author: SNYDER, J.

text:
    Step Now Citizens Group, Gregory & Kristin Armstrong, Robert Brass, Gary Eake, John & Lucia Franzen, Edwin Gallatin, Jr. & Debra Gallatin, Gambrinus Enterprises d/b/a Utica Golf Course, Mark Haslanger, Carrol & Elaine Josephson, Jane Josephson, Mike & Sandy Miller, Scot Nerenhausen, Richard Oelschlager, Arthur & Alison Pontynen, Fred & Susan Rosenmeier, Sandra Schaetz, Doug & Sheila Schoenfeldt, Joy Smith, Kurt & Cindy Sorenson, Jeff White, Ronald & Donna Wiles, Mike Willeford & David Willeford, Plaintiffs-Respondents-Cross-Appellants, v. Town of Utica Planning & Zoning Committee, Town Board of the Town of Utica, Town of Utica Town Clerk, Winnebago County and Winnebago County Board of Supervisors, Defendants-Co-Appellants-Cross-Respondents, Robert Potratz, Marilyn Potratz and Algoma Ethanol, LLC, Defendants-Appellants-Cross-Respondents.
    Court of Appeals

      No. 02-2760.

      Oral argument February 26, 2003.

    Decided April 16, 2003.

    2003 WI App 109
    (Also reported in 663 N.W.2d 833.)

      On behalf of the defendants-appellants-cross-respondents Robert Potratz and Marilyn Potratz, the cause was submitted on the briefs of Richard J. Carlson of Silton, Seifert, Carlson, Gamble & Schubert, S.C., Appleton. On behalf of the defendant-appellant-cross-respondent Algoma Ethanol, LLC and joined by defendants-co-appellants-cross-respondents Winnebago County and Winnebago County Board of Supervisors, the cause was submitted on the briefs of Eric M.

      McLeod and Edward J. Pardon of Michael, Best & Friedrich, LLP, Madison. On behalf of the Potratzes and Algoma Ethanol, LLC, there was oral argument by Richard J. Carlson.

    On behalf of the defendants-co-appellants-cross-respondents Town of Utica Planning & Zoning Committee, Town Board of the Town of Utica, and Town of Utica Town Clerk, the cause was submitted on the briefs of Raymond J. Pollen and Ryan G. Braithwaite of Crivello, Carlson & Mentkowski, S.C., Milwaukee. There was oral argument by Ryan G. Braithwaite.

    On behalf of the plaintiffs-respondents-cross-appellants, the cause was submitted on the briefs of Edward R. Garvey, Glenn M. Stoddard and Diane L. Milligan of Garvey & Stoddard, S.C., Madison. There was oral argument by Glenn M. Stoddard.

    Before Brown, Anderson and Snyder, JJ.
   SNYDER, J.

¶ 1. The Town of Utica Planning & Zoning Committee, the Town Board of the Town of Utica, the Town of Utica Town Clerk (collectively, the Town), Winnebago County and the Winnebago County Board of Supervisors (collectively, the County), Robert and Marilyn Potratz (the Potratzes) and Algoma Ethanol, LLC (Algoma) all appeal a judgment of the circuit court that reversed the County's vote to amend a zoning ordinance adopted by the Town, concluding that the rezoning constituted illegal spot zoning. The ordinance amended the zoning of the Potratzes property from Agricultural to Industrial to allow construction and operation of an ethanol plant on the property. The Potratzes, the Town, the County and Algoma argue that the Town's and the County's decisions do not constitute illegal spot zoning. We agree and reverse this portion of the judgment of the circuit court and reinstate the Town's and County's decisions.

¶ 2. Step Now Citizens Group (Step Now) is an unincorporated association comprised of adult citizens of Wisconsin who reside and/or own real estate in the Town of Utica and/or Winnebago county who are potentially affected by land use, zoning and land development decisions of the Town and the County; Step Now cross-appeals, arguing that the rezoning of the Potratz property is null and void because the Town failed to follow necessary notice requirements, failed to comply with Wis. Stat. § 91.77 (2001-02) and issued the building permit in error. We disagree and affirm that portion of the judgment.

FACTS

¶ 3. Algoma proposes to build a $36 million plant for the production of ethanol on the north twenty-four acres of the northwest quarter of the northeast quarter of section 1 in the Town of Utica. The parcel, located adjacent to State Trunk Highway 91 in a predominantly rural area devoted to agricultural use, is owned by the Potratzes. On October 15, 2001, the Potratzes petitioned the Town to change the zoning classification of the property from Agricultural District to Industrial District for use as an ethanol plant. The petition was referred to the Town of Utica Planning & Zoning Committee (PZC) for study, hearing and recommendation to the Town Board.

¶ 4. The Town held three public informational meetings. The Town provided a venue for these three meetings which were held on October 24, November 1 and November 15, 2001. An Algoma representative presented information at these meetings to educate the public with experts on groundwater, plant design, traffic, engineering and site design, rail service and economics.

¶ 5. One Town Board member and two PZC members flew to visit an operating ethanol plant in Minnesota sometime in October 2001. Sometime in October 2001, Robert Potratz contacted the Town Chairman to see if any town officials wanted to visit an operating ethanol plant. A public relations person for Algoma accompanied the Potratzes, a Town Board member and two PZC members on the visit. On the return plane ride from the plant, the Town Board member stated that the passengers reviewed literature about ethanol manufacturing.

¶ 6. The PZC was initially scheduled to hold a public hearing on the request for rezoning on December 6, 2001, but the meeting was adjourned. The PZC hearing was rescheduled for January 3, 2002. On January 3, 2002, the PZC held a public hearing on the Potratz petition. After nearly three hours of hearing public testimony, the PZC considered and discussed the following issues: site plan, odor emissions, noise and traffic considerations, employment and tax base consequences, fire control considerations, water considerations, and the effects on future objectives of Town planning.

¶ 7. The PZC concluded that the site visit to Minnesota established that odors would be slight and limited in geographic scope and that noise would be modest inside the plant and minimal outside the plant. The PZC further concluded that traffic counts established that there was room for additional traffic on State Trunk Highways 44 and 91 to accommodate periodic traffic to and from the plant. The PZC noted that the proposed plant is a decentralized agricultural industry located in an agricultural area. The PZC made tax base comparisons between the number and type of residences needed to provide equivalent taxes.

¶ 8. The Town Land Use Plan (the Plan) was also discussed. A PZC member believed that the Plan was a "social contract" with the residents of the Town of Utica and that the area in question is shown as agricultural and not industrial; another PZC member believed that the Plan was only a proposed plan when it was adopted and that changes had been made since it had been adopted. At the public hearing, a member of the PZC introduced an addendum that the Potratzes had requested be part of the rezoning application. This addendum contemplated a zoning change back to Agricultural if Algoma failed to build on the property in question.

¶ 9. The PZC voted to recommend to the Town Board to approve the Potratz petition to rezone the property to Industrial, provided that the property revert back to Agricultural if federal and state agency approvals and permits and favorable groundwater test results were not obtained within eighteen months.

¶ 10. The Amendatory Ordinance drafted on behalf of the Town after the January 3, 2002 PZC hearing and before the January 14, 2002 Town Board meeting specifically identifies Robert Potratz as the owner of the land being rezoned and identifies an ethanol manufacturing plant as the proposed use. The Ordinance also states:

WHEREAS, while the property described herein is suitable and appropriate for an ethanol manufacturing plant, the property may not be appropriate generally for other uses that are permitted or permissible in the Industrial District in the event that required approvals, permits and favorable test results are not obtained in connection with the plant and the property!.]

The draft ordinance contains the recommended addendum, that the property revert back to Agricultural if the required federal and state agency approvals, permits and favorable test results are not obtained within eighteen months.

¶ 11. On January 14, 2002, the Town Board voted 2-1 to adopt the ordinance rezoning the property from Agricultural to Industrial. Again, the Plan was discussed. The Town Supervisor again argued that if the Town Board approved a rezone for a use inconsistent with the Plan, the Town Board would be jeopardizing the integrity of the Plan as a foundation for future land use decisions.

¶ 12. The Town Board found, among other things, that the ethanol plant is complementary to farming and the existing agricultural economy of the Town of Utica and that the proposed site of the ethanol plant would enable safe and convenient access for the delivery of agricultural commodities to the plant and the transportation of products from the plant.

¶ 13. The Town Board also found that while the property is suitable and appropriate for use as an ethanol plant, the property may not be appropriate generally for other uses that are permitted in an Industrial District in the event that required federal and state approvals, permits and favorable groundwater test results are not obtained. Consequently, the Amendatory Ordinance provides that the property will revert back to Agricultural District in the event the approvals, permits and favorable test results are not obtained within eighteen months. In essence, the Town Board incorporated the recommendations of the PZC.

¶ 14. Winnebago County has a county zoning ordinance. Pursuant to Wis. Stat. § 60.62(3), no town zoning ordinance or amendment of a zoning ordinance may be adopted unless approved by the County Board in counties having a county zoning ordinance.

¶ 15. The Town submitted the Amendatory Ordinance, a map of the Potratz property and a scale map of the surrounding area, including zoning classifications, to Winnebago County for its review. On March 14, 2002, the Town Clerk wrote the Winnebago County Zoning Administrator a letter stating that the Town Board had not formally adopted the Town Land Use Plan. The Town did not include the proposed land use map from the Plan or any excerpts from the Plan in its application for County approval of the rezoning. In the Town's request for County approval of the rezoning, it acknowledged that the findings related to land use planning had not been found.

¶ 16. The County subsequently requested Town Board minutes for the Potratz rezoning hearing, the PZC minutes for the Potratz rezoning and a letter from the Town Clerk certifying that the Town Board had not adopted the "Town of Utica Comprehensive Plan." The letter referenced a prior phone conversation where the Town Clerk apparently told the County Zoning Administrator that the Town Board had not yet adopted the Plan because some changes were to be made and a hearing was to be held. The Town Clerk confirmed her belief about the status of the Plan in a response letter to the County Zoning Administrator.

¶ 17. On March 19, 2002, the Winnebago County-Board voted to approve the Potratz rezoning. On April 9, 2002, Step Now filed a complaint in the circuit court seeking a declaratory judgment under Wis. Stat. § 806.04(2) that the Potratz rezoning constituted illegal spot zoning; the complaint also filed public and private nuisances actions. A July 12, 2002 amended complaint added a common law certiorari action.

