2003 Wisconsin Act 214

214,64 Section 64. 80.13 (1m) of the statutes is renumbered 82.27 (2) and amended to read:

82.27 (2) Application. The affidavit required under sub. (1) shall be executed by the owner or lessee of real estate located within the a town , may apply to the town board to have a highway laid out to the owner's land. Except as provided in sub. (7), the application shall be delivered to the town clerk of the town in which the real estate is located. The application shall contain a description of an affidavit, executed by the applicant, that describes the affected real estate and shall contain recites facts that satisfy the supervisors board that any of the following circumstances exists either in par. (a) or in par. (b) exist:

(a) The real estate described in the affidavit is shut out from all public highways by being surrounded on all sides by real estate owned by other persons, or by real estate owned by other persons and by water, and that the owner or lessee is unable to purchase a right-of-way to a public highway from the owners of the adjoining real estate or that such a right-of-way cannot be purchased except at an exorbitant price, which price shall be stated in the affidavit.

(b) 1. The owner or lessee is the owner of a private way or road, whose width shall be stated in the affidavit, that leads from the described real estate to a public highway but the way or road is too narrow to afford the owner or lessee reasonable access from the described real estate to the public highway; and

2. The owner or lessee is unable to purchase a right-of-way from the described real estate to a public highway, or is unable to purchase land on either or both sides of the owner's or lessee's existing way or road to make the way or road of sufficient width or that the right-of-way or additional land cannot be purchased except at an exorbitant price, which price shall be stated in the affidavit.

214,65 Section 65. 80.13 (3) of the statutes is renumbered 82.27 (4) and amended to read:

82.27 (4) Hearing. (a) The town board shall meet at the time and place stated in the notice given under sub. (1) and shall in their and decide, in its discretion lay out a highway of not less than 33 feet nor more than 49.5 feet in width from the public highway to the real estate described in the affidavit under sub. (1m) (a) or (b) either by, whether to grant the application. The board may grant the application by either laying out a new highway across the surrounding land or by adding enough land to the width of the existing way or road described in the affidavit under sub. (1m) (b) to make it. If the board decides to lay out a new highway, the new highway shall be at least 66 feet wide unless the board determines this width to be impracticable. If the board decides to widen an existing way or road, the resulting highway shall not be less than 33 49.5 feet nor more than 49.5 66 feet in width.

(b) The town board shall assess determine the damages to the owner or owners of the real estate over or through on which the highway shall be laid out or from whom land shall be taken and the advantages to the applicant. The town board may not assess determine damages in any an amount exceeding the price stated in the affidavit of the applicant.

214,66 Section 66. 80.13 (4) of the statutes is renumbered 82.27 (4) (c) and amended to read:

82.27 (4) (c) Upon laying out a highway under sub. (3) or widening a private way or road, the town board shall make and sign an issue a highway order describing the laid out highway and. If it is necessary to include a turnaround, the turnaround shall be laid out on the applicant's land. The applicant shall pay the town treasurer the amount determined as advantages within 30 days of the board's decision. Within 10 days of payment, the town board shall file the order with the town clerk together with its award of damages. The and record the order shall be recorded by the clerk; provided, that the amount assessed as advantages to the applicant under sub. (3) is paid to the town treasurer before the order laying out such highway shall be filed with the register of deeds for the county in which the land is located.

214,67 Section 67. 80.13 (4m) of the statutes is renumbered 82.27 (5) and amended to read:

82.27 (5) Charging costs to the applicant. The following costs may be assessed If the town board grants the application, the items listed in pars. (a) to (d) may be included in the determination of advantages. If the town board denies the application, 50 percent of all of the following may be charged to the applicant as a special charge under s. 66.0627:

(a) Attorney fees reasonably incurred by the town under subs. (3) and (4).

(b) The cost of any survey or the fee of any expert on valuation, or both, reasonably incurred by the town under subs. (3) and (4).

214,68 Section 68. 80.13 (5) of the statutes is renumbered 82.27 (6) and amended to read:

82.27 (6) Real estate landlocked by sale. Whenever a parcel In a town, if the owner of land in any town which that is accessible, or that is provided with a right-of-way an easement to a public highway, is subdivided and the owner subdivides and transfers any part of the subdivided parcel by metes and bounds that would otherwise be shut out from all public highways by reason of being surrounded on all sides by real estate belonging to other persons or by real estate belonging to other persons and by water without an adequate right-of-way to a public highway, the seller land, the owner shall provide a cleared right-of-way easement at least 50 66 feet in width that shall be continuous from the highway to the part of the subdivision sold. In case If the seller fails to provide the required right-of-way easement, the town board may, pursuant to proceedings under this section, lay out a road at least 66 feet wide from the inaccessible land to the public highway over the remaining lands of the seller without assessment of damages or compensation to the seller.

