2015 WI 63 

SUPREME COURT OF WISCONSIN

CASE NO.: 2013AP1407 

COMPLETE TITLE: Wisconsin Realtors Association, Wisconsin 

Builders 

Association, Wisconsin Towns Association, John 

E. 

Morehouse, Sr. and Ervin E. Selk, 

 Plaintiffs-Appellants-Petitioners, 

 v. 

Public Service Commission of Wisconsin, 

 Defendant-Respondent. 

REVIEW OF A DECISION OF THE COURT OF APPEALS 

(Reported at 353 Wis. 2d 554, 846 N.W. 2d 34) 

(Ct. App. 2014 – Unpublished) 

OPINION FILED: June 30, 2015 

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: February 5, 2015 

SOURCE OF APPEAL: 

 COURT: Circuit 

 COUNTY: Brown 

 JUDGE: William M. Atkinson 

 

JUSTICES: 

 CONCURRED: 

 DISSENTED: ROGGENSACK, C.J., ZIEGLER, J. dissent. (Opinion 

Filed.) 

 NOT PARTICIPATING: 

 

ATTORNEYS: 

For the plaintiffs-appellants-petitioners, there were 

briefs by John A. Kassner and von Briesen & Roper, S.C., Madison 

and oral argument by John Kassner. 

For the defendant-respondent, there was a brief by Cynthia 

E. Smith, Justin W. Chasco, and Public Service Commission of 

Wisconsin, and oral argument by Cynthia E. Smith. 

 
2015 WI 63 

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2013AP1407 

(L.C. No. 2012CV1203) 

STATE OF WISCONSIN : IN SUPREME COURT 

Wisconsin Realtors Association, Wisconsin 

Builders Association, Wisconsin Towns 

Association, John E. Morehouse, Sr. and Ervin 

E. Selk, 

 Plaintiffs-Appellants-Petitioners, 

 v. 

Public Service Commission of Wisconsin, 

 Defendant-Respondent. 

FILED 

JUN 30, 2015 

Diane M. Fremgen 

Clerk of Supreme Court 

REVIEW of a decision of the Court of Appeals. Affirmed. 

¶1 SHIRLEY S. ABRAHAMSON, J. This is a review of an 

unpublished decision of the court of appeals affirming a summary 

judgment of the Circuit Court for Brown County, William M. 

Atkinson, Judge, in favor of the defendant (the Public Service 

Commission of Wisconsin) and against the plaintiffs (the 

Wisconsin Realtors Association, the Wisconsin Builders 

Association, the Wisconsin Towns Association, John E. Morehouse, 
No. 2013AP1407 

2 

Sr., and Ervin E. Selk).1 We refer to the plaintiffs 

collectively as the Wisconsin Realtors Association, or WRA. 

¶2 The issue presented is whether Wis. Admin. Code ch. 

PSC 128,2 titled "Wind Energy Systems" and sometimes referred to 

herein as "the wind energy rules" or "the rules," is invalid 

because it was promulgated by the Public Service Commission 

"without compliance with statutory rule-making procedures."3

¶3 WRA asserts that in promulgating the wind energy

rules, the Public Service Commission failed to comply with the 

procedural requirement set forth at Wis. Stat. § 227.115(2). 

Under Wis. Stat. § 227.115(2), if any rule proposed by an agency 

(including the Public Service Commission) "directly or 

substantially affects the development, construction, cost, or 

availability of housing in this state," then the Department of 

Commerce shall prepare a report, referred to by the parties and 

herein as a "housing impact report," before that rule is 

 

1 Wis. Realtors Ass'n v. Pub. Serv. Comm'n, No. 2013AP1407, 

unpublished slip op. (Wis. Ct. App. Mar. 25, 2014).

2 Wisconsin Admin. Code Ch. PSC 128 has not changed since it 

went into effect. All references to ch. PSC 128 are therefore 

to the current December 2012 version. 

3 See Wis. Stat. § 227.40(4)(a) (2009-10) (providing that 

the court shall declare an administrative rule invalid if it 

finds that (1) the rule violates constitutional provisions; (2) 

the rule exceeds the statutory authority of the agency; or (3) 

the rule was promulgated without compliance with statutory rulemaking procedures). 

All subsequent references to the Wisconsin Statutes are to 

the 2009-10 version unless otherwise indicated. 
No. 2013AP1407 

3 

submitted to the Legislative Council staff.4 WRA asserts that a 

housing impact report was required for Wis. Admin. Code ch. PSC 

128 as a matter of law. 

¶4 Thus, the more specific issue presented is whether 

under Wis. Stat. § 227.115(2), the Department of Commerce was 

required as a matter of law to prepare a housing impact report 

before Wis. Admin. Code ch. PSC 128 was submitted to the 

Legislative Council staff for review. To decide this issue, the 

court must determine based only on the texts of the governing 

statutes and the wind energy rules themselves whether the rules 

directly or substantially affect the development, construction, 

cost, or availability of housing in this state. 

¶5 The circuit court granted summary judgment to the 

Public Service Commission on its motion, concluding that Wis. 

Admin. Code ch. PSC 128 does not directly or substantially 

affect the development, construction, cost, or availability of 

housing in this state and thus that a housing impact report was 

not required. 

¶6 The court of appeals affirmed, stating: "We must 

presume PSC 128 was duly promulgated, and [WRA] has not cited 

any evidence to rebut that presumption."5

 

4 The version of Wis. Stat. § 227.115(2) applicable in the 

instant case assigned the responsibility for preparing housing 

impact reports to the Department of Commerce. Responsibility 

for preparing housing impact reports is now in the Department of 

Administration. See Wis. Stat. § 227.115(1)(a) (2011-12) 

(defining "[d]epartment" as "the department of administration"). 
No. 2013AP1407 

4 

¶7 We conclude that WRA has not demonstrated that a

housing impact report was required as a matter of law for Wis. 

Admin. Code ch. PSC 128. The texts of the governing statutes 

and the wind energy rules do not demonstrate as a matter of law 

that the rules directly or substantially affect the development, 

construction, cost, or availability of housing in this state. 

¶8 We further conclude that invalidating Wis. Admin. Code 

ch. PSC 128 under the circumstances presented in the instant 

case would infringe on the role of the legislature, which we 

decline to do. 

¶9 Accordingly, WRA's challenge to Wis. Admin. Code ch. 

PSC 128 fails. 

¶10 Our analysis will proceed as follows. First, we set 

forth the relevant facts and procedural history. We then recite 

the applicable standard of review. Next, we examine the 

statutory framework underlying this dispute. Finally, we 

determine that WRA has not demonstrated that a housing impact 

report was required as a matter of law for Wis. Admin. Code ch. 

PSC 128. 

I 

¶11 The relevant facts are not in dispute. 

 

5 Wis. Realtors Ass'n v. Pub. Serv. Comm'n, No. 2013AP1407, 

unpublished slip op., ¶23 (Wis. Ct. App. Mar. 25, 2014). 
No. 2013AP1407 

5 

¶12 The Public Service Commission is an independent

regulatory agency with "jurisdiction to supervise and regulate 

every public utility in this state . . . ."6

¶13 On September 30, 2009, the legislature enacted Wis. 

Stat. § 196.378(4g)(b), which provides that "the [Public Service 

Commission] shall, with the advice of the wind siting council, 

promulgate rules that specify the restrictions a political 

subdivision may impose on the installation or use of a wind 

energy system . . . ."7

¶14 The statute further provides that the rules to be 

promulgated by the Public Service Commission shall include 

setback requirements for wind turbines and may include 

requirements for other aspects of wind energy systems, such as 

their visual appearance, lighting, and electrical connections to 

the power grid; the shadow flicker they produce; the noise they 

produce and the proper means of measuring that noise; and their 

interference with radio, telephone, or television signals. The 

statute also states that the setbacks established by the Public 

Service Commission shall "provide reasonable protection from any 

health effects . . . ."8

¶15 Wisconsin Stat. § 196.378(4g)(b) provides in full as 

follows: 

 

6 Wis. Stat. § 196.02(1) 

7 See 2009 Wis. Act 40, § 12. 

8 Wis. Stat. § 196.378(4g)(b). 
No. 2013AP1407 

6 

The commission shall, with the advice of the wind 

siting council, promulgate rules that specify the 

restrictions a political subdivision may impose on the 

installation or use of a wind energy system consistent 

with the conditions specified in s. 66.0401(1m)(a) to 

(c). The subject matter of these rules shall include 

setback requirements that provide reasonable 

protection from any health effects, including health 

effects from noise and shadow flicker, associated with 

wind energy systems. The subject matter of these 

rules shall also include decommissioning and may 

include visual appearance, lighting, electrical 

connections to the power grid, setback distances, 

maximum audible sound levels, shadow flicker, proper 

means of measuring noise, interference with radio, 

telephone, or television signals, or other matters. A 

political subdivision may not place a restriction on 

the installation or use of a wind energy system that 

is more restrictive than these rules.9

¶16 The enactment of Wis. Stat. § 196.378(4g)(b) began a 

three-year process that culminated in the promulgation of Wis. 

Admin. Code ch. PSC 128. 

