Donaldson v. Board of Commissioners

Plaintiff-Respondent- Arthur T. Donaldson, Petitioner, v. Rock-Koshkonong Lake Board Commissioners Defendant-Appellant.† District,

Supreme Court 8, argument 01-3396. Oral October 2003. Decided No. 9, June WI 67 762.) (Also reported in 680 N.W.2d † Motion for reconsideration filed.

CROOKS,J., dissents. J., join. C.J. Abrahamson, Bradley, For the plaintiff-respondent-petitioner there were LLP, briefs David C. Moore and Nowlan & Mouat Janesville, argument and oral David C. Moore. defendant-appellant a brief there was

For the Mary Wheeler, O'Connor, Peranteau and Beth William P. argu- Anderson, S.C., and oral Madison, Sickle & Van by P O'Connor. ment William J. was filed William An amicus curiae brief Mulligan Kuelthau, S.C., Milwaukee, on and Davis & Lakes, of Inc. Association of Wisconsin behalf Arthur T. Donaldson PROSSER, T. J. DAVID (Donaldson) published of a decision of seeks review detaching appeals an order that reversed court of parcels of land from the Rock- two Donaldson's Koshkonong (Lake District).1 The Lake Lake District public protection and rehabili- a inland lake District is district) (lake ch. under Stat. 33 district Wis. tation (1) (2001-02).2 interpret requires us to Wis. This review 33.33(3), § a owner to which authorizes Stat. "territory" district; from a lake detachment of seek (2) authority scope of circuit court's address rejection a detachment a lake board's review district petition. the decision asks that we reinstate Donaldson "territory" from court, circuit detached his

of the which pre- grounds on the evidence the Lake District hearing support not at the detachment did sented finding parcels that Donaldson's two were benefited Conversely, inclusion in the District. continued Rock-Koshkonong Lake of the Board of Commissioners Board) (the affirm Lake District asks that we District appeals that a lake district board the court of decision Rock-Koshkonong Lake v. Bd. Comm'rs Donaldson 238, Dist., 26, 2, 2d 659 N.W.2d 66. App 2003 WI 260 Wis. of the Wisconsin All references are to the 2001-02 version indicated. Statutes unless otherwise may property only detach if it finds there has been a change in circumstances since the formation of the district. 33.33(3)

¶ 3. We conclude that Wis. Stat. accords statutory right petition the lake district board for specific an individual determination of whether "terri- tory" is "benefited" continued inclusion in the lake separate district.3 This determination is and distinct legislative from the decision to create the district. There county is no inherent conflict between a board's deci- sion to create a district with certain in it and parcel a lake district board's decision to detach a from district, because the lake district board's decision present taking must address circumstances, into ac- past, present, count the lake district's and future activi- property. reject ties relation to that We therefore petitioner always rule that a must demonstrate a change in circumstances before a lake district board is property. authorized to detach ¶ 4. We further conclude that a lake district board performs legislative function it when considers 33.33(3). territory § whether to detach under Accord- ingly, a lake district board's detachment decision is presumed judicial correct, and review is limited (1) inquiring kept whether the lake district board (2) jurisdiction; proceeded within its whether it on a (3) theory correct law; whether its action was arbi- 33.33(3) In § Wis. Stat. legislature uses the word "territory" to describe petitioner the land a seeks detach from the lake district. This word is different from the "property" word 33.26, § in Wis. Stat. which is used to describe land included in a lake district at the time the opinion, district is created. In this phrases territory," we use the par "Donaldson's "Donaldson's cels," and property" interchangeably. n.17, "Donaldson's But see infra. represented

trary, oppressive, and unreasonable or (4) judgment; the evidence whether not its will and reasonably might make the that the board was such question. this the board fails When determination petition remand review, the circuit court should for action consistent with its lake district board decision. Accordingly, decision of the reverse the we appeals this case to the circuit and remand

court of court. PROCEDURAL HISTORY

I. FACTS AND history procedural are not The facts and County dispute. Board of 10, 1999, the Rock On June Rock-Koshkonong Supervisors Lake Dis- created the surrounding Koshkonong consisting Lake of land trict, portion The Lake the Rock River. District and a parcels located 4,000 than of land consists of more (Dane, Jefferson, five towns in three counties within Rock).4 largest as "the lake It describes itself www.rkld.org See in the State of Wisconsin." district website) (last (Rock-Koshkonong modi- Lake District 2004). April District, the Lake 5, it created fied When "[t]he County Board found that the Rock by the district's in the will be benefited included district finding prerequisite required This is establishment." 33.26(3).5 See Stat. statute. Wis. 4 authority county § board's See Wis. Stat. 33.37 for a county. in more than one create a lake district 5 33.26(3) Section states: county report to the board within 3 The committee shall hearing. 6 months after the

months after the date of the Within hearing, order under this the the board shall issue its date of finds, the after consideration of subsection. If the board 154 7. The Lake District includes two of land parcels owned Donaldson. One is located by parcel about one mile north of the the River, Rock other about one-half mile south of the Rock River. Donaldson's filed attorney a timely letter to the formation of the lake objecting district, statute,6 as permitted by but did not seek judicial review after the district was formed. 4, 2001, 8. On January petitioned Donaldson

the Lake District Board for detachment of his two 13, 2001, On properties.7 February the Lake District Board held a to review his A public hearing petition. any report hoard, committee's and other the evidence submitted to petition signed by requisite provided that the owners as in s. 33.25, proposed necessary, public district is that the

health, comfort, convenience, necessity public or welfare will he promoted by district, the establishment of the that the by be included in the district will be the establishment benefited thereof, proposed and that formation district will not cause long-range pollution or contribute to environmental as defined in 299.01(4), board, by order, findings, s. shall declare its shall organized establish the boundaries and shall declare the district give corporate it a name which it shall be known. There- upon body corporate powers the district shall be a of a with municipal corporation purposes carrying chap- for the out this find, board, by order, If ter. the board does not so shall declare added.) findings deny petition. (Emphasis 33.26(1) "Any § part: Wisconsin Stat. states in relevant wishing person object organization to the of such district may, hearing, objections before the date set for the file to the county formation of such district with the clerk." 33.33(3) provides: Wisconsin Stat. Territory may followingpetition be detached from the district Proposals of the or motion of the commissioners. owner commissioners, detachment shall be considered and terri-

tory may upon finding territory be detached that such is not Appeals benefited continued in the district. of the inclusion 33.26(7). may commissioners' decision be taken under s. evidentiary hearing transcript was made of the Board's part circuit court record. of the hearing, that his At the Donaldson testified 9. adjacent any body parcels water, do not are not to two rights Koshkonong the Rock Lake or have access to adjacent any public those are access to River, and not parcels contrary, consist of of water. On the his bodies adjacent highway. agricultural land to an interstate highway signs only improvements three on the land are Koshkonong River. Lake or the Rock unrelated to that he did not believe the Donaldson also testified proximity Lake enhanced value of his land was Koshkonong. acknowledged property had He that his changed of the Lake District not since the formation only testify person was Steve 10. The other Hjort, biologist a consultant to the Lake who serves as parcels He that Donaldson's are District. asserted Koshkonong sub-watershed, the lower Creek within meaning part watershed, is of the Rock River which from drains into the that surface water his of the the boundaries Rock River. When asked about Hjort explained the water- watershed, Rock River boundary beyond the established shed extends well District, and that all land in the Lake Wisconsin Hjort that, on the some watershed. also stated based map him, northern he had in front of Donaldson's approximately one and one-half miles was lake or river and miles from the nearest from the two approxi- public parcel site; access the southern was mately one mile one-half mile from the lake or river and public from the nearest access site. testify, Although one of the Board he did not photographs

commissioners, Folk, took Jim parcel to that the Donaldson's southern demonstrate sightline Folk's parcel of the Rock River. was within had photos into evidence. Donaldson admitted were Koshkonong from was not visible Lake that testified parcels. either of his mat- continued the Board 12. The Lake District meeting At that 13, March next on

ter until its Sweeney, meeting District of the Lake a member Buck previous present hear- at the had not been Board who ing, deny petition for the for detachment moved (1) following were within tracts reasons: both (2) County boundary original Rock district; of the finding that the included a Board's Resolution cre- will be benefited the Lake District within (3) no evidence there was District; Lake ation of the change inconsistent in circumstances there was a that finding from benefit that these tracts initial with the (4) tracts are District; both in the Lake their inclusion and sub-watershed watershed the Rock River within (5) proximity to in near are located areas; tracts both portion Koshkonong of the Rock River and the Lake (6) parcel although neither District; Lake within the riparian, public boat close to are located both tracts (7) southerly view of the has a direct tract launches; (8) enhanced tracts will be of both River; the value Rock quality of Lake value and recreational if the water improved Koshkonong River are Rock and associated river were further if the lake or diminished and will be degraded removed; Dam were or if the Indianford (9) parcels continued are benefited therefore, District. in the Lake inclusion unanimously in favor The Board voted petition. deny Sweeney's Donaldson's motion County appealed to the Rock ¶ 14. Donaldson Judge. appeal was This Welker, E. Court, James Circuit 33.33(3) 33.26(7). §§ pursuant Stat. to Wis. taken The defendant Board moved to dismiss the action on 33.26(7) grounds requires petition that a verified days be made within 30 of a lake district board's complaint, on detachment, decision and Donaldson's though 30-day period, within the was not verified. Shortly thereafter, Donaldson an filed amended com- plaint complying requirements. with the verification

¶ 15. Both Donaldson and the Lake District summary judgment, Board moved for and the circuit hearing court held a on 13, June 2001. On 7, November granted judgment 2001, the circuit court in favor of properties Donaldson and detached Donaldson's from the Lake District.

