrary to the enabling legislation for ch. PSC 128.
¶141 Both the court of appeals and the majority opinion
misunderstand Wisconsin Realtors' argument. For example, the
court of appeals said,
To demonstrate that a housing impact report was
required, [Wisconsin Realtors] must show that the
setback, noise, and shadow flicker restrictions
imposed by PSC 128 are so inadequate that the rules
will directly or substantially affect the development,
construction, cost, or availability of housing in
Wisconsin.
Wis. Realtors Ass'n v. Pub. Serv. Comm'n of Wis., No.
2013AP1407, unpublished slip op., ¶18 (Wis. Ct. App. March 25,
2014).
¶142 However, no showing of inadequacy is required of
Wisconsin Realtors under Wis. Stat. § 227.115(2) in order to
demonstrate that Wis. Admin. Code ch. PSC 128 directly affects
housing. The plain meaning of the words that the legislature
chose for Wis. Stat. § 227.115(2) does not require that the
rules the Commission proposed be "inadequate" in order for those
rules to directly affect housing. All that is required is a
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nexus between the proposed rules and their effect on housing.
It is beyond dispute that ch. PSC 128 has such a nexus.
¶143 Once that threshold is met, a housing report is
required. It is the task of the Department, as it prepares the
housing report, to assess whether the administrative rules were
adequate or inadequate to protect housing. The Department's
assessment and report was to be done during the rule-making
process. Stated otherwise, the legislature gave the Department
the task of assessing whether proposed rules are adequate to
protect the housing of people who reside near wind turbines.11
The legislature did not give that task to persons whose health
and property values are impacted by the proposed rule. That was
a burden for government to shoulder, which the court of appeals12
and the majority opinion13 have mistakenly placed on those
Wisconsin residents who live near wind turbines.
11
See supra note 2.
12
That the court of appeals added words to Wis. Stat.
§ 227.115(2) and thereby constructed a standard contrary to what
the legislature mandated is confirmed by the court's conclusion
that "[w]ithout presenting evidence that the restrictions
imposed by PSC 128 are insufficient, [Wisconsin Realtors] cannot
rebut the presumption that no housing impact report was
required." Wis. Realtors Ass'n v. Pub. Serv. Comm'n of Wis.,
No. 2013AP1407, unpublished slip op., ¶18 (Wis. Ct. App.
March 25, 2014).
13
See majority op., ¶7.
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2. Presumption
¶144 The majority opinion also concludes that if all else
fails, Wis. Admin. Code ch. PSC 128 is saved by the presumption
of Wis. Stat. § 227.20(3), which provides in relevant part:
(3) Filing a certified copy of a rule with the
legislative reference bureau creates a presumption of
all of the following:
. . . .
(c) That all of the rule-making procedures
required by this chapter were complied with.
¶145 I take judicial notice that a certified copy of Wis.
Admin. Code ch. PSC 128 was filed with the Legislative Reference
Bureau. However, because §§ PSC 128.13, 128.14 and 128.15
directly affect housing, a Wis. Stat. § 227.115(2) housing
report was required. All agree that the Commission did not
request the Department to prepare a housing report, and the
Department provided no such report. Because the Commission was
required to request a housing report and did not do so, the
presumption of Wis. Stat. § 227.20(3)(c) has been rebutted.
¶146 Furthermore, if governmental agencies could ignore
legislative directives simply by filing a certified copy of a
proposed rule with the Legislative Reference Bureau, there would
be a great temptation for busy agency employees not to bother
with fully complying with legislative directives during rule-
making. Accordingly, the presumption of Wis. Stat.
§ 227.20(3)(c) cannot save the Commission's rules that were
enacted with disregard for the express directives of the
Legislature. See Dane Cnty. v. DHSS, 79 Wis. 2d 323, 331-32,
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255 N.W.2d 539 (1977) (concluding that Dane County could
challenge the manner in which the Department of Health and
Social Services had promulgated its rule).
C. Remedy
¶147 I have concluded that the plain meaning of Wis. Stat.
§ 227.115(2) required the Commission, as a matter of law, to
obtain a housing report from the Department when it promulgated
Wis. Admin. Code ch. PSC 128; that it failed to do so and that
its failure is not saved by Wis. Stat. § 227.20(3)(c). The
question now becomes, what is the remedy for the Commission's
failure.
¶148 Wisconsin Realtors began this declaratory judgment
action pursuant to Wis. Stat. § 227.40. Therefore, I look to
that section's provisions for guidance. Wisconsin Stat.
§ 227.40(4)(a) states:
In any proceeding pursuant to this section for
judicial review of a rule, the court shall declare the
rule invalid if it finds that it violates
constitutional provisions or exceeds the statutory
authority of the agency or was promulgated without
compliance with statutory rule-making procedures.
It is under the last provision: the rule "was promulgated
without compliance with statutory rule-making procedures," on
which Wisconsin Realtors' claim lies.
¶149 Courts have reviewed other rules that have been
promulgated without compliance with rule-making procedures and
have held such rules invalid. For example, in Cholvin v. DHFS,
2008 WI App 127, ¶¶32-34, 313 Wis. 2d 749, 758 N.W.2d 118, the
court of appeals held a directive that the Department of Health
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and Family Services had given to Susan Cholvin was invalid
because the Department did not employ statutorily required rule-
making to promulgate the directive. See also Heritage Credit
Union v. Office of Credit Unions, 2001 WI App 213, ¶24, 247
Wis. 2d 589, 634 N.W.2d 593 (explaining that failure to comply
with rule-making procedures is one ground for declaring a rule
invalid).
¶150 The Commission did not comply with Wis. Stat.
§ 227.115(2), and as a matter of law, it was required to do so.
The plain meaning of Wis. Stat. § 227.40(4)(a) provides the
remedy: "the court shall declare the rule invalid."
Accordingly, I follow that directive and conclude that ch. PSC
128 is invalid.
III. CONCLUSION
¶151 I conclude that the Commission was obligated, as a
matter of law, to obtain a Wis. Stat. § 227.115(2) housing
report because Wis. Admin. Code ch. PSC 128 directly affects
housing. The Commission failed to obtain a § 227.115(2) housing
report; therefore, ch. PSC 128 is invalid. Wis. Stat.
§ 227.40(4)(a). Accordingly, I respectfully dissent from the
majority opinion.
¶152 I am authorized to state that Justice ANNETTE
KINGSLAND ZIEGLER joins this dissent.
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