author: PER CURIAM.

text:
    State of Wisconsin ex rel. Nathaniel A. Lindell, Petitioner-Appellant, v. Jon E. Litscher, S. M. Puckett and Gary R. McCaughtry, Respondents-Respondents.
    Court of Appeals

      No. 02-1389.

      Submitted on briefs October 11, 2002.

    Decided January 30, 2003.

    2003 WI App 36
    (Also reported in 659 N.W.2d 413.)

      On behalf of the petitioner-appellant, the cause was submitted on the motionof Nathaniel A. Lindell, pro se.
    On behalf of the respondents-respondents, the cause was submitted on the response oí John J. Glinski, assistant attorney general, and James E. Doyle, attorney general.
    Before Dykman, Roggensack and Deininger, JJ.
   PER CURIAM.

¶ 1. Nathaniel Lindell moves for reconsideration of this court's form order dated June 14, 2002, which required Lindell to prepay part of the filing fee and directed the agency having control of Lindell's trust fund account to freeze the account until it has sufficient funds to pay the outstanding balance on Lindell's filing fee. Lindell contends that the order, and Wis. Stat. § 814.29(lm) (1999-2000), on which the order is based, violate his rights to court access, religious freedom, freedom of association, the necessary comforts of life, and equal protection. Because the validity of orders freezing prisoner trust account statements is a recurring issue, we asked the respondents to address Lindell's claims, and allowed Lindell to reply. Having considered the arguments presented, we are persuaded that § 814.29(lm) survives constitutional scrutiny.

Access to Courts

¶ 2. Lindell claims that freezing the trust accounts of indigent prisoners until they have paid their filing fees denies access to the courts for potentially meritorious claims by requiring inmates to chose between daily necessities and legal rights. As we have previously explained:

The First Amendment protects the rights of citizens to "petition the Government for a redress of grievances." U.S. Const, amend. I. Our state constitution similarly guarantees the right "to petition the government." Wis. Const, art. I, § 4. In conjunction with due process requirements, the right to petition for redress of grievances requires that people, including prison inmates, be given meaningful access to the courts to pursue civil claims. See, e.g., Crowder v. Lash, 687 F.2d 966, 1004 n.6 (7th Cir. 1982) (citing the First and Fourteenth Amendments as the basis for a prisoner's federal right of access to courts). Article I, § 9 of the Wisconsin Constitution additionally provides:
Every person is entitled to a certain remedy in the laws for all injuries, or wrongs which he may receive in his person, property or character; he ought to obtain justice freely, and without being obligated to purchase it, completely and without denial, promptly and without delay, con-formably to the laws.
The right to have access to courts "is neither absolute nor unconditional," however. Village of Tigerton v. Minniecheske, 211 Wis. 2d 777, 785, 565 N.W.2d 586 (Ct. App. 1997). For instance, the right may be limited on a case-by-case basis in response to a pattern of frivolous litigation. See id. Furthermore, the right is not violated by requiring a civil litigant to pay a filing fee, unless the litigant's inability to pay the fee would prevent him from advancing a matter in which some constitutionally recognized fundamental interest is implicated. See United States v. Kras, 409 U.S. 434 (1973) (reversing waiver of prepayment of filing fee in bankruptcy action); Ortwein v. Schwab, 410 U.S. 656 (1973) (approving refusal to waive filing fee for action to challenge reduction of welfare benefits); cf. M.L.B. v. S.L.J., 519 U.S. 102 (1996) (holding that a state may not condition appeals from the termination of a person's parental rights on the ability to pay record preparation fees); Boddie v. Connecticut, 401 U.S. 371 (1971) (mandating the waiver of filing fees for indigent persons seeking divorce). A litigant's right to initiate in forma pauperis, that is, without the prepayment of fees, in any civil matter which does not implicate a fundamental right, stems from a legislatively created privilege, not a constitutionally guaranteed right.

State ex rel. Khan v. Sullivan, 2000 WI App 109, ¶¶ 5-6, 235 Wis. 2d 260, 613 N.W.2d 203 (footnote omitted).

¶ 3. The statutory scheme surrounding Wis. Stat. §§ 801.02(7)(d) and 814.29(lm)(c) takes into account an indigent inmate's right to advance litigation in support of a fundamental right by excluding from the definition of those "prisoners" to whom the provisions apply any inmate who is seeking relief from, among other things, a sexually violent person commitment, a judgment terminating parental rights, a judgment of conviction or sentence of a court, or a mental commitment. See Wis. Stat. § 801.02(7)(a)2. Section 801.02(7)(d) also permits an indigent prisoner to file suit without the prepayment of the filing fee, even if he has filed three or more frivolous suits in the past, if he "is in imminent danger of serious physical injury." Therefore, Lindell cannot successfully advance a facial challenge to the statute on the grounds that it bars all indigent inmates the right to vindicate their fundamental rights.

¶ 4. Nor can Lindell successfully advance an as-applied challenge on the issue of access to the courts, because he has not alleged that he has any fundamental interest at stake in the present litigation, and we do not see any such interest present in his attempt to obtain certain prison documents by mandamus. We conclude the legislature's decision not to extend to prisoners the privilege of proceeding without the prepayment of fees in routine civil cases does not violate the constitutional right to court access. LindeU's ability to proceed by having deductions for the filing fee made from his prison account provides him meaningful access to the courts.

Freedom of Religion, Freedom of Association, and Necessary Comforts of Life

¶ 5. In related arguments, Lindell claims that freezing his trust fund account prevents him from buying paper, envelopes, postage stamps, deodorant, chapstick, lotion, soap, shampoo, religious publications and ceremonial supplies, thus burdening his constitutional rights to practice his religion, associate with his family, and enjoy the necessary comforts of life. His contentions are flawed in multiple respects.

¶ 6. First, with regard to religious freedom, we note that Lindell is not complaining that he is being barred from taking action which he believes to be religiously compelled or compelled to take action which he believes to be religiously prohibited. Rather, he is complaining that he lacks the funds to buy certain items of religious significance to him. The constitutional protection of a certain right against unwarranted government interference does not create an entitlement to a subsidy, however. See Lewis v. Sullivan, 279 F.3d 526, 528 (7th Cir. 2002) (noting, among other things, that the right to have an abortion does not require the government pay for medical costs and the right to petition for redress of grievances does not require the government to provide paper and stamps). If the government has no obligation to directly provide the religious publications which Lindell cites, it has no obligation to indirectly subsidize his ability to purchase them by paying other costs Lindell would otherwise incur. Quite simply, Lindell's inability to purchase these items is the direct result of his own decision to litigate. See Spence v. Cooke, 222 Wis. 2d 530, 538, 587 N.W.2d 904 (Ct. App. 1998).

¶ 7. The same analysis applies to Lindell's ability to communicate with his family. The prison has no obligation to buy Lindell paper and pens so that he may write to his family. It is Lindell's choice to use his limited funds to finance correspondence with the courts rather than his family.

¶ 8. With regard to the personal hygiene items, Lindell notes that article I, § 17 of the Wisconsin Constitution exempts a reasonable amount of property for payment of a debtor's obligations in order to allow the debtor to enjoy "the necessary comforts of life." Imprisonment following a valid conviction, however, properly restricts an individual's liberty and other privileges. Wolff v. McDonnell, 418 U.S. 539, 555 (1974). Therefore, the standard of living contemplated by the debtor provisions does not necessarily apply in the prison context. Rather, the boundaries on the conditions of confinement for prisoners are set by the Eighth Amendment. Here, the prison provides Lindell with basic food, shelter, clothing, and medical care. We are satisfied that the incidental items which Lindell claims to have been denied the ability to purchase when his prison account was frozen do not rise to an Eighth Amendment claim of cruel and unusual punishment. See, e.g., Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982) (" 'An institution's obligation under the eighth amendment is at an end if it furnishes sentenced prisoners with adequate food, clothing, shelter, sanitation, medical care, and personal safety.") (Citations omitted.)

Equal Protection

¶ 9. Finally, Lindell argues that requiring prisoners to file trust account statements and freezing the funds in their accounts until their filing fees have been paid violates the equal protection clauses of the United States and Wisconsin constitutions because the practice "discriminates against incarcerated citizens." See U.S. Const, amend. XIV; Wis. Const, art. I, § 1. Unless a legislative classification infringes upon a fundamental right or discriminates against a suspect class, however, the principle of equal protection requires only that the classification bear a "rational relation to some legitimate end." Romer v. Evans, 517 U.S. 620, 631 (1996).

¶ 10. Lindell asserts that Wisconsin has made prisoners a suspect class by enacting Wis. Stat. § 940.29. That statute, however, does no more than criminalize abuse of persons in an incarcerated facility. It does not raise prisoners to a constitutionally protected class status for purposes of equal protection analysis, and we are aware of no other case or authority which does so. To the contrary, we have in the past applied the rational-relation test to prisoner legislation. See, e.g., State ex rel. Khan, 2000 WI App 109 at ¶ 9. Furthermore, despite Lindell's attempts to characterize his claims as constitutional in nature, we are persuaded that what is really at stake here is discretionary spending money. We conclude that Lindell has failed to demonstrate he has a fundamental interest at stake in the present litigation. Therefore, Khan's equal protection claims do not warrant strict scrutiny, and will be reviewed under the rational-relation standard.

¶ 11. We are satisfied that freezing prisoner trust account statements to pay for the costs of civil litigation initiated by the prisoner is a rational means of conserving state resources and deterring frivolous litigation "because it has been recognized that prisoners, as a group, have little incentive for refraining from suit, and account for a disproportionate amount of meritless litigation." Id. at ¶ 10. Prisoners who are required to pay the costs of their litigation out of their discretionary spending money are more likely to limit their use of the court system to meritorious claims.

¶ 12. In sum, we conclude that Wis. Stat. § 814.29(lm) survives constitutional scrutiny, and therefore deny Lindell's motion to set aside the order freezing his trust account until the filing fee in this matter has been paid.

By the Court. — Motion denied.

