Municipal officials should strive to remain impartial, avoid bias.

August 19th, 2015

A board member’s telegraphing his or her decision before hearing the matter is often fatal to a municipal decision.

As a general rule of thumb, it is always wise for municipal boards and councils to remain impartial and unbiased. This is especially true when the state statute in question explicitly requires impartial decision making, such as when deciding on “laying out, altering, or discontinuing a highway…” See § 82.11(2)(a).

In the recent case of Thomas R. Jorns v. Town Board of Jacksonport, the Jorns owned a landlocked parcel. They had tried to purchase an easement, but were unable to do so. So they applied to the Town, as they are allowed to do under Chapter 82 of the statutes, to lay out a highway. At the hearing, two of the board members made comments that indicated they were not impartial and had already decided the matter prior to the hearing. The court overturned the Town Board decision and remanded for a new hearing.

Of course, on a three person board, if two of the board members must recuse themselves, that leaves only one person. Unfortunately, towns sometimes face this situation, and the statutes generally do not address this lack of quorum. Fortunately for the Jorns and the town, in this case the statute does address the lack of quorum, and provides for several alternatives. Towns are required to have a written policy which addresses such a circumstance, and if they don’t the clerk may act. See 82.11(2)(b).

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

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.

Shoreland Zoning Law Revised

July 15th, 2015

As anyone who follows the news knows, Governor Walker recently signed the new budget.  And as anyone who follows politics knows, a number of items make it into the budget bill that, to the lay observer, seem to have nothing to do with the state budget.

The new budget, Section 1922 on pages 336 and 337, changed the law on shoreland zoning to limit a county’s regulatory power within shoreland zoning areas.  Some of the changes are:

  • Counties may not regulate a matter more restrictively than the DNR standards found in NR 115. Prior to this, counties could be more restrictive in a number of areas.
  • Counties may not require a person to establish a vegetative buffer zone in an area that was previously developed.
  • Allows a landowner to have a 35 foot wide viewing area in those areas where a vegetative buffer is required.
  • Expanded a landowner’s ability to repair and rebuild a nonconforming structure within the existing footprint of an existing nonconforming structure.

The new law also affects village and city shoreland zoning, but only in areas that were annexed after 1982 – (see Wis. Stats.  61.353 and 62.233).

The full budget act can be viewed from the state legislature website.

Taking without compensation cannot be based on inadvertant mistake.

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?

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.

County assessment proposal will likely be removed from the state budget

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.

What does “single family residence” mean?

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.

Property Assessment Reform

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

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.

Certiorari is a Tough Nut to Crack #43 – O’Connor v. Buffalo County Board of Adjustment

November 26th, 2014

In a recent unpublished case concerning a frac sand mine, Micheal O’Connor and the School District of Cochrane-Fountain City appealed a decision by the Buffalo County Board of Adjustment (BOA) to grant a conditional use permit for a frac sand mine. The circuit court upheld the decision of the BOA, and O’Connor and the School District appealed. They relied on three avenues to challenge the BOA decision.

First, they argued that the Buffalo County’s zoning ordinance does not allow sand mining as a conditional use in the agricultural zoning district. The BOA pointed to a provision in their zoning code which they claimed does allow sand mining as a conditional use in that zoning district. Following long standing precedent, a reasonable interpretation of an ordinance by a municipality (or county in this case) is presumed to be the correct interpretation, even if another reasonable explanation can be made.  Here the Appeals Court found Buffalo County’s interpretation quite reasonable, and supported by consistent past precedent.

Second the plaintiffs argued that since the BOA had previously denied a similar application by the same company for the same sand mine, the BOA was precluded from considering the application again. However, the Appeals Court quickly concluded that there is no supporting law preventing someone from applying for a conditional use permit, getting denied, and then applying again with additional supporting evidence.

Lastly, the plaintiffs claimed that since the conditional use application did not name all of the partners in the company which owned the land, the application was invalid. The Appeals Court made short work of this last argument.  There is no law that requires a partnership company to name all of its partners when applying for conditional use permits.

Just because there is an alternative reasonable position to be made, Courts are reluctant to overturn a reasonable, lawful municipal decision. As I have noted in previous writings, it is an uphill battle to get a Court to overturn an otherwise reasonable decision by a municipality, especially on certiorari review.