2003 Wisconsin Act 214

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214,28 Section 28. 80.02 (title) of the statutes is repealed.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

214,44 Section 44. 80.09 of the statutes is repealed.

214,45 Section 45. 80.10 of the statutes is repealed.

214,46 Section 46. 80.11 (title) of the statutes is renumbered 82.21 (title) and amended to read:

82.21 (title) Highways on and across town and municipal lines.

214,47 Section 47. 80.11 (1) of the statutes is renumbered 82.21 (1) (intro.) and amended to read:

82.21 (1) Initiating the procedure. (intro.) Whenever it is considered necessary The procedure to lay out, alter, widen or discontinue a highway upon on the line between 2 towns a town and another town, a city, or a village, or a highway extending from one town into an adjoining town, it shall be done by the supervisors of the 2 towns acting together. If the highway is laid out or altered it may be either upon or as near to the town line as the situation of the ground will admit. The supervisors of the 2 towns acting together may vary the location on either side of the town line as they consider to be necessary. city, or village, shall begin only when one of the following occurs in each affected municipality:

214,48 Section 48. 80.11 (2) (a) (intro.) of the statutes is renumbered 82.21 (2) and amended to read:

82.21 (2) Contents of the application or resolution. An application or resolution under sub. (1) shall be all of the following: contain a legal description of the highway to be discontinued or of the proposed highway to be laid out or altered and a scale map of the land that would be affected by the application. Upon completion of the requirements of sub. (1), the governing bodies of the municipalities, acting together, shall proceed under ss. 82.10 to 82.13.

214,49 Section 49. 80.11 (2) (a) 1. to 4., (b) and (c) of the statutes are repealed.

214,50 Section 50. 80.11 (3) (a), (b) 1. and 2. and (c) of the statutes are renumbered 82.21 (4) (a), (b), (c) and (d) and amended to read:

82.21 (4) (a) The A highway order under sub. (2) (c) issued by 2 towns or by a town and a city or village may designate the part of the highway that each shall be made and kept in construct and repair by each town, and the share of, and pay the damages for, if any, that shall be paid by each town. Each town. As to the portion of the highway that the town, city, or village agrees to construct, keep in repair, and pay damages for, the town, city, or village shall have all of the rights authority and be subject to the liabilities all of the responsibility in relation to the that part of the highway to be made or repaired by it as if it that part were wholly located in that the town, city, or village.

(b) A majority of the supervisors of each town Two town boards or a town board and a city council or village board, meeting together, may make an order in accordance with par. (a) apportioning or reapportioning the authority and responsibility for a town line highway or any part of the a town line highway that they consider advisable, if any of the following conditions exists:

1. No apportionment has been made in an a highway order laying out, altering or widening the highway or a part of the highway.

2. The highway or a part of the highway had its origin in user.

3. In the judgment of the supervisors town boards, or the town board and the city council or village board, circumstances have been so altered since the last apportionment of the highway or part of the highway that the current apportionment or reapportionment has been rendered inequitable or impracticable.

(c) An order made under this paragraph par. (b) shall be filed as provided in sub. (2) (c) with the clerk of each affected municipality and shall have the same effect as an order apportionment made in connection with the original laying out of the highway order.

(d) Any written order or agreement made before August 27, 1947, by a majority of the supervisors of each town concerned, acting together, apportioning, or reapportioning a town line highway has the same effect as though made on or after August 27, 1947.

214,51 Section 51. 80.11 (4) of the statutes is repealed.

214,52 Section 52. 80.11 (5) of the statutes is renumbered 82.21 (5) (a) and amended to read:

82.21 (5) (a) If no agreement is reached under sub. (4) (b), or if an order laying out, or altering or widening a town line highway has not apportioned the liability of the towns or village on account of authority and responsibility for the highway, the supervisors of an affected town or the president of an affected village, after 10 days' notice of the time and place of hearing served on the clerk of each town and village to be affected, or if a municipality considers the current apportionment to be inequitable, an affected municipality may apply to the circuit judge of the county in which the affected town or village municipality is located, for the appointment of 3 commissioners to apportion the liabilities of authority and responsibility between each affected town and village on account of the town line highway municipality. The municipality filing the application shall serve a copy of the application on the clerk of each municipality to be affected. The circuit judge may set the time and place of the hearing before the commissioners at least 10 days after the application is filed with the judge.

214,53 Section 53. 80.11 (6) of the statutes is renumbered 82.21 (5) (b) and amended to read:

82.21 (5) (b) Upon receipt of an application under sub. (5) par. (a), the circuit judge shall appoint 3 residents of the county as commissioners. The commissioners shall, on not less than 5 10 days' notice nor more than 60 days' notice in writing to the clerk of each town and village affected municipality, apportion the liabilities authority and responsibility of each affected town and village municipality on account of the highway. The commissioners shall make the determination in writing and shall file the determination with the clerk of each town and village affected municipality. The commissioners' determination has shall have the same effect as an order made under sub. (2), (3) or (4).

