[{"id":9650,"type":"publications","status":"publish","title":"PSCW Approves MGE Middleton Solar Project","title_plain":"PSCW Approves MGE Middleton Solar Project","content":"
\n

After reviewing supplemental information provided by Madison Gas & Electric Company (MGE) following its initial review in January, the Public Service Commission of Wisconsin gave the company a green light to move forward on its 500 kW community solar project at the Commission\u2019s March 11th open meeting.<\/p>\n

In response to the Commission\u2019s concerns about potentially discriminatory restrictions on project participation, MGE agreed to make solar subscriptions available to all its Middleton residential retail customers, including those who are already receiving solar energy through rooftop installations. Addressing the Commission\u2019s skepticism about ratepayer benefits associated with the leasing of Middleton\u2019s Police Station rooftop for a 100 kW solar installation related to the project, MGE agreed to seek Commission approval in future rate cases before including the police station portion of the project in its electric rate base.<\/p>\n

MGE also provided additional information to the Commission on the system-wide benefits purportedly associated with the project\u2019s use of so-called smart inverters, the costs of which the company is at least in part proposing to include in the rates of non-solar users. The inverters are designed to smooth out intermittent power flow, gather usage data, and protect the reliability of MGE’s electric distribution system. The Commission agreed with MGE that potential cross subsidies caused by under-enrollment in the project could be controlled by the Commission through sales forecasts, as long as MGE provides projected sales information in future rate cases so that adjustments could be considered.<\/p>\n

The Commission\u2019s approval of the project is thought by many industry stakeholders to be a potential boon to community solar development because MGE\u2019s project model differs from existing solar pilot projects previously approved by the Commission. The community solar tariffs approved for Northern States Power-Wisconsin (NSPW) and WPPI Energy (WPPI), for example, employ customer bill credits as a financing mechanism. MGE\u2019s Middleton project instead requires interested customers to pay an initial nonrefundable subscription fee equivalent to about 10% of the project\u2019s overall cost (approximately $189 per kW) and a levelized annual solar rate of $.12 per kWh over the 25-year life of the project for the customer’s share of the solar energy produced from the project.<\/p>\n

In contrast to NSPW and WPPI, MGE is also proposing to own and operate the project rather than rely on a third-party developer, meaning that MGE will be providing a dedicated renewable resource for a specific group of customers willing to pay slightly higher rates for green energy. However, MGE projects that its Middleton solar project participants will see economic benefits in about 17 years since the fixed solar rate will act as a hedge against rising retail rates, which MGE projects will increase by about 3% per year. Participants will also receive a 50% reduction in the transmission service charge for PV production, representing the avoidance of transmission costs associated with interconnecting a large scale solar installation directly into MGE\u2019s distribution system.<\/p>\n

MGE is making participation available to customers in 250 watt increments and expects about 250 customers to enroll. The city of Middleton still needs to review and approve the project. More information about the project will be available after May 1. The city of Middleton has a goal of 25% renewable energy by 2025.<\/p>\n

\u2014 Richard A. Heinemann<\/a><\/p>\n<\/div>\n

\n

New Legislation Expands Issuance of Search Warrants to Noncriminal First Offense OWIs<\/span><\/p>\n

On February 29, 2016, Governor Walker signed 2015 Wisconsin Act 183, which expands the use of search warrants in noncriminal drunk driving cases. Act 183 allows a court, upon a finding of probable cause, to authorize a search warrant that allows law enforcement officers to search and seize anything that is the fruit of, or has been used in, the commission of a crime or of a civil violation for operating a motor vehicle with a prohibited alcohol concentration or while under the influence of an intoxicant, controlled substance, controlled substance analog, or any combination thereof.<\/p>\n

Act 183 adds the following italicized language to Wis. Stats. \u00a7\u00a7 968.13(1)(b) and 968.13(1)(c):<\/p>\n

968.13 Search warrant; property subject to seizure.<\/p>\n

(1) A search warrant may authorize the seizure of the following:<\/p>\n

***<\/p>\n

(b) Anything which is the fruit of or has been used in the commission of any crime or of a violation of s. 346.63 or a local ordinance in conformity therewith. <\/span><\/p>\n

(c) Anything other than documents which may constitute evidence of any crime or of a violation of s. 346.63 or a local ordinance in conformity therewith.<\/span><\/p>\n

Before the changes, search warrants could be authorized only for evidence related to crimes. Now, search warrants may be authorized for evidence related to crimes and non-criminal OWIs.<\/p>\n

