Lamar Central Outdoor, LLC v. Division of Hearings & Appeals ( 2019 )

2019 WI 109
SUPREME COURT OF WISCONSIN
CASE NO.: 2017AP1823
COMPLETE TITLE: Lamar Central Outdoor, LLC d/b/a Lamar
Advertising of Central Wisconsin and TLC
Properties, Inc.,
Petitioners-Appellants-Petitioners,
v.
State of Wisconsin Division of Hearings &
Appeals,
Respondent-Respondent,
State of Wisconsin Department of Transportation,
Other Party.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 385 Wis. 2d 211,923 N.W.2d 168
(2018 – unpublished)
OPINION FILED: December 19, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: September 4, 2019
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Portage
JUDGE: John M. Counsell
JUSTICES:
KELLY, J., delivered the majority opinion of the Court, in which
ROGGENSACK, C.J., ANN WALSH BRADLEY, ZIEGLER, REBECCA GRASSL
BRADLEY, DALLET, and HAGEDORN, JJ., joined.
NOT PARTICIPATING:
ATTORNEYS:
For the petitioners-appellants-petitioners, there were briefs
filed by Thomas S. Hornig, Kraig A. Byron, and von Briesen & Roper,
S.C., Madison. There was an oral argument by Thomas S. Hornig.
For the respondent-respondent, there was a brief filed by
Thomas C. Bellavia, assistant attorney general; with whom on the
brief was Joshua L. Kaul, attorney general. There was an oral
argument by Thomas C. Bellavia.
There was an amicus curaie brief filed on behalf of Wisconsin
Manufacturers & Commerce, Midwest Food Products Association,
Outdoor Advertising Association of Wisconsin, Wisconsin Cheese
Makers Association and Wisconsin Dairy Alliance by Robert I.
Fassbender and Great Lakes Legal Foundation, Madison. There was an
oral argument by Robert I. Fassbender.
2
2019 WI 109
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2017AP1823
(L.C. No. 2016CV196)
STATE OF WISCONSIN : IN SUPREME COURT
Lamar Central Outdoor, LLC d/b/a Lamar
Advertising of Central Wisconsin and TLC
Properties, Inc.,
Petitioners-Appellants-Petitioners,
v. FILED
State of Wisconsin Division of Hearings & DEC 19, 2019
Appeals,
Sheila T. Reiff
Respondent-Respondent, Clerk of Supreme Court
State of Wisconsin Department of
Transportation,
Other Party.
KELLY, J., delivered the majority opinion of the Court, in which
ROGGENSACK, C.J., ANN WALSH BRADLEY, ZIEGLER, REBECCA GRASSL
BRADLEY, DALLET, and HAGEDORN, JJ., joined.
REVIEW of a decision of the Court of Appeals. Reversed and
the cause is remanded to the circuit court.
¶1 DANIEL KELLY, J. From time to time an administrative
agency changes its interpretation of a statute in a manner that
No. 2017AP1823
adversely affects a regulated activity. Here, an agency developed
a new statutory interpretation that prohibited the owner of a
roadside sign from remedying a modification that caused the sign
to lose its "legal, nonconforming" status. In this case we address
whether Wis. Stat. § 227.10(1)(2015-16)1 required the agency to
promulgate a rule containing the new statutory interpretation
before applying it against the sign owner. We conclude that our
statutes do require promulgation of a new rule under circumstances
presented by this case, and therefore we reverse the decision of
court of appeals.2
I. BACKGROUND
¶2 On a piece of property next to Interstate 39 in Stevens
Point, Wisconsin, there is a sign. It has been there since 1991
when Orde Advertising obtained a permit to build it. Upon its
completion, the sign (we will refer to it as the "Billboard")
complied with the terms of its permit and all applicable laws (the
"permit"). The Billboard has two faces and cumulatively measures
1,344 square feet. Orde Advertising sold the Billboard to Lamar
Central Outdoor, LLC ("Lamar") in 1999.3
1 All subsequent references to the Wisconsin Statutes are to
the 2015-16 version unless otherwise indicated.
2 This is a review of an unpublished decision of the court of
appeals, Lamar Central Outdoor, LLC v. Div. Hearing & Appeals, No.
2017AP1823, unpublished slip. op., (Wis. Ct. App. Nov. 29, 2018).
3 The land on which the Billboard exists is owned by TLC
Properties, Inc.
2
No. 2017AP1823
¶3 For purposes of this case, the Billboard came to the
attention of the Wisconsin Department of Transportation (the
"Department") in 2012 when Lamar applied for a permit to remove
vegetation that partially obscured the Billboard from view (the
"Application"). As part of the permitting process, the Department
reviewed historical photographs, at least one of which depicted
the addition of an extension panel that increased the Billboard's
total advertising area. But the added panel was temporary, and
Lamar had already removed it several years before filing the
Application. With the panel removed, the Billboard returned to
its originally-permitted size. Nothing in the record suggests
that, at the time Lamar filed the Application, the Billboard failed
to comply with the terms of the permit or any applicable laws that
existed at the time the permit issued.
¶4 But circumstances have changed, and the laws no longer
allow the Billboard where it is presently located. As relevant
here, the Billboard may exist only on property defined as a
"business area." See Wis. Stat. § 84.30 (governing outdoor
advertising signs). What qualifies as a business area depends on
whether the property is adjacent to an interstate highway or,
instead, a non-interstate highway. § 84.30(2)(a), (b). In 1996,
the stretch of road next to the Billboard was redesignated from
U.S. Highway 51 to Interstate Highway 39. The parties agree that,
although the property on which the Billboard is located qualified
as a business area when the adjacent highway was designated U.S.