¶ appealed, 16. The Lake District Board contend- ing rejecting argument that the circuit court erred in requires change that detachment in circumstances. appeals agreed, reversing remanding The court of and affirming the matter for an order the Lake District deny petition. Board's decision to the Donaldson v. Bd. Rock-Koshkonong Comm'rs Disk, Lake 2003 WI of of App ¶26, 22, 2d 238, Wis. 659 N.W.2d66. parties ¶ 17. Because both treated Donaldson's request action in circuit court as a for certiorari review, appeals employed the court of the standard utilized in statutory Accordingly, Id., ¶ certiorari cases. the appeals presumed court of that the Lake District inquiry Board's decision was correct and limited its (1) (2) kept jurisdiction; "whether: the board within its (3) proceeded theory the board on a correct law; of arbitrary, oppressive board's action was or unreason- represented judgment; able its will and not its (4) might the evidence was such that the board reason- ably question." make the order or determination in Id. Supervi County (quoting Bd. v. Nielsen Waukesha (Ct. App. sors, 498, 511, 2d 504 N.W.2d 178 Wis. 1993)). appeals exclu- focused fact, In the court pro- inquiry:

sively whether board on the second theory Id. It noted that the a correct of law. ceeded on 33.26(3), governing creation of "benefited" word 33.33(3), §in districts, and the word "benefited" lake meaning. carry provision, Id., the same the detachment appeals Rock reasoned that 12. The court of prop- County that Donaldson's Board had determined including erty it in the Lake District "benefited" id., 20, and Donaldson District, created the when it judicial effect, In review of that decision. not seek did allowing would be then, Lake District Board period 30-day for time Donaldson to circumvent permitted appeal of his with- if detachment it change requiring in circumstances. him to show a out appeals Lake concluded Thus, the court theory applied it of law when correct Board District petition detachment, inasmuch denied Donaldson's that no circumstances himself conceded Donaldson as Id., changed district. creation of the since the had 20-21. ¶¶

II. ANALYSIS of Review A. Standard interpret requires har- and

¶ us to This case 19. Statutory Chapter provisions inter- 33. monize question pretation de novo. of law that we review a is Americomp Corp. Serv., 19, 88, 2002 WI v. Tri-Tech purpose of 418, 646 N.W.2d 254 2dWis. statutory interpretation awhat statute is to determine

159 may given proper, it full, means so be and intended effect. State ex rel. Kalal v. Court, Circuit 2004 ¶58, 44, 633, WI 271 Wis. 2d 681 N.W.2d110. We look language Strigel, first to the of the statute. N.E.M. v. (1997). language 7,1, 208 Wis. 2d 559 N.W.2d256 If the ambiguous, examining even after such intrinsic fac scope purpose, may tors as and we consult extrinsic legislative history, sources, such as in an effort to divine legislative Kalal, 633, necessarily intent. 271 Wis. 2d 42. Differ ing interpretations of a statute do not create ambiguity, equally interpretations but sensible of a phrase ability support word or indicate a statute's meaning. Angela more than one State ex rel. M.W. v. (1997). Kruzicki, 112, 122, 209 Wis. 2d 561 N.W.2d729 construing seemingly "In statutes that are conflict, it duty attempt is our them, to harmonize if it is possible, way give in a which will each full force and City Kilgore, effect." Milwaukee v. 193 2d 168, Wis. (1995). 184, 532 690 N.W.2d ¶ 20. In this case, it is not clear whether word carry meaning "benefited" is intended to the same 33.26(1) §§ (3), 33.33(3); 33.001, Wis. Stat. and see § also 33.32. It is also uncertain what kind of review is 33.26(7) 33.33(3). §§ Consequently,

intended in we help examine both intrinsic and extrinsic sources to us construe the statute.

B. Lake District Powers legislature Chapter In created protection

of the statutes to afford additional to inland legislature 301, lakes. Ch. Laws of 1973. The declared public rights that environmental values, wildlife, navigable public waters, and the welfare are threatened public the deterioration of lakes. Wis. Stat. 33.001. protection public It found that and rehabilitation of the citizens as a best interest of inland lakes are the public will be "benefited" and that the welfare whole important thereby. an basis that lakes form Id. It noted increasing industry and that recreation for the state's justifies public state action to use of waters recreational potential inland of the state's enhance and restore legislature concluded, Therefore, "it Id. lakes. necessary protection upon program of lake to embark conjunctive state and rehabilitation, to authorize protection program and rehabilitation to of lake local duty positive fulfill of the state as trustee protect navigable environmental values." waters, and 33.001(2)(a). § Stat. Wis. legislature found that local addition, In directly persons affected should be formed

"districts of inland waters and deteriorated condition through financially, willing means, other or to assist 33.001(2)(b). § problems." remedying Wis. Stat. lake significant component of lake districts are These addressing approach Chapter manifold 33's They corporate objectives. legislature's are inland lakes municipal corporation, powers Wis. of a bodies with 33.26(3), may § "a undertake and each district Stat. program protection of a lake and rehabilitation of lake provisions § parts The Stat. 33.21. or thereof." Wis. governing of lake districts creation and activities special purpose designed districts to to enable these are governmental among more traditional local coexist units. powers in Wis. are set out 23. A lake district's power § They and be include the sue

Stat. 33.22. purchase, otherwise contracts, lease or sued, make money, acquire property, do debt and contract disburse necessary carry program any of lake out a other acts 33.22(1). protection Stat. and rehabilitation. Wis. may operate create, district also and maintain a water safety patrol unit, enhance the recreational uses of the including boating lake, facilities, recreational and as- 33.22(2m), §§ sanitary powers. sume district Stat. Wis. 33.22(3) (4). 33.22(4m), and operations, ¶ 24. To finance these the lake district power impose special has to taxes and assessments. meeting may levy First, the annual a uniform tax on all property taxable within the district. This tax to fund ($2.50 may operations per not exceed a rate of 2.5 mills thousand) equalized of valuation. Wis. Stat. 33.30(4)(a).8 § may Second, because a lake district borrow

money, levy irrepealable the district "shall an annual, pay principal tax to and interest" on its indebted- levy ness. "The district shall the tax without limitation as to rate or amount on all taxable within the 33.31(3). § district." Wis. Stat. may Third, of board commissioners im-

pose special purpose carrying assessments "for the protection projects." out district and rehabilitation Wis. 33.32(1). § determining Stat. After the entire cost of the 33.30(4)(a) § provides Wisconsin Stat. the electors and property may, owners at the meeting, district's annual by majority upon Vote a tax all taxable within the portion operation district. That of the tax that is for the costs of coming year may equalized not exceed a rate of 2.5 mills of department

valuation as determined of revenue and re- ported apportioned among to the district board. The tax shall be municipalities having property within the district on the basis equalized value, report full and a shall be delivered treasurer, by 1, by November certified statement to the clerk of municipality having property each within the district for collec- tion. 33.30(4)(a). § Wis. Stat. apportion must done, the lake district board

work to be special "In Id. assessment "on reasonable basis." special apportioning assessment, commissioners parcel and determine the examine each shall benefits considering project, parcel such factors as from the each present potential proximity the lake and use size, including zoning regulations." parcel, applicable of the 33.32(l)(b) added). (emphasis Stat. Wis. opera- potential scope of a lake district's 27. The juxtaposed tax- lake district's extensive

tions, with the may ing authority, non-riparian property owners cause wary large property tax bills and assessments. to be Special tailored to reflect actual assessments should be properties, but taxes to cover benefit individual at the lake will be taxed same district's indebtedness properties irrespective of are rate, uniform whether parcels. riparian marginal non-riparian choice or argument, parties ¶ At oral discussed the 28. prop- among of exist owners tensions sometimes property erty riparian within a lake district. Some promote high part levels, in to favor water owners ripar- property; their some recreation that will benefit perhaps property levels, ian owners favor lower water they boating; interest in and some because have less prefer natural to return a lake to its owners by any existing removing dam. tensions condition When struggle may to district, a lake factions exist within policies and the elected board to influence the control may Non-riparians expenditures of the lake district. bystanders, struggles, under- these almost as watch grass gets fight, standing elephants that when trampled. discussion about case, In this there has been acquiring, operat- potential Lake District's role maintaining

ing, Dam, is the Indianford which presently by County. owned Rock See David Mar W. University couiller, al., Wisconsin-Extension, et As sessing Ecological Impacts Potential Economic and (Dec. Removing 8,1999); Dam James Indianford Judge, Welker, E. Circuit Memorandum Decision (Nov. 2001) ("The impetus 7, for the creation of the potential for District was the removal of a small Indianford."). dam at petitioned mind, this in With Donaldson properties two

have his removed from the District. He objected layer added of taxation that comes from being asserting District, Lake included that his properties are not benefited the District because riparian enjoys private neither or access rights point to the lake or river. He therefore sees no subsidizing only activities that he contends serve riparian benefit the Lake District's owners. A31. lake district board must consider a detach- may petition property "upon finding

ment detach territory that such is not benefited continued inclu- 33.33(3). § sion in the district." In case, Wis. Stat. this hearing, after a the Lake District Board turned down petition. Donaldson's 33.33(3) provides "appeals

