Archive for the ‘Caselaw Summaries’ Category

You can’t have it both ways in court: judicial estoppel

Friday, December 2nd, 2016

Courts sometimes invoke a doctrine called Judicial Estoppel. Essentially, it means you can’t take two positions or make two arguments (often in the same case) that are inconsistent with each other.  A classic example is a border argument between Maine and New Hampshire, in which New Hampshire, having previously agreed to a certain border to settle a lawsuit [New Hampshire v. Maine, 426 US 363 (1977)], tried to claim some land was in New Hampshire in a different lawsuit against Maine [New Hampshire v. Maine, 532 U.S. 742 (2001)].  The US Supreme Court argued that New Hampshire could not, after agreeing to the borderline in the 1977 case, now argue that the border was different.

In a recent Wisconsin case, Gerhartz v. Town of Lomira, Eugene and Catherine Gerhartz won and lost. The Town had permitted one of Gerhartz’ neighbors to place a pipe (for pumping manure) and manhole in a Town right of way on the Gerhartz’ property.  Gerhartz sued the Town for inverse condemnation, a “taking.”  Gerhartz was successful in arguing that the Town had taken Gerhartz’ property without just compensation, and was awarded compensation.

Gerhartz also sued the neighbors, Jeff and Brenda Elsinger, for trespass. The trespass claim was based on the fact that the Town had no authority to allow the Elsingers to use the town right of way for private purposes (pumping manure).

The court held that the Gerhartz could not argue both that the taking was valid and receive compensation for the taking, and also argue that the taking was invalid, and receive compensation for trespass.

What does “of” mean?

Tuesday, September 27th, 2016

When a county sues a town, it can get confusing. In Calumet County vs. the Town of Harrison, Calumet County sued the Town for the Town’s failure to pay the County for removing snow from a county owned sidewalk along a county highway.  The County apparently felt the Town was responsible for removing all snow from all sidewalks in the Town, no matter who owned them.  The circuit court disagreed and held for the Town.  The appeals court also held for the Town.

This case makes for interesting reading, if only because it shows the lengths parties will sometimes go to in court cases. The entire case was, more or less, about the meaning of the word “of.”  Of course, the court of appeals only gives us those facts that it relies on to make its decision, and there are almost always two sides to every story, but the County does not come out very well in this one.  The statute states that the town shall remove snow and ice from the sidewalks “of” the town.  The county argued that this meant all sidewalks within the town.  The Town argued that this meant all sidewalks owned by the Town, and the courts agreed with the Town.

City Sign Ordinance Unenforceable

Wednesday, July 6th, 2016

An Eagle River inn proprietor and one the neighboring businesses were having a dispute over parking issues. The inn proprietor put up a sign prohibiting his neighboring businesses’ customers from parking on the Inn parking lot, specifically stating the neighbor’s business name and indicating their customers were “rude.”

Somehow the City of Eagle River got involved, because this business sign, according to the City’s interpretation, was prohibited by the City’s sign ordinance. There is also a state statute that expressly permits a private party to erect no parking signs much like the one in question.

Thus we have a preemption issue, and the Court of Appeals made short work of the case, stating that the state statute preempted the city ordinance and the sign was permitted under state law. Thus the city ordinance could not be enforced against this sign, under these circumstances.  (It’s a bit complicated, but the City ordinance did not restrict no parking signs on private property, instead it prohibited certain kinds of off premises signs, and the argument was that since the sign was on the inn’s property, but was directed at the off premises neighboring business, it was in violation of the City’s sign ordinance).

I see two lessons here – the City’s ordinance may well be valid as written, but was invalid as applied in this case. So even though the language of the city ordinance didn’t exactly prohibit no parking signs, in this case it prohibited this no parking sign.  Thus state law preempted this specific application and enforcement of the ordinance, but didn’t invalidate the ordinance itself.

The other lesson that appears is that neighbors in disputes often want to drag local municipalities into what is, at its core a private dispute. Municipalities should be wary of intervening in private disputes, and make sure any intervention is an appropriate use of local government authority.

When is a “note” a “note” under the Public Records Law?

