Wisconsin’s Voter ID Requirement Stopped for Now?

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.

Guidance on Voter ID Law

September 22nd, 2014

Last week the Government Accountability Board (GAB) posted guidance on implementing the new voter ID law, especially with respect to absentee ballots. While the eventual outcome of the law is in still uncertain, the current state after the recent Federal Court of Appeals decision is that the law is valid and will be in force for the upcoming election on November 4, 2014.  An appeal is pending, but for now the law is in effect.  Guidance can be found on the GAB website.

Lawn Mowing: Landower 1, County 0

September 19th, 2014

In the recent unpublished case of Forest County v. Dwayne Pasternak, the appellate court overturned a circuit court judgment enforcing a Forest County nuisance citation against a homeowner for a failure to mow his lawn. The appellate court found that the County had failed to show that an uncut lawn constitutes a nuisance.  This case turned on the definition of a public nuisance, and the gist of it was whether or not an uncut lawn creates a hazard to the health and safety of the public.  Under the set of facts in this case, the County had failed to provide sufficient evidence of such a risk to the public.

It would probably be unwise to jump to the conclusion that municipalities cannot enforce violations of ordinances regulating the height of lawns. The court in this case was quick to point out that here the citation was for a public nuisance which allegedly caused a health hazard, and the County had not proved a health hazard.  In other cases, municipalities have successfully enforced ordinances specific to noxious weeds and also maximum height regulations.

Nevertheless, this case, while unpublished, does present some things for municipalities to ponder when attempting to make a private property owner mow his or her lawn. It might also be noted that County action in this case was apparently prompted by a neighbor’s complaint.

As an aside, private property owners who don’t like what their neighbor’s are doing will sometimes try to get the local municipality involved to stop the neighbor. Neighbor against neighbor is a potential minefield where a municipality must tread very carefully.

Safely Driving a Grader on Public Roads Requires Judgment

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?

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?

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

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.

New Nonmetallic Mining Bill Limiting Local Regulation Introduced

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.

Ignore Your Rights and They’ll Go Away # 445

February 10th, 2014

I have written about this before – maybe not 445 times, but if there is one area of the law where courts tend to be consistent, whatever the merits of the case or the seeming harshness of the result, it is with deadlines.  In Morack v. Town of Waukesha, the Moracks purchased some property which was “downstream” from a development.  They complained to the Town that the storm-water from the development was causing flooding on their property.  They hired an attorney who also complained, and threatened legal action against the Town.  The Town’s attorney sent them a letter informing them of Wisconsin’s notice of claim statute, and suggesting that they should follow the procedures found there if they wanted to file a claim against the Town.  The Moracks did not follow the procedure in § 893.80, and instead continued their complaints and threats of legal action for another ten years.  Eventually, they sued, and the circuit court said they were about ten years too late (I’m paraphrasing).  They appealed and the appellate court upheld the circuit court decision.

Again, the lesson here is that process and deadlines are important.  The Moracks were denied the chance to argue the merits of the case because they failed to meet the deadlines.  In this case the appellate court noted that the purpose of the Notice of Claim statute is so that the local government can evaluate a claim, decide on its merits, and respond to it while the issues are fresh.  In this case, in the intervening ten years the developer had died, and his company had gone bankrupt.  While it may seem that ten years is just too long to wait, keep in mind that one day late may be just as fatal to a claim you hope to make

Act 10 Grievance Procedure – First Case Law? What is a termination?

January 10th, 2014

Remember Act 10? While the protests in Madison have subsided, the court cases continue.  One of the less publicized aspects of Act 10 was the enactment of Wis. Stat. 66.0509(1m) which required most local governments to create a grievance procedure to allow employees to appeal employee terminations, employee disciplinary actions, and workplace safety.  But the new state law did not define those terms.  When implementing the new state law, many local governments defined those terms themselves, often to exclude certain types of employee separations, such as voluntary quits, retirement, layoffs, and others.

Dodge County’s grievance procedure included exceptions for “termination of employment due to…lack of qualification…”  Dodge County employee Heidi Burden was employed in a position which had as one of its qualifications no operating while intoxicated convictions within the past 12 months.  Ms. Burden was convicted of operating while intoxicated and subsequently fired.  She attempted to grieve the “termination,” but the County said the grievance procedure wasn’t available to her because she was not qualified for the position.  She field suit in circuit court, which ruled in favor of Doge County, and she appealed.

The appellate case hinged on the meaning of the word “termination” and on whether Dodge County could unilaterally define the term, since the legislature had not done so.  The appeals court said no, Dodge County was not free to invent a definition for “termination.”  Instead, since the legislature did not choose to define the word, then the common ordinary understanding of the meaning of termination should apply.  The court turned then to a dictionary, and using that term decided that in the facts before them, a “termination” had occurred.  A person had a job, and was fired.  By plain language of the word in common usage, that was a termination.  Indeed, the very definition in the County’s ordinance said that termination does not include “termination due to…” and then listed various terminations that would not be subject to the grievance procedure.

Although the Court narrowed their holding to the facts before them, the logical implication is that local governments are not free to simply define termination as they see fit, but must look to the plain, ordinary definitions of the word.  They can still define it to not include things like a voluntary quit or a retirement, but there will be grey areas if a local government defines “termination” to exclude actions which, arguably, are “terminations” in the common, ordinary meaning of the word.