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

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.

Overflights from airport should not be examined using regulatory takings standards

by Kaitlin Heinen

Robert E. Brenner v. City of New Richmond
(Wisconsin Supreme Court, July 17, 2012)

The New Richmond Regional Airport is owned and operated by the City of New Richmond. In September 2006, the Airport began a construction project to extend its main runway by 1500 feet, which was completed in June 2007.  To make the runway extension possible, the City had acquired, by direct condemnation, 62 acres of land from the Wickenhausers, whose land bordered the north end of the Airport. Also acquired by the City was a 3.813-acre avigation easement over parts of the remaining 80 acres of the Wickenhausers’ property. (An avigation easement is an “easement permitting unimpeded aircraft flight over the servient estate.”) This 3.813-acre avigation easement covered the airspace above the Wickenhausers’ personal residence and dairy barn.  The Wickenhausers asked the City to condemn the entire 142.5 acres of their property—which the city declined to do. In addition, Robert E. Brenner’s house is 816 feet from the extended runway, and Allan and Susan Seidlings’ home is 1503 feet from the extended runway. Like the Wickenhausers, Brenner and the Seidlings asked the City to condemn their land after learning of the extension—their requests were also declined. As result of their denied condemnation requests, all three parties alleged inverse condemnation under Wis. Stat. §32.10.

Collectively, the landowners’ testimonies complained of noise, dust, dirt, flashing lights, disruptions of sleep, diminished enjoyment of the property, safety concerns, direct over-flights, and decreases in property value. Brenner, the Seidlings, and the Wickenhausers argued that the Airport’s runway extension amounted to a compensable taking of an easement, since they have suffered adverse effects as a result of increased aircraft over-flights. In opposition, the City testified that the Airport had installed a blast pad to control dust and erosion. Additionally, the circuit court found that the medical helicopter and a jet that formerly used the Airport are no longer hangared there. However, the circuit court also found conflicting information that aircraft usage had increased by two-thirds since the runway’s extension. Brenner, who is a licensed pilot himself, testified that some pilots did not follow standard traffic patterns and submitted video evidence of this. The City objected, claiming that they cannot be held responsible for what pilots do illegally. (However, the Wisconsin Supreme Court reasoned that because the Airport is owned by the City, the City is liable for aircraft using the Airport–the City is in a far superior position to enforce FAA flight standards as opposed to neighboring landowners.)

The circuit court relied on the real estate appraiser’s determination that the extended runway reduced the Wickenhausers’ property value, at most, by 20%. Then citing the United States Supreme Court’s decision in United States v. Causby, the circuit court ruled that for a taking to have happened, the property owner must have been deprived of all or practically all beneficial use of the property.  The Wisconsin Court of Appeals reversed, holding that this case is a physical occupation case, and the standard used by the circuit court involves regulatory takings, which does not apply. The case was remanded back to the circuit court, and the Wisconsin Supreme Court accepted the Airport’s petition for review.

The Wisconsin Supreme Court addressed the two conflicting standards at issue here: “(1) whether the over-flights are low enough and frequent enough to have a direct and immediate effect on the use and enjoyment of the property, or (2) whether the over-flights deprive the property owner of all of substantially all beneficial use of property?”

The United States Supreme Court’s previous decisions in Causby and Griggs are the controlling law with respect to takings of private property by aircraft over-flights. Causby involved frequent, regular aircraft over-flights over a personal residence. The aircraft in this case flew so low (even though the altitudes were approved at that time in 1923) that they barely missed the tops of the trees and killed the landowner’s 150 chickens who fatally flew into the walls of their enclosures from fright. The Supreme Court recognized that Congress placed navigable airspace into the public domain; however, The Court also acknowledged that property owners must be allowed to have control of the immediate reaches of enveloping atmosphere above their property, which includes the super-adjacent airspace below the altitude that is set as navigable. The Court thus established a test to determine whether or not a taking had occurred: over-flights by government aircraft do not constitute a taking unless they are so low and so frequent as to be a direct interference in the enjoyment and use of the property. This is the standard that should be applied wherever Causby is cited as the controlling law in a case. The Wisconsin Supreme Court concluded that the Causby standard is the appropriate standard that must be applied in this case. The determination of whether or not the aircraft over-flights have been low enough and frequent enough to have a direct effect on the use and enjoyment of the land should govern fact-findings and rulings of the circuit court. If this standard is satisfied, the government has taken an easement without paying just compensation. The Wisconsin Supreme Court declared that the circuit court had erred in applying a regulatory taking standard, and that the case must be remanded to them to apply this correct Causby standard.

