Larsen v. Munz Corp.

482 N.W.2d 332, 167 Wis. 2d 583, 1992 Wisc. LEXIS 187

• Court: Wisconsin Supreme Court
• Decided: April 13, 1992
• Docket: 91-2811
• Status: Published

Opinions

PER CURIAM.

The Munz Corporation (Munz) and the State of Wisconsin Department, of Administration (DOA) seek review of a published decision of the court of appeals, 166 Wis. 2d 751, 480 N.W.2d 800 (Ct. App. 1992). The court of appeals concluded that the DOA was required to obtain an Environmental Impact Statement (EIS) for the state administration building at 101 East Wilson Street in the City of Madison. That decision reversed, in part, the decision of the Dane County Circuit Court, P. Charles Jones, circuit judge, which determined that an EIS was not required, and instead ordered an Environmental Assessment (EA).

The single environmental concern involves "aesthetics," more particularly, the plaintiffs, Robert Larsen, and the public's view of the columns beneath the dome of the state capitol. Mr. Larsen's view of the dome is not obstructed. His view of part of the columns beneath the dome is obstructed.

The issue is not whether the building exceeds the statutory height limits of the State Capitol Preservation View Act, sec. 16.842, Stats. The building does not exceed the statutory limits.

Nor is there any question raised that the DOA is attempting to hold itself to a lesser environmental standard than would apply to a private citizen or private business such as Munz. It is undisputed that if this were a wholly private development by Munz, it would not implicate any of the Wisconsin Environmental Policy Act's (WEPA) requirements. Here, the DOA has always recognized the applicability of WEPA.

The issue, rather, is whether the DOA was required to obtain an EIS for this project.¹

In resolving this issue, we must first decide whether the DOA reasonably determined that this building was not a "Type I" action. Under the DOA's rules, any building that is a Type I automatically requires an EIS.

If the DOA's decision that this was not a Type I action was reasonable, we must further decide two questions: 1) whether the DOA's subsequent actions met the procedural requirements of the Wisconsin Environmental Policy Act (WEPA), and 2) whether the DOA's threshold determination that an EIS was not required was reasonable.

We conclude that it was reasonable for the DOA to determine that the building was not a Type I action. We agree with the DOA that this project was a "hybrid" in that it did not specifically fit into any of the particular category types contained in the DOA's WEPA regulations.

Such a determination by the DOA, however, does not exempt it from the procedural requirements of WEPA that there be an opportunity for public participation and a reviewable record assembled with respect to the threshold EIS decision. Because the DOA prepared both a Preliminary Environmental Impact Assessment (PEIA) and an EA which afforded the opportunity for public participation and a reviewable record on the question of the threshold EIS decision, we conclude that the DOA fully complied with the procedural requirements of WEPA.

Finally, given the presence of a PEIA and the assumed adequacy of the EA, we further conclude that the threshold decision of the DOA that an EIS was not required was reasonable.²

Accordingly, we reverse the decision of the court of appeals.

h — I

We begin with a review of the procedural history of this case. Larsen commenced this action seeking a declaration that the DOA was required to file an EIS under sec. 1.11, Stats., for this project. He alleged that the top two floors of the proposed ten-story building would obstruct his view of the capítol building, specifically the columns supporting the capítol dome. Larsen was the only plaintiff and as noted, his only environmental objection concerned the building's obstruction of the view of the capítol from his house and a nearby park.

The circuit court rejected Larsen's request that the DOA be ordered to prepare an EIS with respect to this building. Noting that the building was being developed and constructed by Munz, a private organization on private land not previously owned or developed by the state, the circuit court concluded that this proposed action did not constitute a Type I "Facilities development" by DOA under its WEPA regulations, Wis. Admin. Code sec. Adm 60. Instead, the circuit court found this to be a Type II action under Wis. Admin. Code sec. Adm 60.03, and ordered DOA to prepare an EA so as to determine whether an EIS was needed for this building project.

The court of appeals concluded that this was a Type I action within the meaning of Wis. Admin. Code sec. Adm 60.03 and, therefore, that an EIS was required.