Highway 51, it no longer qualified once the highway became
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No. 2017AP1823
Interstate 39.4 Consequently, the highway's redesignation changed
the Billboard's status from legal to "legal, nonconforming."
¶5 The Billboard's status is important in this case because
the Department says that "legal, nonconforming" signs like the
Billboard may not be enlarged. And if they are enlarged, the
Department says, they become illegal and are subject to removal.
On that basis, the Department denied Lamar's Application. The
Department's amended decision5 said that "records show this sign
was 1344 square feet in area when it became nonconforming in 1996.
Since then, the sign was enlarged, subjecting the sign to removal
as an illegal sign."
¶6 Shortly after denying the Application, the Department
sent Lamar an order requiring it to remove the Billboard (the
"Order"). The operative part of the Order said:
NOTICE: Under the authority provided in Wisconsin
Statutes, [§] 84.30(11) and Wisconsin Administrative
4 When property is adjacent to a non-interstate highway, a
"business area" comprises "any part of an adjacent area which is
zoned for business, industrial or commercial activities under the
authority of the laws of this state; or not zoned, but which
constitutes an unzoned commercial or industrial area as defined in
par. (k)." Wis. Stat. § 84.30(2)(b). However, when the property
is adjacent to an interstate highway, "business areas" are "limited
to commercial or industrial zones within the boundaries of
incorporated municipalities, as those boundaries existed on
September 1, 1959, and all other areas where the land-use as of
September 1, 1959, was clearly established by state law as
industrial or commercial." Id.
5 The Department actually issued two decisions denying the
Application. The second, dated October 10, 2012, is the same as
the first except that it denied the Application for the additional
reason that the vegetation Lamar wanted to clear was not within
the "viewing zone" as defined by Wis. Stat. § 84.305(l)(i).
4
No. 2017AP1823
Code, [§] TRANS 201.09, you are hereby ordered to remove
the above-described outdoor advertising sign within 60
days of the date of this notice.
. . . .
REASON FOR THIS ACTION: This sign does not comply with
applicable federal and/or state laws and agreements, as
detailed below: This sign has been enlarged, in
violation of Wisconsin Administrative Code [§] Trans
201.10(2)(e) and Wisconsin Statute 84.30(5)(bm) . . . .
This is an illegal sign.
¶7 Lamar requested a hearing before the Division of
Hearings and Appeals (the "DHA") to review the Order and the
Department's denial of the Application. The DHA said the Billboard
lost its "legal, nonconforming" status when Lamar added the
temporary panel. It also said that removing the temporary panel
could not recapture the Billboard's prior status. Therefore, it
concluded, Lamar must remove the entire Billboard.6
¶8 Lamar filed a petition for judicial review of the DHA's
decision pursuant to Wis. Stat. § 227.52. The circuit court
affirmed the DHA's final decision "in all respects."7 The court
of appeals affirmed. We granted Lamar's petition for review and
now reverse.
II. STANDARD OF REVIEW
The Department conceded, before the DHA issued its decision
6
in this case, that a change in the statutory definition of "viewing
zone" covers the vegetation Lamar wished to clear. So the DHA
concluded the second basis for denying the Application, as set
forth in the Department's decision of October 10, 2012, is no
longer valid.
The Portage County Circuit Court affirmed the order of the
7
Division of Hearing and Appeals, the Honorable Jon M. Counsell
presided.
5
No. 2017AP1823
¶9 Our duty in this case is to review the DHA's decision,
as opposed to that of the circuit court. Hilton ex rel. Pages
Homeowners' Ass'n v. DNR, 2006 WI 84, ¶15, 293 Wis. 2d 1, 717
N.W.2d 166 ("When an appeal is taken from a circuit court order
reviewing an agency decision, we review the decision of the agency,
not the circuit court."). In performing that review, we do "not
substitute [our] judgment for that of the agency as to the weight
of the evidence on any disputed finding of fact," but we do not
rely on "any finding of fact that is not supported by substantial
evidence in the record." Wis. Stat. § 227.57(6). And we "accord
no deference to the agency's interpretation of law." § 227.57(11);
see also Tetra Tech EC, Inc. v. DOR, 2018 WI 75, ¶108, 382
Wis. 2d 496, 914 N.W.2d 21 ("We have . . . end[ed] our practice of
deferring to administrative agencies' conclusions of law.").
¶10 The specific issue before us also presents a question of
law. "Whether an agency's action constitutes a 'rule' under Wis.
Stat. § 227.01(13) presents a question of law, which we review de
novo." Homeward Bound Servs., Inc. v. Office of Ins. Comm'r, 2006
WI App 208, ¶27, 296 Wis. 2d 481, 724 N.W.2d 380.
III. ANALYSIS
¶11 Our opinion today addresses whether the Department may
order Lamar to remove the Billboard because it temporarily exceeded
its permitted size. The Department's position on the consequences
of temporary violations of a "legal, nonconforming" sign's permit
has morphed over the years. This is not necessarily problematic.
It is to be expected that an administrative agency might, from
time to time, change the manner in which it applies and enforces
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No. 2017AP1823
our State's statutes and regulations. Sometimes a prudential
reordering of priorities or other discretionary factors prompt the
change. But sometimes the change arises from a reevaluation of
what the agency believes a particular statute or regulation
requires. This case implicates the latter circumstance and
addresses whether it was necessary for the Department to promulgate
a rule before implementing its new understanding of the applicable
statute's requirements.