       All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       We do not decide what result would be proper for an as-applied challenge by an inmate seeking to litigate a fundamental right not specifically excluded from the definition of a prisoner.


source: Caselaw Access Project

author: VERGERONT, P.J.

license: Public Domain

text:
    Habermehl Electric, Inc., Plaintiff-Appellant, v. State of Wisconsin Department of Transportation, Defendant-Respondent.
    Court of Appeals

      No. 02-1573.

      Submitted on briefs December 9, 2002.

    Decided January 30, 2003.

    2003 WI App 39
    (Also reported in 659 N.W.2d 463.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Kimberly A. Hurtado, Elizabeth M. Roat, and Francisco J. Vasquez of Hurtado & Dagen, S.C., Brookfield.

      On behalf of the defendant-respondent, the cause was submitted on the brief of William H. Ramsey, asst, attorney general, and James E. Doyle, attorney general.
    Before Vergeront, EJ., Dykman and Lundsten, JJ.

       Petition to review denied 6-12-03.

   VERGERONT, P.J.

¶ 1. This action arises out of a dispute concerning the prevailing wage rates that Hab-ermehl Electric, Inc. was obligated to pay its employees under certain contracts for projects of the Department of Transportation (DOT). After DOT determined that Habermehl had not paid the proper rates according to the certification of prevailing wage rates by the Department of Workforce Development (DWD) incorporated into the contracts, Habermehl filed this action against DOT. The circuit court denied Habermehl's motion to add DWD as a party and granted judgment in DOT's favor, dismissing the complaint. Habermehl appeals, contending that the court erred in not allowing it to add DWD as a party and in concluding that its action was not timely filed against DOT for review of DOT's administrative decision.

¶ 2. We conclude that the court did not erroneously exercise its discretion in denying Habermehl's motion to amend its complaint to add DWD as a party because the amendment would have been futile. The claim Habermehl wishes to add for judicial review of DWD's administrative decision under Wis. Stat. ch. 227 would be subject to dismissal as time-barred, and the constitutional claims against DWD that Habermehl apparently seeks to pursue would be subject to dismissal based on the doctrine of claim preclusion. Because Habermehl concedes that DOT does not have the statutory authority to grant the relief Habermehl seeks, we affirm the circuit court's dismissal of the complaint against DOT.

BACKGROUND

¶ 3. The procedural background to this action is complex, but the relevant facts are not disputed. Hab-ermehl is an electrical subcontractor that has performed work on various contracts that DOT has entered into with prime contractors. The eleven contracts involved in this dispute were executed between August 11,1998 and May 11, 2000. The contracts provided that the contractors and subcontractors had to pay employees covered by Wis. Stat. § 103.50 (2001-02) at least the wages contained in the schedules of minimum wage rates attached to and incorporated into the contracts. Subsections 103.50(3) and (4) require DWD to conduct investigations and hold public hearings to determine the prevailing wages for all occupations commonly employed in the highway construction industry, and to certify annually to DOT by May 1 of each year the prevailing wage rates. Under § 103.50(6), the prevailing wage rates determined by DWD must be incorporated into every contract and subcontract, with an exception that is not applicable. "The prevailing wage rates . . . applicable to a contract or subcontract may not be changed during the time the contract or subcontract is in force." Subsection (6). DOT is obligated to require adherence to these wage rates, and violations by contractors and subcontractors subject them to fines; DOT may request the district attorney to enforce the penalties. Subsections 103.50(7) and (8). In addition to the DWD-certified prevailing wage rates, the contracts contained federal prevailing wage rates because some projects are funded by both state and federal funds. The contracts provided that, when both federal and state prevailing wage rates for a given classification were included, the higher of the two rates governed.

¶ 4. The dispute in this case arose when DWD deleted five subclassifications, for the job of line constructor from its annual certifications for the years 1997 through 2000. Habermehl continued to use the federal prevailing wage rates for those subclassifica-tions, which were still contained in the contracts. However, DOT determined that, for each deleted sub-classification, an alternative existing classification certified by DWD was applicable, and those were higher than the federal prevailing wage rates Habermehl used. By letter dated May 25, 1999, DOT advised the prime contractor on a project and Habermehl, the subcontractor, that Habermehl was not paying the proper prevailing wage rates under that contract, and it demanded that Habermehl do so. By the end of January 2000, Habermehl paid, under protest, the wages DOT asserted were due under that contract and two others— $41,000.

¶ 5. Also in late January 2000, Habermehl requested an administrative hearing before DWD pursuant to Wis. Stat. § 103.005(6)(e), seeking reinstatement of the five subclassifications or recognition of the federal prevailing wages for them. In its petition, Hab-ermehl alleged that DWD had acted arbitrarily and in a manner inconsistent with its own procedures in removing the five subclassifications. On April 6, 2000, DWD issued a final determination reinstating the five sub-classifications effective January 1, 2001. However, that determination did not address the issue of retroactive reinstatement of those subclassifications, and DWD assigned an administrative law judge to hear that issue. Habermehl's amended petition before DWD added allegations that DWD had violated its right to due process by removing the five subclassifications; it also sought retroactive reinstatement of those subclassifications, monetary relief for the amounts it had paid DOT under protest, attorney fees, and punitive damages.

¶ 6. While the proceedings were pending before DWD, Habermehl continued to use the federal prevailing wage rates for the line contractor subclassifications, and DOT made demands that Habermehl pay the amounts DOT asserted were due for other projects. Habermehl wanted DOT to suspend its efforts to compel payment under the other contracts until DWD resolved the issue of retroactive reinstatement, but DOT refused to do so. DOT's position was that Haber-mehl was obligated to pay what was due under the contracts and DWD did not have the authority to alter those contracts. By letter dated July 14, 2000, DOT refused Habermehl's request to allow it to escrow the disputed amounts pending resolution by DWD of the retroactive reinstatement issue. DOT demanded that Habermehl comply by September 1, 2000; if Habermehl did not, DOT would "look to the prime contractors for payment of the correct wage rates." That letter prompted Habermehl to file this action on August 31, 2000, seeking judicial review of DOT's decisions under Wis. Stat. §§ 227.52 and 227.53, a declaratory ruling that DOT's conduct violated Wis. Stat. § 103.50 and Habermehl's right to due process and equal protection, and temporary and permanent injunctive relief.

¶ 7. The circuit court denied Habermehl's motion for a temporary injunction prohibiting DOT from compelling Habermehl to pay the higher wages or sanctioning Habermehl for not doing so. The court concluded that Habermehl had not demonstrated that DWD's deletions of the five subclassifications in its certifications were in error. The court also addressed, sua sponte, whether Habermehl's request for judicial review of DOT's administrative decisions was timely. It concluded that under Wis. Stat. § 227.53(l)(a)2 a petition for judicial review had to be filed within thirty days of the service of an administrative decision. It then concluded that this requirement was not met, either for the May 25, 1999 letter first informing Habermehl that it was not paying the proper prevailing wages or for the July 14, 2000 letter denying Habermehl's request to escrow funds and demanding compliance. The court invited motions for summary judgment, and both parties moved for summary judgment.

¶ 8. Meanwhile on December 8, 2000, the DWD administrative law judge issued a decision concluding that he lacked authority to retroactively reinstate the subclassifications or to grant monetary damages, because his authority under Wis. Stat. § 103.005(6) was limited to determining the reasonableness of DWD's order. Habermehl filed an action on April 10, 2001, against DWD, as well as employees of DWD and DOT, seeking damages for violations of its right to due process and to equal protection and alleging a violation of the open records law. That action was removed to federal court. The federal court dismissed the constitutional claims on summary judgment and dismissed the open records claim without prejudice.

¶ 9. After the federal court action was dismissed, Habermehl sought to amend its complaint in this action to add DWD as a party. Habermehl filed this motion on November 6, 2001, after briefing on the cross-motions for summary judgment had been completed but before a decision had been rendered. Habermehl proposed to add two claims against DWD — one for review of DWD's administrative decisions removing the subclassifica-tions for the years 1997-2000 and refusing to reinstate them for those years, and a second for violation of open records requests under Wis. Stat. § 19.35. The circuit court denied the motion to amend. The court concluded that the claim for judicial review of DWD's administrative decisions was untimely and it was therefore futile to add that claim, and the open records claim was not related factually or legally to the claim against DOT.

¶ 10. In the same written decision, the circuit court granted DOT's motion for summary judgment, denied Habermehl's motion, and dismissed the complaint against DOT. The court concluded that Wis. Stat. § 227.40 was the exclusive means of obtaining review of the validity of DWD's certification and that DWD was a necessary party for that purpose. DOT was not a proper party, the court stated, because DWD, not DOT, had omitted the five subclassifications from the certifications. The court also ruled that Habermehl had not timely commenced an action under § 227.40 against either agency. As an independent ground for its decision, the court ruled that Wis. Stat. § 103.50(2) required that DOT comply with DWD's certifications. Finally, the court concluded that the equal protection and due process violations that Habermehl asserted were based on the actions of DWD, not DOT, and the summary judgment in the federal action on those claims had preclusive effect.

¶ 11. After the circuit court issued this decision, Habermehl filed another action against DOT, which had continued to attempt to collect wages from Habermehl that DOT considered due under contracts that had been entered into after those that are the subject of this action. That action and this action have been stayed pending resolution of this appeal.

DISCUSSION

Motion to add DWD

¶ 12. We consider first whether the circuit court erroneously exercised its discretion in denying Habermehl's motion to amend its complaint to add DWD as a party. Any amendment filed more than six months after the filing of the summons and complaint may occur only with the circuit court's permission. Wis. Stat. § 802.09(1). Whether to grant permission is committed to the circuit court's discretion, and we affirm discretionary decisions if the court applied the correct law to the relevant facts and reaches a reasonable result through a rational process. Gosse v. Navistar Int'l Transp. Corp., 2000 WI App 8, ¶ 16, 232 Wis. 2d 163, 174, 605 N.W.2d 896. When the circuit court's exercise of discretion depends upon an interpretation of a statute, we review that legal issue de novo. Goff v. Seldera, 202 Wis. 2d 600, 616, 550 N.W.2d 144 (Ct. App. 1996).