The changes were likely in response to the United States Supreme Court\u2019s April 17, 2013 decision in Missouri v. McNeely, <\/span>113 S. Ct. 1552 (2013).<\/span> The issue in McNeely<\/span> was whether police could perform a warrantless blood draw in all OWI cases, including noncriminal cases, where there is a refusal. The Court held that police need a search warrant for the blood unless they can show the existence of exigent circumstances beyond the rate of alcohol absorption. The Court\u2019s decision had important implications in Wisconsin, where the Bohling<\/span> rule had been in place for approximately 20 years. Bohling<\/span> allowed for warrantless forced blood draws in all OWI cases where a defendant refused to take a test. The Court\u2019s ruling makes Bohling<\/span> inapplicable and mandates that police obtain search warrants in cases involving blood draws.<\/p>\n

Act 183\u2019s changes apply to offenses occurring on or after March 2, 2016.<\/p>\n

\u2014 Kate A. Harrell<\/a><\/p>\n

Current Status of EPA’s Clean Power Plan<\/span><\/p>\n<\/div>\n

\n

President Obama\u2019s signature climate initiative, the Clean Power Plan, has been headline news lately. Broadly, the Clean Power Plan is an effort to accelerate the transition away from coal and toward more \u201cclean\u201d sources of energy. Under the plan, the Environmental Protection Agency (EPA) established national targets for the reduction of greenhouse emissions, gave each state a target, and instructed the states to come up with plans to achieve those reductions. Those plans are mostly expected to involve improving efficiency and using more natural gas and renewables rather than fossil fuels.<\/p>\n

The legality of the Clean Power Plan had been challenged by a coalition of state opponents, led by West Virginia. The lawsuit is currently pending in front of the D.C. Circuit Court of Appeals. The opponents asked the D.C. Circuit to issue a stay, halting implementation of the Clean Power Plan until a final ruling in the case. When the D.C. Circuit refused, the opponents filed a motion with Supreme Court Chief Justice John Roberts asking the Supreme Court to issue the stay instead. In an unprecedented move, the Supreme Court voted 5 to 4 to issue the stay, prohibiting the EPA from taking actions to implement or enforce the Clean Power Plan pending the resolution of the court case. Although the Supreme Court sometimes grants stays of laws and regulations in cases pending before the Court, it had never before imposed a stay on a regulation pending in front of a Court of Appeals.<\/p>\n

The case is scheduled for oral arguments in front of the D.C. Circuit on June 2nd. Court commentators expect that the D.C. Circuit will look favorably upon the Clean Power Plan, but the 5-4 vote in the Supreme Court in favor of the stay is at least some indication that the justices of the highest court would vote to invalidate the Clean Power Plan on that same 5-4 margin.<\/p>\n

But the death of Supreme Court Justice Antonin Scalia is likely to change the ultimate outcome of the legal battle. Justice Scalia was well-known for a number of opinions critical of EPA regulations and he was widely expected to be one of the five Justices to vote against the Clean Power Plan. With his seat vacant, the Court is much more likely to split evenly when ruling on the Clean Power Plan. When the Supreme Court splits evenly, the decision of the lower court (here, the D.C. Circuit, likely to rule in favor of the Clean Power Plan) remains the law of the land, and it is as if the Supreme Court had never taken the case.<\/p>\n

As a practical matter, the stay means that the EPA is prohibited from taking actions to implement or enforce the Clean Power Plan pending the resolution of the case. In a symbolic move, Governor Walker has also issued an executive order prohibiting state agencies from developing a plan to comply with the Clean Power Plan. For utilities, however, the stay is unlikely to have much of an impact. Larger market forces such as steadily decreasing prices of natural gas and renewable energy, coal retirements, and new business models are pushing utilities in the direction of reducing emissions regardless of the specific requirements of the Clean Power Plan.<\/p>\n

\u2014 Julia K. Potter<\/a><\/p>\n<\/div>\n

\n

Nonprofit Rescue Squad Entitled to Notice of Wrongful Death Claim<\/span><\/p>\n

An estate making a wrongful death claim against Hazel Green Rescue Squad, Inc. must provide the Rescue Squad with notice of claim under Wisconsin\u2019s municipal notice of claim statute, the Court of Appeals recently held in Estate of Clarence Collins v. Hazel Green Rescue Squad, Inc. et al<\/span>, Appeal No. 2015AP1018, decided March 3, 2016.<\/p>\n

Hazel Green Rescue Squad is a nonprofit organization that uses volunteer drivers to provide ambulance services for a group of neighboring municipalities. Each participating municipality pays a portion of the organization\u2019s equipment and operating costs in exchange for receiving ambulance service.<\/p>\n

