Proposed Use Cannot Be Considered In Extraterritorial Plat Review Process

Municipal Law Alert, August 2010

Land development presents numerous issues for landowners, developers and the municipalities in which the development takes place. Comprehensive plans, subdivision and zoning ordinances all impact land development. For development that takes place within 3 miles of a city or within 1½ miles of a village, extraterritorial subdivision and zoning regulations also apply.

Development that occurs in the extraterritorial areas of cities and villages raises issues related to zoning (contained in Chapter 62 of the statutes), as well as platting and subdivision (contained in Chapter 236). The legislature has stated in both Chapters that “land use” is to be considered as a factor when looking at zoning and platting matters. Most people do not commonly think of a subdivision ordinance as controlling the use of property. However, courts reviewing subdivision decisions have followed the stated legislative intent and held that “land use” is a factor to be considered in reviewing and approving a subdivision plat.

Based upon the legislative intent stated in the statutes, the Wisconsin Supreme Court decided Wood v. City of Madison, 2003 WI 24. In this case, the City of Madison denied a subdivision plat based upon the property’s proposed use following the subdivision. The developer on appeal argued that the subdivision of land and zoning are mutually exclusive concepts. Therefore, land use, a typical zoning matter, should not be used to deny a proposed plat, a matter typically covered by a subdivision ordinance. In sum, the developer argued the City should not be able to exert zoning control by virtue of its extraterritorial plat approval process. The Wood court disagreed and upheld the City of Madison’s denial.

However, the legislature has now overruled the decision in Wood. A new law (2009 Assembly Bill 260, 2009 Wisconsin Act 399) was signed by Governor Doyle on May 18, 2010 and became effective on June 1, 2010. The new law provides that “a municipality may not deny approval of a plat or certified survey map…on the basis of the proposed use of land within the extraterritorial plat approval jurisdiction of the municipality, unless the denial is based on a plan or regulations, or amendments thereto, adopted by the governing body” under the statutory provisions for extraterritorial zoning.

By passing the new law, the legislature has determined that “land use” may not be considered by a municipality when denying an exterritorial plat unless the denial is based upon extraterritorial zoning regulations adopted by the municipality. The legislative change is too late for Wood, but in time for future developers. Municipalities will no longer be able to utilize their platting authority to control land use decisions.

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New Law Changes Municipal Court Administration and Procedure

Municipal Law Alert, August 2010

On May 18, 2010, Governor Doyle signed a bill into law which made numerous changes to the rules governing municipal court administration, judges and procedures. The new law goes into effect on January 1, 2011. The changes are too numerous to list here. This article will highlight some of the major changes.

The new law revises rules that guide municipal courts and judges. Changes were made to rules that govern the budgeting process for municipal courts, the election terms of municipal judges, the office and workspace provided for municipal judges and the hiring and work responsibilities of court personnel.

The new law addresses and attempts to cure the public perception that the municipal judge and law enforcement are inseparable or in collusion. For instance, each municipal court must have a telephone number or extension separate from any other governmental department. Additionally, the municipal court clerk may not wear anything that implies he or she is a law enforcement employee.

The content and service of a municipal citation or complaint were also affected by the law change. A municipal summons and complaint can now be served by first class mail, in addition to the previous acceptable methods of service. Other changes involve the procedures for amending a citation or complaint, the procedures for mandatory appearances, the timing of commencement of an action and filing procedures for the proof of service of a citation or complaint.

Other notable changes to the rules governing municipal court administration include rules regarding the recusal of municipal judges, the transfer of cases as a result of a judicial substitution request, and the municipal court’s ability to order community service in lieu of restitution.

There are numerous other changes to municipal court procedures made under the new law. An in-depth analysis of the changes can be found in the Senate Bill’s Legislative Analysis, available at the following website: If a municipality would like more information on the changes outlined above or additional changes in the law, it should contact its municipal attorney.

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Do We Need A Roll Call Vote on This?

Municipal Law Alert, August 2010

The question of whether a roll call vote is required often arises at municipal board meetings. There is no simple answer, but there are some straightforward guidelines to follow. The first rule of thumb is: if you have to ask, then go ahead and have the roll call vote. One of the principles of good government and an informed electorate is that citizens are entitled to know how their elected representatives voted, especially on important and controversial matters.

Roll call voting is never prohibited. Mayors, presidents, chairs and other heads of boards may call for a roll call vote if they are unsure or if it is a close call. In addition, under Wisconsin’s open meetings law, any council or board member may require that votes be taken “in such manner that the vote of each member is ascertained and recorded.” Wis. Stat. § 19.88(2). This might be accomplished by a roll call vote, or by a show of hands carefully recorded by the clerk. But, arguably, roll call votes are the best way to go when the vote of each member must be “ascertained and recorded.”