¶ 13. Habermehl argues that DWD should have been joined because it is a necessary party to this action under Wis. Stat. § 803.03(1) in that DOT has no authority to change the contracts once executed and therefore complete relief cannot be granted without DWD. According to Habermehl, the court erred in concluding that the claim for judicial review of DWD's administrative decision was untimely, and therefore it erroneously exercised its discretion in not allowing the amendment to the complaint. Habermehl's position is that the hearing before DWD was a contested case hearing, and therefore the December 8, 2000 decision should have contained notice as required by Wis. Stat. §§ 227.48(2) and 227.53(1)(a)2 that Habermehl had thirty days from service of the decision to file a petition for judicial review. Since the decision did not contain that notice, Habermehl continues, no time period began to run for review of that decision.

¶ 14. DOT agrees that DWD is a necessary party to this action, but asserts that the circuit court correctly concluded that adding DWD as a party for purposes of reviewing DWD's administrative decision would be futile. DOT first asserts that the exclusive means for challenging the validity of DWD's certifications is a declaratory judgment against DWD under Wis. Stat. § 227.40(1) and that Habermehl has waived the right to do so because it did not comply with the time requirements in § 227.40(3). Alternatively, DOT contends that the time period for appealing DWD's December 8, 2000 decision was six months, and Habermehl's motion to amend the complaint to appeal that decision was not filed within that time period.

¶ 15. We agree with Habermehl that it had the option under Wis. Stat. § 227.40(2) (e) of challenging the validity of the certifications by requesting a hearing before DWD and then seeking judicial review of that decision. However, we conclude that whether or not the proceeding before DWD was a contested case, in the absence of notice of the time for filing a petition for judicial review under Wis. Stat. § 227.53(l)(a)2, the time period for doing so was six months. Since Haber-mehl did not file a petition for judicial review of DWD's December 8, 2000 decision within six months, any claim added to the complaint for judicial review of that decision would be subject to dismissal.

¶ 16. The statutory language clearly provides the procedure for a court challenge to the validity of DWD's determination of prevailing wage rates under Wis. Stat. § 103.50. Under Wis. Stat. § 227.01(13)(t), the action or inaction of an agency that ascertains and determines prevailing wage rates under § 103.50 is not a rule, "except that any action or inaction which ascertains and determines prevailing wage rates under... s. 103.50 ... is subject to judicial review under s. 227.40." Wisconsin Stat. § 227.40(1) and (2)(e) provide in part:

(1) Except as provided in sub. (2), the exclusive means of judicial review of the validity of a rule shall be an action for declaratory judgment as to the validity of such rule brought in the circuit court for Dane County. The officer, board, commission or other agency whose rule is involved shall be the party defendant.... The court shall render a declaratory judgment in such action only when it appears from the complaint and the supporting evidence that the rule or its threatened application interferes with or impairs, or threatens to interfere with or impair, the legal rights and privileges of the plaintiff. A declaratory judgment may be rendered whether or not the plaintiff has first requested the agency to pass upon the validity of the rule in question.
(2) The validity of a rule may be determined in any of the following judicial proceedings when material therein:
(e) Proceedings under. .. ss. 227.52 to 227.58 . .. for review of decisions and orders of administrative agencies if the validity of the rule involved was duly challenged in the proceeding before the agency in which the order or decision sought to be reviewed was made or entered.

¶ 17. Under the plain language of Wis. Stat. § 227.40(1), Habermehl was not obligated to file an action for a declaratory judgment against DWD to challenge its deletion of the five subclassifications in its certifications of prevailing wage rates for 1997-2000. Under § 227.40(2)(e), Habermehl was entitled to request a hearing before DWD to make that challenge, as it did, and then seek judicial review of DWD's decision as provided in Wis. Stat. §§ 227.52-227.58. We see no support in the plain language of the statute for DOT's position that Habermehl's exclusive remedy for challenging DWD's actions was an action for declaratory judgment against DWD. We therefore do not address DOT's argument that Habermehl waived the right to seek a declaratory judgment against DWD. Instead, we turn to the issue of the requirements for seeking judicial review of DWD's administrative decision.

¶ 18. Any administrative decision is subject to review as provided in Wis. Stat. ch. 227 if it "adversely affects the substantial interests of any person, whether by action or inaction, whether affirmative or negative in form," with certain exceptions not applicable here. Wis. Stat. § 227.52. However, the time period within which judicial review must be sought depends on whether an agency proceeding is a contested case. If a proceeding is a contested case, then the decision must include notice of the right of the parties to petition for judicial review, and that time period is thirty days from the service by the agency on the parties. Wis. Stat. §§ 227.48(2) and 227.53(l)(a)2. However, neither the requirement in § 227.48(2) of notice of the right to judicial review nor the thirty days provided in § 227.53(l)(a) for filing a petition for judicial review applies when the administrative proceeding is not a contested case. Collins v. Policano, 231 Wis. 2d 420, 435, 605 N.W.2d 260 (Ct. App. 1999); Hedrick v. Bd. of Regents of Univ. of Wisconsin, 2001 WI App. 228, ¶ 25, 248 Wis. 2d 204, 216, 635 N.W.2d 650. Since there is no statutory time limit for filing a petition for judicial review when the administrative proceeding is not a contested case, we have adopted the six-month "default limitation" for those cases. Hedrick, 2001 WI App at ¶ 25.

¶ 19. The parties' disagreement over whether the proceeding before DWD was a contested case stems from their differing views on the application of the statutory definition to hearings requested under Wis. Stat. § 103.005(6)(e). A "contested case" is defined as an agency proceeding "in which the assertion of by one party of any substantial interest is denied or controverted by another party and in which, after a hearing required by law, a substantial interest of a party is determined or adversely affected by a decision or order." Wis. Stat. § 227.01(3). Habermehl argues that a hearing before DWD in this case was "required by law" because § 103.005(6)(g) provides:

(g) Upon receipt of such petition, if the issues raised in such petition have theretofore been adequately considered, the department shall determine the same by confirming without hearing its previous determination, or if such hearing is necessary to determine the issues raised, the department shall order a hearing thereon and consider and determine the matter or matters in question at such times as shall be prescribed.

DOT responds that DWD has the discretion under § 103.005(6)(g) to grant a hearing and therefore a hearing is not required by law. DOT also relies on Wis. Stat. § 227.42. This section specifies the circumstances under which there is a right, in addition to any other provided by law, to a hearing upon request, and such hearing is to be treated as a contested case. Section 227.42(1). However, there is a specific exclusion for "actions where hearings at the discretion of the agency are expressly authorized by law." Section 227.42(3).

¶ 20. We find it unnecessary to decide whether the proceeding before DWD was a contested case. Assuming it is, we reject Habermehl's contention that the result is that no time limit applies for petitioning for judicial review. Habermehl bases its argument on the language of Wis. Stat. § 227.48(2), which requires that decisions contain notice of the time for judicial review and provides that "no time period .. . under s. 227.53(l)(a) for filing a petition for judicial review . . . begins to run until the agency has complied with this subsection." Since the December 8, 2000 decision of the ALJ did not provide notice of the thirty-day time period under § 227.53(1)(a)2 for petitioning for judicial review in a contested case, Habermehl asserts that no time period had begun to run. However, this interpretation of § 227.48(2) ignores the plain language of the statute. The language does not allow "the time period . .. specified under s. 227.53(1)(a).... [to] begin ... to run" if notice of it is omitted on the decision; but the language does not prohibit all time limits from applying. Therefore, we are free to apply the six-month "default limitation."

¶ 21. We adopt the six-month "default limitation" in this situation for the following reasons. As we explained in Collins, when a statute does not provide for a specific time period for requesting judicial review of an agency decision, the courts have established six months as the "default limitation." Collins, 231 Wis. 2d at 437. The rationale is that when a statute does not prescribe the time within which the right to review must be exercised, that right must be exercised within a reasonable time, and six months has been established as reasonable. State ex rel. Casper v. Bd. of Trustees of Wisconsin Retirement Fund, 30 Wis. 2d 170, 174, 140 N.W.2d 301, 303 (1966). In Hedrich, we adopted the six-month default limitation for requesting judicial review under Wis. Stat. ch. 227 of agency decisions in proceedings that are not contested cases, because ch. 227 did not provide a time period. Hedrich, 2001 WI App 228 at ¶ 25. We see no reason for distinguishing between judicial review of a decision in an uncontested case, when the decision does not inform the party of the right to judicial review and the time period for seeking it, and judicial review of a decision in a contested case when the decision does not contain notice that the party must seek judicial review within thirty days, as required by Wis. Stat. § 227.48(2). In both situations the parties have a right to judicial review under ch. 227; in both situations the agencies' decisions do not inform the parties of the right to judicial review or the applicable time period; in both situations ch. 227 does not supply a time period; and in both situations it is reasonable and necessary to have a time period. We reject as unreasonable Habermehl's position that, if an agency should have provided notice in its decision that there were thirty days to seek judicial review but the agency did not do so, then there is no time limitation.

¶ 22. Accordingly, we conclude that, even if the proceeding before the DWD was a contested case, in the absence of notice of the thirty-day time period for judicial review as provided in Wis. Stat. §§ 227.48(2) and 227.53(l)(a)2, Habermehl had six months from the date of the December 8, 2000 decision to file a petition for judicial review of that decision. Habermehl's motion seeking to amend the complaint to add DWD and to add a request for judicial review of its decision was filed five months after the expiration of that six-month period. Accordingly, the court's conclusion that the amendment would be futile, although based on a different analysis, was correct.