In October of 2012, a resident of one of the municipalities served by the Rescue Squad was killed after the ambulance that was transporting him to the hospital rolled over and threw him into a ditch. His estate filed a wrongful death action against the Rescue Squad in May of 2014. The Rescue Squad moved for summary judgment, arguing that the estate had failed to provide notice of the wrongful death claim within the period required by Wisconsin\u2019s municipal notice of claim statute, Wis. Stat. \u00a7 893.80. The court agreed, and ruled in favor of the Rescue Squad.<\/p>\n

Wisconsin law provides that claims against a municipality based on the negligent operation of a municipal motor vehicle are subject to the municipal notice of claim requirements found in Wis. Stat. \u00a7 893.80. Under the notice of claim statute, claimants must provide written notice of the circumstances of the claim within 120 days of the event giving rise to it. If such notice is not provided, the claim is generally barred.<\/p>\n

The estate argued that Hazel Green Rescue Squad is not a political corporation or governmental subdivision entitled to notice under the statue because nothing in its articles of incorporation indicates that it has a political or public purpose or requires its directors to be elected officials or represent member municipalities. The Rescue Squad disagreed, arguing that it is not a private entity for purposes of the notice of claims statute, but rather a political corporation or governmental subdivision of the municipalities it serves.<\/p>\n

The court relied on the definition of \u201cmunicipality\u201d in the statute governing municipal liability for motor vehicle accidents, which includes commissions formed by contract under Wisconsin\u2019s intergovernmental cooperation statute, Wis. Stat. \u00a7 66.0301. Under the intergovernmental cooperation statute, which courts interpret liberally, a municipality may contract with other municipalities \u201cfor the receipt or furnishing of services or the joint exercise of any power or duty required or authorized by law.\u201d Because municipalities are authorized to provide ambulance services, and neighboring municipalities organized and maintained Hazel Green Rescue Squad to do just that, the court held that the Rescue Squad was an intergovernmental organization and therefore a \u201cmunicipality\u201d entitled to notice of the Estate\u2019s wrongful death claim.<\/p>\n

\u2014 Julia K. Potter<\/a><\/p>\n<\/div>\n

 <\/p>\n","excerpt":"

PSCW Approves MGE Middleton Solar Project Continue reading →<\/span><\/a><\/p>\n","date":"2016-04-05 10:32:58","categories":[{"id":35,"slug":"municipal-newsletter","title":"Municipal Newsletter","description":"","parent":32,"post_count":41},{"id":12,"slug":"energy-telecom","title":"Energy & Telecom","description":"","parent":3,"post_count":43},{"id":91,"slug":"local-government","title":"Local Government","description":"","parent":3,"post_count":35},{"id":42,"slug":"public_utility","title":"Public Utility","description":"","parent":3,"post_count":41},{"id":44,"slug":"utility-law","title":"Utility Law","description":"Links to Energy & Telecom page.","parent":3,"post_count":28}]},{"id":9415,"type":"publications","status":"publish","title":"Litigating Excessive Force Cases Involving Police Officers","title_plain":"Litigating Excessive Force Cases Involving Police Officers","content":"

\n

Recently, the media has been flooded with stories involving excessive force claims by police officers. However, the media fails to address how these types of claims are litigated and judged by courts. There are several important standards that apply to nearly all excessive force claims.<\/p>\n

Most importantly, excessive force claims are judged by an objective reasonableness standard based on the totality of the circumstances. What does this? It means that the reasonableness of an officer\u2019s conduct is judged from the perspective of a reasonable officer at the scene. It is not judged from the actual officer\u2019s perspective. The question is whether the officer\u2019s actions are objectively reasonable in light of the facts and circumstances surrounding him or her, without regard to the officer\u2019s underlying intent or motivation.<\/p>\n

Because this standard requires an analysis of the facts and the inferences that can be drawn from them, it is difficult to convince a court to dismiss a lawsuit against an officer or police department at the summary judgment stage. This means that most excessive force cases are resolved by settlement or by a jury. That being said, courts still grant some leniency to police, understanding that \u201cofficers are often forced to make split-second judgments \u2013 in circumstances that are tense, uncertain, and rapidly evolving \u2013 about the amount of force that is necessary in a particular situation.\u201d Graham v. Connor<\/span>, 490 U.S. 386, 397 (1989).<\/p>\n