¶12 The Department says that when Lamar added the temporary
extensions to the Billboard, the sign's status changed from "legal,
nonconforming" to "illegal," thereby subjecting it to removal.
And, more importantly, the Department says the change in status is
irreversible——that is, the sign owner has no opportunity to "cure"
the violation. A permit program supervisor who recently worked
for the Department, Ms. Deborah Brucaya, explained the
Department's current position. She said that "if the extension
was placed on the sign after it became nonconforming and was later
removed, [the Department's] interpretation [is] that the sign lost
its nonconforming status" and "became illegal." According to the
Department, this result necessarily follows from the terms of Wis.
Stat. § 84.30(11), which say:
Any sign erected in an adjacent area after March 18,
1972, in violation of this section or the rules
promulgated under this section, may be removed by the
department upon 60 days' prior notice by registered mail
to the owner thereof and to the owner of the land on
which said sign is located, unless such sign is brought
into conformance within said 60 days. No notice shall be
required to be given to the owner of a sign whose name
is not stated on the sign or on the structure on which
7
No. 2017AP1823
it is displayed, or whose address is not stated thereon
or is not on file with the department.
§ 84.30(11) (emphasis added). Lamar cannot exercise this cure
option, the Department says, because changed circumstances make it
impossible to conform the Billboard to the law. It concludes that,
because the redesignation of the adjacent highway means the
property may no longer host signs like the Billboard, "conformance"
actually requires the sign's removal.
¶13 Lamar says the Department's current understanding of
Wis. Stat. § 84.30(11) represents a sharp break from its prior
practice. Previously, it says, the Department granted the owner
of a "legal, nonconforming" sign 60 days to cure whatever condition
caused the sign to violate the permit. One of the Department's
former permit program supervisors, Mr. Robert Hardie, confirmed
that this is how the Department handled changes to signs like the
Billboard. He said that "[i]f a sign was either permitted at a
certain size or legal nonconforming at a certain size, if an
extension went up, it would be considered illegal and have to be
removed or taken back to where it was before." And if the owner
removed the extension "within the 60-day period allotted, the
remainder of the sign could continue unimpeded[.]" That is, the
sign returned to the "legal, nonconforming" status it enjoyed
before the violation. This practice, the supervisor said, was
based on the Department's interpretation of § 84.30(11)——the same
statute on which the Department relies for its current, but
contradictory, position.
8
No. 2017AP1823
¶14 Lamar argues that the Department may not eliminate the
opportunity to cure a violation until it first promulgates a rule
to that effect using the Wis. Stat. Ch. 227 rulemaking procedure.
The Department does not deny that its "no-cure" position differs
from its prior practice, but says no rulemaking is necessary
because it is simply correcting for a previously erroneous
understanding of the law.
¶15 Our resolution of the parties' dispute begins with the
proposition that every agency must "promulgate as a rule each
statement of general policy and each interpretation of a statute
which it specifically adopts to govern its enforcement or
administration of that statute." Wis. Stat. § 227.10(1). A rule
is "a regulation, standard, statement of policy, or general order
of general application that has the force of law and that 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." Wis. Stat. § 227.01(13).
¶16 The Department tells us there are two reasons it did not
need to adopt a rule to eliminate the cure option. First, it says,
Wis. Stat. § 227.10(1) contains a provision allowing it to adopt
a new statutory interpretation in contested cases or the resolution
of particular matters. Second, it says its current position
reflects the Department's application of the clear and unambiguous
requirements of Wis. Stat. § 84.30(11), a circumstance we have
previously indicated does not require rulemaking. Schoolway
Transp. Co. v. DMV, 72 Wis. 2d 223, 240 N.W.2d 403 (1976).
A. Of Contested Cases and Particular Matters
9
No. 2017AP1823
¶17 In the same statute Lamar cited for the rulemaking
mandate, the Department says it found an exemption applicable to
circumstances like those at issue here. The relevant subsection
says this:
Each agency shall promulgate as a rule each statement of
general policy and each interpretation of a statute
which it specifically adopts to govern its enforcement
or administration of that statute. A statement of policy
or an interpretation of a statute made in the decision
of a contested case . . . or in an agency decision upon
or disposition of a particular matter as applied to a
specific set of facts does not render it a rule or
constitute specific adoption of a rule and is not
required to be promulgated as a rule.
Wis. Stat. § 227.10(1). The Department concentrates on the second
sentence, arguing that the Order represents the application of
Wis. Stat. § 84.30(11) to a specific set of facts in the resolution
of a particular matter. Therefore, it concludes, its new
interpretation was not a "rule" within the meaning of this
provision.
¶18 The Department's argument requires us to determine the
meaning of a statute, specifically the second sentence of Wis.
Stat. § 227.10(1). The process for doing so is well-known and
"'begins with the language of the statute. If the meaning of the
statute is plain, we ordinarily stop the inquiry.'" State ex rel.
Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶45, 271
Wis. 2d 633, 681 N.W.2d 110 (quoted source omitted). "Statutory
language is given its common, ordinary, and accepted meaning,
except that technical or specially-defined words or phrases are
given their technical or special definitional meaning." Id. (cited
10
 No. 2017AP1823
source omitted). But sometimes a statute does not have a plain
meaning. "[A] statute is ambiguous if it is capable of being
understood by reasonably well-informed persons in two or more
senses." Id., ¶47. We do not, however, look for ambiguity because
"[s]tatutory interpretation involves the ascertainment of meaning,
not a search for ambiguity." Id. (quoted source omitted); see
also Daniel R. Suhr, Interpreting Wisconsin Statutes, 100
Marq. L. Rev. 969, 985 (2017) ("[T]he court must do its own
independent work to determine whether a statute is ambiguous. It
cannot take the easy road, throwing up its hands and declaring,
'the parties disagree,' or 'the lower courts disagree,' or even
'the dissenters disagree.'").
