2003 Wisconsin Act 214

82.03 (5) (a) The town board supervisors may enter upon any lands near any highway in the town and there to construct necessary drains or ditches or embankments for the improvement or protection of the highway; and may enter upon any unimproved lands near any highway in the town and take stone, gravel, sand, clay, earth or trees for the purposes of improving any highway, but shall carefully avoid doing any unnecessary injury to the premises; and may take stone, gravel or other suitable materials within the highway of the town to improve any highway therein. No such material shall be removed from any town without the consent of the town board unless the highway on which the same is found is maintained by the county, in which case the county may use the same for any highway purpose.

214,123 Section 123. 81.07 of the statutes is repealed.

214,124 Section 124. 81.08 (title) of the statutes is renumbered 82.35 (title).

214,125 Section 125. 81.08 (1) of the statutes is renumbered 82.35 (1) (a) and amended to read:

82.35 (1) (a) When any highway shall be is practically impassable or be dangerous to travel or when it shall be deemed.

(b) When the town board considers it necessary on account of construction or repair work thereon or for other reasons to suspend travel thereon or upon on a highway or on any part of such a highway, the town board may upon its own motion lay out and open temporary highways for the accommodation of public travel through any lands due to construction, repair, or other reasons.

(2) (a) The board may contract in writing with the owner or occupant, or both, lessee of any land through which it proposes to lay out such a temporary highways highway, as to the location of the same highway, and the damages that the owner or occupant lessee is to receive, which. The contract shall be filed with the town clerk.

(b) In the absence of such a contract under par. (a), the board shall determine by the location of the temporary highway and the award of damages. Unless an emergency exists, the board shall serve the landowner with notice of the location of the highway and the award of damages and shall provide the landowner with 48 hours to object. The town board shall file a written order filed with the town clerk both specifying the location of the temporary highway and the damages, and may immediately open such temporary highways. Such highways awarded.

(4) A temporary highway shall exist only so long as needed and shall be deemed considered vacated and discontinued when the permanent highway is again opened for public travel.

Note: The special committee was concerned that current law does not satisfy due process. Unless there is an emergency, new s. 82.35 requires notice to the landowner and 48 hours to object.

214,126 Section 126. 81.08 (2) of the statutes is renumbered 82.35 (2) (c) and amended to read:

82.35 (2) (c) The owner or occupant of any land occupied by such a temporary highway may, at any time after it is opened and within 30 days after it is so vacated or discontinued, apply to the town board to determine the owner's or occupant's damages; and thereafter the same proceedings may be had as in the case of a claim for damages under s. 81.07.

214,127 Section 127. 81.08 (3) of the statutes is renumbered 82.35 (3) and amended to read:

82.35 (3) In case such If a temporary highway is opened in connection with or on account of road and or bridge construction, the damages agreed upon or awarded pursuant to this section may be treated as part of the construction cost and paid out of the construction funds in the customary manner of disbursing the same.

214,128 Section 128. 81.11 (title) and (1) to (4) of the statutes are repealed.

214,129 Section 129. 81.11 (5) of the statutes is renumbered 82.25 and amended to read:

82.25 Highway taxes for limited-use road. The Notwithstanding s. 60.10 (1) (a) and (2) (a), the town board, upon its own authority and without direction from the annual town meeting, may levy and collect a tax on property located in a recorded and filed plat that existed on January 1, 2003, situated in a town requiring the approval of such town board, and adjoining a private road used by the public located therein, and on property adjoining, where the owner regularly uses such road which is not a portion of any town, county, state, or federal highway system, not exceeding 3 mills for each dollar of assessed valuation thereof. The proceeds of such the tax shall be expended for the improvement and maintenance of any private roads used by the public located within such the recorded and filed plat. The town board shall not expend any of such the funds collected under this section upon a private driveway.

Note: Section 82.25 is based on current s. 81.11 (5). The language was changed to limit its application to plats in existence on January 1, 2003. Subsections (1) through (4) of current s. 81.11 were deleted because the special committee decided that they were obsolete.

