Category: Wisconsin courts

Wisconsin statute regulating parking signs preempts local ordinance limiting “off premises” signs

Gary Taylor

by Andrea Vaage

City of Eagle River v. Slusarczyk
Wisconsin Court of Appeals, July 7, 2015

Mark Slusarczyk, owner of Traveler’s Inn, posted a sign in his parking lot which forbid customers of the neighboring Synergy Salon and Spa from using the lot. The sign read:

PRIVATE PROPERTY NO TRESPASSING!
TRAVELERS INN GUESTS
PARKING ONLY
DO NOT BLOCK DRIVEWAY ANY TIME
NO! SYNERGY OR THEIR RUDE GUESTS
PROHIBITED THANK YOU

Slusarczyk was cited for violating section §106-683 of the Eagle River Zoning Ordinance, which allows off-premises signs after procuring a conditional use permit. The City contended that Slusarczyk’s sign promoted another business, and therefore was an off-premises sign, defined under the Eagle River Ordinance as “a sign which directs attention to a business, product, service, or entertainment not conducted, sold or offered upon the property where such sign is located.” A trial was held on November 5, 2014 where the trial court determined that the sign directed attention to the Synergy Salon and Spa and therefore constituted and off-premise sign. Slusarczyk appealed to the Wisconsin Court of Appeals.

The primary question before the Court was whether the City’s ordinance conflicts with a preemptive state statute. Preemption occurs when a local ordinance comes into conflict with a state statute purporting to regulate the same matter. Both the legal interpretation of the town’s ordinance and the state statute were reviewed de novo.

Wisconsin state law provides for traffic regulations, including a section that authorizes signs permitting or prohibiting parking.  Wis. Stat. § 346.55(4) provides that “Owners or lessees of public or private property may permit parking by certain persons and limit, restrict or prohibit parking as to other persons if the owner or lessee posts a sign on the property indicating for whom parking is permitted, limited, restricted or prohibited.”

Slusarczyk contended his sign clearly fell within the scope of the state statute.  The City argued, on the other hand, that “Wis. Stat. § 346.55(4) permits the sort of sign Mark Slusarczyk put up in this matter[, and] City of Eagle River Ordinance § 106-683 also permits the sort of sign Mark Slusarczyk put up in this matter, as long as a conditional use permit is first granted for the sign.”  Citing the 2008 Wisconsin Supreme Court case of Town of Rhine v. Bizzell, the Court found, that “[e]ven though conditional uses may be authorized pursuant to the ordinance, that does not render them uses as of right.” Because a preemptive state statute grants Slusarczyk the right to indicate for whom parking is restricted or prohibited on his property, the City of Eagle River cannot restrict that right by requiring Slusarczyk to first obtain a conditional grant. The Court found that the City of Eagle River ordinance conflicted with the state statute allowing for signs which specifically prohibited certain persons and was therefore preempted.  The City cannot restrict this right by requiring a CUP. The judgment of the trial court was reversed.

Preemption, Signs and billboards, Wisconsin courts , ,
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Short-term rentals not allowed in R-1 residential district in Wisconsin county

Gary Taylor

by Andrea Vaage

Vilas County v. Accola
Wisconsin Court of Appeals, May 12, 2015

The Accolas own a home on Rosalind Lake in Vilas County, Wisconsin, which is not their primary residence. The property is zoned R-1 Residential, which allows the following permitted uses:

  • Single-family detached dwelling units, including individual mobile homes, which meet the yard requirements of the district.
  • One non-rental guesthouse, which may be occupied on a temporary basis.
  • Parks, playgrounds, golf courses and other recreation facilities.
  • Home occupations.
  • Essential services.
  • Hobby farms.