¶19 The Department did not extensively discuss its
understanding of the meaning of the second sentence of Wis. Stat.
§ 227.10(1). Indeed, it gave us only a few sentences-worth of
explanation to guide our application of its terms. The gist of
the argument seems to be that the Department is free to adopt any
reasonable statutory interpretation it wishes——sans rulemaking——
so long as it does so in a contested case or disposition of a
particular matter. Because the Department adopted its no-cure
position in the process of ordering Lamar to remove the Billboard,
it concludes that § 227.10(1) exempted it from promulgating a rule.
¶20 The Department's argument, however, requires that we
read into Wis. Stat. § 227.10(1) two alternative pathways by which
an agency may adopt a new interpretation of an ambiguous statute.
The first pathway requires promulgation of a new rule, a
requirement found in the first sentence of § 227.10(1) ("Each
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No. 2017AP1823
agency shall promulgate as a rule each statement of general policy
and each interpretation of a statute which it specifically adopts
to govern its enforcement or administration of that statute.").
The Department says the second pathway, found in the second
sentence of § 227.10(1), allows it to adopt a new interpretation
of an ambiguous statute simply by announcing it in a contested
case or in the resolution of a specific matter.
¶21 If the second pathway allowed the Department to change
its interpretation of an ambiguous statute, it would place Wis.
Stat. § 227.10(1) in unresolvable conflict with itself under such
circumstances. While the first sentence requires a rule for each
statutory interpretation, the Department's position would allow it
to regularly engage in ad hoc interpretations of ambiguous
statutes. According to the Department, it is of no consequence
that, until a few years ago, it interpreted Wis. Stat. § 84.30(11)
as allowing the owner of a "legal, nonconforming" sign to cure a
violation, while today it interprets the same statue as foreclosing
that opportunity. And nothing in its explanation of the operation
of § 227.10(1) would prevent it from returning to the original
interpretation tomorrow. Nor would it even preclude the Department
from employing the "cure" interpretation with respect to one sign
while simultaneously applying the contrary "no-cure"
interpretation against another.
¶22 All of this would be consistent with Wis. Stat.
§ 227.10(1), according to the Department's rationale, but only if
it surprises a sign-owner with the new interpretation of an
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No. 2017AP1823
ambiguous statute.8 That is, to escape the rulemaking mandate of
the first sentence, it must wait for a contested case or some other
resolution of a specific matter before announcing the new
interpretation.9 If it instead announced the interpretation prior
to a contested case or resolution of a specific matter, presumably
even the Department would agree it would need to engage in
rulemaking.10 The Department does not describe how, in the context
of an ambiguous statute, its understanding of the second sentence
of § 227.10(1) could possibly coexist with the first sentence's
mandate that it engage in rulemaking when it adopts a new
interpretation.
¶23 The plain meaning of Wis. Stat. § 227.10(1), the meaning
that makes sense of both sentences, is that it describes only one
pathway by which an agency can adopt a new interpretation of an
ambiguous statute: The agency must adopt a rule. The second
That appears to be what happened here. When asked if the
8
Department had ordered other signs removed based on the no-cure
policy, Ms. Brucaya testified that "this is the only instance that
[she] was aware of where a sign removal order was issued on [this]
basis."
Wis. Stat. § 227.10(1) ("A statement of policy or an
9
interpretation of a statute made in the decision of a contested
case, in a private letter ruling under s. 73.035 or in an agency
decision upon or disposition of a particular matter as applied to
a specific set of facts does not render it a rule or constitute
specific adoption of a rule and is not required to be promulgated
as a rule.").
Wis. Stat. § 227.10(1) ("Each agency shall promulgate as a
10
rule each statement of general policy and each interpretation of
a statute which it specifically adopts to govern its enforcement
or administration of that statute.").
13
No. 2017AP1823
sentence, the one on which the Department relies, neither provides
an alternative path by which to announce a new interpretation of
an ambiguous statute, nor excuses the Department from the
requirement imposed on it by the first sentence. It merely
recognizes that, in resolving specific matters, agency decisions
will often contain——but not create——a statement of policy, or
interpretation of a statute as applied to the matter at hand, and
that they need not adopt a new rule for each specific matter they
resolve.11 However, the second sentence does not say that an agency
need not promulgate a rule embodying the new interpretation of an
ambiguous statute before implementing it in a specific case. There
is nothing in § 227.10(1) that authorizes the Department to adopt
its "no-cure" interpretation through the simple expedient of
ordering Lamar to remove the Billboard.
B. Correcting Erroneous Statutory Applications
¶24 The Department also said it could implement its "no-
cure" interpretation of Wis. Stat. § 84.30(11) without
promulgating a new rule because it was simply conforming its
practice to the statute's requirements. The Department's
statement of the principle is correct——we have previously
explained that when an agency corrects a previously erroneous
application of a plain and unambiguous statute, it is not
interpreting the statute, but merely conforming its practice to
the law. Schoolway Transp. Co., 72 Wis. 2d at 228 ("When a statute
We need not determine the significance or operation of the
11
second sentence of Wis. Stat. § 227.10(1) in the context of an
unambiguous statute, and so offer no opinion on that topic.
14
No. 2017AP1823
is plain and unambiguous, no interpretation is required[.]"); id.
at 236 ("[T]he duty of the Department [is] to administer the
statute according to its plain terms and to correct its error.").