¶ 23. Habermehl presents two alternative arguments for allowing the amendment to the complaint to add a claim for judicial review of DWD's decision even though its request for judicial review was not filed within the applicable time period. First, Habermehl contends that under Wis. Stat. § 802.09(3), the amendment should relate back to the filing of the complaint. Subsection (3) provides:

(3) Relation back of amendments. If the claim asserted in the amended pleading arose out of the transaction, occurrence, or event set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the filing of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against such party, the party to be brought in by amendment has received such notice of the institution of the action that he or she will not be prejudiced in maintaining a defense on the merits, and knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against such party.

¶ 24. DOT contends that Wis. Stat. § 802.09(3) does not apply to petitions for judicial review under Wis. Stat. ch. 227. We need not address that broad argument, because subsec. (3) is plainly inapplicable in this case. At the time Habermehl filed the complaint against DOT, DWD had not yet issued its December 8, 2000 decision. It is simply not logical that an amendment seeking judicial review of an administrative decision can relate back to a complaint filed before the decision was issued.

¶ 25. Second, Habermehl requests that we use our discretionary power of reversal under Wis. Stat. § 752.35 because, it asserts, the real controversy has not been tried. However, as DOT points out, the supreme court has held that the analogous statute granting that court the discretionary power of reversal does not apply to proceedings for judicial review under Wis. Stat. ch. 227. Chicago & N.W.R.R. v. LIRC, 98 Wis. 2d 592, 611-13, 297 N.W.2d 819 (1980). We therefore conclude that § 752.35 does not apply to proceedings for judicial review under ch. 227.

¶ 26. Habermehl also appears to argue that, even if the claim for judicial review of DWD's decision is time-barred, the circuit court should have permitted it to add DWD for the purposes of pursuing its constitutional claims against DWD. We are uncertain whether Habermehl developed this argument in the circuit court in a manner that sufficiently brought it to the circuit court's attention, but we address it nonetheless.

¶ 27. Habermehl's proposed amendment did not add anything to the constitutional claims alleged in the original complaint. The due process claim alleged in the original complaint was based on the removal of the five subclassifications, which was alleged to be arbitrary and a violation of Wis. Stat. § 103.50. Although the complaint attributed this conduct to DOT, based on Habermehl's briefs in the circuit court, we understand Habermehl sought to add DWD as a party because it recognized that DWD, not DOT, is the agency that removed the five subclassifications and is the agency charged with certifying the prevailing wages under § 103.50. As developed in its briefs in the circuit court, Habermehl's due processes claim is that it was deprived of its property — the additional sums it had to pay DOT — because DWD removed the five subclassifica-tions in violation of subsec. 103.50(3) and (4) and then arbitrarily delayed in reinstating them. However, the federal court has already decided this precise issue against Habermehl: it ruled that Habermehl did not have a property interest in any particular classification under» § 103.50 and therefore had no protectible property interest in the $41,000 DOT demanded Habermehl pay. In the context of deciding the summary judgment motion in this case, the circuit court recognized that the federal court judgment had a preclusive effect on the same constitutional claims in this action, and we agree with that conclusion.

¶- 28. Under the doctrine of claim preclusion, a prior action on a claim bars a subsequent action on the same claim when there is an identity of parties or their privies between the prior action and the present action and there was a final judgment on the merits in the prior action. Northern States Power Co. v. Bugher, 189 Wis. 2d 541, 550-51, 525 N.W.2d 723 (1995). Whether claim preclusion applies in a given factual scenario is a question of law, which this court reviews de novo. Id. at 551.

¶ 29. Habermehl asserts that we should disregard the federal court judgment on Habermehl's due process claim because the federal court decision involved consideration of a Wisconsin statute, and Wisconsin courts are not bound by federal court construction of Wisconsin statutes. However, Habermehl has cited no authority for the proposition that preclusion doctrines do not apply in Wisconsin courts to federal court determinations or judgments simply because they involve Wisconsin statutes. Indeed, we generally apply preclusion doctrines to prior federal court actions just as we do to prior state court actions. See Moore v. LIRC, 175 Wis. 2d 561, 565, 499 N.W.2d 288 (Ct. App. 1993). Habermehl presents no persuasive argument for not doing so here.

¶ 30. The equal protection claim alleged in the complaint was based on DOT's alleged differential treatment of Habermehl as compared to other contractors in compelling payment. Habermehl did not explain in the circuit court and does not explain in this court why it needs to add DWD as a party with respect to that claim. The equal protection claim Habermehl asserted against DWD, which was decided adversely to Haber-mehl by the federal court, was a different claim: that DWD took longer to act on its reinstatement request than it did to act on other contemporaneous reinstatement requests. Even if we overlooked the fact that this equal protection claim against DWD cannot be gleaned from the original compliant in this action and was not contained in Habermehl's proposed amended complaint against DWD, we would conclude that the doctrine of claim preclusion bars relitigation of this claim, for the same reasons the doctrine bars relitigation of the due process claim.

¶ 31. Accordingly, we conclude the circuit court did not erroneously exercise its discretion in denying Habermehl's motion to amend its complaint to add DWD as a party and to add a claim for judicial review of DWD's December 8, 2000 administrative decision. The amendment would have been futile. The claim for judicial review would have been subject to dismissal as time-barred and the constitutional claims against DWD that Habermehl apparently seeks to pursue would have been subject to dismissal based on the doctrine of claim preclusion.

Dismissal of Complaint Against DOT

¶ 32. The only argument Habermehl makes regarding dismissal of its complaint against DOT is that the circuit court erred in concluding the claim for judicial review of DOT's administrative decisions was untimely. Habermehl contends that its complaint was timely for judicial review of DOT's July 14, 2000 letter because it was filed within six months of that letter. Even if Habermehl is correct on this point, Habermehl does not explain how a judicial review of that decision would entitle it to a review of the correctness of DWD's removal of the five subclassifications. Elsewhere in its brief, as we have noted above, Habermehl has conceded that DWD is a necessary party because, in Habermehl's words, "DOT has no authority to change DWD's List." This was one of the independent grounds on which the circuit court dismissed the complaint against DOT. Habermehl develops no argument on appeal that explains what relief it seeks from DOT that does not depend on adding DWD as a party. Since, as we have already held, the circuit court properly denied Habermehl's motion to add DWD as a party, we conclude the circuit court properly dismissed the complaint against DOT.

By the Court. — Judgment affirmed.

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

       WISCONSIN Stat. § 103.005(6) provides in part:
      (6) (a) All orders of the department in conformity with law shall be in force, and shall be prima facie lawful; and all such orders shall be valid and in force, and prima facie reasonable and lawful until they are found otherwise upon judicial review thereof pursuant to ch. 227 or until altered or revoked by the department.

        (e) Any employer or other person interested either because of ownership in or occupation of any property affected by any such order, or otherwise, may petition for a hearing on the reasonableness of any order of the department in the manner provided in chs. 103 to 106.
      (f) Such petition for hearing shall be by verified petition filed with the department, setting out specifically and in full detail the order upon which a hearing is desired and every reason why such order is unreasonable, and every issue to be considered by the department on the hearing. The petitioner shall he deemed to have finally waived all objections to any irregularities and illegalities in the order upon which a hearing is sought other than those set forth in the petition. All hearings of the department shall be open to the public.
      (g) Upon receipt of such petition, if the issues raised in such petition have theretofore been adequately considered, the department shall determine the same by confirming without hearing its previous determination, or if such hearing is necessary to determine the issues raised, the department shall order a hearing thereon and consider and determine the matter or matters in question at such times as shall be prescribed ....
      (h) Upon such investigation, if the department finds that the order complained of is unjust or unreasonable the department shall substitute for that order such other order as shall be just and reasonable.

        Habermehl Elec., Inc. v. Bauer, No. 01-C-271-S, unpublished Memorandum and Order (WD. Wis. Oct. 2, 2001).

       In its conclusion regarding the open records claim, the court relied on Wis. Stat. § 803.04(1), which provides:
      Joinder of parties in one action is permitted if there is asserted against them, jointly, severally or in the alternative any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of fact or law common to all defendants will arise in the action.
      Habermehl does not argue on appeal that the court erroneously exercised its discretion in denying permission to add the open records claim, and therefore we do not review that aspect of the court's decision.

       WisConsin Stat. § 803.03(1) provides:
      Joinder of persons needed for just and complete adjudication. (1) Persons to be joined if feasible. A person who is subject to service of process shall be joined as a party in the action if:
      (a) In the person's absence complete relief cannot be accorded among those already parties; or
      (b) The person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may:
      1. As a practical matter impair or impede the person's ability to protect that interest; or
      2. Leave any of the persons already parties subject to a substantial risk of incurring double, multiple or otherwise inconsistent obligations by reason of his or her claimed interest.

       WISCONSIN Stat. § 227.48(2) provides:
      (2) Each decision shall include notice of any right of the parties to petition for rehearing and administrative or judicial review of adverse decisions, the time allowed for filing each petition and identification of the party to be named as respondent. No time period specified under s. 227.49 (1) for filing a petition for rehearing, under s. 227.63 (1) (a) for filing a petition for judicial review or under any other section permitting administrative review of an agency decision begins to run until the agency has complied with this subsection.
      Wisconsin Stat. § 227.53(l)(a)2 provides:
      2. Unless a rehearing is requested under s. 227.49, petitions for review under this paragraph shall be served and filed within 30 days after the service of the decision of the agency upon all parties under s. 227.48.