¶17 Shortly after Wis. Stat. § 196.378(4g)(b) was enacted, 

the Public Service Commission appointed the members of the Wind 

Siting Council. The Wind Siting Council was created by the 

legislature to provide research and advice to the Public Service 

Commission on the regulation of wind energy systems.

10

 

9 See also Wis. Stat. § 66.0401(1m) ("No political 

subdivision may place any restriction . . . on the installation 

or use of a wind energy system that is more restrictive than the 

rules promulgated by the [Public Service Commission] under s. 

196.378(4g)(b)."). 

10 Wis. Stat. § 15.797(1)(b) ("There is created in the 

public service commission a wind siting council that consists 

of . . . members appointed by the public service commission for 

3-year terms . . . ."). 
No. 2013AP1407 

7 

¶18 Between March 29, 2010, and August 4, 2010, the Wind 

Siting Council met 20 times to discuss the restrictions a 

political subdivision should be permitted to impose on wind 

energy systems. At three of these meetings, the Wind Siting 

Council spent all or a substantial portion of its time 

considering the impact of wind energy systems on property 

values. 

¶19 The Wind Siting Council ultimately concluded that 

there is no causal relationship between the siting of wind 

turbines and a measurable change in property values. The Wind 

Siting Council set forth this conclusion (along with various 

other findings and recommendations) in its final recommendations 

to the Public Service Commission dated August 9, 2010. 

¶20 In developing the wind energy rules, the Public

Service Commission considered the Wind Siting Council's findings 

and recommendations in conjunction with information gathered 

from various other sources, including: 

• Wind-siting regulations and guidelines from a variety 

of states, including those immediately adjacent to 

Wisconsin; 

• A wide variety of local ordinances and community 

agreements from throughout the state; 

• Various white papers and best practices; 

• Papers from a conference on wind-siting effects; 

• Commission experience and precedent in wind-siting 

decisions; 

• Environmental impact statements prepared for wind

energy projects in Wisconsin; 
No. 2013AP1407 

8 

• Technical and scientific research and writing on wind 

siting; 

• Presentations and lectures given on wind-siting 

issues; 

• Research by non-profit organizations and educational 

institutions on wind siting; 

• Expert testimony on wind-siting issues; 

• Other states' investigations and precedent on wind 

siting; 

• Advice from consulting professionals with public 

health experience in Wisconsin; 

• Court cases on wind-siting issues; 

• Joint development agreements between wind energy 

developers and political subdivisions; 

• Lease agreements for wind energy developments; 

• Complaint resolution documentation from past 

complaints about wind energy projects; 

• The Public Service Commission's noise measurement

protocols, stray voltage protocols, and application

filing requirements; 

• Federal regulations and Federal Aviation 

Administration processes, standards, and provisions; 

• Other state agencies' processes regarding political 

subdivision decision-making; and 

• Research, writing, and presentations by the federal 

government and national energy labs on wind-siting 

issues. 

¶21 On May 17, 2010, the Public Service Commission 

submitted the first draft of its proposed wind energy rules to 
No. 2013AP1407 

9 

the Legislative Council staff.11 On June 14, 2010, after 

reviewing the Public Service Commission's proposal, the 

Legislative Council submitted a report to the Public Service 

Commission suggesting specific changes to the rules. The Public 

Service Commission incorporated many of the Legislative 

Council's suggestions. 

¶22 The Public Service Commission then held three public 

hearings around the state on its proposed wind energy rules: 

one in Fond du Lac on June 28, 2010; one in Tomah on June 29, 

2010; and one in Madison on June 30, 2010. Written comments 

from the public were accepted until noon on July 7, 2010. 

¶23 On August 31, 2010, pursuant to Wis. Stat. § 227.19, 

which provides for legislative review of proposed rules, the 

Public Service Commission submitted its proposed wind energy 

rules to the legislature. 

¶24 The proposed rules were accompanied by a report to the 

legislature, as required by Wis. Stat. § 227.19(2).12

 

11 See Wis. Stat. § 227.15 ("Prior to a public hearing on a 

proposed rule . . . an agency shall submit the proposed rule to 

the legislative council staff for review."). See also Wis. 

Stat. § 13.91 (creating a nonpartisan bureau entitled 

"Legislative Council Staff" and setting forth its duty to review 

proposed administrative rules). 

12 Wisconsin Stat. § 227.19(2) provides that "[a]n agency 

shall submit a notice to the chief clerk of each house of the 

legislature when a proposed rule is in final draft form. The 

notice shall be submitted in triplicate and shall be accompanied 

by a report in the form specified under sub. (3). . . ." 

(continued) 
No. 2013AP1407 

10 

¶25 The Public Service Commission did not submit a housing 

impact report. The Public Service Commission's report to the 

legislature did, however, comment on the likely effect of the 

proposed rules on property values.13 The report states as 

follows: 

Comments submitted by members of the public and 

government officials [c]ite studies, report individual 

experiences, and express fears that large wind energy 

systems have a negative impact on property 

values. . . . The property value impacts described 

included not being able to get a real estate company 

to list a property, a greatly reduced number of 

interested buyers, an increased length of time 

required to sell a property, and offers well below the 

appraised value of the property. . . . Existing 

property value studies contain insufficient data to

quantify property value impacts to properties one-half 

mile and closer to turbines (emphasis added). 

 

Subsection (3)(g) lists numerous matters to be included in 

the report an agency submits to the legislature with a proposed 

rule, including "[t]he report of the department of commerce, as 

required by s. 227.115, if a proposed rule directly or 

substantially affects the development, construction, cost, or 

availability of housing in this state." See note 4, supra. 

13 See Wis. Stat. § 227.115(3)(a) (explaining that housing 

impact reports shall contain information about the effect of a 

proposed agency rule on housing in this state, including the 

"policies, strategies and recommendations of the state housing 

strategy plan," the "cost of constructing, rehabilitating, 

improving or maintaining single family or multifamily dwellings, 

the "purchase price of housing," the "cost and availability of 

financing to purchase or develop housing," and "housing costs," 

as defined in Wis. Stat. § 560.9801(3)(a) and (b)).

The state housing strategy plan, a comprehensive five-year 

housing strategy plan, is governed by Wis. Stat. § 560.9802. 

The plan is submitted to the governor, the legislature, and the 

federal Department of Housing and Urban Development. 
No. 2013AP1407 

11 

¶26 The proposed wind energy rules were then subject to a 

lengthy legislative review process.14

¶27 The Senate Committee on Commerce, Utilities, Energy 

and Rail considered the proposed wind energy rules at a 

Committee hearing held on October 13, 2010. At the hearing, 

lobbyists and members of the public offered criticism and 

suggested changes to the proposed rules. Representatives from 

the Wisconsin Realtors Association and the Wisconsin Towns 

Association, two of the plaintiffs in the present case, were 

among those who shared their perspectives with the Senate 

Committee. 

¶28 Based on its review of the proposed rules and the 

testimony presented, the Senate Committee voted to return the 

proposed rules to the Public Service Commission for further 

consideration and potential modification. 

¶29 In a letter to the Public Service Commission dated 

November 30, 2010, Senator Jon Erpenbach, a member of the Senate 

Committee, "share[d] some perspective as to why" the proposed 

rules were being returned to the Public Service Commission. The 

letter summarizes the concerns raised by various parties at the 

Senate Committee hearing, including the concerns raised by the 

Wisconsin Realtors Association and the Wisconsin Towns 

Association. The letter then states: "I think the above 

 

14 See Wis. Stat. § 227.19 (governing legislative review of 

proposed administrative rules). 
No. 2013AP1407 

12 

outline gives the [Public Service] Commission a number of 

particular issues to re-examine within the rule[s]." 

¶30 Senator Erpenbach's letter is silent about the failure 

to file a housing impact report and says nothing about the 

effect of the proposed wind energy rules on property values or 

on housing generally. 

¶31 In response to the legislature's concerns, the Public 

Service Commission modified the proposed rules. The rules were 

resubmitted to the legislature on December 9, 2010.

¶32 On February 28, 2011, after the legislature's review 

period expired, the Public Service Commission promulgated its 

wind energy rules by publication in the Wisconsin Administrative 

Register. The rules, codified as Wis. Admin. Code ch. PSC 128, 

were to take effect the next day. 

¶33 On the first day the rules became effective (March 1, 

2011), the Joint Committee for Review of Administrative Rules 

suspended application of the rules pursuant to Wis. Stat. 

§ 227.26(2)(d).15

¶34 Suspension of a rule is temporary unless the rule is 

repealed.16 Wisconsin Admin. Code ch. PSC 128 was not repealed. 

Accordingly, Wis. Admin. Code ch. PSC 128 took effect on March 

 

15 Wisconsin Stat. § 227.26(2)(d), titled "Temporary 

suspension of rules," provides that the Joint Committee for 

Review of Administrative Rules "may suspend any rule by a 

majority vote of a quorum of the committee. . . ." 

16 See Wis. Stat. § 227.26(2)(i) (governing the repeal of a 

suspended rule). 
No. 2013AP1407 

13 

16, 2012. Nearly three years had elapsed since the legislature 

had initially directed the Public Service Commission to 

promulgate rules governing wind energy systems. 