HH HH

We turn now to a review of the relevant law and legal history surrounding this case. WEPA requires each state agency to consider the environmental implications of all its proposals and before proceeding with any major action significantly affecting the quality of the human environment, prepare a detailed statement — an EIS — concerning the environmental effects of the proposed action. Section l.ll(2)(c), Stats. That statute also requires all state agencies to follow substantially the guidelines of the United States Council on Environmental Quality (CEQ) which are adopted to facilitate the administration of the National Environmental Policy Act (NEPA), 42 U.S.C. § 4341, et seq., the federal statute on which WEPA is patterned. These CEQ guidelines are found in 40 C.F.R. § 1500, et seq. By executive order, the governor of this state has promulgated suggested guidelines for state agencies to follow in complying with WEPA. See Guidelines for the Implementation of the Wisconsin Environmental Policy Act, issued by Executive Order No. 69, of December 5, 1973 (hereafter the Guidelines); Revised Order, Guidelines for the Implementation of the Wisconsin Environmental Policy Act, Executive Order No. 26 of February 12, 1976 (hereafter Revised Guidelines). These guidelines, intended to facilitate administrative decisions under WEPA, are adaptations of the CEQ guidelines and require each state agency to classify its actions into the following categories:

(1) Type I actions clearly are major . . . and thus will always require environmental impact statements;

(2) Type II actions may or may not be major or significantly affect the quality of the human environment depending on the facts of the particular case, and thus may not require environmental impact statement preparation; . . . and

(3) Type III actions are ones where the action could not be major. . . and thus will not require environmental impact statements.

Revised Guidelines at 5.

Although WEPA requires the preparation of an EIS for "major actions significantly affecting the quality of the human environment," sec. l.ll(2)(c), Stats., the statute does not define what constitutes "major" action, what environmental effects are "significant," nor how an agency should make the threshold determination of whether an action requires an EIS. The guidelines for the implementation of WEPA issued by the governor's executive order suggested that each agency should apply the definition of "significantly affecting the quality of the human environment" to various types of agency actions. The Guidelines identified several examples of agency actions including:

(a) Facilities development: Planning, designing and construction of physical facilities to be owned and operated by state agencies or the state. Examples include highways, buildings and park facilities.

(g) Plans: Formal plans, both short and long term, which through their implementation could have a significant environmental effect. Examples include transportation plans, land use plans, and facilities plans.

Revised Guidelines at 2-3 (emphasis added).

DOA, with some modifications, adopted these suggested guidelines as regulations in Wis. Admin. Code sec. Adm 60. DOA's WEPA regulations defined "action" as "any activity, initiated by department or initiated by someone outside state government, which could not have occurred but for the department and which may affect the human environment." Wis. Admin. Code sec. Adm 60.02(1). To facilitate DOA's analysis of whether the proposed action was a "[m]ajor action . . . significantly affect[ing] the quality of the human environment," Id. at 60.02(8), DOA categorized its actions into an "action type list." Wis. Admin. Code sec. Adm 60.03. This list categorizes specific agency actions into the three types noted above. Under the DOA list, the only identified Type I action which would always require the preparation of an EIS is "Facilities development." The DOA list describes "Facilities development" as: "planning, designing, contracting for and constructing physical facilities when the department of administration is to be the mem-aging authority as defined in ss. 16.84 and 16.845, Stats., i.e. the 'lead agency,' " when the facilities are "new and are on parcels not previously developed by the state." This description of "Facilities development" is similar but not identical to the "Facilities development" action described in the governor's suggested guidelines.³ The DOA "Facilities development" action does not include the requirement that the facilities are to be owned by the state.

Type I actions under DOA regulations always require an EIS. Type II actions require an EA, and a subsequent EIS only if the EA reveals, on a case-specific basis, that the action involves significant environmental impacts. The CEQ regulations promulgated to implement the NEPA are also applicable to WEPA, see sec. 1.11(2)(c), Stats., and Wisconsin's Envtl. Decade, Inc. v. PSC, 79 Wis. 2d 409, 428-30, 256 N.W.2d 149 (1977) (WED III). Those CEQ regulations also require federal agencies to identify and categorize action types. 40 C.F.R. § 1507.3. If a proposed action by a federal agency does not fit within the CEQ identified action type categories, the agency must prepare an EA, and then based on that EA, make its determination of whether the proposed noncategorical action requires an EIS. 40 C.F.R. (b). Thus, under CEQ regulations, a federal agency is directed to prepare an EA when the proposed agency action does not precisely fit within any of the action type categories — i.e., the "... proposed action is one without precedent." 40 C.F.R. § 1501.4(e)(2)(ii).

