Archive for the ‘Caselaw Summaries’ Category

Safely Driving a Grader on Public Roads Requires Judgment

Wednesday, September 3rd, 2014

In the recent case of Holman vs. Town of Washburn involving an accident between a min-van and a town grader which was scraping ice from an intersection, the grader driver was entitled to governmental immunity.

The mini-van ran into the grader broadside, after it couldn’t stop and slid on an icy road.  The plaintiffs argued that certain statutes created an absolute duty to drive safely.  However the court said that the statute does not require that a driver take some certain and specific action, but instead requires judgment and discretion on the part of drivers.

Although there was some argument about what had actually occurred in the accident, the actual facts of the accident were not critical to the court’s decision.  Instead, the issue revolved around the ministerial duty exception to government immunity.  The court stated “A duty is ministerial, as opposed to discretionary, if it is absolute, certain and imperative, involving merely the performance of a specific task when the law imposes, prescribes and defines the time, mode and occasion for its performance with such certainty that nothing remains for judgment or discretion.”  (Internal quotation marks omitted).

How do towns become villages? And is an end run illegal?

Tuesday, August 19th, 2014

When driving in rural Wisconsin, did you ever notice upon entering a small hamlet that the welcome sign sometimes says “unincorporated?” It might say something like “Badgertown, Population 450, Unincorporated.”

Wisconsin has four units of local government, counties, cities, villages and towns (sometimes referred to as townships), each with its own jurisdictional limits, and each controlled by a fairly complicated set of statutes, and each somewhat interrelated.  One thing they all have in common is that they are all creatures of the state, defined by state statutes.  But one major difference is the amount of independence each may have.

It is not uncommon for a town to want to become a Village.  Usually, this happens because the local government and enough local citizens want more independence and local control, to be free from county control and to achieve more of a “home rule” status, independent of many state regulations.

Another reason towns sometimes want to become villages is to stop other cities and villages from annexing their territory.  Some towns have disappeared altogether when a city or village has grown and annexed sufficient territory.

But there are very specific statutory and somewhat less specific but still very important case law standards that come along with an attempt to incorporate, and a different set of standards that come along with an attempt to annex territory.

Which brings us to the recent case of Ries vs. the Village of Bristol.  Bristol was a town along the Illinois Border (maybe you’ve heard of the Bristol Renaissance Fair?).  For reasons not relevant to the case, some time ago Bristol attempted to incorporate into a Village.  Originally the incorporation was denied by the state, because the prospective village limits included mostly farmland.  One of the standards for incorporation is that the village has to have some sort of definable village characteristics – the old “if it walks like a duck, quacks like a duck, lays eggs like a duck” then it’s probably a duck.  Conversely, if the proposed incorporation into a village does not “walk like a village, quack like a village, etc.” then it’s probably not a village.

When the incorporation failed, Bristol tried again with a smaller, more village-like proposal. Success, and the Village of Bristol came into existence.  Shortly thereafter, the Village of Bristol began the annexation to bring most of the land from the original proposal into the Village.  This succeeded.  Ries filed a legal challenge.  Although the case is somewhat complicated and filled with what might seem like legalese, the basic gist of Ries’s challenge was that Bristol had done an end run around the rules of incorporation and achieved through annexation what was not permissible through incorporation.

But the court made short work of that.  The court did not even address the underlying motives or whether this was somehow “wrong” to allow Bristol to achieve through annexation what it could not achieve through incorporation.

The court said the standards for incorporation are one thing; the standards for annexation are another thing.  One cannot apply the incorporation statute to annexations.  One must follow the statutory rules for the purpose one is trying to achieve, not a different set of rules for a different purpose.  Although Ries’s challenge seems to make some sense upon first blush in this unusual annexation, it would complicate the more typical annexations to have a court made rule that the incorporation statute also must be applied to annexations.  I think it would prove unworkable for “normal” annexations.  And where would it lead – what other statutes might seem to have some rules that might seem to make some sense in some unrelated situation?

Failed Developments, Unfinished Roads, Who Pays?

Monday, August 11th, 2014

Prior to the real estate market plunge of the recent past, there seemed to be the attitude among certain real estate developers that any corn field could sprout houses and make the developer a millionaire.  This proved to be untrue.

However, many developers with that or something similar in mind did purchase land and put together plans for developing lots and roads.  A number of these developments began in earnest, but stopped in their tracks when the housing market crashed.  This left platted land and unfinished roads.  Some unfortunate home owners were also left in the lurch, with finished homes on unfinished roads.