¶35 On June 6, 2012, WRA filed a lawsuit in the circuit 

court (the subject of this review), seeking a declaration under 

Wis. Stat. § 227.40(4)(a) that Wis. Admin. Code ch. PSC 128 is 

invalid because it was promulgated without complying with 

statutory rule-making procedures 

¶36 Both WRA and the Public Service Commission filed 

motions for summary judgment. The circuit court heard the 

motions on April 29, 2013. At the conclusion of the hearing, 

the circuit court granted the Public Service Commission's motion 

for summary judgment, stating: 

I'm satisfied, when you look at the exact wording of 

the rule of 227.015 [sic], "If a proposed rule 

directly or substantially affects the development, 

construction costs, or availability of housing in the 

State," and it goes on, I'm satisfied that these wind 

siting rules——wind turbine siting rules do not and 

that there was no requirement to have a report. 

¶37 In an unpublished decision, the court of appeals 

affirmed the circuit court's summary judgment ruling. The court 

of appeals reasoned as follows: 

Wisconsin Stat. § 227.115(2) requires a housing impact 

report only when a proposed rule "directly or 

substantially affects the development, construction, 

cost, or availability of housing in this 

state[.]" . . . Although neither the [Public Service] 

Commission nor the wind siting council explicitly 

addressed § 227.115(2), both entities clearly found

that wind energy systems do not substantially affect 

property values. Based on that finding, the [Public 

Service] Commission could reasonably conclude its 
No. 2013AP1407 

14 

proposed rules . . . would not directly or 

substantially affect the development, construction,

cost, or availability of housing in Wisconsin. 

. . . . 

We must . . . presume that [Wis. Admin. Code ch.] PSC 

128 was duly promulgated and that the [Public Service 

Commission] complied with Wis. Stat. § 227.115(2). In 

other words, we must presume no housing impact report 

was required . . . .17

II 

¶38 We review the summary judgment in favor of the Public 

Service Commission using the same standards and methods applied 

by the circuit court.18 Under Wis. Stat. § 802.08(2), a moving 

party is entitled to summary judgment if there are no genuine 

issues of material fact and the moving party is entitled to 

judgment as a matter of law. 

¶39 In the instant case, the parties do not dispute the 

facts. The instant case raises only a question of law, namely 

whether the wind energy rules were promulgated by the Public 

Service Commission without compliance with statutory rule-making 

procedures.19 More specifically, the question is whether under 

 

17 Wis. Realtors Ass'n v. Pub. Serv. Comm'n, No. 2013AP1407, 

unpublished slip op., ¶¶12-13 (Wis. Ct. App. Mar. 25, 2014). 

18 Pawlowski v. Am. Family Mut. Ins. Co., 2009 WI 105, ¶15, 

322 Wis. 2d 21, 777 N.W.2d 67. 

19 See Wis. Stat. § 227.40(4)(a) (providing that the court 

shall declare an administrative rule invalid if it finds that 

(1) the rule violates constitutional provisions; (2) the rule 

exceeds the statutory authority of the agency; or (3) the rule 

was promulgated without compliance with statutory rule-making 

procedures). 
No. 2013AP1407 

15 

Wis. Stat. § 227.115(2), the Department of Commerce was required 

as a matter of law to prepare a housing impact report before 

Wis. Admin. Code ch. PSC 128 was submitted to the Legislative 

Council staff for review. As WRA acknowledges, the

interpretation and application of statutes ordinarily present 

questions of law this court decides independently of the circuit 

court and the court of appeals, but benefitting from their 

analyses.20

III 

¶40 Before addressing whether a housing impact report was 

required as a matter of law for Wis. Admin. Code ch. PSC 128, we 

set forth the statutory framework within which this dispute 

arises. 

¶41 The instant case involves the 2009-10 version of the 

Wisconsin Statutes. We caution that the statutory landscape of 

agency rule-making has since changed. See 2011 Wis. Act 21. 

One commentator has summarized these changes as follows: 

2011 Wisconsin Act 21 significantly changes how 

administrative rules are promulgated. Among other 

things, it narrows state agencies' rule-making 

authority, gives the governor new powers to approve or 

prevent the adoption of rules, expands the economicimpact-analysis requirement to all agencies, and 

 

20 Brown v. LIRC, 2003 WI 142, ¶11, 267 Wis. 2d 31, 671 

N.W.2d 279. 
No. 2013AP1407 

16 

expands venue in declaratory judgment actions to all 

counties.21

¶42 None of the changes enacted in 2011 are at issue in 

the instant case. Thus, we turn to the 2009-10 statutes that 

govern the present dispute. 

¶43 We previously set forth the statutory provision that 

directs the Public Service Commission to promulgate rules 

specifying the restrictions a political subdivision may impose 

on the installation or use of a wind energy system. See Wis. 

Stat. § 196.378(4g)(b), set forth in full at ¶15, above. The 

Public Service Commission adopted Wis. Admin. Code ch. PSC 128, 

the wind energy rules at issue, pursuant to this statutory 

authority. 

¶44 The promulgation of a rule by the Public Service 

Commission and judicial review of a rule promulgated by the 

Public Service Commission are both governed by Chapter 227 of 

the Wisconsin Statutes (titled "Administrative Procedure and 

Review"). Several statutory provisions within this chapter are 

relevant to the instant case. We set them forth in turn. 

¶45 Wisconsin Stat. § 227.40(1) provides that the 

exclusive method for judicial review of the validity of an 

 

21 Ronald Sklansky, Changing the Rules on Rulemaking, Wis. 

Lawyer, Aug. 2011, at 10, available at 

http://www.wisbar.org/newspublications/wisconsinlawyer/pages/wis

consin-lawyer.aspx?Volume=84&Issue=8. 

For a challenge to 2011 Wis. Act 21, see Coyne v. Walker, 

2015 WI App 21, 361 Wis. 2d 225, ___ N.W.2d ___ (petition for 

review filed Mar. 20, 2015). 
No. 2013AP1407 

17 

agency rule is a declaratory judgment action challenging the 

rule filed in the circuit court. The text of Wis. Stat. 

§ 227.40(1) is as follows: "[T]he 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 . . . ."22

¶46 WRA sought declaratory relief in the instant case 

pursuant to this statutory provision. 

¶47 When a declaratory judgment action challenging a rule 

is filed, Wis. Stat. § 227.40(4)(a) governs the limited 

circumstances under which a court grants relief. Under Wis. 

Stat. § 227.40(4)(a), a court shall declare a challenged rule 

invalid if it finds that (1) the rule violates constitutional 

provisions; (2) the rule exceeds the statutory authority of the 

agency; or (3) the rule was promulgated without compliance with 

statutory rule-making procedures. 

¶48 Wisconsin Stat. § 227.40(4)(a) states in full as 

follows: "In any proceeding pursuant to this section for 

judicial review of a rule, the court shall declare the rule 

invalid if it finds that it violates constitutional provisions 

or exceeds the statutory authority of the agency or was 

 

22 See also Wis. Stat. § 227.01(13) (defining "rule" for 

purposes of Wis. Stat. ch. 227 as "a regulation, standard, 

statement of policy or general order of general application 

which has the effect of law and which is issued by an agency to 

implement, interpret or make specific legislation enforced or 

administered by the agency or to govern the organization or 

procedure of the agency"). 
No. 2013AP1407 

18 

promulgated without compliance with statutory rule-making 

procedures." 

¶49 WRA does not assert that Wis. Admin. Code ch. PSC 128 

violates constitutional provisions or exceeds the statutory 

authority of the Public Service Commission.23 Instead, WRA 

describes its challenge to Wis. Admin. Code ch. PSC 128 as a 

"facial challenge to the rule[s]," arguing only that the rules 

were promulgated without compliance with statutory rule-making 

procedures. 

¶50 Thus, we continue by setting forth the statutory rulemaking procedures that are relevant to the instant case. 

¶51 Wisconsin Stat. § 227.20(1) requires an agency 

promulgating a rule to file a certified copy of the rule it is 

promulgating with the Legislative Reference Bureau.24 The 

statute provides: "An agency shall file a certified copy of 

each rule it promulgates with the legislative reference bureau. 

 

23 The Public Service Commission clearly had statutory 

authority to promulgate Wis. Admin. Code ch. PSC 128. Several 

provisions within Wis. Stat. ch. 196 (titled "Regulation of 

Public Utilities") authorize the Public Service Commission to 

promulgate rules governing public utilities. The provision 

relevant here, which we discussed previously, is Wis. Stat. 

§ 196.378(4g)(b) (directing the Public Service Commission to 

promulgate rules governing wind energy systems). 

24 The Legislative Reference Bureau is a nonpartisan bureau 

established by the legislature to provide "reference services" 

to the legislature, other government officials, and the public. 

See Wis. Stat. § 13.92. 
No. 2013AP1407 

19 

No rule is valid until the certified copy has been 

filed. . . ."25

¶52 The Public Service Commission filed a certified copy 

of the rules at issue with the Legislative Reference Bureau. 

¶53 Filing a certified copy of a rule with the Legislative 

Reference Bureau gives rise to a legislatively enacted 

presumption that the process by which the rules were promulgated 

was proper. More specifically, Wis. Stat. § 227.20(3) creates a 

presumption that a rule filed with the Legislative Reference 

Bureau was "duly promulgated" and that "all of the rule-making 

procedures required by [Chapter 227] were complied with." 