Because those CEQ regulations also apply to state agencies, when a proposed action by a state agency does not fit the pre-determined action type categories, the state agency is still required to determine whether such an action is a major action that significantly affects the quality of the human environment. This is accomplished by the preparation of an EA which, depending on the conclusions reached in that document, may or may not lead to the subsequent preparation of an EIS. Id. at 40 C.F.R. § 1501.4.

HH h-H HH

We now review the facts of this case, all of which are undisputed. In 1990, the DOA decided to lease office space in downtown Madison. Proposals were solicited and the DOA subsequently narrowed its selection down to three, including one by Munz which proposed to construct a building on its site at 101 East Wilson Street and then lease that building to the state for DOA offices for a 20-year period; the lease would include an option to purchase which the state could exercise at specified times. In November of 1990, the DOA hired a private firm of engineers, architects and planners to prepare a "Preliminary Environmental Impact Assessment" (PEIA) on the three potential building sites. After receiving that PEIA, the DOA selected the Munz proposal and requested approval from the state building commission for the long-term lease/purchase option. The building commission subsequently approved that request on November 21,1990.⁴

The DOA also informed the building commission that the PEIA had concluded the proposed building would have no significant impact on the quality of the human environment and that this analysis fulfilled the requirements of WEPA. Consistent with that conclusion, DOA did not and has not prepared an EIS for this project.

Construction commenced on the building in April, 1991. On June 5,1991, Larsen commenced this declaratory judgment action. On July 28,1991, the circuit court determined that the DOA's decision to enter into a lease, containing a purchase option for the building under construction, was a Type II action as defined in Wis. Admin. Code sec. Adm 60.03, and accordingly ordered an EA prepared evaluating the potential environmental impacts of the new building. Because the PEIA the DOA had previously prepared did not examine, evaluate or comment on the Munz site from environmental or aesthetic perspectives, and did not determine whether the proposed action constituted "a major state action significantly affecting the quality of the human environment," the circuit court found the PEIA was not a complete or sufficient EA as prescribed by Wis. Admin. Code sec. Adm 60.02(4). The court, however, refused to enjoin the project pending the preparation and receipt of the EA.

The DOA subsequently prepared and filed an extensive EA containing a description of the proposed building, a summary of the alternatives considered, a description of how the environment might be affected by the building, an evaluation of the significant primary and secondary effects the building could have on the quality of the environment, a discussion of potential conflicts in the building's use of available resources, and a summary of, and responses to, comments received from the public concerning the building. This supplemental EA also contained specific discussions of potential impacts the building might have on air quality, noise, land use, zoning, historic landmarks, transportation and parking, utility services, urban design and aesthetics, the natural environment, displacement and relocation of office space, and on the economy of Dane County. It also evaluated the affect the building will have on the public's view of the state capítol and detailed the factual investigation the DOA undertook in preparing the EA. Before filing this supplemental EA, DOA provided for a 30-day public comment period and held a public hearing on the draft EA. In November, 1991 the DOA issued the final EA concluding this building would have no significant impact on the quality of the human environment. The DOA then issued a formal determination that its lease/ purchase of the Munz building was not a major state action significantly affecting the quality of the human environment, and consequently concluded that an EIS was not required.

Larsen filed an objection in the circuit court challenging the adequacy of this supplemental EA; he also renewed his request that the circuit court order the DOA to prepare an EIS. The circuit court agreed with DOA's argument that any challenge to the substantive adequacy of that EA should be brought in a separate ch. 227 review proceeding;⁵ thus, the court declined to address that issue.

After receiving the EA and hearing arguments from both sides, the circuit court concluded that this EA supplementing the earlier PEIA fully satisfied the procedural requirements of WEPA and the DOA regulations requiring the preparation of an EA for a Type II agency action. Accordingly, the circuit court dismissed Larsen's declaratory judgment action against Munz and the DOA, and also dismissed his claim that the building violated sec. 16.842, Stats.