Thursday, January 21st, 2016

It should go without saying, but I’ll say it, that the Wisconsin’s public records law favors public disclosure of public records. Thus questions of whether or not to release a “record” should generally be guided by the presumption of disclosure.

Nevertheless, the public records law does have exceptions, and one of them is for “notes.”  “Notes” are expressly excluded from the definition of record.   As seems to be a common enough occurrence, even the definition of a deceptively simple word like “notes” can lead to a circuit court case, and an appellate court case – The Voice of Wisconsin Rapids, LLC, v. Wisconsin Rapids Public School District.

In this case, although it took it several pages to come to the conclusion, the appeals court affirmed the lower court, and decided that handwritten notes which “were never exchanged, shared with anyone, or otherwise available to anyone [other than] the person drafting the notes,” were notes intended for the personal use of the note taker, and “therefore were not “records” under Wis. Stat. § 19.32(2).”

Although the case was complicated, in the end it seems safe to say that if a person writes notes that they only intend for their own use to refresh their recollection and never share these notes with anyone else, that they are notes which are exempt from disclosure under the public records law because they are not actually “records.” Although this did not come up in the case, since they are not “records”, are they then not subject to the record retention laws?

Fee for Providing Fire Protection May be Charged to County Owned Property

Friday, December 18th, 2015

The Clark County Town of Hoard enacted an ordinance imposing an annual fee on all property owners within the Town for the cost of fire protection, whether they actually used the service or not – in other words whether there was a fire or some other incident or not. Clark County owned some property in the Town on which was located a medical center.

Pursuant to the ordinance, the Town sent the County a bill for the fee for fire protection. The County, apparently, refused to pay the bill, and the Town sued. (See Town of Hoard v. Clark County, decided in November of 2015 – note: the County could appeal this case to the Supreme Court, so this may not be the final outcome).

The County claimed that the fee for the fire protection was actually a tax, because it was not a fee for fire protection actually provided, but only for potential fire protection. The County argued that since it is exempt from taxation, should not be required to pay the tax.

In reviewing the Statute, § 60.55, the Court determined that the Town was required to provide for fire protection to the entire Town, and was permitted to “Charge property owners a fee for the cost of fire protection provided to their property.”  The County argued that this meant fire protection actually had to be provided to a specific property, and the Town could not impose the fee for the cost of having a fire department.  But the Court determined, based on case law, that Towns could impose a fee on all properties, so long as it was reasonably related to the actual costs of providing the protection.  The Town showed that the fees for fire protection were directly related to the cost of having a fire department (in this case, a fire department composed of several municipalities).  The Court upheld the ordinance.

Taking without compensation cannot be based on inadvertant mistake.

Tuesday, June 9th, 2015

In the recent case of Somers USA, LLC v. Wisconsin Department of Transportation, a company purchased approximately 46 acres near I-94 in Kenosha County, to build a truck stop.  About the same time, the DOT was implementing plans to rebuild the interchange.  At some point, the company recorded a certified survey map which showed a portion of its land as “reserved” for highway purposes, and a portion as “dedicated” for highway purposes.  These two words may be similar in some respects, but there is a fundamental different.  Land “reserved” for highway purposes is not a transfer of ownership.  However, when a private party, like Somers, “dedicates” land for highway purposes, this may well be a transfer of ownership.  That is, apparently, how the DOT saw it.  But Somers made clear that the word “dedicate” on the CSM was a mistake and Somers never intended to transfer ownership to the State for free. Somers was willing to work with the DOT on the land needed for highway purposes, but not without compensation.

Since the land was “dedicated,” the DOT assumed ownership and went ahead and rebuilt the intersection without paying Somers for the land.  Somers sued, and the circuit court held it was a taking.  Both the U.S. and the Wisconsin Constitutions require a government entity, like the DOT, to pay compensation for a taking.

Although there were some complicated legal maneuverings, in the end the appeals court upheld the circuit court decision that a dedication of land to the government cannot be based on a simple drafting mistake. The court held that …”a governmental body cannot rely upon a known, material mistake as a basis upon which to take private property without paying just compensation.”

