City’s refusal to maintain private roads does not violate Wisconsin statute

by Gary Taylor

Pheasant Run Condominium Homes Association, et al. v. City of Brookfield
(Wisconsin Court of Appeals, January 26, 2011)

Pheasant Run Condominium Homes Association and three other condominium associations claimed that the city of Brookfield violated Wis. Stat. § 703.27(2) and their rights to equal protection under the Wisconsin Constitution by treating condominium owners differently from other multifamily property owners, to their detriment, by refusing to plow, maintain or repair the private roads in their condominium developments.  Wis. Stat. § 703.27(2) provides that “[n]o county, city, or other jurisdiction may enact any law, ordinance, or regulation that would impose a greater burden or restriction on a condominium or provide a lower level of services to a condominium than would be imposed or provided if the condominium were under a different form of ownership.”

The Court of Appeals found that the condominium homeowners associations’ claims failed.  The developers of each of these condominium associations had made it public record that the condominiums would be developed utilizing private roads and that maintenance of those roads would be the responsibility of their respective associations.  In each instance, the developers, not the City, chose to utilize the City’s zoning code, which allows for private roads with shorter setbacks from the road to maximize development of the property.  The shorter the setback from the building to the street, the more units a developer can build on the property.  The condominium associations’ homeowners have benefitted from the use of private roads:  if the condominium developments were built with public roads, the developer for each of the developments could not have built as many units on the property as it did, and thus the cost per unit upon purchase almost certainly would have increased.  As a tradeoff, however, the City’s longstanding policy is that it maintains public roads and does not maintain private roads.  The record demonstrated that it does so regardless of what kind of property is located on the roadway.  As such, the Court of Appeals found that the City has not enacted a law, ordinance or regulation in violation § 703.27(2).  The Court of Appeals stated that “while the City’s decision to treat private roads and public roads differently may be appalling to the condominium associations, it does not violate [the statute]”





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