       Wisconsin Stat. § 227.40(3) provides:
      (3) In any judicial proceeding other than one set out above, in which the invalidity of a rule is material to the cause of action or any defense thereto, the assertion of such invalidity shall be set forth in the pleading of the party so maintaining the invalidity of such rule in that proceeding. The party so asserting the invalidity of such rule shall, within 30 days after the service of the pleading in which the party sets forth such invalidity, apply to the court in which such proceedings are had for an order suspending the trial of said proceeding until after a determination of the validity of said rule in an action for declaratory judgment under sub. (1) hereof.
      (a) Upon the hearing of such application if the court is satisfied that the validity of such rule is material to the issues of the case, an order shall be entered staying the trial of said proceeding until the rendition of a final declaratory judgment in proceedings to be instituted forthwith by the party asserting the invalidity of such rule. If the court shall find that the asserted invalidity of a rule is not material to the case, an order shall be entered denying the application for stay.
      (b) Upon the entry of a final order in said declaratory judgment action, it shall be the duty of the party who asserts the invalidity of the rule to formally advise the court of the outcome of the declaratory judgment action so brought as ordered by the court. After the final disposition of the declaratory judgment action the court shall be bound by and apply the judgment so entered in the trial of the proceeding in which the invalidity of the rule is asserted.
      (c) Failure to set forth invalidity of a rule in a pleading or to commence a declaratory judgment proceeding within a reasonable time pursuant to such order of the court or to prosecute such declaratory judgment action without undue delay shall preclude such party from asserting or maintaining such rule is invalid.

       We observe that Wis. Stat. § 103.005(8) provides:
      (8) (a) No action, proceeding or suit to set aside, vacate or amend any order of the department or to enjoin the enforcement of an order of the department shall be brought unless the plaintiff has applied to the department for a hearing on the order at the time and as provided in sub. (6) (e) to (i), and has, in the petition for the hearing under sub. (6), raised every issue raised in the action, proceeding or suit to set aside, vacate, amend or enjoin the enforcement of the order of the department.
      (b) In a prosecution for the violation of an order of the department, the order of the department shall be conclusively presumed to be just, reasonable and lawful, unless prior to the beginning of the prosecution for the violation a proceeding for judicial review of such order has been instituted as provided in ch. 227.
      Neither party mentions this section. Accordingly, we do not address the interaction of this section with Wis. Stat. §§ 227.01(13)(t) and 227.40.

       Specifically, we do not decide whether Wis. Stat. § 227.40(3)(c) applies to an action for declaratory judgment under subsec. (1).

        Hedrick was decided while this case was pending in the circuit court. We issued Hedrick after briefing on the cross-motions for summary judgment was completed and shortly before the circuit court issued its written decision on those motions. However, Hedrick was apparently not brought to the circuit court's attention until briefing on Habermehl's motion for a stay pending appeal. In ruling on that motion, the court indicated that even with a six-month time period, as provided in Hedrick, the complaint seeking judicial review of DOT's decisions was untimely. However, the court did not expressly apply Hedrick to the proposed amendment seeking judicial review of DWD's decision.

       Wisconsin Stat. § 227.01(3) provides in full:
      (3) "Contested case" means an agency proceeding in which the assertion by one party of any substantial interest is denied or controverted by another party and in which, after a hearing required by law, a substantial interest of a party is determined or adversely affected by a decision or order. There are 3 classes of contested cases as follows:
      (a) A "class 1 proceeding" is a proceeding in which an agency acts under standards conferring substantial discretionary authority upon it. "Class 1 proceedings" include rate making, price setting, the granting of a certificate of convenience and necessity, the making, review or equalization of tax assessments and the granting or denial of a license.
      (b) A "class 2 proceeding" is a proceeding in which an agency determines whether to impose a sanction or penalty against a party. "Class 2 proceedings" include the suspension or revocation of or refusal to renew a license because of an alleged violation of law. Any proceeding which could be construed to be both a class 1 and a class 2 proceeding shall be treated as a class 2 proceeding.
      (c) A "class 3 proceeding" is any contested case not included in class 1 or class 2.

       Wisconsin Stat. § 752.35 provides:
      Discretionary reversal. In an appeal to the court of appeals, if it appears from the record that the real controversy has not been fully tried, or that it is probable that justice has for any reason miscarried, the court may reverse the judgment or order appealed from, regardless of whether the proper motion or objection appears in the record and may direct the entry of the proper judgment or remit the case to the trial court for entry of the proper judgment or for a new trial, and direct the making of such amendments in the pleadings and the adoption of such procedure in that court, not inconsistent with statutes or rules, as are necessary to accomplish the ends of justice.

       When a person claims he or she was deprived of property without due process of law in violation of the Fourteenth Amendment, the issue of whether there is a protectible property interest depends on whether a state statute or regulation creates such an interest. Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972).

       The claim sought to be litigated in the present action need not have been actually litigated in the prior action as long as it could have been litigated in that action. Northern States Power Co. v. Bugher, 189 Wis. 2d 541, 550, 525 N.W.2d 723 (1995). In this case, the due process claim against DWD was actually litigated in the federal action.

       DOT argues that issue preclusion bars relitigation in this action of Habermehl's due process claim. Issue preclusion is a narrower doctrine than claim preclusion and bars the relitigation of issues of law or fact that have actually been litigated in a prior action; an identity of parties or their privies is not required, but courts must apply a fundamental fairness analysis. Northern States Power Co. v. Bugher, 189 Wis. 2d 541, 550, 525 N.W.2d 723 (1995). Our conclusion would be the same under the doctrine of issue preclusion.


author: CURLEY, J. SCHUDSON, J.

text:
    Hearst-Argyle Stations, Inc., d/b/a WISN-TV, Channel 12 and f/k/a Hearst Corporation, a Delaware Corporation, Plaintiff-Appellant, v. Board of Zoning Appeals of the City of Milwaukee, a Wisconsin municipal quasi-judicial body, Defendant-Respondent.
    Court of Appeals

      No. 02-0596.

      Oral argument November 5, 2002.

    Decided February 4, 2003.

    2003 WI App 48
    (Also reported in 659 N.W.2d 424.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Matthew J. Flynn, James H. Baxter III, and Christina D. Hernandez-Malaby of Quarles & Brady, LLP, of Milwaukee, with oral argument by Matthew J. Flynn.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Grant F. Langley, city attorney, and Thomas O. Gartner, assistant city attorney.
    Before Wedemeyer, PJ., Schudson and Curley, JJ.
   CURLEY, J.

¶ 1. Hearst-Argyle Stations, Inc. (Hearst) appeals from the trial court's order affirming the decision of the Board of Zoning Appeals for the City of Milwaukee (BOZA), which denied Hearst's zoning permit application to top-mount a digital television (DTV) antenna on its existing transmission tower, thereby increasing the height of its tower by 115 feet. Hearst contends that BOZA improperly denied its application because: (1) Hearst satisfied the special use standard by establishing that its DTV antenna is "necessary for the public convenience at a particular location"; (2) BOZA improperly applied the variance standard to its application; (3) BOZA's determination is preempted by Federal Communications Commission (FCC) directive; (4) BOZA's denial of its application was arbitrary and unsupported by the evidence; and (5) BOZA denied its application based on prejudice and bias. We disagree and affirm the trial court's order, and therefore, BOZA's decision.

I. Background.

¶ 2. The FCC issued a directive requiring all television-broadcasting stations to begin broadcasting DTV signals to its current broadcast area by May 1, 2002. After a transition period tentatively scheduled to end in 2006, the FCC will require television-broadcasting stations to cease transmitting their present analog television signals and begin broadcasting only DTV signals, because DTV technology provides a clearer, crisper television image than analog television technology. However, unlike an analog television signal, whose interference results in fuzzy reception, if the DTV signal is interfered with, there is a "cliff effect," which completely eliminates reception.

¶ 3. Hearst owns and operates television-broadcasting stations, including WISN-TV Channel 12, Milwaukee's ABC affiliate. Hearst has a 1106-foot-high-television-transmission tower at the top of which is currently mounted an analog television antenna. On July 31, 1997, deciding to comply with the FCC's directive by top-mounting the DTV antenna rather than temporarily side-mounting the antenna, Hearst petitioned BOZA for permission to construct a 116-foot addition to its existing tower for the purpose of mounting a DTV antenna on top of the existing analog antenna. Hearst submitted an application seeking both a special use and a variance. The special use was required to permit the proposed height extension. The variance was required to accommodate the installation of supplemental anchor points for the tower.

¶ 4. BOZA, a Wisconsin municipal quasi-judicial body established and operated pursuant to Wis. Stat. § 62.23(7)(e), has the authority to hear and decide applications for special use and variance zoning permits. Although BOZA has the authority to interpret the zoning ordinances, only the City's Common Council has the authority to enact zoning ordinances. On March 21, 1997, the Common Council approved a Transmission Tower Policy Statement. The resolution approving the Tower Policy directed BOZA to be guided by the policy in making decisions on the placement of transmission towers within the City of Milwaukee. The stated goal of the Tower Policy was to prevent the proliferation of transmission towers and to ensure that towers are designed to accommodate multiple users in order to reduce the total number of towers over time. The Tower Policy is not part of the Milwaukee Code of Ordinances, but rather, sets forth land use and planning policy objectives.

¶ 5. On November 1, 1997, after Hearst had filed its application, but before BOZA had made a decision, the Common Council enacted an amendment to the zoning ordinances (Tower Amendment) that imposed stringent height restrictions on transmission towers in accordance with the stated objectives of the Tower Policy. The Tower Amendment would have foreclosed the special use permit sought by Hearst. But, in fairness, BOZA ruled that although it could rely on the Tower Policy for guidance, it could not apply the Tower Amendment to Hearst's application, because Hearst had filed its application for a permit prior to the effective date of the amendment.

¶ 6. The application originally submitted by Hearst on July 31,1997 was modified several times. On April 30, 1999, Hearst submitted revised plans indicating that it had eliminated the need for new anchor points, thereby, eliminating the need for a variance. On May 10, 1999, Hearst submitted another revised plan indicating that the height extension would be 115 feet rather than 116 feet.

¶ 7. On May 27, 1999, BOZA conducted a public hearing on Hearst's revised application. Relying on the Tower Policy, BOZA denied the proposed tower height increase. BOZA determined that the increase was not necessary for the "public convenience," one of the then-existing special use requirements.

¶ 8. On August 27, 1999, BOZA issued a written decision denying Hearst's application for a special use permit. Hearst sought certiorari review of BOZA's initial decision. On August 6, 2001, Milwaukee County Circuit Court Judge Elsa C. Lamelas issued an order reversing BOZA's decision and remanding the matter to BOZA for further proceedings not inconsistent with her order. In reversing BOZA's initial decision and remanding the matter to BOZA, Judge Lamelas believed that BOZA rejected the application based on the Tower Policy alone, and thus essentially applied the Tower Amendment.

