Archive for the ‘Uncategorized’ Category

Consequences of incivility on city council

Thursday, September 8th, 2016

The City of Lake Elmo is a suburb of St. Paul.  I know this blog is about Wisconsin municipal law, but a recent article in the St. Paul Pioneer Press caught my attention and I thought I’d bring it over to Wisconsin as a cautionary tale.  The City of Lake Elmo has been in the news quite a bit the last few years, primarily due to the behaviour of certain members of the city council.  Of course they blame each other for the problems, kind of like: “I’m not disrespectful you are.  No you are.  No you are.”

Aside from making Lake Elmo the subject of a certain amount of ridicule in the Twin Cities area, the antics of the Council have now had some potentially serious consequences.

The City’s insurer, the Insurance Trust Board of the League of Minnesota Cities, decided to increase the City’s deductable from $500 to $200,000.  The insurance company said it is because the way City Council members treat each other, the City’s employees, and other government officials has greatly increased the risk of claims against the City.

The article in the paper noted, “Eight city hall workers have left since March 2015. The city’s administrator is the sixth one hired in seven years.”

You can read the Pioneer Press article here.  or just do a “Google” search on Lake Elmo.

Reed v. Town of Gilbert – First Amendment Case May Void Many Local Municipal Sign Ordinances

Thursday, August 20th, 2015

You may have missed this in the news, probably because there was almost no news coverage of it. In Reed v. the Town of Gilbert, the Supreme Court declared a municipal sign ordinance unconstitutional because it violates the First Amendment. By way of background, in case you’re thinking the “town” of Gilbert is some small out of the way place, it is basically suburban Phoenix, it has a population of over 200,000, and one of the highest median incomes of any municipality in Arizona.

Also by way of background, for those of you who have never read the First Amendment, it’s not too long – here’s your chance: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

This language has been widely litigated and ended up in many, many Supreme Court Cases. In this case, the Supreme Court held unanimously that Gilbert’s ordinance, which has different rules and exceptions for certain categories of signs, violates the First Amendment. Specifically in this case, Gilbert’s Sign Code had restrictions on temporary directional signs that were not applicable to political signs and ideological signs. In this case, a small church in Gilbert would put up signs giving people directions to its Sunday service. The church had no permanent building, and so services would often be in different locations from week to week. In Gilbert, a person could put a politician’s campaign sign up for longer periods than a person could put up a directional sign. The Supreme Court said that this violated the First Amendment.

When it comes to local municipal sign ordinances, the general rule is that sign codes should be content-neutral. How that gets interpreted by courts is complicated. One very rigid test is if you must read the sign in order to tell whether it complies with your sign law, that sign law is content-based. However, that rigid test is not “black letter law” – there are a number of exceptions to this kind of strict interpretation, for example distinctions tied to obscenity, defamation, libel and slander. A classic example is that your right to free speech does not give you the right to yell “fire” in a crowded theater. In addition, there is a previous Supreme Court decision allowing a distinction between commercial and non-commercial speech. Of course, one does need to read the sign to know if it is commercial, or slander, etc.

In a complete reversal on what has been traditionally understood regarding exceptions for political speech (primarily election campaign signs), content-based exceptions to prohibitions, or variations in treatment of signs, can invalidate the prohibition itself. For example, an example I suspect will be found in many local sign ordinances, having an exception allowing or favoring political signs may invalidate an ordinance.

Local governments should probably have their sign ordinance reviewed by their municipal attorney.

Municipal officials should strive to remain impartial, avoid bias.

Wednesday, August 19th, 2015

A board member’s telegraphing his or her decision before hearing the matter is often fatal to a municipal decision.

As a general rule of thumb, it is always wise for municipal boards and councils to remain impartial and unbiased. This is especially true when the state statute in question explicitly requires impartial decision making, such as when deciding on “laying out, altering, or discontinuing a highway…” See § 82.11(2)(a).

In the recent case of Thomas R. Jorns v. Town Board of Jacksonport, the Jorns owned a landlocked parcel. They had tried to purchase an easement, but were unable to do so. So they applied to the Town, as they are allowed to do under Chapter 82 of the statutes, to lay out a highway. At the hearing, two of the board members made comments that indicated they were not impartial and had already decided the matter prior to the hearing. The court overturned the Town Board decision and remanded for a new hearing.