Current ss. 81.12 and 81.39, 80.30 (2) through (5), and the 2nd-to-last sentence of s. 80.02 were not carried over into this bill. The special committee decided that these provisions were obsolete or better covered by other parts of the statutes.

214,130 Section 130. 81.12 of the statutes is repealed.

214,134 Section 134. 81.14 of the statutes is repealed.

214,136 Section 136. 81.15 of the statutes is renumbered 893.83 (1) and amended to read:

893.83 (1) Damages caused by highway defects; liability of town and county municipality. If damages happen to any person or his or her property by reason of the insufficiency or want of repairs of any highway which that any town, city, or village is bound to keep in repair, the person sustaining the damages has a right to recover the damages from the town, city, or village. If the damages happen by reason of the insufficiency or want of repairs of a highway which that any county by law or by agreement with any town, city, or village is bound to keep in repair, or which that occupies any land owned and controlled by the county, the county is liable for the damages and the claim for damages shall be against the county. If the damages happen by reason of the insufficiency or want of repairs of a bridge erected or maintained at the expense of 2 or more towns, cities, villages, or counties, the action shall be brought against all of the towns, cities, villages, or counties that are liable for the repairs of the bridge and upon. Upon recovery of judgment, the damages and costs shall be paid by the towns, cities, villages, or counties in the proportion in which they are liable for the repairs; and the. The court may direct the judgment to be collected from each town, city, village, or county for its proportion only. The amount recoverable by any person for any damages so sustained shall not exceed $50,000. The procedures under s. 893.80 shall apply to the commencement of actions brought under this section subsection. No action may be maintained to recover damages for injuries sustained by reason of an accumulation of snow or ice upon any bridge or highway, unless the accumulation existed for 3 weeks.

214,137 Section 137. 81.17 of the statutes is renumbered 893.83 (2) and amended to read:

893.83 (2) Highway defects; liability of wrongdoer; procedure. Whenever damages happen to any person or property by reason of any defect in any highway or other public ground, or from any other cause for which any town, city, village, or county would be liable, and such damages are caused by, or arise from, the wrong, default, or negligence thereof and of any person, or private corporation, such person or private corporation shall be primarily liable therefor; but the. The town, city, village, or county may be sued with the person or private corporation so primarily liable. If the town, city, village, or county denies its primary liability and proves upon whom such liability rests, the judgment shall be against all of the defendants shown by the verdict or finding to be liable for the damages; but judgment. Judgment against the town, city, village, or county shall not be enforceable until execution has been issued against the party found to be primarily liable and returned unsatisfied in whole or in part; on. On such return being made , the defendant town, city, village, or county shall be bound by the judgment. The unpaid balance shall be collected in the same way as other judgments.

Note: Section 893.83 is based on current ss. 81.15 and 81.17. The special committee decided it was more appropriately placed in ch. 893. Though some of the language has been modified to make it more current, no substantive change is intended.

214,138 Section 138. 81.35 of the statutes is renumbered 82.37 and amended to read:

82.37 Tunnel under highway by landowner. The owner of land on both sides of a town highway may construct a tunnel under the highway, and the necessary may erect fences for the passage of stock, and other purposes, in such manner as will that are necessary for the use of the tunnel. The tunnel shall not interfere with or endanger travel on the highway. The tunnel shall not be less than 25 feet in length and shall be maintained by the owner. The owner shall maintain the tunnel and shall be liable for all damages which may be occasioned by that occur as a result of the failure to keep the tunnel in repair. Unless authorized by a town meeting, the tunnel shall not be less than 25 feet in length. The electors of the town at an annual town meeting may authorize the construction of any designated a tunnel not less than that is less than 25 feet, but at least 16 feet in length. The chairperson of the town shall see that all tunnels in the town are made in accordance with this section and that they are kept in good repair.

