2003 Wisconsin Act 214

214,13r Section 13r. 66.1003 (8) (a) of the statutes is created to read:

66.1003 (8) (a) Upon receiving a petition under sub. (2) or (3) or upon the introduction of a resolution under sub. (4), the city, village, town, or county shall deliver a copy of the petition or resolution to the secretary of transportation, if the public way or unpaved alley that is the subject of the petition or resolution is located within one-quarter mile of a state trunk highway or connecting highway.

214,14 Section 14. 66.1003 (10) of the statutes is created to read:

66.1003 (10) Notwithstanding ss. 82.10 and 82.21, no city council or county, village, or town board may discontinue a highway when the discontinuance would deprive a landowner or a public school of all access to a highway.

Note: New s. 66.1003 is based on the last sentence of current s. 80.02, which reads: "No town board shall discontinue . . . any highway when such discontinuance would deprive the owner of lands of access therefrom to a highway" and on the last sentence of current s. 80.16 which reads: "No highway shall be discontinued when the effect of such discontinuance shall be to exclude a public school from access to the public highways.". The special committee believes that, in practice, the current language applies to cities, counties, villages, and towns. Therefore, the new s. 66.1003 specifically includes cities, villages, and counties and moves the provision to ch. 66. No substantive change is intended.

214,15 Section 15. 66.1005 (title) of the statutes is created to read:

66.1005 (title) Reversion of title.

214,16 Section 16. 66.1033 (1) and (3) of the statutes are created to read:

66.1033 (1) In this section:

(a) "Political subdivision" means a city, village, town, or county.

(b) "Public way" means a highway, street, slip, pier, or alley.

(3) For proceedings taken, or for plats, deeds, orders, or resolutions executed after the effective date of this subsection .... [revisor inserts date], except as provided in s. 840.11, no defect, omission, or informality in the proceedings of, or execution of a plat, deed of dedication, order, or resolution by, a political subdivision shall affect or invalidate the proceedings, plat, deed, order, or resolution after 5 years from the date of the proceedings, plat, deed, order, or resolution. The public way dedicated, laid out, or altered by a defective or informal proceeding, plat, deed, order, or resolution shall be limited in length to the portion actually worked and used.

214,17 Section 17. Chapter 80 (title) of the statutes is repealed.

214,18 Section 18. 80.01 (title) of the statutes is repealed.

214,19 Section 19. 80.01 (1) (title) of the statutes is repealed.

214,20 Section 20. 80.01 (1) of the statutes is renumbered 82.01 (8) and amended to read:

82.01 (8) In this section, "recorded "Recorded highway" means a highway for which the order laying out or altering the highway, or a certified copy of the order, has been filed recorded in the office of the clerk of the town or register of deeds in the county in which the highway is situated or, for highways that were laid out or altered before the effective date of this subsection .... [revisor inserts date], in the office of the clerk of the town or the county in which the highway is situated.

Note: All but one of the definitions in s. 82.01 is new. The only term that is specifically defined in chs. 80 and 81 is "recorded highway". That definition has been included with the modification that the order must be filed with the register of deeds rather than the town or county clerk. The term "widened" has been deleted throughout the bill because the special committee concluded that it was redundant of the term "altered".

214,21 Section 21. 80.01 (1m) (title) of the statutes is renumbered 82.31 (title).

214,22 Section 22. 80.01 (1m) of the statutes is renumbered 82.31 (1) and amended to read:

82.31 (1) Recorded highways. Any recorded highway that has been laid out by the town supervisors, the county board or by a committee of the board, or by commissioners appointed by the legislature, or by any other authority, any portion of which has been opened and worked for 3 years under this chapter is a legal highway only to the extent that it has been opened and worked for 3 years. Any laid out highway that has not been fully and sufficiently described or recorded or for which the records have been lost or destroyed is presumed to be 66 feet wide.

214,23 Section 23. 80.01 (2) of the statutes is renumbered 82.31 (2), and 82.31 (2) (title), (b) and (c), as renumbered, are amended to read:

82.31 (2) (title) Unrecorded highways validated, exception; grants for highway purposes, presumptive width.

(b) No road or bridge built upon the bottoms and sloughs of the Mississippi River by citizens or a municipality of any other state shall become a legal highway or a charge upon the town in which the road is located unless upon petition the highway is legally laid out by the town supervisors board.