214,69 Section 69. 80.14 of the statutes is renumbered 82.27 (7) and amended to read:

82.27 (7) Highway from shut-off land through Laying out a highway to an adjoining town. When the owner of land that is shut out from all highways by being surrounded by lands belonging to other persons, and If it is impracticable to lay out a road from that owner's land to a public highway to an existing highway that is in the town where the land is situated, and it is practicable to lay out a highway from said land a landowner may apply to have a highway laid out to a highway in an adjoining town, that owner may. The application shall comply with the requirements of sub. (2), except that the affidavit shall also state that it is impracticable to lay out a new highway to an existing highway in the town where the land is located and that it is practicable to lay out a highway to an existing highway in the adjoining town. The owner shall execute an affidavit the application in duplicate and present one copy to a supervisor the clerk of the town where the land is situated located and one copy to a supervisor the clerk of the town where the proposed highway is to be laid out. The affidavit shall set forth the facts above stated, together with the facts required in the affidavit provided under s. 80.13. The supervisors of the 2 towns town boards shall proceed as provided under said s. 80.13 in this section, except that all orders and notices shall be signed by the supervisors of both boards, and all papers required to be filed shall be made in duplicate and filed with each town clerk. The applicant shall pay the amount assessed determined as advantages to the applicant shall be paid by the applicant to the town treasurer of the town where in which the applicant's land is situated before the order laying out the highway is filed, and all within 30 days of the decision. The order shall be recorded within 10 days of payment. All damages assessed shall be paid by the town where the applicant's land of the applicant is situated.

214,70 Section 70. 80.15 (title) of the statutes is renumbered 82.27 (8) (title).

214,71 Section 71. 80.15 of the statutes is renumbered 82.27 (8) (a) and amended to read:

82.27 (8) (a) The owner of an island in the bottoms of the Mississippi River which may submit an application under this section if the island is shut out from the bank of said the river and from a all highway access by islands and, sloughs, and by the lands of others, and a right-of-way through the same cannot be purchased the owner cannot purchase any highway access at a reasonable price, may present to the supervisors of the town.

(b) The application shall describe the affected land and shall contain an affidavit setting forth such that recites the facts and describing that owner's land. The said supervisors shall then proceed according to the provisions of s. 80.13 and the provisions of said section shall apply to proceedings under this section. in par. (a).

(c) The town shall not be liable for want lack of repair or for defects in any a highway laid out pursuant to this section subsection, nor shall the town be liable for any accident or injury thereon on a highway laid out under this subsection.

Note: Section 82.27 (1) through (7) is based on current ss. 80.13 and 80.14.

In s. 82.27 (4) (c), there is new language specifying that a turnaround, if necessary, should be constructed on the applicant's land. The special committee decided that this was a fair way to distribute the displacement of the highway. Since the applicant's land is primarily being benefited, the special committee felt it would be unfair to the landowner whose land is being taken, to construct a turnaround on the taken land as well.

In s. 82.27 (3), the width of roads has been changed. Current s. 80.13 (3) (a) requires the road to be between 33 and 49.5 feet wide. New s. 82.27 (4) requires a newly laid out road to be at least 66 feet wide.

In s. 82.27 (5), administrative costs and per diems were added as costs that could be charged to the applicant, and the language was changed to allow only half of these costs to be charged to the applicant when the application is refused.

Section 82.27 (7) and (8) (c) add a time requirement for when the applicant must pay the advantages. Current ss. 80.13 (4) and 80.14 only require the applicant to pay the amount determined as advantages before the order is filed. Current s. 80.07 (1) states that a failure to file an order within 10 days of the board's decision is deemed a refusal of the application. In Northern States Power Company v. Town of Hunter, 57 Wis. 2d 118, the Wisconsin Supreme Court stated that the 10-day limitation should apply to s. 80.14 to prevent the landowner whose land is taken from being in limbo as to whether the land would actually be taken. Since the special committee deleted the 10-day limitation in current s. 80.07 (1), the special committee decided there needed to be a time limit in new s. 82.27 (7) and (9) (c). New s. 82.27 requires the applicant to pay the advantages within 30 days; the order shall be recorded within 10 days of payment.

Section 82.27 (8) is based on current s. 80.15. No substantive change is intended.