The Vilas County zoning ordinance also includes an R/L Residential Lodging district. The purpose of the Residential/Lodging District, as stated in the ordinance, is to “provide for areas with primarily low-density residential use, but with some mixing of low-density Transient Lodging.” Transient Lodging is defined as “a commercial lodging establishment, which allows rental of sleeping quarters or dwelling units for periods of less than one month.” The R/L District lists the following permitted uses:

  • All uses permitted in the R-1 District.
  • Bed and breakfast establishments.
  • Resort establishments with no contiguous multiple-family dwelling units.
  • Rental of residential dwelling unit.

Shortly after purchasing the property the Accolas began advertising the property for rent on the internet for stays as short as two days. The County advised the couple that single-family residences in the R-1 district could not be rented for less than one month. In response, the Accolas established a corporation called Better Way to Live. The couple had people staying at the property “donate” to the corporation for cleaning, utility, and other expenses, and allegedly gave the remainder of the donation to charity. The County determined that donating posed no functional difference from renting the property. The circuit court enjoined the Accolas from renting the Rosalind Lake property for durations of less than thirty days, and the Accolas appealed.

The property is located in the R-1 residential district, which allows single family detached dwelling units, but makes no mention of whether renting the unit is allowed. The County asserted that rentals under one month were prohibited in the R-1 district because they are specifically permitted in the R/L district. Thus, if short-term rental was allowed in the R-1 district, then the additional language in the RL district ordinance would be meaningless.

The Court of Appeals agreed with the County.  When the R-1 district regulations are read in context with the R/L regulations, the only reasonable conclusion is that the phrase “rental of residential dwelling unit” in R/L refers to rentals of residential dwelling units for periods of less than one month.  The zoning ordinance unambiguously permits in the R/L district both: (1) the rental of single-family detached dwelling units for periods of less than one month; and (2) all uses permitted in the R-1 district, which includes single-family detached dwelling units. “If the Accolas were correct that the rental of single-family detached dwelling units for periods of less than one month was a permitted use in the R-1 district, then the section of the R/L district regulations permitting the rental of single-family detached dwelling units for periods of less than one month would be superfluous because all uses permitted in the R-1 district are already permitted in the RL district.”

The Court affirmed decision granting summary judgement to the County.

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Council’s rescission of conditional use permit based on misrepresentation was not based on substantial evidence

Gary Taylor

by Gary Taylor

Oneida Seven Generations Corp. & Green Bay Renewable Energy v. City of Green Bay
Wisconsin Supreme Court, May 29, 2015

Oneida Seven Generations Corporation sought a conditional use permit (CUP) to install a renewable energy facility in the City of Green Bay.  The facility would take municipal solid waste and turn it into energy via a pyrolytic gasification system. The application was supported by a 149-page report on the facility. The report included proposed blueprints for the facility and artist’s renderings of its exterior. It also contained photographs of a pyrolytic gasification unit with various parts labeled, including its “exhaust stack.” In addition to these illustrations, the report described the various permits that would be required from the Wisconsin Department of Natural Resources (DNR) and the requisite reporting to and oversight by the DNR of the facility’s emissions. The report also contained a 50-page section entitled “Emissions,” which consisted of two papers analyzing the impact on air quality of similar facilities. The papers identify possible emissions from conversion technologies, explain that they are significantly lower in amount than emissions from other types of facilities, and observe that the emissions from facilities using conversion technologies fall within local, state, federal, and international emission limits. The papers were followed by an appendix listing over 100 facilities throughout the world that are disposing and converting biomass (principally municipal solid waste) in the process of producing energy and/or fuels.

During the question and answer session at the February 2011 Planning Commission meeting, commissioners asked numerous questions about the gasification process, the technology and its use in other communities, emissions, building appearance (including exhaust stacks), and several other topics. At the conclusion, the Plan Commission voted unanimously to recommend approval of the conditional use permit. Their recommendation suggested that a number of conditions be placed on the permit. These included the requirement that the facility comply with all municipal regulations and the requirement that the facility comply with federal and state regulations governing air and water quality.

