Arthur T. Donaldson v. Board of Commissioners of Rock-Koshkonong Lake District

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2004 WI 67 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 01-3396 Arthur T. Donaldson, Plaintiff-Respondent-Petitioner, v. Board of Commissioners of Rock-Koshkonong Lake District, Defendant-Appellant. REVIEW OF A DECISION OF THE COURT OF APPEALS 2003 WI App 26 Reported at: 260 Wis. 2d 238, 659 N.W.2d 66 (Ct. App. 2003-Published) OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: October 8, 2003 SOURCE OF APPEAL: COURT: COUNTY: JUDGE: Circuit Rock James Welker JUSTICES: CONCURRED: DISSENTED: June 9, 2004 CROOKS, J., dissents (opinion filed). ABRAHAMSON, C.J. and BRADLEY, J., join dissent. NOT PARTICIPATING: ATTORNEYS: For the plaintiff-respondent-petitioner there were briefs by David C. Moore and Nowlan & Mouat LLP, Janesville, and oral argument by David C. Moore. For the defendant-appellant there was a brief by William P. O Connor, Mary Beth Peranteau and Wheeler, Van Sickle & Anderson, S.C., Madison, and oral argument by William P. O Connor. An amicus brief was filed by William J. Mulligan and Davis & Kuelthau, S.C., Milwaukee, on behalf of The Wisconsin Association of Lakes, Inc. 2004 WI 67 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 01-3396 (L.C. No. 01 CV 405) STATE OF WISCONSIN : IN SUPREME COURT Arthur T. Donaldson, FILED Plaintiff-Respondent-Petitioner, v. JUN 9, 2004 Board of Commissioners of Rock-Koshkonong Lake District, Cornelia G. Clark Clerk of Supreme Court Defendant-Appellant. REVIEW of a decision of the Court of Appeals. Reversed and cause remanded. ¶1 DAVID T. PROSSER, J. Arthur T. Donaldson (Donaldson) seeks review of a published decision of the court of appeals that reversed an order detaching Donaldson's two parcels of land from the Rock-Koshkonong Lake District (Lake District).1 The Lake and District is a public inland lake protection rehabilitation district (lake district) under Wis. Stat. ch. 33 1 Donaldson v. Bd. of Comm rs of Rock-Koshkonong Lake Dist., 2003 WI App 26, ¶2, 260 Wis. 2d 238, 659 N.W.2d 66. No. 01-3396 (2001-02).2 This review requires us to (1) interpret Wis. Stat. § 33.33(3), which authorizes a property owner to seek detachment of "territory" from a lake district; and (2) address the scope of a circuit court's authority to review a lake district board's rejection of a detachment petition. ¶2 Donaldson asks that we reinstate the decision of the circuit court, District on which grounds detached that his the "territory" evidence from the Lake at the presented detachment hearing did not support a finding that Donaldson's two parcels District. were benefited by continued inclusion in the Conversely, the Board of Commissioners of the Rock- Koshkonong Lake District (the Lake District Board) asks that we affirm the court of appeals decision that a lake district board may detach property only if it finds there has been a change in circumstances since the formation of the district. ¶3 We statutory individual conclude right to that petition determination of Wis. Stat. § 33.33(3) the lake whether district specific accords board a for an "territory" is "benefited" by continued inclusion in the lake district.3 This 2 All references are to the 2001-02 version of the Wisconsin Statutes unless otherwise indicated. 3 In Wis. Stat. § 33.33(3) the legislature uses the word "territory" to describe the land a petitioner seeks to detach from the lake district. This word is different from the word "property" in Wis. Stat. § 33.26, which is used to describe land included in a lake district at the time the district is created. In this opinion, we use the phrases "Donaldson's territory," "Donaldson's parcels," and "Donaldson's property" interchangeably. But see n.17, infra. 2 No. 01-3396 determination is separate and distinct decision to create the district. between a county board's from the legislative There is no inherent conflict decision to create a district with certain property in it and a lake district board's decision to detach a parcel from the district, because the lake district board's decision must address present circumstances, taking into account the lake district's past, present, and future activities in relation to that property. petitioner must always We therefore reject a rule that a demonstrate a change in circumstances before a lake district board is authorized to detach property. ¶4 We further conclude that a lake district board performs a legislative function when it considers whether to detach territory under § 33.33(3). Accordingly, a lake district board's detachment decision is presumed correct, and judicial review is limited to inquiring (1) whether the lake district board kept within its jurisdiction; (2) whether it proceeded on a correct theory of law; (3) whether its action was arbitrary, oppressive, or unreasonable and represented its will and not its judgment; and (4) whether the evidence was such that the board might reasonably make the determination in question. When the board fails this review, the circuit court should remand the petition to the lake district board for action consistent with its decision. ¶5 Accordingly, we reverse the decision of the court of appeals and remand this case to the circuit court. I. FACTS AND PROCEDURAL HISTORY 3 No. 01-3396 ¶6 The facts and procedural history are not in dispute. On June 10, 1999, the Rock County Board of Supervisors created the Rock-Koshkonong Lake District, consisting of land surrounding Lake Koshkonong and a portion of the Rock River. The Lake District consists of more than 4,000 parcels of land located within five towns in three counties (Dane, Jefferson, and Rock).4 It describes itself as "the largest lake district in the State of Wisconsin." See www.rkld.org (Rock-Koshkonong Lake District modified created website) the Lake (last District, April the Rock 5, County 2004). Board When found it that "[t]he property included in the district will be benefited by the district's establishment." required by statute. This is a prerequisite finding See Wis. Stat. § 33.26(3).5 4 See Wis. Stat. § 33.37 for a county board's authority to create a lake district in more than one county. 5 Section 33.26(3) states: The committee shall report to the county board within 3 months after the date of the hearing. Within 6 months after the date of the hearing, the board shall issue its order under this subsection. If the board finds, after consideration of the committee's report and any other evidence submitted to the board, that the petition is signed by the requisite owners as provided in s. 33.25, that the proposed district is necessary, that the public health, comfort, convenience, necessity or public welfare will be promoted by the establishment of the district, that the property to be included in the district will be benefited by the establishment thereof, and that formation of the proposed district will not cause or contribute to long-range environmental pollution as defined in s. 299.01(4), the board, by order, shall declare its findings, shall establish the boundaries and shall declare the district organized and give it a 4 No. 01-3396 ¶7 The Lake District includes two parcels of land owned by Donaldson. One parcel is located about one mile north of the Rock River, the other about one-half mile south of the Rock River. Donaldson's attorney filed a timely letter objecting to the formation of the lake district, as permitted by statute,6 but did not seek judicial review after the district was formed. ¶8 District On January Board for 4, 2001, Donaldson detachment of his petitioned two the Lake properties.7 On February 13, 2001, the Lake District Board held a public hearing to review his petition. A transcript of the Board's evidentiary hearing was made part of the circuit court record. corporate name by which it shall be known. Thereupon the district shall be a body corporate with the powers of a municipal corporation for the purposes of carrying out this chapter. If the board does not so find, the board, by order, shall declare its findings and deny the petition. (Emphasis added.) 6 Wisconsin Stat. § 33.26(1) states in relevant part: "Any person wishing to object to the organization of such district may, before the date set for the hearing, file objections to the formation of such district with the county clerk." 7 Wisconsin Stat. § 33.33(3) provides: Territory may be detached from the district following petition of the owner or motion of the commissioners. Proposals for detachment shall be considered by the commissioners, and territory may be detached upon a finding that such territory is not benefited by continued inclusion in the district. Appeals of the commissioners' decision may be taken under s. 33.26(7). 5 No. 01-3396 ¶9 At the hearing, Donaldson testified that his two parcels are not adjacent to any body of water, do not have access rights to Lake Koshkonong or the Rock River, and are not adjacent to any public access to those bodies of water. On the contrary, his parcels consist of agricultural land adjacent to an interstate highway. The only improvements on the land are three highway signs unrelated to Lake Koshkonong or the Rock River. value Donaldson also testified that he did not believe the of his Koshkonong. land was enhanced by its proximity to Lake He acknowledged that his property had not changed since the formation of the Lake District in 1999. ¶10 The only other person to testify was Steve Hjort, a biologist who serves as a consultant to the Lake District. asserted that Donaldson's parcels are within the He lower Koshkonong Creek sub-watershed, which is part of the Rock River watershed, meaning that surface water from his property drains into the Rock River. When asked about the boundaries of the Rock River watershed, Hjort explained that the watershed extends well beyond the established boundary of the Lake District, and that all land in Wisconsin is in some watershed. stated that, based on the map he had in Hjort also front of him, Donaldson's northern property was approximately one and one-half miles from the lake or river and two miles from the nearest public access site; the southern parcel was approximately onehalf mile from the lake or river and one mile from the nearest public access site. 6 No. 01-3396 ¶11 Although commissioners, he Jim did not Folk, testify, took one of photographs of the Board Donaldson's southern parcel to demonstrate that the parcel was within the sightline of the Rock River. evidence. Folk's photos were admitted into Donaldson had testified that Lake Koshkonong was not visible from either of his parcels. ¶12 The Lake District Board continued the matter until its next meeting on March 13, 2001. At that meeting Buck Sweeney, a member of the Lake District Board who had not been present at the previous hearing, moved to deny the petition for detachment for the following reasons: (1) both tracts were within the original boundary of the district; (2) the Rock County Board's Resolution included a finding that the property within the Lake District will be benefited by the creation of the Lake District; (3) there was no evidence that there was a change in circumstances inconsistent with the initial finding that these tracts benefit from their inclusion in the Lake District; (4) both tracts are within watershed areas; (5) the Rock River watershed and sub- both tracts are located in near proximity to Lake Koshkonong and the portion of the Rock River within the Lake District; (6) although neither parcel is riparian, both tracts are located close to public boat launches; (7) southerly tract has a direct view of the Rock River; (8) the the value of both tracts will be enhanced if the water quality and recreational value of Lake Koshkonong and associated Rock River are improved and will be diminished if the lake or river were further degraded or if the Indianford Dam were removed; and (9) 7 No. 01-3396 therefore, the parcels are benefited by continued inclusion in the Lake District. ¶13 The Board voted unanimously in favor of Sweeney's motion to deny Donaldson's petition. ¶14 James Donaldson appealed to the Rock County Circuit Court, E. Welker, Judge. This appeal Wis. Stat. §§ 33.33(3) and 33.26(7). was taken pursuant to The defendant Board moved to dismiss the action on grounds that § 33.26(7) requires that a verified petition be made within 30 