A true roll call vote, where each member is individually polled one at a time, is almost never required by Wisconsin Statutes. However, many municipalities have adopted their own local procedural rules, so the answer may lie in local ordinances rather than state law. If your local rules require a roll call vote on certain matters, then a roll call vote should be taken. For example, the City of Menomonie has an ordinance that requires a roll call for certain spending matters: “A roll call vote shall be taken and recorded on all appropriations.” Menomonie Ordinance 1-6-2(F). Thus, it is critical to consult your local ordinances to know for sure if a roll call vote is required. Municipal boards quickly get into trouble when they don’t follow their own local rules.

It is common for municipal councils and boards to call for a roll call vote on spending matters, and given the guidelines and principles mentioned above, this is certainly a good idea. Cities face a special requirement in Wis. Stat. § 62.11(3)(d), which requires the recording of aye and no votes in the journal in matters of taxes, money, or creating liability. This requirement for cities may be the historical reason why spending matters often call for a roll call vote.

It appears there is only one statute expressly requiring a true “roll call” vote, found in Wis. Stat. § 70.47(8)(g), which requires a board of review to take a roll call vote when making a determination on an objection to a property tax assessment. However, there are numerous requirements for votes to be taken such that the “vote of each member is ascertained and recorded in the minutes.” For example, Wis. Stat. § 19.85(1) requires the vote of each member to be recorded before going into a closed session. A roll call vote will certainly meet this requirement.

The bottom line is: when in doubt, call for a roll call vote. In addition, check local ordinances and procedures and make sure you follow your own rules. If the municipality’s established practice is to roll call vote on spending matters, continue to do so. Finally, it is wise policy to always call for a roll call vote in controversial matters.

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Supreme Court Rules Personal Emails Not Subject to Open Records Requests

Municipal Law Alert, August 2010

A recent court decision has held that private emails are not “records” subject to the open records law. In a 5-2 decision in Karen Schill v. Wisconsin Rapids School District (2008AP967-AC), the Wisconsin Supreme Court held the emails were outside of the reach of the open records law even though the emails were sent using government email systems and government computers during work hours. Essentially the court said that government emails are subject to the open records law and private emails are not. Private emails are not “government business” and thus are not records subject to the open records law.

The facts in this case were not in dispute. A citizen made an open records request to the Wisconsin Rapids School District asking for emails “from the computers used by the teachers during the school day.” The School District evaluated the request and notified the teachers that it was going to release the emails. A group of teachers sought an injunction to stop the release of any personal emails, but the circuit court ruled in favor of releasing the personal emails. The teachers appealed the circuit court’s decision.

The District policy permitted the occasional use of the school computers for personal emails, and there was no allegation of any wrong doing on anyone’s part. Thus the appropriateness of the use of government computers for sending private emails was not at issue in this case. Nevertheless, the Supreme Court commented that it was good public policy to allow employees limited use of government computers to send personal emails. Noting that this was common practice in the private sector, the court stated that “the School District has made the very reasonable decision to allow occasional personal use of e-mail.” The Court also commented, “Flexible, common-sense workplace policies that allow occasional personal use of e-mail are in line with the mainstream of professional practice.” All parties agreed that the emails in question were personal emails and the teachers had not violated District policy.

Since there was no allegation of wrongdoing and no dispute over the basic facts, the decision hinged on the interpretation of Wisconsin’s open records law (Wis. Stat. §§ 19.31-19.39). The Court focused on the subject matter of the email, and stated that content, not location, was the determining factor in whether a record was a government record. (Although not discussed in this case, the converse may be implicit in the holding – that is, an email sent by a government official from a home computer using a personal email system but clearly concerning government business may be a record subject to an open records request.)

The Court also noted that it is appropriate for the public to evaluate the use of public resources and that monitoring an employee’s use of government systems to watch for abuse is appropriate. However, there is statistical information such as the quantity, time and dates of emails that would help monitor school district policy, as well as the potential to release the email with the personal information redacted. The Court stated that there is no need to “invade the private affairs of public employees by categorically revealing the contents of employees’ personal emails” to accomplish these goals. Although not expressly held by the majority, Justice Bradley’s concurrence stated unequivocally: “Lest there be any doubt, however, a clear rule has emerged: a custodian should not release the content of an email that is purely personal and evinces no violation of law or policy.”

While the decision in this case was clear, the Court noted that personal emails might become government records in certain circumstances. For example, “if the e-mails were used as evidence in a disciplinary investigation or to investigate the misuse of government resources, the personal e-mails would be records under Wis. Stat. § 19.32(2).” But unless there is some connection between the content of the email and government affairs, personal emails are not records subject to an open records request.