The Green Bay Common Council took up Oneida Seven’s request on March 1, 2011.   Council members asked many more questions regarding emissions and waste material. At the conclusion, the Council voted 10-1 to approve the conditional use permit with the conditions recommended by the Plan Commission.

Although the City initially voted to grant the permit, it subsequently voted to rescind the CUP on the basis that it was obtained through misrepresentation. This came after Oneida Seven applied for the various city, state, and federal permits it would need for the project and submitted plans to accompany those applications.  Members of the public complained to the Green Bay City Council about many matters related to the proceeding, including that the stacks and emissions referenced in the building permit were not on the plan submitted for the CUP.  The  Council voted to direct the Plan Commission to hold a hearing to determine whether the conditional use permit had been obtained by misrepresentation. After taking more testimony and receiving more documents from Oneida Seven, the Commissioners unanimously agreed that they had had adequate information to reach a decision on the CUP, that they had not been misled, and that Oneida Seven had not made misrepresentations. The Commission relayed these findings to the Council in a report. The Council considered the Commission’s findings at a meeting on October 16, 2012. A motion to approve the decision of the Commission did not pass, but a motion to rescind the conditional use permit passed by a vote of seven to five.  Oneida appealed, lost at trial court, but won at the Court of Appeals.  The City appealed to the Wisconsin Supreme Court.

The Supreme Court was asked to consider whether the City’s decision to rescind Oneida Seven’s conditional use permit was supported by substantial evidence. Substantial evidence is evidence “of such convincing power that reasonable persons could reach the same decision as the board.” In determining whether the substantial evidence test is met, a court should “take into account all the evidence in the record.”  After carefully dissecting the entire record of statements made by Oneida Seven representatives at the Commission and Council meetings, and examining them in the context of the questions being asked of them at the time, the Supreme Court could not find evidence in the record on which a reasonable person could rely to find that Oneida’s statements about emissions and hazardous materials were misrepresentations. Therefore the Supreme Court concluded that the City’s decision to rescind the conditional use permit was not based on substantial evidence.

Dissenting opinion

Justice Roggensack dissented, arguing that the majority opinion did not accord the Council’s decision the presumption of correctness and validity that the law requires, and that instead, the majority opinion substituted its view of the evidence for that of the Council, contrary to law.  Material misrepresentations were made to the Council in regard to emissions during operation of the gasification facility and such a facility was not experimental because solid municipal waste was being used as the feedstock in other gasification facilities. A reasonable view of the presentations made March 1, 2011, when Oneida Seven obtained the CUP, supported the Council’s finding that it was misled.

Conditional Uses/Special Uses, Procedural Issues, Wisconsin courts , , ,
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Shared driveway resulting from DOT condemnation may be undesirable, but does not constitute a taking

hdankbar

by Hannah Dankbar

Bailey v Wisconsin DOT
Wisconsin Court of Appeals, April 23, 2015

Bradley and Caroline Bailey appealed the circuit court’s dismissal of their takings claim against the Wisconsin DOT. The Baileys claimed that the DOT took part of their land that resulted in a change in access to their property and left them with an “uneconomic remnant” which, according to Wis. Stat. 32.05(3m) means that the “property remaining is of such size, shape or condition as to be of little value or of substantially impaired economic viability.”

The DOT condemned two parcels of the Baileys’ property as part of a highway construction project.  As part of this project the DOT moved the Baileys’ driveway and created a new access point from the highway. The Baileys claimed that the DOT’s actions left them with an “uneconomic remnant,” but the circuit court dismissed the complaint.

The Baileys first argued that the circuit court erred because the DOT failed to make a prima facie case that the “Baileys’ property had reasonable access after condemnation.”  The DOT responded that the question of reasonable access is separate from, and plays no part in a determination whether an uneconomic remnant exists under the statute.