days of a lake district board's though decision on detachment, within the 30-day period, and was Donaldson's not complaint, verified. Shortly thereafter, Donaldson filed an amended complaint complying with the verification requirements. ¶15 Both Donaldson and the Lake District Board moved for summary judgment, and the circuit court held a hearing on June 13, 2001. judgment On in November favor of 7, 2001, the Donaldson and circuit court detached granted Donaldson s properties from the Lake District. ¶16 The Lake District Board appealed, contending that the circuit court erred in rejecting its argument that detachment requires agreed, a change in reversing and Lake circumstances. remanding District the Board s The court matter decision for to of appeals an order affirming the deny the petition. Donaldson v. Bd. of Comm rs of Rock-Koshkonong Lake Dist., 2003 WI App 26, ¶22, 260 Wis. 2d 238, 659 N.W.2d 66. ¶17 Because both parties treated Donaldson's action in circuit court as a request for certiorari review, the court of 8 No. 01-3396 appeals employed the standard utilized in statutory certiorari cases. Id., ¶10. Accordingly, the court of appeals presumed that the Lake District Board's decision was correct and limited its inquiry to "whether: (1) the board kept within its jurisdiction; (2) the board proceeded on a correct theory of law; (3) the board's action was arbitrary, oppressive or unreasonable and represented its will and not its judgment; and (4) the evidence was such that the board might reasonably make Id. (quoting Nielsen the order or determination in question." v. Waukesha County Bd. of Supervisors, 178 Wis. 2d 498, 511, 504 N.W.2d 621 (Ct. App. 1993)). ¶18 In fact, the court of appeals focused exclusively on the second inquiry: whether the board proceeded on a correct theory of law. Id. It noted that the word "benefited" in § 33.26(3), governing the creation of lake districts, and the word "benefited" in § 33.33(3), the detachment provision, carry the same meaning. Rock County Id., ¶12. Board had The court of appeals reasoned that the determined that Donaldson's property "benefited" by including it in the Lake District when it created the District, id., ¶20, and review of that decision. Donaldson did not seek judicial In effect, then, the Lake District Board would be allowing Donaldson to circumvent the 30-day time period for appeal property without circumstances. if it requiring permitted him to detachment show a of change his in Thus, the court of appeals concluded that the Lake District Board applied the correct theory of law when it denied Donaldson's petition for 9 detachment, inasmuch as No. 01-3396 Donaldson himself conceded that no since the creation of the district. circumstances had changed Id., ¶¶20-21. II. ANALYSIS A. Standard of Review ¶19 This case requires us to interpret and harmonize the provisions of Chapter 33. Statutory interpretation question of law that we review de novo. Americomp Serv., N.W.2d 822. 2002 The WI purpose 88, of ¶19, a Tri-Tech Corp. v. 254 statutory is Wis. 2d 418, interpretation is 646 to determine what a statute means so that it may be given the full, proper, and intended effect. State ex rel. Kalal v. Circuit Court, 2004 WI 58, ¶44, ___ Wis. 2d ___, ___ N.W.2d ___. look first to the language of the statute. 208 Wis. 2d 1, 7, 559 N.W.2d 256 (1997). We N.E.M. v. Strigel, If the language is ambiguous, even after examining such intrinsic factors as scope and purpose, we may consult extrinsic sources, such as legislative history, in an effort to divine legislative intent. Kalal, ___ Wis. 2d ___, ¶42. statute sensible do not necessarily interpretations of Differing interpretations of a create a word ambiguity, or but phrase indicate statute's ability to support more than one meaning. rel. Angela M.W. N.W.2d 729 (1997). v. Kruzicki, 209 Wis. 2d 112, equally a State ex 122, 561 "In construing statutes that are seemingly in conflict, it is our duty to attempt to harmonize them, if it is possible, effect." in a way which will give each full force and City of Milwaukee v. Kilgore, 193 Wis. 2d 168, 184, 532 N.W.2d 690 (1995). 10 No. 01-3396 ¶20 In "benefited" this is case, it intended is clear carry to not whether the same the word meaning in Wis. Stat. §§ 33.001, 33.26(1) and (3), and 33.33(3); see also § 33.32. in It is also uncertain what kind of review is intended §§ 33.26(7) and 33.33(3). Consequently, we examine both intrinsic and extrinsic sources to help us construe the statute. B. Lake District Powers ¶21 In 1974 the legislature created Chapter 33 of the statutes to afford additional protection to inland lakes. 301, Laws of 1973. Ch. The legislature declared that environmental values, wildlife, public rights in navigable waters, and the public welfare are threatened by the deterioration of public lakes. Wis. Stat. § 33.001. It found that protection and rehabilitation of public inland lakes are in the best interest of the citizens as a whole and that the public welfare will be "benefited" thereby. Id. It noted that lakes form an important basis for the state's recreation industry and that increasing recreational use of public waters justifies state action to enhance and restore the potential of the state's inland lakes. Id. Therefore, the legislature concluded, "it is necessary to embark upon a program of lake protection and rehabilitation, to authorize a conjunctive state and local program of lake protection and rehabilitation to fulfill the positive duty of the state as trustee environmental values." ¶22 In addition, of navigable waters, and protect Wis. Stat. § 33.001(2)(a). the legislature found that local "districts should be formed by persons directly affected by the 11 No. 01-3396 deteriorated condition of inland waters and willing to assist financially, problems." or through other means, Wis. Stat. § 33.001(2)(b). in remedying lake These lake districts are a significant component of Chapter 33's manifold approach to addressing the legislature's inland lakes objectives. They are corporate bodies with the powers of a municipal corporation, Wis. Stat. § 33.26(3), and each district may undertake "a program of lake protection and rehabilitation of a lake or parts thereof." Wis. Stat. § 33.21. The provisions governing the creation and activities of lake districts are designed to enable these special purpose districts to coexist among more traditional local governmental units. ¶23 A lake district's Wis. Stat. § 33.22. powers are set out in They include the power to sue and be sued, make contracts, purchase, lease or otherwise acquire property, disburse money, contract debt and do any other acts necessary to carry out a program of Wis. Stat. § 33.22(1). and maintain a lake protection and rehabilitation. The district may also create, operate water safety patrol unit, enhance the recreational uses of the lake, including recreational boating facilities, and assume sanitary district powers. Wis. Stat. §§ 33.22(2m), 33.22(4m), and 33.22(3) and (4). ¶24 power to To finance impose these taxes and operations, special the lake district has assessments. First, the annual meeting may levy a uniform tax on all taxable property within the district. This tax to fund operations may not exceed 12 No. 01-3396 a rate of 2.5 mills ($2.50 per thousand) of equalized valuation. Wis. Stat. § 33.30(4)(a).8 ¶25 Second, because a lake district may borrow money, the district "shall levy an principal and interest" annual, irrepealable on its tax indebtedness. to "The pay the district shall levy the tax without limitation as to rate or amount on all taxable property within the district." Wis. Stat. § 33.31(3). ¶26 Third, the board of commissioners may impose special assessments "for the purpose of carrying out district protection and rehabilitation projects." Wis. Stat. § 33.32(1). After determining the entire cost of the work to be done, the lake district board must reasonable basis." assessment, the apportion determine the Id. commissioners benefits to a special "In apportioning shall each assessment examine parcel the each from "on special parcel the a and project, 8 Wisconsin Stat. § 33.30(4)(a) provides that the electors and property owners may, at the district's annual meeting, Vote by majority a tax upon all taxable property within the district. That portion of the tax that is for the costs of operation for the coming year may not exceed a rate of 2.5 mills of equalized valuation as determined by the department of revenue and reported to the district board. The tax shall be apportioned among the municipalities having property within the district on the basis of equalized full value, and a report shall be delivered by the treasurer, by November 1, by certified statement to the clerk of each municipality having property within the district for collection. Wis. Stat. § 33.30(4)(a). 13 No. 01-3396 considering such factors as size, proximity to the lake and present and potential use of the parcel, including applicable zoning regulations." ¶27 Wis. Stat. § 33.32(1)(b) (emphasis added). The potential scope of a lake district's operations, juxtaposed with the lake district's extensive taxing authority, may cause non-riparian property owners property tax bills and assessments. to be wary of large Special assessments should be tailored to reflect actual benefit to individual properties, but taxes to cover a lake district's indebtedness will be taxed at the same uniform rate, irrespective of whether properties are choice riparian or marginal non-riparian parcels. ¶28 At oral argument, the parties discussed the tensions that sometimes exist district. Some among riparian owners of property property owners within favor a high lake water levels, in part to promote recreation that will benefit their property; some riparian property owners favor lower water levels, perhaps because they have less interest in boating; and some property owners prefer to return a lake to its natural condition by removing any existing dam. When tensions exist within a lake district, factions may struggle to control the elected board to influence the policies and expenditures of the lake district. Non-riparians may watch these struggles, almost as understanding bystanders, that when elephants fight, the grass gets trampled. ¶29 In this case, there has been discussion about the Lake District's potential role in acquiring, operating, and maintaining the Indianford Dam, which is presently owned by Rock 14 No. 01-3396 County. See David W. Marcouiller, et al., University of Wisconsin-Extension, Assessing Potential Economic and Ecological Impacts of Removing the Indianford Dam 15 (Dec. 8, 1999); James E. Welker, Circuit Judge, Memorandum Decision 1 (Nov. 7, 2001) ("The impetus for the creation of the District was the potential for the removal of a small dam at Indianford."). ¶30 With this in mind, Donaldson petitioned to have his two properties removed from the District. He objected to the added layer of taxation that comes from being included in the Lake District, asserting that his properties are not benefited by the District because neither property is riparian or enjoys private access rights to the lake or river. He therefore sees no point in subsidizing activities that he contends serve only to benefit the Lake District's riparian owners. ¶31 petition A lake and territory is district." hearing, may district detach not board must property benefited by "upon Lake District a continued Wis. Stat. § 33.33(3). the consider Board In a detachment finding that inclusion this turned case, down in such the after a Donaldson's petition. ¶32 Section 33.33(3) also provides for "appeals of the commissioners' decision," which may be taken under § 33.26(7). Section 33.26(7) provides: "Any person aggrieved by the action of the board may petition the circuit court for judicial review. A verified petition shall be presented to the court," specifying the grounds upon Wis. Stat. § 33.26(7). which the appeal is based. Donaldson availed himself of this right. 