¶ 9. On October 4, 2001, BOZA reconvened and conducted further proceedings with respect to Hearst's application. BOZA denied the application for a second time, and issued a written decision on November 7, 2001. BOZA determined that top-mounting the DTV antenna with a 115-foot extension on top of its current tower was not necessary for the public convenience. BOZA reasoned that Hearst could either install their DTV antenna on another tower or side-mount the DTV antenna on its own tower until the top-mounted analog antenna could be removed, as it would no longer be needed, and then top-mount its DTV antenna on its own tower.

¶ 10. After the October vote to deny its application, Hearst commenced two actions seeking both mandamus and certiorari relief. Hearst alleged that it was entitled to relief because BOZA's decision was, among other reasons, arbitrary, capricious, unreasonable, an erroneous exercise of discretion, unsupported by the evidence, motivated by improper bias, and prejudicial. On February 12, 2002, Milwaukee County Circuit Court Judge William J. Haese issued an order concluding that Hearst was not entitled to mandamus or certiorari relief.

II. Analysis.

¶ 11. Hearst claims that the trial court erred in concluding it is not entitled to either mandamus or certiorari relief. Wisconsin Stat. § 62.23(7)(e)10 authorizes trial court review by certiorari of the decisions of BOZA. It is well-settled that the common-law certio-rari standard of review applies to a circuit court's review under § 62.23(7)(e)10 when, as here, the trial court does not take evidence. See Klinger v. Oneida County, 149 Wis. 2d 838, 843, 440 N.W.2d 348 (1989). Under the common-law certiorari standard to review BOZA's denial of a variance or special use permit application, review is limited to "(1) whether the board kept within its jurisdiction; (2) whether it proceeded on a correct theory of law; (3) whether its action was arbitrary, oppressive or unreasonable and represented its will and not its judgment; and (4) whether the evidence was such that it might reasonably make the order or determination in question." State ex rel. Brookside Poultry Farms, Inc. v. Jefferson County Bd. of Adjustment, 131 Wis. 2d 101, 120, 388 N.W.2d 593, 600 (1986) (citation omitted).

¶ 12. "On appeal from a circuit court order or judgment entered on certiorari, an appellate court does not review the judgment or findings of the circuit court but rather reviews the record of the Board to which certiorari is directed." Klinger, 149 Wis. 2d at 845 n.6. Thus, we will not address the question of whether the trial court made the right decision, but rather, whether BOZA's decision was reached properly. See County of Sawyer Zoning Bd. v. DWD, 231 Wis. 2d 534, 538, 605 N.W.2d 627 (Ct. App. 1999).

¶ 13. "When certiorari is invoked to review the action of an administrative board, the findings of the board upon the facts before it are conclusive if in any reasonable view the evidence sustains them." State ex rel. Morehouse v. Hunt, 235 Wis. 358, 367, 291 N.W 745 (1940). Accordingly, we will not reverse BOZA's decision if "reasonable minds could arrive at the same conclusion reached by the administrative tribunal." Brookside Poultry Farms, 131 Wis. 2d at 120.

¶ 14. With respect to Hearst's prayer for mandamus relief, the trial court's decision should be upheld unless it erroneously exercised its discretion. See Miller v. Smith, 100 Wis. 2d 609, 621, 302 N.W.2d 468 (1981). A party seeking a writ of mandamus must show:

(1) the writ is based on a clear, specific legal right which is free from substantial doubt; (2) the duty sought to be enforced is positive and plain; (3) substantial damage will result if the duty is not performed; and (4) there is no other adequate remedy at law.

State ex rel. Iushewitz v. Milwaukee County Pers. Review Bd., 176 Wis. 2d 706, 711, 500 N.W.2d 634 (1993). Applying either the mandamus or certiorari standard of review, BOZA's decision denying Hearst's application must be affirmed.

A. BOZA's decision denying Hearst's application for a special use permit was reasonable.

¶ 15. A special use permit is one that the zoning code allows under certain conditions. See Delta Biological Res., Inc. v. Board of Zoning Appeals, 160 Wis. 2d 905, 910, 467 N.W.2d 164 (Ct. App. 1991).

A special use permit allows a property owner to put his or her property to a use expressly permitted by the zoning ordinance, but only if certain conditions are met. Special uses are tools of municipal planning. They have been used to cope with situations which arise when a use, though consistent with the use classification of a particular zone, nevertheless creates special problems or hazards if allowed to develop and locate as a matter of right.

Id. at 910-11 (citations omitted).

¶ 16. Milwaukee Code of Ordinances § 295-59-5-b provides:

b. Special Uses. No special use shall be granted unless the board finds the following facts and conditions exist, and so indicates in the minutes of its proceedings:
b-1. Necessity for Public Convenience. The use is necessary for the public convenience at a particular location.
b-2. Protection of Public Health, Safety and Welfare.
The use is designed, located and operated in a manner so that the public health, safety and welfare is protected.
b-3. Protection of Property. The use will not impact adversely on adjoining property or the neighborhood in general.

¶ 17. The burden of proof is placed on the party-seeking a special use exception permit. See Anderson v. Anderson, 147 Wis. 2d 83, 88, 432 N.W.2d 923 (Ct. App. 1988). Hence, Milwaukee Code of Ordinances § 295-59-5-b placed in Hearst's hands "the laboring oar to prove that it met the conditions for its proposed use under the ordinance." Delta Biological Res., 160 Wis. 2d at 913. BOZA's conclusion that Hearst failed to carry this burden is reasonably supported by the record.

¶ 18. The term "necessary for the public convenience" has not been defined by either the Milwaukee County Ordinances or the Wisconsin Statutes, and no appellate court in Wisconsin has interpreted the phrase. Breaking down this rather stilted phrase and giving each term its common and reasonable meaning, "necessary" means "whatever is essential for some purpose . . . that cannot be done without." WebsteR's Third New Int'l Dictionary, 1510 (1993). "Public" means "the people as an organized community ... distinguished by common interests or characteristics." Id. at 1836. Finally, "convenience" means "a favorable or advantageous condition. . . that provides comfort or advantage . . . conducive to personal ease or comfort." Id. at 497. Thus, we conclude that "necessary for the public convenience" means that in order for BOZA to approve Hearst's special use permit, Hearst had to present sufficient evidence that its tower extension was essential to the community as a whole. Accordingly, we must decide whether Hearst proved that top-mounting its DTV antenna on its existing tower was essential for favorable television viewing for the community in question as compared with the burden placed on the community by the antenna.

¶ 19. In its written decision on November 7, 2001, BOZA decided that Hearst failed to establish that the extension was necessary for the public convenience:

[T]he Board of Zoning Appeals determined that even if the Board had determined [Hearst's] application to be considered a special use because [Hearst] had vested rights, the Board found that a special use could not be approved because [Hearst] did not demonstrate that the extension was necessary for the public convenience. In accordance with Judge Lamelas1 instructions, the Board clarified and concluded that even without consideration of the Common Council Tower Policy or Tower Amendment, the criteria that requires [sic] necessity for the public convenience is not satisfied .... [Alternatives exist for complying with the FCC mandate without an extension or placing [the DTV antenna] on another tower. [The DTV] broadcasting system could be [side][-]mounted to the existing tower without constructing a 115[-]foot extension.

BOZA ultimately concluded that Hearst did not prove it was essential to the public good that Hearst top-mount its DTV antenna because it could side-mount the antenna and still reach 99.5 percent of the potential viewing population within the City of Milwaukee, and ninety-eight percent of the potential viewing population outside of the City of Milwaukee in the periphery of Channel 12's service area.

¶ 20. Hearst argues that BOZA's suggestion of side-mounting until 2006 is not a viable option because "there will be a loss of service to thousands of Milwaukee residents and additional thousands of residents of various communities around the periphery of Hearst's Channel 12 service area if Hearst is forced to side-mount on its own tower or another tower." Thus, Hearst concludes that BOZA improperly analyzed the evidence in support of its denial of a special use permit. We disagree. More than adequate evidence supported the viability of side-mounting the antenna or using another tower until Hearst could top-mount its DTV antenna. Thus, we conclude that BOZA acted reasonably when it concluded that top-mounting Hearst's DTV antenna is not "necessary for the public convenience at a particular location."

¶ 21. Joseph Davis, Hearst's own expert, testified that the potential impact on Channel 12 viewers in the event that Hearst side-mounted the DTV antenna on its own tower was minimal:

[BOZA:] Would the City of Milwaukee residents lose any coverage?
[Davis:] It's not a matter of lack of signal level or power level at that spot but rather the impact of side[]mounting as it may increase the number of errors that the receiver has to correct for, and it's entirely possible and probable that that there will be some locations within Milwaukee that may be shadowed slightly because of a tall building, or they may have some other obstruction or impairment, whether it's interference or local noise or the effect of the side[-]mounting....
[BOZA:] For 99.5 percent of the population, if it's side[-]mounted in the City of Milwaukee, will it work?
[Davis:] The difference between side[-]mounting and top[-]mounting within the City of Milwaukee is probably going to be in that order, that's correct.

¶ 22. Both Joel Levy and Louis DuTreil, two other expert witnesses, testified that Hearst could eventually serve one hundred percent of its population by top-mounting the DTV antenna in place of the analog antenna once the analog signal has been phased out and broadcasting will be done entirely on DTV DuTreil further testified that until the point of transition when Hearst could remove its analog antenna and top-mount its DTV antenna, it would experience a maximum loss of service of only two percent to digital viewers by side-mounting the DTV antenna.