Of course, on a three person board, if two of the board members must recuse themselves, that leaves only one person. Unfortunately, towns sometimes face this situation, and the statutes generally do not address this lack of quorum. Fortunately for the Jorns and the town, in this case the statute does address the lack of quorum, and provides for several alternatives. Towns are required to have a written policy which addresses such a circumstance, and if they don’t the clerk may act. See 82.11(2)(b).

Shoreland Zoning Law Revised

Wednesday, July 15th, 2015

As anyone who follows the news knows, Governor Walker recently signed the new budget.  And as anyone who follows politics knows, a number of items make it into the budget bill that, to the lay observer, seem to have nothing to do with the state budget.

The new budget, Section 1922 on pages 336 and 337, changed the law on shoreland zoning to limit a county’s regulatory power within shoreland zoning areas.  Some of the changes are:

  • Counties may not regulate a matter more restrictively than the DNR standards found in NR 115. Prior to this, counties could be more restrictive in a number of areas.
  • Counties may not require a person to establish a vegetative buffer zone in an area that was previously developed.
  • Allows a landowner to have a 35 foot wide viewing area in those areas where a vegetative buffer is required.
  • Expanded a landowner’s ability to repair and rebuild a nonconforming structure within the existing footprint of an existing nonconforming structure.

The new law also affects village and city shoreland zoning, but only in areas that were annexed after 1982 – (see Wis. Stats.  61.353 and 62.233).

The full budget act can be viewed from the state legislature website.

Certiorari is a Tough Nut to Crack #43 – O’Connor v. Buffalo County Board of Adjustment

Wednesday, November 26th, 2014

In a recent unpublished case concerning a frac sand mine, Micheal O’Connor and the School District of Cochrane-Fountain City appealed a decision by the Buffalo County Board of Adjustment (BOA) to grant a conditional use permit for a frac sand mine. The circuit court upheld the decision of the BOA, and O’Connor and the School District appealed. They relied on three avenues to challenge the BOA decision.

First, they argued that the Buffalo County’s zoning ordinance does not allow sand mining as a conditional use in the agricultural zoning district. The BOA pointed to a provision in their zoning code which they claimed does allow sand mining as a conditional use in that zoning district. Following long standing precedent, a reasonable interpretation of an ordinance by a municipality (or county in this case) is presumed to be the correct interpretation, even if another reasonable explanation can be made.  Here the Appeals Court found Buffalo County’s interpretation quite reasonable, and supported by consistent past precedent.

Second the plaintiffs argued that since the BOA had previously denied a similar application by the same company for the same sand mine, the BOA was precluded from considering the application again. However, the Appeals Court quickly concluded that there is no supporting law preventing someone from applying for a conditional use permit, getting denied, and then applying again with additional supporting evidence.

Lastly, the plaintiffs claimed that since the conditional use application did not name all of the partners in the company which owned the land, the application was invalid. The Appeals Court made short work of this last argument.  There is no law that requires a partnership company to name all of its partners when applying for conditional use permits.

Just because there is an alternative reasonable position to be made, Courts are reluctant to overturn a reasonable, lawful municipal decision. As I have noted in previous writings, it is an uphill battle to get a Court to overturn an otherwise reasonable decision by a municipality, especially on certiorari review.

Guidance on Voter ID Law

Monday, September 22nd, 2014

Last week the Government Accountability Board (GAB) posted guidance on implementing the new voter ID law, especially with respect to absentee ballots. While the eventual outcome of the law is in still uncertain, the current state after the recent Federal Court of Appeals decision is that the law is valid and will be in force for the upcoming election on November 4, 2014.  An appeal is pending, but for now the law is in effect.  Guidance can be found on the GAB website.

Ignore Your Rights and They’ll Go Away # 445

Monday, February 10th, 2014

I have written about this before – maybe not 445 times, but if there is one area of the law where courts tend to be consistent, whatever the merits of the case or the seeming harshness of the result, it is with deadlines.  In Morack v. Town of Waukesha, the Moracks purchased some property which was “downstream” from a development.  They complained to the Town that the storm-water from the development was causing flooding on their property.  They hired an attorney who also complained, and threatened legal action against the Town.  The Town’s attorney sent them a letter informing them of Wisconsin’s notice of claim statute, and suggesting that they should follow the procedures found there if they wanted to file a claim against the Town.  The Moracks did not follow the procedure in § 893.80, and instead continued their complaints and threats of legal action for another ten years.  Eventually, they sued, and the circuit court said they were about ten years too late (I’m paraphrasing).  They appealed and the appellate court upheld the circuit court decision.