¶ 32. Section also may decision," the commissioners' which be taken un- 33.26(7). 33.26(7) provides: "Any person der Section aggrieved may petition the action of the board judicial petition circuit court A for review. verified shall presented specifying grounds upon the court," be 33.26(7). appeal which the is based. Wis. Stat. Donald- right. ground appeal- son availed himself of this His for ing that the was Lake District Board could not have deny petition reached the decision to on his based agreed evidence it received. The circuit court noted, ordered Donaldson's detached. As

164 reasoning Chapter appeals that 33's reversed, court of statutory required change circumstances, in a scheme position strongly espoused by the Lake District Board. Donaldson, 238, 260 2d 21. Because Donaldson Wis. had not conceded that changed the overall circumstances District, in since was included his "petition properly denied on the for detachment was change in circumstance." basis that he failed to show Id. History Legislation

C. Inland Lakes legislation promote protec- The 33. 1974 study public grew out of a con- tion of inland lakes Legislative Council's Natural Resources ducted drafting Legislative in The file for the Committee 1972. Assembly Bill bill, 766,9makes clear Council's 1973 sanitary existing districts the drafters used law on town the creation of lake districts. The bill as the model for through introduced, it was went seven drafts before an evolution con- however, and these drafts reveal they protections property owners and cerns about sanitary from the show how the lakes bill differed district law. draft of the lakes bill illustrate, To the first "frontage" land. It lake district to

limited the land having "frontage" fronting lake, "lands on a defined as or lake via artificial watercourses direct access to the running having rights LRB- with the lands." of access provided explanation in the text of the 170/1:4. 'frontage' is used "The definition of draft stated: delimiting districts. in local lake renovation those lands having private direct access It includes those lands 301, Chapter Laws of Assembly Bill 766 became presumably, specially lakes; these lands will be ben- by any project, efited directly lake renovation and thus should part

bear of the financial burden." LRB- 170/1:4. only persons owning

¶ draft, In this 35. first frontage petition a lake district. could to establish explanatory An note read: "Governmental LRB-170/1:6. jurisdictions eligible petitioners, are included as since frontage by them for and owned will both be assessed benefited reclamation activities undertaken special assessments, district." In the bill's section on "severally lake district commissioners were directed to separately parcel frontage consider each therein parcel and determine the benefits to each and make Any parcel frontage thereon." of a assessments owner aggrieved" "feels the assessment was authorized who "appeal" appeal to the circuit court. "Such shall be tried and determined the same manner as cases originally commenced in said court." provision draft, 36. In the first there was no county landowner seek review of the board's parcel frontage property decision to include provision lake district and no for a landowner to seek frontage property detachment of from the district. By draft, the third bill contained provision any aggrieved by permitting person county board's decision to create the lake district to petition judicial the court for review. LRB-170/3-10. delimiting language The draft third still contained the "frontage." on The fourth draft retained the limitation to

"frontage" following explanation: and added the "frontage" having definition also includes lands flowing

direct access via natural streams into or out of Determining any particular a lake. whether lands this class should be included a district because of fact, question a of direct benefit is and is reserved to the county board for determination .... added). (emphasis

LRB-170/4:7 dropped ¶ 39. The fifth draft both the definition "frontage" provi- of and limitation to land added a but linking appeal provision detachment, sion on it to the for establishment of the district. LRB 170/5:20. explanatory affirming draft also eliminated county note fact-finding authority creating board's broad a lake district. ultimately introduced, 40. When hill was explanatory following note the bill's section on

"Merger, Annexation, Detachment" read: [pjrovides altering

[The section] means of district Merger boundaries. is done common consent of the governing Annex- bodies members of both districts. proposals against ation are measured the same stan- district, establishing for are dards used simi- larly appealable. proposals Detachment are decided upon territory proposed the basis of whether for detachment is benefited continued inclusion in the district.

LRB 170/7:29-30. Although

¶ 41. the lakes received extensive bill prior introduction, contro- attention it remained history legislative in- versial. Its after introduction simple cludes 5 Substitute Amendments and 36 Amend- Legislative Digest Council, Bills ments. See Council 1975). Legislature (May, nothing in the see We legislative history in the of the that dictates a statute prove change requirement that a owner a qualify detachment. con- circumstances to On the ag- trary, procedure an the detachment assures that grieved property an indi- will be able to secure owner specific property is determination whether vidual benefited. Authority Delegation Legislative

D. The District Board contends that the 42. The Lake legislative an exercise of creation of a lake district is by county power a on detachment board, a and decision legislative power by a lake district an exercise of is legis- emphasizes The Board that an exercise board. judicial subject very power limited review. At lative argues, property owner seek- minimum, the Board ing a review of a decision on detachment must show change in since the lake district was circumstances formed. sanitary

¶ 43. Because the statutes on town dis- legisla- used as a model for the lake district tricts were sanitary interpreting the tion, we believe that cases interpreting Chapter helpful in district statutes are Paper In v. Fox River Fort Howard Co. Heights Sanitary District, a chal this court reviewed sanitary lenge a town district. 250 to the creation of (1947). The standards then in 145, 26 N.W.2d661 Wis. sanitary place for a town to create a district resemble county necessary for a to create a the conditions board things, require, among lake Both other that district.10 appropriate body find that "the to be the 60.303(3) (1945) with Wis. Stat. Compare Wis. Stat. § 60.303(3) 33.26(3). § provided: § Former Wis. Stat. appear Upon hearing, the if it shall to the town board after objections, petition signed by the consideration of all that the is (1)

requisite provided of real estate as in subsection owners 60.302, necessary, proposed the is and that section and that work convenience, health, comfort, necessity public public or welfare district, by promoted and be the establishment of such will in included the district will by be benefited the estab- 60.303(3) lishment thereof." Wis. (1945), §§ Stat. 33.26(3).11 The in focus Fort on Howard was the scope of a power circuit court's to review the town board’s determination Fort that Howard's property benefited from the establishment the town sanitary district. The legislature had included a provision for an ag- grieved to an party bring action circuit court. Wis. (1945).12 § Stat. 60.304 Fort When Howard brought such an action, the circuit court tried the as if issue there had been no prior by board, decision the town

property to by be included the district will be benefited hoard, thereof, order, establishment the town formal shall findings declare its and shall establish the boundaries and shall organized declare the district .... 33.26(3) provides: § Current Wis. Stat. finds, If the report board after consideration the committee's any board, petition other evidence submitted to that the signed by requisite provided 33.25, owners as s. that the

proposed necessary, health, comfort, public district is that the convenience, public necessity promoted or welfare will be district, establishment of the that the to included in the be thereof, district will be the establishment and that benefited proposed formation of the district will not cause or contribute long-range .., hoard, pollution by order, . environmental shall findings, declare its shall establish the boundaries and shall organized declare district .... 60.303(3) (1945) The contemporary counterpart re quires find, among things, a town board "[prop other erty by to be included in the will district be benefited the 60.71(6)(b). § district." Stat. Wis. counterpart current provision provides: The of this person Any aggrieved by any act of the town board or the department establishing sanitary of natural resources in town may bring county action in of district an the circuit court the located, his or which her lands are to set aside final the determi- resources, department nation the or of town hoard the of natural days determination, provided

within 90 after the final s. as under property did not benefit that Fort Howard's determined sanitary being it district and excluded in the town from Howard, at 250 Wis. 149. from the district. Fort appeal, ¶ that the this court concluded 45. On sanitary power had been a town district to establish by legislature. delegated at Id. to the town board by reviewing de Thus, court erred the circuit 149-50. property standards whether the and under own novo powers Id. said a court's at 151. We would "benefit." quite were limited. Id. at 150. of review requires close The Fort Howard decision 46. place analysis. "if at time stated that The statute appear to the town board after consideration it shall objections, public comfort, health, con- that... all necessity public promoted be venience, by or welfare will district, and the the establishment such be be included the district will benefited its find- thereof," the board shall declare establishment ings, boundaries, the district and declare establish 60.303(3) (1945). § organized. Stat. Wis. right The of a owner thereafter

appeal decision to circuit court was limited. the board's (1945). § The authorized an Stat. 60.304 statute Wis. (emphasis "to set aside the action the board" action added). taken went on: "Unless action is so statute required period], [within time the determination board shall be conclusive." Id. the town general proposition, that "the As a we noted may legislative power." Howard, Fort court not exercise 250 Wis. at 150. 893.73(2). 90-day period, If no is taken within the action department or of natural

determination the town board is final. resources Stat. 60.73. Wis. question

The here is to what extent the has court power body to exercising review the action of a legisla- power. 60.301, By Stats., tive sec. legislature del- egated to power the town board the to establish a town sanitary power delegated district. The thus to the town legislative being character, hoard in its cannot be exer- by a cised court.