(c) No lands granted for highway purposes that did not become a legal highway prior to July 1, 1913, shall become a legal highway unless the grant is accepted by the town board or by the town meeting of the town wherein where the lands and proposed highway are located, and until a resolution of acceptance of the grant is recorded in the office of the town clerk.

214,23m Section 23m. 80.01 (3) (title) of the statutes is renumbered 66.1037 (title).

214,24 Section 24. 80.01 (3) of the statutes is renumbered 66.1037 (1) and amended to read:

66.1037 (1) No lands abutting on any highway, and acquired or held for highway purposes, shall be deemed discontinued for such purpose purposes so long as they abut on any highway. All lands acquired for highway purposes after June 23, 1931, may be used for any purpose that the public authorities authority in control of such the highway shall deem to conduce to determines promotes the public use and enjoyment thereof. Such authorities. The authority may improve such lands by suitable planting, to prevent the erosion of the soil, or to beautify the highway. The right to protect and to plant vegetation in any highway laid out prior to said date June 23, 1931, may be acquired in any manner that lands may be acquired for highway purposes. It Subject to sub. (2), it shall be unlawful for any person to injure any tree or shrub, or cut or trim any vegetation other than grass, or make any excavation in any highway laid out after said date June 23, 1931, or where the right to protect vegetation has been acquired, without the consent of the highway authorities authority and under their its direction but such authorities. The authority shall remove, cut , or trim or consent to the removing, cutting, or removal trimming of any tree, shrub, or vegetation in order to provide safety to users of the highway.

Note: The inclusion of "other than grass" was made to ensure that property owners could trim grass near their property.

214,24g Section 24g. 66.1037 (2) of the statutes is created to read:

66.1037 (2) (a) Except as provided in par. (b), no person may cut or trim grass along any state trunk highway without the consent of the department of transportation.

(b) A person who owns or leases land abutting a state trunk highway may, without the consent of the department of transportation, cut or trim grass that is within the highway right-of-way and that is located along the land's frontage with the highway right-of-way or within 200 feet of a driveway, railroad crossing, or intersection along the land's frontage with the highway right-of-way. This paragraph does not permit a person to cut or trim grass without the consent of the department of transportation if any of the following applies:

1. The state trunk highway is a freeway, as defined in s. 346.57 (1) (am), or an expressway, as defined in s. 59.84 (1) (b).

2. The person farms or harvests the grass.

3. The grass is located in any of the following:

a. An area where pedestrians are prohibited.

b. An area accessible only by crossing a traffic lane of the state trunk highway.

c. An area located within 50 feet of a sign, as defined in s. 84.30 (2) (j).

214,25 Section 25. 80.01 (4) (title) of the statutes is renumbered 66.1033 (title) and amended to read:

66.1033 (title) Highways, streets and alleys, piers, plats, curative Curative provisions.

214,26 Section 26. 80.01 (4) of the statutes is renumbered 66.1033 (2) and amended to read:

66.1033 (2) Every street, highway and alley, pier and slip, dedicated or attempted and intended to be dedicated in any plat or laid out, altered, vacated or discontinued, or attempted or intended to be laid out, altered, vacated or discontinued by the authorities of any county, town, city or village shall be held to have been lawfully so dedicated, laid out, altered, vacated or discontinued from and after the expiration of 5 years from the date of the deed, instrument, plat, order, resolution or other final proceeding had or taken to effectuate such purpose. No For proceedings taken, or for plats, deeds, orders, or resolutions executed before the effective date of this subsection .... [revisor inserts date], notwithstanding s. 840.11, no defect, omission or informality in the proceedings of, or execution of any a plat or, deed of dedication or in any proceedings, order, or resolution on the part of such authorities for the purposes aforesaid by, a political subdivision shall affect or invalidate such the proceedings, plat, deed, order, or resolution or proceeding, after the expiration of 5 years from the date of the proceeding, plat, deed, proceeding, order, or resolution ; provided, the street or alley. The public way dedicated, laid out, or altered by such a defective, or informal proceeding, plat, deed, proceeding, order, or resolution , shall be limited in length to the portion actually worked and used thereunder.

Note: The following language was repealed because the special committee decided it was redundant of the rest of the provision: "Every street, highway and alley, pier and slip, dedicated or attempted and intended to be dedicated in any plat or laid out, altered, vacated, or discontinued, or attempted or intended to be laid out, altered, vacated, or discontinued by the authorities of any county, town, city, or village shall be held to have been lawfully so dedicated, laid out, altered, vacated, or discontinued from and after the expiration of 5 years from the date of the deed, instrument, plat, order, resolution, or other final proceeding had or taken to effectuate such purpose.".