This general set of facts led to a number of situations where the local municipality had to step in and either finish the road and pay for it out of general funds, or special assess the current homeowners, usually a mix of private residential owners, banks which had foreclosed on the developers, and sometimes some investors or the developers themselves.  Since general taxpayers pretty generally did not want to bail out failed developments, many municipalities turned to special assessments to at least finish roads.

With that background, we come to the recent case of Runkle, et al. v. Town of Albany.  This case focused on the narrow question of whether, by accepting a plat, the Town had accepted a road.  The short answer is yes.  The slightly longer answer is that it appears a town can conditionally accept a plat, which then doesn’t become official until those conditions are met.  However, the conditions had better be spelled out because vague or overly general conditions may be deemed to have been met by very little action on the part of the developer.

The bottom line is, if you want the developer to do something, for example build a road, make sure you get your agreements and financial assurances (e.g. a bond or letter of credit) in place before accepting a plat which dedicates roads to the town or you may end up with an unfinished road you didn’t think you had.  Then you’ll have the homeowners expecting you to finish the road.  But they won’t want you to special assess them, they’ll want you to sue the developer. Aside from the legal challenges and expense of mounting such a lawsuit, the whole reason the development tanked is the developer ran out of money.  If you sue someone who doesn’t have any money, you may win in court, but you won’t get any money.

County Shoreland Zoning Preempts Town Zoning with Shoreland

Monday, June 30th, 2014

Counties are required to have shoreland zoning under Wisconsin Statute § 59.692. Towns are not required to have zoning of any kind. But towns, under some circumstances, may have their own general zoning. The interplay between counties and towns in Wisconsin can sometimes be quite complex. (Cities and Villages generally fall under different rules and will not be discussed in this article). What happens if the same piece of land happens to fall under both a county shoreland zoning ordinance and a town general zoning ordinance?

In the case of Hegwood v. Town of Eagle Zoning Board of Appeals, the circuit court held that county shoreland zoning preempted town zoning. This means that the town zoning could not be enforced within the shoreland zoning area – in other words, the landowner only had to deal with the county, not the town. Hegwood had applied to the County for variances from its ordinance, and the county had approved the variances. However, the town authorities denied the variances, and Hegwood went to court.

Shoreland zoning’s reach includes land within 1,000 feet of a lake or pond, or 300 feet of a river or stream. You may own shoreland real estate and not even realize it!

This is a published decision of the court of appeals, and will have general applicability to all towns in Wisconsin. The only exception to the county shoreland preemption is if a town had a zoning ordinance in place before the county enacted shoreland zoning. In that case, a town’s more restrictive provisions would still be enforceable.

Road Right of Ways in Wisconsin are Presumed to be 66 Feet Wide

Monday, December 30th, 2013

In Wisconsin, by law, the width of a road is presumed to be 66 feet, unless there is evidence to the contrary.  It does not matter how the road came into being.  In fact, although this is often misunderstood by landowners and sometimes by municipal officials, the historical “ownership” of the underlying land is quite often irrelevant to most road matters.  The state, counties and local municipalities have all the normal rights and obligations with respect to roads whether they own the land, or whether they have some kind of granted easement, or whether there is no record at all of how the road was established.  As long as the road has existed and been maintained by the municipality, generally for ten years or more, then the public right of way exists, no matter who thinks they “own” the underlying land.

In a recent case, Village of Brown Deer v. Leland P, the Village of Brown Deer was implementing road projects, and some of the adjoining landowners balked for various reasons.  There was no argument as to how Brown Deer had acquired the right of ways – apparently no one knew for sure.  But everyone agreed that the road had been a public road long enough that it was a public road.  The disagreement was over the width.  In some places, buildings were within the default 66 feet, and in other places the landowners simply wanted to keep the right of way narrower (the court did not give the details of why the residents balked).

To begin with, the court noted that the 66 foot width is the statutory presumption – that means that the law presumes the width is 66 feet.  Thus the burden to prove a right of way is not 66 feet is on the challenger.  A presumption can be overcome by evidence, such as in this case, a building encroaching into the 66 feet for a long enough time.  But without greater evidence to the contrary, the width is 66 feet.