The Court of Appeals dismissed the Baileys’ argument over any supposed stand-alone “reasonable access” issue. Instead it focused on whether the change in access left the Baileys with an uneconomic remnant. The Baileys submitted four affidavits in support of this claim: one by the Baileys’ attorney, two by individuals the Baileys listed as experts, and one by Caroline Bailey. The circuit court excluded everything in the attorney’s and experts’ affidavits based on lack of foundation and other admissibility factors.  Caroline Bailey’s affidavit was the exception. She stated that they now shared a driveway with a neighbor whom they find difficult and threatening, and with whom they believe they will be unable to agree on driveway maintenance.  The Court of Appeals found that this only demonstrated that the Baileys’ situation is undesirable; not that the remaining property is “of little value or of substantially impaired economic viability.”

Because of these reasons the Court of Appeals affirmed the circuit court’s dismissal.

Condemnation, Highways, Wisconsin courts , ,
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DoT must pay just compensation for property erroneously recorded as “dedication” on plat map

hdankbar

by Hannah Dankbar and Gary Taylor

Somers USA, LLC v. Wisconsin Department of Transportation
Wisconsin Court of Appeals, March 25, 2015

Somers purchased about 47 acres in 2007 to build a truck stop off of I-94. At the time the state was planning on using about 9.5 of those acres for a frontage road, and about 3 acres for an on ramp for a highway project. An engineering company helped create the Certified Survey Map (CSM).  The initial draft of the CSM reserved both the 9.5-acre and the 3-acre parcels as “Future Wisconsin D.O.T. Right-of-Way.”  The Kenosha County Land Use Committee approved the CSM without any conditions or communications regarding land dedication for public use.

In 2008 when Somers recorded their final CSM it dedicated the 9.5 acres as “Road Dedication for Future Highway Purposes,” and the 3 acres as “a road reservation for potential future state highway purposes.” All parties agree that Somers never intended to dedicate land for the highway project and that none of the governmental bodies involved had required or asked for a dedication. Individuals involved with drafting and signing the CSM stated that they do not know how the “dedication” language wound up in the document.  The State thereafter built a frontage road and on-ramp on the two parcels without compensating Somers, relying on the “reservation” and “dedication” language in the CSM to give it a right to the property without any requirement to pay Somers for the land taken. Somers filed a complaint seeking just compensation for their land. The court ordered the state to pay Somers $500,000 plus attorney fees, costs and interest. The state appealed this decision.

The Fifth Amendment of the US Constitution and Article I section 13 of the Wisconsin Constitution prohibit the taking of land without just compensation. The state relied on Wis. Stat. §236.29(1) which states, ““[w]hen any plat is certified, signed, acknowledged and recorded as prescribed in this chapter, every donation or grant to the public … marked or noted as such on said plat shall be deemed a sufficient conveyance to vest the fee simple of all parcels of land so marked or noted.” However, for the state to rely on this statute the land must be dedicated according to proper procedure under Wis. Stat. §236.34(1m)(e), which require a local governing board to approve the dedication in the CSM. No governmental board involved in Somers’ development approved any road dedication or land grant for inclusion in the CSM; therefore, the CSM lacked the force and effect required to convey the property to the State.

The court went on:  “Undeterred by the evidence that no dedication was ever intended or approved, the State proffers the absurd argument that it can still take Somers’ property without compensation as it was entitled to rely on an invalid dedication in a CSM.”

When a court leads by calling an argument “absurd” you can anticipate the results….

The court found no legal dedication, and therefore found that the state owes just compensation to the Somers.

 

 

 

 

 

Condemnation, Highways, Plats, Wisconsin courts , ,
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Single-family residential district provisions construed to allow short-term rentals

hdankbar

by Hannah Dankbar

Heef Realty and Investments, LLC & Sandra Desjardin v. City of Cedarburg Board of Appeals
Wisconsin Court of Appeals, February 4, 2015

In September 2012 two homeowners received citations for renting out their homes on a short-term basis. They appealed the citations, but their challenges were denied by the City of Cedarburg Board of Appeals (BoA), which concluded that the Cedarburg zoning ordinance did not allow the short-term rental of homes in a single-family residential district. The homeowners sued.  The question before the court was whether short-term rental is a permitted use of property in a single-family residential district.

