2003 Wisconsin Act 214

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.

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).