Id. 49. The court then to back appeared some- step statute,"

what, saying that "unless otherwise provided by of the power court "is limited in the review of orders to legislative inquire as to:" (1) validity of the statute under which the (2) legislative body acts; legislative whether the body proceeded in accordance with provisions law and (3) jurisdiction; within its legislative whether the body arbitrarily, acted capriciously oppressively. or If the town hoard acted without evidence to support sufficient findings it acted arbitrarily. added). Id. at 150 (emphasis 50. Did statute's reference to the town

board's determination that "the be property to included in the district will be benefited the establishment thereof," imply powers additional review a court? case, Not in that the court said. statute did not the town board require a record of its keep proceed- Id. "In ings. record, the absence such a it must be presumed that town board acted sufficient upon evidence to sustain its as findings there nothing Id. record indicate the contrary." at 150-51. The court further that the town was not explained expected to focus on the benefit properties: individual provide any parcel

The statute not piece does that if or proposed of land included within the boundaries benefited, district shall not be the district shall not be property If town board finds that the organized. the a district as proposed of the the boundaries within be the district is to be benefited then whole will the ... If all the within boundaries organized. the is in the and proposed the district watershed of may it, then the improvement serve proposed a benefited and town the district as whole is of finding may necessary if it makes the other board sanitary of a organize organization The district. public of health. in the interest district is sewer organized a be unless town district cannot Such health, public the evidence that the finds from board convenience, necessity, will comfort, public and welfare thereby. benefit that is meant That is the promoted be by the statute.

Id. at 152. for the part case stands Fort Howard from are substitut- prohibited courts

proposition policy as to judicial good public ing judgment In Howard at 150. the Fort Id. legislative judgment. circumstances, limits of the dis- proposed "Fixing board, town which the discretion of the trict is within The order power has no to review. discretion the court at or affirmed toto." Id. must be set aside particular a 52. As whether general principle, be created involves the best unit of should government of and is therefore matter of community interest See, In re e.g., Incorpora and statecraft." policy "public Milwaukee, 616, 624, 67 93 Wis. Village tion North of of Prairie, see also Town Pleasant (1896); 1033 N.W. and Local County Kenosha v. Department of Affairs 327, 343, 2d 334 893 113 Wis. N.W.2d Development, Beloit, 637, 37 Wis. 2d (1982); City Town Beloit v. Johnson, (1968); v. 646-47, 633 Scharping 155 N.W.2d ("The (1966) 383, 388, 2d N.W.2d 32 Wis. creation of municipal corporations is peculiarly within of the province As we legislature."). have stated the parallel context of municipal annexation: "desirable,"

isWhat or or "ought "advisable" be" is a question of policy, question not of fact. What "necessary," or what is "in the best interest" is not a fact and its judiciary determination is an exercise of legislative power political when each involves consider- why ations and reasons there should or should not be an general annexation. This is the and universal rule sharply which differentiating draws the line between legislative power judicial power which the validity delegation of the of to judiciary by functions the legislature is determined. Miller, Fond Lac City 323, du v. 42 Wis. 329, 2d 166 of (1969), Beloit, N.W.2d Town (citing 37 Wis. 2d at 644). areWe constrained to believe that the same when principles apply a court reviews the a action of board in a county lake district. The creating dynamics of lake district creation are such a that board is county look likely picture, is, to at that big whether lake proposed district serve public will interest as a whole and whether to be included in the properties district will be a benefited as whole.13 In these circum- county aWhen board determines that the property

within the a district as whole will be benefited the formation district, of the finding necessarily its broad includes a determi parcel benefited, nation that each in the district bewill and that finding presumed to presumption is be correct. But a of correct goes only ness so far in the an absence of individual determi reality, nation. In a county may nothing board do more than rubberstamp a petition parrot and required the words statute. The record does County not indicate whether the Rock necessarily judicial limited to

stances, is almost review county proper procedures followed board whether establishing and whether the board's the district in group respect or to an individual action with arbitrary, oppressive, properties or unreasonable was so jumps additional it to the observer without that out evidence.14 not who does course, a owner 54. Of proposed parcel in a lake be included certain to

wish county may persuade the board to be able to district individually parcel and remove it from the consider that individually parcel district, to consider the or explanation why parcel provide is benefited. an very made, hard it will be If latter determination challenge appeal, challenge hard on change subsequent petition, absent a detachment circumstances. De- Formation and

E. Tension Between Lake District Procedures tachment in this case with Lake 55. We are concerned property, not detach determination

District Board's County form the Board's decision to not the Rock parties tension in the Both admit to certain District. points time, board, each at different because statutes property is "benefited" from inclusion decides whether task is to resolve the tension in the lake district. Our 33.26(3), § governing language in Wis. Stat. between changes in boundaries the any of of Supervisors Board made petition. in the proposed lake district 14 Dis Honey v. Lake Protection and Rehabilitation Ross trict, (Ct. 1992), 739, 746, App. 480 N.W.2d 795 166 Wis. 2d board's creation county of challenging a emphasizes that actions 30-day brought statutory be within the a lake district must 33.26(7). § limit. Wis. time Stat. 174 of districts, formation lake and language 33.33(3), § of authorizing detachment territory from lake districts. agree 56. We with the Lake District Board that

the decision to detach from a territory is, lake district like the decision to form a district, lake an exercise legislative power.15 judicial Consequently, review cir- Nonetheless, cumscribed. there are differ- important ences judicial between review of the creation decision by a county judicial board and of review the detachment determination the lake district board. First, lake 1974 district cre- legislation

ated a detachment mechanism that was not present sanitary town district law.16There was for reason As doing above, so. we observed in 39 the detachment 15 jurisprudence relating The to school district reorganiza tion, which includes detachment of from one school district, district followed reattachment to another is instruc tive. In Joint School District No. 1 the Town Wabeno v. State, 790, (1973), 56 Wis. 2d 203 N.W.2d 1 that we stated reorganization legislative "school district policy-making is a function, legislature delegated which the has to local boards superintendent public the state instruction." Id. at cases). (collecting

16Sanitary did not provision districts have a removal until District, Haug Sanitary 1987. In v. Wallace Lake 2dWis. (Ct. 347, 1986), App. 387 N.W.2d 133 of appeals court brought by sanitary decided a case of a several residents district complained they sanitary who being were assessed they system sewer from which no resi received service. The dents authority contended that the town had to redefine the district, boundaries of the district dissolving per without mitting get disagreed. Shortly them to out. court of appeals thereafter, legislature provision enacted the removal in Wis. 60.785(lm). 77, Stat. Act Laws of 1987. legislation

procedure appeared at the same in the draft limiting property language that could be the time the out. The term "front- in was taken the district included limiting, age" may too but been viewed as have effectively it Thus, all we believe erased limits. removal procedure was inference that the detachment is a fair necessary safeguard designed for as a overreaching proponents discourage the owners—to aggrieved an and to of a lake district assure secure an individual would be able to owner specific parcel is benefited. whether determination of language in Second, the' "benefited" 33.26(3) language § in as the "benefited" is not the same 33.33(3). county prop- § "that the A determines board erty in the the district will be to be included benefited 33.26(3) § Stat. of the district. Wis. establishment" added). finding general (emphasis is both This predictive. In the absence of an individualized determi- making rough approxima- county nation, a board is properties the all in the district as tion of benefit to By county lake contrast, a board looks to the future. territory must decide whether "such district board inclusion in the district." not continued benefited added).17 33.33(3) (emphasis This determi- Stat. Wis. legislature chose a different word to also note that the We in proposed mass real for inclusion large describe the estate likely parcels that to come the the individual are district and In former a lake detachment. before district board instance, opted "property," the term but legislature use provision legislature chose the word the latter detachment "territory." precision neither these is used with While words concept statutes, differing for the same formulations identity legislature complete did intend suggest that not intended, legisla If proceedings. it had so between two language ture have used the same both. would requires prop- nation an individualized evaluation of erty present under A circumstances.18 lake district may hindsight foresight board utilize and as it makes detachment fact-based determination on an indi- parcel. vidual are commissioners aware both of past present and, activities of the lake district, as intelligently such, can ascertain whether a initially currently included in the district is benefited and will continue to benefit the from district. The uniquely district board is to situated assess whether implementation activities slated for future will benefit particular piece property. a of By closely examining

¶ 59. statutes, the two we always necessary peti- conclude it that is not for the prove proceeding tioner in a detachment that there change has been a in circumstances. When there has been no individualized determination of benefit by county presumption the board, there is a that the made a decision, board reasonable but this presumption is not future conclusive a detachment county proceeding. words, In other board's decision normally does not settle the issue benefit to indi- property. Legislative vidual 40, As noted above in Council described the distinction between the for test to a annexation lake district and the test for detach- proposals ment from lake district: "Annexation are against measured the same used standards estab- for 18A lake district board's individualized determination specific parcel whether is or is not benefited continued might inclusion in the lake district be characterized as a determination, quasi-judicial a legislative rather than determi urging nation. to pursue point, We decline this instead legislature establish additional standards lake district boards. similarly appealable.

lishing district, De- are upon proposals the basis are decided tachment territory proposed ben- for detachment is whether LRB inclusion in the district." continued efited added). leg- (emphasis The framers of the 170/7:29-30 recognized explicitly one distinction between islation Consequently, dis- a lake and the other. determination duty an determi- render individualized trict board's parcel specific present to a cannot nation as to benefit solely previously by relying on decision be satisfied county county board, board made unless nothing and has made an individualized determination changed. argument, Lake oral counsel the 60. At legislature imposed has no asserted that the