15 No. 01-3396 His ground for appealing was that the Lake District Board could not have reached the decision to deny his petition based on the evidence it received. The circuit Donaldson's property detached. court agreed and ordered As noted, the court of appeals reversed, reasoning that Chapter 33's statutory scheme required a change in circumstances, a position strongly espoused by the Lake District Board. Donaldson Donaldson, 260 Wis. 2d 238, ¶21. conceded that the overall circumstances Because had not changed since his property was included in the District, the "petition for detachment was properly denied on the basis that he failed to show a change in circumstance." Id. C. History of Inland Lakes Legislation ¶33 public The 1974 inland legislation lakes grew out to promote of a study the protection conducted by Legislative Council's Natural Resources Committee in 1972. of the The drafting file for the Legislative Council's bill, 1973 Assembly Bill 766,9 makes clear that the drafters used existing law on town sanitary districts as the model for the creation of lake districts. The bill went through seven drafts before it was introduced, however, and these drafts reveal an evolution in concerns about protections for property owners and they show how the lakes bill differed from the sanitary district law. ¶34 To illustrate, the first draft of the lakes bill limited the land in the lake district to "frontage" land. It defined "frontage" as "lands fronting on a lake, having a direct 9 1973 Assembly Bill 766 became Chapter 301, Laws of 1973. 16 No. 01-3396 access to the lake via artificial watercourses or having rights of access running explanation with provided in the the lands." text of LRB-170/1:4. the draft The stated: "The definition of 'frontage' is used in delimiting those lands in local lake renovation districts. It includes those lands having direct private access to lakes; presumably, these lands will be specially benefited by any lake renovation project, and thus should directly bear part of the financial burden." LRB- 170/1:4. ¶35 In this first draft, only persons could petition to establish a lake district. owning frontage LRB-170/1:6. An explanatory note read: "Governmental jurisdictions are included as eligible petitioners, since frontage owned by them will both be assessed for and benefited undertaken by the district." by reclamation activities In the bill's section on special assessments, the lake district commissioners were directed to "severally therein and and separately determine assessments thereon." the consider each benefits to parcel each of parcel frontage and make Any owner of a parcel of frontage who "feels aggrieved" by the assessment was authorized to "appeal" to the circuit court. "Such appeal shall be tried and determined in the same manner as cases originally commenced in said court." ¶36 landowner In to the seek first draft, review of there the was county no provision board's for decision a to include a parcel of frontage property in the lake district and 17 No. 01-3396 no provision for a landowner to seek detachment of frontage property from the district. ¶37 By the third draft, the bill contained a provision permitting any person aggrieved by the county board's decision to create the lake district to petition the court for judicial review. LRB-170/3-10. The third draft still contained the delimiting language on "frontage." ¶38 The fourth draft retained the limitation to "frontage" and added the following explanation: The "frontage" definition also includes lands having direct access via natural streams flowing into or out of a lake. Determining whether any particular lands in this class should be included in a district because of direct benefit is a question of fact, and is reserved to the county board for determination . . . . LRB-170/4:7 (emphasis added). ¶39 The fifth draft dropped both the definition of and limitation to "frontage" land but added a provision on detachment, linking it to the appeal provision for establishment of the district. LRB 170/5:20. The draft also eliminated the explanatory note affirming the county board's broad fact-finding authority in creating a lake district. ¶40 When explanatory the note bill following was the ultimately bill's introduced, section on "Merger, Annexation, Detachment" read: [The section] [p]rovides means of altering district boundaries. Merger is done by common consent of the governing bodies and members of both districts. Annexation proposals are measured against the same standards used for establishing the district, and are similarly appealable. Detachment proposals are 18 the No. 01-3396 decided upon the basis of whether the proposed for detachment is benefited by inclusion in the district. territory continued LRB 170/7:29-30. ¶41 prior Although the lakes bill received extensive attention to its legislative introduction, history after it remained introduction Amendments and 36 simple Amendments. controversial. includes 5 Its Substitute See Legislative Council, Digest of Council Bills in the 1973 Legislature 65 (May, 1975). We see nothing in the legislative history of the statute that dictates a requirement that a property owner prove a change in circumstances to qualify for detachment. On the contrary, the detachment procedure assures that an aggrieved property owner will be able to secure an individual determination whether specific property is benefited. D. The Delegation of Legislative Authority ¶42 The Lake District Board contends that the creation of a lake district is an exercise of legislative power by a county board, and legislative a decision power by a on detachment lake is district an board. exercise The of Board emphasizes that an exercise of legislative power is subject to very limited judicial review. At a minimum, the Board argues, a property owner seeking a review of a decision on detachment must show a change in circumstances since the lake district was formed. ¶43 Because the statutes on town sanitary districts were used as a model for the lake district legislation, we believe 19 No. 01-3396 that cases interpreting the sanitary district statutes are helpful in interpreting Chapter 33. ¶44 In Fort Howard Paper Co. v. Fox River Heights Sanitary District, this court reviewed a challenge to the creation of a town sanitary district. 250 Wis. 145, 26 N.W.2d 661 (1947). The standards then in place for a town to create a sanitary district resemble the conditions necessary for a county board to create a lake district.10 Both require, among other things, that 10 Compare Wis. Stat. § 60.303(3) (1945) with Wis. Stat. § 33.26(3). Former Wis. Stat. § 60.303(3) provided: Upon the hearing, if it shall appear to the town board after consideration of all objections, that the petition is signed by the requisite owners of real estate as provided in subsection (1) of section 60.302, and that the proposed work is necessary, and that the public health, comfort, convenience, necessity or public welfare will be promoted by the establishment of such district, and the property to be included in the district will be benefited by the establishment thereof, the town board, by formal order, shall declare its findings and shall establish the boundaries and shall declare the district organized . . . . Current Wis. Stat. § 33.26(3) provides: If the board finds, after consideration of the committee's report and any other evidence submitted to the board, that the petition is signed by the requisite owners as provided in s. 33.25, that the proposed district is necessary, that the public health, comfort, convenience, necessity or public welfare will be promoted by the establishment of the district, that the property to be included in the district will be benefited by the establishment thereof, and that formation of the proposed district will not cause or contribute to long-range environmental pollution . . . , the board, by order, shall declare its findings, shall establish the 20 No. 01-3396 the appropriate body find that "the property to be included in the district will be benefited by the establishment thereof." Wis. Stat. §§ 60.303(3) (1945), 33.26(3).11 The focus in Fort Howard was on the scope of a circuit court's power to review the town board's determination that Fort Howard's property benefited from the establishment of the town sanitary district. The legislature had included a provision for an aggrieved party to Wis. Stat. § 60.304 (1945).12 bring an action in circuit court. When Fort Howard brought such an action, the circuit court tried the issue as if there had been no prior decision by the town board, and determined that Fort Howard's property did not benefit from being in the town sanitary district and excluded it from the district. Fort Howard, 250 Wis. at 149. boundaries and organized . . . . shall declare the district 11 The contemporary counterpart to § 60.303(3) (1945) requires a town board to find, among other things, that "[p]roperty to be included in the district will be benefited by the district." Wis. Stat. § 60.71(6)(b). 12 The current counterpart of this provision provides: Any person aggrieved by any act of the town board or the department of natural resources in establishing a town sanitary district may bring an action in the circuit court of the county in which his or her lands are located, to set aside the final determination of the town board or the department of natural resources, within 90 days after the final determination, as provided under s. 893.73(2). If no action is taken within the 90-day period, the determination by the town board or the department of natural resources is final. Wis. Stat. § 60.73. 21 No. 01-3396 ¶45 On appeal, this court concluded that the power to establish a town sanitary district had been delegated to the town board by the legislature. Id. at 149-50. Thus, the circuit court erred by reviewing de novo and under its own standards whether the property would "benefit." Id. at 151. a court's powers of review were quite limited. ¶46 We said that Id. at 150. The Fort Howard decision requires close analysis. The statute in place at the time stated that "if it shall appear to the town board after consideration of all objections, that . . . the public health, comfort, convenience, necessity or public welfare will be promoted by the establishment of such district, and the property to be included in the district will be benefited by the establishment thereof," the board shall declare its findings, establish the boundaries, and declare the district organized. ¶47 board's Wis. Stat. § 60.303(3) (1945). The right of a property owner thereafter to appeal the decision to Wis. Stat. § 60.304 (1945). circuit court was limited. The statute authorized an action "to set aside the action of the board" (emphasis added). The statute went on: "Unless action is so taken [within the required time period], conclusive." ¶48 the determination by the town board shall be Id. As a general proposition, we noted that "the court may not exercise legislative power." Fort Howard, 250 Wis. at 150. The question here is to what extent has the court power to review the action of a body exercising legislative power. By sec. 60.301, Stats., the legislature delegated to the town board the power to 22 No. 01-3396 establish a town sanitary district. The power thus delegated to the town board being legislative in its character, cannot be exercised by a court. Id. ¶49 The court then appeared to step back somewhat, saying that "unless otherwise provided by statute," the power of the court "is limited in the review of legislative orders to inquire as to:" (1) the validity of the statute under which the legislative body acts; (2) whether the legislative body proceeded in accordance with the provisions of law and within its jurisdiction; (3) whether the legislative body acted arbitrarily, capriciously or oppressively. If the town board acted without evidence sufficient to support its findings it acted arbitrarily. Id. at 150 (emphasis added). ¶50 Did the statute's reference to the town board's determination that "the property to be included in the district will be benefited by the establishment additional review powers for a court? court said. it imply Not in that case, the The statute did not require the town board to keep a record of its proceedings. record, thereof," must be presumed Id. that "In the absence of such a the town board acted upon sufficient evidence to sustain its findings as there is nothing in the record to indicate the contrary." Id. at 150-51. The court further explained that the town was not expected to focus on the benefit to individual properties: The statute does not provide that if any piece or parcel of land included within the boundaries of the proposed district shall not be benefited, the district