¶ 18. On July 26, 2002, the Potratzes and Algoma moved the circuit court for summary judgment on all Step Now claims. The County joined in this motion as did the Town. The Town also moved to quash the writ of certiorari.

¶ 19. Step Now filed a cross-motion for summary judgment on September 24, 2002. A hearing was held on these motions on September 30, 2002. In an oral decision, the circuit court held that the Potratz rezoning was unreasonable and unconstitutional because the area rezoned was too small; the creation of jobs and opportunities for citizens afforded by the plant too little; the distance from a designated industrial area in the Plan too great; and the distance from a private golf course and several residences too little. The circuit court also expressed concern that the County had not been given accurate information that the Town had adopted a land use plan and that it was reasonable to speculate that the County decision may have been different.

¶ 20. The circuit court granted Step Now's motion for summary judgment on its claim that the rezoning was unconstitutional spot zoning. The circuit court granted the Potratz/Algoma/Town of Utica/Winnebago County motion for summary judgment, dismissing the Step Now claim of invalidity based upon purported procedural irregularities and the Step Now claim of nuisance.

¶ 21. Judgment was entered on October 14, 2002. On October 16, 2002, the Potratzes and Algoma filed a notice of appeal; Algoma moved the circuit court for a stay of the judgment. On October 22, 2002, the circuit court held a hearing on the motion for a stay, which it denied. Subsequently, the Town and the County filed a notice of appeal. Step Now cross-appeals.

DISCUSSION

¶ 22. The Potratzes, the Town, the County and Algoma have all filed appeals in this matter while Step Now has filed a cross-appeal. Each will be addressed in turn.

Appeal

¶ 23. The Potratzes, the Town and Algoma all argue that the Potratz rezoning from Agricultural to Industrial does not constitute illegal spot zoning. We agree.

¶ 24. The circuit court disposed of this issue on summary judgment. We review the grant or denial of a summary judgment de novo and we apply the same standard as does the trial court. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987). A party is entitled to summary judgment if there are no disputed issues of fact and that party is entitled to judgment as a matter of law. Wis. Stat. § 802.08(2). In evaluating whether a defendant is entitled to summary judgment, we examine the defendant's submissions to determine whether they establish a prima facie defense to the claim; if they do, we then determine whether the plaintiffs submissions in response create a genuine issue of material fact that defeats the motion for summary judgment and entitles the plaintiff to a trial. Preloznik v. City of Madison, 113 Wis. 2d 112, 116, 334 N.W.2d 580 (Ct. App. 1983).

¶ 25. Zoning power is granted to municipalities by Wis. Stat. § 62.23(7). Cushman v. City of Racine, 39 Wis. 2d 303, 306, 159 N.W.2d 67 (1968). Pursuant to this grant of police power, a municipality, for the purpose of promoting health, safety, morals or the general welfare of the community, may regulate and restrict buildings in height and size, the percentage of the lot which they may occupy, the size of yards, open spaces, density of population and the location and use of buildings and land for trade, industry, residences or other purposes. Id. Amendment of zoning ordinances is also permitted. Id.

¶ 26. Step Now faces the burden of a heavy presumption against its challenge to the rezoning. See Rodgers v. Vill. of Menomonee Falls, 55 Wis. 2d 563, 572, 201 N.W.2d 29 (1972). Zoning is a matter of legislative discretion, Heaney v. City of Oshkosh, 47 Wis. 2d 303, 307, 177 N.W.2d 74 (1970), and we must start with the premise that a zoning ordinance enacted pursuant to Wis. Stat. § 62.23(7) is presumed valid and must be liberally construed in favor of the municipality. Cushman, 39 Wis. 2d at 306. Consequently, an alleged invalidity of the ordinance must be clearly shown by the party attacking it. Rodgers, 55 Wis. 2d at 572. While a court may differ with the wisdom and desirability of a zoning change, it cannot substitute its opinion for that of the zoning authority. Heaney, 47 Wis. 2d at 307. The opinion of the zoning authority controls in the absence of abuse of discretion, excess of power or error of law. Rodgers, 55 Wis. 2d at 572.

¶ 27. Because the case at bar does not involve the initial shaping of zoning districts for land use but involves one parcel singled out for different treatment from that originally accorded the neighboring property, it thus falls into the category of spot zoning. See Cushman, 39 Wis. 2d at 306. Spot zoning is defined as "the practice whereby a single lot or area is granted privileges which are not granted or extended to other land in the vicinity in the same use district." Id. at 306-07 (citation omitted).

¶ 28. Spot zoning is not per se illegal. Rodgers, 55 Wis. 2d at 573. This is true because spot zoning is not necessarily inconsistent with the purposes for which zoning ordinances can be passed according to Wis. Stat. § 62.23(7). Cushman, 39 Wis. 2d at 307. Spot zoning has been characterized both as a necessary device to provide flexibility to comprehensive zoning ordinances and as "the very antithesis of planned zoning." Howard v. Vill. of Elm Grove, 80 Wis. 2d 33, 41-42, 257 N.W.2d 850 (1977) (citation omitted).

¶ 29. The Potratzes and the Town first argue that the size of the parcel being rezoned determines whether it is spot zoning; because the parcel in question here is twenty-four acres, they argue, the rezoned parcel is too large to be considered spot zoning. However, we agree with Step Now that the size of the parcel is not dispositive in determining whether a rezoning constitutes spot zoning. While size is significant, see Rodgers, 55 Wis. 2d at 573-74, it is but one factor to consider. Because the Potratz parcel was "granted privileges which [were] not granted or extended to other land in the vicinity in the same use district," this is spot zoning. See Cushman, 39 Wis. 2d at 306-07.

¶ 30. But again, spot zoning is not per se illegal in -Wisconsin. Heaney, 47 Wis. 2d at 308. In determining the validity of a zoning ordinance, we recognize that each case must be determined on the facts. Ballenger v. Door County, 131 Wis. 2d 422, 428, 388 N.W.2d 624 (Ct. App. 1986). The factors to be weighed in considering the validity and reasonableness of rezoning are several. See Heaney, 47 Wis. 2d at 310. The pertinent inquiries go to whether the rezoning is consistent with long-range planning and based upon considerations which affect the whole community. Id. The nature and character of the parcel, the use of the surrounding land and the overall scheme or zoning plan are also relevant. Id.; see also Ballenger, 131 Wis. 2d at 427. Finally, the interests of public health, morals and safety must also be considered, as well as the promotion of public welfare, convenience and general prosperity. State ex rel. Am. Oil Co. v. Bessent, 27 Wis. 2d 537, 544, 135 N.W.2d 317 (1965); see also Ballenger, 131 Wis. 2d at 427.

¶ 31. The concept of public welfare is broad and inclusive and embraces in comprehensive zoning the orderliness of community growth, land value and aesthetic objectives. Am. Oil Co., 27 Wis. 2d at 545. The standard which we must follow in determining whether a municipality's action amounts to illegal spot zoning is as follows:

Spot zoning to be accomplished through rezoning should only be indulged in where it is in the public interest and not solely for the benefit of the property owner who requests rezoning, absent any showing that a refusal to rezone will in effect confiscate his property by depriving him of all beneficial use thereof....

Rodgers, 55 Wis. 2d at 573 (citation omitted). This approach has been followed whenever the court is confronted with an allegation that illegal spot zoning has taken place. Id.

¶ 32. Again, our interference is limited to cases involving abuse of discretion, excess of power or error of law. Cushman, 39 Wis. 2d at 307. We agree with the circuit court that there was no error of law here. Our interference is justified, then, only if there is an abuse of discretion or the municipality acted in excess of power.

¶ 33. At the January 3, 2002 PZC hearing, a letter was read from a citizen indicating that the ethanol plant would decrease reliance on imported oil, increase demand for local farmers' corn, broaden the Town's tax base and create jobs through construction and operation of the. plant. The PZC considered the site plan, odor emissions, noise and traffic considerations, employment and tax base consequences, fire control considerations, water considerations and the general effects of zoning gradation for future objectives of Town planning. The PZC concluded that the site visit determined that odors were slight and limited in geographic scope and that noise inside the plant was modest and outside the plant was minimal. The PZC further concluded that a traffic count indicated there was room for additional traffic on Highways 44 and 91. In addition, the PZC concluded that the proposed plant was a decentralized agricultural industry in an agricultural area.

¶ 34. At the January 14, 2002 Town Board hearing, numerous people spoke out in favor of and against the ethanol plant. A representative from the Wisconsin Department of Agriculture spoke about the benefits of an ethanol plant to the agricultural community and presented a letter from the Secretary of the Department of Agriculture regarding the economic benefits to the community and the area and the need for ethanol infrastructure. During deliberations, the Town Board noted that the PZC had approved the zoning change and acknowledged that farmers would receive a higher income for their grain if the plant was built. The Town, through the PZC, found that the nature of an ethanol plant is not strictly industrial and found that the plant was a decentralized agricultural industrial use and thus consistent with the agricultural area.

¶ 35. At the March 19, 2002 County Board hearing, the following information was presented: the plant would occupy approximately twenty-four acres and be located on State Highway 91. A school is approximately 2.35 miles away and the YMCA is approximately two miles away. The areas surrounding the proposed site are zoned for commercial or industrial use. Odor from the plant would be minimal because there will not be a dryer for the wet cake. A high capacity production well and two water level observation wells were already installed; the latter will measure the draw from the groundwater by the high capacity production well. The plant would use an aquifer beneath the aquifer used by most residential wells in the area and thus should not cause enough water draw down to expose the arsenic zone to oxygen. The development of a pumping program (i.e., multiple wells) could manage the maximum draw down in the lower aquifer, which is where the high capacity production well is located.

¶ 36. Again, zoning is a matter of legislative discretion, Heaney, 47 Wis. 2d at 307. The term "discretion" contemplates an exercise of judgment based on three factors: (1) the facts of record, (2) logic, and (3) the application of proper legal standards. State v. Shanks, 2002 WI App 93, ¶ 6, 253 Wis. 2d 600, 644 N.W.2d 275, review denied, 2002 WI 111, 256 Wis. 2d 64, 650 N.W.2d 841 (Wis. July 26, 2002) (No. 01-1372-CR). The Town and the County complied with these standards. We cannot substitute our opinion for that of the zoning authority. Heaney, 47 Wis. 2d at 307.