214,139 Section 139. 81.36 of the statutes is repealed.

214,140 Section 140. 81.38 (title) of the statutes is renumbered 82.08 (title).

214,141 Section 141. 81.38 (1) of the statutes is renumbered 82.08 (1) and amended to read:

82.08 (1) Petitions. When any A town that has voted to construct or repair any culvert or bridge or culvert on a highway maintainable maintained by the town, and has provided for such portion of the cost of such construction or repair as is required by this section, the town board shall may file a petition with the county board setting forth said facts and for county aid with the county highway commissioner. The petition shall describe the location and size of the culvert or bridge; and bridge or culvert and shall contain a statement that the town has provided the funds required by sub. (3).

(2) Funding requirements. (a) Except as provided in par. (b), upon receipt of a petition for a bridge or culvert with a 36-inch or greater span, or a structure of equivalent capacity to carry water, the county board, except as herein provided, shall thereupon appropriate such the sum as will, with the money provided by the town, be sufficient to defray the expense of constructing or repairing such culvert or bridge, required by sub. (3) and shall levy a tax therefor, which. The tax, when collected, shall be disbursed on the order of the chairperson of the county board and the county clerk, when the town board and county highway committee files a written notice with the clerk that the work has been completed and accepted held in a separate account administered by the county highway committee.

(b) If on January 1, 2003, a county has a policy of providing funding only for bridges and culverts larger than the requirement of par. (a), the county may refuse to fund bridges and culverts that do not meet the minimum requirements of that policy. The minimum size bridge or culvert that a county is required to fund under this section may be raised, but not lowered, by the affirmative vote of a majority of the towns in the county. The county board of any county which that has never granted aid under this section may, in its discretion, refuse to make any appropriation all petitions under sub. (1).

Note: Current s. 81.38 requires all petitions for county aid to be granted. The special committee had a number of discussions about whether the county should be involved in projects that are very small, and about the fact that some counties currently put a minimum size requirement on the bridges and culverts that they fund.

The new s. 80.28 (2) limits the funding requirements to bridges or culverts with a span of 36 inches or greater. However, counties that had a greater size requirement in place on January 1, 2003 can continue to abide by that policy. In addition, the size limit can be raised, but not lowered, by the vote of the majority of towns in the county. Current s. 81.38 also seemed to require the town to apply to the county for aid. That has been changed so that a town "may" apply for aid. Finally, the new sub. (2) requires the tax that the county levies to be held in a separate account.

214,142 Section 142. 81.38 (2) of the statutes is renumbered 82.08 (3) and amended to read:

82.08 (3) Shared cost. The county shall pay the cost in excess of $750 up to $1,500. The town and county shall each pay one-half of the cost of construction or repair above $1,500. In determining the cost of construction or repair of any culvert or bridge or culvert, the cost of constructing or repairing any approach not exceeding 100 feet in length shall be included.

Note: New sub. (3) changes the way projects are funded. The current law requires the town to pay for the first $750, the county to pay for the second $750, and the town and county to split amounts in excess of $1,500. The new sub. (3) requires a straight 50% split.

214,143 Section 143. 81.38 (3) of the statutes is renumbered 82.08 (4) and amended to read:

82.08 (4) Emergency petition. Whenever the construction or repair of any such culvert or bridge or culvert must be made without delay, the town board may file its petition with the county clerk and the county highway committee, setting forth the facts respecting explaining the necessity for immediate construction or repairs. It shall then be the duty of the town board and the county highway committee to make such construction or repairs with the least possible delay. The town board is authorized to borrow the entire cost of the work, and to include the town's share of such cost in the next tax levy construct or repair the bridge or culvert as soon as practicable. The construction or repair of a culvert or bridge performed and accepted or culvert undertaken pursuant to this subsection shall entitle the town to the same county aid that the town would have been entitled to had it filed its petition with the county board as provided in sub. (1).