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“The Board of Review for the Town of Pacific got it right.”

With those words, in a unanimous decision, the Wisconsin Supreme Court overruled both the appeals court and the circuit court and held that the developers of declared but unbuilt condominium “units” should be assessed the property taxes on the unbuuilt units. In Saddle Ridge Corporation v. the Board of Review of the Town of Pacific, Saddle Ridge argued that unbuilt condominium “units” had “zero value” and didn’t really exist until something was built. The only thing of value was the land, which was, Saddle Ridge argued, a common element. The importance of this theory is that the property tax on the common elements is apportioned to the condo units which are built. Thus in a condominium development, if only a few condos are built, those few condo owners would be responsible for the entire property tax burden for all the unbuilt condo “units.” And, as the court pointed out, under Saddle Ridge’s argument, if no condo units were built, a declared but unbuilt condominium development would not pay any taxes at all.

This case hinged on the definition of a “unit.” The court noted that in order for a condominium to be declared, it must define the “units.” Thus the “units” exist upon the declaration, no matter when they are built. Once a unit is declared, it is given a parcel number. Saddle Ridge argued that a unit does not come into existence until it is built, thus there is nothing to tax.. The court noted that according to Saddle Ridge, through a “clever use of definitions in a condominium declaration a developer could avoid paying taxes on a share of the common elements, or that the developer could avoid taxes altogether by never constructing a unit…”

The Supreme Court said that Saddle Ridge could not have it both ways – a condominium cannot be declared without creating “units,” and those “units” are taxable to the developer. The Town got it right.

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Wanting to do something and actually doing it are two different things!

Uebelacker v. Begler, decided August 18, 2010. Although not involving a municipality, this unpublished land use case demonstrates the need for careful attention to detail when amending covenants controlling land use. Uebelacher and Begler are neighboring property owners in the Upper Oconomowoc Lake Association, and as such are subject to a 1961 agreement concerning the building of boathouses. In 2003, a majority of the property owners voted to amend the agreement and require all boathouses be attached to the residence. Uebelacker built a detached boathouse, and Begler sued.

This case hinged on the proper procedure required for amending the 1961 agreement, which stated that amendments could only be made if “an instrument signed by a majority of the then owners of the lots has been recorded, agreeing to change said covenants in whole or in part.” Although a majority of the owners apparently approved of the amendment, only three members of the Architectural Control Committee signed the recorded document. Based on the undisputed fact that a majority of the members had not signed the recorded amendment, the circuit court held the amendment invalid and thus unenforceable. The appeals court upheld the circuit court decision, noting: “The simple answer is that wanting to amend the 1961 agreement and actually doing so are two different things.”

The important note here is that it is important to follow your own rules – this is an area where municipalities are often challenged – a failure to follow the procedures they have enacted.

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Platting Law Changes

2009 Wisconsin Acts 376 and 399 went into effect on June 2, 2010, and made some important changes to Wisconsin Statute 236 (subdivision and platting law) with respect to municipalities. One significant change is that, although municipalities can still have ordinances that are more restrictive than Wis. Stat. 236, this power has been considerably reined in. Municipalities may not be more restrictive time limits, deadlines, notice requirements, and may not limit any other protections the statute provides for a subdivider. I suspect this last limit could be interpreted very broadly by a subdivider.

As I mentioned in this blog back in May, Act 399 made one important change, essentially overruling Wood v. City of Madison, 2003 WI 24 which had permitted Madison to deny a subdivision based in part on the proposed use of the land. Land use may still be regulated via normal zoning laws, but cannot be considered in plat approval.

One other important aspect of Act 376 is a nonstatutory provision that an ordinance that is not “consistent” with Act 376 is “does not apply and cannot be enforced.” It would be wise for municipalities to review their subdivision ordinances against the new provisions in Act 376.

A good summary of the changes in the law can be found in “Platting Letter #55 – 2010” from the Wisconsin Department of Administration.

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Special Assessment Statute of Limitations is 90 Days, Period.

In a recent unpublished opinion, Emjay Investment Company v. Village of Germantown, the Wisconsin Court of Appeals made it clear that the 90 day period to appeal a special assessment is a final deadline. In 2004, the Village had special assessed a number of properties. It was clear that the Village had followed the correct procedures and given all of the required notices under the statute. It was undisputed that Emjay had received the notice. However, the special assessment was deferred as to certain properties, including parcels owned by Emjay “…until the property was commercially developed…” Emjay argued that the statute of limitations should begin when the deferred period ends and the money is actually due. The court rejected this argument, stating “…the law does not recognize this excuse.”

The bottom line is that appeal deadlines are firm and final and persons and entities who want to appeal a government decision should not sit on their rights, but take immediate action.

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