Larsen appealed. The court of appeals affirmed the dismissal of Larsen's challenge under sec. 16.842, Stats., but reversed that part of the circuit court's order dismissing Larsen's declaratory judgment action which sought a declaration that DOA must prepare an EIS. The court of appeals rejected the circuit court's conclusion that this lease/purchase arrangement was a Type II action by the DOA requiring the preparation of an EA. Instead, the majority of the court of appeals concluded that DOA's lease of the building with an option to purchase constituted the "planning, designing, contracting for and constructing" of a physical facility by the DOA on a parcel not previously developed by the state and was thus a Type I action under Wis. Admin. Code sec. Adm 60.03. Consequently, the court of appeals ordered the DOA to prepare an EIS. The court said it would not defer to the DOA's presumed conclusion that this was a Type III action for which no EIS need be prepared because there was nothing in the record to indicate the DOA ever made a specific determination regarding whether this was a Type I, II or III agency action as defined in Wis. Admin. Code sec. Adm 60.03. The majority further asserted that the only reasonable inference from the record was that the DOA either ignored or proceeded in ignorance of its own regulation. Therefore the court would not presume that the agency had acted in accordance with the law, see State ex rel. Sell v. Milwaukee County, 65 Wis. 2d 219, 226-27, 222 N.W.2d 592 (1974), and would not defer to DOA's determination to not prepare an EIS.

This court granted DOA and Munz' petition to review the court of appeals' decision.

> J-H

The primary issue presented on this review is whether the DOA was required to prepare an EIS. The answer to that question involves several underlying issues.

We turn now to the first of those issues: whether the DOA reasonably determined that this project was not a Type I action. We begin our analysis by noting that Larsen makes no claim that the building will have a significant impact on the human environment with respect to air quality, water pollution, traffic congestion or any other specific environmental concerns other than his sole claim that this proposed building will have an adverse aesthetic impact by partially obstructing the view of the state capítol from his home and from a nearby county park. WEPA, however, protects aesthetic, conservational and recreational interests as well as physical or economic interests. See Fox v. DHSS, 112 Wis. 2d 514, 525, 334 N.W.2d 532 (1983) and Milwaukee Brewers v. DHSS, 130 Wis. 2d 56, 65, 387 N.W.2d 245 (1986). We neither imply nor suggest any criticism of the plaintiff for bringing this action based solely on the claim that the building will have an adverse aesthetic impact on the state capítol view.⁶ Indeed, our prior decisions have encouraged and recognized individual standing to question compliance with WEPA when it is alleged that agency action will harm the environment in the area where a person resides. Wisconsin's Envtl. Decade, Inc. v. PSC, 69 Wis. 2d 1, 230 N.W.2d 243 (1975). Moreover, both NEPA and WEPA seek to encourage effective citizen participation in the administrative process. See Special Student Project, Jean M. Hanson, Agency Decision-making Under the Wisconsin Environmental Policy Act, 1977 Wis. L. Rev. 111, 121. This policy is consistent with Wisconsin's political traditions favoring citizen participation in government. Id. at 122 n.47.

In this case, the court of appeals agreed with Larsen's primary argument that DOA failed to comply with its own rules because it did not prepare an EIS for this lease/purchase arrangement, which the court found to be a Type I agency action as that category is defined in Wis. Admin. Code sec. Adm 60.03. The court of appeals said it owed no deference to DOA's decision not to prepare an EIS because there was no indication in the record that DOA interpreted or applied its own regulations in this situation. We disagree with this standard of review.

We apply the test of reasonableness to review a threshold decision under WEPA not to prepare an EIS. WED III, 79 Wis. 2d at 423. We apply the same test in this case to the department's conclusion that this was not a Type I action automatically requiring an EIS.

The court of appeals faulted DOA for failing to make a specific determination that this proposed action was not a Type I action under the DOA regulations. We believe that any requirement that the agency issue a specific finding stating that "This is not a Type I action" would exalt form over substance. In this case, the DOA's actions speak louder than the absence of its words. The DOA's actions reveal an implicit determination that this lease/purchase technique was not a Type I action for which an EIS was required. This determination, albeit implicit, is fully reviewable.

We conclude that implicit determination was reasonable under the circumstances presented here. This lease/purchase arrangement for this building does not easily fit within the Type I category defined in the DOA regulations as "Facilities development." The DOA's "action type list" does not include a category describing the lease of a new, privately constructed building for which the state has been given an option to purchase. The agency could reasonably conclude that because this building was privately financed and privately designed and constructed on private property, the lease/purchase option arrangement — especially since DOA had not yet exercised its purchase option — was not a Type I agency action. The DOA's regulations classify as Type I only those actions which involve the department's planning, designing, contracting for, constructing and developing new facilities on property not previously developed by the state. Here the DOA was neither the designer, contractor, constructor, nor developer of this building. The Munz Corporation served those functions — albeit with significant guidance from the DOA. The DOA entered into a long-term lease/option to purchase agreement and significantly contributed to the design of the building, but left the financing, primary designing, contracting, construction and development of the Munz building to a private developer — the Munz Corporation. Under these circumstances, it was eminently reasonable for the DOA to conclude that this was not a Type I agency action.