214,144 Section 144. 81.38 (4) of the statutes is renumbered 82.08 (5) and amended to read:

82.08 (5) Supervision over design, construction, and cost. The county highway committee and the town board shall have full charge of design, sizing, letting, inspecting, and accepting the work construction or repair, but the town board may leave the matter entirely in the hands of the county highway committee. The county highway committee and the town board must agree on the cost of the project and must consult each other during construction.

Note: New sub. (5) adds the requirement that the town and county mutually agree on costs and consult with each other during construction.

214,145 Section 145. 81.38 (5) of the statutes is renumbered 82.08 (6) and amended to read:

82.08 (6) Construction requirements. No county order may be drawn under sub. (1) (2) for the construction of an arch, culvert or a bridge or culvert unless it is constructed in a workmanlike manner and built of creosoted wood or timber, steel, stone or concrete or a combination thereof, and the design and construction comply with requirements under s. 84.01 (23).

Note: New sub. (6) does not carry over the language from current s. 82.38 (5) that specified what materials the culvert or bridge should be made of. The special committee decided that the list was unnecessary and that some of the listed materials were outdated.

214,146 Section 146. 81.38 (6) of the statutes is renumbered 61.48 and amended to read:

61.48 County aid for construction and repair of bridges and culverts. Any village, by a resolution adopted by a two-thirds majority vote of all members of the village board, may elect to become subject to all of the provisions of this section. Such s. 82.08 by a resolution adopted by a two-thirds majority vote of all of the members of the village board. The election to become subject to s. 82.08 shall be effective when a certified copy of such the resolution is filed with the county board and approved by a majority of the towns and villages in the county that are already subject to s. 82.08 vote of the members of the county board representing towns and representing villages which have become subject to the provisions of this section as provided in this subsection; and thereafter, until such to approve the village's election. Until the village ceases to be subject to the provisions of this section s. 82.08, the words "town" and "town board" as used in this section s. 82.08 shall also apply respectively to such to the village and its village board. A village which that has become subject to the provisions of this section as provided in this subsection s. 82.08 may cease to be subject to such provisions only that section by the adoption of a resolution and its approval by the county board in the same manner and by the same procedure by which a as the village may become became subject to such provisions as provided in this subsection that section.

Note: Since it concerns villages, the special committee decided current s.81.38 (6) was more appropriately placed in ch. 61. New s. 61.48 changes how the election to be subject to the provisions of new s. 82.08 is approved. The current language in s. 81.38 requires approval "...by a majority vote of the members of the county board representing towns and villages that have become subject to this section". Since the members of the county board no longer represent towns and villages in that manner, new s. 61.48 requires a vote of the majority of the towns and villages that are already subject to s. 82.08.

214,147 Section 147. 81.38 (7) of the statutes is renumbered 82.08 (7) and amended to read:

82.08 (7) No tax. Except as provided in sub. (6) and s. ss. 61.48 and 84.14 (3), nothing herein contained in this section shall authorize the levy of a tax upon the property in any city or village which that is required to maintain its own bridges.

214,148 Section 148. 81.39 of the statutes is repealed.

214,149 Section 149. 81.42 (title) of the statutes is repealed.

214,150 Section 150. 81.42 (1) of the statutes is renumbered 82.03 (8) and amended to read:

82.03 (8) Use of dams as roadways. The town board may contract with the owner of any a dam with that has a roadway thereon on it for the use of such the roadway for highway purposes for such period of time as the board may determine. The contract shall provide that who shall be responsible for keeping the roadway shall at all times be kept in repair by the owner and may be for a period of time that the board determines.

Note: The language of current s. 81.42 (1) requires the contract to provide that the owner of the dam keep the roadway in repair at all times. New s. 82.03 (8) changes this language to require only that the contract specify who shall keep the road in repair.

