Change in Permitted Hours for “To Go” Alcohol Sales

Municipal Law Alert, February 2012

On December 7, 2011, Governor Walker signed 2011 Wisconsin Act 97 into law. The new law became effective when it was published on December 20, 2011. The statutory sections affected by this change are § 125.32(3)(b) (beer) and § 125.68(4)(b) (liquor stores). It passed in the State Senate on a 23 to 8 vote, getting bipartisan support.

The only change made by this new law is that liquor stores (“Class A” license) and other retailers, such as grocery or convenience stores, which sell beer and other fermented malt beverages “to go” (Class “A” licenses) may now open at 6:00 a.m. instead of 8:00 a.m. Closing times of 9:00 p.m. for liquor stores and midnight for take away beer sales remain unchanged.

Keep in mind that this does not necessarily mean that any given liquor store, grocery store or convenience store may lawfully open at 6:00 a.m. in any given community, since a municipality may, by ordinance, impose more restrictive hours than those found in the state statutes.

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School Facts

Municipal Law Alert, February 2012

What factors determine student performance? Expenditures? Demographics? Teacher education? Teacher salaries? Parents? Community expectations? Of course these questions have been debated for years with no sign of a consensus.

We do have statistics that provide clues to some of the questions. The Wisconsin Taxpayers Alliance publishes their studies in a booklet titled School Facts. The most recent version is School Facts 11. It includes information on student test scores, school district revenue, expenditures, staff sizes, staff ratios, property values, student demography and other district characteristics.

School Facts 11 lists 120 different statistical measures for each of Wisconsin’s 423 school districts. It represents a truly prodigious effort. Other than replicating all 120 categories, there is no way to summarize or condense the information in a meaningful way. I have pulled out a few of the items that I found interesting. This is just a sample of the information available. [All schools in the chart are in CESA 11, except Eau Claire, which is in CESA 10.]

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Describing “Premises” for Wisconsin Alcohol Licenses

Municipal Law Alert, February 2012

Wisconsin law requires that the applicant for a liquor license “shall particularly describe the premises for which issued.” The standard application form, AT-106, is issued by the Department of Revenue and generally available from local municipalities. This form asks for the address of the premises, but also asks for much more detail describing the “building or buildings” and even further asks the applicant to describe “all rooms” used for sales, service or storage.

While “particularly describe” is not defined in the statutes, a recent appeals court case, Wisconsin Dolls, LLC v. The Town of Dell Prairie, held that a description of “all 8 acres of resort” did not adequately describe the premises. The facts of this case are interesting, and the outcome adds a twist that I suspect neither party quite expected, although the holding favored the Town’s position. As the Court said, “We frame the issues differently than do the parties.”

Wisconsin Dolls is a tavern near Wisconsin Dells that features “adult” entertainment. It had been issued a liquor license for the premises described as “all 8 acres” for several years, at least from 2005 through 2008. When it applied for its 2009 license, Wisconsin Dolls again described the premises as “all 8 acres.” However, this time the town clerk, with the backing of the town board, told Wisconsin Dolls, LLC, that this did not “particularly describe the premises.” The Town asked Wisconsin Dolls to amend its license application, and when it did not do so, the board voted to issue an amended license describing the premises as “Main Bar/Entertainment Building.” Wisconsin Dolls then sought court intervention to order the Town to issue the license covering the entire 8 acres.

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Proposed Pothole Liability Law Legislation

2011 Senate Bill 125 would bring municipalities and counties some additional protections from liability for highway defects such as potholes. Under current law, local governments have a greater liability than the State for discretionary decisions about highway maintenance and repair – the reality of that is that if you are injured by a pothole on a state highway you have a lessened ability to recover (from the state) than if you are injured on, for example, a county highway (where you could sue the county). The Supreme Court has called for legislation to remedy this inconsistency and SB 125 does just that by ensuring the burden faced by local governments is no greater than that faced by the State.