Wisconsin town’s non-metallic mining ordinance is not zoning

by Victoria Heldt

Zwiefelhofer, et al., v. Town of Cooks Valley
(Supreme Court of Wisconsin, February 8, 2012)

The plaintiffs in this case (Zweifelhofer, Schindler, Sarauer, and La Gesse) are all residents of Cooks Valley.  In 2008, the Town adopted a Nonmetallic Mining Ordinance that prohibited nonmetallic mining unless a permit was obtained from the Town Board.  The plaintiffs, who have all engaged in nonmetallic mining in the past, sought to have the Ordinance declared invalid in the event that they want to engage in nonmetallic mining in the future.  Their argument claimed the Ordinance was invalid because it did not have the approval of the County Board.  In the Town of Cooks Valley, zoning ordinances must gain approval of the Board.  The Town claims that the ordinance is not a zoning ordinance, but rather an exercise of its police power.  Consequently, they argue that the ordinance does not require approval of the Board.  The Court had to discern whether the Ordinance constituted a zoning ordinance or an exercise of the Town’s police power.

The Ordinance begins with a preamble stating that the intent of the statute is to “promote the health, safety, prosperity, aesthetics, and the general welfare of the people and communities.”  Specifically, it attempts to regulate land mining so as to protect the population from disease and pestilence and to further the conservation of land and water use.  It describes nonmetallic mining as commercial land and mining pits and all activities associated with it.  The Ordinance allows for nonmetallic mining only if a permit is obtained from the Town Board.  The Town may place a number of restrictions on any nonmetallic mining permit that it issues.  The Ordinance does not apply to previously existing mines, but does apply to the expansion of any existent mines.

The Court conceded that the line between a zoning ordinance and a building code enacted pursuant to a Town’s police power is fine and that the two are similar in nature.  Wis. Stat. §62.23 (7) governs zoning and, within the statute, the grant of zoning power overlaps with police power.  Zoning is a subset of the police power.   In addition, both powers serve the same general purpose of promoting the health, safety, and welfare of the community.  In its analysis, the Court compared the characteristics of the Ordinance to those of typical zoning ordinances to determine whether the Ordinance in question is a zoning or non-zoning ordinance.  It identified and focused on six main criteria.

First, the Court recognized that zoning ordinances typically divide property into separate zones or districts.  The Ordinance in question does not.  It applies universally to all land within the Town.  Second, zoning ordinances usually allow explicitly stated uses and prohibit those not stated.  The Town’s nonmetallic ordinance does not permit anything as of right or automatically prohibit anything since a permit could be obtained to engage in nonmetallic mining.  Third, a zoning ordinance typically regulates where an activity takes place, not the activity itself.  This Ordinance is comparable to a license in that it regulates an entire activity and not the location of the activity.

The fourth criterion that the Court focused on was a zoning ordinance’s tendency to comprehensively address all possible uses of a specified area of land.  The Wisconsin Attorney General was quoted as saying “The more comprehensive the ordinance, the more likely it will be characterized by a court as a zoning ordinance.”  The Town’s ordinance applies to only one activity – nonmetallic mining.  The plaintiffs argued that, since the Ordinance comprehensively regulates nonmetallic mining, it should be considered comprehensive.  The Court clarified that the term “comprehensive” should not be interpreted as “thoroughly” regulating a single activity for the purpose of zoning ordinances.  It is intended to mean all-inclusive.  The plaintiffs and some friend-of-the court briefs attempted to argue that the Ordinance is a zoning ordinance because it “pervasively” regulates the use of land.  They look to a previous case in which the Attorney General stated “when an ordinance constitutes a pervasive regulation of, and in many instances a prohibition on the use of, land, [it must be concluded] that such an ordinance is a zoning ordinance which requires county board approval.”  The Court in this case deemed the phrase “pervasive regulation” as over-inclusive in application.  It noted that the phrase does not create an effective bright-line rule to guide the Court.

The fifth criterion was that zoning ordinances operate by fixed rules that allow many land uses to proceed without discretionary decisions by administrative officials (i.e., permitted uses).  The Ordinance in question, conversely, operates only on a case-by-case basis and does not allow any non-metallic mining operation to proceed without administrative action.  The plaintiffs urge that the Ordinance must be a zoning ordinance because it allows for “conditional use” permits, which have historically been associated with zoning ordinances.  The Court said that that logic placed too much emphasis on the terminology of the Ordinance.  Licenses required under non-zoning police powers could also be considered similar to conditional use permits.  Just because the language of the Ordinance includes the phrase “conditional use permit” does not mean it is a zoning ordinance.