¶54 The full text of Wis. Stat. § 227.20(3) is as follows: 

(3) Filing a certified copy of a rule with the 

legislative reference bureau creates a 

presumption of all of the following: 

(a) That the rule was duly promulgated by the 

agency. 

(b) That the rule was filed and made available 

for public inspection on the date and time 

endorsed on it. 

(c) That all of the rule-making procedures 

required by this chapter were complied with. 

(d) That the text of the certified copy of the 

rule is the text as promulgated by the 

agency. 

¶55 Chapter 227 of the Wisconsin Statutes does not discuss 

this presumption further. 

 

25 Wis. Stat. § 227.20(1). 
No. 2013AP1407 

20 

¶56 Finally, we return to the statute with which we began: 

Wis. Stat. § 227.115(2), which governs housing impact reports. 

The full text of Wis. Stat. § 227.115(2) is as follows: 

(2) Report on rules affecting housing. If a proposed 

rule directly or substantially affects the 

development, construction, cost, or availability of

housing in this state, the department [of 

administration] shall prepare a report on the proposed 

rule before it is submitted to the legislative council 

staff under s. 227.15. The department may request any 

information from other state agencies, local 

governments or individuals or organizations that is

reasonably necessary for the department to prepare the 

report. The department shall prepare the report 

within 30 days after the rule is submitted to the 

department. 

¶57 These statutes provide the foundation for our analysis 

of the legal issue presented. 

IV 

¶58 As previously explained, the issue presented is

whether the wind energy rules were promulgated without 

compliance with statutory rule-making procedures, that is, 

whether the rules were promulgated without a housing impact 

report in violation of the law. 

¶59 We decide this issue as follows. 

¶60 First, we explain that because there is a 

legislatively enacted presumption that the wind energy rules 

were duly promulgated and that all statutory rule-making 

procedures were complied with, and because WRA is the party 

challenging the validity of the rules, WRA bears the burden of 

proof. WRA must prove that a housing impact report was required 
No. 2013AP1407 

21 

as a matter of law for the promulgation of Wis. Admin. Code ch. 

PSC 128. 

¶61 Second, we conclude that WRA has not fulfilled its 

burden of proving that as a matter of law, Wis. Admin. Code ch. 

PSC 128 was promulgated without compliance with statutory rulemaking procedures. 

¶62 Third, and finally, we explain that this court's 

respect for the doctrine of separation of powers and the role of 

the legislature counsels against our invalidating a chapter of 

agency rules that survived the statutorily prescribed process of 

legislative review. 

¶63 For these reasons, we uphold Wis. Admin. Code ch. PSC 

128 against WRA's challenge and declare on the basis of the 

record before us that the rules at issue were not promulgated 

without compliance with statutory rule-making procedures. 

A 

¶64 Because WRA contests what showing it must make in the 

instant case, we begin by explaining that WRA has the burden to 

prove that a housing impact report was required as a matter of 

law for Wis. Admin. Code ch. PSC 128. 

¶65 The Public Service Commission stresses that it filed a 

certified copy of Wis. Admin. Code ch. PSC 128 with the 

Legislative Reference Bureau and therefore has the benefit of 

the statutory presumption that it complied with all statutory 

rule-making procedures. 

¶66 The text of Wis. Stat. § 227.20(3) directs us to 

presume that the rule was duly promulgated by the agency and 
No. 2013AP1407 

22 

that all statutory rule-making procedures have been followed, 

including those pertaining to the preparation of a housing 

impact report. The statute apparently creates a rebuttable 

presumption, similar in operation to the generally recognized 

rebuttable presumption of the constitutionality of a statute; a 

court is to presume that the agency that promulgated the rule 

followed the statute regarding housing reports, but a party 

challenging the rule may rebut that presumption. The statute 

also requires courts to respect the legislature's role in 

reviewing and approving agency rules by presuming the validity 

of rules that have survived the legislature's scrutiny. 

¶67 In any event, as the party challenging the validity of 

the wind energy rules, WRA has the burden of proving the 

invalidity of the rules.26 Thus, even without the statutory 

presumption, WRA has the burden to prove that a housing impact 

report was required as a matter of law for Wis. Admin. Code ch. 

PSC 128. 

B 

¶68 WRA attempts to meet its burden of proof by setting 

forth unconvincing interpretations of Wis. Stat. § 227.115(2) 

 

26 "The burdens of pleading and proof with regard to most 

facts have been and should be assigned to the plaintiff who 

generally seeks to change the present state of affairs and who 

therefore naturally should be expected to bear the risk of 

failure of proof or persuasion." 2 Kenneth S. Brown, McCormick 

on Evidence § 337, at 648 (7th ed. 2013). See also Loeb v. 

Board of Regents, 29 Wis. 2d 159, 164, 138 N.W.2d 227 (1965); 

Currie v. DILHR, 210 Wis. 2d 380, 387, 565 N.W.2d 253 (Ct. App. 

1997). 
No. 2013AP1407 

23 

(governing housing impact reports) and Wis. Stat. 

§ 196.378(4g)(b) (directing the legislature to promulgate wind 

energy rules). 

¶69 WRA first contends that a housing impact report is 

required under Wis. Stat. § 227.115(2) whenever a proposed rule 

relates to housing and that rules promulgated pursuant to Wis. 

Stat. § 196.378(4g)(b) necessarily relate to housing. WRA 

further argues that under Wis. Stat. § 227.115(5), the Public 

Service Commission was required to, but did not, make an 

explicit determination of whether a housing impact report was 

required. 

¶70 We examine these arguments in turn. 

¶71 WRA asserts that in the context of Wis. Stat. 

§ 227.115(2), which requires the preparation of a housing impact 

report for proposed rules that directly or substantially affect 

the development, construction, cost, or availability of housing 

in this state, "the word 'affect' should be interpreted to mean 

'concern' or 'deal with.'"27

¶72 WRA does not attempt to define the meaning of the 

other words in the statute. WRA does not explain what the 

phrase "directly or substantially" means, what it means to 

affect the "cost" of housing, or what it means to affect housing 

"in this state." 

 

27 WRA's brief at 36. 
No. 2013AP1407 

24 

¶73 WRA implies, however, that the housing impact report 

requirement is far-reaching and that Wis. Stat. § 227.115(2) 

mandates the preparation of a housing impact report for all 

proposed rules that may in any way affect any kind of housing in 

the state. 

¶74 With this expansive interpretation of Wis. Stat. 

§ 227.115(2) in mind, WRA next contends that any and all rules 

promulgated pursuant to Wis. Stat. § 196.378(4g)(b), which 

directs the Public Service Commission to promulgate wind energy 

rules, require a housing impact report.28 WRA reasons that rules 

promulgated pursuant to Wis. Stat. § 196.378(4g)(b) will 

necessarily "concern" or "deal with" housing because such rules 

are intended to provide reasonable protection from the health 

effects of wind turbines, because "improper [wind turbine] 

setback[s] could unreasonably affect the health of those living 

near wind turbines,"29 and because such unreasonable health 

effects could in turn affect property values.30

¶75 WRA also reasons that rules promulgated pursuant to 

Wis. Stat. § 196.378(4g)(b) will necessarily "concern" or "deal 

with" housing because such rules limit the ability of local 

 

28 "On its face, Wis. Stat. § 196.378(4g)(b) directed the 

PSC to create a rule that the Legislature expected would 'affect 

housing' in this state." WRA's brief at 18. 

29 WRA's brief at 15. 

30 "Logically, if living in houses located too close to wind 

turbines would be unhealthy, that knowledge would affect the 

desirability and value of such homes." WRA's brief at 38. 
No. 2013AP1407 

25 

governmental units to regulate the installation and use of wind 

turbines in their communities for the purpose of protecting 

housing. Thus, in WRA's view, the content of the rules 

established pursuant to Wis. Stat. § 196.378(4g)(b) is 

irrelevant; a housing impact report is required no matter what 

the rules provide. 

¶76 Based on WRA's interpretation of these two statutes, 

WRA concludes that all wind energy rules have the potential to 

affect property values and, consequently, that a housing impact 

report was required for the specific wind energy rules at issue. 

¶77 WRA's reasoning is not convincing. 

¶78 First, WRA seems to view Wis. Stat. § 227.115(2) as 

requiring a housing impact report whenever a proposed rule in 

any way relates to housing. This reading of the statute ignores 

the statutory text. The statute uses the phrase "directly or 

substantially," which demonstrates that not just any effect will 

trigger the housing impact report requirement. WRA reads this 

phrase out of the statute. 

¶79 The court of appeals explained that "a housing impact 

report is not required simply because the subject matter of a 

proposed rule relates to housing, or because the rule 

tangentially affects housing in some way."31 We agree. The 

ordinary meaning of the phrase "directly or substantially 

affects" is not "affects in any way" or "relates to in some 

 

31 Wis. Realtors Ass'n v. Pub. Serv. Comm'n, No. 2013AP1407, 

unpublished slip op., ¶14 (Wis. Ct. App. Mar. 25, 2014). 
No. 2013AP1407 

26 

way," as WRA seems to believe. Wisconsin Stat. § 227.115(2) 

requires something more. 