Can I rent my house to someone or can’t I?

Tuesday, May 19th, 2015

Back on March 4, 2015, I posted about a case involving Cedarburg where an appeals court held that a use of a single family dwelling in a residential zoning district which restricted uses to single family dwellings (and some other uses not pertinent to this post) did not prevent the owner from renting it out as a short term rental.  The appeals court in that case held that if the zoning code was silent on such restrictions of short term rentals, that the owner could use the house for short term rentals.

In a recent case, Accola vs. Vilas County, the appeals court held that a single family dwelling in the residential district could not be used for short term rentals.

So, in Cedarburg, single family dwellings in the residential district can be used as short term rentals.  In Vilas County they cannot. Why the different holdings?  Any seeming contradiction is merely superficial.  What both courts said is that you have to look carefully at the words of the zoning ordinance.  What does it say?  If it unambiguously restricts short term rentals, that is okay.  But if it is silent on that issue, then it does not restrict.  But be careful, the words of the ordinance are what matter – different words may give us a different result.

So the result in any given case will depend on the facts of that case and the words of that ordinance, not a broad (and likely false) generalization based on the factual results from a different case.

What does “single family residence” mean?

Wednesday, March 4th, 2015

Does it include a house which was clearly built to be a single family unit, which is a time-share where different families occupy the residence for a week at a time, but only one family at a time?  Does it include such a house which is rented out for short term rentals?

A recent court of appeals decision says yes, at least under circumstances where the zoning code is otherwise silent about duration.  If a zoning code allows a single family residence, and sets no other time constraints, then a zoning board cannot later arbitrarily impose such a time constraint.

In a decision recommended for publication, Heef Realty v. City of Cedarburg Board of Appeals, two homeowners were renting out single family homes they owned.  The Cedarburg zoning code allowed single family homes, and did not have any language at all about whether short term rentals of such homes was allowed.  But the City determined that short term rentals were not permitted by the code.  The appeals court, upholding a lower court decision, found that a restriction on the free use of property must be explicit – it cannot be implied into otherwise unambiguous language.

While the court did not decide that a municipality could never restrict short term rentals, it was clear that such restrictions must be unambiguous.  I would add that they cannot be arbitrary – they should be reasonable restrictions which have a rational relation to a legitimate government objective.

Wisconsin’s Voter ID Requirement Stopped for Now?

Friday, October 10th, 2014

Thursday evening, October 9, 2014, the United States Supreme Court apparently blocked Wisconsin’s voter ID law from being implemented in the upcoming November 4, 2014 election. Clerks should refer to the GAB website and will probably be hearing from the GAB with updated information.  For news about this order see, for example, the Milwaukee Journal Sentinel, the  New York Times article or the Wall Street Journal.  You can read the decision at the Supreme Court’s website.

Lawn Mowing: Landower 1, County 0

Friday, September 19th, 2014

In the recent unpublished case of Forest County v. Dwayne Pasternak, the appellate court overturned a circuit court judgment enforcing a Forest County nuisance citation against a homeowner for a failure to mow his lawn. The appellate court found that the County had failed to show that an uncut lawn constitutes a nuisance.  This case turned on the definition of a public nuisance, and the gist of it was whether or not an uncut lawn creates a hazard to the health and safety of the public.  Under the set of facts in this case, the County had failed to provide sufficient evidence of such a risk to the public.

It would probably be unwise to jump to the conclusion that municipalities cannot enforce violations of ordinances regulating the height of lawns. The court in this case was quick to point out that here the citation was for a public nuisance which allegedly caused a health hazard, and the County had not proved a health hazard.  In other cases, municipalities have successfully enforced ordinances specific to noxious weeds and also maximum height regulations.

Nevertheless, this case, while unpublished, does present some things for municipalities to ponder when attempting to make a private property owner mow his or her lawn. It might also be noted that County action in this case was apparently prompted by a neighbor’s complaint.

As an aside, private property owners who don’t like what their neighbor’s are doing will sometimes try to get the local municipality involved to stop the neighbor. Neighbor against neighbor is a potential minefield where a municipality must tread very carefully.