District guide a lake as exercises at all to district it standards legislative power on issue of detachment. This not the legislature's findings and declaration correct. The (1) They include statements intent are not irrelevant. public protection and of the that "the rehabilitation are in interest of the inland of this state the best lakes public [and] state; health and citizens of this (2) thereby," lake "districts welfare will be benefited directly by persons formed affected should be Stat. of inland waters." Wis. deteriorated condition added). 33.001(1) (2)(b) (emphasis A lake district why property ought to to be able articulate board subject its added included in the lake district and layer directly by inclusion is more benefited taxation vicinity parcels in in than thousands district that are not included the district.19 may precede the detachment decision We also note that contesting special A hearing coincide with assessment. or hearing explicitly requires commissioners to special assessment short, In 61. there are factors besides whether change there has been circumstances a con- scientious lake district board must take into account. Rock-Koshkonong case, In this Lake beyond adopting procedures District statute, went peti- and criteria for the consideration of detachment adopting tions. One of the reasons for these criteria was (A-123). promote consistency. Resolution 99-03 The procedure anticipates petitioner Lake District's that a provide explaining why will a "statement petitioner be should removed from the District." The may present testimony and evidence relevant specific property whether is not benefited continued 11(A). inclusion the District. at Id. The commission- may question any including witness, ers 11(B), may owner, id. at and the Board consider: A. physical characteristics of the property. (recreational, commercial, residential, B. Its use etc.). relationship C. Its to the lake in terms of whether: riparian; It is private rights lake; 2. It has access to the lake; proximity public 3. Its access to the lake; within 4. It is view of the and "examine each and determine the each parcel parcel benefits to the project, considering size, proximity from such factors as present potential lake and and use parcel, including of the 33.32(l)(b). applicable regulations." zoning Stat. Com- Wis. why explain property missioners must be able to benefited is they impose special inclusion in the lake district if intend to property. assessments on that

179 ground or water is within the watershed It table of the lake. property of the be

D. the value would Whether reasonably in if the lake were to be enhanced condition; or clean, and usable attractive be of the would whether the value degraded in a if the lake were to be diminished condition. result

E. of the will Whether detachment any "hole" "island" in the boundaries of or District. surrounding

F. circumstances Whether District have property's inclusion changed. Any prop- other relevant to whether the

G. factors in the

erty is benefited continued inclusion District. Surely, at III the "relevant" factors A-124,

Id. Criteria. ought set out the Board to address include factors petitioner making the case for detachment. Having consider, criteria to established solely look to those lake board should not district support position disregard and criteria criteria arbitrary not, that do because a lake district must avoid capricious "Arbitrary action. action the result unconsidered, an wilful and irrational choice of conduct 'winnowing sifting' pro- and not the result of the Rothwell, 239, 2d 233, v. Wis. cess." Olson (1965). Arbitrary represents action a board's N.W.2d86 judgment. fair will and not its and consistent application of rules reasonable will blunt a detachment petitioner's claims that a lake district board has been arbitrary. property

¶ 64. It should noted if be is de- tached, the detachment is not If a lake irrevocable. project property district undertakes that will benefit detached, that has been or if the itself changes, may proceed- the lake district board initiate ings .property to re-attach the to the district.

¶ 65. Review of a detachment determination does permit judgment not a court to for the substitute its judgment legislative body. However, considered empowers statute the court to assure that the lake actually district board an makes individualized deter- by parcel mination of whether a is or "is not benefited 33.33(3), district," continued inclusion in the see and permits plainly a court to address a erroneous exercise of discretion. opinion attempt

¶ 66. In this we do not set determining forth standards for whether is or in a lake is not benefited continued inclusion district. objective legislative encourage This is work. Our is to development of reasonable standards lake dis- legislature, trict boards and the and to assure adher- they promote exist, ence as to to standards when so consistency, public policy. fairness, and sound F. Review of Detachment Decisions 67. Both the circuit court the court appeals governed assumed that this action was principles statutory they certiorari, con- review analyses accordingly. ducted their legislature ¶ did not make clear what 68. hearing appeal for an under kind of it intended 33.26(7). county requirement § imposed no that a It objections evidentiary hearing on to a board conduct an other than lake district or make a record of its decision creating lake district with certain a resolution findings. imposed requirement required Likewise, it no hearing evidentiary a lake district board for an when petition. legislature Yet the did considers a detachment appeal, court, a circuit on to take addi- not authorize situation. tional evidence either 33.26(7) 33.33(3) §§ 69. Wisconsin Stat. aggrieved right appeal. party a to This each afford an grant implies not discre- that the decision review is suggests statutory tionary and that court, with the certiorari. Stacy County Department

¶ 70. In v. Ashland of 595, 601, 39 2d 159 630 Welfare, Public Wis. N.W.2d (1968), question of review certio- we examined provision a rari where no was made for review of decision a board or commission. concluded that We judicial statutory provisions there are no where may review, the action of a board or commission be by way Stacy of certiorari. Id. The situation in reviewed analogous to the situation here. somewhat 33.26(7) § Although does not mention "cer- "appeal." "petition" In tiorari," it does use the words any grant authority to the the absence of additional imply court, we believe the words of the statute that the largely previously existing confined to a record. court is County Supervisors, See Nielsen v. Waukesha Bd. (Ct. 1993). App. 498, 521, Wis. 2d 504 N.W.2d621 This 33.26(7) § supported by comparing hearing view is 33.32(1)(f) hearing, challenge which is utilized for a to an assessment.20 The latter hearing appears more than a review of evidence. contemplate existing In Lakeshore v. Plan Development Corp. Commission, 560,107 2d (1961), Wis. N.W.2d 590 court that: explained

The writ of certiorari at common law was limited in scope usually only jurisdic- and ... questions raised power tion or peti- excess set forth as errors in the respon- tion ... The return was taken as if conclusive petition to the impeached by sive and could not be collateral affidavits. . .. scope purpose

The and of the writ of certiorari has enlarged by been statute and it is now used as a method appeal only of jurisdiction determine not of a municipal board... but also to the action review of unreasonable, arbitrary, such a board as or discrimina- tory and sometimes to decide the merits of the action. Id. at 565. any authority We do not for a court perceive

to decide de novo the of an in merits action detachment. (1) see review on inquiry We based as to whether a lake (2) district board within kept jurisdiction; its whether it (3) on a proceeded theory law; correct whether its arbitrary, action was or unreasonable and oppressive, (4) its will and not its and represented judgment; whether the evidence was such board might that make the determination reasonably question. 33.32(1)(f) provides part: Wisconsin Stat. "Such appeal and shall be tried determined the same manner as originally cases commenced in said court." for Detachment Donaldson's Petition G. requires a lake The statute on detachment to make an individual determination

district board specific property is or is not benefited whether petitioner inclusion in the lake district. The continued creating persuading the board and has the burden (1) clearly grounds petitioner state the record. A should (2) append pos- detachment; documents, whenever (3) grounds; support and sible, that tend to these testify present request opportunity and evidence. respond by setting must out the rules district board eventually procedures follow, it it intends arguments support marshal and evidence to must decision. principles review, 75. Under certiorari contained in the

circuit court is limited to facts proceeding review, record from the under unless expands scope principle of review.21This statute apply difficult to when a lake district board somewhat findings go beyond makes the evidence adduced at hearing, petitioner because the will not have had the to address this evidence. notice of need powerless ¶ an 76. A court is not the face of inadequate inadequate record. If the record is because compelling petitioner failed to make a case or failed proof, petitioner compelling offer of to make a inadequate the lake should lose. If the record is because permit petitioner present evi- district did not spirit if dence, the lake district board would violate 59.694(10) See, (authorizing the court to e.g., Wis. Stat. by a take additional evidence in a review of a decision board adjustment).

not the letter of the detachment statute and would subject process itself to due review. case, testified, In this Arthur Donaldson testified,

consultant District and one of the photographs. Consequently, commissioners submitted Rock-Koshkonong Lake District Board cannot be any permit present faulted for failure to Donaldson to However, the Lake Board make evidence. District did findings beyond presented that went the evidence at hearing.

¶ 78. We now examine the record under the stan- statutory dards for certiorari. component

¶ 79. The of certiorari first that we according review here is whether the District acted only applicable law. "Law"refers not to the but statutes guaranties process also to the of due found in the state and federal rel. v. Bd. constitutions. State ex Wasilewski Dirs., 263, 111 243, Sch. 2d N.W.2d 198 Wis. (1961), (citing McPhee, 2d State ex rel. Ball v. 6 Wis. (1959)). 190, 199, 94 N.W.2d711 appeals question ¶ 80. The court of focused on the according the lake hoard acted to law whether district petition and concluded that it did: "Donaldson's properly denied on the basis that he detachment was change Donaldson, failed to show a in circumstance." 238, 2d 21. Because we conclude that this is 260 Wis. in a where the not a correct statement of law situation county made and articulated an indi- board has not petitioner's prop- to the vidual determination of benefit erty, appeals. reverse the court of we relied on this 81. The Lake District Board also support principle. The Board's first three reasons county premise conclusion relate to its legislative property in made a decision to include board by will be benefited the district because such according Thus, Board, in the district. to the inclusion only obligation not had no to the Lake District Board second-guess county any prop- board about of this erty second-guessed county have but also should not change property, in the absence a board about this of reject premise circumstances. We this as inconsistent statutory Except in- with the scheme. in those rare county stances in which a board takes the time to parcels and articulates the basis for address individual finding parcels will inclu- that these be benefited expected district, in the the lake district board is to sion parcel make its own determination whether each is or is not continued inclusion in the district. benefited part Thus, the Board relied in substantial on an incor- theory rect of law. Looking legal issue, another we note that Riley Department in State ex rel. v. Health & Social (Ct. App.