shall not be organized. If the town board finds that 23 No. 01-3396 the property within the boundaries of the proposed district as a whole will be benefited then the district is to be organized. . . . If all the property within the boundaries of the proposed district is in the watershed and the proposed improvement may serve it, then the property of the district as a whole is benefited and the town board if it makes the other necessary finding may organize the district. The organization of a sanitary sewer district is in the interest of the public health. Such a district cannot be organized unless the town board finds from the evidence that the public health, comfort, convenience, necessity, and public welfare will be promoted thereby. That is the benefit that is meant by the statute. Id. at 152. ¶51 The proposition Fort that judicial judgment judgment. Id. "Fixing the Howard courts as at to case are limits of public In the in prohibited good 150. stands the proposed from policy Fort part district the substituting for Howard for legislative circumstances, is within the discretion of the town board, which discretion the court has no power to review. toto." The order must be set aside or affirmed in Id. at 151. ¶52 As a general principle, whether a particular unit of government should be created involves the best interest of the community and statecraft." is therefore a matter of "public policy and See, e.g., In re Incorporation of Village of North Milwaukee, 93 Wis. 616, 624, 67 N.W. 1033 (1896); see also Town of Pleasant Prairie, Kenosha County v. Department of Local Affairs and Development, 113 Wis. 2d 327, 343, 334 N.W.2d 893 (1982); Town of Beloit v. City of Beloit, 37 Wis. 2d 637, 64647, 155 N.W.2d 633 (1968); Scharping v. Johnson, 32 Wis. 2d 383, 24 No. 01-3396 388, 145 N.W.2d 691 corporations is legislature."). (1966) peculiarly ("The within creation the of province municipal of the As we have stated in the parallel context of municipal annexation: What is "desirable," or "advisable" or "ought to be" is a question of policy, not a question of fact. What is "necessary," or what is "in the best interest" is not a fact and its determination by the judiciary is an exercise of legislative power when each involves political considerations and reasons why there should or should not be an annexation. This is the general and universal rule which sharply draws the differentiating line between legislative power and judicial power and by which the validity of the delegation of functions to the judiciary by the legislature is determined. City of Fond du Lac v. Miller, 42 Wis. 2d 323, 329, 166 N.W.2d 225 (1969), (citing Town of Beloit, 37 Wis. 2d at 644). ¶53 We are constrained to believe that the same principles apply when a court reviews the action of a county board in creating a lake district. The dynamics of lake district creation are such that a county board is likely to look at the big picture, that is, whether the proposed lake district will serve the public interest as a whole and whether the properties 25 No. 01-3396 to be included in the district will be benefited as a whole.13 In these circumstances, judicial review is almost necessarily limited to whether the county board followed proper procedures in establishing the district and whether the board's action with respect to an individual property or group of properties was so arbitrary, oppressive, or unreasonable that it jumps out to the observer without additional evidence.14 ¶54 Of course, a property owner who does not wish a certain parcel to be included in a proposed lake district may be able to persuade the county board to consider that parcel individually and remove it from the district, or to consider the parcel individually parcel is benefited. and provide an explanation of why that If the latter determination is made, it will be very hard to challenge on appeal, and hard to challenge in a subsequent detachment petition, absent a change in circumstances. 13 When a county board determines that the property within the district as a whole will be benefited by the formation of the district, its broad finding necessarily includes a determination that each parcel in the district will be benefited, and that finding is presumed to be correct. But a presumption of correctness goes only so far in the absence of an individual determination. In reality, a county board may do nothing more than rubberstamp a petition and parrot the words required by statute. The record does not indicate whether the Rock County Board of Supervisors made any changes in the boundaries of the lake district proposed in the petition. 14 Ross v. Honey Lake Protection and Rehabilitation District, 166 Wis. 2d 739, 746, 480 N.W.2d 795 (Ct. App. 1992), emphasizes that actions challenging a county board's creation of a lake district must be brought within the statutory 30-day time limit. Wis. Stat. § 33.26(7). 26 No. 01-3396 E. Tension Between Lake District Formation and Detachment Procedures ¶55 Board's County We are concerned in this case with the Lake District determination not to property, form the Board's decision to detach not District. the Both Rock parties admit to a certain tension in the statutes because each board, at different points in time, decides whether "benefited" from inclusion in the lake district. property is Our task is to resolve the tension between language in Wis. Stat. § 33.26(3), governing the formation of lake districts, and language in § 33.33(3), authorizing the detachment of territory from lake districts. ¶56 We agree with the Lake District Board that the decision to detach territory from a lake district is, like the decision to form a lake district, an exercise in legislative power.15 Consequently, Nonetheless, there are judicial review is important differences circumscribed. between judicial review of the creation decision by a county board and judicial review of the detachment determination by the lake district board. 15 The jurisprudence relating to school district reorganization, which includes detachment of property from one school district followed by reattachment to another district, is instructive. In Joint School District No. 1 of the Town of Wabeno v. State, 56 Wis. 2d 790, 203 N.W.2d 1 (1973), we stated that "school district reorganization is a legislative policymaking function, which the legislature has delegated to local boards and to the state superintendent of public instruction." Id. at 794 (collecting cases). 27 No. 01-3396 ¶57 First, the 1974 lake district legislation created a detachment mechanism that was not present in the town sanitary district law.16 There was a reason for doing so. As we observed in ¶39 above, the detachment procedure appeared in the draft legislation at the same time the language limiting the property that could be included in the district was taken out. The term "frontage" may have been viewed as too limiting, but its removal effectively erased all limits. Thus, we believe it is a fair inference procedure that necessary the detachment safeguard for property was designed owners to as a discourage overreaching by the proponents of a lake district and to assure that an aggrieved property owner would be able to secure an individual determination of whether a specific parcel is benefited. ¶58 Second, the "benefited" language in § 33.26(3) is not the same as the "benefited" language in § 33.33(3). board determines district district. will be "that the benefited property by the to be included establishment" Wis. Stat. § 33.26(3) (emphasis added). 16 A county in the of the This finding Sanitary districts did not have a removal provision until 1987. In Haug v. Wallace Lake Sanitary District, 130 Wis. 2d 347, 387 N.W.2d 133 (Ct. App. 1986), the court of appeals decided a case brought by several residents of a sanitary district who complained that they were being assessed for a sanitary sewer system from which they received no service. The residents contended that the town had authority to redefine the boundaries of the district without dissolving the district, permitting them to get out. The court of appeals disagreed. Shortly thereafter, the legislature enacted the removal provision in Wis. Stat. § 60.785(1m). Act 77, Laws of 1987. 28 No. 01-3396 is both general and predictive. In the absence of an individualized determination, a county board is making a rough approximation of benefit to all properties in the district as the county board looks to the future. district benefited board by must decide continued Wis. Stat. § 33.33(3) whether "such inclusion (emphasis By contrast, a lake added).17 in territory the This is not district." determination requires an individualized evaluation of property under present circumstances.18 A lake district board may utilize hindsight and foresight as it makes its fact-based detachment determination on an individual parcel. The commissioners are aware of both past and present activities of the lake district, and, as such, can intelligently ascertain whether a property initially included in 17 We also note that the legislature chose a different word to describe the large mass of real estate proposed for inclusion in the district and the individual parcels that are likely to come before a lake district board for detachment. In the former instance, the legislature opted to use the term "property," but in the latter detachment provision the legislature chose the word "territory." While neither of these words is used with precision in the statutes, the differing formulations for the same concept suggest that the legislature did not intend complete identity between the two proceedings. If it had so intended, the legislature would have used the same language in both. 18 A lake district board's individualized determination of whether a specific parcel is or is not benefited by continued inclusion in the lake district might be characterized as a quasi-judicial determination, rather than a legislative determination. We decline to pursue this point, urging instead that the legislature establish additional standards for lake district boards. 29 No. 01-3396 the district is currently benefited and will continue to benefit from the district. The district board is uniquely situated to assess whether activities slated for future implementation will benefit a particular piece of property. ¶59 that By closely it is not examining always the two statutes, necessary for the we conclude petitioner in a detachment proceeding to prove that there has been a change in circumstances. When there has been no individualized determination of benefit to property by the county board, there is a presumption that the board made a reasonable decision, but this presumption proceeding. normally In is not other conclusive words, does not settle property. As noted the above the issue in ¶40, in a future county of board's benefit the detachment to decision individual Legislative Council described the distinction between the test for annexation to a lake district and the test for detachment from a lake district: "Annexation proposals are measured against the same standards used for establishing appealable. the district, and are similarly Detachment proposals are decided upon the basis of whether the territory proposed for detachment is benefited by continued inclusion in the district." added). LRB 170/7:29-30 (emphasis The framers of the legislation explicitly recognized a distinction Consequently, between a lake one determination district board's and duty the to other. render an individualized determination as to present benefit to a specific parcel cannot be satisfied by relying solely on the decision 30 No. 01-3396 previously made by the county board, unless the county board made an individualized determination and nothing has changed. ¶60 At oral argument, counsel for the Lake District asserted that the legislature has imposed no standards at all to guide a lake district as it exercises legislative power on the issue of detachment. This is not correct. The legislature's findings and declaration of intent are not irrelevant. They include statements (1) that "the protection and rehabilitation of the public inland lakes of this state are in the best interest of the citizens of this state; [and] the public health and welfare will be benefited thereby," and (2) lake "districts should be formed deteriorated by persons condition Wis. Stat. § 33.001(1) and district to board ought directly of (2)(b) be able inland (emphasis to affected the waters." added). articulate by why A lake property included in the lake district and subject to its added layer of taxation is more directly benefited by inclusion in the district than thousands of parcels in the vicinity that are not included in the district.19 19 We also note that the detachment decision may precede or coincide with a hearing contesting a special assessment. A special assessment hearing explicitly requires commissioners to "examine each parcel and determine the benefits to each parcel from the project, considering such factors as size, proximity to the lake and present and potential use of the parcel, including applicable zoning regulations." Wis. Stat. § 33.32(1)(b). Commissioners must be able to explain why property is benefited by inclusion in the lake district if they intend to impose special assessments on that property. 