The issues presented on this appeal are as follows:
1. Did the commission lack jurisdiction to control the erection of respondent's tower under sec. 114.135 (6)-(9), Stats?
2. Did the commission have primary jurisdiction to determine whether the respondent's tower was so great a hazard to air travel as to require denial of respondent's application for a permit under sec. 114.135 (6), Stats., thereby preventing the circuit court from making an independent determination of whether respondent's tower was so substantial a hazard that the application for a permit was foredoomed to denial at a hearing?
3. Was the circuit court's determination that the tower was not so substantial a hazard to air traffic that the respondent's application for a permit would have been foredoomed to denial at a timely hearing against the great weight and clear preponderance of the evidence?
1. Commission jurisdiction to control erection of respondent's tower.
What are the critical facts concerning the actual height of the tower in relation to the surrounding heights within a mile radius of that tower?
At the request of the commission, Edgar J. Carrington, a professional consulting engineer, did a topographical survey of the area within one mile of respondent's tower. That survey revealed that the low point in the area was located at the edge of a creek in Irvine Park near Chippewa Falls, in the periphery of the one-mile radius. That point was 854 feet above mean sea level (MSL). The base of respondent's tower was 1,099.75 feet above MSL and the top of the tower was 1,462.04 feet above MSL. Thus, the tower measured 362.29 feet from its base to its top. George M. Sklom, also a consulting engineer, did a topographic survey of the same area and determined that the average terrain within one mile of the tower was 1,001.75 feet above MSL.
Sec. 114.135 (7), Stats., prescribes the limits of the commission's power to control the erection of towers:
"For the purposes of sub. (6) the power and authority to control the erection of buildings, structures, towers and other objects by the state aeronautics commission shall be limited to those objects that would either extend to a height of more than 500 feet above the ground or surface of the water within one mile of the location of the object, or above a height determined by the ratio of one foot verticle to 40 feet horizontal measured from the nearest boundary of the nearest public airport within the state...." (Emphasis supplied.)
It is clear that respondent's tower does not violate the "40 to one" provisions of this section. The Eau Claire airport is located at 888 feet MSL, and the tower
It should be understood at the outset that this court has already determined in the first State v. Chippewa Cable Co. Case
"Whether proper construction of the statute requires the measurement of 500 feet to begin at the lowest point in the area or at the average ground level in the area may depend on facts not now before the court."
Furthermore, when this controversy was before us the second time,
"Unless facts appearing upon the trial show a good reason for construing the statute to require the 500 feet to be measured from an average elevation, it will necessarily follow that it must be measured from the elevation of the lowest point within a mile. In either case the meaning will have been determined by resort to the ordinary rules of construction."
"[W]e must ascertain the legislative intention as disclosed by the language of the statute in relation to its scope, history, context, subject matter, and the object intended to be remedied or accomplished."
The history of sec. 114.135, Stats., shows that as originally enacted the section dealt only with keeping "aerial approaches to any airport" in a condition suited for safe operation of aircraft.
Respondent contends that since the Wisconsin statutes do not define the term "navigable airspace," in determining its meaning, we should rely on federal authorities in effect at the time of enactment which did define the term. Sec. 180 of Title 49 of the 1951 United States Code provided that "navigable airspace" means airspace above the minimum safe altitudes of flight prescribed by the Civil Aeronautics Authority (CAA). That basic definition is now found in 49 USCA, sec. 1301 (24). The administrator of the FAA has the authority to prescribe rules governing flight of aircraft, including rules governing safe altitudes of flight.
"... "(b) Over congested areas. Over any congested area of a city, town, or settlement, or over any open air assembly of persons, an altitude of 1,000 feet above the highest obstacle within a horizontal radius of 2,000 feet of the aircraft.
"(c) Over other than congested areas. An altitude of 500 feet above the surface, except over open water or sparsely populated areas. In that case, the aircraft may not be operated closer than 500 feet to any person, vessel, vehicle, or structure."
The area in which the tower is located is sparsely populated but it is just northwest of the city of Chippewa Falls which is considered a congested area. Respondent argues that since "navigable airspace" does not begin until at least 500 feet above the ground, measurement from the low point within one mile is not necessary to protect that airspace. From this the respondent reasons that the commission's interpretation of sec. 114.135 (7), Stats., goes beyond the purpose stated in the preamble and consequently could not be the one intended by the legislature.