The zoning ordinance in question reads in part:

RS-5 SINGLE-FAMILY RESIDENTIAL DISTRICT

(b)     Permitted Uses.

(1)     Single-family dwellings.

(2)     Family day care home.

(3)     Foster family home.

(4)     Community living arrangements which have a capacity for either (8) or fewer persons served by the program.

(5)     Essential services.

Zoning Code art. C, § 13-1-46.  Thus, the Ordinance lists “single-family dwellings” as a permitted use in a “single-family residential district.”

The BoA argued that to qualify as a single-family dwelling under the ordinance the property must be the occupant’s established residence.  The owners, on the other hand, argued that the plain language of the ordinance permits a short-term rental, that ambiguity in the ordinance must be resolved in favor of the free use of property, and that Wisconsin case law and that of other jurisdictions makes it clear that short-term rentals are a permitted use of a single-family dwelling.

The Court of Appeals sided with the owners.  It looked to a prior Wisconsin case in which the issue was a time-share, where thirteen families would own the property and each would use it for four weeks per year.  The court in that case reasoned that the use constituted a single-family dwelling because only one family would be staying in the property at a time.  According to the court the same reasoning holds true for short-term leases: the property will only be used by family at at time.  The ordinance does not require occupancy over a period of time, and the BoA cannot arbitrarily impose such a restriction.  Construing the ordinance in favor of the free use of property demands that short-term rentals be allowed in the city’s RS-5 district.

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Landowner’s marina operation not legally nonconforming, but rather was limited, occasional, sporadic

hdankbar

by Hannah Dankbar

Walworth County v West Rod Cottage Industries LLC
Wisconsin Court of Appeals, January 14, 2015

Fred’s Tap is located on Lake Beulah in Walworth County. It opened in 1961 and consists of two pieces of land divided by Stringers Bridge Road. The “tavern” parcel is adjacent to a channel leading into Lake Beulah, and the “lake” parcel consists of a cottage, garage, and parking area along the main body of Lake Beulah. Both properties have areas to moor boats. West Rod bought the land of Fred’s Tap in the early 2000s.

In 1971 Walworth County enacted a shoreline zoning ordinance (§ 74-179) which zoned the tavern parcel as B-3, Waterfront Business District. In this area ten or fewer boat rentals and “boat liveries” are allowed. Conditional uses allowed in B-3 include, “[t]averns and bars, [y]achting clubs and marinas, and boat liveries” (which the court assumes to be liveries operating with more than ten boats). The county zoned the lake parcel as C-4, Lowland Resource Conservation District. Marinas and boat liveries are prohibited in this district, but boating is allowed.

In 2012 the County issued a citation to West Rod for operating a boat marina/access cite in the C-4 zoning district.”  The trial court upheld the citation, and West Rod appealed.  The questions in this case are whether the use the County is trying to prevent was a use that lawfully existed when the zoning was first imposed upon the lake parcel, and if so, whether that use continued uninterrupted after the zoning ordinance was enacted.

The Wisconsin Court of Appeals recognized that a legal nonconforming use is (1) an active and actual use of the land and buildings that existed prior to the commencement of the zoning ordinance and (2) that has continued in the same or a related way until the present. The burden is on the property owner to prove by a preponderance of evidence that the nonconforming use existed at the time of the adoption of the ordinance and has continued since. This burden includes the requirement that the property owner show that the use was “so active and actual that it can be said he [or she] has acquired a ‘vested interest’ in its continuance.”

From this statement of the law the court concluded:

  • The leasing of boat slips is the “use” at issue;
  • The County has the burden to prove that Fred’s Tap was leasing boat slips and that such activity was not allowed without a conditional use permit as to the “tavern” parcel and not at all on the “lake” parcel; and
  • West Rod bears the burden to prove by a preponderance of the evidence that its leasing of boat slips was an active and actual use that existed prior to 1971 and has continued as the same or a related use until the present such that it is a valid nonconforming use.