¶80 The drafting history of Wis. Stat. § 227.115(2)

supports our interpretation of the housing impact report 

requirement. During the drafting process, the words "directly 

or indirectly" were replaced with the words "directly or 

substantially." See 1995 A.B. 384, Assembly Substitute Am. 1. 

We agree with the court of appeals that this modification of the 

bill's language suggests that the legislature did not intend for 

a housing impact report to be prepared every time a proposed 

rule has some indirect or incidental effect on housing. 

¶81 WRA's interpretation of Wis. Stat. § 196.378(4g)(b), 

which directs the Public Service Commission to promulgate wind 

energy rules, is equally implausible. Nothing in Wis. Stat. 

§ 196.378(4g)(b) states explicitly or implicitly that rules 

governing wind energy systems will necessarily directly or 

substantially affect the development, construction, cost, or 

availability of housing in this state, such that a housing 

impact report will be required. 

¶82 Wisconsin Stat. § 196.378(4g)(b) instructs the Public 

Service Commission to develop rules that "provide reasonable 

protection from any health effects . . . associated with wind 

energy systems." (Emphasis added.) There is no mention in Wis. 

Stat. § 196.378(4g)(b) of protecting housing generally or of 

protecting property values specifically. See Wis. Stat. 

§ 196.378(4g)(b), set forth in full at ¶15, above. 
No. 2013AP1407 

27 

¶83 A review of Wis. Stat. § 13.099(2) supports our

conclusion that rules promulgated pursuant to Wis. Stat. 

§ 196.378(4g)(b) do not necessarily require a housing impact 

report. 

¶84 Wisconsin Stat. § 13.099(2) requires a housing impact 

report for any bill introduced in the legislature that "directly 

or substantially affects the development, construction, cost or 

availability of housing in this state . . . ." Thus, Wis. Stat. 

§ 13.099(2) creates a housing impact report requirement for 

bills similar to the housing impact report requirement for 

proposed rules. 

¶85 When the legislature introduced the bill that was 

subsequently enacted as Wis. Stat. § 196.378(4g)(b), it did not 

request a housing impact report and no housing impact report was 

prepared. The strong, unrebutted implication is that the 

legislature did not consider introduction of the bill that 

became Wis. Stat. § 196.378(4g)(b) (or the wind energy rules 

that would be promulgated thereunder) as "directly or 

substantially affect[ing] the development, construction, cost or 

availability of housing in this state." 

¶86 There is, in sum, no foundation for WRA's assertion 

that the legislature "expected" the wind energy rules 

promulgated pursuant to Wis. Stat. § 196.378(4g)(b) to 

necessarily require a housing impact report under Wis. Stat. 

§ 227.115(2). WRA's interpretations of Wis. Stat. §§ 227.115(2) 

and 196.378(4g)(b) are not cogent. 
No. 2013AP1407 

28 

¶87 We turn next to WRA's argument that the wind energy 

rules were necessarily promulgated without compliance with 

statutory rule-making procedures because the Public Service 

Commission was required to, but did not, make an explicit 

determination of whether a housing impact report was required. 

¶88 According to WRA, the record shows that during the 

time the Public Service Commission was engaged in the 

promulgation of Wis. Admin. Code ch. PSC 128, neither the Public 

Service Commission itself nor the Wind Siting Council ever 

discussed or voted upon whether a housing impact report was 

necessary. WRA apparently believes that an explicit, on-therecord determination by the Public Service Commission regarding 

whether a housing impact report is needed was required before 

the wind energy rules could be promulgated. 

¶89 WRA does not, however, point to any statutory 

provision mandating such an explicit determination by the Public 

Service Commission or any other entity, and we find none. We 

decline to read a procedural requirement into the statutes that 

the legislature opted not to impose.32

¶90 The absence of an explicit, on-the-record 

determination regarding whether a housing impact report is 

required is therefore not dispositive and it does not persuade 

 

32 "We should not read into the statute language that the 

legislature did not put in." State v. Matasek, 2014 WI 27, ¶20, 

353 Wis. 2d 601, 846 N.W.2d 811 (quoting Brauneis v. LIRC, 2000 

WI 69, ¶27, 236 Wis. 2d 27, 612 N.W.2d 635). 
No. 2013AP1407 

29 

us that the wind energy rules were promulgated without 

compliance with statutory rule-making procedures. 

¶91 In sum, WRA's interpretations of Wis. Stat. 

§§ 227.115(2) and 196.378(4g)(b) are unconvincing, and we are 

not persuaded that the Public Service Commission was required to 

make an on-the-record determination regarding the necessity of a 

housing impact report. WRA has not fulfilled its burden of 

proving that a housing impact report was required as a matter of 

law for Wis. Admin. Code ch. PSC 128. 

C 

¶92 We turn to one final consideration that weighs against 

our granting WRA relief in the present case. 

¶93 Although WRA recognizes that Wis. Admin. Code ch. PSC 

128 was promulgated after an active and lengthy legislative 

review process, WRA nevertheless asks this court to declare that 

the failure to submit a housing impact report renders Wis. 

Admin. Code ch. PSC 128 invalid. 

¶94 According to WRA, the Public Service Commission

"usurped the Legislature's power when it decided that it had 

adequately protected the public [through Wis. Admin. Code ch. 

PSC 128] and that no second opinion [in the form of a housing 

impact report] [wa]s therefore required."33

¶95 Like WRA, we are concerned about usurpation of the 

legislative function. We conclude, however, that if we granted 

 

33 WRA's brief at 15. 
No. 2013AP1407 

30 

WRA its requested relief in the instant case, we would be 

usurping the legislative function by striking down rules that 

survived the legislature's scrutiny. 

¶96 The separation of powers doctrine informs us in this 

matter. "The Wisconsin constitution creates three separate coordinate branches of government, no branch subordinate to the 

other, no branch to arrogate to itself control over the other 

except as is provided by the constitution, and no branch to 

exercise the power committed by the constitution to another."34

¶97 Chapter 227 of the Wisconsin Statutes governs agency 

rule-making and legislative review of agency rules, among other 

things. These statutes comprise a system devised by the 

legislature itself to govern the legislature's role in and 

oversight of agency rule-making. Chapter 227 provides for 

expansive legislative review of rules both before their 

promulgation35 and after their promulgation.36

¶98 Pursuant to these statutes, the legislature has the 

opportunity to request modifications to proposed rules,37 to 

 

34 State v. Holmes, 106 Wis. 2d 31, 42, 315 N.W.2d 703 

(1982). 

35 See Wis. Stat. § 227.19 ("Legislative Review Prior to 

Promulgation"). 

36 See Wis. Stat. § 227.26 ("Legislative Review After

Promulgation; Joint Committee for Review of Administrative 

Rules"). 

37 See Wis. Stat. § 227.19(4)(b); Wis. Stat. § 227.19(4)(d); 

Wis. Stat. § 227.19(5)(b). 
No. 2013AP1407 

31 

prevent the promulgation of proposed rules,38 to temporarily 

suspend rules that have been promulgated,39 and to repeal 

promulgated rules altogether.40

¶99 In light of the statutes' providing for expansive 

legislative review of rules and limited judicial review of 

rules, it is incumbent upon the court to exercise both deference 

and restraint in the present case. 

¶100 The legislature did not merely passively permit the 

promulgation of Wis. Admin. Code ch. PSC 128. On the contrary, 

the legislature held a hearing on Wis. Admin. Code ch. PSC 128 

prior to its promulgation and then sent the rules back to the 

Public Service Commission for further consideration. 

¶101 WRA had an opportunity to register its objections to 

the rules before the legislature. The rules were modified in 

response to the legislature's concerns, which encompassed WRA's 

concerns. 

¶102 Even after its promulgation, Wis. Admin. Code ch. PSC 

128 was temporarily suspended for yet another round of 

legislative review. 

¶103 In sum, the legislature had ample opportunity to 

express reservations about the proposed wind energy rules, to 

request changes to the proposed rules, to prevent promulgation 

 

38 Wis. Stat. § 227.19(5)(e); Wis. Stat. § 227.19(5)(f). 

39 Wis. Stat. § 227.26(2)(d). 

40 Wis. Stat. § 227.26(2)(f); Wis. Stat. § 227.26(2)(i). 
No. 2013AP1407 

32 

of the proposed rules, and to suspend and even repeal the rules 

after they were promulgated. 

¶104 The fact is, after a lengthy and active period of 

review, the legislature allowed the rules set forth in Wis. 

Admin. Code ch. PSC 128 to go into effect. 

¶105 The Public Service Commission's wind energy rules 

survived the legislative review process and now have "the force 

and effect of law in Wisconsin."41

¶106 In the instant case, the court's role is limited. We 

may determine only whether the rules were promulgated without 

compliance with statutory rule-making procedures. WRA has 

failed to meet its burden of proving non-compliance. 

¶107 Nonetheless, our opinion in the instant case should 

not be read to imply that WRA's frustration with the process by 

which Wis. Admin. Code ch. PSC 128 was promulgated is entirely 

unwarranted. 

¶108 WRA stated at oral argument that it greatly values 

Wis. Stat. § 227.115(2). In WRA's view, the second opinion a 

housing impact report provides to the legislature constitutes a 

necessary check in the process of promulgating a rule that 

affects housing. 