Moreover, as noted above, the DOA regulations categorizing agency actions are patterned after the guidelines suggested by the governor's executive order. Those original guidelines included a state ownership component in the "Facilities development" Type I category. In the instant case, it was reasonable for DOA to assume that because it would not "own" the building unless and until it exercised its option to purchase, this proposed action was not a Type I action.

In addition, as noted above, the 1976 Revised Guidelines included an additional action category entitled "Plans," defined as including ”[f]ormal plans, both short and long term, which through their implementation could have a significant environmental effect." Examples for this category included facilities plans. The subsequently adopted DOA regulations did not include this "Plans" category; other agencies likewise failed to include this category as part of their implementation of WEPA. See Hanson, 1977 Wis. L. Rev., supra at 172 n. 278. This "Plans" category would have specifically applied to facilities — i.e., buildings. In the absence of this specific "Plans" category in the regulations, it was reasonable for the DOA to conclude that the plan for this building, using a long-term lease and an option for the state to purchase the building, was not a type of agency action categorized in the DOA regulations implementing WEPA. Therefore, the DOA could reasonably conclude that this was not a Type I action automatically requiring an EIS. Because there was a rational basis for the DOA's implicit determination that this was not a Type I action, the court of appeals should have deferred to the agency's implicit conclusion that this was not a Type I action automatically requiring an EIS. See Wisconsin's Envtl. Decade, Inc. v. DILHR, 104 Wis. 2d 640, 644, 312 N.W.2d 749 (1981).⁷

V.

The second underlying issue we address is whether the DOA's subsequent actions regarding this project met the procedural requirements of WEPA.

It is undisputed that a wholly private development by Munz would not implicate any of the WEPA requirements; only state agencies are governed by WEPA. Section l.ll(2)(c), Stats. The lease/purchase technique used in this case blurs this distinction because this building will ultimately be owned by the state even though it was constructed by private means. While the applicability of WEPA might be in doubt in this kind of "hybrid" situation, the requirements of the federal counterpart, NEPA extends to private developers where there is a "partnership" with the federal government, such as when federal funds are involved in the construction. See City of Oak Creek v. Milwaukee Metro Sewerage District, 576 F.Supp. 482, 489 (E.D. Wis. 1983).

The court of appeals apparently believed that WEPA or DOA's regulations require that each proposed action be "typed" and classified according to the action type list contained in Wis. Admin. Code sec. Adm 60.03, and further, that such typing decision must be a formal, reviewable step in the process specifically identifying whether the proposed action is Type I, II or III. We disagree. There is no such requirement in WEPA, in the guidelines, or in the DOA regulations.

The specific categories listed in the DOA regulations merely permit the agency to pre-determine the need for and the type of environmental review required by WEPA for certain of the agency's actions. This typing or categorization regulation does not purport to result in an exhaustive, all-inclusive list applicable to every possible agency action. Here, the action type list contained in Wis. Admin. Code sec. Adm 60.03 did not identify the technique of using a long-term lease with an option to purchase as a type of facilities development. That does not mean, however, that this arrangement was exempt from WEPA. All it means is that DOA could not, based on a pre-determined categorization list, conclude that this action was or was not a major action significantly affecting the quality of the human environment. If the proposed action did not meet the pre-determined action type categories listed in the DOA regulations, then under the CEQ guidelines (which are also applicable to WEPA, see sec. 1.11(2)(c), Stats., and Wisconsin's Envtl. Decade, Inc. v. DILHR, 104 Wis. 2d at 663 (Heffernan, J., dissenting)) an EA must be prepared because the nature of the proposed action "is one without precedent." 40 C.F.R. § 1501.4(e)(2) (ii). Here the lease/ purchase action was without precedent in the DOA regulations;⁸ thus, at a minimum, under the CEQ guidelines, the DOA was required to prepare an EA.