Municipalities are still responsible for highway repairs, and this bill would not relieve them of ministerial duties or duties to address known and immediate dangers, and they may still be sued in certain negligence actions. This bill holds municipal highways to the same standard as state highways.

Wisconsin Supreme Court Issues Important Decision Affecting Frac Sand Mining

Municipal Law Alert, Special Edition, February 9, 2012

Zwiefelhofer v. Town of Cooks Valley (February 8, 2012)

In a closely watched case, the Wisconsin Supreme Court held that a town (with village powers) has the power, under its police power, to adopt a non-zoning ordinance regulating non-metallic mining (for example, frac sand mining). The property owner contended that an ordinance passed by the Town of Cooks Valley was really a disguised zoning ordinance. Accordingly, the ordinance should be struck for failing to obtain the required county board approval. The Supreme Court’s decision recognized that while zoning ordinances and pure police power regulations are closely related, they are not the same. The Court concluded that a town may exercise its police power authority (meant to protect the health, safety and welfare of residents) to regulate activities involving land use, such as non-metallic mining.

This decision is extraordinarily important for towns in west-central Wisconsin that are attempting to respond to the explosion of frac sand mines in the area. This decision confirms a town’s authority to adopt ordinances to require a license to operate a frac sand mine (and related activities). It appears that this regulation may be accomplished either directly through the provisions contained in the ordinance or by placing conditions on the issuance of the license (similar to a conditional use permit). Many towns in west-central Wisconsin have either adopted, or have begun the process of considering the adoption of, these types of non-metallic licensing ordinances. The court’s decision in this case ends the debate as to whether towns with village powers have the authority required to adopt and enforce these kinds of ordinances.

If you are a town board member in a west-central Wisconsin town, you have or may be considering non-metallic mining issues in your town. This case provides a clear outline for enacting a non-zoning regulatory ordinance in your town.

  • First, a town must adopt village powers (if it has not already done this).
  • Second, if your town is not located in a county with a moratorium currently in place, you may consider adopting a moratorium on non-metallic mining.
  • Third, use the breathing room provided by a moratorium to study, prepare, debate and possibly enact a licensing and regulatory ordinance.

The goal of a licensing and regulatory ordinance is to provide reasonable regulations to protect the health, safety and welfare of town residents. There are a number of factors to consider when adopting such ordinances, and no two towns are exactly alike. However, at a minimum it is important to consider the following: (i) protection of roads, air quality and water; (ii) mitigation of noise, dust and debris; (iii) prevention of high intensity lights at night; (iv) elimination of unsightliness (and the associated property value depreciation for neighbors); (v) regulation of hours and methods of blasting; and (vi) financial security.

If your town is considering regulation of non-metallic frac sand mining, yesterday’s Supreme Court decision confirms your ability to do so. However, it is important to remember that unless you follow the proper procedure to adopt a zoning ordinance (which requires county approval), you must still be careful to make sure your ordinance has the characteristics and purposes set forth by the Supreme Court in its decision.

To read the complete Wisconsin Supreme Court decision, click here.

For ongoing municipal law news, subscribe to the Wisconsin Municipal Law Blog by clicking here.

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Zwiefelhofer v. Town of Cooks Valley – Towns May Regulate Frac Sand Mining

In a closely watched case, the Wisconsin Supreme Court held that the Town of Cooks Valley (with village powers) had the power, under its police power, to adopt a non-zoning ordinance licensing and regulating non-metallic (for example, frac sand) mining. Arguing that the ordinance at issue was really a disguised zoning ordinance, the plaintiff asked the court to uphold the decision of the circuit court which struck down the ordinance. In declining to adopt the plaintiff’s position, the court recognized that while zoning ordinances and pure police power regulations are closely related, they are not the same. As a result, so long as towns do not cross the line separating zoning ordinances and police power regulations (meant to protect the health, safety and welfare of residents), towns have the authority to adopt regulatory and licensing ordinances. Importantly, this authority extends to the regulation of activities involving land use, such as non-metallic mining.

