Archive for the ‘Highways, Roads, etc.’ Category

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.

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).

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.

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.

Dealing with Common Winter Issues

Thursday, December 13th, 2012

I just read a great article in The Municipality magazine by Attorney Claire Silverman which discusses the major issues that municipalities face in winter (well, maybe not Miami). It’s available online at the League of Wisconsin Municipality’s website.  Attorney Silverman is Legal Council for the League.

Each topic stands on its own and cites the appropriate statutes and case law, so this should serve as a good reference work if you need to deal with one of the following topics:  

  • Removal of Snow and Ice from Public Ways
  • Salt Storage Requirements
  • Winter Parking; Snow Emergencies
  • Snowmobile Regulation
  • Utility Disconnections
  • Municipal Holiday Decorations

Vacating Alleys and Standing to Sue

Tuesday, March 8th, 2011

In an opinion recommended for publication, Smerz v. Delafield Town Board, the appellate court upheld a decision by the circuit court allowing the Delafield Town Board to vacate an alley, pursuant to Wisconsin Statute 66.1003(3). The plaintiffs, James Smerz, Warren Hornik, and Cheryl Hornik, had sought a judgment in circuit court that the Town had no authority to vacate the alley, and that they would be harmed by the vacation. Their main argument was that since a different statute, Chapter 236 (which concerns platting and subdividing), expressly gave counties the power to vacate alleys in platted subdivisions but did not mention towns, that a town could not vacate an alley in a recorded plat. The circuit court denied their claim. First of all, the court held that the statutes were both permissive, and not mutually exclusive. Second, since the plaintiffs’ properties did not abut the portion of the alley that was being vacated, they had no standing to bring a lawsuit against the town.  The appeals court upheld the circuit court on both grounds.

Sometimes You Can Fight City Hall!

Thursday, December 2nd, 2010

In Cooper v Village of Egg Harbor , a dispute arose over whether a short road leading to the shore of Green Bay was public or private.  The Village had paved the road at some point in the past, and it had been used, rather sporadically according to the facts given in the case, by members of the public.  However the road had never been dedicated to the public, and there was no record to show ownership by the Village.  One of the curious facts of the case was that apparently noone claimed ownership – not the Village, and not the landowners on either side.  There were several legal theories argued in the case, but in the end the Door County Circuit Court had held that theVillage had not presented enough evidence that this was a public road to back up any of its legal theories.   The appeals court upheld the Circuit Court ruling.  Although a decision has been handed down in the case, from my reading, it appears that the issue of ownership will have to be worked out (you’d have thought someone would have brought that up before this got to the appeals court).

Governmental Immunity Applied to Subcontractor

Tuesday, November 16th, 2010

In a recent case recommended for publication, Bronfeld v. Pember Companies, Inc., the appellate court held a subcontractor immune from a lawsuit filed by Beverly Bronfeld after she was injured when she tripped over a warning barricade placed near a closed crosswalk.  She sued Pember Companies, among others, and the trial court granted summary judgment, finding that Pember had governmental immunity as an Agent of the City of River Falls.  Pember Companies was a subcontractor installing sidewalks as part of a larger contract with the City of River Falls.  River Falls had laid out extensive project, traffic and safety plans, and Pember had complied with the plans.  However, Bronfeld argued that Pember was negligent in the placement of the signs, and had not taken adequate precautions to protect the public. Bromfeld appealed, and the appellate court addressed two issues.

First the Bronfelds argued that Wisconsin Statute § 893.83(1), which is an exception to governmental immunity for certain highway defects, precluded Pember from claiming immunity.  The court concluded that a misplaced barricade was not a highway defect under the statute.  The statute related to the condition of the roadway surface, not temporary barricades.

Then the court reviewed the governmental immunity defense.  Wisconsin Statute § 893.80(4) immunizes local governments and their officers, employees, or agents from liability for acts involving the exercise of discretion or judgment.  The court first analyzed whether placement of barricades was a discretionary act, and concluded that ample case law had already decided this issue.  The placement of signs by a municipality was clearly an act of discretion.  Then the court reviewed whether Pember was immune because it was an agent of River Falls,  The court analyzed the case based on Lyons v. CAN Insurance Co. 207 Wis. 2d 446 (Ct. App. 1996).  In Lyons, the court had developed a three part test for when an agent may be entitled to governmental immunity: (1) whether the governmental authority had approved reasonably precise specifications; (2) whether the contractor’s actions conformed to those specifications; and (3) whether the contractor warned the municipality of any known dangers.  The court found that River Falls had the necessary specifications, Pember had conformed to those specifications, and Pember was unaware of any particular danger associated with the placement of the barricades by the closed crosswalk.  Thus Pember was entitled to immunity under § 893.80(4).

Claims barred by Governmental Immunity in Road Design Case

Tuesday, February 2nd, 2010

In a recent unpublished Court of Appeals case, Glaum v the City of Hayward, the Court upheld a circuit court decision granting governmental immunity under Wis. Stat. 893.80(4) for the alleged faulty construction of a road which caused flooding onto an adjacent property.  The Glaums claimed that the City had a duty to design and construct the road such that it could sufficiently handle storm water.  The Court, relying in part on Milwaukee Metropolitan Sewerage District v. City of Milwaukee, held that “approval of the design and construction of a public work are generally discretionary acts.”  (…even if the system is poorly designed…).  This case hinged on the distinction between a discretionary and a ministerial act.  Discretionary acts are generally immune, while ministerial acts are generally not.  Some actions seem clearly discretionary while others appear clearly ministerial.  But as evidenced by the fact that there have been a number of lawsuits hinging on this very distinction, there is quite a grey area between the two.  As a general rule, discretionary acts are those acts requiring an exercise of judgment, while ministerial acts are those acts which are certain, imperative, and involve the performance of a specific task which the law imposes – nothing is left for judgment.

Neighborhood Electric Vehicles

Thursday, January 28th, 2010

A bill working its way through the Senate would give municipalities greater ability to permit neighborhood electric vehicles (“NEV”) on their roads.  Currrently, the law (Wis. Stat. 349.26) authorizes municipalities to permit NEVs on local roads unless they are connecting highways or cross a state trunk highway, in which case they must get DOT permission.  Under the bill, the municipality may permit NEVs on any road within its municipal limits that has a speed limit under 35 mph.  If this bill becomes law, I’ll post an update.  NEVs are defined in Wis. Stat. 340.01(36r).