We conclude that the DOA, when confronted with this uncategorized development involving a lease/ purchase option, appropriately responded by first preparing a PEIA. Moreover, any deficiencies in the format and scope of that PEIA were rectified by the supplemental EA prepared pursuant to the circuit court's order. That EA determined that no EIS was necessary because this building was not a major action significantly affecting the human environment. The PEIA prepared in this case, as buttressed by the court-ordered EA, gave the DOA "a reviewable record reflecting a preliminary factual investigation covering the relevant areas of environmental concern in sufficient depth to permit a reasonably informed preliminary judgment of the environmental consequences. ..." WED III, 79 Wis. 2d at 425. The fact that the supplemental EA was prepared pursuant to court order, not agency initiative, is of no moment. As Chief Judge Eich pointed out in his dissent in the court of appeals, "Regardless of the impetus behind the preparation of the assessment, it is part and parcel of the department's decision-making process." 166 Wis. 2d 751, 755 (Eich, C.J., dissenting).

This court has previously held that WEPA does not require an evidentiary hearing regarding the threshold EIS decision. WED III, 79 Wis. 2d at 441. We have further recognized that the manner of the proceedings is left to the sound discretion of the agency involved, as long as there is an opportunity for public participation and there is a reviewable record assembled. Id. at 442. Moreover, the record need not follow any particular form. Id. at 425 n.15. Those requirements were satisfied here. Although public opinion or participation might not have been solicited during the preparation of the PEIA, it is undisputed that following the preparation of the court-ordered EA supplementing that PEIA, there was a 30-day period provided for public comment. In addition, a public hearing was held at which Larsen spoke in opposition to the EA's conclusion that no EIS was required. The PEIA prepared in this case, as supplemented by the EA, provided a reviewable record as to the agency's exercise of its discretion regarding the negative EIS determination. We conclude under the circumstances of this case, that the DOA sufficiently complied with the procedural requirements of WEPA.

<1 HH

Having concluded that the DOA's implicit determination that this was not a Type I project was reasonable, and having further concluded that the DOA met all the procedural requirements of WEPA, we must now determine whether the DOA's threshold decision that an EIS was not required was reasonable.

As we have previously recognized, WEPA is patterned after the NEPA. WED III, 79 Wis. 2d at 414; see also Wisconsin's Envtl. Decade, Inc. v. DNR, 115 Wis. 2d 381, 395, 340 N.W.2d 722 (1983). Because of the similarity, federal precedent construing NEPA is viewed as persuasive authority in interpreting WEPA. Wisconsin's Envtl. Decade, Inc. v. PSC, 79 Wis. 2d 161, 174, 255 N.W.2d 917 (1977). In Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350, 351 (1989), the United States Supreme Court explained NEPA in the following manner:

[I]t is now well settled that NEPA itself does not mandate particular results, but simply prescribes the necessary process. ... If the adverse environmental effects of the proposed action are adequately identified and evaluated, the agency is not constrained by NEPA from deciding that other values outweigh the environmental costs. . . . NEPA merely prohibits uninformed — rather than unwise — agency action.

We conclude the process followed in the instant case sufficiently satisfied those requirements. The record reveals the agency decision in this case not to prepare an EIS for this project was informed and reasonable. It was based on the PEIA and the subsequent EA. We assume without deciding that the EA was adequate. Once an agency has made its fully informed and well-considered decision, a reviewing court may not interfere with agency discretion choosing the action to be taken, or as in this case, the decision not to prepare an EIS. See Strycker's Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 227-28, (1980).

The procedure followed in this case resulted in a reviewable record reflecting a preliminary factual investigation covering the relevant area of environmental concern — aesthetics⁹—in sufficient depth to permit a reasonably informed preliminary judgment of the environmental consequences of this agency action. WED III, 79 Wis. 2d at 425. Because the DOA's determination that this building was not a major action significantly affecting the quality of the aesthetics of the human environment follows from the results of the PEIA and EA investigation conducted in this case, the DOA's threshold decision not to prepare an EIS was reasonable. The test is not whether this court at the outset would have ordered an EIS for this project; rather, the test is whether the DOA's decision not to prepare an EIS was reasonable under the circumstances. WED III, 79 Wis. 2d at 423. Because it was, we reverse the court of appeals' decision requiring the DOA to prepare an EIS for this new building which will house the offices of the Department of Administration.