¶ 23. BOZA weighed this evidence and found that a side-mounted DTV antenna on Hearst's present tower would reach 99.5 percent of its viewing population in the City of Milwaukee - a loss of .5 percent or approximately 3,000 viewers. Further, BOZA found, and Hearst concedes, that viewers outside of the City of Milwaukee in the periphery of Channel 12's service area would experience a maximum loss of two percent. We cannot agree with Hearst that this loss is so great as to create a "public inconvenience," such that top-mounting rather than side-mounting "is necessary for the public convenience at a particular location." Accordingly, BOZA's decision was not arbitrary, oppressive, or unreasonable, and will be affirmed. Hearst currently owns a tower over 1000 feet high. Its request for a 115-foot extension, given the small percentages of viewers affected, was unwarranted. Thus, we are satisfied that a .5 to two percent loss of viewers, until the time when top-mounting and 100 percent replication of viewership is feasible, does not seem so egregious as to create a public inconvenience.

B. Hearst fails to establish that BOZA improperly applied the variance standard.

¶ 24. Because we have already concluded that BOZA's denial of Hearst's application based on the special use standard is sufficient to sustain its denial of Hearst's permit, the following analysis is provided only to address a number of the arguments raised by both parties in their briefs.

¶ 25. A variance permit allows a property owner to use his or her property in a manner that is otherwise prohibited by a zoning ordinance because not being able to do so would create an "unnecessary hardship." See Waukesha v. Town Bd. of Waukesha, 198 Wis. 2d 592, 604, 543 N.W.2d 515 (Ct. App. 1995). "Unnecessary hardship" is created where, in the absence of a variance, no feasible use could be made of the land, the condition affecting the parcel is unique, and the variance will not be contrary to public interest. See State v. Winnebago County, 196 Wis. 2d 836, 843, 540 N.W.2d 6 (Ct. App. 1995).

¶ 26. "As a general rule, variances are subclassi-fied into 'use' variances and 'area' variances." State v. Ozaukee County Bd. of Adjustment, 152 Wis. 2d 552, 559, 449 N.W.2d 47 (Ct. App. 1989). "While 'use' variances govern the purposes to which land and structures are put, 'area' variances govern size and shape of land and structures ... ." Id. at 560.

¶ 27. "When considering a variance request, the zoning authority is to make a discretionary call on a case-by-case basis as to whether, and if so by how much, the governing rules are to be relaxed." Miswald v. Waukesha County Bd. of Adjustment, 202 Wis. 2d 401, 412, 550 N.W.2d 434 (Ct. App. 1996). Whether a variance should be authorized in a particular case is to be determined by BOZA in exercise of its discretion, and if it acts within the powers conferred upon it and its action is not arbitrary or capricious, there is no violation of the property owner's constitutional rights. State ex rel. Schleck v. Zoning Bd. of Appeals, 254 Wis. 42, 52, 35 N.W.2d 312 (1948). That we might have reached a different conclusion does not render arbitrary or capricious BOZA's decision refusing to grant the variance. See id.

¶ 28. However, where substantial rights have vested, zoning ordinances cannot be applied retroactively. See County of Sauk v. Trager, 113 Wis. 2d 48, 56, 334 N.W.2d 272 (Ct. App. 1983). "A vested right is the right to initiate or continue the establishment of a use or construction of a structure which, when completed, will be contrary to the restrictions or regulations of a recently enacted zoning ordinance." 4 Edward H. Ziegler, Jr, Rathkopfs The Law of Zoning and Planning, § 70:2 (4th ed. 1956 & Supp.1994). Therefore, even if the variance standard would normally apply, if a party were able to establish "vested rights," the special use standard rather than the variance standard would apply. See generally Lake Bluff Hous. Partners v. City of South Milwaukee, 197 Wis. 2d 157, 540 N.W.2d 189 (1995).

¶ 29. In reaching its decision, BOZA found that Hearst had not established vested rights. But BOZA went ahead and also applied the variance standard and concluded that Hearst failed to satisfy the criteria necessary for a zoning variance. Hearst does not challenge BOZA's conclusion that it failed to satisfy the variance criteria. Rather, Hearst challenges BOZA's application of the variance standard, claiming that application of the variance standard "violated Judge Lamelas' orders and the controlling law." Hearst misinterprets Judge Lamelas's order - Hearst reads the August 6, 2001 order as directing BOZA only to apply the special use standard. We disagree with Hearst's interpretation and conclude that while the order in question directed BOZA to apply the special use standard properly, i.e., without undue reliance on the Tower Policy, it did not preclude application of the variance standard.

¶ 30. Judge Lamelas' August 6, 2001 order states, in relevant part:

While Hearst's application was filed after the Tower Policy was enacted, it was filed before the Tower Amendment implementing the policy became effective. The Board did not make a clear determination on the record as to whether the old standard for granting a special use permit, or the new standard, the Tower Amendment, was the appropriate standard to be applied to Hearst's application.
It is clear in its decision, however, that the Board did justify denial of Hearst's application based upon the Tower Policy alone. In fact, the Board so overwhelmingly relied on the Tower Policy that it treated Hearst's application as though the Tower Amendment was the controlling and applicable ordinance.
Since the Board used the Tower Policy as the sole reason for the denial, it actually considered Hearst's application in light of the amended zoning ordinance, the ordinance that the Board itself had indicated did not apply. Therefore, the Board's denial was arbitrary and represented imposition of its own judgment, not the standards of a special use permit.

(Emphasis in original.)

¶ 31. Thus, contrary to Hearst's assertion, there was no clear direction for BOZA to apply the special use standard exclusively. The order never even mentions the variance standard or its application. Rather, Judge Lamelas merely directed BOZA to apply the special use standard properly - without undue reliance on the Tower Policy. Therefore, we read Judge Lamelas's decision as asking BOZA to make its decision without applying the Tower Amendment, by undue reliance on the Tower Policy, and to explain the other factors that influenced its decision. In any event, BOZA's decision on the special use request obviates the need to discuss its variance decision in depth. Accordingly, we conclude that BOZA did not erroneously exercise its discretion in denying Hearst's application.

C. The zoning code has not been preempted by FCC directive.

¶ 32. Lastly, Hearst claims that the FCC directive preempts the zoning ordinances in question, because the zoning ordinances will impair Channel 12's signal and frustrate the FCC's directive to broadcast DTV exclusively by 2006. Hearst has knocked on the wrong door. Certiorari and mandamus actions are not proper avenues to pursue such a declaration of rights. Kaiser v. City of Mansion, 99 Wis. 2d 345, 355, 299 N.W.2d 259 (Ct. App. 1980) (stating that a declaratory judgment action was the proper method of challenging the validity of an ordinance creating a lake improvement district), overruled on other grounds by DNR v. City of Waukesha, 184 Wis. 2d 178, 191, 515 N.W.2d 888 (1994); see also Wis. Stat. § 806.04(2). Hearst may well wish to bring a declaratory judgment action naming the City of Milwaukee and seeking a declaration that the application of the zoning ordinances is preempted by the FCC directive. See, e.g., City News and Novelty, Inc. v. City of Waukesha, 170 Wis. 2d 14, 487 N.W.2d 316 (Ct. App. 1992). However, that cause of action is not properly before us.

¶ 33. Based on the foregoing, we conclude that BOZA's denial of Hearst's application was supported by the evidence, and was not arbitrary or based on prejudice. Accordingly, the trial court, and therefore BOZA's decision, is affirmed.

By the Court. — Order affirmed.

SCHUDSON, J.

¶ 34. (dissenting). I am unable to join the majority because, in my estimation, its opinion (1) addresses an issue it should not; (2) fails to adequately analyze the issue it must; and (3) incorrectly accepts the City's assertion — an assertion belied by the record — that BOZA considered the "public convenience" of television viewers living outside the city limits. Because the record fails to establish that BOZA considered the "public convenience" of viewers outside the city limits, and because the City concedes that BOZA was required to do so, we must remand.

h — 1

¶ 35. The majority explains that because Hearst determined that it did not need to install supplemental anchor points to increase the height of its tower, it did not pursue its initial request for a variance. See majority at ¶¶ 3, 6. The majority acknowledges that Hearst "does not challenge BOZA's conclusion that it failed to satisfy the variance criteria." Id. at ¶ 29. And the majority concludes that "BOZA's denial of Hearst's application based on the special use standard is sufficient to sustain its denial- of Hearst's permit." Id. at ¶ 24.

¶ 36. Why, then, does the majority discuss variance law? See id. at ¶¶ 25-31. The majority says it does so "only to address a number of the arguments raised by both parties in their briefs." Id. at ¶ 24. But the majority fails to do so. Instead, obfuscating the variance issue that may be lurking in this case, the majority does not even mention the competing MATC tower, discuss its significance, dr really recognize Hearst's argument —that BOZA's invocation of the variance criteria was nothing more than a pretext paying what Judge Haese termed "lip service" to Judge Lamelas' ruling that BOZA's denial of Hearst's application "was arbitrary and represented its will and not its judgment."

II.

¶ 37. The majority recognizes that the central issue in this case is whether Hearst established, under Milwaukee Code of Ordinances § 295-59-5-b-l, that increasing the height of its tower to comply with the FCC's DTV-signal directive "is necessary for the public convenience." See majority at ¶¶ 16-17. According to the record, BOZA's denial of a special-use permit to do so would remove Channel 12 access from between at least one-half of one percent and two percent of Hearst's viewers within the city limits (a loss to between 2,985 and 11,940 viewers), and between one and two percent of Hearst's viewers beyond the city limits.

¶ 38. The majority then, without a single legal reference, writes, "We cannot agree with Hearst that this loss is so great as to create a 'public inconvenience,' such that top-mounting rather than side-mounting 'is necessary for the public convenience at a particular location.'" Id. at ¶ 23. Why? Under what legal standard? At what number — how many thousands of viewers without Channel 12 television service — would the majority draw the line? The majority simply does not say.

HH HH HH

¶ 39. It is undisputed that the denial of Hearst's special-use permit to increase the height of its tower will result in the loss of Channel 12 access for thousands of viewers — both inside and outside the City of Milwaukee. Whether, in reviewing Hearst's special-use request, BOZA was required to consider the interests of citizens outside the city limits might be an interesting issue. In this case, however, that potential issue dissolved because the City conceded that such consideration was necessary. Significantly, however, the record fails to establish that BOZA took non-city residents into account.