The sixth and final criterion addressed a zoning ordinance’s tendency to exempt pre-existing activities from the new regulation.  In this way, the Ordinance in question is similar to zoning ordinances because it does not apply to pre-existing nonmetallic mines.  The Court noted that the differences between the characteristics of the Town’s nonmetallic mining ordinance and those of typical zoning ordinances exceeded the similarities.

The Court finally looked to the general purpose of zoning ordinances in comparison to the general purpose of the Town’s nonmetallic mining ordinance.  The Court acknowledged that, in a broad sense, the Ordinance has the same purpose as that of zoning ordinances (to promote the welfare of the community as a whole); however, this broad definition of purpose is not helpful in an analysis of whether an ordinance is zoning or non-zoning.  It looked instead to the more specific purpose of zoning ordinances to “separate incompatible land uses.”  The Ordinance does not share that purpose in that it does not explicitly separate different land uses or declare any land uses incompatible with others.

After looking to the Ordinance’s specific characteristics and its general purpose, the Court concluded that the Town’s non-metallic mining ordinance is not a zoning ordinance, but rather a general welfare ordinance enacted pursuant to the Town’s police powers.  Consequently, it did not require the Board’s approval and is therefore valid as enacted.  The Court reversed the lower court’s decision.

Wisconsin DNR required to consider whether municipal well would harm waters of the state

by Gary Taylor

Lake Beulah Management District v. Wisconsin Department of Natural Resources
(Wisconsin Supreme Court, July 6, 2011)

In 2003 the Village of East Troy, Wisconsin applied to the Department of Natural Resources (DNR) for a permit to operate a high-capacity well (1.4 million gpd) for the village’s water supply.  The DNR issued a letter granting the permit in September 2003.  In deciding to grant the permit the DNR concluded that the well would not “have an adverse effect on any nearby wells owned by another water utility,”  and that the well “would avoid any serious disruption of groundwater discharge to Lake Beulah.”  The well was to be located 1,200 feet from Lake Beulah, and the Lake Beulah Management District (LBMD) brought a court challenge to the determination.  Because of the delays caused by the challenge the village asked for an extension of the 2003 permit in 2005.  The day after the village’s request LBMD filed in the original court challenge an affidavit of a Wisconsin-licensed geologist, who stated that based on his analysis of the village’s consultants’ pumping tests and reports and his own pumping tests and studies, “the existing data can only support the conclusion that pumping of proposed well would cause adverse environmental impacts to the wetland and navigable surface waters of Lake Beulah.” LBMD provided this affidavit to the DNR’s attorney.  The DNR chose to grant the permit “extension” in a letter dated September 6, 2005, agreeing with the village’s assertion that the “physical circumstances” of the well had not changed and that the issuance of a permit was appropriate under the standards in Wis. Stat. § 281.34 as modified in 2003.

The issue in the case being briefed here was whether the DNR has the authority and duty to consider the environmental impact of a proposed high capacity well if presented with sufficient scientific evidence suggesting potential harm to waters of the state.  The court of appeals concluded that the DNR did have a general duty to protect the waters of the state, even though the statutory scheme does not require formal environmental review or findings.  The court of appeals further concluded that the DNR was presented with sufficient scientific evidence in the form of the geologist’s affidavit and remanded to the circuit court to order the DNR to consider the impact of the well on Lake Beulah.

Upon appeal by the village, the Wisconsin Supreme Court affirmed this portion of the court of appeals’ ruling.  It cited relevant provisions of chapter 281 of the Wisconsin Statutes and the “legislatures delegation [to the DNR] of the state’s public trust duties” in support of the conclusion that the DNR had a general duty to protect the state’s waters.  “To comply with this general duty, the DNR must consider the environmental impact of a proposed high capacity well when presented with sufficient concrete, scientific evidence of potential harm to waters of the state.  The DNR should use both its expertise in water resources management and its discretion to determine whether its duty as trustee of public trust resources is implicated by a proposed high capacity well permit application, such that it must consider the environmental impact of the well or in some cases deny a permit application or include conditions in a well permit.”  The Supreme Court further observed that the question of “upon what evidence, and under what circumstances, the DNR’s general duty is implicated by a proposed high capacity well is a highly fact specific matter that depends upon what information is presented to the DNR decision makers by the well owner in the well permit application, and by citizens and other entities regarding that permit application while it is under review by the DNR.”  The Supreme Court concluded, however, that the duty was not necessarily triggered in this case by submission of the affidavit to the DNR’s attorney, and it remanded the case for further proceedings to determine if, and when, individuals with decision-making authority within DNR actually received the affidavit.