After chastising both West Rod and the County for “fundamental deficits” in their arguments, the court concluded that the County had met its burden to prove that Fred’s Tap was using its property to rent boats in 2011 in violation of the code, but that West Rod failed to meet its burden to show that a valid nonconforming use of the property existed.  The evidence at best showed a limited and occasional rental of boat slips as of 1971 and thereafter until 2010 when West Rod began large-scale boat slip rentals.  West Rod’s evidence may have been sufficient had the use at issue been the rental of boats (a “boat livery” business), but it was not sufficient to show that a marina was actively operating either prior to 1971 or in the years up to 2010.

Judgment for the County was affirmed.

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Junk vehicle ordinance not a traffic regulation; neither overbroad nor vague

hdankbar

by Hannah Dankbar

Village of North Hudson v Randy Krongard
(Wisconsin Court of Appeals, November 18, 2014)

In November 2011 Krongard received two citations from Village of North Hudson for violating article II, chapter 90, § 44 of the Village Code by having two junk vehicles (cars without current registration) in plain view on his property.

Krongard pleaded not guilty in municipal court, but failed to show for his trial. He showed up a few months later with counsel seeking to vacate the municipal court judgment against him by saying that the Village ordinance is void, unlawful and invalid as it is preempted by, contrary and inconsistent with Wisconsin traffic regulations. The municipal court refused to vacate the judgment.  Krongard’s appeal was also dismissed by the circuit court. Krongard then appealed to the court of appeals.

Krongard claimed the Village’s ordinance conflicted with state traffic regulations in chapters 341 to 348 and 350.  Krongard argued that The Village’s ordinance “impermissibly defines unregistered vehicles as junk vehicles and regulates unregistered vehicles on private property.”

The Village argued that its ordinance and the state traffic regulations could not be contradictory because they regulated “two completely different issues.”  While the village ordinance is “concerned with the upkeep of private property,” the state traffic regulations were concerned “with the licensing, regulation of, outfitting and operation of vehicles[.]”

The circuit court decided, “this regulation, because of the way it is written, its location within the Village Ordinances, and the Village’s alternative definition of junk vehicle, falls under the Village’s ‘health, safety, welfare’ power granted in Wis. Stat. § 61.34.”  It also found the ordinance was a constitutionally valid exercise of that ‘health, safety, and welfare’ power.  As a result, the circuit court denied Krongard’s motion to vacate the default judgment. Krongard appealed to the court of appeals.

Krongard argued that because the village ordinance concerns motor vehicles, it must be a traffic regulation. The Village argued that its ordinance only addresses the problem of uncovered junk vehicles and has nothing to do with the operation of motor vehicles on highways or city streets.  Rather, as the circuit court correctly noted it “simply requires owners of inoperable or unlicensed vehicles to keep their vehicles out of the public’s view, either by storage in a fully enclosed garage or by weatherproof, non transparent commercial car cover.”

The court rejected Krongard’s argument that the village ordinance is a traffic regulation. It stated that Krongard’s argument “ignores the fact that § 90-44 does not affect—directly or incidentally—motor vehicle operation. Rather, as the circuit court aptly noted on remand, it ‘simply requires owners of inoperable or unlicensed vehicles to keep their vehicles out of the public’s view, either by storage in a fully enclosed garage or by weatherproof, non transparent commercial car cover.’”

Regarding the constitutionality of the ordinance, Krongard raises due process concerns that the Village’s provisions in Article II are overbroad and vague.

An ordinance is vague if it is “so obscure that [persons] of ordinary intelligence must necessarily guess as to its meaning and differ as to its applicability.” It is overbroad “when its language, given its normal meaning, is so sweeping that its sanctions may be applied to conduct which the state is not permitted to regulate.” The court found “no indication that Krongard could reasonably have any question as to what constituted a violation of the village ordinance, or the consequences for such a violation.”