¶ 37. Step Now argues that the Town and the County did not specifically find and articulate that there was a public benefit in rezoning the land. However, Step Now has not provided any authority that a legislative body has to prove that it considered certain standards or employed specific magic words.

¶ 38. Step Now further argues that because the rezoning was inconsistent with the Plan, it constitutes illegal spot zoning. We disagree. We conclude that a land use plan is not mandatory but merely advisory.

¶ 39. A comprehensive zoning plan is generally defined as

one which controls the use of land and buildings throughout the entire territory of the municipality by dividing the territory into use districts permanent in character according to present and probable future conditions. It directs so far as possible the most appropriate uses of land consistent with the public interest and the safeguarding of the interests of individual property owners. It has been said that it is easier to determine what a comprehensive plan is not, than to define what it is; certainly, however, a comprehensive plan should embrace substantially all the area to be zoned, and should contemplate permanence, stability, and finality of design.

Heaney, 47 Wis. 2d at 309 (citation omitted). Commentators have defined a comprehensive plan as a guide to community development. Bell v. City of Elkhorn, 122 Wis. 2d 558, 564, 364 N.W.2d 144 (1985). It is "a general plan to control and direct the use and development of property in a municipality, or a large part thereof, by dividing it into districts according to the present and potential use of the property." Id. (citation omitted).

¶ 40. The objectives sought to be achieved through the development of a comprehensive plan include: (1) improving the physical environment of the community; (2) promoting the public interest; (3) facilitating the implementation of community policies on physical development; (4) effecting political and technical coordination in community development; (5) injecting long-range considerations into the determination of short-range actions; and (6) bringing professional and technical knowledge to bear on the making of political decisions concerning the physical development of the community. Id. at 565.

¶ 41. In Bell, the Wisconsin Supreme Court addressed whether the existence of a formal comprehensive plan is a condition precedent to the adoption of a valid zoning ordinance. Id. at 563. The Bell court turned to Wis. Stat. § 62.23 which sets forth Wisconsin's statutory scheme for city planning. Bell, 122 Wis. 2d at 563. Section 62.23(1) provides that a city may create a city plan commission. Bell, 122 Wis. 2d at 563. It is the commission's "function and duty ... to make and adopt a master plan for the physical development of the municipality .... The master plan, with the accompanying maps, plats, charts and descriptive and explanatory matter, shall show the commission's recommendations for such physical development, and may include a comprehensive zoning plan." Id. (citing Wis. Stat. § 62.23(2) (1985-86)).

¶ 42. The Bell court next addressed Wis. Stat. § 62.23(7)(a), which gives the city council the power to enact zoning ordinances "[flor the purpose of promoting health, safety, morals or the general welfare of the community." Bell, 122 Wis. 2d at 563. Section 62.23(7)(c) requires that "[s]uch (zoning) regulations shall be made in accordance with a comprehensive plan .. . ." Bell, 122 Wis. 2d at 563-64.

¶ 43. The requirement contained in many states' zoning statutes that zoning be "in accordance with a comprehensive plan" originated in the Standard Zoning Enabling Act. Id. at 565. An explanatory note to this section of the Act stated, "This will prevent haphazard or piecemeal zoning. No zoning should be done without such a comprehensive study." Id. (citation omitted).

¶ 44. However, the Bell court concluded that there was no requirement in Wis. Stat. § 62.23 that a plan be written or be anything beyond "a generalized conception by the members of the board as to how the districts in the township shall be . . . used." Bell, 122 Wis. 2d at 565-66 (citation omitted). Instead, the Wisconsin Supreme Court concluded, the purpose of a comprehensive plan is to provide an orderly method of land use regulation for the community that can be accomplished by the zoning ordinance itself without the need of a separate document labeled "Comprehensive Plan." Id. at 567. The Bell court further concluded that the clear intent of the legislature in enacting § 62.23 was to have cities design a general plan to control the use of property in the community which could be accomplished with or without the advice of a plan commission because the creation of the plan commission is at the discretion of the governing body of the community. Bell, 122 Wis. 2d at 567; see also § 62.23(1)(a).

¶ 45. The Wisconsin Supreme Court concluded that a city need not adopt a separate comprehensive plan document as a condition precedent to enacting a zoning ordinance. Bell, 122 Wis. 2d at 567. If a comprehensive land use plan is not mandatory, then it stands to reason that once a comprehensive land use plan is enacted, the plan is merely advisory. In essence, a comprehensive plan is merely a guide to community development. Id. at 564.

¶ 46. Wisconsin Stat. § 66.1001(3)(b) supports our conclusion that a land use pían is simply advisory. Section 66.1001 addresses comprehensive planning and states, in relevant part:

(3) Actions, PROCEDURES that must be consistent with COMPREHENSIVE plans. Beginning on January 1, 2010, any program or action of a local governmental unit that affects land use shall be consistent with that local governmental unit's comprehensive plan, including all of the following:
(a) Municipal incorporation procedures under s. 66.0201, 66.0203 or 66.0215.
Os) Annexation procedures under s. 66.0217, 66.0219 or 66.0223.
(c) Cooperative boundary agreements entered into under s. 66.0307.
(d) Consolidation of territory under s. 66.0229.
(e) Detachment of territory under s. 66.0227.
(f) Municipal boundary agreements fixed by judgment under s. 66.0225.
(g) Official mapping established or amended under s. 62.23(6).
(h) Local subdivision regulation under s. 236.45 or 236.46.
(i) Extraterritorial plat review within a city's or village's extraterritorial plat approval jurisdiction, as is defined in s. 236.02(5).
(j) County zoning ordinances enacted or amended under s. 59.69.
(k) City or village zoning ordinances enacted or amended under s. 62.23(7).
(L) Town zoning ordinances enacted or amended under s. 60.61 or 60.62.
(m) An improvement of a transportation facility that is undertaken under s. 84.185.
(n) Agricultural preservation plans that are prepared or revised under subch. IV of ch. 91.
(o) Impact fee ordinances that are enacted or amended under s. 66.0617.
(p) Land acquisition for recreational lands and parks under s. 23.09(20).
(q) Zoning of shorelands or wetlands in shorelands under s. 59.692, 61.351 or 62.231.
(r) Construction site erosion control and storm water management zoning under s. 59.693, 61.354 or 62.234.
(s) Any other ordinance, plan or regulation of a local governmental unit that relates to land use. (Emphasis added.)

A logical interpretation of this statute is that until January 1, 2010, a local governmental unit's program or action affecting land use does not need to be consistent with that local governmental unit's comprehensive plan and thus currently a land use plan is merely advisory.

¶ 47. Step Now further argues that the rezoning was a joint effort by the Town and the applicants and that the relationship between the Town and the applicants implicates citizens' due process rights. Step Now places much emphasis on the fact that Algoma arranged a tour of an existing plant in Minnesota and arranged for informational meetings where Algoma representatives would be available to provide information and answer questions. This is without merit.

¶ 48. Step Now cites no authority for the proposition that in making a legislative decision, a municipality that gathers all possible information and better educates itself and its citizens about the ramifications of a zoning decision is abusing its discretion or acting in excess of its power. The primary authority relied upon by Step Now in its allegations of improper bias, Morris v. City of Cedarburg, 176 Wis. 2d 14, 498 N.W.2d 842 (1993), does not support its contention; Marris addressed a property owner's request for approval for a proposed change in the use of a building, id. at 19-20, and, as Step Now acknowledges, involved a quasi-judicial proceeding, not a discretionary legislative decision such as the one before us here. The Potratz rezoning was not illegal spot zoning.

Cross-Appeal

¶ 49. Step Now's cross-appeal alleges the following: the Potratz rezoning is null and void because the Town failed to properly publish the notices for the public hearings and then failed to provide a properly noticed public hearing after the application for rezoning was substantially amended; the Potratz rezoning is invalid because the Town violated its own zoning ordinance when it failed to comply with Wis. Stat. § 91.77; and because the Town issued the building permit in error, it is null and void.

¶ 50. Step Now argues, as some of the cross-respondents appear to concede, that these issues are properly addressed via summary judgment methodology. However, these claims of procedural due process violations were raised in the amended complaint, and addressed at the September 30, 2002 hearing, in the context of certiorari review. We are not required to address the appellate issues as structured by a party. See State v. Waste Mgmt. of Wis., Inc., 81 Wis. 2d 555, 564, 261 N.W.2d 147 (1978). Thus, the appropriate standard of review is that of certiorari.

¶ 51. The traditional standards of common law certiorari review are (1) whether the board kept within its jurisdiction; (2) whether it acted according to 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 it might reasonably make the order or determination in question. Hanlon v. Town of Milton, 2000 WI 61, ¶ 23, 235 Wis. 2d 597, 612 N.W.2d 44.

¶ 52. Step Now first argues that the Town violated its own zoning ordinance when it failed to properly publish the notices for the public hearings and thus the Potratz rezoning is null and void. We disagree that this nullifies the rezoning.

¶ 53. All parties seem to agree that the Town published notices for the PZC's January 3, 2002 hearing that complied with the requirements of Wis. Stat. §§ 62.23(7)(d), 985.01(lm) and 985.07(2). The Town held three informational meetings to inform its citizens about the potential rezoning, informational meetings that were not required by either statute or ordinance. The public hearing was held by the PZC on January 3, 2002. The notice of this hearing was published once during each of the two weeks, one week apart, prior to the public hearing. A class 2 notice of the PZC public hearing on the Potratz rezoning was published in the Oshkosh Northwestern on December 20 and 27, 2001, fourteen and seven days, respectively, prior to the hearing.

¶ 54. Section 20(a) of the Town ordinance on amendments provides, in relevant part, as follows:

The Town Board may from time to time on its own motion or on petition after first submitting the proposal to the Plan Commission, amend, supplement or change the district boundaries or the regulations herein or subsequently established upon giving at least ten (10) days notice, by publication in the official paper at least three times during the preceding thirty (30) days of the proposed amendment, supplement or change and hearing thereon, and opportunity to any person interested to be heard.

Thus, the Town's notice requirements require three publications, all three of which must be at least ten days prior to the meeting. Here, the notice was published only twice, fourteen and seven days prior to the hearing. Step Now argues that despite the compliance with statutory notice requirements, the Town's failure to follow its own publication requirements mandates invalidation of the rezoning. We disagree.