The new s. 66.1029 attempts to resolve a conflict between current s. 80.01 (4) and current s. 840.11. Current s. 840.11 requires any person applying to lay out, widen, vacate, or extend a highway to file a notice of the pendency of the application. Failure to file the notice renders all proceedings based on the application void. Current s. 80.01 (4), however, appears to cure all defects and procedural errors after 5 years. The special committee discussed whether one of the provisions should overrule the other and decided on a compromise. Under the new s. 66.1029 a failure to comply with s. 840.11 prior to the effective date of the act will not void an action. But, after the effective date of the act, the new s. 66.1029, would cure all defects except a failure to comply with s. 840.11.

214,27 Section 27. 80.01 (5) of the statutes is renumbered 66.1024 and amended to read:

66.1024 Effect of reservation or exception in conveyance. Whenever a an executed and recorded deed, land contract, or mortgage of lands abutting on an existing public street, highway, or alley or a projected extension thereof hereafter executed and recorded contains language reserving or excepting certain lands for street, highway, or alley purposes, such the reservation or exception shall constitute a dedication for such purpose to the public body having jurisdiction over such the highway, street, alley, or projected extension thereof, unless the language of such the reservation or exception plainly indicates an intent to create a private way. Such dedication may be Any reservation or exception shall not be effective until it is accepted by a resolution of the governing body having jurisdiction over such street, highway, alley, or projected extension thereof.

Note: The special committee decided that s. 80.01 (5) was more appropriately placed in ch. 66. The last sentence of new s. 66.1024 was changed to make clear that the reservation must be accepted by the governing body.

214,28 Section 28. 80.02 (title) of the statutes is repealed.

214,29 Section 29. 80.02 of the statutes is renumbered 82.10 (1) (intro.) and amended to read:

82.10 (1) Application for highway changes. (intro.) When 6 Six or more resident freeholders wish may apply to the town board to have a highway laid out, widened, altered, or discontinued in their town, they may make application in writing to the supervisors of said town for that purpose. The application may shall be in writing and shall be delivered to any supervisor or to the town clerk. In case the application is for the discontinuance of all or of a part of any highway, and it is desired, as permitted by s. 80.05, to omit from the notice the description of the lands abutting upon such highway which will be benefited, injured or damaged by the discontinuance of such highway or any part thereof, the The application shall contain the all of the following:

(a) A legal description of the lands abutting upon such highway which will be benefited, injured or damaged by the discontinuance of such highway or any part thereof and shall be delivered to the town clerk with a request in writing that such application remain on file with the clerk until the time set for hearing for reference and inspection by any parties concerned. When all the owners of lands abutting on the part of a highway sought to be altered, desire such alteration, and the supervisors are of the opinion that the public will not be materially affected by such alteration, the board may make the same, and may take into consideration donations of money, land or services for the making of such alterations. When the laying out of a highway would require the construction of a bridge costing more than $1,000, exclusive of donations, the order of the supervisors laying out such highway shall not be effective unless approved by the electors of the town, and an estimate by the department of transportation shall be conclusive of the cost of such bridge for the purposes of this section. No town board shall discontinue any part of a state trunk or county trunk highway, nor discontinue any highway when such discontinuance would deprive the owner of lands of access therefrom to a highway to be discontinued or of the proposed highway to be laid out or altered.

Note: Under current law, an application for laying out or altering, can be delivered to either a supervisor or the town clerk, while an application for discontinuance can only be delivered to the town clerk. Under the bill, all applications must be delivered to the town clerk.

Under current s. 80.02, an application for discontinuance must contain a description of the lands that will be benefited, injured, or damaged by the discontinuance only if "it is desired" to exclude such a description from the notice. However, it is the supervisors who make the notice and the freeholders who make the application. Thus, the use of "it is desired" creates an ambiguity as to who wants to exclude the description from the notice. New s. 82.10 (1) requires all applications to contain a legal description of the highway and a scale map of the affected land.