So when an agency brings its practice into conformity with the
plain meaning of an unambiguous statute, "there is no requirement
that the department comply with the filing procedures mandated in
connection with promulgation of administrative rules[,]" even
though the new statutory application contradicts its previous
practice. Id.12 But when an agency changes its interpretation of
an ambiguous statute, it is engaging in rulemaking. Id. at 237
("[W]hen the Department changed its interpretation of [Wis. Stat.
§] 341.26(2)(h) [which the court had determined to be ambiguous],
it was engaging in administrative rule making."). Under those
circumstances, "[t]hose who are or will be affected generally by
this interpretation should have the opportunity to be informed as
to the manner in which the terms of the statute regulating their
12Schoolway Transp. Co. v. DMV, 72 Wis. 2d 223, 240
N.W.2d 403 (1976) should not be understood as giving agencies a
mechanism for adopting new statutory interpretations without
promulgating a new rule. The principle enunciated in that case
arises from an agency's obligation to follow the law as enacted by
the legislature——an obligation that supersedes any contrary
interpretations it may have previously adopted. When an agency
discovers its interpretation is out of step with plain and
unambiguous statutory commands, it must conform itself to those
commands as a matter of course. Only in such a circumstance may
the agency change a prior interpretation without promulgating a
new rule. Indeed, in such a circumstance the agency must
immediately conform its interpretation to the statute's
requirements. Id. at 229 ("In view of the clear statutory
requirements, the Department was duty-bound to cease its prior
practice of allowing dual registration.").
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No. 2017AP1823
operations will be applied." Id. The agency informs those
affected by the changed interpretation by promulgating a new rule.
Id. ("This is accomplished by the issuance and filing procedures
established by ss. 227.01(4) and 227.023(1).").13
¶25 Whether the Department needed to adopt its "no-cure"
position as a rule, therefore, depends on whether Wis. Stat.
§ 84.30(11) unambiguously prevents the owner of a "legal,
nonconforming" sign from recovering the sign's pre-existing status
by curing the status-altering violation. So our goal is to
determine whether there is a clear and plain meaning of § 84.30(11)
as it relates to this question. Kalal, 271 Wis. 2d 633, ¶45. We
use the same process for doing so as we did in discovering the
meaning of Wis. Stat. § 227.10(1), above.
¶26 The Department says there are two ways we could conclude
that its "no-cure" interpretation is the natural and inevitable
result of unambiguous statutory commands. The first is that Wis.
Stat. § 84.30(11)——the provision containing the right to cure——
does not apply at all to signs that were lawfully erected (like
the Billboard).14 Alternatively, the Department says that if
13Wis. Stat. § 227.023(1), as cited in Schoolway Transp. Co.,
was repealed in 1986 and renumbered as Wis. Stat. § 227.20 in 1985
Wis. Act 182.
14 This subsection says:
16
No. 2017AP1823
§ 84.30(11) does apply to signs like the Billboard, the cure option
is available only to those who can conform their signs to the
applicable laws as they apply to current circumstances. We will
address each basis in turn.
1. Applicability of Wis. Stat. § 84.30(11) to "legal,
nonconforming" signs
¶27 In the space of this one case, the Department has been
of both minds with respect to whether Wis. Stat. § 84.30(11)
applies to the Billboard. Its Order——the one requiring Lamar to
remove the Billboard——says § 84.30(11) is the underlying source of
the Department's statutory authority. See Order ("Under the
authority provided in Wisconsin Statutes, [§] 84.30(11) and
Wisconsin Administrative Code, [§] TRANS 201.09[15], you are hereby
ordered to remove the above-described outdoor advertising sign
within 60 days of the date of this notice."). But here, the
Any sign erected in an adjacent area after March
18, 1972, in violation of this section or the rules
promulgated under this section, may be removed by the
department upon 60 days' prior notice by registered mail
to the owner thereof and to the owner of the land on
which said sign is located, unless such sign is brought
into conformance within said 60 days. No notice shall be
required to be given to the owner of a sign whose name
is not stated on the sign or on the structure on which
it is displayed, or whose address is not stated thereon
or is not on file with the department.
Wis. Stat. § 84.30(11).
15 "Any sign erected after October 1, 1972, without a permit
having been granted therefor, and any nonconforming sign which
subsequently violates s. 84.30, Stats., or these rules, shall be
subject to removal as an illegal sign." Wis. Admin. Code § Trans
201.09.
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No. 2017AP1823
Department says § 84.30(11) does not apply to the Billboard because
its provisions contemplate only signs that, when erected, were in
violation of controlling law. It notes that the statute applies
to "[a]ny sign erected in an adjacent area after March 18, 1972,
in violation of this section or the rules promulgated under this
section . . . ." § 84.30(11) (emphasis added). Because the
Billboard complied with all applicable laws when it was built, the
Department argues, it is outside the universe of signs subject to
the terms of § 84.30(11). The Department says this latter position
(that § 84.30(11) does not apply to the Billboard) means Lamar has
no statutory source of authority for its claimed right to cure the
status-altering modification.
¶28 The Department's conflicting positions with respect to
whether Wis. Stat. § 84.30(11) applies to the Billboard suggests
we need to decide which one is correct. But as it turns out, it
hardly matters. If we agree with the position the Department took
when it issued the Order (that § 84.30(11) does apply to the
Billboard), our analysis would simply progress to the Department's
alternative argument, to wit, determining what it means for a sign
to have been "brought into conformance." But if we agree with the
Department's current interpretation of § 84.30(11), the one it
advanced here, then it wins the battle over the inapplicability of
§ 84.30(11) while losing the war over whether it was required to
promulgate a new rule embodying its "no-cure" interpretation.