31 No. 01-3396 ¶61 been In short, there are factors besides whether there has a change in circumstances that a conscientious lake district board must take into account. ¶62 In this case, the Rock-Koshkonong Lake District went beyond the statute, adopting procedures and criteria for the consideration of detachment petitions. One of the reasons for adopting these criteria was to promote consistency. 99-03 (A-123). Resolution The Lake District's procedure anticipates that a petitioner will provide a "statement explaining why the property should be present removed testimony property District. is not from and the District." evidence benefited Id. at II(A). The relevant by to continued petitioner whether inclusion may specific in the The commissioners may question any witness, including the property owner, id. at II(B), and the Board may consider: A. The physical property. characteristics B. Its use (recreational, residential, etc.). C. Its relationship whether: to the of the commercial, lake in terms rights to of 1. It is riparian; 2. It has lake; 3. Its proximity to public access to the lake; 4. It is within view of the lake; and 5. It is within the watershed water table of the lake. private 32 access or the ground No. 01-3396 D. Whether the value of the property would be enhanced if the lake were to be in reasonably clean, attractive and usable condition; or whether the value of the property would be diminished if the lake were to be in a degraded condition. E. Whether detachment of the property will result in any "hole" or "island" in the boundaries of the District. F. Whether circumstances property's inclusion in changed. G. Any other factors relevant to whether the property is benefited by continued inclusion in the District. Id. at A-124, III Criteria. Board ought to address surrounding the District the have Surely, the "relevant" factors the include the factors set out by the petitioner in making the case for detachment. ¶63 Having established criteria to consider, a lake district board should not look solely to those criteria that support its position and disregard criteria that do not, because a lake district must avoid arbitrary and capricious action. "Arbitrary action is the result of an unconsidered, wilful and irrational choice 'winnowing and Wis. 2d 233, of conduct sifting' 239, 137 and not process." N.W.2d 86 the Olson (1965). result v. application of reasonable rules Rothwell, Arbitrary represents a board's will and not its judgment. consistent of the 28 action The fair and will blunt a detachment petitioner's claims that a lake district board has been arbitrary. ¶64 It should be noted that if property is detached, the detachment is not irrevocable. If a lake district undertakes a 33 No. 01-3396 project that will benefit property that has been detached, or if the property itself changes, the lake district board may initiate proceedings to re-attach the property to the district. ¶65 Review of a detachment determination does not permit a court to substitute its judgment for the considered judgment of a legislative body. assure that However, the statute empowers the court to the lake district board actually makes an individualized determination of whether a parcel is or "is not benefited by continued inclusion in the district," see § 33.33(3), and permits a court to address a plainly erroneous exercise of discretion. ¶66 standards In this for opinion we determining do not whether attempt property to is set or benefited by continued inclusion in a lake district. legislative work. of reasonable legislature, is not This is Our objective is to encourage the development standards and forth to by assure lake district adherence to boards and when standards the they exist, so as to promote fairness, consistency, and sound public policy. F. Review of Detachment Decisions ¶67 Both the circuit court and the court of appeals assumed that this action was governed by the review principles of statutory certiorari, and they legislature did not conducted their analyses accordingly. ¶68 The make clear what hearing it intended for an appeal under § 33.26(7). no requirement that a county 34 board conduct an kind of It imposed evidentiary No. 01-3396 hearing on objections to a lake district or make a record of its decision other than a resolution creating the lake district with certain required findings. Likewise, it imposed no requirement for an evidentiary hearing when a lake district board considers a detachment petition. Yet the legislature did not authorize a circuit court, on appeal, to take additional evidence in either situation. ¶69 Wisconsin Stat. §§ 33.26(7) and 33.33(3) each afford an aggrieved party a right to appeal. This implies that the decision to grant review is not discretionary with the court, and that suggests statutory certiorari. ¶70 In Stacy v. Ashland County Department of Public Welfare, 39 Wis. 2d 595, 601, 159 N.W.2d 630 (1968), we examined the question of review by certiorari where no provision was made for a review concluded of that a decision where there by a are no board or commission. statutory provisions We for judicial review, the action of a board or commission may be reviewed by way of certiorari. Id. The situation in Stacy is somewhat analogous to the situation here. ¶71 Although § 33.26(7) does not mention "certiorari," it does use the words "petition" and "appeal." In the absence of any additional grant of authority to the court, we believe the words of the statute imply that the court is largely confined to a previously existing record. See Nielsen v. Waukesha County Bd. of Supervisors, 178 Wis. 2d 498, 521, 504 N.W.2d 621 (Ct. App. 1993). hearing to This view is supported by comparing a § 33.26(7) a § 33.32(1)(f) hearing, 35 which is utilized for a No. 01-3396 challenge to an assessment.20 The latter hearing appears to contemplate more than a review of existing evidence. ¶72 In Lakeshore Development Corp. v. Plan Commission, 12 Wis. 2d 560, 107 N.W.2d 590 (1961), the court explained that: The writ of certiorari at common law was limited in scope and . . . usually raised only questions of jurisdiction or excess power set forth as errors in the petition . . . The return was taken as conclusive if responsive to the petition and could not be impeached by collateral affidavits. . . . The scope and purpose of the writ of certiorari has been enlarged by statute and it is now used as a method of appeal to determine not only the jurisdiction of a municipal board . . . but also to review the action of such a board as arbitrary, unreasonable, or discriminatory and sometimes to decide the merits of the action. Id. at 565. ¶73 We do not perceive any authority for a court to decide de novo the merits of an action in detachment. We see review based on inquiry as to (1) whether a lake district board kept within its jurisdiction; (2) whether it proceeded on a correct theory of law; (3) whether its action was arbitrary, oppressive, or unreasonable and represented its will and not its judgment; and (4) whether the evidence was such that the board might reasonably make the determination in question. G. Donaldson's Petition for Detachment 20 Wisconsin Stat. § 33.32(1)(f) provides in part: "Such appeal shall be tried and determined in the same manner as cases originally commenced in said court." 36 No. 01-3396 ¶74 board The to statute make an on detachment individual requires determination a lake district whether specific property is or is not benefited by continued inclusion in the lake district. The petitioner has the burden of persuading the board and creating a record. A petitioner should (1) clearly state the grounds for detachment; (2) append documents, whenever possible, that tend to support these grounds; and (3) request the opportunity to testify and present evidence. The district board must respond by setting out the rules and procedures it intends to follow, and eventually it must marshal arguments and evidence to support its decision. ¶75 Under principles of certiorari review, the circuit court is limited to the facts contained in the record from the proceeding under review, unless a statute expands the scope of review.21 This principle is somewhat difficult to apply when a lake district board makes findings that go beyond the evidence adduced at the hearing, because the petitioner will not have had notice of the need to address this evidence. ¶76 A court is not powerless in the face of an inadequate record. If the record is inadequate because the petitioner failed to make a compelling case or failed to make a compelling offer of proof, the petitioner should lose. inadequate because the lake district did If the record is not permit the petitioner to present evidence, the lake district board would 21 See, e.g., Wis. Stat. § 59.694(10) (authorizing the court to take additional evidence in a review of a decision by a board of adjustment). 37 No. 01-3396 violate the spirit if not the letter of the detachment statute and would subject itself to due process review. ¶77 to In this case, Arthur Donaldson testified, a consultant the District testified, submitted photographs. District Board and one of the commissioners Consequently, the Rock-Koshkonong Lake cannot be faulted Donaldson to present evidence. for any failure to permit However, the Lake District Board did make findings that went beyond the evidence presented at the hearing. ¶78 We now examine the record under the standards for statutory certiorari. ¶79 The first component of certiorari that we review here is whether the District acted according to law. "Law" refers not only to the applicable statutes but also to the guaranties of due process found in the state and federal constitutions. State ex rel. Wasilewski v. Bd. of Sch. Dirs., 14 Wis. 2d 243, 263, 111 N.W.2d 198 (1961), (citing State ex rel. Ball v. McPhee, 6 Wis. 2d 190, 199, 94 N.W.2d 711 (1959)). ¶80 The court of appeals focused on the question whether the lake district board acted according to law and concluded that it did: "Donaldson's petition for detachment was properly denied on the circumstance." conclude that basis that he failed to show a change Donaldson, 260 Wis. 2d 238, ¶21. this is not a correct statement in Because we of law in a situation where the county board has not made and articulated an individual determination of benefit property, we reverse the court of appeals. 