The last 2 sentences of current s. 80.02 are not included in the new s. 82.10. The sentence concerning electors approving construction costing more than $1,000 was deleted because the special committee decided that the dollar amount was obsolete. The prohibition on discontinuing a state trunk or county trunk highway was deleted because the special committee decided it was unnecessary since the town does not have jurisdiction over those highways. The prohibition on discontinuing a highway where such discontinuance would deprive a landowner of highway access has been moved to new s. 66.1003 (10).

The 3rd-to-last sentence of current s. 80.02 has been left out of this bill because the special committee decided it was unnecessary. The sentence reads: "When all the owners of lands abutting on the part of a highway sought to be altered, desire such alteration, and the supervisors are of the opinion that the public will not be materially affected by such alteration, the board may make the same, and may take into consideration donations of money, land or services for the making of such alterations.".

214,30 Section 30. 80.025 of the statutes is renumbered 82.29 and amended to read:

82.29 Highways abutted by state park lands; discontinuance or relocation. Any part of a highway lying wholly within state park lands may be discontinued or relocated by the state agency having jurisdiction over such abutting lands the state park by filing written notice of such the discontinuance or relocation with the town clerk or county clerk of the municipality that has jurisdiction over the highway and upon approval by the supervisors municipality after holding a hearing as provided in s. 80.05 unless such 82.10. No discontinuance or relocation would under this section may deprive any other owner of lands a landowner of all highway access thereto from a highway. This section does not apply to state trunk highways or connecting highways.

214,31 Section 31. 80.03 of the statutes is repealed.

214,32 Section 32. 80.04 (title) of the statutes is repealed.

214,33 Section 33. 80.04 of the statutes is renumbered 82.11 (2) and amended to read:

82.11 (2) (a) No supervisor town official may act in laying out, altering, widening or discontinuing any a highway in which the supervisor may be personally interested if acting would result in a violation of the code of ethics under s. 19.59 or of a local ordinance enacted under s. 19.59 (1m). If one supervisor is interested the other 2 supervisors a town official is prevented from acting, the remaining town officials shall act. If 2 supervisors are interested the 3rd supervisor shall act in the matter.

(b) Whenever Every town shall have a written policy on how the town board will act on an application or resolution when there are fewer than 2 supervisors in a the town, the application authorized by s. 80.02 may be made to the county board, which shall promptly appoint a committee of 3 of its members. The committee shall act upon the who are able to act on the application in the same manner and with the same powers in every respect as the supervisors of the town might do or resolution. In the absence of a policy, the town clerk may act. If the town clerk is prevented from acting, the treasurer may act.

Note: The special committee decided to eliminate the process of applying to the county under current s. 80.04 (2). Instead, the special committee decided to allow the town board to formulate its own plan to deal with situations where there is a conflict of interest. In the absence of such a plan, new s. 82.11 (2) authorizes the town clerk and treasurer to act in turn.

214,34 Section 34. 80.05 (title) of the statutes is renumbered 82.10 (3) (title) and amended to read:

82.10 (3) (title) Notice of meeting; service and publication requirements.

214,35 Section 35. 80.05 (1) of the statutes is renumbered 82.10 (3) and amended to read:

82.10 (3) On Upon receipt of an application made to supervisors for laying out, widening, altering or discontinuing any highway the supervisors shall prepare a under sub. (1) or the introduction of a resolution under sub. (2), the board shall provide notice fixing therein a of the time that and the place at which they where it will meet and decide upon to consider the application or resolution. The notice shall specify, as near as practicable, contain a legal description of the highway to be discontinued or of the proposed highway to be laid out, widened, or altered or discontinued and the tracts of land through which the highway passes or, if the application is for discontinuing the whole or any portion of the highway, the tracts of land abutting on the highway which will be benefited or injured by such discontinuance. When the description in the aggregate exceeds 200 words in length, the notice may state that such descriptions are contained in the application as provided in s. 80.02, and shall give the name and address of the town clerk to whom the application has been delivered and a scale map of the land that would be affected by the application or resolution.

214,36 Section 36. 80.05 (2) (intro.) and (c) of the statutes are repealed.

214,37 Section 37. 80.05 (2) (a) of the statutes is renumbered 82.10 (4) (a) (intro.) and amended to read:

82.10 (4) (a) (intro.) The town board or, at the town board's direction, the applicants shall publish a class 3 notice under ch. 985 and shall, at least 10 30 days prior to the date of before the hearing, give notice by registered mail to all occupants and of the following:

1. The owners of record of lands through which the highway may pass or, if the application is for discontinuance, to the occupants and to the.