¶29 This is necessarily so because, as the parties agree, we
are addressing this part of the Department's argument under the
Schoolway Transp. Co. rubric, which excuses the rulemaking
18
No. 2017AP1823
requirement only if the no-cure interpretation is consistent with
plain and unambiguous statutory commands.16 But if the
Department's current position is correct, that Wis. Stat.
§ 84.30(11) does not apply to the Billboard, then it must follow
that this statute cannot command the Department to adopt a no-cure
policy with respect to such signs. That is to say, a statute that
does not apply to the subject under consideration is entirely
incapable of plainly and unambiguously commanding the Department
to adopt a specific policy with respect to that subject. So if
the Department wishes to rely on the Schoolway Transp. Co. rubric,
it must look elsewhere for a plain and unambiguous statutory
command. It has not done so.
¶30 Instead, because the Department could point to no
statute (other than Wis. Stat. § 84.30(11)) requiring adoption of
its no-cure policy, it referred us to Wis. Admin. Code §§ Trans
201.09 and 201.10 as the operative authorities.17 The first of
16This also means we have no need to disambiguate the statute
to reach our conclusion. Under the Schoolway Transp. Co. rubric,
we have a binary decision before us: Is the statute, or is it
not, clear and unambiguous? The answer dictates how the remainder
of the analysis proceeds. But no part of that analysis requires
us to resolve ambiguities, and we express no opinion on which of
the interpretations of Wis. Stat. § 84.30(11) is correct.
17We determine the meaning of a rule in the same way we
determine the meaning of a statute. "These rules of interpretation
apply with equal force to administrative regulations: 'When
interpreting administrative regulations the court uses the same
rules of interpretation as it applies to statutes.'" Kieninger v.
Crown Equip. Corp., 2019 WI 27, ¶14 n.6, 386 Wis. 2d 1, 924
N.W.2d 172 (quoting United Food and Commercial Workers Union Local
1473 v. Hormel Foods Corp., 2016 WI 13, ¶30, 367 Wis. 2d 131, 876
N.W.2d 99).
19
No. 2017AP1823
these provisions says that "[a]ny sign erected after October 1,
1972, without a permit having been granted therefor, and any
nonconforming sign which subsequently violates s. 84.30, Stats.,
or these rules, shall be subject to removal as an illegal sign."
§ Trans 201.09. The second provision says that "[i]n order to
lawfully maintain and continue a nonconforming sign . . . the
following conditions apply . . . [t]he sign must have been lawful
on the effective date of the state law and must continue to be
lawfully maintained." § Trans 201.10(2)(d). These are, of course,
rules. And rules cannot function in the Schoolway Transp. Co.
rubric inasmuch as it is nonsensical to say that an agency need
not promulgate a rule to change a prior practice so long as it has
promulgated a rule adopting the new practice.
¶31 So the Department's reliance on Wis. Admin. Code
§§ Trans 201.09 and 201.10 boils down to a simple matter of
determining whether the rules adopted the Department's "no-cure"
policy. They did not. No one disputes that when a "legal,
nonconforming" sign (such as the Billboard) violates Wis. Stat.
§ 84.30 it becomes illegal and subject to removal. But the
Department's argument depends on the rule precluding Lamar from
curing the status-altering violation. And § Trans 201.09 is
completely silent on that subject. Similarly, § Trans 201.10
requires a nonconforming sign to be lawfully maintained, upon pain
of losing its status. But it says nothing about whether curing a
status-altering violation can recapture the sign's previous
status. Finally, not even the Department thought these rules said
anything about the right to cure——until, that is, it issued the
20
No. 2017AP1823
Order. These rules have existed in their current form since 1976,18
a span of time that encompasses the era in which the Department's
interpretation of § 84.30(11) allowed owners of "legal,
nonconforming" signs to cure status-altering violations. It was
not until 2012 (when the Department ordered Lamar to remove the
Billboard) that it suddenly discovered that these rules required
it to adopt its current no-cure interpretation. So while these
rules remained as a fixed point of reference, the Department's
understanding of what they require fluctuated. The Department did
not explain how the rules' unchanging text could engender changing
interpretations. For that reason, and because nothing in the text
of § Trans 201.09 or § Trans 201.10 suggests a no-cure policy,
these provisions do not answer the question before us.
¶32 In sum, the Department's argument that its adoption of
the no-cure policy falls within the Schoolway Transp. Co.
rulemaking exemption because Wis. Stat. § 84.30(11) does not apply
to the Billboard must fail inasmuch as it identified no plain and
unambiguous statutory command necessitating that policy. The most
this argument could have accomplished was the undoing of Lamar's
position that it has a statutory right to cure violations. But
eliminating support for Lamar's argument is not the same as
identifying an unambiguous statutory command requiring the
Department's new policy. Further, the Department may not rely on
Wis. Admin. Code §§ Trans 201.09 or 201.10 as a substitute for a
The rules were renumbered from Wis. Admin. Code §§ Hy 19.09
18
and 19.10 to Wis. Admin. Code §§ 201.09 and 201.10, respectively,
in 1980.
21
No. 2017AP1823
plain and unambiguous statute in the Schoolway Transp. Co. rubric.
Finally, nothing in those rules indicates the Department had
adopted a no-cure policy prior to issuance of the Order.
Therefore, we will proceed to the Department's alternative
argument, to wit, that § 84.30(11) does apply to the Billboard,
and that it unambiguously precludes Lamar from curing the
Billboard's status-altering violation.
