Opinion
October 30, 1963 —
November 26, 1963.
APPEAL from a judgment of the circuit court for Dane county: NORRIS E. MALONEY, Circuit Judge. Affirmed.
For the appellant there was a brief by Walstead, Anderson, Bylsma Eisenberg of Madison, and oral argument by Elliott N. Walstead.
For the respondent the cause was argued by A. J. Feifarek, assistant attorney general, with whom on the brief was George Thompson, attorney general.
This is an appeal by Marie Nick from a judgment which dismissed a petition for review of an administrative decision. The instant litigation is a continuation of a dispute between Mrs. Nick and the State Highway Commission; they have been in this court before. See Nick v. State Highway Comm. (1961), 13 Wis.2d 511, 109 N.W.2d 71.
On August 20, 1951, the State Highway Commission, pursuant to the authority vested in it by sec. 84.25, Stats., declared Highway 30 to be a controlled-access highway. The record discloses that there was a public hearing held prior to such declaration and that previously there had been published notices in a Waukesha newspaper of such hearing, all in accordance with sec. 84.25 (1). Mrs. Nick's property in dispute was purchased by her from Mr. Reinders on December 30, 1955. It is bounded on the west by a highway called the Calhoun road, and it is bounded on the south by Highway 30, frequently called the Blue Mound road.
On April 15, 1960, the petitioner applied to the commission for a driveway permit from her property to Highway 30, and such permission was denied on April 19, 1960. She then filed with the circuit court for Waukesha county a petition for inverse condemnation. The circuit court denied the petition for inverse condemnation, and this court sustained the circuit court.
The instant litigation results from an application for a driveway permit made by Mrs. Nick on November 14, 1961. As the circuit court found, this application was denied without a hearing but upon expansive findings of fact culminating in the determination that additional points of access to the petitioner's property were not in the public interest because of the traffic count on Highway 30 and because of traffic signals at the intersection of Highway 30 and Calhoun road. The commission's denial of the application was also based upon the conclusion that any additional access points would be hazardous to the traveling public. Mrs. Nick concedes on this appeal that she has indirect access to Highway 30.
The circuit court rendered judgment dismissing, on the merits, Mrs. Nick's petition for review of the commission's denial of her application for a driveway permit, and judgment was entered on March 15, 1963. Mrs. Nick has appealed such judgment to this court under the provisions of sec. 227.21, Stats.
Statutes Involved.
"84.25 CONTROLLED-ACCESS HIGHWAYS. (1) Authority of commission; procedure. The legislature declares that the effective control of traffic entering upon or leaving intensively traveled highways is necessary in the interest of public safety, convenience and the general welfare. The commission is authorized to designate as controlled-access highways the rural portions of the state trunk system on which, after traffic engineering surveys, investigations and studies, it shall find, determine and declare that the average traffic potential is in excess of 2,000 vehicles per 24-hour day. Such designation of a portion of any state trunk highway in any county as a controlled-access highway shall not be effected until after a public hearing in the matter shall have been held in the county courthouse or other convenient public place within the county following notice by publication once each week for 3 successive weeks in a newspaper published in the county, or if there be none, in a newspaper having general circulation in the county. If the commission shall then find that the average traffic potential is as provided by this subsection, and that the designation of the highway as a controlled-access highway is necessary in the interest of public safety, convenience and the general welfare, it shall make its finding, determination and declaration to that effect, specifying the character of the controls to be exercised.
". . .
"(4) Connections by other highways. After the establishment of any controlled-access highway, no street or highway or private driveway, shall be opened into or connected with any controlled-access highway without the previous consent and approval of the commission in writing, which shall be given only if the public interest shall be served thereby and shall specify the terms and conditions on which such consent and approval is given.
". . .
"(6) Abutting owners. After the designation of a controlled-access highway, the owners or occupants of abutting lands shall have no right or easement of access, by reason of the fact that their property abuts on the controlled-access highway or for other reason, except only the controlled right of access and of light, air or view."
In Nick v. State Highway Comm. (1961), 13 Wis.2d 511, 109 N.W.2d 71, this court held that an impairment of the use of property by the exercise of the police power, where the property itself is not taken by the state, does not entitle the owner of such property to compensation. It was noted that Mrs. Nick still had access to Highway 30 via the use of Calhoun road.
The court relied on the reasoning of Carazalla v. State (1955), 269 Wis. 593, 608b, 70 N.W.2d 208, 71 N.W.2d 276, which was also a controlled-access highway case. In Carazalla, this court approved the conclusion of text writers that if no land is taken for the converted highway but an abutting landowner's access to the highway is merely made more circuitous, no compensation should be paid. Stefan Auto Body v. State Highway Comm., ante, p. 363, 124 N.W.2d 319.
