Archive for the ‘Pending Legislation’ Category

Adverse Possession against or by Municipalities Eliminated

Thursday, March 3rd, 2016

On March 1, 2016, Governor Walker signed 2015 Wisconsin Act 219 into law eliminating adverse possession by or against municipalities.  In other words, individuals or entities cannot acquire publicly owned land by adverse possession, and likewise municipalities cannot acquire privately owned land by adverse possession. (This also applies to other state or county owned land).

According to the legislative memo accompanying the bill, “The prohibition applies retroactively to adverse possession or use where the current 20 year occupancy requirement has not been met at the time of the effective date of the bill.”

I still see some potential for disputes over borders in cases where it is unclear if the 20 year requirement was met prior to the effective date of the new law.

Posting Notices on the Internet

Monday, November 30th, 2015

Wisconsin law requires municipalities to either publish or post various legal notices.  In general, “publishing” means publishing in the local or the officially designated newspaper, while “posting” means literally placing the notice on a public notice board or other such place where the public is likely to see it.

In those cases where posting is allowed by state law, the former requirement was that notices had to be posted in at least three places where the public was likely to see the notice.

The Governor recently signed 2015 Wisconsin Act 79 into law, which allows municipalities that choose to post notices to do so in one physical public place and on the municipality’s website, instead of posting the notice in three places.  For example, if you formerly posted your agendas in three places, a Town may now choose to post the agenda on the Town’s website and then in at least one physical location.  As always, there are exceptions.  Consult with your municipal attorney for your specific questions.

Keep in mind that this new internet posting is an option, not a requirement – a municipality may continue to post in three places, or more, and municipalities are not (yet) required to have websites.

Prevailing Wage Law Repealed Effective January 1, 2017

Monday, October 19th, 2015

Wisconsin’s 80 some year old Prevailing Wage law has been eliminated for cities, villages and towns (and some other local governmental units), effective January 1, 2017.

During calendar years 2015 and 2016 the prevailing wage laws remain in effect. The repeal included a statement that this repeal was a matter of statewide concern, and that municipalities are prohibited from enacting local prevailing wage laws.

The repeal of the prevailing wage law was part of the annual budget, a copy of which can be found at this website. See page 352 for the specific section.

In addition, according to a Department of Workforce Development statement issued in July, projects which are under contract or for which the local government has issued a request for bids prior to January 1, 2017 will remain subject to the prevailing wage law for the life of the project. See the DWD website for further details.

Residency Requirements? Don’t sell the house just yet.

Tuesday, July 28th, 2015

In June of 2013, the state legislature enacted a statute generally prohibiting municipal residency requirements, with a few exceptions. In July of 2013, the City of Milwaukee Common Council voted to enforce the City’s residency requirements, despite the new state law, because the Wisconsin Constitution gives cities and villages home rule over local affairs and residency is primarily a matter of local concern. Shortly thereafter, the Milwaukee Police Association, et al, sued the City, claiming the state law preempted the City residency requirement. The circuit court held that the state law trumped the City residency requirement.

The City appealed. Although the new statute (§ 66.0502) stated it was a matter of statewide concern, saying so and actually being so are two different things. The appeals court analyzed the effect of the new law on municipalities, and analyzed the Constitutional grant of home rule over local affairs, and held that the statute violated both the uniformity and the statewide concern provisions of Article art. XI, § 3.(1), of the state Constitution.  You can read the full text of the appellate decision here.

It is quite possible the police union, et al, will appeal to the Supreme Court, so this decision may not be the final word. Also, town officials should keep in mind that home rule is only granted to cities and villages by the Constitution, not to towns. So the decision does not change the residency prohibitions for towns.

County assessment proposal will likely be removed from the state budget

Wednesday, April 15th, 2015

In a recently released memo dated April 15, 2015, the Joint Committee on Finance stated that they will remove the County Assessment proposal from their review of the budget, stating it is a non-fiscal policy item and should not be addressed in the budget.  While not an absolute removal of any chance it might find its way back into the budget, the Joint Committee on Finance decision makes it likely that any countywide assessment legislation will be introduced as separate legislation, and not enacted as part of the budget bill.  I think most observers will find that appropriate.

