The February 10, 2010 edition of the State Bar’s Rotunda Report, which focused on the unauthorized practice of law, had an article on the Coordination concept being sold to local governments in Wisconsin. The gist of it is that if a local government adopts an ordinance with the right magic “coordination” words in it, then it can force other local as well as state and federal agencies and governments to coordinate with the local government on any land use matters. The idea is that this supposedly gives local governments power and essentially a veto over any state or federal agency that has land use authority in the local municipality. This idea was explored and mostly debunked in a thoughtful article by Lee Turonie of the Towns Association in the February 2009 edition of the Wisconsin Towns Association Report. I strongly suggest that any municipality considering a coordination ordinance should study the issue carefully and not just rely on the info presented by the people trying to sell it to you: read Attorney Turonie’s article, and seek the advice of your local attorney before spending the taxpayer’s money buying into this idea. (To the best of my knowledge, Lee’s article is not online, but you can contact the Town’s Association at 715-526-3157).
In a case decided in May of 2008, Town of Merrimac v. Village of Merrimac, the Village of Merrimac had annexed some land which was not contiguous to the Village, and the Town filed suit. The Court held that the Town was barred from bringing suit. A bill working its way through the Senate, SB 172 would modify the direct annexation procedure in two main ways: First, it would limit a city or village’s use of direct annexation to only contiguous lands. Second it would permit Towns to challenge direct annexations on the contiguous element of the annexation. Not surprisingly, the Towns Association favors this bill, while the League of Wisconsin Municipalities opposes it. I’ll update this blog on the progress of this bill as it moves along (or not).
Representative Amy Sue Vruwink of Milladore has introduced a bill which would make an exception to Wisconsin’s public records (aka open records) law (Wis. Stat. 19.31 – 19.39) by restricting public access to a transcript of 911 calls rather than the actual recording of the call. Supporters tend to cite the sensationalism and continued harm to the victims and families involved from media broadcasts of the 911 calls, while opponents (often the media) cite to principles of open government. Assembly Bill 612 is working its way through the legislative process. At this time I can’t tell which way the wind is blowing on this one, but there was a public hearing on Feb. 4th, and Representative Vruwink appeared on Wisconsin Public Radio promoting the bill.
Apparently, Associated Builders and Contractors of Wisconsin, Inc., (“ABC”) filed a lawsuit seeking an injunction Friday, January 29, 2010, in Dane County Circuit Court to prevent the implementation of the new changes to the Prevailing Wage law requiring contractors to electronically file extensive payroll data when working on public works projects. According to ABC’s attorneys, Michael Best and Friederich, the Wisconsin Department of Workforce Development (“DWD”) has agreed to put a temporary hold on penalizing contractors who do not comply with the reporting requirements of the new law. If the Michael Best report is accurate, it appears that DWD will not be assessing penalties for not reporting, at least until the injunction is either granted or denied. A hearing is scheduled on April 19, 2010. Keep in mind that this does NOT change the law and contractors are still expected to comply with the regulations during the course of the trial. The bottom line for municipalities is that they should assume the law is valid as it stands and expect their contractors to comply with all aspects of the prevailing wage law.
In Waupaca County v. Bax, the Court of Appeals reversed a decision of the Waukesha County Circuit Court which had held that the expansion of a utility shed in violation of the Waupaca County Shoreland Zoning Ordinance was “de minimis” and thus not a violation. Although the facts are a little less than certain, Bax had a nonconforming shed on his property. At some point, he expanded it, adding something more than three inches on two sides. The shoreland zoning ordinance did not allow expansions of utility sheds. The Court of Appeals, while not dismissing the doctrine of de minimis, stated that a 6.7% expansion was not a de minimis enlargement. The de minimis doctrine is defined by Black’s Law Dictionary as “The law does not care for, or take notice of, very small or trifling matters.” While expanding a utility shed a few inches on two sides may seem trivial, the Appeals Court did not focus on the seemingly small enlargement but instead relied on the percentage of expansion, and pointed out that a 6.7% expansion into a setback area would not be considered de minimis.
In a recent unpublished Court of Appeals case, Glaum v the City of Hayward, the Court upheld a circuit court decision granting governmental immunity under Wis. Stat. 893.80(4) for the alleged faulty construction of a road which caused flooding onto an adjacent property. The Glaums claimed that the City had a duty to design and construct the road such that it could sufficiently handle storm water. The Court, relying in part on Milwaukee Metropolitan Sewerage District v. City of Milwaukee, held that “approval of the design and construction of a public work are generally discretionary acts.” (…even if the system is poorly designed…). This case hinged on the distinction between a discretionary and a ministerial act. Discretionary acts are generally immune, while ministerial acts are generally not. Some actions seem clearly discretionary while others appear clearly ministerial. But as evidenced by the fact that there have been a number of lawsuits hinging on this very distinction, there is quite a grey area between the two. As a general rule, discretionary acts are those acts requiring an exercise of judgment, while ministerial acts are those acts which are certain, imperative, and involve the performance of a specific task which the law imposes – nothing is left for judgment.