214,72 Section 72. 80.16 of the statutes is renumbered 82.13 and amended to read:

82.13 Shut-off Highways to school buildings; how laid. Whenever Upon being notified that a public school in any a town is shut off from all public highways lacks highway access, the supervisors of the town board shall lay out a highway to the site thereof public school, using the procedures in this subchapter. No application for such the highway shall be necessary , but in every other respect the procedure for laying out an ordinary town highway shall be pursued. No highway shall be discontinued when the effect of such discontinuance shall be to exclude a public school from access to the public highways. Section 80.22 82.12 (3) shall not apply to proceedings under this section.

214,73 Section 73. 80.17 (title) of the statutes is repealed.

214,74 Section 74. 80.17 of the statutes is renumbered 82.12 (1) and amended to read:

82.12 (1) Any order of the town supervisors laying out, altering, widening or discontinuing any highway, or refusing so to do, is subject to judicial review under s. 68.13, except that only a person aggrieved by the order or determination may seek review. Failure of the supervisors to file their decision upon A town board shall make a determination upon any application or resolution to lay out, alter, widen or discontinue any highway within 60 90 days after receipt of the application is made shall be deemed a refusal of the application. In case of highways upon a line between 2 counties the appeal may be made to the circuit court of either county or introduction of a resolution.

214,75 Section 75. 80.22 (title) of the statutes is repealed.

214,76 Section 76. 80.22 of the statutes is renumbered 82.12 (3) and amended to read:

82.12 (3) The determination refusing to lay out, alter, widen or discontinue any not to issue a highway order shall be final, unless appealed from, for the term of one year after the making of such determination; and no other . No application for laying out, widening, altering or discontinuing any such to lay out, alter, or discontinue a highway shall be acted upon filed within said term of one year from the date of a determination not to issue a highway order covering the highway or portion of the highway covered in the refused application.

Note: The time limit in new sub. (1) for acting on an application or resolution has been increased from 60 to 90 days. The committee decided that it was more practical to allow 90 days. In addition, the language requiring the town to incorporate the order into its official map is new.

214,77 Section 77. 80.23 (title) of the statutes is renumbered 82.20 (title).

214,78 Section 78. 80.23 (1) of the statutes is renumbered 82.20 (1) and amended to read:

82.20 (1) Whenever pursuant to this chapter any highway is laid out, widened or altered If the town board issues an order to lay out or alter a highway through enclosed, cultivated, or improved lands and the determination has not been appealed from, the town board or highway authorities superintendent shall give the owner or occupant of the lands through which the proposed highway will pass written notice of its, his, or her intent to remove the fences located on the highway within a time determined by the highway authorities to be reasonable, but in the path of the new or altered highway. The notice shall state when the town board or highway superintendent intends to remove the fences, which shall not be less than 30 days after giving from the date on which the notice was given to the owner or occupant. If the owner or occupant does not remove the fences within before the time required by stated in the notice, the town board or highway authorities superintendent shall remove the fences and direct the highway to be opened. If the determination has been appealed from, may charge the landowner for the costs of the removal under s. 66.0627.

(2) The notice under sub. (1) shall be given after the final decision of the not be sent until the time for filing an appeal under s. 82.15 has expired and no appeal was taken or until all appeals under s. 82.15 have been brought to a final determination.

Note: Language was added in new sub. (1) to allow the town to charge the landowner for the removal of the landowner's fences.

214,79 Section 79. 80.23 (2) of the statutes is renumbered 82.20 (3) and amended to read:

82.20 (3) This section does not authorize the opening of a highway through enclosed, cultivated, or improved lands or the removal of fences between May 15 and September 15, except in cases of emergency to be determined by the highway authorities town board.

214,80 Section 80. 80.24 to 80.30 of the statutes are repealed.

Note: The special committee decided to eliminate the provisions for acquiring land in chs. 80 and 81 in favor of requiring the town to utilize the procedures under s. 32.05. As a result, the following provisions were not carried over into this bill: ss. 80.09, 80.10, 80.30 (1), and 80.24 through 80.29.

214,81 Section 81. 80.31 (title), (1) and (2) of the statutes are repealed.

214,82 Section 82. 80.31 (3) of the statutes is renumbered 82.14 (2) and amended to read:

82.14 (2) In case any If lands taken acquired by contract or condemnation for highway purposes shall be are encumbered, and the owners of the fee and of the encumbrance shall do not agree upon the division to be made between them on the allocation of any damages to be paid on account of such due to the taking, said the damages may be paid to the clerk of the circuit court of the county, and when so paid may be apportioned among the parties entitled thereto by said court upon in which the land is located. Upon the application of any party interested party and upon not less than 5 days' written notice to the other party, the court may apportion the damages paid to the clerk among the parties.