But this argument ignores the fact that 14 CFR, sec. 91.79, also states that aircraft may not operate closer than 500 feet to any structure. If we accept respondent's premise that "navigable airspace" includes only the space where planes are legally permitted to fly, no structure intrudes into it, and no structure can be regulated under sec. 114.135, Stats. This could not have been the legislature's intent.
Respondent argues that we are dealing with a statute in derogation of the common law which should be strictly construed so as to give the landowner the maximum use of his land. Specifically, respondent relies on the
Respondent also contends that the statute is penal and, therefore, should be construed so as to minimize its penal character.
The policy behind this canon of construction is to provide a standard which, if followed, will avoid penalty.
Finally respondent cites similar statutes from other jurisdictions which expressly provide that high structures should be measured from the highest point within one mile for purposes of determining whether they can be erected.
In support of the commission's interpretation of sec. 114.135 (7), Stats., the state emphasizes that the commission's interpretation is consistent with the objective of protecting navigable airspace and has been consistently applied by it since the time of enactment of the statute. In Mednis v. Industrial Comm.
"The construction and interpretation adopted by the administrative agency charged with the duty of applying the law is entitled to great weight in the courts."
There we accepted the industrial commission's interpretation of the term "pre-existing disability."
In Milwaukee Transformer Co. v. Industrial Comm.
"... If several rules, or several applications of a rule are equally consistent with the purpose of the statute, the court will accept the agency's formulation...."
In that case we upheld the commission's interpretation of the term "misconduct"
Our principal reason for relying on the agency's interpretation of a statute is found in the comparative qualifications of the court and the agency.
We conclude that the commission's interpretation of sec. 114.135 (7), Stats., is correct and that the height of respondent's tower was correctly measured in relation
2. Did the commission have primary jurisdiction?
When this controversy was before us in 1963,
"... The rule contemplates that there shall not be a final denial of an application without a hearing, and the statute provides for judicial review. It seems to us that the commission should have held its hearing long before the answer was served. If, upon hearing, the commission had determined that the permit should issue, that fact would not have excused past violations [for erecting a tower before getting the permit], for which defendant would remain liable for criminal penalties, but would have obviated need for injunctive relief. Had the commission decided, after hearing, to deny the application, the state would have had better standing to seek equitable relief than it does after long delay.
"This is a civil action to enjoin a continuing violation as a public nuisance. We think that unless the proof at the trial shows that tower is, by reason of exceeding the height allowable without a permit, so substantial a hazard to air traffic that the application was foredoomed to denial at a hearing, the failure of the commission to hold a hearing might, in the discretion of the court, deprive the state of equitable relief."
The cable company interpreted this language to mean that it was too late for the commission to hold a hearing and that the circuit court must decide if the commission should be denied equitable relief. When the commission
The state contends that the second Chippewa Cable Case did not foreclose the possibility of a hearing on defendant's application for a permit prior to the trial. It further contends that the doctrine of primary jurisdiction applies and that the commission should be the primary judge of the substantiality of the hazard to air traffic caused by the tower.
This court treated the doctrine of primary jurisdiction in Wisconsin Collectors Asso. v. Thorp Finance Corp.
"...The standard, in our opinion, should not be power but comity. The court must consider which course would best serve the ends of justice. If the issue presented to the court involves exclusively factual issues within the peculiar expertise of the commission, the obviously better course would be to decline jurisdiction and to refer the matter to the agency. On the other hand, if statutory interpretation or issues of law are significant, the court may properly choose in its discretion to entertain the proceedings. The trial court should exercise its discretion with an understanding that the legislature has created the agency in order to afford a systematic method of fact-finding and policy-making and that the agency's jurisdiction should be given priority in the absence of a valid reason for judicial intervention."
We held, however, that the circuit court abused its discretion by referring the matter to the commission after holding an extensive trial. The trial court should have gone ahead and made findings and conclusions based on the record before it.
In Best v. Humboldt Mining Co.
The doctrine of primary jurisdiction applies even where the administrative agency is incapable of giving the relief sought.
The United States Supreme Court so held in Far East Conference v. United States.