Services, 618, 2d 445 N.W.2d 693 Wis. 1989), appeals the court of stated: review,

On certiorari we determine de novo department... according appli- acted whether law, arbitrary cable whether the action was or unrea- sonable, supported and whether the evidence the deter- important component analysis mination ... An is rules, department whether the its own an followed "for agency procedural regulations is bound which it promulgated." has itself added). (emphasis

Id. at 623 analysis inapposite reviewing ¶ 83. This pure legislative power. exercise of are "Courts reluctant inquire legislature complied into whether has legislatively prescribed enacting with formalities separation pow- from statute. This reluctance stems comity concepts." Stitt, State ex rel. La Follette v. ers (1983). 358, 364-65, 114 2d N.W.2d684 Wis. generally legislature's that the adher- [C]ourts consider prescribing procedure ence to the rules or statutes is entirely legislative matter control and discre- within tion, subject judicial legislative unless the not review procedure by mandated the constitution. If the self-adopted procedural rules legislature fails to follow enacting legislation, in rules are not man- such constitution, by dated courts will not intervene legislation declare the invalid.

Id. at 365. Although adopted

¶ Board 84. the Lake District reviewing petition, criteria to consider in a detachment make consideration of these criteria it did not mandatory. Consequently, process not see a due

we do each of the violation in the Board's failure to discuss Board's fail- Rather, relevant criteria. we consider the criteria under a different ure to discuss all the relevant component of certiorari review. component

¶ The second of certiorari review 85. in case is the Board's decision was arbi- this whether trary, oppressive, representing unreasonable, or its will judgment. and not its 99-3, In the Lake District Board Resolution might criteria that it "consider" review-

listed seven reviewing ing petition. In Donaldson's detachment eight petition, the Lake District Board enumerated territory why that "the is ben- "reasons" it concluded in the District." efited continued inclusion Board Three the "reasons" stated namely, criteria; "F. relate to one of the seven Whether surrounding property's inclusion circumstances changed." ¶¶ This the District have was discussed legally and 81 above and found to be incorrect on the facts of this case. Lake 88. The District Board did not discuss four namely physical criteria,

of the "A. The charac- seven (recreational, property," of the "B. Its use teristics etc.)," commercial, residential, "E. detachment Whether any of the will result in 'hole' or 'island' in the Any District," boundaries of the and "G. other factors relevant to whether the is benefited con- in the tinued inclusion District." Each of these criteria support position. parcels tends to Donaldson's His two agricultural highway. consist of land near an interstate They agricultural. They agricul- are zoned are used for change ture, and Donaldson said he has no intention to improvements parcels their There are no use. on the except highway signs, for and no one lives on these parcels. parcels Detachment of the two would not create any holes in the District. The District did not discuss arguments "other" relevant factors or rebut Donaldson's directly. ¶ 89. This leaves two of the seven criteria that the Board itself listed as factors consideration. The "C," criterion, Board's third reads as follows: relationship [The C. land's] the lake in terms of whether: riparian;

1. It is lake; private rights 2. It has access to the proximity public lake; 3. Its to the access lake; 4. It view of the is within 5. It groundwater is within the watershed or table

of the lake. specifically "lake"—is the refers to Criterion "C"—which finding eight "reasons" for of four of the Board's source parcels are benefited. Donaldson's that tracts are The Board states that both Koshkonong portion proximity" "and to Lake "near "northerly of the Rock River within the District." approximately mile from Rock one tract" is located approximately "southerly located River; the tract" is Significantly, the Board from the Rock River. half-mile parcels between the two does not indicate the distances citing Koshkonong. focus, Instead, Lake it shifts parcels Donaldson's distances to the Rock River because By doing so, to the lake. are closer to the river than using argument head, on Donaldson's its Board turns he not he cited to establish that is ben- the distances proximity" proof parcels are in "near efited as that his the river. proximity" reviewing "near In the Board's finding say legislative cannot that a

rationale, we one mile from a lake is "benefited" located Similarly, finding. proximity, we an irrational legisla- difficulty dismissing out of hand would have property from located five miles tive determination that proximity. is its What a lake or river is benefited however, that the Lake District case, in this is evident proximity. The Lake about no consistent rationale has a consistent stan- Board has not established District determining proximity," has switched "near dard explained analysis, has not in its from lake to river non-riparian agricultural half-mile land located a how proximity the river is benefited or a mile from directly many parcels not included similar more than subject layer of to its added and not the District taxation. University

¶ 92. In 1999 the of Wisconsin Exten- study potential impacts removing sion did a on the of Dam. Marcouiller, al., Indianford See David W. et University Assessing Wisconsin-Extension, Potential Ecological Impacts Removing Economic and (Dec. 1999). study 8, Dam The focused on Indianford Koshkonong. Albion, Milton, Sumner, towns study It did not the town of Fulton in which properties presumably located, Donaldson's are because riparian property Koshkonong. Fulton has no on Lake analysis, investigators In the course of their indi- they property cated that studied within a half-mile of Koshkonong. general, rough overlap Lake "In there is a parcels [the] between identified within mile and 1/2 newly supra, Marcouiller, created lake district." at 22. investigators acknowledged The that "the boundaries exactly" do not match with their half-mile calculation. appears However, most in the district to be within a half-mile of the lake.

¶ 93. When is a half-mile or more from riparian, private river, is not and has no access to "proximity" river, the lake or the benefit derived from requires explanation not so self-evident that it no in a detachment decision. In case, this the Board failed to proximity link to benefit. gave oppos- Board another "reason" for

ing detachment. It stated: "Both tracts are within the Rock River watershed and within the sub-watershed portions areas that drain into of the Rock River and Koshkonong Lake within the boundaries of the Dis- Judge saying: trict." reason, Welker addressed this very great [as County "There is a deal of land in Rock Counties] well as Jefferson and Dane which is within into the Rock River or drains the Rock River watershed Koshkonong in the is not included Lake which or District." cross-examination, the Board's wit- 95. Under Hjort, acknowledged in that all land Wis-

ness, Steve Consequently, the fact watershed. consin is some within property or sub- in a watershed is located that property very how that us little about watershed tells property or how that is benefited affects a lake or river Again, the Lake District in a lake district. inclusion showing provides that fact is a fact how Board without Judge put fact or it, the relevant to benefit. As Welker controlling probity." "any not one of reason was Lake District Board reason, As another par- "Although parcel riparian, neither is both stated: proximity public launch boat cels are located close parcel explained is that the northern facilities." It approximately boat 2.5 miles from DNR located from and one mile several on Ellendale Road launch site private parcel launching is facilities. southern boat approximately mile from the DNR boat "located explain launching DNR site is not that this site." It did River, lake. on the Rock not the parcels consisted of residen- If Donaldson's potential property, boat- inhabited boaters tial might relevant. But Board's reason be ers, agricultural parcels no land with consist of Donaldson's potential improvements. There are no no residents and advantage proximity, property to take boaters on must there. The District boats are stored and no acknowledge emphasizing this reason private property riparian no and has is not Donaldson's rights result, As a lake or river. to the access markedly from not different Donaldson's Edgerton Janesville, Milton, or even or trailering except a that boat from one of two his agricultural parcels public to a launch site take would trailering few minutes less time than a boat from residential in one of these communities. More- properties public over, there are closer to the DNR properties launch site than Donaldson's that are not in the Lake District.

¶ 98. As its final reason, "C"-criterion the Board southerly states: "The tract has a direct view of the supported hearing Rock River." This reason was at the photograph taken from Knutson Road near parcel disputed. southern Donaldson's is not In reviewing undisputed rationale, this we it note that parcel in the record that neither has direct view of Koshkonong, Lake and there is no evidence that there parcel. ais direct view of the river from the northern opposing applies Hence, this reason for detachment only parcel. citing to the southern In this reason, the contending agricultural Lake District Board is eight away land located more than football fields from the river is "benefited" a direct view of the river. This compelling. evidence is not ¶ 99. We turn now to the final Board's reason for opposing detachment, a reason related to the Lake District Board's criterion, fourth "D."22The Board states: "The value both tracts will be enhanced if the quality water and recreational value of the Lake Kosh- konong and associated of the reaches Rock River within improved are District and will be diminished if the

22Paragraph D. of the Lake District Board's Criteria reads as follows: "D. Whether the value of the would be enhanced if the reasonably clean, lake were to be in attractive condition; and usable or whether the value of the property would be diminished if degraded the lake were to be in a condition." A-124. quality removed or if water