Because the reasonableness of an officer\u2019s use of force is a fact intensive inquiry, courts consider the following factors: (1) whether the suspect poses an immediate threat to the safety of others; (2) the severity of the underlying crime; (3) whether the suspect is actively resisting arrest or attempting to evade arrest by flight; (4) whether the suspect is incapacitated due to drugs, alcohol or mental illness, whether the officer knew this or should have realized this, and if so, whether the officer followed acceptable police practices in dealing with the incapacitated suspect; and (5) the officer\u2019s pre-seizure conduct leading up to the use of force.<\/p>\n

Deadly force is reasonable when there is an imminent danger to a third party. \u201cDeadly force may be used if the officer has probable cause to believe that the armed suspect (1) \u2018poses a threat of serious physical harm, either to the officer or to others,\u2019 or (2) \u2018committed a crime involving the infliction or threatened infliction of serious physical harm,\u2019 and is about to escape.\u201d Weinmann v. McClone<\/span>, 787 F.3d 444, 448 (7th Cir. 2015), citing Muhammed v. City of Chicago<\/span>, 316 F.3d 680, 683 (7th Cir. 2002).<\/p>\n

Applying these concepts, the Wisconsin Court of Appeals recently denied a motion for summary judgment that sought dismissal of an excessive force claim on the grounds that there were issues of fact surrounding the officer\u2019s conduct. In Wilson v. City of Kenosha<\/span>, 2015AP904, the plaintiff, Daniel Wilson, was arrested at his home for disorderly conduct. He had undergone back surgery nine days before his arrest. He alleged that he told the arresting officer that he had recently undergone \u201cmajor surgery.\u201d He further alleged that the arresting officer used excessive force against him when she (1) used one set of handcuffs, instead of two, to cuff his hands behind his back despite a complaint of pain; (2) dragged him to the police car; (3) violently pushed his chest causing him to topple onto the backseat of the police car; and (4) twisted his legs resulting in a loosening of the hardware in his back.<\/p>\n

Wilson testified that the officer\u2019s actions caused him so much pain that he blacked out for a couple of seconds. Another witness testified that the officer was very rough with Wilson despite the officer having been told that Wilson recently had surgery.<\/p>\n

Applying the objective reasonableness test discussed above, the court of appeals ruled in Wilson\u2019s favor by not dismissing the case. However, the court noted that Wilson did not appear to have a strong case.<\/p>\n

\u2014 Kathryn A. Harrell<\/a><\/p>\n<\/div>\n

\n

Cable Companies Fail to Convince PSC City\u2019s Pole Attachment Rates Hinder Broadband Deployment<\/span><\/p>\n

Cable companies, such as Time Warner and Charter Communications, have long been engaged in a state-by-state battle over the pole attachments rates charged by municipal electric utilities and electric cooperatives, entities which are exempt from the Federal Communications Commission\u2019s (\u201cFCC\u201d) rules governing pole attachment rates. Among their claims is that such entities have taken advantage of the exemption, charging much higher rates than what the FCC rules would allow. These higher rates, the cable companies claim, are a detriment to the deployment of broadband services.<\/p>\n

The chosen target in Wisconsin was the City of Oconomowoc, where Time Warner and Charter Communications were each paying less than $10,000 a year in pole attachment fees to the the City\u2019s electric utility. The two companies, along with the Wisconsin Cable Communications Association, brought a complaint before the Public Service Commission of Wisconsin (\u201cPSC\u201d or \u201cCommission\u201d), claiming that the City\u2019s pole attachment rates were unreasonable because they were several times greater than the roughly $4.00 rate the FCC rules would allow. At hearing, the cable companies\u2019 oft-used expert witness testified that the Commission should order the City to lower its rate to the FCC level because the City\u2019s rates were a roadblock to broadband deployment and were the result of the City\u2019s leveraging its \u201cmuch superior\u201d bargaining power.<\/p>\n

At its November 5, 2015 open meeting, all three Commissioners rejected the cable companies\u2019 request that the PSC impose the FCC rate. Commissioner Nowak rejected the cable companies\u2019 arguments with clear and unequivocal language, stating that she did \u201cnot believe the cable companies have demonstrated that the FCC compensation rate when compared to the City\u2019s methodology is reasonable based on the facts developed in this record.\u201d<\/p>\n

Commissioner Nowak went on to state that Oconomowoc\u2019s rate methodology \u201cmore fairly attributes the costs to attachers and ensures the City\u2019s electric customers are not subsidizing attachers.\u201d She also rejected the cable companies\u2019 claim that the City had exercised its monopoly power to charge excessive compensation. Commissioner Nowak also found unpersuasive the cable companies\u2019 public policy arguments that the FCC rate was necessary to facilitate broadband deployment, citing Oconomowoc\u2019s evidence that broadband penetration in the Oconomowoc area is over 99%.<\/p>\n