2. The meaning of "conformance"
¶33 The Department argues that, even if Wis. Stat.
§ 84.30(11) applies to the Billboard, the statute's terms make the
cure option unavailable to owners of "legal, nonconforming" signs.
So, it concludes, it could adopt its no-cure interpretation without
a rule (under the Schoolway Transp. Co. rubric) because it was
just aligning itself with the statute's plain and unambiguous
requirements. The provision on which it relies says:
Any sign erected in an adjacent area after March 18,
1972, in violation of this section or the rules
promulgated under this section, may be removed by the
department upon 60 days' prior notice by registered mail
to the owner thereof and to the owner of the land on
which said sign is located, unless such sign is brought
into conformance within said 60 days.
§ 84.30(11). Specifically, the Department directs us to the phrase
"unless such sign is brought into conformance within said 60 days."
Id. Lamar cannot bring the Billboard "into conformance," according
to the Department, because current law prohibits the erection or
maintenance of signs like the Billboard in that location. Indeed,
the Department says that "conformance" under these circumstances
actually requires Lamar to remove the Billboard.
22
No. 2017AP1823
¶34 Whether the Department is correct depends on what the
Billboard must be "in conformance" with. Unfortunately, Wis. Stat.
§ 84.30(11) does not provide an immediately obvious answer. We
can readily determine that the conformity requirement refers to
the phrase "this section or the rules promulgated under this
section," which appears in the first clause of the subsection.
Id. But circumstances have changed, and the way the statutory
section and rules apply to the Billboard is different now. When
the permit issued, the Billboard was in conformance because it was
located in a business area. But once the adjacent portion of U.S.
Highway 51 became Interstate 39, the lot on which the Billboard
resides lost its status as a business area. So after the
redesignation, the Billboard obtained something of a hybrid
status——it was legal because it was in conformance with the laws
as they applied when the permit issued, but it was not in
conformance with the same laws as they applied after the
redesignation. Lamar says that, with respect to such signs,
"conformance" in § 84.30(11) refers to the first part of the sign's
hybrid status, meaning that if the Billboard can be brought "into
conformance" with the laws as they applied when the permit issued,
then it has the right to cure the violation. The Department, on
the other hand, says "conformance" refers to the second part of
the Billboard's hybrid status, meaning that there can be no right
to cure unless the Billboard can be made to comply with the laws
as they apply today.
¶35 The Billboard obviously cannot comply with the laws as
they apply to today's circumstances. The property on which the
23
No. 2017AP1823
Billboard is located no longer qualifies as a "business area," and
there is nothing Lamar can do to remedy that infirmity. But the
Billboard can comply with the laws as they applied when the permit
issued. Therefore, we need to know which part of the Billboard's
hybrid status the "conformance" language of Wis. Stat. § 84.30(11)
implicates. Under the Schoolway Transp. Co. rubric, the Department
would not have needed to promulgate a rule only if the statute
plainly and unambiguously applies to the latter part of the
Billboard's hybrid status.
¶36 The language of Wis. Stat. § 84.30(11) does not provide
any obvious clues as to which part of the Billboard's status it
implicates, and so we must go beyond Kalal's first step in
determining the statute's meaning. Kalal, 271 Wis. 2d 633, ¶45
("[W]e have repeatedly held that statutory interpretation 'begins
with the language of the statute. If the meaning of the statute is
plain, we ordinarily stop the inquiry.'") (quoted source omitted).
The next step in a plain meaning analysis is looking to the
statute's scope, context, structure, and purpose to see if they
provide any helpful direction.19
19We have previously recognized the following aids in
determining a statute's meaning:
24
No. 2017AP1823
¶37 The Department says its new interpretation of Wis. Stat.
§ 84.30(11) furthers the general policy objective of eliminating
nonconforming signs. It points to § 84.30(5)(b), which says that
"[a] sign lawfully erected after March 18, 1972 and which
subsequently does not conform to this section shall be removed by
the end of the 5th year after it becomes nonconforming."20 That,
however, is only part of the general policy——the other part
requires payment of just compensation for the removal of such
signs:
The department shall pay just compensation upon the
removal or relocation on or after March 18, 1972, of any
of the following signs which are not then in conformity
with this section, regardless of whether the sign was
removed because of this section:
Context is important to meaning. So, too, is the
structure of the statute in which the operative language
appears. Therefore, statutory language is interpreted 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 reasonably,
to avoid absurd or unreasonable results . . . .
[S]cope, context, and purpose are perfectly relevant to
a plain-meaning interpretation of an unambiguous statute
as long as the scope, context, and purpose are
ascertainable from the text and structure of the statute
itself, rather than extrinsic sources, such as
legislative history.
State ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58,
¶¶46, 48, 271 Wis. 2d 633, 681 N.W.2d 110 (citations omitted).
See also State ex rel. Peterson v. Burt, 42 Wis. 2d 284,
20
291, 166 N.W.2d 207 (1969) ("'The spirit of zoning is to restrict
rather than increase a non-conforming use and to eliminate such
uses as speedily as possible.'") (quoted source omitted).
25
No. 2017AP1823
. . . .
(b) Signs lawfully in existence on land adjoining
any highway made an interstate or primary highway after
March 18, 1972.
§ 84.30(6). So § 84.30(11) operates in the context of a policy
favoring the expeditious removal of nonconforming signs with
compensation. But there is no such policy with respect to
uncompensated removal of nonconforming signs. In fact, as far as
the statutes are concerned, unless and until the Department pays
just compensation, the law allows a "legal, nonconforming" sign to
exist indefinitely.21 Consequently, Wisconsin's policy with
respect to the maintenance of non-conforming signs provides no
guidance on whether a status-altering violation results in
permanent illegality as opposed to only a temporary illegality
that can be remedied by curing the violation.
