DNE
STATE OF WISCONSIN
DEPARTMENT OF JUSTICE
J.B. VAN HOLLEN
ATTORNEY GENERAL
Raymond P. Taffora
Deputy Attorney General
114 East, State Capitol
P.O. Box 7857
Madison, WI 53707-7857
608/266-1221
TTY 1-800-947-3529
June 22, 2010 OAG—3—10
ReStartCorporation Counsel
Oneida County
Post Office Box 400
Rhinelander, WI 54501-0400 BodyStart¶ 1. You advise that Oneida County has contracted with the North Central Wisconsin Regional Plan Commission to assist in developing a comprehensive plan for the county. You state that the county board has adopted a resolution that requires the county’s comprehensive plan to adopt and incorporate the comprehensive plans that have been adopted by the towns within the county. BACKGROUND
¶ 2. You indicate that instead of adopting a comprehensive plan, three towns have sent a document entitled “Notice of Coordination” to the county. Each notice states that the town “has invoked its authority to coordinate with federal, state, and local governments, and agencies regarding planning to benefit the citizens within its jurisdiction.” A resolution adopted by each town cites various federal and state statutes, including Wis. Stat. §§ 1.13, 16.023(1)(c), 16.965, 16.967, and 560.04, as well as other legal authority. Each resolution then states that the town is “invok[ing] . . . [its] legal standing and authority to coordinate with, and insist on coordination by, all State and federal agencies and units of government claiming jurisdiction over lands and/or resources located within the jurisdiction of the [t]own . . . pursuant to the federal and state acts recited above[.]” Each resolution concludes that “the land use plan adopted pursuant to this Resolution shall be a dynamic, continuously evolving plan requiring periodic review, assessment, and amendment in coordination with all agencies and units of federal and State government in relation to which the Town invokes coordination pursuant to this Resolution . . . and the federal and state statutes recited herein.” ¶ 3. The resolutions adopted by these towns were apparently the product or result of a February 2, 2009, written solicitation, which states in part as follows:
You have indicated interest in the coordination method of land use planning as an alternative to creating a “comprehensive” plan as outlined in Wisconsin statute 66.1001.
After extensive study of the issues it has been determined that a coordination plan can be created that offers compliance with the goals of that statute with strong emphasis on intergovernmental relations while maintaining local control.
A major component in adopting coordination is the ability to engage and control the creation, adoption, and implementation of your planning process. Under the existing federal and state statutes, after proper adoption, your municipality will have the on going [sic] authority to;
1. Require early notification (prior to public notice) to the local government of all actions or plans of the federal or state agencies that will affect local units of government, its [sic] economy, or environment.
2. Grant an opportunity for meaningful input by the local government, which means input that has substance and given [sic] weight and meaning by the agency.
3. Require agencies of all levels of government to be apprised of any local government policy or plan.
4. Those agencies/governments are required to consider the local government policy or plan when working on a municipal county, state, or federal policy or plan or management action.
5. And, most importantly, the agency or level of government is required to make all practicable effort to make their [sic] policy, plan, or action consistent with your local policy or plan.[]
It is the “consistency” requirement that gives teeth to coordination. Other levels of government and their agencies cannot listen and then ignore the position of the local government. It [sic] must make every practicable effort to make its action, policy, or plan “consistent” with that of local government.
. . . .
We will be using the consulting services of . . . [a] legal consultant to local governments which have adopted the process which he researched and developed [sic] the strategy.
In order for us to consult in guiding you through the first three steps of the adoption and implementation of your resolution process the costs are a fee of $1500 plus mileage at the current government rate and any out of pocket expense. If you wish for us to consult on the additional steps, four through eight, we will be happy to provide service for any or all those steps at a rate of $50.00 per hour plus mileage and out of pocket expenses.
If you wish to proceed we have provided an Indemnification and Hold Harmless Agreement.
QUESTIONS PRESENTED AND BRIEF ANSWERS
¶ 4. You ask two questions with subparts, which I have renumbered and reworded as follows:
1. Does the use of the word “coordination” in various Wisconsin statutes dealing with municipal planning by itself impose affirmative duties upon certain municipalities that are in addition to any other affirmative obligations that are imposed under those statutes?
¶ 5. In my opinion, the answer is no. Towns have only those powers delegated by statute, and the Wisconsin municipal planning statutes do not contain a “coordination” power that would allow a town to ignore its own statutory obligations or impose non-statutory obligations on other municipalities or units of government. Other statutes cited in the coordination resolutions described in your correspondence do not give rise to a “coordination” power.
1(a). If the use of the word “coordination” in various municipal planning statutes can by itself result in the imposition of additional affirmative duties upon certain municipalities, does a town need to take some form of action in order to compel other municipalities to perform those additional duties, what are those additional duties, and are those additional duties similar to the duties imposed upon the Secretary of the Interior by the Federal Land Policy and Management Act of 1976 § 202, 43 U.S.C. § 1712(c)(9) (2006)?
¶ 6. Because of my answer to your first question, it is unnecessary for me to directly address this question.
1(b). If the use of the word “coordination” in municipal planning statutes can by itself result in the imposition of additional affirmative duties upon certain municipalities, which municipal duties must be coordinated with a town that has invoked its authority to compel other municipalities to perform such additional duties?
¶ 7. Because of my answer to your first question, it is unnecessary for me to address this question.
2. If “coordination” is a power that can be invoked by a municipality, can that power be used to create a “coordination plan” instead of a comprehensive plan for that town as specified in Wis. Stat. § 66.1001? If a “coordination” plan can be adopted, does a town lose or gain any particular privileges with a “coordination” plan?
¶ 8. Because “coordination” is not a power that can be invoked by a municipality, it is unnecessary to address this question.