¶ 40. At oral argument before this court, the City did indeed concede that BOZA, in determining whether Hearst's requested special use was "necessary for the public convenience," had to consider the Channel 12 viewers beyond the city limits. The majority, however, incorrectly insists that BOZA did so.

¶ 41. The majority asserts that "BOZA did account for the effect of its decision on the periphery communities." Id. at ¶ 23 n.10 (emphasis added). To support its assertion, however, the majority relies not on BOZA's findings or conclusions, but rather, on Hearst's contentions about the loss of viewers outside the city as well as evidence supporting those contentions. See id. The majority then refers to a BOZA member's comments about the "geographical viewing area" to reach its conclusion that BOZA "implicitly incorporated Hearst's entire geographical area into its decision." Id. (emphasis added). The record, however, suggests otherwise.

¶ 42. As Hearst's counsel specifically referenced at oral argument, the BOZA chairman, two times, clarified that BOZA's determination must focus on the "public convenience" of city residents. At one point the chairman declared: "But what this board's role is is to determine based on the standard what's best for this community. Based for the City of Milwaukee viewership . . . ." (Emphasis added.) Later, the chairman added, "Let's again talk about the City of Milwaukee because that's what's before us." (Emphasis added.) Thus, the chairman set the boundary for BOZA's analysis and, given that explicit boundary, neither Hearst's contentions, nor the evidence supporting them, nor a BOZA member's passing reference to the "geographical viewing area" moved the analysis, implicitly or otherwise, beyond the city limits.

¶ 43. Hearst offers compelling arguments in support of its contention that BOZA, "once again improperly focused on its own policy rationale for its prior decision to grant MATC's application, rather than ... on the applicable ordinance standard." Deciding this appeal on its narrowest possible ground, however, see State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514 (Ct. App. 1989) ("cases should be decided on the narrowest possible ground"), we, at the very least, should remand to require BOZA to do exactly what the City concedes it must: evaluate whether Hearst's special-use request should be granted, giving full consideration to all Channel 12 viewers regardless of whether they reside inside or outside the city limits. Accordingly, I respectfully dissent.

       Hearst received an extension from the FCC to October 1, 2002.

       Wisconsin Stat. § 62.23(7)(e)l (1999-2000) states, in relevant part:
      The council which enacts zoning regulations pursuant to this section shall by ordinance provide for the appointment of a hoard of appeals, and shall provide in such regulations that said board of appeals may, in appropriate cases and subject to appropriate conditions and safeguards, make special exceptions to the terms of the ordinance in harmony with its general purpose and intent and in accordance with general or specific rules therein contained.

       Had BOZA applied the Tower Amendment, Hearst would have only been eligible for the more difficult to obtain variance for the tower extension.

       Although Judge Haese concluded that BOZA only paid "lip service" to Judge Lamelas' order, he nevertheless concluded that Hearst was not entitled to mandamus or certiorari relief.

       Wisconsin Stat. § 62.23(7)(e)10 (1999-2000) states:
      Any person or persons, jointly or severally aggrieved by any decision of the board of appeals, or any taxpayer, or any officer, department, board or bureau of the municipality, may, within 30 days after the filing of the decision in the office of the board of appeals, commence an action seeking the remedy available by certiorari. The court shall not stay proceedings upon the decision appealed from, hut may, on application, on notice to the board of appeals and on due cause shown, grant a restraining order. The board of appeals shall not be required to return the original papers acted upon by it, but it shall be sufficient to return certified or sworn copies thereof. If necessary for the proper disposition of the matter, the court may take evidence, or appoint a referee to take evidence and report findings of fact and conclusions of law as it directs, which shall constitute a part of the proceedings upon which the determination of the court shall be made. The court may reverse or affirm, wholly or partly, or may modify, the decision brought up for review.

       Reference to § 295-59-5-b of the Milwaukee Code of Ordinances is to the 6/25/96 version.

       We need only address the first of the three requirements for a special use permit; i.e., whether the use is necessary for the public convenience at a particular location, because BOZA conceded that Hearst met the second and third requirements.

       During this transition period, stations will operate with two channels, one for DTV (digital television) and one for TV (analog television). The FCC directive currently requires stations to eliminate analog use by 2006. Therefore, Hearst could top-mount the DTV antenna no later than 2006, or whenever the majority of viewers are capable of receiving a digital signal. Once analog use is completely eliminated, the side-mount may be removed.

       2000 United States Census Bureau data shows that the population of the City of Milwaukee is 596,974. Thus, a .5 percent loss in the City of Milwaukee would result in approximately 2,985 viewers.

       In its main brief, Hearst concedes a one to two percent loss in the City of Milwaukee as well as on the periphery. Again, in oral argument to this Court, Hearst acknowledged that although it believed the potential loss to be greater, the evidence and expert testimony supported these figures.
      Despite Hearst's own admission that "it is undisputed that there will be a loss of service to [ ] various communities around the periphery," and its concession that expert testimony established "the loss around the perimeter of Hearst's viewing area is 'one to two percent,'" the dissent insists that BOZA failed to consider this effect on the periphery. The dissent relies on two quotations from the BOZA chairman at the November 20, 1997 hearing, in which BOZA focused the attention of the discussion to the effect on the City of Milwaukee exclusively. However, the dissent has apparently ignored BOZA's October 4, 2001 oral decision - the proceedings held after the matter was remanded from the circuit court. There, Board Member Winkler stated: "[T]he expert testimony that I've reviewed in the transcripts was that Channel 12 would lose, at most, a percentage or two percentage points of its viewing, its geographical

        viewing area, if it were required to side mount." (Emphasis added.) He then concluded that this loss was nominal and insufficient to constitute a public inconvenience. As admitted by Hearst, the expert testimony relied upon addressed the entire Channel 12 geographical viewing area. Therefore, BOZA was well aware of the impact on the geographical viewing area beyond the City of Milwaukee in its decision. BOZA implicitly incorporated Hearst's entire geographical area into its decision by relying on expert testimony discussing the impact on the viewers outside the City of Milwaukee, and Hearst itself concedes the evidence established a "loss around the perimeter of Hearst's viewing area [of] 'one to two percent.'"
      Moreover, Hearst has conceded that the effect on the City of Milwaukee and the periphery is nearly identical - one to two percent of viewers in both categories may be deprived of service during side-mounting. Thus, because the effects on the periphery are no greater than on the City, we find the dissent's debate a completely academic exercise.
      Therefore, although Hearst contends that "community" must include not only the City of Milwaukee, but also the various communities outside of the city but on the periphery of Channel 12's service area, because BOZA did account for the effect of its decision on the periphery communities, we will leave the issue for another day; i.e., whether a municipal board with jurisdiction over a defined area must consider the effects of its decision on communities lying outside that area.

       The dissent is apparently offended that we determined the issue without going into all the issues that the dissent sees festering beneath the surface. This is actually a very simple case. BOZA, a board made up of concerned citizens, exercised its discretion and found the small percentages involved in what is a temporary situation did not rise to the level of creating a "public inconvenience." While the dissent wishes to micromanage BOZA, BOZA is entitled to exercise its discretion. The dissent also decries our failure to give a precise number of viewers that would be needed to reach a "public inconvenience" of what is essentially a temporary period of approximately three years. We will not decide what level of loss in viewership would create a public inconvenience because we refuse to address hypothetical facts. See Pension Mgmt., Inc. v. DuRose, 58 Wis. 2d 122, 128, 205 N.W.2d 553 (1973) (stating that appellate courts will not decide issues based on hypothetical facts). The issue presented has been answered; i.e., whether a potential maximum loss of .5 to two percent of viewers in Channel 12's geographical viewing area creates a public inconvenience. Thus, we need not entertain the question of how many viewers would be needed to create a public inconvenience.
      The dissent goes on to complain that we failed to explore Judge Haese's comment that BOZA paid "lip service" to Judge Lamelas's directive on remand. As we explained, we review BOZA's decision, not Judge Haese's, who ruled in favor of BOZA.

       The theory behind the vested rights doctrine is that a property owner is proceeding on the basis of a reasonable expectation that his or her modification of the property is in compliance with then-existing zoning codes. See State ex rel. Cities Serv. Oil Co. v. Board of Appeals, 21 Wis. 2d 516, 528-29, 124 N.W.2d 809 (1963).

       Milwaukee Code of Ordinances § 295-59-5 (amended 7/17/01) states:
      VARIANCES
      c. Findings. No variance shall be granted unless the hoard, after due notice to the parties of interest, finds that the following facts and conditions exist, and so indicates in the minutes of its proceedings or its decision:
      c-1. Preservation of Intent. A variance would not he inconsistent with the spirit, purpose and intent of the regulations for the district in which it is requested.
      c-2. Exceptional Circumstances. Exceptional, extraordinary or unusual circumstances or conditions apply to the lot or intended use that do not apply generally to other properties or uses in the same district, and the variance is not of so general or recurrent nature to suggest amendment of the regulation.
      c-3. Preservation of Property Rights. The variance is necessary for the preservation and enjoyment of the same substantial property rights which are possessed by other properties in the same district and same vicinity.
      c-4. Absence of Detriment. The variance will not create substantial detriment to adjacent property, and will not materially impair or be contrary to the spirit, purpose and intent of this chapter, or the public interest.
      c-5. Hardship. The alleged difficulty or hardship is not self-imposed nor is it based solely on economic grounds.

       Because Hearst first discusses the issues of equal protection, the application of Milwaukee Ordinance § 295-5-5, the doctrine of issue preclusion, vested rights, and the zoning variance criteria in its reply brief, those issues are beyond our reach. See Swartwout v. Bilsie, 100 Wis. 2d 342, 346 n.2, 302 N.W.2d 508 (1981) (stating that if an appellant fails to discuss an alleged error in its main brief, it may not do so in the reply brief).