Town’s denial of driveway permit based on unique ordinance upheld

Ottman v. Town of Primrose
(Supreme Court of Wisconsin, March 22, 2011)

by Victoria Heldt

In 2001, the Ottmans had interest in a plot of land located in the Town of Primrose, which had been zoned “A-1 Exclusive Agricultural.”  Before purchasing the land, the Ottmans petitioned the Town of Primrose Board of Supervisors to approve their request to build a field road on the property.  Primrose operates under a Land Use Plan that ultimately works to “actively use and improve land use control measures which will discourage and prevent non-farm development in agricultural preservation areas.”   The Ottmans intended to turn the plot into a Christmas tree farm and needed access to the trees and to an agricultural accessory building they planned to build.  After discussion, the Board granted the Ottman’s permission to build an access off Primrose Center Road in order to enhance the agricultural use of the property.  The Board made special mention of the fact that permission to construct the field road could later be misinterpreted as approval for a residential driveway; however, it was concluded that a driveway permit would not be issued on the property because of safety issues.

Subsequently the Ottmans purchased the property, erected an agricultural accessory building, built a 500-foot gravel field road, planted trees on 18 acres, and rented 29 acres to Al Hanna (a neighbor) to grow field corn.  In 2004, the Ottmans filed a preliminary application for a driveway permit and an approval of the site plan for an area on which they planned to build a residence.  They contended that the Christmas tree farm would not be viable without a residence and, upon completion, the farm will produce an annual income of $30,000.  They planned to construct the home on the top of a hill about 200 feet north of the existing agricultural accessory building.  The Board denied the application primarily on the grounds that the Ottmans application failed to meet the Agricultural Productivity Clause contained in the Town of Primrose Driveway Ordinance.  The clause reads:  “No driveway shall be approved in the Town of Primrose if the Town Board finds that the driveway will adversely impact productive agricultural land, unless the town Board finds that the driveway is necessary to enhance the agricultural productivity of an adjacent parcel or the person requesting the permit can show that the parcel to be served by the driveway is capable of producing at least $6000 of gross income per year.  Under any circumstance, the Town Board shall approve a driveway with the least impact on agricultural land.”  A supervisor explained that the previous interpretation of the farm income requirement needed proof of actual income, not speculative income.  Since the Ottman’s did not show any evidence of actual income from the farm operations, their request was denied.

The Ottmans filed a certiorari action in the Dane County Circuit Court and, while the case was pending, both parties agreed to send the case back to the Town of Primrose for review under Wis. Stat. Ch. 68.  This statute allows a review of municipal determinations.  The review included a site visit and a special hearing where both sides presented exhibits, called witnesses, and provided testimony.  Again, the Board denied the Ottman’s request due to the failure to meet the Agricultural Productivity Clause’s farm income requirement.  The Board added that even if the Ottmans did meet that requirement, the Board would not have approved of the proposed site of the residence.  Since the site sat atop a hill and would require a longer driveway that would consume more amounts of agricultural land, the Board felt it did not meet the ‘least impact’ requirement of the Ordinance.

In the circuit court, the Ottmans amended their complaint to include new arguments.  They argued that the Board interpreted the law incorrectly when they stated that it required proof of current income from the property.  They argued that it should only require proof of the capability to produce income.  Additionally, the Ottmans argued that the Town’s denial was willfully arbitrary and biased, and that the proposed site for the residence would satisfy the ‘least impact’ clause.  The court noted that in a certiorari review a presumption of correctness is granted to the municipality’s decision, and that the permit denial was correctly reviewed under Chapter 68 rather than the statutory certiorari review.  It also stated that the Board accurately interpreted and applied both the “farm income” requirement and that “least impact” requirement within the ordinance.   The court of appeals affirmed.

The Ottmans brought three main questions to the Supreme Court, two of which are reviewed here:  1) does the deference given to land use decisions made by local governments prevent them from proper judicial review? 2) does the Board’s decision withstand judgment under customary standard of certiorari review?  They answered each question in turn.