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

1 The dissent concludes that the DOA "did not follow its own rules in this case." Larsen v. Munz Corporation, dissent op. at 608. We specifically disavow that conclusion. There is no support for it in this record nor in the law. Although the dissent is unclear as to what "rules" the DOA failed to follow, it appears the dissent is referring to either the "rule" that an EIS was required (which begs the question inasmuch as that is the issue we must resolve), or the "rule" that the DOA must type all its actions as Type I, Type II, or Type III with no exception, or the "rule" that a Preliminary Environmental Impact Assessment together with an Environmental Impact Assessment do not constitute a sufficiently reviewable record. These are not the "rules," these are the dissent's misinterpretations of the "rules." These are not the rules unless a majority of this court says so, which of course we have not and do not.

2 For the purposes of this case only, we assume, without deciding, that the EA prepared in this case was adequate. Larsen has filed a ch. 227 judicial review proceeding challenging the substantive adequacy of this EA. That proceeding, case No. 91-CV-4616, is currently pending in the Dane County Circuit Court, Branch 7.

3 It should also be noted that the DOA did not include in its WEPA regulations any provision regarding "Plans" as suggested in the Revised Guidelines in para. (G). Thus, the DOA "action type list" although it refers to facilities "planning," does not include a specific reference to facilities plans.

4 The lease was signed, and in September of 1991, the state exercised its option to purchase the building. However, as of the date of oral argument in this case, the closing on the purchase of this building by the state had not yet taken place.

5 See n.1, supra. Because the ch. 227 judicial review proceeding is still pending, the issue of the substantive adequacy of the EA prepared in this case is not now before this court in this review.

6 We note, however, that aesthetic concerns, without more, have been held to be an insufficient basis for requiring an EIS. In River Road Alliance v. Corps of Engineers of U.S. Army, 764 F.2d 445 (7th Cir. 1985), cert. denied, 475 U.S. 1055 (1986), the plaintiff challenged an EA based primarily on the aesthetic impacts a proposed barge fleeting facility would have on the view of the Mississippi River near St. Louis. In reversing the district court's decision requiring the Corps of Engineers to prepare an EIS, the 7th Circuit wrote:

[Aesthetic objections alone will rarely compel the preparation of an environmental impact statement. Aesthetic values do not lend themselves to measurement or elaborate analysis. See Maryland-National Capital Park and Planning Commission v. U.S. Postal Service, 487 F.2d 1029, 1038-39 (D.C. Cir. 1973). The necessary judgments are inherently subjective and normally can be made as reliably on the basis of an environmental assessment as on the basis of a much lengthier and costlier environmental impact statement. 764 F.2d at 451.

7 We do not, as the dissent would have it, defer to DOA's failure to follow its rules. Larsen u. Munz Corporations, dissenting op. at 614. We simply defer to the agency's reasonable and rationally based implicit determination that this building project was not a Type I action automatically requiring an EIS.

8 The dissent apparently believes that this project was not an action without precedent under WEPA regulations because the construction of a building was "well within the imagination" of the DOA drafters of the Action Type List. Larsen v. Munz Corporation, dissenting op. at 613. We agree that a building project including a lease/purchase agreement is not a new or unique concept or technique. A building constructed by a private developer on private land with the intent to then lease the building to the state on a long-term basis with an option to purchase is not, however, one of the pre-categorized action types identified in DOA's regulations. Thus, that technique is an agency action without precedent in the action type list adopted by DOA. It is not a Type I action for which an EIS is always required.

9 Larsen claims that although this building complies with the specific height requirements of the SCVPA, sec. 16.842, Stats., it nevertheless is inconsistent with the legislature's intent expressed in the preamble of the act which was purportedly to preserve the view of the state capitol from the base of the columns up to the dome. According to Larsen, the statutory height restrictions set forth in the statute failed to allow for the effects of perspective, and thus even though the building might comply with the specific height limitations identified in the statute, it could still violate the spirit or intent of the statute. In disposing of this aspect of Larsen's declaratory judgment action, the circuit court concluded the building did not violate the unambiguous height limitations of the statute. The court of appeals affirmed that part of the circuit court's disposition, and Larsen did not seek cross-review on that determination in this court. Even if that issue were properly before this court at this time, we would find it without merit because this building did not violate the clear, unambiguous language of the statute setting forth specific height limitations for new construction within a one-mile radius of the state capitol.