¶109 WRA also stated at oral argument that to its 

knowledge, no housing impact report has ever been requested or 

 

41 See State ex rel. Staples v. DHSS, 115 Wis. 2d 363, 367, 

340 N.W.2d 194 (1983). 
No. 2013AP1407 

33 

produced under Wis. Stat. § 227.115(2).42 Thus, WRA believes a 

critical step in the process of promulgating a rule that affects 

housing has been routinely ignored and has been circumvented in 

the instant case. 

¶110 WRA's concerns, while understandable, do not persuade 

us to grant it relief. 

¶111 We conclude that WRA has not demonstrated that a 

housing impact report was required as a matter of law for Wis. 

Admin. Code ch. PSC 128. The texts of the governing statutes 

and the wind energy rules do not demonstrate as a matter of law 

that the rules directly or substantially affect the development, 

construction, cost, or availability of housing in this state. 

¶112 We further conclude that invalidating Wis. Admin. Code 

ch. PSC 128 under the circumstances presented in the instant 

case would infringe on the role of the legislature, which we 

decline to do. 

¶113 Accordingly, WRA's challenge to Wis. Admin. Code ch. 

PSC 128 fails. 

By the Court.—The decision of the court of appeals is 

affirmed. 

 

42 We, too, have been unable to confirm that any housing 

impact report has ever been prepared pursuant to Wis. Stat. 

§ 227.115(2). 
No. 2013AP1407.pdr 

1 

¶114 PATIENCE DRAKE ROGGENSACK, C.J. 

(dissenting). Wisconsin Realtors Association, Wisconsin 

Builders Association, Wisconsin Towns Association, Jon E. 

Morehouse, Sr. and Ervin E. Selk (hereinafter Wisconsin 

Realtors) challenge the Public Service Commission's (the 

Commission) promulgation of Wis. Admin. Code ch. PSC 128 because 

the Commission did not follow the required rule-making procedure 

set out in Wis. Stat. § 227.115(2) (2009-10).1 I conclude that 

the Commission was obligated, as a matter of law, to obtain a 

§ 227.115(2) housing report because ch. PSC 128 directly affects 

housing. The Commission failed to obtain a § 227.115(2) housing 

report; therefore, ch. PSC 128 is invalid. Wis. Stat. 

§ 227.40(4)(a). Accordingly, I respectfully dissent from the 

majority opinion. 

I. BACKGROUND 

¶115 This case reaches us on competing motions for summary 

judgment in regard to whether Wis. Admin. Code ch. PSC 128 was 

lawfully promulgated. Chapter PSC 128 regulates wind energy 

systems. In relation to housing, it establishes the following: 

maximum setbacks of wind turbines from dwellings; permissible 

wind turbine noise levels, as measured at nearby dwellings; the 

number of hours per year during which dwellings can be subjected 

to shadow flicker cast by wind turbines. 

¶116 The legislature was concerned that wind turbines may 

affect both the health of Wisconsin citizens and housing. Wis. 

 

1 All subsequent references to the Wisconsin Statutes are to 

the 2009-10 version unless otherwise indicated. 
No. 2013AP1407.pdr 

2 

Stat. § 196.378(4g)(e); Wis. Stat. § 227.115(2). However, the 

legislature did not want each local unit of government imposing 

its own regulations, which could unnecessarily impede the 

development of wind energy in Wisconsin. Accordingly, the 

legislature directed the Commission to promulgate rules that 

would reasonably protect people in their homes from health 

effects and reduced property values that could result from 

nearby wind turbines, while at the same time creating a uniform 

system of regulations for wind energy systems throughout the 

state. § 196.378(4g)(b). 

¶117 In promulgating Wis. Admin. Code ch. PSC 128, the 

Commission was required to obtain a comprehensive housing report 

from the Department of Commerce2 if its proposed rule "directly 

or substantially affects the development, construction, cost, or 

availability of housing in this state." Wis. Stat.

§ 227.115(2). The required housing report was to be prepared 

"before [the proposed rule] is submitted to the legislative 

council staff under s. 227.15." Id. 

¶118 The record and arguments of the parties reveal that 

the Commission never requested or obtained the required housing 

report from the Department. Apparently, the Commission never 

considered its obligations under Wis. Stat. § 227.115(2) because 

§ 227.115 is not listed in the Commission's "Plain Language 

 

2 At the time Wis. Admin. Code ch. PSC 128 was created, the 

Department of Commerce was to have prepared the housing report. 

Wis. Stat. § 227.115(1)(a). The current version of

§ 227.115(1)(a) (2013-14) requires that the report be prepared 

by the Department of Administration. 
No. 2013AP1407.pdr 

3 

Analysis" that it submitted to the Legislature and in which the 

Commission mentioned other statutes. 

II. DISCUSSION 

¶119 The majority opinion employs three methods by which it 

permits the Commission to ignore the command of the legislature. 

First, it misunderstands Wisconsin Realtors' argument, and 

therefore, never addresses it. Second, without deciding what 

Wis. Stat. § 227.115(2) means, the majority opinion chooses not 

to apply § 227.115(2) to Wis. Admin. Code ch. PSC 128.3 In so 

doing, it ignores the policy choice of the legislature, which 

requires a housing report if a Commission rule directly or 

substantially affects housing. Third, the majority opinion 

employs Wis. Stat. § 227.20(3) to create a presumption that the 

Commission followed all applicable rule-making procedures based 

on the Commission's filing of a certified copy of ch. PSC 128 

with the Legislative Reference Bureau.4 

A. Standard of Review 

¶120 We review summary judgment granted to the Commission 

by the circuit court and affirmed by the court of appeals. We 

review independently, as a matter of law, whether summary 

judgment was properly granted. Grygiel v. Monches Fish & Game 

Club, Inc., 2010 WI 93, ¶12, 328 Wis. 2d 436, 787 N.W.2d 6. Our 

review centers on interpretation and application of statutes. 

Statutory interpretation and application present questions of 

 

3 Majority op., ¶7. 

4 Id., ¶¶66-67. 
No. 2013AP1407.pdr 

4 

law for our independent review; however, we benefit from the 

reasoning of other courts' decisions. Richards v. Badger Mut. 

Ins. Co., 2008 WI 52, ¶14, 309 Wis. 2d 541, 749 N.W.2d 581. 

This controversy also involves the interpretation and 

application of administrative rules. These too present 

questions of law for our independent review. Brown v. Brown, 

177 Wis. 2d 512, 516, 503 N.W.2d 280 (Ct. App. 1993). 

B. Rule Promulgation 

1. "Directly affects" 

¶121 All parties agree that if Wis. Admin. Code ch. PSC 128 

directly affects housing, the Commission was required to obtain 

a housing report from the Department before it filed the rule 

with the Legislative Reference Bureau. The parties' dispute 

centers on the meaning of "directly affects" in Wis. Stat. 

§ 227.115(2). This issue is clouded in the majority opinion 

because it never bothers to interpret § 227.115(2) and tell the 

reader what "directly affects" means. It is also clouded by the 

majority opinion's repeated mischaracterization of Wisconsin 

Realtors' argument.5 

¶122 Determination of the meaning of "directly affects" is 

informed by the meaning of Wis. Stat. § 196.378(4g)(b) because 

§ 196.378(4g)(b) is the enabling legislation for Wis. Admin. 

 

5 For example, the majority asserts, that Wisconsin Realtors 

"contends that a housing impact report is required under Wis. 

Stat. § 227.115(2) whenever a proposed rule relates to housing." 

Majority op., ¶69. That is not an accurate representation of 

Wisconsin Realtors' contention. Rather, Wisconsin Realtors 

contends that a housing report is required when a Commission's 

rule directly or substantially affects housing. 
No. 2013AP1407.pdr 

5 

Code ch. PSC 128. Therefore, the Commission was required to 

follow the legislative directives of § 196.378(4g)(b) when it 

promulgated ch. PSC 128. Wis. Hosp. Ass'n v. Natural Res. Bd., 

156 Wis. 2d 688, 706, 457 N.W.2d 879 (Ct. App. 1990) (explaining 

that on review "court[s] should identify the elements of the 

enabling statute and match the rule against those elements"). 

The meaning of Wis. Stat. § 227.115(2) also informs the 

controversy before us because of the proximity of wind turbines 

to housing. 

¶123 I interpret Wis. Stat. § 196.378(4g)(b) and Wis. Stat. 

§ 227.115(2) to ascertain their meaning. Kalal v. Circuit Court 

for Dane Cnty., 2004 WI 58, ¶43, 271 Wis. 2d 633, 681 N.W.2d 

110. Scope, context and purpose are relevant to a plain meaning 

analysis. Id., ¶48. I also note that "[a]n administrative 

agency has only those powers which are expressly conferred or 

can be fairly implied from the statutes under which it 

operates." Oneida Cnty. v. Converse, 180 Wis. 2d 120, 125, 508 

N.W.2d 416 (1993). 

¶124 Wisconsin Stat. § 227.115(2) addresses rules that 

affect housing such that, together with Wis. Stat. 

§ 196.378(4g)(b), they establish requirements for the 

Commission's promulgation of Wis. Admin. Code ch. PSC 128. 