In regards to the issue of deference given to the municipality’s decision, the Court stated that it was appropriate.  In this case, the ordinance was unique and did not closely resemble a state statute.  In these instances, the Court feels the local government is more attuned to local matters and therefore should be given more weight to its judgments.  The Court also refused to apply to the town’s decision the level of deference that it uses when reviewing state administrative agency’s decisions .

The Court also stated that the Board’s interpretation of the law was correct and withstands review.  It noted that the language in the ordinance required one to show that the land is capable of producing $6000 of annual income.  The word “show” suggests that an applicant must provide some proof beyond speculation of the land’s income-producing abilities.  The Ottmans failed to do this.  It also stated that this interpretation furthers the land use regulation’s goal of promoting the preservation of agricultural land and is therefore justified.  The Supreme Court affirmed the decision of the court of appeals.

“Acting together” does not mean town boards must act as single entity on petition for road discontinuance

by Victoria Heldt

Dawson v. Town of Jackson, Town of Cedarburg
(Wisconsin Supreme Court, July 19, 2011)

Dale Dawson, Gudrun Dawson, and Edward Thomas (the Dawsons) are the owners of property that borders a half-mile portion of Wausaukee Road, a town line highway that lies on and across the municipal boundary line between the towns of Cedarburg and Jackson.  The Dawsons requested that a half-mile portion of Wausaukee Road (which comes to a dead end stop and is surrounded by their property) be discontinued.  In order to discontinue a highway on a line between two towns, the parties must submit an application describing the area of the highway and, upon completion of the application, “the governing bodies of the municipalities, acting together, shall proceed under ss. 82.10 to 82.13 (Wis. Stat. § 82.21 (2)).” (emphasis added).  The Dawsons submitted a joint application to the boards of Jackson and Cedarburg in addition to a letter containing additional discussion of statutory requirements.  In 2008, the two boards held a joint meeting at which all five Jackson board members were present and three of five Cedarburg board members were present.  The boards voted separately with all five Jackson board members voting in favor of discontinuing the road and the three Cedarburg members voting in opposition.

Subsequent to the hearing, Jackson issued an order to vacate the road, but Cedarburg declined to do the same.  When Lannon Stone Products, Inc. placed a sign on the road informing citizens of the closure, Cedarburg issued two citations to the corporation for “erecting a prohibited sign on streets” and for “public nuisance-obstruct/tend to obstruct street.”  The Dawsons sought a declaratory judgment arguing that the two boards “acted together” when they took a vote and that, since the aggregate vote was 5-3, the road should be discontinued.  The circuit court ruled in favor of the Dawsons, and the Wisconsin Court of Appeals affirmed.

This case turns on the interpretation of the phrase “acting together.”  The Court looked at whether that phrase means the two boards should act as one body and count their votes in the aggregate, or whether it means they must vote as separate entities when deciding to discontinue a highway.  The Court first looked to the context in which the phrase “acting together” appeared.  The statute specified that the two governing bodies should act together to “proceed under ss. 82.10 to 82.13.”  These sections mandate that the boards must provide notice requirements after they receive the application, must personally examine the highway, and must record any decision made with the register of deeds in each county.  The Court noted that the two boards would not physically do any of these three acts at the same time or at the same location.  The context of the phrase supported a non-literal interpretation of “acting together,” and suggested that the phrase simply means the two bodies should come together and cooperate in the matter.

The Court also acknowledged Cedarburg’s example of a similar statute (Wis. Stat. §83.42 (5)) which governs the modification of rustic roads.  It reads that, in order for a road to be designated as a rustic road or withdrawn from the rustic road system, approval must be given by “the governing bodies of all affected municipalities.”  This language suggests that the legislature envisioned the two governing bodies voting and approving of a decision separately.  However, the Court also noted that the statute governing roads bordering two towns is not as clear cut as the one governing rustic roads, so it does not completely solve the problem.

The Court looked next to the history of the statute, tracing its roots back to 1849.  The original versions of the statue hinted at a non-literal translation of “acting together” with phrases such as “each town shall have all the rights and be subject to all the liabilities, in relation to the part of such highway to be made or repaired by such town, as if the same were wholly located in such town.”  It also described the process in which the boards were to proceed using a plural “they,” suggesting that two separate bodies were to weigh in on the discontinuation of a road.  The Court also pointed out that interpreting the phrase “acting together” in a literal sense would undermine the independence and autonomy of municipalities.  In addition, it would risk the event of an unjust vote if one board had more members than the other.

After making its case, the Court reversed the appellate court’s decision and ruled that the phrase “acting together” means only that the two boards must come together and cooperate to resolve an application for the discontinuance of a road.





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