936 N.W.2d 573
Wis.2019Background
- A two-faced billboard (1,344 sq. ft.) was permitted in 1991 and bought by Lamar in 1999; it complied with law when erected.
- In 1996 the adjacent road was redesignated as I-39, so the lot lost its "business area" status and the billboard became a "legal, nonconforming" sign.
- In 2012 Lamar applied to remove vegetation obstructing the billboard; Department review noted a past temporary extension that had enlarged the sign but was later removed before Lamar's application.
- The Wisconsin DOT denied the application and ordered removal, taking the position that a temporary enlargement permanently converted a legal, nonconforming sign into an illegal sign (no opportunity to "cure").
- DHA, the circuit court, and the court of appeals upheld DOT; the Wisconsin Supreme Court reviewed whether DOT was required to promulgate a rule under Wis. Stat. § 227.10(1) before applying its new "no-cure" interpretation.
- The Supreme Court held DOT needed to promulgate a rule before adopting the no-cure position, vacated the removal order, and remanded for further proceedings; any new rule may not be applied retroactively to prior cured violations.
Issues
| Issue | Lamar's Argument | DOT's Argument | Held |
|---|---|---|---|
| Whether DOT had to promulgate a rule under Wis. Stat. § 227.10(1) before applying its new interpretation that a status-altering enlargement of a legal, nonconforming sign cannot be cured | DOT changed policy; a new binding interpretation that governs enforcement is a "rule" and required formal rulemaking | § 227.10(1) permits adoption of an interpretation in a contested case or particular matter without rulemaking; DOT was correcting a prior error or applying an unambiguous statute | DOT had to promulgate a rule; the Department's adoption of the no-cure interpretation without rulemaking was invalid |
| Whether the Schoolway Transp. Co. exception (agency may correct prior error without rulemaking) applied | DOT's new position is not a mere correction of an interpretation of an unambiguous statute; exception does not apply | DOT argued it was conforming practice to the plain meaning of § 84.30(11) and thus need not promulgate a rule | The statute was not plain and unambiguous for this question; the Schoolway exception did not apply |
| Whether Wis. Stat. § 84.30(11) unambiguously forecloses curing a status-altering violation (i.e., meaning of "brought into conformance") | "Conformance" can mean returning to the laws/conditions at time of permit (allowing cure) | "Conformance" must mean compliance with current law (so curing is impossible if law changed) | § 84.30(11) is ambiguous on whether "conformance" refers to original-permit conditions or current law; ambiguity precludes treating DOT's no-cure position as compelled by statute |
| Whether DOT may apply a newly promulgated no-cure rule retroactively to conduct that was cured before the rule | Retroactive application would be unfair; regulated parties lack notice | DOT did not argue for retroactive application as to cured acts | New rules cannot be applied retroactively to pre-rule conduct; prior cures restore legal, nonconforming status where applicable |
Key Cases Cited
- State ex rel. Kalal v. Circuit Court for Dane Cty., 271 Wis. 2d 633 (2004) (framework and canons for statutory interpretation)
- Schoolway Transp. Co. v. DMV, 72 Wis. 2d 223 (1976) (agency may correct erroneous application of an unambiguous statute without rulemaking; ambiguous changes require rulemaking)
- FCC v. Fox Television Stations, Inc., 567 U.S. 239 (2012) (regulated parties are entitled to fair notice and new rules generally cannot be applied retroactively)
- Tetra Tech EC, Inc. v. DOR, 382 Wis. 2d 496 (2018) (courts do not defer to agencies on questions of law)
- Homeward Bound Servs., Inc. v. Office of Ins. Comm'r, 296 Wis. 2d 481 (2006) (whether an agency action is a "rule" is a question of law reviewed de novo)
- Gross v. Hoffman, 227 Wis. 296 (1938) (appellate courts may dispose of a case on a dispositive ground without reaching other issues)