38 to the petitioner's No. 01-3396 ¶81 The Lake District Board also relied on this principle. The Board's first three reasons in support of its conclusion relate to its premise that the county board made a legislative decision to include property in the district because property will be benefited by inclusion in the district. such Thus, according to the Board, the Lake District Board not only had no obligation to second-guess the county board about any of this property board but about also this circumstances. should not property, have in second-guessed the absence of the a county change of We reject this premise as inconsistent with the statutory scheme. Except in those rare instances in which a county board takes the time to address individual parcels and articulates the basis for a finding that these parcels will be benefited by inclusion in the district, the lake district board is expected to make its own determination whether each parcel is or is Thus, not benefited the Board by relied continued in inclusion substantial part in on the district. an incorrect theory of law. ¶82 Looking to another legal issue, we note that in State ex rel. Riley v. Department of Health & Social Services, 151 Wis. 2d 618, 445 N.W.2d 693 (Ct. App. 1989), the court appeals stated: On certiorari review, we determine de novo whether the department . . . acted according to applicable law, whether the action was arbitrary or unreasonable, and whether the evidence supported the determination . . . An important component of the analysis is whether the department followed its own 39 of No. 01-3396 rules, "for an agency is bound by the procedural regulations which it itself has promulgated." Id. at 623 (emphasis added). ¶83 This analysis is inapposite exercise of legislative power. into whether the legislature in reviewing has complied with legislatively This reluctance stems from separation of powers and comity concepts." La Follette v. Stitt, pure "Courts are reluctant to inquire prescribed formalities in enacting a statute. rel. a 114 Wis. 2d 358, State ex 364-65, 338 N.W.2d 684 (1983). [C]ourts generally consider that the legislature's adherence to the rules or statutes prescribing procedure is a matter entirely within legislative control and discretion, not subject to judicial review unless the legislative procedure is mandated by the constitution. If the legislature fails to follow self-adopted procedural rules in enacting legislation, and such rules are not mandated by the constitution, courts will not intervene to declare the legislation invalid. Id. at 365. ¶84 Although the Lake District Board adopted criteria to consider in reviewing a detachment petition, it did not make the consideration of these criteria mandatory. Consequently, we do not Board's see a due process violation in the discuss each of the relevant criteria. failure to Rather, we consider the Board's failure to discuss all the relevant criteria under a different component of certiorari review. ¶85 The second component of certiorari review in this case is whether the Board's decision was arbitrary, oppressive, or unreasonable, representing its will and not its judgment. 40 No. 01-3396 ¶86 seven In Resolution criteria detachment that 99-3, it petition. In the might Lake District "consider" reviewing Board in listed reviewing Donaldson's petition, a the Lake District Board enumerated eight "reasons" why it concluded that "the territory is benefited by continued inclusion in the District." ¶87 Three of the "reasons" stated by the Board relate to one of the seven criteria; namely, "F. Whether circumstances surrounding changed." the property's inclusion in the District have This was discussed in ¶¶59 and 81 above and found to be legally incorrect on the facts of this case. ¶88 The Lake District Board did not discuss four of the seven criteria, namely "A. The physical characteristics of the property," "B. Its use (recreational, commercial, residential, etc.)," "E. Whether detachment of the property will result in any 'hole' or 'island' in the boundaries of the District," and "G. Any benefited other by factors continued relevant to inclusion in whether the the property District." is Each of these criteria tends to support Donaldson's position. His two parcels consist of agricultural land near an interstate highway. They are zoned agricultural. They are used for agriculture, and Donaldson said he has no intention to change their use. There are no improvements on the parcels except for highway signs, and no one lives on these parcels. Detachment of the two parcels would not create any holes in the District. not discuss "other" relevant factors arguments directly. 41 or The District did rebut Donaldson's No. 01-3396 ¶89 This leaves two of the seven criteria that the Board itself listed as factors for consideration. The Board's third criterion, "C," reads as follows: C. [The land's] terms of whether: relationship to the lake in rights to the 1. 2. It has lake; 3. Its proximity to public access to the lake; 4. It is within view of the lake; and 5. Criterion It is riparian; It is within the watershed groundwater table of the lake. "C" which private access specifically refers to or "lake" is the source of four of the Board's eight "reasons" for finding that Donaldson's parcels are benefited. ¶90 The Board states that both tracts are in "near proximity" to Lake Koshkonong "and the portion of the Rock River within the approximately District." one mile The from "northerly the Rock tract" River; the is located "southerly tract" is located approximately a half-mile from the Rock River. Significantly, the Board does not indicate the distances between the two parcels and Lake Koshkonong. Instead, it shifts focus, citing distances to the Rock River because Donaldson's parcels are closer to the river than to the lake. By doing so, the Board head, turns Donaldson's argument on its using the distances he cited to establish that he is not benefited as proof that his parcels are in "near proximity" to the river. 42 No. 01-3396 ¶91 In reviewing the Board's "near proximity" rationale, we cannot say that a legislative finding that property located one mile from a lake is "benefited" by its proximity, is an irrational finding. Similarly, we would have difficulty dismissing out of hand a legislative determination that property located five miles from a lake or river is benefited by its proximity. What is evident in this case, however, is that the Lake District has no consistent rationale about proximity. The Lake District Board has not established a consistent standard for determining "near proximity," has switched from lake to river in its analysis, and has not explained how non-riparian agricultural land located a half-mile or a mile from the river is benefited by its proximity more directly than many similar parcels not included in the District and not subject to its added layer of taxation. ¶92 In 1999 the University of Wisconsin Extension did a study on the potential impacts of removing the Indianford Dam. See David W. Marcouiller, et al., University of Wisconsin- Extension, Assessing Potential Economic and Ecological Impacts of Removing the Indianford Dam (Dec. 8, 1999). The study focused on the towns of Albion, Milton, Sumner, and Koshkonong. It did not properties study are the town located, of Fulton presumably riparian property on Lake Koshkonong. in which because Donaldson's Fulton has no In the course of their analysis, the investigators indicated that they studied property within a half-mile of Lake Koshkonong. "In general, there is a rough overlap between the identified parcels within 1/2 mile and 43 No. 01-3396 [the] newly created lake district." Marcouiller, supra, at 22. The investigators acknowledged that "the boundaries do not match exactly" with their half-mile calculation. However, most property in the district appears to be within a half-mile of the lake. ¶93 When property is a half-mile or more from the river, is not riparian, and has no private access to the lake or river, the benefit derived from "proximity" is not so self-evident that it requires no explanation in a detachment decision. In this case, the Board failed to link proximity to benefit. ¶94 The detachment. Board gave another "reason" for opposing It stated: "Both tracts are within the Rock River watershed and within the sub-watershed areas that drain into portions of boundaries the of Rock the River and District." Lake Judge Koshkonong Welker within addressed the this reason, saying: "There is a very great deal of land in Rock County [as well as Jefferson and Dane Counties] which is within the Rock River watershed or drains into the Rock River or Lake Koshkonong which is not included in the District." ¶95 Under cross-examination, the Board's witness, Steve Hjort, acknowledged that all land in Wisconsin is within some watershed. Consequently, the fact that property is located in a watershed or sub-watershed tells us very little about how that property affects a lake or river or how benefited by inclusion in a lake district. that property is Again, the Lake District Board provides a fact without showing how that fact is 44 No. 01-3396 relevant to benefit. As Judge Welker put it, the fact or reason was not one of "any controlling probity." ¶96 As another reason, the Lake District Board stated: "Although neither parcel is riparian, both parcels are located in close proximity to public boat launch facilities." It explained that the northern parcel is located approximately 2.5 miles from the DNR boat launch site on Ellendale Road and one mile from several private boat launching facilities. The southern parcel is "located approximately 1 mile from the DNR boat launching site." It did not explain that this DNR site is on the Rock River, not the lake. ¶97 If property, Board's consist Donaldson's inhabited reason of might by parcels boaters be agricultural improvements. consisted and relevant. land of potential But with residential boaters, Donaldson's no residents parcels and no There are no potential boaters on the property to take advantage of proximity, and no boats are stored there. District the must acknowledge in emphasizing this reason The that Donaldson's property is not riparian and has no private access rights to the lake or river. As a result, Donaldson's property is not markedly different from property in Edgerton or Milton, or even Janesville, except that trailering a boat from one of his two agricultural parcels to a public launch site would take a few minutes less time than trailering a boat from residential property in one of these communities. Moreover, there are properties closer to the DNR public launch site than Donaldson's properties that are not in the Lake District. 45 No. 01-3396 ¶98 As its final "C"-criterion reason, the Board states: "The southerly tract has a direct view of the Rock River." This reason was supported at the hearing by a photograph taken from Knutson Road disputed. near In Donaldson's reviewing this southern rationale, parcel we note and is that not it is undisputed in the record that neither parcel has a direct view of Lake Koshkonong, and there is no evidence that there is a direct view of the river from the northern parcel. reason for parcel. opposing In contending citing that detachment this applies reason, agricultural the land only Lake located to Hence, this the District more southern Board than is eight football fields away from the river is "benefited" by a direct view of the river. ¶99 This evidence is not compelling. We turn now to the Board's final reason for opposing detachment, a reason related to the Lake District Board's fourth criterion, "D."22 The Board states: "The value of both tracts will be enhanced if the water quality and recreational value of the Lake Koshkonong and associated reaches of the Rock River within the District are improved and will be diminished if the Indianford Dam were removed or if water quality and recreational value of the lake and associated reaches of the Rock River were further degraded." 22 Paragraph D. of the Lake District Board's Criteria reads as follows: "D. Whether the value of the property would be enhanced if the lake were to be in reasonably clean, attractive and usable condition; or whether the value of the property would be diminished if the lake were to be in a degraded condition." A-124. 