21We recognize that the court of appeals has previously said
that, in the context of a zoning dispute, a status-altering
violation of a "legal, nonconforming" use cannot be remedied, which
furthers the elimination of such uses. See Waukesha Cty. v.
Pewaukee Marina, Inc., 187 Wis. 2d 18, 31, 522 N.W.2d 536 (Ct.
App. 1994) ("The violation of the nonconforming use by expansion
or enlargement which changes the use invalidates the legal
nonconforming use as well as the illegal change."); Peterson, 42
Wis. 2d at 291 ("'The spirit of zoning is to restrict rather than
increase a non-conforming use and to eliminate such uses as
speedily as possible.'") (quoted source omitted).
But this is not particularly instructive here because we are
doing a plain meaning analysis of one part of Wisconsin's sign
control laws to determine if it unambiguously prevents an owner
from curing a status-altering violation. Although Peterson and
Pewaukee Marina, Inc. may be indicative of a general approach to
nonconforming uses, they do not instruct us on whether the plain
meaning of Wis. Stat. § 84.30(11) requires the Department's
current interpretation.
26
No. 2017AP1823
¶38 We conclude that the "language [of Wis. Stat.
§ 84.30(11)] reasonably gives rise to different meanings" with
respect to whether it prevents the owner of a "legal, non-
conforming" sign from curing a status-altering violation. Kalal,
271 Wis. 2d 633, ¶47. Specifically, the phrase "brought into
conformance" could mean that the Billboard must conform to the
laws either: (a) as they applied to the circumstances when the
permit issued (the "legal" part of the sign's hybrid status); or
(b) as they apply to current circumstances (the "nonconforming"
part of the hybrid status). According to our canons of statutory
construction, that makes it ambiguous. Id. ("[A] statute is
ambiguous if it is capable of being understood by reasonably well-
informed persons in two or more senses.") (citations omitted).
Therefore, because § 84.30(11) does not plainly and unambiguously
require the Department's no-cure interpretation, Schoolway Transp.
Co. does not provide an exemption from the rulemaking requirement.
* * *
¶39 We conclude it was necessary for the Department to have
promulgated its no-cure interpretation as a rule, pursuant to Wis.
Stat. § 227.10(1), before applying it in this matter. And should
the Department promulgate this interpretation as a rule, it may
not apply it retroactively to cured violations that existed before
the rule was created. "A fundamental principle in our legal system
is that laws which regulate persons or entities must give fair
notice of conduct that is forbidden or required." FCC v. Fox
Television Stations, Inc., 567 U.S. 239, 253 (2012); id.
("[R]egulated parties should know what is required of them so they
27
No. 2017AP1823
may act accordingly."). It is axiomatic that a new rule cannot
reach back into history to give a sign owner notice of a
requirement the Department has not yet adopted.
¶40 Our statutes tell us we must "set aside or modify the
agency action if [the court] finds that the agency has erroneously
interpreted a provision of law and a correct interpretation compels
a particular action, or [the court] shall remand the case to the
agency for further action under a correct interpretation of the
provision of law." Wis. Stat. § 227.57(5). The Department
erroneously interpreted Wis. Stat. § 227.10(1) as allowing it to
implement its no-cure interpretation without first promulgating it
as a rule. And because the no-cure interpretation was the
Department's operative justification for denying the Application
and issuing the Order, those administrative actions are erroneous
and must be vacated. Schoolway Transp. Co., 72 Wis. 2d at 237
("Since this change [in statutory interpretation] constituted
promulgation of an administrative rule, failure to so file renders
the rule invalid . . . ."). Consequently, to the extent Lamar has
cured the status-altering modification to the Billboard pursuant
to the Department's then-existing "cure" policy, it is once again
a "legal, nonconforming" sign.
28
No. 2017AP1823
¶41 Lamar raised other issues for our review,22 but because
we conclude that Wis. Stat. § 227.10(1) required the Department to
engage in formal rulemaking when it adopted its no-cure
interpretation of Wis. Stat. § 84.30(11), we need not address them
now. The failure to engage in rulemaking is dispositive. See
Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663 (1938) ("As one
sufficient ground for support of the judgment has been declared,
there is no need to discuss the others urged."); see also Barrows
v. Am. Family Ins. Co., 2014 WI App 11, ¶9, 352 Wis. 2d 436, 842
N.W.2d 508 ("An appellate court need not address every issue raised
by the parties when one issue is dispositive.").
IV. CONCLUSION
¶42 We reverse the court of appeals and remand this matter
to the circuit court for entry of judgment setting aside the Order
and remanding the matter to the Department for further proceedings
on the Application not inconsistent with this opinion.
By the Court.—The decision of the court of appeals is reversed
and the cause is remanded to the circuit court.
Lamar
22 raised four additional issues unrelated to
rulemaking: (1) whether the DHA erred in finding that Wis. Stat.
§ 84.30 and Wisconsin Administrative Code Trans. § 201.10 prohibit
the enlargement of nonconforming, off-premise signs erected after
March 18, 1972; (2) whether the DHA misinterpreted and misapplied
common law authorities relating to nonconforming uses; (3) whether
the DHA erred as a matter of law by finding that the right to cure
provision in § 84.30(11) does not apply to Lamar's sign; and (4)
whether § 84.30(5)(br)(4) applies to this sign.
29
No. 2017AP1823
1