Here, the state contends that the question of the extent of the hazard created by respondent's tower is one which requires application of the commission's expertise on aeronautical safety, and the fact that the commission has no power to issue an injunction is inconsequential. It further contends that the only method for review of the agency's finding that the hazard was too great to allow a permit was by the procedure of ch. 227, Stats.,
Underwood v. Karns
"... Where a statute relating to an administrative agency provides a direct method of judicial review of agency action, such method of review is generally regarded as exclusive, especially where the statutory remedy is plain, speedy, and adequate."
The state's contention that respondent is precluded from relitigating the question of the hazard caused by its tower is correct, unless the doctrine of primary jurisdiction is inapplicable.
The respondent asserts that the doctrine does not apply because prior to the hearing the application for a tower permit was withdrawn and, as a result, the commission had no jurisdiction to hold the hearing on the hazard created by the tower. The respondent misunderstands the scope of the commission's jurisdiction. The power and authority of the commission to determine whether a permit for a structure should be issued is limited only by the height of the structure.
However, because this court, in the second Chippewa Cable Case, indicated that it was too late for a hearing before the commission, the doctrine of primary jurisdiction does not apply. We said there that the commission
"... unless the proof at the trial shows that the tower is ... so substantial a hazard to air traffic that the application was foredoomed to denial at a hearing, the failure of the commission to hold a hearing might ... deprive the state of equitable relief."
This case presents one of the valid reasons for judicial intervention mentioned in Wisconsin Collectors Asso. v. Thorp Finance Corp.
3. Was the circuit court's determination that the tower was not so substantial a hazard that the application was foredoomed to denial at a hearing against the great weight and clear preponderance of the evidence?
While the trial court was incorrect in its interpretation of sec. 114.135 (7), Stats., it nevertheless proceeded to determine that the tower was not so substantial a hazard that respondent's application for a permit was foredoomed to denial at a hearing. In arguing that the determination is against the great weight and clear preponderance of the evidence, the state first attacks the credibility of respondent's primary witness, Lowell R. Wright, an eminently qualified aviation consultant specializing in obstructions to air navigation. The state argues that his opinion that the tower is not a hazard is incredible in view of his testimony that the FAA was forced to cancel two instrument-landing approach procedures
The state also disputes the admissibility and credibility of Wright's testimony that an instrument-landing service (ILS) facility could be installed at the airport without interference from defendant's tower. (An ILS facility is an electronic device which projects beams to guide planes into the proper glide path for a safe landing under conditions of unfavorable visibility.) The state argues that the testimony and the projected plan for installation of such a facility prepared by Wright are based on a hearsay conversation with FAA officials. The trial court sustained objections as to testimony regarding any such conversation, but correctly stated that Wright's opinion on the feasibility of an ILS facility at Eau Claire was admissible to the extent that it was based upon his expert knowledge of the requirements of such a facility. Wright indicated on cross-examination that his opinion and projections were based on his own knowledge of what an ILS approach must look like and on information found in FAA publications. Wright offered to produce the publications, but the state's counsel declined to pursue the matter.
The evidence presented by the state tended to show that in 1960 the FAA was forced to cancel two instrument
On the other hand, as previously noted, Wright testified that the cancelled instrument approach procedures could not be reinstated even if the tower were removed. He testified that the presence of the tower did increase the approach minimums at the airport, but that since this increase did not require minimums which were unacceptable under established FAA standards, he did not consider it a hazard. He stated that the tower does not violate the FAA rules as to visual flying. He testified that pilots fly with reference to the highest point on the surface and he could not conceive of a 362-foot tower creating a hazard to a prudent pilot flying VFR. Planes passing over the area from the east are supposed to fly in the Victor 26 airway (an airlane designated at 2,900 feet above MSL). Wright felt the tower did not constitute a hazard for these planes flying under instrument rules even though it is 13 feet above the guidelines recommended by the FAA as to obstructions of this airlane because most planes pass over the area at 3,000
The respondent's evidence put in issue the state's contention that the tower created such a great hazard that an application for a permit would have been foredoomed to denial at a hearing by the commission. The case required resolution of a conflict in expert opinion. This was within the realm of the trier of fact;
By the Court.—Judgment affirmed.
HEFFERNAN, J., took no part.