Indianford Dam were of the lake and associated reaches recreational value degraded." further the Rock River were reviewing reason, are reminded In this we legislature's findings and declaration of intent. of the 33.001(1). legislature In 1974 the deter- Wis. Stat. protection of the mined that "the public and rehabilitation are in the best interest inland lakes of this state public this and "the health and citizens of state" thereby." words, Id. In other welfare will be benefited legislative sense, Milwaukee, a La broad residents Superior, Wisconsin, all are Crosse, Marinette, and Koshkonong, by healthy clean, a Lake as "benefited" protected, rehabili- lakes, well as other inland because public public inland health and tated lakes "benefit" however, that residents of mean, welfare. This does not Superior, Crosse, La and Marinette could Milwaukee, reasonably Rock-Koshkonong in the Lake he included they "directly affected" District because are not 33.001(2)(b). The lake. "deteriorated condition" this evaluating analysis applied in same must be "directly parcels. parcels affected" Donaldson's Are the condition of these waters? some tracts the "value" of Donaldson's two Is Koshkonong quality and the enhanced of Lake contingen- reason on Rock River? The Board bases its parcels "if' will he affected cies: the "value" of the improved, quality are or water and recreational value "if1 water removed, "if' Dam were or the Indianford degraded. quality and value were recreational taken, is reference what actions it has Board does not explained taking, regard, nor it take in this has or will the value have affected or will affect how these actions agricultural non-riparian Board relies on land. The properties relationship Donaldson's between explain River does not how removal of the the Rock but any properties or Indianford Dam would affect his properties likelihood, In all linked to the Rock River. any depend increased land value would on conver- agricultural sion of the land to residential use instead of contingency use. This testimony. is inconsistent with Donaldson's again,

Once the Lake Board has District linkage failed to articulate the between its reason and present particular parcels to the of land. benefit up,

¶ 102. To sum the Lake District Board exer- judgment. placed heavy and not its It cised emphasis will requirement change in on a circum- change in a in in stances situation which circum- required. stances was not It failed to address or rebut grounds given by petitioner. doing, In so it failed to discuss several criteria it had identified its own Although gave the Board several reasons for its rules. beyond change decision of a absence circum- consistently explain why stances, it failed to these showing reasons were relevant direct benefit why Donaldson's Donaldson's directly many properties was more benefited than other not included in the Lake District. The Lake District consistently past, Board failed to discuss how its present, benefiting and future actions were Donaldson's parcels. arbitrary short, In the Board was and unrea- to hollow, sonable. Were we conclude that the Board's ritualistic enumeration of reasons was sufficient to properties, sustain its refusal to detach the Donaldson procedure meaning- we render would the detachment less. component There one additional is for cer-

tiorari review that we should mention: whether the might reasonably evidence such that the Board was question. make the determination We conclude that reasoning by the evidence—the the Lake Dis- —cited trict Board was not sufficient to sustain its decision. As noted, the Board failed to link several of its reasons finding justify disregard of benefit failed to its proffered the reasons Donaldson.

H. Lake Districts and Certiorari Review extremely

¶ 104. This court is sensitive to its obligation any to afford deference exer- substantial legislative power. performs cise of aWhen lake district legislative functions, it entitled to deference, is this legisla- and courts should be reluctant to invalidate its clear-eyed Nonetheless, tive decisions. there be a must analysis predicament of the inherent the exercise legislative power by lake districts. general rule, 105. As all in Wisconsin city, village, town,

is situated within a or Indian reser- exempt. vation, and is either taxable or tax All city, a lake within district is also situated within village, subject town, or and is to whatever taxes the pertinent municipality may impose. property is When subject within included a lake to an district, it is subject is, additional level of taxation: that it to a tax is county, city, top imposed village, on of the tax town, district, or the vocational-technical and the school district. There must be some discernible reason why any property pay layer required an additional of taxes. theory, sanitary In a town district is also an layer government. However,

additional cities and villages statutory authority have clear to handle sani- tary result, issues while towns do not. As a towns create sanitary per- districts that certain functions can so be performed formed that cannot them- be towns sanitary are not an sense, In districts selves. this layer government. of additional truly layer are an additional 107. Lake districts by people government, they created driven of and are Special petition- special interest. interest a laudable but this of a lake district to serve ers devise boundaries county they plan a submit their to board interest county may carefully approval. board evaluate every parcel property to determine whether it should practical matter, in the district. As a this is be included likely require happen. to Such a review would not proposal to fine-tune the submitted conscientious board collectively up plan. petitioners draw its own unlikely happen respect especially to with to This is county. located in different legislature to Thus, because the has failed property may clear for what be establish standards may gerry- district, included in a a lake district be ultimately mandered creation that is turned over to the disgruntled people Property who drew the lines. owners may their inclusion in the district not have means to county approve influence the elected board officials who ability punish at the ballot box creation, or or the lake district commissioners either the board who regard, In their own creation. this creation administer a lake has fewer checks than creation of a district sanitary town district. any provide mean- If courts are unable to

ingful protection owners, the creation and governance lake will lend themselves to districts of certiorari review do serious abuse. The limitations Consequently, urge provide protection. we not legislature much reexamine the statutes on lake districts to legislative provide decisions, standards for reasonable by county creating by a board a a whether district or governing lake district board district.

III. CONCLUSION stated, 110. For the reasons we conclude that satisfactory the Lake Board to render a District failed par- determination of whether Arthur Donaldson's two territory are not cels of benefited continued inclu- improperly sion the Lake District. The Board relied premise required on that Donaldson was to show change in circumstances from the the Lake Dis- time though County formed, trict was even the Rock Board determination had not made an individualized parcel his that would be benefited inclusion the district. Although deny- the Board stated additional reasons for ing petition Donaldson's its determina- detachment, arbitrary representing and unreasonable, tion was judgment. appeals The will and not its court of decision reversing uphold- the decision of the circuit court and ing reversed, and the Lake District Board is this case remanded to the circuit court for action consistent with opinion. this

By appeals decision of the court of Court.—The is reversed and the cause is remanded to the circuit proceedings opin- court for further consistent with this ion. {dissenting). CROOKS, Be- 111. N. PATRICK J. majority required

cause the fails to accord the deference respectfully I Board, to the decision of the Lake District majority's disagree I that dissent. with the conclusion within a lake is not an owner of located district change required to of circumstances in order to show territory I that detached from the lake district. have majority's ruling respectfully dissent because the insti- county duplicative process undermines a tutes a previous determination that each individual board's property in Lake "will be benefited District 33.26(3). § of such district. Wis. Stat. establishment" meaning in "benefited" has the same term 33.26(3), § statute, the lake district creation and Wis. 33.33(3), governing detachment. In Stat. coming the statute opposite majority conclusion,

to an both 33.33(3) § interpreted improperly and failed to avail precedent illustrating itself of case that the term "ben- 33.26(3) 33.33(3), §§ appears in efited," as it both and parcel each individual within the lake district. refers to majority begins ¶ 112. The its discussion of the relationship in between the word "benefited" Wis. Stat. 33.26(3) 33.33(3) §§ by agreeing and that the decision to legislative. Majority op., majority is 56. The detach "frontage" then states that because the term was not legislation included in the lake district but was included legislation, a in earlier drafts of that fair inference can procedure that the detachment for lake be drawn safeguard ensuring intended to be a that a districts was property provided is an individual re- owner decision garding specific property the owner's whether ben- by majority Id., ¶ The efited continued inclusion. 57. then concludes that the definition benefit under 33.26(3), § which relates to whether "will be § 33.33(3), benefited," the is not same as under which "territory by speaks to whether is not benefited contin- Id., ¶ in the ued inclusion district." 58. majority The look no needs to further than

the statutes themselves to determine that "benefited" 33.26(3) §§ meaning in has same both Wis. Stat. 33.33(3). Subchapter in Because both statutes are IV of statutory Chapter proper 33, the rule of construction dictates that "benefited" should be attributed the same meaning statutory unless context calls for a differ meaning. County, ent Wilson v. Waukesha 157 Wis. 2d (Ct. 1990) App. (rejecting 790, 796, 460 N.W.2d 830 ascribing meaning a different to the word "malicious" appeared multiple times the same statute be statutory cause structure did not call for different meanings). Here, the context does not call for a differ meaning ent of the term "benefited." statutory fact, In context leads me to way conclude that "benefited" must be defined the same chapter. in both in the statutes same Wisconsin Stat. 33.33(3) part: "Proposals states, in relevant for de- by tachment shall be commissioners, considered territory may upon finding be detached that such territory by is not continued inclusion benefited added). (Emphasis language, district." "not ben- efited inclusion," continued indicates that indi- petitioning vidual that the owner is for detach- already county ment has been determined board to be benefited inclusion the lake district. The majority's effect of the decision is to allow members of a challenge county lake district to board's determina- property by tion that the owner's was benefited inclu- by appealing in sion the lake district to the Lake change District Board without the need to a in show appeals noted, circumstances. As the court of testimony during hearing Donaldson's his before proves point. Lake Board District this anything changed [LAKE DISTRICT BOARD]: [H]as County passed forming since Rock the resolution they lake or did make a then district... mistake back they when formed this lake district? they

MR. DONALDSON: I think made a back mistake bought then because it was farm land when I it and I've land, farm years and it's still if for a number of owned than else with it other anything do I don't intend to but farm land. any been So there haven't BOARD]: DISTRICT

[LAKE then? property since changes in the conditions of No. MR. DONALDSON: appeals the Lake held, as did The court of changed showing of Board, that without a

District to detach- is not entitled Donaldson circumstances agree them. I with ment.1 support for this conclu- I find additional 30-day 33.26(7), § a establishes which Wis. Stat.

sion "aggrieved person of the the action a window petition review of the circuit court for board" to including particular property county a action in board's majority's lake district's boundaries. within the legislature's approach to limit the intent eviscerates the challenge period property such owner has that time county Chapter undercuts 33 also board. a decision property majority's owners will be that concern perpetuity, compelled in lake districts to remain county challenge they determi- board's can unless inclusion their is benefited nation that 33.33(3) § by way without of Wis. Stat. the lake district Chapter changed showing any circumstances. option- provides property two reasonable owners with initially, timely petition, can make a An owner s: 33.26(7), county challenging board's decision under an district, in a lake include the owner's petition if the later, for detachment also, can owner 99-03, Sec Resolution Rock-Koshkonong Lake District III(F) may the Board consider states, part, in relevant tion surrounding inclusion property's circumstances "[w]hether changed." have in the District changed

owner is able to demonstrate circumstances 33.33(3). shown, under If such circumstances would allow a lake to district board order detachment. majority acknowledges applica

