Vacating Alleys and Standing to Sue

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.

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