¶ 55. The cases cited by Step Now in support of this proposition are not directly on point. In Ledger v. City of Waupaca Board of Appeals, 146 Wis. 2d 256, 430 N.W.2d 370 (Ct. App. 1988), a property owner filed a petition to rezone his property; the petition to rezone was approved conditioned upon compliance with the plans as submitted. Id. at 258-59. However, the owner sold the property to a new owner without ever completing the original proposed project. Id. at 259. The new owner wanted to proceed with a similar project and requested a permit to do so. Id. The building inspector asked the city attorney if a permit could be issued in light of the conditions of the previous zoning ordinance. Id. The city attorney informed the inspector that a permit could be issued because, in his opinion, the conditions of the previous zoning ordinance were invalid. Id.

¶ 56. Area residents appealed to the zoning board of appeals, which affirmed the inspector's decision to issue a building permit without further discussion or comment. Id. at 260. The residents sought judicial review; the circuit court agreed with the board but we reversed. Id. at 258. Ledger was not an action to declare an ordinance void or unenforceable but was certiorari review of a board's decision to affirm issuance of a building permit, i.e., whether the board had the legal authority to rule that a portion of a duly-enacted city rezoning ordinance was invalid and unenforceable. Id. at 260-62. That is not the case here. The Town did not rule that a portion of a duly-enacted ordinance was invalid and unenforceable.

¶ 57. State ex rel. Meeks v. Gagnon, 95 Wis. 2d 115, 289 N.W.2d 357 (Ct. App. 1980), has nothing to do with zoning but is an action challenging prison discipline. In Gloudeman v. City of St. Francis, 143 Wis. 2d 780, 422 N.W.2d 864 (Ct. App. 1988), the local municipality followed its own notice provisions; however, those local notice requirements failed to comply with the enabling statute and thus the municipality failed to comply with state notice requirements. Id. at 786, 788. We have the exact opposite situation here: the Town complied with all state notice requirements but failed to comply with its local ordinance requirements.

¶ 58. The purpose of notice requirements is to provide the public with a right to appear and voice objections to the proposed ordinance. See id. at 784. Notice requirements are generally intended to provide an accurate statement of the time, place and purpose of a public hearing to those entitled to such notice so that they may attend the hearing and express their views. Weber v. Town of Saukville, 209 Wis. 2d 214, 234, 562 N.W.2d 412 (1997). Substantial compliance with statutory or ordinance requirements exists if the defective notice given fulfills the objective of the provisions and the record demonstrates that no one was prejudiced by the defect. Id. at 233.

¶ 59. Approximately 131 people signed the attendance sheet at the PZC hearing and numerous people were there to offer their opinion both for and against the proposed rezoning. Nowhere does Step Now argue that anyone was prejudiced by the Town's failure to comply with its own notice requirements. We conclude that the failure to comply with the Town's notice requirements, when all statutory notice requirements were met, did not defeat the purpose of the ordinance's notice provision. "[S]uch a defect is of little consequence in this case, and therefore provides an insufficient basis for concluding that the purpose of the ordinance's notice provisions was left unfulfilled." Id. at 234-35.

¶ 60. Step Now also argues that because the Town failed to publish any notice prior to the January 14, 2002 Town Board public hearing, the rezoning is invalid. Oliveira v. City of Milwaukee, 2001 WI 27, 242 Wis. 2d 1, 624 N.W.2d 117, refutes this argument.

¶ 61. In Oliveira, the plaintiffs challenged a rezoning of a parcel of land that would allow construction of a large grocery store. Id. at ¶ 2. At issue was the Milwaukee common council's enactment of two zoning amendments that had initially been referred to the common council's zoning committee for a hearing. Id. at ¶ 3. The hearing before the zoning committee was properly noticed under Wis. Stat. § 62.23(7)(d)2. Ol-iveira, 2001 WI 27 at ¶ 3. The zoning committee did not act on the proposed zoning amendments and the common council president introduced duplicate zoning amendments and referred them to a different committee. Id. The question before the court was whether notices of a hearing on the proposed zoning amendments before the zoning committee were sufficient to enable the common council to enact duplicate zoning amendments referred to a different committee without additional notices. Id.

¶ .62. The Wisconsin Supreme Court concluded that the Milwaukee common council did not violate Wis. Stat. § 62.23(7)(d)2 or constitutional guarantees when it failed to give additional § 62.23(7)(d)2 notices relating to the duplicate zoning amendments. Oliveira, 2001 WI 27 at ¶ 4. No substantive difference existed between the original zoning amendments for which notices were given and the duplicate files containing the proposed zoning amendments that were adopted. Id. at ¶ 32. The duplicate zoning amendments affected the same people in the same manner as the original zoning amendments; a second § 62.23(7)(d)2 notice for a hearing before a different committee would only provide the same people the opportunity to express the same views regarding the proposed zoning amendments. Oliveira, 2001 WI 27 at ¶ 32. Accordingly, the Oliveira court concluded that a second § 62.23(7)(d)2 notice was not required. Oliveira, 2001 WI 27 at ¶ 32.

¶ 63. Here, a second Wis. Stat. § 62.23(7)(d)2 notice was not required. There was no substantive difference between the proposed zoning amendment before the PZC and the Town. The proposal before the PZC and before the Town affected the same people in the same manner and a second notice would have provided the same people the opportunity to express the same views. All parties in attendance at the PZC hearing knew it was simply to make a recommendation to the Town Board, which would make the ultimate decision on the proposed rezoning. The Town Board's agenda and amended agenda for the January 14, 2002 meeting was posted. Meeting notices and amended notices were posted on January 9, 2002, and January 10, 2002, respectively, at the Town Hall, the Pickett Post Office and the Pickett Cooperative. Numerous people appeared at the Town Board's meeting to express their opinions on this issue. Step Now does not allege that anyone was prejudiced by the Town's failure to publish notice prior to the Town Board hearing. Section 62.23(7) "shall be liberally construed in favor of the city and as minimum requirements adopted for the purposes stated." Sec. 62.23(7)(a); see also Oliveira, 2001 WI 27 at ¶ 21. Here, compliance with state statute requirements was more than sufficient to satisfy due process concerns.

¶ 64. Step Now further argues that the Potratz rezoning is invalid because the Town failed to provide a properly noticed public hearing after the application for rezoning was substantially amended. We disagree that the application was substantially amended.

¶ 65. A change to the proposed amendment of a zoning ordinance must be substantial to require reactivation of the procedural process. Herdeman v. City of Muskego, 116 Wis. 2d 687, 690, 343 N.W.2d 814 (Ct. App. 1983); see also Oliveira, 2001 WI 27 at ¶ 28. To require a new notice and public hearing for every proposed change, no matter how small, would heavily burden the legislative process. Herdeman, 116 Wis. 2d at 690.

¶ 66. One of the purposes of a public hearing is to inform the members of the municipal legislative body. Id. Where changes are made due to testimony adduced at such a hearing, it usually will not be necessary to hold a second hearing on the revised proposal. Id. Whether a second hearing is necessary will depend upon the nature and extent of the posthearing revision. Id. A second notice is not required if the amendment does not alter the "fundamental character of the proposal." Oliveira, 2001 WI 27 at ¶ 29 (citing Herdeman, 116 Wis. 2d at 691). Herdeman reasoned as follows:

We are persuaded by the logic of these treatises and adopt the "substantial change" requirement.
The Muskego Planning Commission had already made its recommendation approving the rezoning of the land in question. Notice had been sent. The amendment simply decreased the amount of land that was going to be rezoned. The reduction in the size of the area to be rezoned in this case is not a substantial change in the proposed ordinance as originally advertised because the fundamental character of the proposal remained unchanged; no new rights were created.
It is also important to note that the amendment did not affect different landowners nor did it affect the same landowners in a different way. An additional public hearing could only have resulted in repetitive statements by the same parties. Nothing would have been accomplished by requiring another notice and public hearing, except delay.

Herdeman, 116 Wis. 2d. at 690-91.

¶ 67. The addition to the proposed zoning amendment was added, at the Potratzes' request, and was a reverter clause which read as follows:

WHEREAS, after public notice and hearing, the Town of Utica Plan Commission has determined that it is in the interest of the public health, safety and welfare to rezone the property from Agricultural to Industrial provided, however, that the property revert back to Agricultural if the required federal and state agency approvals, permits and favorable test results have not been obtained in connection with the property and the proposed plant within eighteen (18) months of the date of adoption of this amendatory ordinance.

The reverter clause did not constitute a substantial change requiring additional notice because the fundamental character of the proposal remained unchanged; no new rights were created. See id. at 691. The amendment did not affect different landowners nor did it affect the same landowners in a different way. See id. An additional public hearing could have only resulted in repetitive statements by the same parties. See id. Nothing would have been accomplished by requiring another notice and public hearing except delay. See id.

¶ 68. Step Now also argues that the Potratz rezoning was invalid because the Town violated it own zoning ordinance when it failed to comply with Wis. Stat. § 91.77 as explicitly incorporated into its own zoning ordinance. Step Now argues that sec. 9(b) of the Town's Zoning Ordinance incorporates Wis. Stat. ch. 91 in its entirety into the Zoning Ordinance. We disagree.

¶ 69. The test of sec. 9(b) of the Zoning Ordinance is not a blanket adoption of Wis. Stat. ch. 91. Section 9(b),reads as follows:

No use which is a prohibited use under Chapter 91 of the Wisconsin Statutes, which is incorporated herein by reference, including all future amendments thereto, shall be permitted.

This does not incorporate all of ch. 91 into the ordinance; a logical read of this provision is that only the prohibited use sections of ch. 91 (portions of Wis. Stat. § 91.75 that deal with prohibited uses in an exclusive agricultural district) are incorporated. Furthermore, Step Now has not provided any authority for its contention that a legislative body's failure to provide formal Wis. Stat. § 91.77 findings justifies invalidation of the rezoning.

¶ 70. Finally, Step Now argues that because the Town issued the building permit for the ethanol plant in error, the permit is null and void. We disagree.

¶ 71. The basis for Step Now's argument is that the January 19, 2002 permit for construction of an ethanol plant was issued in error because at the time, the land was zoned Agricultural and the zoning category of the plant is Industrial. Step Now also argues that the building permit was issued in error because the permit application was incomplete; according to Step Now, sec. 21(b)(4) of the Town Zoning Ordinance requires a site plan, in duplicate, drawn to scale, showing all buildings and no site plans were submitted with the permit application.