This decision is extraordinarily important for towns in west-central Wisconsin which are attempting to deal with the explosion of frac sand mines in the area. This decision provides towns with clear authority to adopt ordinances requiring a license to operate a frac sand mine (and related activities). It appears that this regulation may be accomplished either directly through the provisions contained in the ordinance or by placing conditions on the issuance of the license (similar to a conditional use permit). Many towns in west-central Wisconsin have either adopted, or have begun the process of considering the adoption of, these types of non-metallic licensing ordinances. The court’s decision in this case ends the debate as to whether towns with village powers have the authority required to adopt and enforce these kinds of ordinances.

If you are a town board member in a west-central Wisconsin town, we encourage you to consider whether non-metallic mining should be regulated in your town. If your board believes it should be, this case provides a clear process for enacting those regulations.

  • First, your town should adopt village powers (if it has not already done this).
  • Second, if you are not located in a county with a moratorium currently in place, you should consider adopting a short moratorium on non-metallic mining.
  • Third, use the breathing room provided by the moratorium to study, prepare, debate and possibly enact a licensing and regulatory ordinance.

To be clear, the goal cannot be to completely prohibit frac sand mining in your town. Instead, the goal of your ordinance should be to provide reasonable regulations to protect the health, safety and welfare of your residents. There are a number of factors to consider when adopting such ordinances, and no town is exactly like another. However, at a minimum, most towns believe it is important to accomplish the following: (i) protection of roads, air quality and water; (ii) mitigation of noise, dust and debris; (iii) prevention of high intensity lights at night; (iv) eliminate unsightliness (and associated property price decreases for neighbors); (v) regulate hours and method of blasting; and (vi) financial security.

If your town is considering adopting such an ordinance, yesterday’s Supreme Court decision is good news. However, it is important to remember that unless you go through the procedure of adopting a zoning ordinance (which generally requires county approval), you must still be careful not to cross the line between zoning and pure police power regulations.

Written by guest author Adam Jarchow, Attorney at Law, Bakke Norman, S.C.

Gary Bakke Named Person of the Year

Gary Bakke is the “2011 Person of the Year” chosen by the New Richmond News. Gary was selected because of his history of community service. He has been involved with many community organizations and activities over the past 45 years. He currently serves on The Centre Board. He has also been involved in the Vitality Initiative and Pathways Committee, has been a part of the Front Porch Project and Leadership Trust Initiative, and was an original organizer of the New Richmond Community Foundation.

Gary, however, is quick to point out that he is only one of many people who have and continue to volunteer their time and talent to making his community a better place to live. “I’m grateful for the honor,” Gary said, “but I accept it on behalf of all of the other volunteers who make a difference in New Richmond.” Bakke Norman Managing shareholder, Tom Schumacher, stated that Gary “embodies the firm’s commitment to serving the communities in which we live and work.”

To read the News article, click here.

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Human Resources and Employment Law: What You Need to Know NOW – February 1, 2012

Breakfast with Bakke Norman“Human Resources and Employment Law: What You Need to Know NOW” was the topic of the February 2012 installment of “Breakfast with Bakke Norman”. The panel discussion was held at the New Richmond Campus of WITC on Wednesday, February 1, 2012.

Tom Schumacher greeted the attendees and introduced the speakers.

A panel of guest speakers shared their insights and experiences on a variety of human resources and employment law topics. The speakers were:

  • Joanne Jackson, Human Resources Director at Amery Regional Medical Center and 2011 Wisconsin SHRM President;
  • Pete Reinhardt, Shareholder and Employment Law Attorney at Bakke Norman; and
  • Linda Skoglund, Employee Benefits Specialist and Corporate President at JA Counter.

Other video from the, “Human Resources and Employment Law” Series

The panelists discussed several human resources and employment topics, such as innovative ways of structuring health plans to control costs and improve employee wellness, common ways employers get into legal trouble and implementing The Affordable Care Act. Attendees were also able to ask questions of the panel.

For more information or to register for the next Breakfast with Bakke Norman, please email info@bakkenorman.com. To view other Breakfast with Bakke Norman installments, visit our You Tube channel.