214,54 Section 54. 80.11 (7) of the statutes is renumbered 82.23 and amended to read:

82.23 Municipal line bridges. Any Unless otherwise provided by statute or agreement, every highway bridge on a highway that became a highway under s. 80.01 (2) as a result of having been worked, that is between 2 towns, or between a town on one side and a city, village, or a town and village on the other side, and that has not been assigned to either of the adjoining towns or village, boundary shall be repaired and maintained by the any adjoining towns and village municipality in which the bridge is located. The cost of repairs and maintenance shall be paid by the adjoining towns and village municipalities in proportion to the last equalized valuation of the property in the adjoining towns and village as equalized by the county board or boards at the last equalization municipalities.

214,55 Section 55. 80.11 (8) of the statutes is repealed.

214,56 Section 56. 80.12 (title) of the statutes is repealed.

214,57 Section 57. 80.12 (1) of the statutes is repealed.

214,58 Section 58. 80.12 (2) of the statutes is renumbered 82.21 (3) and amended to read:

82.21 (3) Appointment of city or village commissioners. Upon receipt of an application under sub. (1), the common or introduction of a resolution, the city council or village board of trustees shall may appoint 3 commissioners on the part to act on behalf of the affected city or village in all respects. The commissioners shall be duly sworn to faithfully discharge their duties as commissioners before entering upon those duties. The commissioners and town supervisors shall then give notice and proceed in all respects as provided in s. 80.11.

214,59 Section 59. 80.12 (3) and (4) of the statutes are repealed.

214,60 Section 60. 80.12 (5) of the statutes is renumbered 82.21 (6) and amended to read:

82.21 (6) Where papers filed. All proceedings and orders awards, notices, and papers required to be filed and recorded shall be filed and recorded in the office of the clerk of the each affected city, village or town municipality. Any highway orders issued under this section shall be recorded with the register of deeds for any county in which the highway is or will be located.

Note: Section 82.21 is based on current ss. 80.11 (1) through (6) and 80.12. Current s. 80.12 is ambiguous as to whether the procedure in that section is the exclusive procedure for laying, altering, or discontinuing a highway on the line between a town and a city or village, or whether it merely provides a means to allow citizens to petition their municipal governments. The special committee decided to resolve the ambiguity in favor of making the provision the exclusive means. In addition, the special committee allowed the governing body of each municipality to initiate the procedures in different manners.

The special committee decided not to carryover current s. 80.11 (4) which vacated an apportionment in certain situations. The special committee decided that current s. 80.11 (4) was unnecessary and could cause a gap in the responsibility for a highway. Any reapportionment that is necessary should be covered under the provision allowing a reapportionment in situations where the current apportionment is judged to be inequitable or impracticable. However, the special committee changed the language to allow one municipality to petition the court for reapportionment if that municipality feels the current apportionment is inequitable. The appealing municipality must serve a copy of the application on any affected municipality.

The following language from s. 80.11 (1) was not carried over to this bill because the special committee decided it was unnecessary: "If the highway is laid out or altered, it may be either upon or as near to the town line as the situation of the ground will admit. The supervisors of the 2 towns acting together may vary the location on either side of the town line as they consider to be necessary.".

Current s. 80.12 (4) was entirely deleted because the committee decided it was unnecessary. Current s. 80.12 (4) reads as follows: "The municipalities responsible for a municipal line highway may cause any municipal line highway or part of a municipal line highway that is not less than 264 feet in length, to be graded, paved, macadamized or otherwise improved, including the establishment of the grade, construction of curbs and gutters and installation of water and sewer mains and service pipes. The municipalities may levy special assessments for the whole or any part of the cost of the improvements as a tax upon the property that they determine is especially benefited by the improvements initiated under this subsection, in the manner provided in s. 66.0703.".

The new s. 82.21 changes the obligation of a city or village to appoint commissioners from mandatory to permissive.

214,61 Section 61. 80.125 of the statutes is renumbered 82.28 and amended to read:

82.28 Highways and bridges on state boundaries. A town or county The board of any town or county that is bounded in part by a river, or by a highway, either of which that is also a state boundary line may enter into an agreement with the any adjoining municipality or county in such the other state for the maintenance and, construction, and reconstruction of boundary line highways and bridges and for the maintenance and reconstruction of any boundary line highway including its bridges, by appropriation therefor not exceeding 50% of the total costs assignable to the boundary line facility. The costs shall be apportioned by agreement.

Note: The current law seems to limit the town or county to paying 50% of the costs. The special committee decided that it would be more appropriate to allow the local government to decide how much it is willing to pay. Thus, the new s. 82.28 states that the apportionment shall be by agreement.

214,62 Section 62. 80.13 (title) of the statutes is repealed.

214,63 Section 63. 80.13 (1) of the statutes is renumbered 82.27 (3) and amended to read:

82.27 (3) Setting the hearing date; notice. When any person presents the town board with an affidavit that meets the requirements Upon receipt of an application under sub. (1m) (2), the town board shall set a time and place to conduct a hearing regarding the laying out or widening of a highway application. The hearing shall be held after 10 days and within 30 days of the receipt of the affidavit application by the town board. Notice of the time and place of the hearing shall be served as required by s. 80.05 82.10 and published as a class 2 notice under ch. 985.