¶ 72. The only case cited by Step Now in support of these contentions is Ledger, 146 Wis. 2d at 256. The question before the Ledger court was whether the zoning board had the legal authority to rule that a portion of a duly-enacted city rezoning ordinance was invalid and unenforceable. Id. at 260-62. That is not the case here. We decline to address issues inadequately supported by legal authority. State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992).

CONCLUSION

¶ 73. We conclude that the Potratz rezoning from Agricultural to Industrial was not illegal spot zoning. We further conclude that a land use plan is merely advisory, not mandatory. We therefore reverse this portion of the judgment and remand this to the circuit court with directions to reinstate the Town's and County's decisions.

¶ 74. However, we also conclude that the Town's failure to comply with its own notice requirements, when all statutory notice requirements were met, is insufficient to nullify the rezoning and no notice was required prior to the Town Board's hearing. Furthermore, we decide that a second Wis. Stat. § 62.23(7)(d)2 notice was not required because the application for rezoning was not substantially amended. Finally, the building permit was not issued in error. We therefore affirm this portion of the judgment.

By the Court. — Judgment affirmed in part; reversed in part and cause remanded with directions.

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       There is significant disagreement as to whether or not the Town formally adopted its Land Use Plan. Step Now argues that the Town adopted the Plan while Algoma argues that there is a genuine issue of fact as to the status of the Plan. Because of this factual dispute, it is hard to understand why all parties filed motions for summary judgment alleging no genuine issue of material facts or why this matter was resolved upon summary judgment. We assume without deciding that the Plan was, in fact, formally adopted by the Town since we conclude that even with formal adoption, the Land Use Plan is merely advisory.

       A comprehensive master plan is statutorily defined in Wis. Stat. § 66.1001(l)(a) as:
      1. For a county, a development plan that is prepared or amended under s. 59.69(2) or (3).
      2. For a city or a village, or for a town that exercises village powers under s. 60.22(3), a master plan that is adopted or amended under s. 62.23(2) or (3).
      3. For a regional planning commission, a master plan that is adopted or amended under s. 66.0309(8), (9) or (10).


source: Caselaw Access Project

author: ROGGENSACK, J.

license: Public Domain

text:
    No. 99-CV-1351
    Ann Buettner, Plaintiff-Appellant, v. Wisconsin Department of Health & Family Services and Department of Workforce Development, Defendants-Respondents. Ann Buettner, Plaintiff-Appellant, v. Wisconsin Department of Health and Family Services, Defendant-Respondent.
    No. 00-CV-305
    Court of Appeals

      No. 01-0981.

      Submitted on briefs March 14, 2002.

    Decided April 17, 2003.

    2003 WI App 90
    (Also reported in 663 N.W.2d 282.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Carol J. Wessels and Donna Thompson-Schneider of SeniorLAW of Milwaukee.

      On behalf of the defendants-respondents, the cause was submitted on the brief of James E. Doyle, attorney general, and Robert M. Hunter, assistant attorney general.
    Before Dykman, Roggensack and Lundsten, JJ.
   ROGGENSACK, J.

¶ 1. Ann Buettner appeals a circuit court order affirming the determination of the Division of Hearings and Appeals (DHA) to terminate Ann's medical assistance due to the divestment of assets. Ann argues that her husband Richard's purchase of two "balloon annuities" did not constitute a prohibited divestment under Wis. Stat. § 49.453 (1997-98). We conclude that § 49.453 required DHFS to examine whether Richard's cash transfer lacked economic substance by determining whether the asset transfer was made for less than fair market value. Because Richard's transfer of $200,000 was for less than its fair market value, DHA properly determined that the purchase of the annuities constituted a divestment of assets. Accordingly, we affirm DHA's decision to terminate Ann's medical assistance.

BACKGROUND

¶ 2. In March 1998, Richard Buettner purchased two "irrevocable annuities" for $100,000 each from Richard and Ann's adult children, Ronald Buettner and Kathleen Buettner. The "annuities" were nonassignable, unsecured financial instruments that required Ronald and Kathleen to each pay Richard fifty dollars per month for seventy-one months followed by a lump sum or "balloon" payment of $100,000 on March 1, 2004. The payment schedule was within the life expectancy of Richard. In April, Ann applied for medical assistance and DHFS, with knowledge of Richard's financial transactions, certified Ann as eligible for medical assistance effective April 1, 1998. Ann received payments for approximately one year.

¶ 3. In April 1999, Ann received notice terminating her medical assistance benefits effective May 1, 1999. DHFS determined that Richard's purchase of the two "balloon annuities" constituted a divestment of assets under Wis. Stat. § 49.453 subjecting Ann to divestment penalties. DHFS's decision was based in part on an operations memo prepared by the Department of Workforce Development in 1999 (Ops Memo 99-19) and two fair hearing decisions, MDV 30/35331 and MDV 30/35213, which considered "balloon annuities" similar to Richard's financial transactions and concluded that the annuities were prohibited divest-ments because (1) the annuitant did not receive fair market value for the assets transferred and (2) they did not require fixed periodic payments. Ann requested a fair hearing to contest DHFS's determination and the DHA affirmed the decision to terminate Ann's benefits.

¶ 4. Ann filed a petition for judicial review of the DHA's decision in Milwaukee County Circuit Court and an action for declaratory judgment in Dane County Circuit Court that Ops Memo 99-19 was void as an improperly promulgated administrative rule under Wis. Stat. § 227.01(13). Additionally, Ann alleged that DHFS's "retroactive application" of Ops Memo 99-19 violated her right to due process under the Fourteenth Amendment.

¶ 5. The circuit court consolidated the two actions for purpose of review. In August 2000, the court granted summary judgment to DHFS declaring that Ops Memo 99-19 was not an administrative rule and therefore compliance with Wisconsin ch. 227 rulemaking procedures was not required. In a separate order, the circuit court affirmed DHA's determination that under Wis. Stat. § 49.453, Richard's purchase of the two "balloon annuities" constituted a divestment of assets. The court declined to address Ann's claim that DHFS's decision to terminate her benefits based on Ops Memo 99-19 violated her right to due process. Buettner appeals.

DISCUSSION

Standard of Review.

¶ 6. The construction of Wis. Stat. § 49.453 and its application to undisputed facts is a question of law that we review de novo. See Tannler v. DHSS, 211 Wis. 2d 179, 183, 564 N.W.2d 735, 738 (1997). However, we generally accord an administrative agency's statutory interpretation one of three levels of deference: great weight, due weight or no deference. Id. at 184, 564 N.W.2d at 738; Artac v. DHFS, 2000 WI App 88, ¶ 9, 234 Wis. 2d 480, 610 N.W.2d 115. Great weight deference is warranted where:

1) the agency was charged by the legislature with the duty of administering the statute; 2) the interpretation of the agency is one of long-standing; 3) the agency employed its specialized knowledge or expertise in forming the interpretation; and 4) the agency's interpretation will provide consistency and uniformity in the application of the statute.

Tannler, 211 Wis. 2d at 184, 564 N.W.2d at 738. Due weight deference is appropriate "if the agency decision is very nearly one of first impression." Id. (citation omitted). Finally, we review the agency's decision de novo "if the case is one of first impression for the agency and the agency lacks any special expertise." Id.

¶ 7. Ann contends that the proper standard of review is de novo because the final decision to terminate her medical assistance benefits was made by DHA, rather than DHFS. Ann relies on Roehl Transport Inc. v. DHA, 213 Wis. 2d 452, 570 N.W.2d 864 (Ct. App. 1997), and its progeny for the proposition that we grant no deference to a decision by DHA because DHA is not "a line agency charged with the administration and enforcement of the statutes involved." Roehl, 213 Wis. 2d at 460, 570 N.W.2d at 868. In Artac, we followed Roehl and reviewed de novo a decision by DHA to deny medical assistance benefits because DHA was not a "line agency" and "[did] not have experience administering the [medical assistance] program." Artac, 2000 WI App 88 at ¶ 13. Buettner asserts that under Artac, the appropriate level of deference in this case is de novo.

¶ 8. DHFS, in contrast, argues that "at least due weight" deference must be accorded DHA's decision to terminate Ann's medical assistance because the decision was based on DHFS's long-standing interpretation of Wis. Stat. § 49.453 as detailed in Ops Memo 99-19 and the attached decisions MDV-30/35213 and MDV-30/35331. Stated differently, DHFS contends that Artac does not apply because we are in effect reviewing DHFS's interpretation of § 49.453. DHFS relates this case to Sea View Estates Beach Club, Inc. v. DNR, 223 Wis. 2d 138, 588 N.W.2d 667 (Ct. App. 1998). In Sea View, we granted great weight deference to a decision by the DHA to issue Sea View a pier permit. We concluded that because the Department of Natural Resources (DNR) expressly adopted the hearing examiner's decision as its own pursuant to Wis. Stat. § 227.46(3)(a), great weight deference was warranted because the DNR had expertise in regulating piers and had been charged by the legislature with the duty to enforce the laws regulating piers in navigable waters. Sea View, 223 Wis. 2d at 149, 588 N.W.2d at 672. Thus, we distinguished Roehl on the basis that the DNR adopted the hearing examiner's decision as its own. That is not the case here. As the circuit court noted, DHFS did not adopt DHA's decision to terminate Ann's medical assistance benefits; this remains an administrative review of a DHA decision interpreting the "extremely complex" medical assistance statutes. See Tannler, 211 Wis. 2d at 191, 564 N.W.2d at 741 (Abrahamson, C.J., concurring). Accordingly, we apply Artac and conclude that the proper standard of review is de novo.

¶ 9. The parties agree that whether Ops Memo 99-19 is void as an improperly promulgated administrative rule is a question of law that we review de novo. See Schoolway Transp. Co. v. DOT, 72 Wis. 2d 223, 232, 240 N.W.2d 403, 408 (1976).

Wisconsin Stat. § 49.453.