In the present proceedings, Mrs. Nick seeks a permit to construct a driveway from her property to Highway 30. The commission denied her application without a formal hearing, asserting that any additional access points would not be in the public interest. Mrs. Nick believed that she was entitled to a hearing and appealed to the circuit court. That court dismissed her petition for review of the commission's determination, and we are in accord with that judgment.
In 1951, prior to the time of Mrs. Nick's acquisition of the property in question, the State Highway Commission declared Highway 30 to be a controlled-access highway. Mrs. Nick's predecessor in interest, Mr. Reinders, had the same opportunity which was available to all other interested parties to challenge the designation of Highway 30 as a controlled-access highway at a public hearing.
Notice of the hearing was given by publication pursuant to sec. 84.25 (1), Stats. The statutory notice provisions were reasonably calculated to apprise interested parties of the impending action. See 1 Merrill, Notice, pp. 510, 511, sec. 518
Mrs. Nick argues that an abutting owner would not be concerned about the 1951 public hearing or disturbed by the absence of individual notice for the reason that the owner would expect to receive compensation if his property rights were later affected by the denial of a driveway permit. We are unable to accept this theory of a continuing, dormant right to challenge the propriety of the original hearing. The mistaken expectation of compensation did not give the landowner the right to take a belated appeal from the 1951 hearing. As we said in the previous Nick Case, at page 518a:
"We hold that the relief of judicial review of the administrative decision provided by statute is the exclusive remedy with right of appeal from the reviewing court to the supreme court, per sec. 227.21, Stats. Appellant did not exhaust her remedy of judicial review."
Mrs. Nick can hardly complain because she did not get notice of the 1951 hearing; she did not acquire any interest in the real estate until over four years after the hearing. She knew or should have known of the status of Highway 30 at the time of her purchase. Since her predecessor in interest did not appeal the commission's decision, the circumstances of the hearing in 1951 can be of no benefit to Mrs. Nick in her present claim for a driveway permit. In the earlier Nick Case, at page 515, we said:
"The time to review the commission's procedure and determination long since expired and those questions were not before the trial court nor before this court. The only question properly before the court is the question of whether Reinders' grantee, the petitioner, has a right to compensation for the restriction of direct access from her property to Highway 30."
Thus, Mrs. Nick has no current right to a hearing based upon the 1951 action on the part of the commission. Further, the statutes do not provide for a hearing upon her current application for a permit to build a driveway. There is nothing in sec. 84.25, Stats., which would authorize the hearing she seeks, nor can she qualify under sec. 227.01 (2). In the latter statute, the reference to a "hearing required by law" presupposes either (1) a hearing expressly provided for by the regulating statute or administrative rule, or (2) a hearing necessitated constitutionally by the requirements of due process.
If there were allegations of fraud or corruption on the part of the Highway Commission, due process would require a full hearing on such issues; court review of the record would also be available to fulfil the requirements of due process. However, mere inconsistency on the part of the commission is not sufficient to necessitate a hearing. An administrative agency is not bound by its prior determinations. In Chicago, M., St. P. P. R. Co. v. Public Service Comm. (1954), 267 Wis. 402, 422, 423, 66 N.W.2d 351, an order of the public service commission was challenged on the ground that it was "arbitrary and capricious" because of alleged inconsistencies with its prior orders. The court in that case said, at page 422:
"However, it is not within our province to determine whether the findings of the commission here are consistent with those made by it in another case."
See 2 Davis, Administrative Law Treatise, p. 528, sec. 17.07.
Mere inconsistency on the part of an administrative agency does not of itself rise to the dignity of a violation of the constitutional right to equal protection before the law. The United States supreme court, in Snowden v. Hughes (1943), 321 U.S. 1, 8, 64 Sup. Ct. 397, 88 L. Ed. 497, said:
"The unlawful administration by state officers of a state statute fair on its face, resulting in its unequal application to those who are entitled to be treated alike, is not a denial of equal protection unless there is shown to be present in it an element of intentional or purposeful discrimination. . . . But a discriminatory purpose is not presumed, . . ."
In our opinion, the inconsistencies averred by Mrs. Nick do not warrant the holding of a plenary hearing in order to comply with due process or equal protection of the law. If the petitioner's claim of arbitrary action on the part of the commission were sufficient to necessitate a judicial-type hearing, the commission would have a virtually impossible task in fulfilling the legislative responsibilities delegated to it by law. See Ashwaubenon v. State Highway Comm. (1962), 17 Wis.2d 120, 115 N.W.2d 498.
By the Court. — Judgment affirmed.
WILKIE, J., took no part.