Furthermore, because these statutes bear on the same subject 

matter, here, the promulgation of administrative rules that 

regulate wind turbines, they are construed in that context so 

that they are consistent with one another. McDonough v. DWD, 

227 Wis. 2d 271, 279, 595 N.W.2d 686 (1999). Accordingly, the 
No. 2013AP1407.pdr 

6 

Commission was required to have exercised its rule-making 

authority within the framework established by these statutes. 

¶125 I begin with the words chosen by the legislature in 

its enabling legislation. Wisconsin Stat. § 196.378(4g)(b) 

provides in relevant part: 

The commission shall . . . promulgate rules that 

specify the restrictions a political subdivision may 

impose on the installation or use of a wind energy 

system consistent with the conditions specified in s. 

66.0401(1m)(a) to (c). The subject matter of these

rules shall include setback requirements that provide 

reasonable protection from any health effects, 

including health effects from noise and shadow 

flicker, associated with wind energy systems. The 

subject matter of these rules . . . may include . . . 

set-back distances, maximum audible sound levels, 

shadow flicker, proper means of measuring noise, 

interference with radio, telephone, or television 

signals, or other matters. A political subdivision

may not place a restriction on the installation or use 

of a wind energy system that is more restrictive than 

these rules. 

¶126 The legislative grant of authority to the Commission 

in Wis. Stat. § 196.378(4g)(b) described the legislature's 

purpose and topics that the Commission was required to address 

when promulgating Wis. Admin. Code ch. PSC 128. Section 

196.378(4g)(b) plainly states that the rules enacted "shall 

include setback requirements that provide reasonable protection 

from any health effects, including health effects from noise and 

shadow flicker." Section 196.378(4g)(b) also granted the 

Commission discretionary authority in other areas. 

¶127 There are good reasons for the legislature's mandate 

that the Commission enact setback requirements for wind 

turbines. It is well known that wind turbines may be harmful to 
No. 2013AP1407.pdr 

7 

the health of those who live close to them and are sensitive to 

the noise and shadow flicker they produce. See Roy D. Jeffery, 

et al., Adverse Health Effects of Industrial Wind Turbines, 59 

Canadian Family Physician 473 (2013); Jerry Punch & Richard 

James, Negative Health Effects of Noise from Industrial Wind 

Turbines: Some Background, 

http://www.hearinghealthmatters.org/hearingviews/2014/windturbine-health-problems-noise (last visited March 26, 2015). 

¶128 Directly connected to legislatively focused health 

concerns, Wis. Admin. Code § PSC 128.13 establishes siting 

criteria for wind turbines in regard to setback distance and 

height requirements; Wis. Admin. Code § PSC 128.14 addresses 

noise criteria;6 Wis. Admin. Code § PSC 128.15 addresses shadow 

flicker.7 Accordingly, the Commission's application of Wis.

Stat. § 196.378(4g)(b) is driven by wind turbines' effects on 

the health of people who live or work in proximity to wind 

turbines. 

 

6 Wisconsin Admin. Code § PSC 128.14 provides in relevant 

part: "[A]n owner shall operate the wind energy system so that 

the noise attributable to the wind energy system does not exceed 

50 dBA during daytime hours and 45 dBA during nighttime hours." 

§ PSC 128.14(3)(a). The determination of noise level is made at 

"the outside wall nearest to the closest wind turbine." § PSC 

128.14(4). 

7 Wisconsin Admin. Code § PSC 128.15(1)(b) and (2) provides 

in relevant part: "An owner shall design the proposed wind 

energy system to minimize shadow flicker at a residence or 

occupied community building . . . [so it] does not cause more 

than 30 hours per year of shadow flicker." 
No. 2013AP1407.pdr 

8 

¶129 Wisconsin Admin. Code § PSC 128.13(1)(a) provides for 

permissible setbacks, depending on the type of building that is 

nearby. The largest setback is 1,250 feet. The setback from 

wind turbines generally is measured as the distance from the 

wind turbine tower to the nearest point on the foundation of a 

residence or occupied community building. § PSC 128.13(1)(b). 

¶130 The setbacks of Wis. Admin. Code § PSC 128.13 lessen 

the noise and shadow flicker impacts of wind turbines on 

residents and real estate that are as far away from the wind 

turbines as § PSC 128.13(1)(a) provides. Stated otherwise, 

without consideration of the setbacks of § PSC 128.13, wind 

turbines could be placed in the middle of residential 

communities with houses only a few feet away so long as no local 

ordinance regulated placement. 

¶131 Because Wis. Admin. Code ch. PSC 128 prevents 

placement of wind turbines that are inconsistent with its 

provisions, ch. PSC 128 lessens the effects of wind turbines on 

the health of people who reside nearby. Chapter PSC 128 does so 

by subjecting the housing in which people live to less noise and 

less shadow flicker. Stated otherwise, §§ PSC 128.13, 128.14 

and 128.15 directly affect the levels of noise and shadow 

flicker that wind turbines inflict on nearby housing. 

¶132 The effect of wind turbines on the health of people 

living nearby was considered by the Wind Siting Council when ch. 

PSC 128 was enacted. Furthermore, Wis. Stat. § 196.378(4g)(e) 
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requires periodic review of wind turbines' effects on health.8 

Because wind turbines have the potential to affect the health of 

those who live nearby, wind turbines also will affect the market 

for those properties because some buyers will reject the 

properties because they believe that wind turbines will have a 

negative effect on their health. See, e.g., Nina Pierpont, Wind 

Turbine Syndrome: A Report on a Natural Experiment (2009) 

(available at http://www.windturbinesyndrome.com). 

¶133 The legislature recognized that health effects

associated with wind turbines may be connected to the distance 

between wind turbines and housing when it required that setbacks 

provide "reasonable protection from any health effects." Wis. 

Stat. § 196.378(4g)(b). As health effects caused by wind 

turbines also affect the real estate market, the legislature 

required the Commission to obtain a housing report while it was 

in the process of promulgating Wis. Admin. Code ch. PSC 128. 

Wisconsin Stat. § 227.115 specified the findings that the 

Department was required to make in assessing a proposed rule's 

effect on housing. Section 227.115(3) provides: 

(a) The report of the department shall contain 

information about the effect of the proposed rule on 

housing in this state, including information on the

effect of the proposed rule on all of the following: 

 

8 The Wind Siting Council is required to "survey the peerreviewed scientific research regarding the health impacts of 

wind energy systems." Wis. Stat. § 196.378(4g)(e); see 

Wisconsin Wind Siting Council, Wind Turbine Siting-Health Review 

and Wind Siting Policy Update, 3-4, 14 (2014). The Wind Siting 

Council addressed health concerns, not housing concerns. 
No. 2013AP1407.pdr 

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1. The policies, strategies and recommendations 

of the state housing strategy plan. 

2. The cost of constructing, rehabilitating, 

improving or maintaining single family or multifamily 

dwellings. 

3. The purchase price of housing. 

4. The cost and availability of financing to 

purchase or develop housing. 

5. Housing costs, as defined in s. 560.9801(3)(a) 

and (b). 

(b) The report shall analyze the relative impact 

of the effects of the proposed rule on low– and 

moderate– income households. 

¶134 The legislature required the Commission to request a 

housing report from the Department if a "proposed rule directly 

or substantially affects the development, construction, cost, or 

availability of housing" in Wisconsin. Wis. Stat. § 227.115(2). 

Section 227.115(2) requires the Commission to do so before the 

proposed rule is forwarded to the legislative council staff 

under Wis. Stat. § 227.15. 

¶135 Wisconsin Stat. § 227.115(2)'s phrase, "directly or 

substantially affects," is not defined in § 227.115, nor has it 

been interpreted in prior cases. However, the phrase "directly 

affects" has been interpreted in other contexts. For example, 

Sausen v. Town of Black Creek Bd. of Review, 2014 WI 9, ¶3, 352 

Wis. 2d 576, 843 N.W.2d 39, concludes that an assessor's 

classification of property "directly affects" the property's 

assessment because of the classification's relationship to 

statutory percentages of assessment. State v. Long, 2009 WI 36, 

¶51, 317 Wis. 2d 92, 765 N.W.2d 557, explains that proof of a 
No. 2013AP1407.pdr 

11 

prior conviction "directly affects" a liberty interest because 

such proof is relevant to the term of incarceration to which a 

defendant may be subjected. City of Appleton v. Town of 

Menasha, 142 Wis. 2d 870, 879, 419 N.W.2d 249 (1988), concludes 

that any illegal expenditure of public funds "directly affects" 

taxpayers because taxpayers suffer a pecuniary loss as a result. 

¶136 In each decision, "directly affects" has been defined 

by a nexus between an act and the interest of a person that is 

influenced by the act. Accordingly, I conclude that the plain 

meaning of "directly affects" in Wis. Stat. § 227.115(2) 

includes an act that has a nexus to housing. That is, in order 

for a proposed rule to "directly affect" housing, there must be 

a nexus between the proposed rule and housing. 

¶137 As I have explained, Wis. Admin. Code ch. PSC 128 has 

a nexus to housing due to the setbacks of § PSC 128.13, the 

decibel noise levels of § PSC 128.14 and the minimization of 

shadow flicker in § PSC 128.15, all of which regulate wind 

turbines' effects on nearby housing. Stated otherwise, the 

plain meaning of "directly affects" in Wis. Stat. § 227.115(2) 

includes those proposed rules that regulate wind turbine 

setbacks, noise levels and shadow flicker. 