¶ 10. Medical assistance is a joint federal and state program aimed at ensuring medical care for those who cannot pay for their own care. Tannler, 211 Wis. 2d at 190, 564 N.W.2d at 741. Accordingly, to be eligible for medical assistance in Wisconsin, certain financial requirements must be met. See Wis. Stat. ch. 49. Because individuals are generally not eligible unless they have limited assets, those seeking medical assistance may need to spend down assets before they can qualify. Tannler, 211 Wis. 2d at 191-92, 564 N.W.2d at 741 (Abrahamson, C.J., concurring). However, under Wis. Stat. § 49.453, individuals become ineligible for certain medical assistance benefits if they transfer assets in a manner prohibited by the statute. The purpose of prohibiting certain types of asset transfers is to prevent those who could afford to pay for their own medical needs from receiving medical assistance. Id. at 190, 564 N.W.2d at 741.

¶ 11. The relevant Wisconsin statutory provisions pertaining to Richard's asset transfer are Wis. Stat. § 49.453(2)(a) and (4). Section 49.453(2)(a), the general divestment provision, provides:

(2) Ineligibility FOR medical assistance for Certain services, (a) Institutionalized individuals. Except as provided in sub. (8), if an institutionalized individual or his or her spouse, or another person acting on behalf of the institutionalized individual or his or her spouse, transfers assets for less than fair market value on or after the institutionalized individual's look-back date, the institutionalized individual is ineligible for medical assistance for the following services for the period specified under sub. (3):
1. For nursing facility services.
2. For a level of care in a medical institution equivalent to that of a nursing facility.

(Emphasis added). Section 49.453(4)(a) addresses divestment of assets to irrevocable annuities and provides:

(4) Irrevocable annuities, (a) For the purposes of sub. (2), whenever a covered individual or his or her spouse, or another person acting on behalf of the covered individual or his or her spouse, transfers assets to an irrevocable annuity in an amount that exceeds the expected value of the benefit, the covered individual or his or her spouse transfers assets for less than fair market value.

¶ 12. Ann argues that Richard's purchase of the "balloon annuities" was not a divestment of assets under Wis. Stat. § 49.453 because the financial instruments comply with § 49.453(4)(a), which she contends determines whether divestment has occurred when the transfer of assets is to an annuity. Stated differently, Ann asserts that because Richard purchased an irrevocable annuity, the "fair market value" requirement of subsec. (2)(a) is inapplicable. Under subsec. (4)(a), the divestment penalty applies if the amount transferred exceeds the "expected value of the benefit." Section 49.453(l)(c) defines "expected value of the benefit" as "the amount that an irrevocable annuity will pay to the annuitant during his or her expected lifetime." Accordingly, Ann asserts that a prohibited divestment has not occurred because the asset transfer did not exceed the expected value of the benefit; the expected return on the two annuities is $207,100, which amounts to $7100 more than the value transferred. Therefore, Ann contends that DHA erred in its determination that Richard's purchase of the two annuities constituted a prohibited divestment of assets. We disagree.

¶ 13. The purpose of all statutory construction is to discern the intent of the legislature. State v. Setagord, 211 Wis. 2d 397, 406, 565 N.W.2d 506, 509 (1997). We give the language of an unambiguous statute its ordinary meaning. Id. Applying this test to Wis. Stat. § 49.453, we conclude that the underlying determination of whether an asset transfer results in medical assistance ineligibility is whether the individual or someone acting on his or her behalf transferred assets for less than the fair market value of the income or asset. See § 49.453(2). Subsection (4) merely provides one way in which the transfer of assets to an annuity may render an individual ineligible for medical assistance. As DHFS points out, subsec. (4) does not state that a transfer has been made for fair market value under subsec. (2) (a) so long as the asset transfer does not exceed the value of the benefit. Rather, it simply provides an additional requirement that is applicable only to irrevocable annuities. Thus, § 49.453 required DHFS to examine whether Richard's cash transfer lacked economic substance by determining whether the asset transfer was made for less than fair market value of the asset per subsec. (2)(a).

¶ 14. Ann does not address Wis. Stat. § 49.453(2)(a), but chooses instead to buttress her argument with the "cardinal rule" of statutory construction that when two statutes apply to the same subject, the more specific statutory provision controls the matter. She concludes, therefore, that because the financial instruments are annuities that comply with specific provisions of subsec. (4), she remains eligible for medical assistance. We agree with Ann's recitation of this well-settled rule of statutory construction. However, it is also well-settled that the rule applies only when there is a conflict between the two statutory provisions. Jones v. State, 226 Wis. 2d 565, 576, 594 N.W.2d 738, 743 (1999). The rule also states that "conflicts between different statutes, by implication or otherwise, are not favored and will not be held to exist if they may otherwise be reasonably construed." Id. (citation omitted). Ann does not argue that subsecs. (2) (a) and (4) conflict, she asserts only that subsec. (2) (a) does not apply. We do not agree. There is nothing in the plain language of § 49.453 to suggest that provisions (2)(a) and (4) are mutually exclusive or that the purchase of an irrevocable annuity constitutes a divestment only if the annuitant receives an amount less than her initial investment. Section 49.453 requires courts to look to the substance of an "annuity" transaction rather than its form; subsec. (4) provides one way to do this. Thus, we construe § 49.453 to require irrevocable annuity transactions, made on or after an individual's look-back date, to satisfy both subsec. (2) (a) and (4) in order for the institutionalized person to secure or retain medical assistance eligibility.

¶ 15. Ann additionally challenges this construction by pointing to subsequent legislation that amended Wis. Stat. § 49.453(4) so that fixed rate irrevocable annuities are now required to have equal periodic payments. See 1999 Wis. Act 9, § 1430-33. She argues that if under the previous version of the statute, the purchase of an irrevocable "balloon annuity" constituted a divestment, the legislature would not have needed to amend the statute. We do not find this argument persuasive.

¶ 16. Wisconsin Stat. § 49.453(4)(a) (2001-02), as amended, provides:

(4) IRREVOCABLE ANNUITIES, PROMISSORY NOTES AND SIMILAR transfers, (a) For the purposes of sub. (2), whenever a covered individual or his or her spouse, or another person acting on behalf of the covered individual or his or her spouse, transfers assets to an irrevocable annuity, or transfers assets by promissory note or similar instrument, in an amount that exceeds the expected value of the benefit, the covered individual or his or her spouse transfers assets for less than fair market value.
A transfer to an annuity, or a transfer by promissory note or similar instrument, is not in excess of the expected value only if all of the following are true:
1. The periodic payments back to the transferor include principal and interest that, at the time that the transfer is made, is at least at one of the following:
a. For an annuity, promissory note or similar instrument that is not specified under subd. 1. b. or par. (am), the applicable federal rate required under section 1274(d) of the Internal Revenue Code, as defined in s. 71.01(6).
b. For an annuity with a guaranteed life payment, the appropriate average of the applicable federal rates based on the expected length of the annuity minus 1.5%.
2. The terms of the instrument provide for a payment schedule that includes equal periodic payments, except that payments may be unequal if the interest payments are tied to an interest rate and the inequality is caused exclusively by fluctuations in that rate.

We agree that there exists an inference that the legislature intends to create a new right or withdraw an existing right when it amends a statute. Lang v. Lang, 161 Wis. 2d 210, 220, 467 N.W.2d 772, 776 (1991). Additionally, we agree with Ann that 1999 Wis. Act 9, § 1430-33 explains the requirements of § 49.453(4) to include, for example, an express requirement that an annuity provide for: (1) equal payments, (2) periodic payments that include both principal and interest and (3) interest that accrues at a particular rate. We do not agree, however, that the legislature's decision to state these requirements in the statute suggests that, prior to the amendment, transfers with no legitimate underlying economic substance were permitted by the statute. We note that the text of the amendment suggests that it was intended to clarify the meaning of "exceeds the expected value of the benefit" rather than substantively altering the requirements of § 49.453. See ProCD, Inc. v. Zeidenberg, 86 F.3d 1447, 1452 (7th Cir. 1996) ("To propose a change in a law's text is not necessarily to propose a change in the law's effect. New words may be designed to fortify the current rule with a more precise text that curtails uncertainty."). Although the statute now has specific requirements with which an annuity must comply under § 49.453, the initial question under § 49.453 remains whether the transfer of assets to the annuity was made for less than fair market value. See Wis. Stat. § 49.453(2)(a).

¶ 17. Additionally, our construction is consistent with legislative intent. The purpose of medical assistance is to ensure medical care for those unable to pay for the care they need. Tannler, 211 Wis. 2d at 190, 564 N.W.2d at 741. The divestment provisions and the income and asset eligibility rules are intended to ensure that only those persons receive assistance. Subsection (4) allows the elderly to retain this choice so long as the amount transferred does not "exceed the expected value of the benefit." However, to allow medical assistance eligibility by the divesting of assets to family members for no economic advantage would contradict the basic purpose of the statute. See State v. Clausen, 105 Wis. 2d 231, 244, 313 N.W.2d 819, 825 (1982) ("[A] statute should be construed to give effect to its leading idea, and the entire statute should be brought into harmony with the statute's purpose."). Accordingly, the annuity must also meet the "fair market value" requirement of subsec. (2)(a).

Fair Market Value.

¶ 18. Wisconsin Stat. ch. 47 does not define "fair market value." However, the Medical Assistance Handbook drafted by DHFS to assist county economic support workers who administer the medical assistance program defines "fair market value" as "an estimate of the value of the asset, if sold at the prevailing [market] price at the time it was actually transferred." In addition, prior case law has defined "fair market value" or "full value of property" as: "the amount it will sell for upon arms-length negotiation in the open market, between an owner willing but not obliged to sell, and a buyer willing but not obliged to buy." City of West Bend v. Continental TV Fund Ltd. P'ship, 193 Wis. 2d 481, 486, 535 N.W.2d 24, 26 (Ct. App. 1995) (citation omitted).

¶ 19. Accordingly, DHA found that Richard's $200,000 cash transfer for the two annuities was made for less than fair market value. The examiner noted that the annuities were nonassignable and unsecured, and were private financial instruments that paid a rate of return of less than one percent, with exceptionally low monthly income payments of fifty dollars per annuity. Additionally, it noted that the financial transaction transpired between the Buettners and their two children and was clearly not an "arms-length transaction." We agree with DHA that "[no] person of sound mind would give [$200,000] to an unrelated third party in exchange for the unsecured, low yield, and non-alienable promises in the instant document." Therefore, we conclude that DHA properly determined that Richard's purchase of the two annuities constituted a prohibited divestment of assets.

