The Emerald Ash Borer is Coming! Is your municipality prepared?

Municipal Law Alert, July 2007

The Emerald Ash Borer – the harbinger of the “Dutch Elm Disease” of the ash tree has been found recently in the northern suburbs of Chicago and in the upper peninsula of Michigan. Native to northern China, eastern Russia, North Korea and Japan, this beetle was first found in Michigan in 2002. It has already killed an estimated twenty million ash trees in Ohio, Indiana and Michigan.

In spite of efforts to notify the public of this threat and placement of restrictions on the transport of firewood, there is little doubt that the Emerald Ash Borer will be spreading through Wisconsin in the near future. Wisconsin has millions of ash trees that could be threatened. Aggressive treatment methods with Dutch Elm Disease were able to save some of Wisconsin’s elm trees; similar actions may be able to save some of the state’s ash trees as well. If nothing is done, all ash species may cease to exist in the entire continent of North America. Wisconsin’s largest ash populations are located in the southeastern and north central parts of the state.

Municipal officials are advised to consider the following measures to prepare for this onslaught:

1. Education – learn the details about how this insect migrates, learn the symptoms and signs of infestation, and options for prevention, treatment, and eradication; educate municipal residents about the threat. Poster and information sheets can be found at http://www.emeraldashborer.info/.

2. Inventory – identify stands of ash trees within and near municipal boundaries – on both public and private properties.

3. Preparation – develop a plan which includes: communication with state authorities about any sightings within Wisconsin; coordination with state, county and local agencies and officials for countering the threat; and preparation of procedures and resources for addressing any local infestations.

4. Budget – consider financial incentives to private property owners for quick removal of infected trees and treatment or removal of other nearby ash trees. (In the absence of landowner cooperation, municipalities may be forced to go to court to file suit to abate a public nuisance under Chapter 823 of the Wisconsin Statutes.)

Wisconsin state agencies, headed by the Department of Agriculture, Trade and Consumer Protection have already prepared a Response Plan for the Emerald Ash Borer; it is available at http://dnr.wi.gov/forestry/fh/pdf/WIEABResponsePlan.pdf.

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Does your municipality have zoning districts in which all uses are conditional uses?

Municipal Law Alert, July 2007

Wisconsin Supreme Court asked to rule on the constitutionality of “no permitted use” districts.

Municipalities which have zoning districts with no permitted uses may want to prepare to amend their zoning ordinances. The Wisconsin Court of Appeals recently requested that the Wisconsin Supreme Court rule on whether such ordinances are constitutional under Wisconsin law. The case originated in the Town of Rhine in Sheboygan County. The Town denied a rezoning petition and application for conditional use permit submitted by an off-highway vehicle club. After receiving citizen complaints about noise, the Town also cited several members of the club for violating the Town’s public nuisance ordinance. After the Municipal Court dismissed the nuisance citations, the Town appealed the dismissals to the Circuit Court of Sheboygan County and further sought an order restraining the defendants from operating motorized vehicles on the property.

In its decision, the Circuit Court held that the Town’s zoning ordinance was unconstitutional and void, because it prohibited all uses within the use-district classification. The Court stated that “[a] zoning ordinance which bars all uses within a district is unreasonable….confiscatory in nature and oppressive.” The Court further labeled the Town’s ordinance “unduly restrictive.” (Town of Rhine v. Bizzell, et al, Case

No. 04 CV 898, Sheboygan County Circuit Court, Jan. 13, 2006.)

The Town appealed the Circuit Court’s decision to the Wisconsin Court of Appeals. The Court of Appeals certified the case to the Wisconsin

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Pending legislation may change Wisconsin’s impact fee law and land division law (again).

Municipal Law Alert, July 2007

2007 Assembly Bill 341 was introduced in the Wisconsin legislature on May 16, 2007, with bipartisan support. If passed, this bill will make the following changes to the current impact fee law:

1. Timing of impact fee payment. Impact fees would have to be paid by the earliest of the following occurrences:

a. issuance of building permit

b. issuance of occupancy permit

c. the 60th month after final approval of the development

d. prior to any of these three occurrences, if mutually agreed by developer and municipality. (Note that the absence of such an agreement could not be a basis for the municipality to reject the development.)

2. Lengthening of time to use collected impact fees. Impact fees would have to be used within ten years (rather than the current seven-year limit) of the date of collection. The three-year extension of the limit (thus resulting in a 13 year limit) would be retained if the municipality passes a resolution which included detailed written findings specifying the extenuating circumstances or hardship justifying the extension.

3. Clarifying retroactive application of the law. Impact fees collected prior to April 10, 2006 (the effective date of the prior amendment containing the seven-year limit) must be used prior to the following deadlines:

a. for impact fees collected prior to 2003: December 31, 2012.

b. for impact fees collected from January 1, 2003, through April 9, 2006: ten years from the date of collection.

4. No surcharges on professional fees. Municipalities would be prohibited from charging developers for professional services (legal, engineering, etc.) in excess of the amount paid by the municipality for those services.

How specific must agenda items be to comply with Wisconsin’s open meetings law? Recent Wisconsin Supreme Court decision provides some guidance.

Municipal Law Alert, July 2007

Municipal clerks frequently struggle with the degree of specificity needed on items listed on meeting agendas. The recent Wisconsin Supreme Court decision in State ex rel. Buswell v. Tomah Area School District cited Wis. Stat. Sec. 19.84(2) for the proposition that the listing must be sufficiently specific to be reasonably likely to apprise the public of the subject matter of the meeting.” In Buswell, a private citizen sued the Tomah School District for alleged violations of Wisconsin’s open meetings law. The citizen alleged that the District did not provide adequate notice that it would be considering the Tomah Education Association’s master contract at its meeting of June 1, 2004. The citizen further alleged that the District did not provide adequate notice that it would be considering a new hiring procedure for coaches as part of the master contract at two meetings – the June 1, 2004, meeting and a second meeting on June 15, 2004.

What the agendas at issue in Buswell stated:

June 1 agenda: “Contemplated closed session for consideration and/or action concerning employment/negotiations with District personnel pursuant to Wis. Stat. Sec. 19.85(1)(c).”

What the Supreme Court held: The Court decided this listing was vague because it could cover negotiations with any group of District personnel or with any individual employee within the School District. The Court further decided this wording was misleading, because the cited section of the Wisconsin Statutes deals with issues with individual employees, and does not include collective bargaining agreements – which was the issue at hand. The correct statutory reference should have been Sec. 19.85(1)(e). Because the Court found the notice vague and misleading, the Court held that it was not “reasonably likely to apprise members of the public” of the actual subject matter – the Teacher Education Association master contract. The June 1 meeting notice was therefore found to be deficient.

June 15 agenda: “TEA Employee Contract Approval.”

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