Note: New s. 82.14 (2) is based on current s. 80.31. The language from current s. 80.31 (3) was modified to eliminate the reference to condemnation because ch. 32 has provisions to deal with where and when money is paid.

214,83 Section 83. 80.32 (title) of the statutes is renumbered 82.19 (title) and amended to read:

82.19 (title) Discontinuance of highways ; reversion of title.

214,84 Section 84. 80.32 (1) of the statutes is renumbered 82.19 (1) and amended to read:

82.19 (1) Any An unrecorded road highway, or any part thereof which of an unrecorded highway, that has become or is in the process of becoming a public highway by user in any town may be discontinued in the manner hereinbefore provided using the procedures under ss. 82.10 to 82.12. Any proceedings taken therefor to discontinue an unrecorded highway shall not be evidence of the acceptance at any time by the town of such road the highway or any part thereof of the highway.

214,85 Section 85. 80.32 (2) of the statutes is renumbered 82.19 (2) (a) and amended to read:

82.19 (2) (a) Except as provided in sub. (5), every Every highway shall cease to be a public highway at the expiration of 4 years from the time date on which it was laid out, except such the parts thereof as shall of the highway that have been opened, traveled, or worked within such that time, and any.

(b) 2. Any highway which shall have that has been entirely abandoned as a route of vehicular travel, and on which no highway funds have been expended for 5 years, shall be considered discontinued.

Note: The special committee had lengthy discussions about what to do with current s. 80.32 (2). The special committee finally decided to retain the provision, but to modify it so that it is limited to vehicular travel. The intent is to exclude the use of a road for hiking or berry picking as a means of keeping a highway open.

214,86 Section 86. 80.32 (3) of the statutes is renumbered 66.1005 (1) and amended to read:

66.1005 (1) When any highway shall be or public ground acquired or held for highway purposes is discontinued the same, the land where the highway or public ground is located shall belong to the owner or owners of the adjoining lands; if it shall be. If the highway or public ground is located between the lands of different owners, it shall be annexed to the lots to which it originally belonged if that can be ascertained; if not it. If the lots to which the land originally belonged cannot be ascertained, the land shall be equally divided between the owners of the lands on each side thereof of the highway or public ground.

214,87 Section 87. 80.32 (4) (a) (intro.) of the statutes is renumbered 66.1005 (2) (a) (intro.) and amended to read:

66.1005 (2) (a) (intro.) Whenever any public highway or public ground acquired or held for public purposes has been vacated or discontinued, any all easements and rights incidental thereto acquired by or belonging to the easements that belong to any county, school district, town, village or, city or to any, utility, or person and relating that relate to any underground or overground structures, improvements, or services and all rights of entrance, maintenance, construction, and repair of the structures, improvements, or services shall continue, unless one of the following applies:

214,88 Section 88. 80.32 (4) (a) 1. and 2. of the statutes are renumbered 66.1005 (2) (a) 1. and 2.

214,89 Section 89. 80.32 (4) (b) of the statutes is renumbered 66.1005 (2) (b).

214,90 Section 90. 80.32 (4) (c) of the statutes is renumbered 66.1005 (2) (c) and amended to read:

66.1005 (2) (c) Damages for the discontinuance of the easements and rights described in par. (a) shall be assessed against the land benefited in the proceedings for assessment of damages or benefits upon the vacation or discontinuance of the public highway or public ground. The Unless the parties agree on a different amount, the amount of the damages shall be the present value of the property to be removed or abandoned, plus the cost of removal, less the salvage value of the removed or abandoned property, or any other amount that may be agreed upon between the interested parties. The owner of the easements and incidental rights, upon application to the treasurer and upon furnishing satisfactory proof, shall be entitled to any payments of or upon the assessment of damages.

214,91 Section 91. 80.32 (4) (d) of the statutes is renumbered 66.1005 (2) (d).

214,92 Section 92. 80.32 (5) of the statutes is renumbered 82.19 (2) (c) and amended to read:

82.19 (2) (c) Subsection (2) This subsection does not apply to state or county trunk highways or to any highway, street, alley, or right-of-way that provides public access to a navigable lake or stream.