¶ 20. Ann challenges DHA's finding by asserting that the burden to prove that the asset transfer was made for less than fair market value rests with the county and because the "economic support specialist. . . could not provide any evidence as to the fair market value of the transactions," there is insufficient factual basis to determine that the asset transfer was made for less than fair market value. In addition, Ann argues that DHFS is obligated to set limits or criteria for valuing her financial instrument and in the absence of such criteria, DHFS is barred from proving that the annuity has less fair market value than the cash used to acquire it. We disagree. It is true that DHFS must prove that the transfers were made for less than fair market value. See Wis. Stat. § 227.57(6). However, DHFS has satisfied this burden. Under these circumstances, an unsecured total transfer of $200,000 to a related party in exchange for payments of fifty dollars per month per annuity, is a transfer for less than fair market value. In addition, DHFS is under no obligation to develop criteria for each of the thousands of different financial instruments that may be devised. Ann provides no evidence, legal authority or persuasive argument to rebut this conclusion.

¶ 21. Ann also challenges DHA's finding by again pointing to the 1999 amendment to Wis. Stat. § 49.453 as "proof1 that prior to the amendment, a cash transfer to an annuity constituted a divestment only if the amount transferred "exceeds the expected value of the benefit." See § 49.453(4). We again disagree. For purposes of determining whether the transfer constituted a prohibited divestment, it is immaterial whether the amendment was a clarification or substantive change. Section 49.453, with or without the amendment, requires Ann to show that she received fair market value for the $200,000 cash transfer. Because she failed to do this, § 49.453(2)(a) renders her ineligible to receive medical assistance for institutionalized care.

Operations Memo 99-19.

¶ 22. DHFS's decision to terminate Ann's medical assistance benefits was based in part on Ops Memo 99-19 and the attached fair hearing decisions, MDV 30/35331 and MDV 30/35213, which construed Wis. Stat. § 49.453 to prohibit financial instruments with inadequate interest rates and "balloon" payments. Because the 1999 amendment to § 49.453 expressly added "equal payment" and interest rate requirements, Ann argues that Ops Memo 99-19 constituted an administrative rule, which was not properly promulgated under Wis. Stat. § 227.10 and should therefore be declared invalid. Ann also argues that DHFS "retroactively" applied the new requirements of Ops Memo 99-19 to Richard's transaction, which resulted in the termination of her benefits, violating her right to "fair warning" under the Due Process Clause of the Fourteenth Amendment.

¶ 23. We have already concluded that Wis. Stat. § 49.453 prohibited Ann's transfer. This prohibition results from application of the plain language of the statute, rather than any interpretation or statement of policy contained within Ops Memo 99-19. Accordingly, because § 49.453(2) prohibits the transaction, with or without Ops Memo 99-19, we need not decide whether DHFS improperly relied on the memo.

¶ 24. With regard to Ann's due process argument, Ann cites Elections Board v. WMC, 227 Wis. 2d 650, 597 N.W.2d 721 (1999), for the proposition that "a deprivation of the due process right of fair warning can occur . . . from unforeseeable and retroactive interpretation of that statutory language." Id. at 679-80, 597 N.W.2d at 735. While this may be true, Ann ignores a critical difference between Elections Board and the facts here. In Elections Board, the Election Board for the State of Wisconsin attempted to apply a new, context-based standard to several advertisements after their broadcast. The court held that "it would be profoundly unfair to apply a previously unarticulated test, retroactively, to these defendants." Id. at 679, 597 N.W.2d at 735 (emphasis added). In contrast, DHFS reviewed Ann's case, determined that the purchase of the annuities constituted a prohibited divestment under Wis. Stat. § 49.453 and terminated Ann's future medical assistance benefits. Unlike Elections Board, DHFS's decision was not based on a "previously unar-ticulated test." The fair market value requirement of subsec. (2) (a) prohibited transactions with no economic substance both when DHFS certified Ann for medical assistance and when she received notice terminating her benefits. Additionally, we note that DHFS's decision had only prospective application; DHFS did not attempt to recoup monies already paid for Ann's care. Accordingly, we conclude that DHFS's decision to terminate Ann's future medical assistance did not violate the Due Process Clause.

CONCLUSION

¶ 25. We conclude that Wis. Stat. § 49.453 required DHFS to examine whether Richard's cash transfer lacked economic substance by determining whether the asset transfer was made for less than fair market value. Because Richard's transfer of $200,000 was for less than its fair market value, DHA properly determined that the purchase of the annuities constituted a divestment of assets. Accordingly, we affirm DHA's decision to terminate Ann's medical assistance.

By the Court. — Order affirmed.

       All further references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted.

       The Department of Workforce Development (DWD) prepared Ops Memo 99-19 pursuant to Wis. Stat. § 49.82(1) which directs DWD to "advise all county officers charged with the administration of requirements relating to public assistance programs ... and render all possible assistance in securing compliance therewith, including the preparation of necessary blanks and reports."

       BWI Operations Memo 99-19 states in relevant part:
      The determining factor in deciding whether a transfer of assets is a divestment is whether the applicant/recipient received fair market value for the transfer.
      In an effort to assure uniformity in the application of current policy on the treatment of annuities and promissory notes, the Department is disseminating 2 recent fair hearing decisions: MDV 30/35331 and MDV 30/35213. These are decisions from the Department of Administration's Division of Hearings and Appeals that provide guidance to local agency staff to determine when a promissory note or annuity is divestment.
      In a section entitled "REVIEWS" the memo provides:
      As mentioned under "Effective Date," the policy described in this memo has existed since 10/01/93. If you are conducting a review for a case where the policy was not applied as described in this memo, apply the policy now. If, in applying the policy, you determine the recipient is no longer MA eligible, (1) provide regular timely notice of discontinuance and (2) do not pursue recoupment.

       As an alternative ground for its decision to terminate Ann's medical assistance benefits, the DHA examiner concluded that Wis. Stat. § 49.453(4) was not applicable because the financial instruments at issue were not "annuities" as contemplated by the statute. The circuit court likewise engaged in a thoughtful analysis regarding the character of the instruments and concluded that because the payments were not equal, the instruments were not annuities. However, because we conclude that subsec. (2) (a) is applicable in the context of "irrevocable annuities," and because Richard's transfer was not made at fair market value, we need not decide whether the financial instrument were in fact annuities.


author: DEININGER, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Isace A. Whiting, Defendant-Appellant.
    Court of Appeals

      No. 02-1721-CR.

      Submitted on briefs December 9, 2002.

      Decided April 17, 2003.

    2003 WI App 101
    (Also reported in 663 N.W.2d 299.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of R. Michael Waterman of Mudge, Porter, Lundeen & Seguin, S.C., Hudson.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Edwin J. Hughes, assistant attorney general, and James E. Doyle, attorney general.
    Before Roggensack, Deininger and Lundsten, JJ.
   DEININGER, J.

¶ 1. Isace Whiting appeals a conviction for possession of methamphetamine. Whiting claims the circuit court erred by not granting his motion to suppress evidence seized from his residence after officers executed a search warrant without first knocking and announcing their presence. We conclude that the circuit court should not have denied Whiting's motion to suppress without hearing evidence regarding the circumstances which existed at the time of the no-knock entry.

¶ 2. We therefore reverse Whiting's conviction and remand to the circuit court for an evidentiary hearing. If after taking evidence the circuit court concludes that the officers had, at the time of their entry, "a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or . . . would inhibit the effective investigation of the crime," Richards v. Wisconsin, 520 U.S. 385, 394 (1997), the court shall reinstate the conviction. If the court concludes otherwise, however, it must grant Whiting's suppression motion.

BACKGROUND

¶ 3. A sergeant with the Dunn County Sheriffs Department received information from a "citizen informant" that two men from Washington (state) had "been coming to Whiting's residence every other weekend . . . and using it as a distribution point for methamphetamine." Based on this and other information, the sergeant obtained a search warrant for Whiting's residence. Other averments in the warrant application included: (1) Whiting told the informant that, on their last trip, the Washington men had "brought approximately five to six pounds of methamphetamine"; (2) the informant had observed a "9mm handgun" in the "belt-line of one of the individuals"; (3) Whiting told the informant that "they carry a shotgun in the car"; and (4) the informant told the sergeant that "the boys from Washington were in town" on the date of the warrant application, that they were making methamphetamine drops and would be returning to Whiting's home, and that they would stay "until the drugs are gone."

¶ 4. The sergeant "specifically" requested in the warrant application "that the court authorize a 'no-knock' search warrant due to the danger to the officers." The warrant as issued, however, contained no such authorization. There is no dispute that when officers executed the warrant later that night, they did not knock and announce their presence before entering Whiting's residence. The search, conducted about four hours after the warrant was issued, yielded a quantity of methamphetamine and marijuana, along with various paraphernalia, scales, and apparent drug packaging materials.

¶ 5. The State charged Whiting with possession of xnethamphetamine and two other drug offenses. He moved to suppress the evidence seized from his home, asserting that the officers' no-knock entry violated his rights under the Fourth Amendment. At a short initial hearing on Whiting's motion, the court heard no evidence but instructed the parties to submit briefs on the issue of whether the lack of no-knock authorization in the warrant was fatal, given that the warrant application had requested such authorization and contained averments that would arguably support a no-knock entry.

¶ 6. Following submission of the parties' briefs, the court permitted counsel to present oral arguments and it then rendered its decision denying the motion, again without taking evidence. The court concluded as follows:

[C]learly here the affidavit set forth a reasonable basis that would justify a no-knock situation. Now, does that mean it's automatic? I don't believe that it's ... automatic. But clearly if under all the facts and circumstances — the information in the affidavit plus the circumstances of that evening when this warrant was executed were consistent with that, clearly I think would be reasonable and it was reasonable under all these facts and circumstances.
And, again, I'm limiting my decision to the information that's in this record, namely the sworn affidavit of [the sergeant]. And I think that's sufficient to justify in this case the no-knock entry.

¶ 7. Following the denial of his suppression motion, Whiting entered into a plea agreement with the State whereby he pled guilty to possessing methamphetamine and the other charges were dismissed. He appeals the judgment of conviction, citing as error the court's denial of his motion to suppress.