2. The owners of record of all lands abutting on the highway.

214,38 Section 38. 80.05 (2) (b) of the statutes is renumbered 82.10 (4) (a) 3. and amended to read:

82.10 (4) (a) 3. Give notice by registered mail to the The department of natural resources and to the.

4. The county land conservation committee in each county through which the highway may pass.

Note: Section 82.10 is based on current ss. 80.02 and 80.05.

The type of notice required has been changed from a class 2 to a class 3, and notices by registered mail have been changed from 10 days before the hearing to 30 days before the hearing. These changes were made to make the timeliness more reasonable and to be consistent with ch. 66. In addition, the special committee decided that if the procedures are begun by an application, the cost of publishing a notice should be borne by the applicants.

Except as noted, no substantive change is intended.

214,39 Section 39. 80.06 (title) of the statutes is repealed.

214,40 Section 40. 80.06 of the statutes is renumbered 82.11 (1) and amended to read:

82.11 (1) The town supervisors shall meet at the time and place stated in their notice, and upon being satisfied that the notices required in s. 80.05 have been duly given, proof of which may be shown by affidavit or otherwise as they may require, shall proceed to examine personally such examine the highway, and shall hear any reason that may be offered for or against laying out, widening, altering or discontinuing the same, and shall decide upon or proposed highway that is the subject of an application or resolution under s. 82.10. At the time and place stated in the notice under s. 82.10, the town board shall hold a public hearing to decide, in its discretion, whether granting the application and shall grant or refuse the same as they shall deem best for the public good; and they may adjourn from time to time, not exceeding in all 30 days from the time of the first meeting, giving public notice of the time and place of such adjournment when made, and by forthwith filing notice of such adjournment in the office of the town clerk or resolution is in the public interest. Before the town board holds a public hearing on or takes any action on the application or resolution, the town board must be satisfied, by affidavit of the applicant or otherwise, that the notices in s. 82.10 (4) have been given.

Note: The language from current s. 80.06 specifying how the supervisors may adjourn for a period not exceeding 30 days was not carried into this bill because the special committee decided that it was unnecessary.

214,41 Section 41. 80.07 (title) of the statutes is repealed.

214,42 Section 42. 80.07 (1) and (2) of the statutes are consolidated, renumbered 82.12 (2) and amended to read:

82.12 (2) When the supervisors If the board determines under sub. (1) to lay out, alter, widen or discontinue any highway they, it shall make and sign an issue a highway order therefor, incorporating therein a description of the highway and cause survey thereof to be made when necessary. The highway order shall be filed and recorded in the office of with the register of deeds for the county in which the highway is or will be located and shall be filed with the town clerk, who shall note in the record the time of recording. The order together with the award of damages shall be so filed within 10 days after the date fixed by their notice or adjournment for deciding upon the application. In case the supervisors fail to file the order and award within the 10 days aforesaid they shall be deemed to have decided against the application. When an order has been filed for more than 30 years and no award of damages or agreement or release has been filed and when the highway, or a part thereof, has been used by the public and public money has been expended thereon, for at least 5 years, it shall be presumed that a release was given by the owners of the lands over which the highway was laid out and the public shall be entitled to use the full width of the highway, as laid out, without further compensation. (2) Whenever the supervisors lay out, alter or discontinue any highway the. The town clerk shall transmit submit a certified copy of the order therefor to the county highway commissioner. If the town has an official map, the order shall be incorporated into the official map.

Note: The special committee did not carry over from current s. 80.07 the following language: "In case the supervisors fail to file the order and award within the 10 days aforesaid, they shall be deemed to have decided against the application.". The special committee decided that this might allow a town board to change its mind after a public decision had been made.

214,43 Section 43. 80.08 of the statutes is renumbered 82.18 and amended to read:

82.18 Width of highways. Except as otherwise provided in s. 80.13 this chapter, highways laid out under this chapter shall be laid out at least 49.5 66 feet wide, and when unless, in the town board's discretion, that width is impractical. If the town board determines that a 66-foot width is impractical, the width shall be determined by the town board but shall be at least 49.5 feet in width. When no width is specified in the highway order, the highway shall be 66 feet wide.

Note: Current law sets the minimum width at 49.5 feet. New s. 82.18 sets the minimum width at 66 feet, however, the language also gives the board the option to lay a narrower highway if it determines that 66 feet is impractical.