214,151 Section 151. 81.42 (2) of the statutes is renumbered 82.09 and amended to read:

82.09 County aid for dams used for bridges. Whenever any A town board shall may file its a petition with the county board, setting forth the fact that said stating that the town board has voted to acquire the right to use any such a roadway, designating as near as may be the location of such dam and roadway, and stating on a dam. The petition shall contain a legal description and scale map of the dam and roadway, and shall state the amount agreed to be paid to the owner for the use thereof of the roadway. Upon receipt of a petition, the county board shall appropriate a sum equal to one-half 50 percent of the amount so agreed to be paid for such the use, and. The county board shall, on the order of the chairperson of the county board and county clerk, cause such sum to be paid to the treasurer of said the town on the order of the chairperson of the county board and county clerk whenever the town board shall notify them notifies the county highway commissioner that a contract for the use of such the roadway has been executed.

Note: The contents of the petition have been changed. The original language required the petition to designate "as near as may be" the location of the dam and roadway. New s. 82.09 requires a legal description and scale map.

214,152 Section 152. Chapter 82 (title) of the statutes is created to read:

CHAPTER 82
Town Highways

214,153 Section 153. Subchapter I (title) of chapter 82 [precedes 82.01] of the statutes is created to read:

chapter 82

SUBCHAPTER I
FuNDING AND GOVERNANCE

214,154 Section 154. 82.01 (intro.), (1) to (7) and (9) to (11) of the statutes are created to read:

82.01 Definitions. (intro.) In this chapter, the following words and phrases have the designated meanings unless specifically noted:

(1) "Department" means the department of transportation.

(2) "Freeholder" means a person who owns a fee simple or life estate interest in land, a person who is a land contract vendee, or a person who has an interest in land arising under ch. 766.

(3) "Highway order" means an order laying out, altering, or discontinuing a highway or a part of a highway, that contains a legal description of what the order intends to accomplish and a scale map of the land affected by the order.

(4) "Laid out" means any formal act or process by which a municipality determines the location of a highway.

(5) "Legal description" means a complete description of land without internal references to any other document, and shall be described in one of the following ways:

(a) By metes and bounds commencing at a monument at the section or quarter section corner or at the end of a boundary line of a recorded private claim or federal reservation in which the annexed land is located and in one of the following ways:

1. By government lot.

2. By recorded private claim.

3. By quarter section, section, township, and range.

(b) If the land is located in a recorded and filed subdivision or in an area that is subject to a certified survey map, by reference as described in s. 236.28 or 236.34 (3).

(c) If the land is depicted in a transportation project plat filed or recorded under s. 84.095, by reference as described in s. 84.095 (7) (a).

(6) "Municipality" means a city, village, or town.

(7) "Opened" means the completion of work on a highway that places the highway in a condition ready for public use.

(9) "Town line highway" means a highway that runs on or across the boundary line between a town and another town, a village, or a city.

(10) "Unrecorded highway" means a highway that is not a recorded highway.

(11) "Worked" means action of the town in regularly maintaining a highway for public use, including hauling gravel, grading, clearing or plowing, and any other maintenance by or on behalf of the town on the road.

214,155 Section 155. 82.03 (1) (title) of the statutes is created to read:

82.03 (1) (title) Oversight of highways, superintendent of highways.

214,156 Section 156. 82.03 (1) (c), (5) (title) and (c), (6) and (9) to (19) of the statutes are created to read:

82.03 (1) (c) The town board shall fix the compensation and may require and set the amount of a bond of the superintendent. The town board may reimburse the superintendent for expenses incurred in performing his or her duties as superintendent.

(5) (title) Maintenance. (c) To erect on the right-of-way fences other than snow fences.

(6) Liability. (a) The town shall be responsible for any damage resulting from activities undertaken under the authority granted by sub. (5). The owner of lands entered upon or used for any of the purposes identified in sub. (5) may apply to the town board to appraise the resulting damages, and such damages may be determined by agreement. If the parties are unable to agree upon the damages, the board shall make an award of damages and file the award with the town clerk, and the clerk shall give notice, by certified mail with return receipt requested, of the filing to the owner.