214,93 Section 93. 80.33 of the statutes is renumbered 82.17 and amended to read:

82.17 Highway papers, where filed. All applications, orders, awards, bonds, and other papers relating to the laying out, altering, widening or discontinuing of highways under this chapter shall be promptly filed in the office of the town, city, or village clerk where the highway is located, except as otherwise specifically provided in this chapter.

Note: Currently, under ch. 80, orders must be filed with the town, city, or village clerk. This bill requires orders to be filed with the register of deeds. New s. 82.17 is intended to cover all documents other than the highway order.

214,94 Section 94. 80.34 (title) of the statutes is renumbered 82.16 (title).

214,95 Section 95. 80.34 (1) of the statutes is renumbered 82.16 (1) and amended to read:

82.16 (1) Every order of the supervisors or the supervisors and commissioners or of the county board or a committee thereof laying out, widening, altering , or discontinuing any a highway, or under this chapter, and any order restoring the records thereof, and the order of any commissioners reversing or affirming the same on appeal, and the record or certified copy thereof record of a highway, shall be presumptive evidence of the facts therein stated and of the regularity of all the proceedings prior to the making of such the order.

214,96 Section 96. 80.34 (2) of the statutes is renumbered 82.16 (2) and amended to read:

82.16 (2) The validity of any such an order described in sub. (1), if fair on its face shall, is not be open to collateral attack, but may be tested by certiorari or other proper action or proceeding brought directly for that purpose if commenced within the time after the order is made provided by s. 893.73 (2) challenged in an action brought under s. 82.15.

Note: Current s. 80.34 provides a time frame for challenging an order that is different from current s. 80.17. In this bill, the time frame under current s. 80.34 has been eliminated.

214,97 Section 97. 80.35 of the statutes is repealed.

214,98 Section 98. 80.37 of the statutes is renumbered 82.33 and amended to read:

82.33 Lost records; how restored; effect. (1) Whenever the record of the laying out of any highway is has been lost or destroyed, the supervisors board of the town in which the highway is located, upon notice being served on all interested parties in accordance with s. 80.05 82.10 (4), may make a new record of the highway. The notice shall fix state the time when and the place where the supervisors board will decide upon making whether to make the new record. The notice shall specify as near as may be contain a legal description of the highway for which the proposed record will be made and a scale map of the land that would be affected. Notice need not be given to persons who waive the notice or consent to the making issuance of the order either before or after it is entered.

(2) The supervisors shall meet pursuant to the notice given under sub. (1) and hear any arguments or evidence that may be offered for or against At the time and place stated in the notice, the town board shall hold a public hearing regarding the proposed new record, and shall make a new record as they consider it considers proper. The supervisors may adjourn from time to time, and an entry of each adjournment shall be made in the record by the town clerk. If the supervisors find board finds that the highway is a legal highway, the record of which is has been lost or destroyed, they the board shall make issue a written order stating those facts and specifying the course, width, and other pertinent description of the highway. The order shall be filed and recorded in the office of with the town clerk, who shall note the time of recording the order in the record and recorded in the office of the register of deeds for the county in which the highway is located. Any number of highways may be included in one notice or order under this section. A failure or refusal to make a new record for any highway does not preclude a subsequent proceeding for that purpose.

(3) Any person through whose land a highway described in an order entered filed under sub. (2) passes may appeal from the order under s. 82.15 on the ground grounds that the highway described in the order was not a legal highway in fact. The appeal shall be made in the time and manner provided for appealing from orders laying out highways, and proceedings shall be had on the appeal as in case of appeals from orders laying out highways. No person may call into question the regularity of proceedings under this section except owners of land on whom notice should have been served but in fact was not and persons claiming under those owners.

Note: The contents of the notice and who must be served with notice have been changed to be consistent with the rest of the new ch. 82. Current s. 80.37 requires that the notice specify the highway "as near as may be" and that the notice be served on all interested parties. New s. 82.33 requires the notice to contain a legal description and scale map. In addition, the notice must be served on the parties specified in new s. 82.10 (4).

214,99 Section 99. 80.38 to 80.40 of the statutes are repealed.

214,100 Section 100. 80.41 of the statutes is renumbered 66.1006 and amended to read:

66.1006 Discontinuing ways to waters Department of natural resources approval of discontinuance. No resolution, ordinance, order, or similar action of any a town board or county board , or of a committee thereof of a town board or county board, discontinuing any highway, street, alley, or right-of-way that provides public access to any navigable lake or stream shall be effective until such resolution, ordinance, order, or similar action is approved by the department of natural resources.

Note: No substantive change is intended, however, the special committee decided this provision was more appropriately placed in ch. 66.