The court dismissed all of Krongard’s claims.

Due Process, Nuisance, Wisconsin courts , , ,
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Insufficient evidence to establish uncut lawn was a public nuisance

by Rachel Greifenkamp and Gary Taylor

County of Forest v. Dwayne Pasternak
(Wisconsin Court of Appeals, July 1, 2014)

In Forest County, Wisconsin Robert Lawrence filed a nuisance complaint against his neighbor, Dwayne Pasternak, for not cutting a portion of his lawn. Pasternak was given ten days to mow his lawn by the County. On July 15, 2013, Pasternak was issued a nuisance citation which he filed a motion to dismiss. The complaint went to trial at the circuit court for Forest County where court concluded that Pasternak’s uncut lawn constituted a public nuisance.  Pasternak appealed.

The county ordinance defines a nuisance as “any  condition which is injurious to health, offensive to the senses, or interferes with public or private use of property….”  In the circuit court, the County argued, and the court concluded, Pasternak’s uncut lawn constituted a public nuisance because it promoted mosquitos, pollen, weeds, and small animals. The court of appeals stated, however, that “if we agreed Pasternak’s uncut lawn constituted a public nuisance on that basis, that determination has no standard of enforcement and has the potential of applying to all lawns in Forest County.”

The Court of Appeals noted that the Wisconsin Supreme Court has held “offensive” to mean “giving pain or unpleasant sensation,” “revolting” or “obnoxious.” In the conclusion reached by the circuit court, Pasternak’s uncut lawn was declared offensive and a nuisance because it did not look nice. Based on precedent, however, just because something is disliked or disagreeable it does not make it a public nuisance. The court of appeals concluded that there was insufficient evidence in the record to establish that the uncut lawn was “offensive” and therefore a public nuisance under the definition in the county code.  The judgment of the circuit court was therefore reversed.

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Plat approval results in town acceptance of public road, but does not obligate town to construct it

by Rachel Greifenkamp

Runkle, et al. v. Town of Albany
(Wisconsin Court of Appeals, June 19, 2014)

In the Town of Albany, Wisconsin several individuals purchased land and built homes along a street called Proverbs Pass. The developer of the subdivision entered into a development agreement with the town to build Proverbs Pass; however, neither the developer nor the town has completed construction or maintained the street. The people who built homes on the road filed a complaint asking the court to direct the town to complete the road and accept it as a town road, meaning the town would be responsible for it’s maintenance. The town admitted that the plat for the road had been approved and recorded with the register of deed but denied that it had any obligation to complete or maintain it as the town had not accepted the street as a town road. The circuit court ruled in favor of the town because certain conditions that were set forth in the development agreement were not met by the developer and the court concluded that that meant the town had not accepted the plat. The homeowners appealed the decision.

The Wisconsin Court of Appeals found that the only issue was whether the town accepted Proverbs Pass as a town road when the town approved and recorded the plat. If the approval does not equal acceptance, then the Town would be correct in assuming no responsibility for the road. If the approval does equal acceptance, the the Town would be required to assume the same responsibility it does for all other town roads. The town argued that acceptance of Proverbs Pass as a town road hinged on the developer meeting conditions in the development agreement, and that those conditions were not met. Based on Wisconsin court precedent, a town accepts a plat when it is approved and recorded in the register of deed, therefore the Court of Appeals reversed the Circuit Court’s ruling and found that the the Town of Albany did in fact accept Proverbs Pass as a town road.  This, however, did not determine whether the town had an obligation to construct and maintain the street.  “The acceptance of a plat by the city does not require that it shall open all the streets and alleys for immediate use.”  This issue was handed back to the circuit court to determine whether any other events or agreements obligated the town to complete construction of Proverbs Pass.

Plats, public roads and highways, Wisconsin courts , ,
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