Supreme Court Clarifies Alcohol Licence Nonrenewal Burden of Proof

Tuesday, November 19th, 2013

The recent Wisconsin Supreme Court case of Nowell v. Wausau solidifies the presumption of correctness given to municipal determinations to not renew a liquor license, and clarifies that the burden of proof to overcome the presumption is on the challenger.  In this case, a tavern in Wausau, IC Willy’s, had been cited for numerous violations, and had had many complaints filed against it.  Eventually, the City of Wausau, after a procedurally proper nonrenewal hearing, decided not to renew IC Willy’s liquor license.  The tavern appealed in circuit court, and the circuit court determined that the proper review was by certiorari, and the court upheld the decision by Wausau.

IC Willy’s then filed an appeal, and the appellate court reversed the circuit court, deciding that a de novo review was the appropriate standard.  A de novo review is, more or less, a new trial, while a certiorari review is a review of the underlying record looking for mistakes, but not allowing new arguments, and usually not allowing new evidence.  The Supreme Court reversed, deciding that a review of a municipal hearing regarding nonrenewal of an alcohol license was by certiorari.

This could be considered a “technicality” type of case by some, because it did not hinge on the merits but on the procedure.  While arguments over the  Latin words certiorari and de novo may not mean much to the general public, or to tavern owners or city officials, the presumption of correctness is critical.  If a city council or village or town board holds a hearing and makes a decision, it is presumed to be correct under a certiorari review, and an appeal is then limited to essentially an error correcting review.  The court does not hold a new trial, it just reviews the record.

This is good news for municipalities, in that their nonrenewal decisions are more likely to withstand a challenge, as long as the municipality follows all of the correct procedures and does not act arbitrarily or in bad faith.

Annexation Challenge Denied for Lack of Standing

Thursday, October 3rd, 2013

In a case recommended for publication, the Darboy Joint Sanitary District No.1 and the Town of Harrison challenged the City of Kaukauna’s annexation of some land located with the Town and the Sanitary District.  This was a unanimous direct annexation – basically that means that all of the property owners and residents within the land favored the annexation.  The Town disfavored the annexation, and passed a resolution to that effect.

The Court did not discuss the merits of the case – the sole issue was “standing.”  In our court system, standing asks the question “who are you to bring this lawsuit?”  Our laws generally do not permit a person to bring a lawsuit unless they have some pretty direct connection to the issues.  In addition, towns in Wisconsin are statutorily blocked from challenging direct unanimous annexations.  Thus the court dismissed the Town’s action for lack of standing on statutory grounds, and dismissed the Sanitary District’s action for lack of an interest in the matter.

Although this was not the Court’s holding, the unwritten bottom line appears to be that if a unanimous group of property owners and residents want to be annexed and the city or village is in favor of it, with only limited exceptions, it’s probably going to happen.

Good Faith Ignorance of Clerk’s Duties is No Excuse – And Can Be Costly for Municipality re Public Records Requests

Monday, July 22nd, 2013

I’ll put the bottom line at the top – if your municipality gets a request for documents or other records, you must take action.  And if you have any reason whatever to think you will delay or deny the request, contact an attorney familiar with the public records law.

The facts of this case, James L. Webster v. Township of Spruce,  are not really in dispute, or particularly important to the holding.  An attorney named James Webster asked a local clerk for some documents related to a park, which he felt was being mismanaged.  The Clerk arranged for Webster to see some of the documents, and Webster asked for more.  In the end, the Clerk, apparently inadvertently, denied some of Webster’s requests, and told Webster to direct all further communication to the Town attorney.  Webster sued, and the circuit court, apparently sympathetic to a part-time clerk who did not know the rules for records requests, essentially said that Webster had now essentially gotten what he was after and the court did not rule against the Town.

The appeals court overturned the circuit court in no uncertain terms.  To begin with, clerks are required to respond to public records requests without delay, either by providing the requested documents, or by denying the request and giving reasons for the denial.  The court noted that there is no third option of “compliance at some unspecified time in the future…”  In addition, although the clerk had sought the advice of an attorney, the court stated that there was no exception in the public records law for failure to respond to a record request based on “the ill-advice of counsel.”

The appeals court noted that clerks have statutory duties, and ignorance of those duties is not an option.  “Excusing nondisclosure by failing to award costs, damages, and fees in the present case would be rewarding the Town for [the clerk’s] failure to know and perform her statutory duties.

The appeals court also ordered the Town to pay Webster’s attorneys fees, as required by statutes.