¶ 117. The that Paper Heights tion of Fort Howard Co. v. Fox River Sanitary (1947), District, 145, 250 Wis. 26 N.W.2d 661 subject leads to the conclusion that this case is to give However, certiorari review. it fails deference to language appeals Howard, in Fort as the court of pointed illustrating finding out, that a that an entire prop district is "benefited" means that each individual erty potential in the district the has be benefited. property argued Howard, In Fort a owner property sanitary that its should not be in included property district because its individual ben- was not by efited inclusion. Id. at 152. Fort Howard asserted property that order to district, be included the immediately had to be benefited such Id. inclusion. Focusing property on benefit the the district as disagreed, concluding whole, this court that when such property as a whole each is benefited then individual property within the district benefited inclusion property the Id. district. The fact the individual did preclude not realize not the immediate benefits did formation Id. The Fort court district. Howard stated:

If property the town board finds that within boundaries of as a be proposed district whole will then organized. benefited the district is to For be if some example, parcel land was included in proposed lay district which out of the watershed and proposed improvement, could not be served manifestly so situated could not be ben- If all efited. within the boundaries of proposed proposed district is in the and the watershed it, the may property serve then the improvement of if it as a is and the town board

district whole benefited finding organize necessary may the makes the other district. added). (Emphasis

Id. interpreted appeals properly ¶ of 119. The court and from Fort Howard this directive finding differently, a dis that commented: "Stated will unless some as a whole is 'benefited' stand trict parcel in the is not benefited the inclusion." district Rock-Koshkonong Lake Donaldson v. Bd. Comm'rs Dist, of of App 26, ¶ 260 2d 15, 238, WI Wis. 66. N.W.2d interpretation 120. Further affirmation this emerges appeals' from the court of

of Fort Howard reading "[t]his of Fort is further statement that supported Howard subsequent particu- the discussion of the supreme case the court's lar facts and undisputed appears from the evidence conclusion: 'it plaintiff will Id. that the of the be benefited.'" "[i]f pointed appeals The court of out that benefit to parcel irrel- at issue in Fort Howard was individual why supreme explained not evant, the court have would appeals parcel was Id. court of went benefited." Subchapter on conclude that the text IV suggest Chapter 33 did not that the term "benefited" meaning prior had a different to the time when the lake Id., was formed than it had after it was formed. district Again, requiring change 21. Donaldson to show not contrary language proper in circumstances is to the interpretation at issue. statutes appeals' above, court of As mentioned language interpretation was of the "benefited" correct. deny upholding In the Lake District Board's decision to petition, persuasive Donaldson's the court found argument opportunity Board's challenge "that Donaldson's properly

whether his was included governed by in the 33.26, District is Wis. Stat. oppor- because Donaldson failed to avail himself of that tunity, change he must now demonstrate in circum- showing longer using stances he no 'benefited,' county same definition of 'benefited' used board when Id., ¶ the Lake was District created." Unlike majority, appeals give the weight court did not fail determining

to the Board's decision when that poten- the included in the Lake District would tially by benefit such inclusion. majority's ignores legisla-

¶ 122. The decision the County tive both role of the the Board and Lake District majority Board. The concedes certiorari of a that review detachment decision does not it to allow substitute its judgment for the Lake District Board's determination. Majority op., by recognizing ¶ Yet, not the County original finding Board's that each failing District, benefited inclusion in the Lake to apply correctly, review, the rules of certiorari and failing accord to to the Lake District Board's decision presumption majority the correctness, of the has wan- analytical path dered the from correct into a thicket of claiming recognize presumption, error. While the to majority only applies presumption of to correctness County creation of District, Board's the Lake see majority op., though majority ¶ n.13, 53, even recognizes of decision the Lake District Board on legislative Majority op., ¶¶ detachment to be a one. 4 and 56. majority may notes, 123. As the "a court not legislative power." Majority op., (quoting

exercise 48 150). majority Howard, Fort 250 Wis. at Yet the seems ignore by according this directive the Lake District

203 of little or no deference. decision Board's decision legislative determination. See Joint Sch. Board is a Appeal Bd., 790, 2d 794 203 v. State 56 Wis. N.W.2d Dist (1973). appeal, the Board's decision 1 When reviewed on its to determine whether it exceeded should be reviewed capriciously. jurisdiction arbitrarily or Id. at or acted presumption must be afforded A of correctness Board, if as the Lake District a decision a board such no of those factors. there is violation majority specifically, agree ¶ 124. I with the More (see 4) may majority op., only that the factors court (1) properly are as follows: consider on review (2) jurisdiction; kept its Whether the board within (3) according law; whether whether the board acted arbitrary, oppressive or unrea action was board's judgment; represented will and not its sonable (4) might it the evidence was such that whether reasonably ques or determination make order Review, Bd. tion. State rel. Mitchell Aero v. Wis. ex (1976) (citing Dolphin 268, 281-82, 2d N.W.2d Review, 408, 403, 2d 234 N.W.2d 277 v. Bd. 70 Wis. (1975)). appeals properly recognized ¶ 125. The court of principles Donaldson, 260 of certiorari review. these analysis its 238, court focused on the Wis. 2d The prong, since the circuit court found that the second contrary The reasoned Board acted to law.2 court that proceeded on Lake Board because the District part theory law—a owner who is of correct change in in circumstances lake district must show successfully petition detachment from order to that court, decision, in its determined that circuit contrary to the of the Lake District Board was statute decision change required no for detach and that circumstances was ment. did

district —it not have to address the remaining three factors. Id. I conclude that the Lake District Board was in its assessment and right provided sufficient support for its decision not to grant detachment. 126. The Board detailed provided justi- reasons

fying that position Donaldson's for detach- request ment should be denied. The Board stated following, in part: relevant

First, original both tracts were within the bound- ary of the approved by District County the Rock Board of Supervisors Resolution 99-A-038.

Second, County the Rock Resolution included a finding that the in property included the District will be benefited establishment the Rock- Koshkonong Lake District.

Third, provided no has evidence been com- indicating any mission there change has been the property inconsistent with the of Supervi- Board findings sors' that these tracts benefit from inclusion the District. Fourth, both tracts are within Rock River

watershed, and within the subwatershed areas that drain into portions of the Rock River and Lake Koshkonong within the boundaries of the district.

Fifth, both proximity tracts are located near Koshkonong Lake portion and the of the Rock River within the District. ...

Sixth, although riparian parcel neither both parcels are located in proximity public close boat launch . .. facilities.

Seventh, southernly tract has a direct view of the Rock River. if be enhanced value of both tracts will

Eighth, the value of Lake Kosh- quality and recreational the water the Rock River within reaches of konong associated be if the improved and will diminished the are District if quality or the water dam were removed Indianford of the lake and associated and recreational value degraded. were further of the Rock River reaches the considerations, detailing these 127. After that Donaldson's finally Board concluded Lake District in the District. its inclusion territory was benefited the Board Nevertheless, concludes that majority the judgment." Majority op., and not its "exercised its will 102.3 majority's characterization strongly disagree 3 I with clearly decision-making process. The Board exer the Board's in in the criteria set forth Rock- judgment applying its cised 99-03, Section III. Sec Koshkonong District Resolution Lake states, part: tion III in relevant property subject is ben- In consideration of whether District, may the Board efited continued inclusion consider: property. physical of the

A. The characteristics etc.). (recreational, commercial, residential, B. Its use relationship in terms of whether: C. Its lake riparian; 1. It is lake; rights private has access It lake; public proximity access to the 3. Its lake; of the It is within view ground or table the lake. watershed water 5. It is within the property if the lake be enhanced D. of the would Whether value condition; reasonably clean, attractive and usable or to be were if would of the be diminished whether value degraded in a lake to be condition. were any will result "hole"or E. detachment of the Whether of the District. "island" the boundaries majority provides ¶ 128. While Lake what the analy- District Board could have used anas alternative analysis sis, that is no more reasonable than one applied by every the Board. The Board need not look to petition it criteria had established for a review of majority detachment. The admits that those factors are guidelines mandatory. majority's inappropri- —not application exemplified ate of certiorari review is best fact-finding property its own that an increase agricultural value use, results from recreational not majority poten- use. The fails to take into account the experi- tial that land included in the Lake District will only ence value, increases in its not because property, the activities on that but also as a result of the occurring properties activities on other included in the Lake District. foregoing respect-

¶ 129. all of reasons, For I fully dissent.

¶ 130. I am authorized to state that Chief Justice Shirley Bradley S. Abrahamson and Ann Justice Walsh join this dissent. surrounding property's

F. Whether circumstances inclusion in changed. the District have Any G. other factors relevant to whether the is benefited by continued inclusion in the District.

Case Details

Case Name: Donaldson v. Board of Commissioners

Court Name: Wisconsin Supreme Court

Date Published: Jun 9, 2004

Citation: 680 N.W.2d 762

Docket Number: 01-3396

Court Abbreviation: Wis.