Property Assessment Reform

Monday, February 16th, 2015

As a follow-up on my last post, the Department of Revenue has posted an overview fact sheet regarding the possible change from local to county assessment.  If you go to the Department’s publications website and scroll down to the link for Property Assessment Reform you can download the PDF version of the fact sheet.

Governor Walker’s proposed budget changes assessment from city, village and town to county assessment

Wednesday, February 4th, 2015

Governor Walker’s new budget proposal would remove the assessment process from villages, towns, and most cities.  This has been proposed in the past but gotten no traction in the legislature.  Currently, local municipal governments are responsible for carrying out the property tax assessment process, and handling challenges to it from taxpayers.  And almost all, if not all, small municipalities contract the assessment duties to profession assessors who are licensed by the state.  Under the governor’s proposal, counties would take over property tax assessment.

You can review the budget at this State of Wisconsin Department of Administration website.  The county assessment proposal can be found on page 460.

The goal may be to be to bring greater uniformity to property tax assessments, although this is not directly stated in the budget.  Cities with populations over 39,000 (1st and 2nd class cities) can choose to maintain their own property tax assessment if they comply with the new regulations.

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.

New Nonmetallic Mining Bill Limiting Local Regulation Introduced

Thursday, February 27th, 2014

Nonmetallic Mining Bill 2013 SB 632, companion bill 2013 AB 816.

On February 26, 2014, Senator Tom Tiffany introduced a bill to limit a local government’s ability to regulate existing nonmetallic mines in several ways.  However, unlike last year’s broad sweeping bill, which did not get any traction, this one appears to primarily be aimed at protecting an existing nonmetallic mine’s interests. The gist of it seems to be to stop a local government from imposing new regulation on existing mines.  But, as always, the devil is in the details, and there may be unintended consequences.

This bill would expand the definition and the application of nonconforming use protections to existing mines (often called “grandfathering”), and includes language that would allow expansion that otherwise might not be allowed.  For example, it allows expansion of a mine, regardless of a zoning or nonmetallic mining ordinance to the contrary, to “land that is contiguous to such land if the contiguous land is under the common ownership or control of the person.”  And it appears to create an exception to the general nonconforming use standard of 50% expansion.

This law also creates an exception to the existing (and long standing) “police power” law of Wisconsin, which generally holds that a police power ordinance can apply to existing uses.  A good example of this is, if a speed limit on a road changes, the new speed limit is the law – it does not matter if you have driven safely on the road under the old speed limit for 20 years – you still must now obey the new speed limit. Another example might be if a new health standard for well water or septic systems is imposed, it could apply to existing wells and septic systems. Generally, there is no grandfathering under police power ordinances (with exceptions, of course).

I also see two immediate consequences of the expanded definition, which now includes contiguous land if it is under common ownership or control.

First, most existing ordinances already grandfather existing mines, but only to the extent of the mine’s current reclamation plan. The new language allows expansion outside of the area defined by the reclamation plan.  (I believe the reclamation plan itself would still need to be amended prior to expansion as long as the local reclamation ordinance was in existence when the mining began – but I see potential issues if a reclamation ordinance is amended).

Secondly, this language seems broad enough to include neighboring land that was not under ownership or control of the mine, but that the mine now buys or leases.  So it appears to allow potentially unlimited expansion into areas where the mine was never contemplated when it was permitted.

As a final note, the bill also includes two other sections not directly related to grandfathering, one on registered nonmetallic mineral deposits, and one on borrow sites that also limit local regulation.  I will discuss those in a separate post.

New Exceptions to Release of Utility Customer Information

Wednesday, October 23rd, 2013

Back in July of, 2013, Governor Walker signed 2013 Act 25, creating a new exception to the public records law.  Act 25 prohibits the release of customer information (which is specifically defined in the law) by a municipal utility unless the customer consents to the release of the information, or if another exception applies.

As is sometimes the case, there were unintended consequences which created some unwelcome roadblocks to real estate transactions, among others.  Governor Walker recently signed a new law, Act 47, which creates four additional exceptions to the prohibition on releasing customer information.  A municipal utility may now release information in the following situations:

  1. To a title agent, insurer, lender, mortgage broker, or attorney in connection with the preparation of real estate closing documents.
  2. To a lender or prospective purchaser in connection with the foreclosure of real property.
  3. To an owner of real property provided with municipal utility service or the owner’s designated agent.
  4. To comply with security disclosure obligations.