ANALYSIS

¶ 8. " 'Whether searches and seizures pass constitutional muster is a question of law,'" which we review without deference to the circuit court. State v. Meyer, 216 Wis. 2d 729, 746, 576 N.W.2d 260 (1998) (citation omitted). The "knock and announce" rule requires police, before forcibly entering a residence, to announce their identity and purpose and to momentarily wait for the occupants to refuse their admittance or open the door. State v. Henderson, 2001 WI 97, ¶ 20, 245 Wis. 2d 345, 629 N.W.2d 613, cert. denied, 534 U.S. 1033 (2001). The Supreme Court has held that the common law "knock and announce" principle is a part of the reasonableness inquiry under the Fourth Amendment. Wilson v. Arkansas, 514 U.S. 927, 930 (1995). The Court noted, however, that announcement is not required for every entry, and exceptions exist when legitimate law enforcement interests sufficiently outweigh a citizen's privacy interest. See id. at 934.

¶ 9. The Court subsequently established in Richards v. Wisconsin, 520 U.S. 385 (1997), a standard for determining when law enforcement's interest in entering unannounced outweighs a citizen's interest in having police announce their presence when executing a warrant.

In order to justify a "no-knock" entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence.

Id. at 394. The court further explained that "the reasonableness of the officers' decision [to execute a no-knock entry] . . . must be evaluated as of the time they entered" the premises to be searched. Id. at 395.

¶ 10. The Wisconsin Supreme Court has also emphasized that "the reasonableness of an officer's decision to enter without knocking and announcing is evaluated by a reviewing court based upon information known to the officer at the time of entry." Henderson, 245 Wis. 2d 345, ¶ 27. The court explained that Richards and another U.S. Supreme Court precedent

yield a number of fundamental principles: 1) the rule of announcement is a requirement of the Fourth Amendment's reasonableness clause, not its warrant clause; 2) the validity of a no-knock execution of a search warrant is subject to after-the-fact judicial review for constitutional reasonableness, which is determined by reference to the circumstances as they existed at the time of the entry; and 3) the manner in which a search warrant is executed is not subject to the requirements of the warrant clause and therefore does not require prior judicial authorization.

Id., ¶ 29 (emphasis added).

¶ 11. Whiting argues, therefore, that the trial court erred in denying his motion to suppress without receiving any evidence as to the circumstances existing at the time of execution of the warrant which led the officers to dispense with the rule of announcement. Whiting also contends that the facts set forth in the sergeant's affidavit were insufficient in any event to support the requisite reasonable suspicion to effect a no-knock entry. We agree with Whiting's first contention but not his second.

¶ 12. The sergeant's affidavit establishes that two men, one of whom was recently observed by a reliable informant to have been armed with a handgun, and both of whom may have had access to a shotgun, were staying that weekend at the Whiting residence. The men were expected to return there on the evening the warrant was issued. Based on their past activities as reported to the sergeant, the pair could well be in possession of a significant quantity of methamphetamine. These circumstances, if unchanged at the time of the entry, are more than sufficient to provide the officers a "reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence." Richards, 520 U.S. at 394.

¶ 13. The defect in the present record is not, therefore, a lack of information to support a reasonable suspicion of danger or futility in an announced entry, but the failure of the State to establish that officers had no additional information at the time of entry that would have negated the circumstances set forth in the warrant application. As the supreme court explained in Meyer:

The reasonableness of an officer's decision to enter a premise without first knocking and announcing his or her presence must be evaluated by a reviewing court as of the time of the entry. Therefore, even if the particular facts initially available to an officer provide reasonable suspicion of exigent circumstances, that reasonable suspicion may be negated where additional facts are revealed prior the execution of the search warrant that would negate an officer's earlier suspicion of exigent circumstances. Cf. Cleveland, 118 Wis. 2d at 627 (Where a no-knock warrant has been issued "[cjircum-stances which justify noncompliance with the rule of announcement... might change .. . before the officer's entry.").

Meyer, 216 Wis. 2d at 753 (citation omitted) (emphasis added).

¶ 14. We therefore conclude that the circuit court erred in upholding the no-knock entry without ascertaining whether the circumstances described in the warrant application had changed because of additional facts known to the officers at the time they executed the warrant. It would have been a simple matter for the State to present testimony from an officer to establish that the warrant was executed at a time when the officers knew or reasonably believed the Washington men were present in Whiting's home, if that was in fact the case. The record suggests that the State was prepared to present such testimony at the initial hearing on Whiting's motion, but the court apparently did not deem an evidentiary hearing necessary. It was, however, and we remand so that State may present evidence regarding the circumstances at the time of entry.

¶ 15. The State acknowledges in a footnote that we may conclude a remand for an evidentiary hearing is in order, but it presents two arguments why an eviden-tiary hearing is not necessary in this case. First, relying on State v. Eason, 2001 WI 98, 245 Wis. 2d 206, 629 N.W.2d 625, it argues that a court may uphold a no-knock entry as reasonable based only on information set forth in a warrant application. Second, the State posits that police would not have executed the warrant "until they had reason to believe that the individuals from Washington were in fact present in the Whiting residence," and that we should make this inference because the two men were indeed arrested in Whiting's residence after the entry. We reject both of the State's contentions.

¶ 16. Contrary to the State's contention, we do not read Eason as holding that if a warrant application contains sufficient justification for a no-knock entry, the State may be excused from presenting evidence that officers had no cause to believe those circumstances had changed at the time of entry. Eason dealt with a search warrant that had authorized a no-knock entry. The circuit court and this court both concluded that the warrant application did not contain sufficient facts to provide the requisite reasonable suspicion that would justify dispensing with the rule of announcement. Id., ¶¶ 7-8. The paragraph of the supreme court's opinion on which the State relies is part of the court's discussion of the standard applicable to its review of that determination. Id., ¶ 10. Because no findings of fact were at issue, the supreme court concluded that its review was de novo, id., ¶ 11, and its ultimate conclusion was that "the affidavit was insufficient to establish reasonable suspicion and, thus, the Commissioner erred in issuing a no-knock warrant," id., ¶ 26 (footnote omitted).

¶ 17. The question before the supreme court in Eason dealt only with the sufficiency of the warrant application itself and the consequences which should flow from the officers' good faith belief that they had judicial authorization to effect a no-knock entry. The court's ultimate conclusion was that "because the police officers acted in objectively reasonable reliance upon the search warrant, which had been issued by a detached and neutral magistrate, the laudable purpose of the exclusionary rule — deterring police from making illegal searches and seizures — would not be furthered by applying the exclusionary rule." Id., ¶ 2. It appears that no argument was made in Eason that, notwithstanding the officers' good faith reliance on the warrant, the State was obligated to establish that the officers had not acquired information following its issuance that would have negated the circumstances described in the warrant application.

¶ 18. In short, the supreme court did not address in Eason the claim Whiting raises in this appeal. Given the court's unequivocal statements in Meyer and Henderson, and those of the U.S. Supreme Court in Richards, we conclude that when the reasonableness of a no-knock entry is challenged, the State must present evidence of the circumstances known or reasonably suspected by police to exist at the time of warrant execution that would justify a no-knock entry. If those circumstances were described in the warrant application, the State's evidence might consist of nothing more than testimony by an officer that nothing had come to the officers' attention to lead them to believe that circumstances had changed. If, however, the warrant application is silent or lacking in regard to circumstances which might render an announced entry dangerous or futile, the State may still justify a no-knock entry by showing that officers possessed the requisite reasonable suspicion at the time of entry. See Henderson, 245 Wis. 2d 345, ¶ 3.

¶ 19. Next, because the Washington men were "the primary focus of the investigation," and because they were actually found in the Whiting residence when the warrant was executed, the State would have this court infer that reasonable suspicion for a no-knock entry must have existed at the time of entry. The fact that a given search produces what was sought, however, cannot be used to establish the pre-search existence of the requisite knowledge or belief to justify the search, or in this case, the manner of its execution. Cf. State v. Ford, 211 Wis. 2d 741, 750, 565 N.W.2d 286 (Ct. App. 1997) ("The fact that the officer's suspicion was confirmed by evidence found during the unauthorized search cannot be used after the fact to bootstrap that suspicion into probable cause for an arrest.").

¶ 20. Rather, we conclude that once a defendant has moved to suppress evidence because officers did not knock and announce their presence before executing a search warrant, the State must present evidence to establish the reasonable suspicion required for the no-knock entry. See Meyer, 216 Wis. 2d at 753 ("[R]easonable suspicion . . . must be shown by the particular facts in each case."). Neither this court nor the circuit court may "fill in the blanks" and relieve the State of its obligation to show that, under the circumstances existing at the time of entry, a no-knock entry was reasonable and thus permitted under the Fourth Amendment.

¶ 21. We therefore remand to permit the State to present testimony regarding the circumstances at the time of execution of the search warrant, and for Whiting to cross-examine and present countering evidence. If after hearing the relevant testimony, the court concludes that the officers had, at the time of entry, "a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or . . . would inhibit the effective investigation of the crime," Richards, 520 U.S. at 394, the court shall reinstate the conviction. See Meyer, 216 Wis. 2d at 754. If the court concludes otherwise, however, it must grant Whiting's suppression motion.

CONCLUSION

¶ 22. We reverse the appealed judgment and remand to the circuit court for an evidentiary hearing as directed above.

By the Court. — Judgment reversed and cause remanded with directions.

       Whiting does not challenge the issuance of the search warrant.

       During argument, while discussing the supreme court's decision in State v. Henderson, 2001 WI 97, 245 Wis. 2d 345, 629 N.W.2d 613, cert. denied, 534 U.S. 1033 (2001), the prosecutor noted that "we did have witnesses planned to be here [at the initial hearing on the motion to suppress]. And the Court, I believe on that morning, said we would not be holding an evidentiary hearing."

       Notwithstanding a plea of guilty or no contest, a defendant may appeal a judgment of conviction in order to challenge the denial of a motion to suppress evidence. See Wis. Stat. § 971.31(10) (2001-02). All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       Even in the paragraph from Eason on which the State relies, the court noted that "the reasonableness of the police officers' decision to effectuate a no-knock entry is usually evaluated as of the time of entry." State v. Eason, 2001 WI 98, ¶ 10, 245 Wis. 2d 206, 629 N.W.2d 625.

       At the second hearing on Whiting's motion, defense counsel told the court that he had been "prepared to present evidence [at the first hearing], and I was prepared to go on that date with cross-examination of witnesses."