46 No. 01-3396 ¶100 In reviewing legislature's this findings Wis. Stat. § 33.001(1). reason, and we are reminded declaration of of the intent. In 1974 the legislature determined that "the protection and rehabilitation of the public inland lakes of this state are in the best interest of the citizens of this state" and thereby." "the public Id. health and welfare will be benefited In other words, in a broad legislative sense, residents of Milwaukee, La Crosse, Superior, Marinette, and all Wisconsin, are "benefited" by a clean, healthy Lake Koshkonong, as well as other inland lakes, because protected, rehabilitated public inland lakes "benefit" the public health and welfare. This does not mean, however, that residents of Milwaukee, La Crosse, Superior, and Marinette could reasonably be included in the Rock-Koshkonong Lake District because they are not "directly affected" by § 33.001(2)(b). a "deteriorated condition" of this lake. The same analysis must be applied in evaluating Donaldson's parcels. Are the parcels "directly affected" by some condition of these waters? ¶101 Is the "value" of Donaldson's two tracts enhanced by the quality of Lake Koshkonong and the Rock River? The Board bases its reason on contingencies: the "value" of the parcels will be affected "if" the water quality and recreational value are improved, or "if" the Indianford Dam were removed, or "if" water quality and recreational value were degraded. The Board does not reference what actions it has taken, is taking, or will take in this regard, nor has it explained how these actions have affected or will affect the value of non-riparian agricultural 47 No. 01-3396 land. The Board relies on the relationship between Donaldson's properties and the Rock River but does not explain how removal of the Indianford Dam would affect his properties linked to the Rock River. properties or any In all likelihood, any increased land value would depend on the conversion of the land to residential use instead of agricultural use. This contingency is inconsistent with Donaldson's testimony. again, the Lake District Board has failed to articulate Once the linkage between its reason and present benefit to the particular parcels of land. ¶102 To sum up, the Lake District Board exercised its will and not its judgment. It placed heavy emphasis on a requirement for a change in circumstances in a situation in which a change in circumstances was not required. It failed to address or rebut the grounds given by the petitioner. In so doing, it failed to discuss several criteria it had identified in its own rules. Although the Board gave several reasons for its decision beyond the absence of a change in circumstances, it consistently failed to explain why these reasons were relevant in showing direct benefit to Donaldson's property and why Donaldson's property was more directly benefited than many other properties not included in the Lake District. The Lake District Board consistently failed to discuss how its past, present, and future actions were benefiting Donaldson's Board was arbitrary and unreasonable. the Board's sufficient to hollow, sustain ritualistic its In short, the Were we to conclude that enumeration refusal 48 parcels. to of detach reasons the was Donaldson No. 01-3396 properties, we would render the detachment procedure meaningless. ¶103 There is one additional component for certiorari review that we should mention: whether the evidence was such that the Board question. might reasonably make the determination in We conclude that the evidence the reasoning cited by the Lake District Board was not sufficient to sustain its decision. reasons As noted, the Board failed to link several of its to a finding of benefit and failed to justify its disregard of the reasons proffered by Donaldson. H. Lake Districts and Certiorari Review ¶104 This court is extremely sensitive to its obligation to afford substantial deference to any exercise of legislative power. When a lake district performs its legislative functions, it is entitled to this deference, and courts should be reluctant to invalidate its legislative decisions. Nonetheless, there must be a clear-eyed analysis of the predicament inherent in the exercise of legislative power by lake districts. ¶105 As a general rule, all property in Wisconsin is situated within a city, village, town, or Indian reservation, and is either taxable or tax exempt. All property within a lake district is also situated within a city, village, or town, and is subject to whatever taxes the pertinent municipality may impose. When property is included within a lake district, it is subject to an additional level of taxation: that is, it is subject to a tax on top of the tax imposed by the county, the city, village, or town, the vocational-technical district, and 49 No. 01-3396 the school district. There must be some discernible reason why any property is required to pay an additional layer of taxes. ¶106 In theory, a town sanitary additional layer of government. district is also an However, cities and villages have clear statutory authority to handle sanitary issues while towns do not. As a result, towns create sanitary districts so that certain functions can be performed that cannot be performed by the towns themselves. In this sense, sanitary districts are not an additional layer of government. ¶107 Lake districts are truly an additional layer of government, and they are created by people driven by a laudable but special interest. Special interest petitioners devise the boundaries of a lake district to serve this interest and they submit their plan to a county board for approval. board may carefully evaluate every parcel The county of property determine whether it should be included in the district. practical matter, this is not likely to happen. to As a Such a review would require a conscientious board to fine-tune the proposal submitted by the petitioners and collectively draw up its own plan. This is especially unlikely to happen with respect to property located in a different county. ¶108 Thus, because the legislature has failed to establish clear standards for what property may be included in a district, a lake district ultimately turned may be over a to gerrymandered the people who creation drew that the is lines. Property owners disgruntled by their inclusion in the district may not have means to influence 50 the elected county board No. 01-3396 officials who approve the creation, or the ability to punish at the ballot box commissioners regard, who creation either the board administer of a lake or their the own district lake district creation. has this checks fewer In than creation of a town sanitary district. ¶109 If courts are unable to provide any meaningful protection to property owners, the creation and governance of lake districts will lend themselves to serious abuse. The limitations of certiorari review do not provide much protection. Consequently, we urge the legislature to reexamine the statutes on lake districts legislative to decisions, provide whether reasonable by a county standards board for creating a district or by a lake district board in governing a district. III. CONCLUSION ¶110 For the reasons stated, we conclude that the Lake District Board failed to render a satisfactory determination of whether Arthur benefited Board by Donaldson's continued improperly two parcels inclusion in relied on the of the premise territory Lake are District. that Donaldson not The was required to show a change in circumstances from the time the Lake District was formed, even though the Rock County Board had not made an individualized determination that his parcel would be benefited by inclusion in the district. Although the Board stated additional reasons for denying Donaldson's petition for detachment, representing its determination its will and was not arbitrary its and judgment. unreasonable, The court of appeals decision reversing the decision of the circuit court and 51 No. 01-3396 upholding the Lake District Board is reversed, and this case is remanded to the circuit court for action consistent with this opinion. By the Court. The decision of the court of appeals is reversed and the cause is remanded to the circuit court for further proceedings consistent with this opinion. 52 No. ¶111 N. PATRICK CROOKS, J. 01-3396.npc Because (dissenting). the majority fails to accord the required deference to the decision of the Lake District Board, I respectfully dissent. I disagree with the majority's conclusion that an owner of property located within a lake district is not required to show a change of circumstances in order to have that territory detached from the lake district. I respectfully dissent because the majority's ruling institutes a duplicative process that undermines a county board's previous determination that each individual property in the Lake District "will be benefited by the establishment" of such district. the same statute, meaning and detachment. both Wis. Stat. § 33.26(3). in § 33.26(3), The term "benefited" has the Wis. Stat. § 33.33(3), lake the district statute creation governing In coming to an opposite conclusion, the majority improperly interpreted § 33.33(3) and failed to avail itself of case precedent illustrating that the term "benefited," as it appears in both §§ 33.26(3) and 33.33(3), refers to each individual parcel within the lake district. ¶112 The majority begins its discussion of the relationship between the word "benefited" in Wis. Stat. §§ 33.26(3) and 33.33(3) by agreeing that the decision to detach is legislative. Majority op., ¶56. term "frontage" legislation but The majority then states that because the was not included was included in in the earlier lake drafts district of that legislation, a fair inference can be drawn that the detachment procedure for lake ensuring that a districts property was owner 1 intended is to provided be an a safeguard individual No. decision regarding whether the owner's benefited by continued inclusion. specific Id., ¶57. 01-3396.npc property is The majority then concludes that the definition of benefit under § 33.26(3), which relates to whether property "will be benefited," is not the same as under § 33.33(3), which speaks to whether "territory is not benefited by continued inclusion in the district." ¶113 The majority needs to look no Id., ¶58. further than the statutes themselves to determine that "benefited" has the same meaning in both Wis. Stat. §§ 33.26(3) and 33.33(3). Because both statutes are in Subchapter IV of Chapter 33, the proper rule of statutory construction dictates that "benefited" should be attributed the same meaning calls for a different meaning. unless the statutory Wilson v. Waukesha County, 157 Wis. 2d 790, 796, 460 N.W.2d 830 (Ct. App. 1990) ascribing appeared a different multiple meaning times in context to the the same word (rejecting "malicious" statute that because statutory structure did not call for different meanings). the Here, the context does not call for a different meaning of the term "benefited." ¶114 In fact, the statutory context leads me to conclude that "benefited" must be defined the same way in both statutes in the same chapter. Wisconsin Stat. § 33.33(3) states, in relevant part: "Proposals for detachment shall be considered by the commissioners, and territory may be detached upon a finding that such territory is not benefited by continued inclusion in the district." (Emphasis added). The language, "not benefited by continued inclusion," indicates that the individual property 2 No. 01-3396.npc that the owner is petitioning for detachment has already been determined by the county board to be benefited by inclusion in the lake district. The effect of the majority s decision is to allow members of a lake district to challenge a county board s determination that the owner s property was benefited by inclusion in the lake district by appealing to the Lake District Board without the need to show a change in circumstances. As the court of appeals noted, Donaldson s testimony during his hearing before the Lake District Board proves this point. [LAKE DISTRICT BOARD]: [H]as anything changed since Rock County passed the resolution forming the lake district . . . or did they make a mistake back then when they formed this lake district? MR. DONALDSON: I think they made a mistake back then because it was farm land when I bought it and I ve owned if for a number of years and it s still farm land, but I don t intend to do anything else with it other than farm land. [LAKE DISTRICT BOARD]: So there haven t been any changes in the conditions of the property since then? MR. DONALDSON: No. ¶115 The court of appeals held, as did the Lake District Board, that without a showing of changed circumstances Donaldson is not entitled to detachment.23 ¶116 I find additional I agree with them. support for this conclusion in Wis. Stat. § 33.26(7), which establishes a 30-day window for a person "aggrieved by the action of the board" to petition the 23 Rock-Koshkonong Lake District Resolution 99-03, Section III(F) states, in relevant part, that the Board may consider "[w]hether circumstances surrounding the property's inclusion in the District have changed." 