In my opinion, the circuit court was right that part time clerks in small towns usually won’t know all the nuances of the public records law, but the appeals court was right to not allow that as an excuse.  If your town is faced with a records request and you are unsure what to do, consult an attorney familiar with the public records law “a.s.a.p.”

Privacy Wins in Two Cases re Release of Personal Info from Driver’s Licence Records

Monday, June 24th, 2013

The Driver’s Privacy Protection Act (“DPPA”), 18 U. S. C. §§2721et seq. is a federal statute which regulates the disclosure of personal information contained in the records of state motor vehicle departments.  The general rule of thumb (policy) of the DPPA is that disclosure of personal information is prohibited, unless the disclosure is allowed by an exception.  There is an exception in the DPPA for use in connection with “investigation in anticipation of litigation.”

A recent U.S. Supreme Court decision has held that “Solicitation of prospective clients is not a permissible use “in connection with” litigation or “investigation in anticipation of litigation” under (b)(4) of the DPPA.”  In Maracich v. Spears, the Supreme Court held that a law firm may not use department of motor vehicle records to solicit or market their services to clients.  A law firm had been seeking clients to join in a lawsuit against a car dealership, and sent out thousands of letters to people based on information it had received from the South Carolina department of motor vehicles.  Note that this is NOT a blanket policy against releasing records to attorneys.  It is still a legally recognized exception and a legitimate request if a lawyer makes it in the context of a specific case for which he or she is providing representation, and there may be some complicated judgments to be made if a lawyer is “investigating” a potential case.

The Spears case is of special interest in Wisconsin, where in general, it has been the practice of police departments to release accident reports when they were requested by a law firm, pursuant to Wisconsin Statute 346.70(4)(f), as interpreted by case law, State ex rel. Young v. Shaw, 165 Wis. 2d 276, a Wisconsin Attorney General’s opinion (I-02-08), and the Wisconsin Attorney General’s Public Records Compliance Outline. It would appear that the DPPA and Spears will preempt Wisconsin law.

In a related DPPA case, Senne v. Village of Palatine, the 7th Circuit Court of Appeals held that placing a parking ticket on a car’s windshield which contained information which was obtained from the Illinois Department of Motor Vehicles violated the prohibition on disclosure.  The Supreme Court has denied certiorari on June 24, 2013, which means that they will not hear the case.  Thus Senne remains the law in the 7th Circuit, which includes Wisconsin; police may not “disclose” personal information they got from their respective motor vehicle departments, which would include placing a citation on a car where any passerby could see it.

The Wisconsin League of Municipalities has requested updated guidance from the Wisconsin Attorney General. As soon as there is any news I will post it here.  In the meantime, Police Departments faced with a request for accident reports or any other type of document which contains personal information obtained from the department of motor vehicles should consult with their municipal attorney before releasing any such documents.

Special Assessments and Notice Pleading

Thursday, June 6th, 2013

In a recently published case that is perhaps most important to attorneys as a caution to make sure you say what you want when you sue or appeal a municipality, CED Properties LLC appealed a special assessment charged to it for roadwork done in front of a property it owns.  The property was on a corner, and in fact, the City of Oshkosh had imposed two special assessments, one for the portion on one street at $19,241, the other for the portion on a different street at $19,404.  When CED appealed, it only listed one special assessment for $19,241.  Many months later, long after the 90 day appeal period had passed, CED attempted to amend their appeal to add the second amount.  The circuit court allowed the first amount, but not the second, saying CED was too late on the second -  unfortunately for CED, because its case apparently had merit as the court ruled in its favor on the first amount, but not the second due to untimeliness.

CED attempted to argue that under Wisconsin’s liberally construed pleading laws, the initial appeal should have been considered as encompasing both special assessments, and the amended appeal should have been allowed to “relate back.”  But under the facts of this case, the City had clearly made two different special assessments, not one, and CED had clearly only appealed the initial $19,241, and had not mentioned the $19,404 until after the time to appeal had passed.  CED had not pled any facts in its initial appeal that would have put the City on notice that it was appealing the full amount, over $38,ooo.  CED had only stated $19,241.

Although not discussed in the case, one can speculate that CED perhaps was initially confused since both amounts were similar, and it had not paid careful attention to the special assessments perhaps thinking there was only one?  Of course I’m speculating, but given the facts in the appeallate ruling, this seems plausible.  Nevertheless, the City had followed the property procedures for two special assessments and clearly indicated they were for two different strees, and the court would not “merge” them together.