Again, the lesson here is that process and deadlines are important.  The Moracks were denied the chance to argue the merits of the case because they failed to meet the deadlines.  In this case the appellate court noted that the purpose of the Notice of Claim statute is so that the local government can evaluate a claim, decide on its merits, and respond to it while the issues are fresh.  In this case, in the intervening ten years the developer had died, and his company had gone bankrupt.  While it may seem that ten years is just too long to wait, keep in mind that one day late may be just as fatal to a claim you hope to make

Act 10 Grievance Procedure – First Case Law? What is a termination?

Friday, January 10th, 2014

Remember Act 10? While the protests in Madison have subsided, the court cases continue.  One of the less publicized aspects of Act 10 was the enactment of Wis. Stat. 66.0509(1m) which required most local governments to create a grievance procedure to allow employees to appeal employee terminations, employee disciplinary actions, and workplace safety.  But the new state law did not define those terms.  When implementing the new state law, many local governments defined those terms themselves, often to exclude certain types of employee separations, such as voluntary quits, retirement, layoffs, and others.

Dodge County’s grievance procedure included exceptions for “termination of employment due to…lack of qualification…”  Dodge County employee Heidi Burden was employed in a position which had as one of its qualifications no operating while intoxicated convictions within the past 12 months.  Ms. Burden was convicted of operating while intoxicated and subsequently fired.  She attempted to grieve the “termination,” but the County said the grievance procedure wasn’t available to her because she was not qualified for the position.  She field suit in circuit court, which ruled in favor of Doge County, and she appealed.

The appellate case hinged on the meaning of the word “termination” and on whether Dodge County could unilaterally define the term, since the legislature had not done so.  The appeals court said no, Dodge County was not free to invent a definition for “termination.”  Instead, since the legislature did not choose to define the word, then the common ordinary understanding of the meaning of termination should apply.  The court turned then to a dictionary, and using that term decided that in the facts before them, a “termination” had occurred.  A person had a job, and was fired.  By plain language of the word in common usage, that was a termination.  Indeed, the very definition in the County’s ordinance said that termination does not include “termination due to…” and then listed various terminations that would not be subject to the grievance procedure.

Although the Court narrowed their holding to the facts before them, the logical implication is that local governments are not free to simply define termination as they see fit, but must look to the plain, ordinary definitions of the word.  They can still define it to not include things like a voluntary quit or a retirement, but there will be grey areas if a local government defines “termination” to exclude actions which, arguably, are “terminations” in the common, ordinary meaning of the word.

Affordable Care Act Deadline for All Employers is Approaching October 1, 2013!

Monday, September 9th, 2013

As most people are aware, portions of the Affordable Care Act  (“ACA”), which is also known as Obamacare, are coming into effect over the next couple years. There is a deadline approaching which applies to all employers, including cities, villages, and towns.  No later than October 1, 2013, all employers must send a “Notice to  Employees of Coverage Options.”  This notice must be sent to all employees, full-time and part-time.  While many portions of the ACA may not apply to small cities, villages and towns (those with fewer than 50 employees), the October 1 deadline applies to all municipal employers, big and small.

The United States Department of Labor has produced two sample notices which are available on the following website.  One is for employers who do not offer a health insurance plan, the other is for employers who do.  The sample notices contain a page of general information, and a page which you, the employer, should fill out prior to delivering the notice to your employees.  There is also quite a bit of general information regarding the ACA on that website.  In addition, the Towns Association has published guidance on its website, and the League of Wisconsin Municipalities has also published an article on the ACA in the September edition of the Municipality.

Update on New Cell and Broadcast Tower Law

Thursday, August 15th, 2013

Does your city, village or town have a cell tower ordinance? Probably not anymore.

As part of 2013 Act 20, the “Budget Bill”, a new state law that preempts local regulation of cell phone towers went into effect in July 1. 2013.  Although the new law allows local regulation under a number of circumstances, it also limits local regulation in some critical areas such as height limits, setbacks, and location of towers.  Note: If your ordinance is in violation of almost any aspect of the new law, your ordinance is void and unenforceable, per § 66.0404(2)(i).  You can read the new statutory section in the Budget Bill by searching for “66.0404” within the 603 page document.

The bottom line is that if your municipality wants to have any regulatory authority with respect to cell towers, they should review and very likely amend their current ordinance.