3 No. circuit court including a for review particular boundaries. The of the property county within majority's 01-3396.npc board's the approach action lake in district's eviscerates the legislature's intent to limit the time period that a property owner has to challenge such a decision by a county board. Chapter 33 also undercuts the majority's concern that property owners will perpetuity, be compelled unless they to remain can in challenge lake the districts county in board's determination that their property is benefited by inclusion in the lake district by way of Wis. Stat. § 33.33(3) without any showing of changed circumstances. Chapter 33 provides property owners with two reasonable options: petition, board's initially, decision to under include An owner can make a timely § 33.26(7), the owner's challenging property a in county a lake district, and an owner can also, later, petition for detachment if the owner is able to demonstrate changed circumstances under § 33.33(3). If shown, such circumstances would allow a lake district board to order detachment. ¶117 The majority acknowledges that application of Fort Howard Paper Co. v. Fox River Heights Sanitary District, 250 Wis. 145, 26 N.W.2d 661 (1947), leads to the conclusion that this case is subject to certiorari review. give deference to language in Fort However, it fails to Howard, as the court of appeals pointed out, illustrating that a finding that an entire district is "benefited" means that each individual property in the district has the potential to be benefited. 4 No. ¶118 In Fort Howard, a property owner argued 01-3396.npc that its property should not be included in a sanitary district because its individual property was not benefited by inclusion. 152. Id. at Fort Howard asserted that in order to be included in the district, its property had to be immediately benefited by such inclusion. Id. Focusing on benefit to the property of the district as a whole, this court disagreed, concluding that when such property as a whole is benefited then each individual property within the district is benefited by inclusion in the district. Id. The fact that the individual property did not realize immediate benefits did not preclude the formation of the district. Id. The Fort Howard court stated: If the town board finds that the property within the boundaries of the proposed district as a whole will be benefited then the district is to be organized. For example, if some parcel of land was included in the proposed district which lay out of the watershed and could not be served by the proposed improvement, manifestly a property so situated could not be benefited. If all the property within the boundaries of the proposed district is in the watershed and the proposed improvement may serve it, then the property of the district as a whole is benefited and the town board if it makes the other necessary finding may organize the district. Id. (Emphasis added). ¶119 The court of appeals properly directive from Fort Howard and commented: interpreted this "Stated differently, a finding that a district as a whole is 'benefited' will stand unless some inclusion." parcel in the district is not benefited by the Donaldson v. Bd. of Comm'rs of Rock-Koshkonong Lake Dist., 2003 WI App. 26, ¶15, 260 Wis. 2d 238, 659 N.W.2d 66. 5 No. ¶120 Further affirmation for this 01-3396.npc interpretation of Fort Howard emerges from the court of appeals' statement that "[t]his reading of Fort Howard is further supported by the subsequent discussion of the particular facts in that case and the supreme court's conclusion: 'it appears from the undisputed evidence that the property of the plaintiff will be benefited.'" Id. The the court of appeals pointed out that "[i]f benefit to individual parcel at issue in Fort Howard was irrelevant, the supreme court benefited." would Id. not have explained why the parcel was The court of appeals went on to conclude that the text of Subchapter IV in Chapter 33 did not suggest that the term "benefited" had a different meaning prior to the time when the lake district was formed than it had after it was formed. Id., ¶21. Again, not requiring Donaldson to show a change in circumstances is contrary to the language and proper interpretation of the statutes at issue. ¶121 As interpretation mentioned of the above, language the court "benefited" was of appeals' correct. In upholding the Lake District Board's decision to deny Donaldson's petition, the court found persuasive the Board's argument "that Donaldson's opportunity to challenge whether his property was properly included in the District is governed by Wis. Stat. § 33.26, and because Donaldson failed to avail himself of that opportunity, he must now demonstrate a change in circumstances showing he is no longer 'benefited,' using the same definition of 'benefited' used by the county board when the Lake District was created." Id., ¶12. Unlike the majority, the court of 6 No. 01-3396.npc appeals did not fail to give weight to the Board's decision when determining that the property included in the Lake District would potentially benefit by such inclusion. ¶122 The majority's decision ignores the legislative role of both the County Board and the Lake District Board. majority concedes that certiorari review of a The detachment decision does not allow it to substitute its judgment for the Lake District Board's determination. Majority op., ¶51. Yet, by not recognizing that the County Board's original finding that each property benefited by inclusion in the Lake District, by failing to apply the rules of certiorari review, correctly, and by failing to accord to the Lake District Board's decision the presumption of correctness, the majority has wandered from the correct analytical path into a thicket of error. to recognize the presumption, the majority While claiming only applies the presumption of correctness to the County Board's creation of the Lake District, see majority op., ¶53, n.13, even though the majority recognizes the decision of the Lake District Board on detachment to be a legislative one. ¶123 As the majority legislative power." Wis. at 150). notes, Majority op., ¶¶4 and 56. "a court may not exercise Majority op., ¶48 (quoting Fort Howard, 250 Yet the majority seems to ignore this directive by according the Lake District Board's decision little or no deference. determination. The decision of the Board is a legislative See Joint Sch. Dist v. State Appeal Bd., 56 Wis. 2d 790, 794 203 N.W.2d 1 (1973). When reviewed on appeal, the Board's decision should be reviewed to determine whether it 7 No. 01-3396.npc exceeded its jurisdiction or acted arbitrarily or capriciously. Id. at 795. A presumption of correctness must be afforded to a decision of a board such as the Lake District Board, if there is no violation of those factors. ¶124 More specifically, I agree with the majority (see majority op., ¶4) that the only factors a court may properly consider on review are as follows: (1) Whether the board kept within its jurisdiction; (2) whether the board acted according to law; (3) whether the board's action was arbitrary, oppressive or unreasonable and represented its will and not its judgment; and (4) whether the evidence was such that it might reasonably make the order or determination in question. Mitchell Aero N.W.2d 521 v. Bd. of (1976) Review, (citing 74 State ex rel. Wis. 2d 268, Dolphin v. Bd. of 281-82, Review, 246 70 Wis. 2d 403, 408, 234 N.W.2d 277 (1975)). ¶125 The court of appeals properly principles of certiorari review. ¶10. recognized these Donaldson, 260 Wis. 2d 238, The court focused its analysis on the second prong, since the circuit court found that the Board acted contrary to law.24 The court reasoned that because the Lake District Board proceeded on the correct theory of law a property owner who is part of a lake district must show a change in circumstances in order to successfully district it factors. Id. did not petition have to for address detachment the from remaining that three I conclude that the Lake District Board was right 24 The circuit court, in its decision, determined that the decision of the Lake District Board was contrary to the statute and that no change of circumstances was required for detachment. 8 No. in its assessment and provided sufficient 01-3396.npc support for its justifying its decision not to grant detachment. ¶126 The position denied. that Board provided Donaldson's detailed request for reasons detachment should The Board stated the following, in relevant part: First, both tracts were within the original boundary of the District approved by the Rock County Board of Supervisors Resolution 99-A-038. Second, the Rock County Resolution included a finding that the property included in the District will be benefited by the establishment of the RockKoshkonong Lake District. Third, no evidence has been provided to the commission indicating that there has been any change in the property inconsistent with the Board of Supervisors' findings that these tracts benefit from inclusion in the District. Fourth, both tracts are within the Rock River watershed, and within the subwatershed areas that drain into the portions of the Rock River and Lake Koshkonong within the boundaries of the district. Fifth, both tracts are located in near proximity to Lake Koshkonong and the portion of the Rock River within the District. . . . Sixth, although neither parcel is riparian both parcels are located in close proximity to public boat launch facilities. . . . Seventh, the southernly tract has a direct view of the Rock River. Eighth, the value of both tracts will be enhanced if the water quality and recreational value of Lake Koshkonong and associated reaches of the Rock River within the District are improved and will be diminished if the Indianford dam were removed or if the water quality and recreational value of the lake and associated reaches of the Rock River were further degraded. 9 be No. ¶127 After detailing these considerations, 01-3396.npc the Lake District Board finally concluded that Donaldson's territory was benefited by its inclusion in the District. Nevertheless, the majority concludes that the Board "exercised its will and not its judgment." Majority op., ¶102.25 25 I strongly disagree with the majority's characterization of the Board's decision-making process. The Board clearly exercised its judgment in applying the criteria set forth in Rock-Koshkonong Lake District Resolution 99-03, Section III. Section III states, in relevant part: In its consideration of whether the subject property is benefited by continued inclusion in the District, the Board may consider: A. The physical characteristics of the property. B. Its use etc.). C. Its relationship to the lake in terms of whether: (recreational, commercial, residential, 1. 2. It has lake; 3. Its proximity to public access to the lake; 4. It is within view of the lake; and 5. D. It is riparian; It is within the watershed or ground water table of the lake. private access rights to the Whether the value of the property would be enhanced if the lake were to be reasonably clean, attractive and usable condition; or whether the value of the property would be diminished if the lake were to be in a degraded condition. 10 No. ¶128 While the majority provides what the 01-3396.npc Lake District Board could have used as an alternative analysis, that analysis is no more reasonable than the one applied by the Board. The Board need not look to every criteria it had established for a review of a petition for detachment. those factors are inappropriate guidelines not application of The majority admits that mandatory. certiorari The majority's review is best exemplified by its own fact-finding that an increase in property value results from recreational use, not agricultural use. majority fails to take into account the potential that The land included in the Lake District will experience increases in its property value, not only because of the activities on that property, but also as a result of the activities occurring on other properties included in the Lake District. E. Whether detachment of the property will result in any "hole" or "island" in the boundaries of the District. F. Whether circumstances surrounding the inclusion in the District have changed. G. Any other factors relevant to whether the property is benefited by continued inclusion in the District. 11 property's No. ¶129 For all of the foregoing reasons, I 01-3396.npc respectfully dissent. ¶130 I am authorized to state that Chief Justice Shirley S. Abrahamson and Justice Ann Walsh Bradley join this dissent. 12 No. 1 01-3396.npc

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