¶138 These obvious nexuses are the core of Wisconsin 

Realtors' contention from which it concluded that a housing 
No. 2013AP1407.pdr 

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report was required by Wis. Stat. § 227.115(2).9 Stated 

otherwise, it is the position of Wisconsin Realtors that 

§ 227.115(2) does not require that a rule have a negative effect 

on housing before a housing report is required by § 227.115(2).10 

Rather, the legislative threshold for requiring a housing report 

under § 227.115(2) is triggered whenever housing is "directly 

affected" by the terms of a proposed rule. I agree with 

Wisconsin Realtors. The statute says nothing about obtaining a 

housing report only when a rule negatively or inadequately 

affects housing. 

¶139 Furthermore, Wis. Stat. § 196.378(4g)(b) and Wis. 

Stat. § 227.115(2) must be read together because they bear on 

the same subject matter, proposed administrative rules. 

McDonough, 227 Wis. 2d at 279. When we do so, the nexus between 

the health effects of wind turbines and housing becomes 

apparent. 

¶140 Wisconsin Admin. Code §§ PSC 128.13, 128.14 and 128.15 

directly affect noise levels and shadow flicker to which housing 

is subjected by the operation of wind turbines. It follows then 

as a matter of course that the effect of wind turbines on 

 

9 The majority opinion repeatedly misstates Wisconsin 

Realtors' position. See majority op., e.g., ¶¶69-76. In so 

doing, the majority opinion sets up straw men that it can knock 

down. However, more importantly, this device permits the 

majority opinion to escape addressing Wisconsin Realtors' actual 

argument about why Wis. Admin. Code ch. PSC 128 directly affects 

housing. 

10 If there was ever any doubt, Wisconsin Realtors' position 

in this regard was clearly stated at oral argument under 

questioning by the court. 
No. 2013AP1407.pdr 

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housing is central to carrying out the plain meaning of 

§ 196.378(4g)(b), which required the Commission to draft rules 

that addressed wind turbines' effects on health. Stated 

otherwise, housing is central to the Commission's compliance 

with § 196.378(4g)(b) because it is due to living in nearby 

housing that the health of Wisconsin residents is most affected 

by wind turbines. Therefore, if the Commission's rules did not 

directly affect housing, those rules would have a limited impact 

on health, contrary to the enabling legislation for ch. PSC 128. 

¶141 Both the court of appeals and the majority opinion 

misunderstand Wisconsin Realtors' argument. For example, the 

court of appeals said, 

To demonstrate that a housing impact report was 

required, [Wisconsin Realtors] must show that the 

setback, noise, and shadow flicker restrictions 

imposed by PSC 128 are so inadequate that the rules

will directly or substantially affect the development, 

construction, cost, or availability of housing in 

Wisconsin. 

Wis. Realtors Ass'n v. Pub. Serv. Comm'n of Wis., No. 

2013AP1407, unpublished slip op., ¶18 (Wis. Ct. App. March 25, 

2014). 

¶142 However, no showing of inadequacy is required of 

Wisconsin Realtors under Wis. Stat. § 227.115(2) in order to 

demonstrate that Wis. Admin. Code ch. PSC 128 directly affects 

housing. The plain meaning of the words that the legislature 

chose for Wis. Stat. § 227.115(2) does not require that the 

rules the Commission proposed be "inadequate" in order for those 

rules to directly affect housing. All that is required is a 
No. 2013AP1407.pdr 

14 

nexus between the proposed rules and their effect on housing. 

It is beyond dispute that ch. PSC 128 has such a nexus. 

¶143 Once that threshold is met, a housing report is 

required. It is the task of the Department, as it prepares the 

housing report, to assess whether the administrative rules were 

adequate or inadequate to protect housing. The Department's 

assessment and report was to be done during the rule-making 

process. Stated otherwise, the legislature gave the Department 

the task of assessing whether proposed rules are adequate to 

protect the housing of people who reside near wind turbines.11 

The legislature did not give that task to persons whose health 

and property values are impacted by the proposed rule. That was 

a burden for government to shoulder, which the court of appeals12

and the majority opinion13 have mistakenly placed on those 

Wisconsin residents who live near wind turbines. 

 

11 See supra note 2. 

12 That the court of appeals added words to Wis. Stat. 

§ 227.115(2) and thereby constructed a standard contrary to what 

the legislature mandated is confirmed by the court's conclusion 

that "[w]ithout presenting evidence that the restrictions 

imposed by PSC 128 are insufficient, [Wisconsin Realtors] cannot 

rebut the presumption that no housing impact report was 

required." Wis. Realtors Ass'n v. Pub. Serv. Comm'n of Wis., 

No. 2013AP1407, unpublished slip op., ¶18 (Wis. Ct. App. 

March 25, 2014). 

13 See majority op., ¶7. 
No. 2013AP1407.pdr 

15 

2. Presumption 

¶144 The majority opinion also concludes that if all else 

fails, Wis. Admin. Code ch. PSC 128 is saved by the presumption 

of Wis. Stat. § 227.20(3), which provides in relevant part: 

(3) Filing a certified copy of a rule with the 

legislative reference bureau creates a presumption of 

all of the following: 

. . . . 

(c) That all of the rule-making procedures 

required by this chapter were complied with. 

¶145 I take judicial notice that a certified copy of Wis. 

Admin. Code ch. PSC 128 was filed with the Legislative Reference 

Bureau. However, because §§ PSC 128.13, 128.14 and 128.15 

directly affect housing, a Wis. Stat. § 227.115(2) housing 

report was required. All agree that the Commission did not 

request the Department to prepare a housing report, and the 

Department provided no such report. Because the Commission was 

required to request a housing report and did not do so, the 

presumption of Wis. Stat. § 227.20(3)(c) has been rebutted. 

¶146 Furthermore, if governmental agencies could ignore 

legislative directives simply by filing a certified copy of a 

proposed rule with the Legislative Reference Bureau, there would 

be a great temptation for busy agency employees not to bother 

with fully complying with legislative directives during rulemaking. Accordingly, the presumption of Wis. Stat.

§ 227.20(3)(c) cannot save the Commission's rules that were 

enacted with disregard for the express directives of the 

Legislature. See Dane Cnty. v. DHSS, 79 Wis. 2d 323, 331-32, 
No. 2013AP1407.pdr 

16 

255 N.W.2d 539 (1977) (concluding that Dane County could 

challenge the manner in which the Department of Health and 

Social Services had promulgated its rule). 

C. Remedy 

¶147 I have concluded that the plain meaning of Wis. Stat. 

§ 227.115(2) required the Commission, as a matter of law, to 

obtain a housing report from the Department when it promulgated 

Wis. Admin. Code ch. PSC 128; that it failed to do so and that 

its failure is not saved by Wis. Stat. § 227.20(3)(c). The 

question now becomes, what is the remedy for the Commission's 

failure. 

¶148 Wisconsin Realtors began this declaratory judgment 

action pursuant to Wis. Stat. § 227.40. Therefore, I look to 

that section's provisions for guidance. Wisconsin Stat. 

§ 227.40(4)(a) states: 

In any proceeding pursuant to this section for 

judicial review of a rule, the court shall declare the 

rule invalid if it finds that it violates 

constitutional provisions or exceeds the statutory 

authority of the agency or was promulgated without 

compliance with statutory rule-making procedures. 

It is under the last provision: the rule "was promulgated 

without compliance with statutory rule-making procedures," on 

which Wisconsin Realtors' claim lies. 

¶149 Courts have reviewed other rules that have been 

promulgated without compliance with rule-making procedures and 

have held such rules invalid. For example, in Cholvin v. DHFS, 

2008 WI App 127, ¶¶32-34, 313 Wis. 2d 749, 758 N.W.2d 118, the 

court of appeals held a directive that the Department of Health 
No. 2013AP1407.pdr 

17 

and Family Services had given to Susan Cholvin was invalid 

because the Department did not employ statutorily required rulemaking to promulgate the directive. See also Heritage Credit 

Union v. Office of Credit Unions, 2001 WI App 213, ¶24, 247 

Wis. 2d 589, 634 N.W.2d 593 (explaining that failure to comply 

with rule-making procedures is one ground for declaring a rule 

invalid). 

¶150 The Commission did not comply with Wis. Stat. 

§ 227.115(2), and as a matter of law, it was required to do so. 

The plain meaning of Wis. Stat. § 227.40(4)(a) provides the 

remedy: "the court shall declare the rule invalid." 

Accordingly, I follow that directive and conclude that ch. PSC 

128 is invalid. 

III. CONCLUSION 

¶151 I conclude that the Commission was obligated, as a 

matter of law, to obtain a Wis. Stat. § 227.115(2) housing 

report because Wis. Admin. Code ch. PSC 128 directly affects 

housing. The Commission failed to obtain a § 227.115(2) housing 

report; therefore, ch. PSC 128 is invalid. Wis. Stat. 

§ 227.40(4)(a). Accordingly, I respectfully dissent from the 

majority opinion. 

¶152 I am authorized to state that Justice ANNETTE 

KINGSLAND ZIEGLER joins this dissent. 
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