The Commission ultimately approved a rate methodology that would allow Oconomowoc to charge rates in the $10.00 to $12.00 range. The Commission\u2019s written decision is expected to be issued in early February.<\/p>\n

\u2014 Anita T. Gallucci<\/p>\n<\/div>\n

\n

Solar and Wind Energy Tax Credits Extended<\/span><\/p>\n

President Obama recently signed into law the 2016 Consolidated Appropriations Act, an omnibus bill that revised and extended both the wind and solar energy tax credits.<\/p>\n

The Business Energy Investment Tax Credit (ITC) allows commercial, industrial, and non-public utility taxpayers to claim a tax credit in the amount of 30% of the total qualified installed cost of a solar photovoltaic system. The ITC was set to decrease to 10% for projects placed in service beginning in 2017, but the Appropriations Act extended the credit through 2024, with a gradual phase out beginning in 2020. The Act also revised the ITC’s eligibility criteria so it is now based on when a project begins construction rather than when it is placed in service, allowing for more predictability in planning and financing solar projects.<\/p>\n

In addition, the Act extended the Renewable Electricity Production Tax Credit (PTC) for eligible wind projects, which had expired in 2015. The PTC extension applies retroactively to January 1, 2015 and allows companies that generate electricity using qualified energy resources (most notably wind) to take a tax credit of 2.3 cents per kilowatt-hour (kWh). To qualify for the full amount of the credit, construction on the project must begin before January 1, 2017, after which point the value of the credit will gradually decrease through 2020.<\/p>\n

These long-term extensions are a boon for the renewable energy industry, which had become accustomed to last-minute, shorter-term extensions of these and similar credits. The long-term extension of the ITC and PTC will make it easier for project developers to plan and finance large-scale wind and solar projects, and will provide a bridge for the expansion of renewable energy between now and the first set of deadlines for state compliance with the EPA’s Clean Power Plan in 2022.<\/p>\n

\u2014 Julia Potter<\/a><\/p>\n<\/div>\n

\n

PSCW Hits Pause Button on Innovative MGE Solar Tariff<\/span><\/p>\n<\/div>\n

\n

Citing concerns for rate payer fairness and setting accurate price signals, the Public Service Commission of Wisconsin (PSCW) has laid over a decision on an innovative community solar pilot project proposed by Madison Gas & Electric (MGE) in partnership with the City of Middleton (City).<\/p>\n

The MGE\/Middleton project contains several unusual features intended to enable MGE to build the facility as a dedicated resource on behalf of customers who want to invest in community solar, even if they cannot or, for whatever reason, do not want to put solar panels on their homes.<\/p>\n

Under the proposed plan, MGE would construct, own and operate a 500 kW solar facility located on the roof of the Middleton Municipal Operations Center. Interested customers would pay an upfront, non-refundable subscription fee representing ten percent of the estimated capital cost of the installation on a per-kW basis. Subscriptions would be limited to 3 kW, or half the customer\u2019s annual energy use, whichever is lower. Participating customers would then be charged a levelized \u201cCommunity Solar Rate\u201d of $.012\/kWh over the 25 year life of the project for their share of project output. Remaining energy needs would be charged out to customers at the standard retail rate, which is just under 10 cents per kWh.<\/p>\n

That means solar customers would initially pay more, but because the solar charge is fixed, it would act as a hedge against future tariff increases. Customers would also pay a reduced transmission charge to reflect the value of directly interconnecting a utility scale installation on MGE\u2019s distribution system. MGE estimates that the some 250 customers expected to participate in the project would see net positive benefits after seventeen years.<\/p>\n

The proposed tariff includes provisions to address under-subscription and customer movement within MGE\u2019s service territory.<\/p>\n

The project is also expected by MGE to provide overall system benefits, chiefly by equipping the installation with smart inverters designed to smooth out intermittent power flow, gather additional data for use in future solar projects, and provide ancillary services to the grid such as VAR support and voltage reduction. In recognition of such system benefits, MGE\u2019s proposal allocates half the cost of the inverters to MGE\u2019s other, non-participating customers.<\/p>\n

The product of extensive discussions between MGE and the City of Middleton to address the city\u2019s carbon reduction goals, the proposal also includes construction of a 100 kw solar array on the roof of the Middleton police department, which would provide approximately 25% of the building\u2019s annual energy usage. MGE\u2019s agreement with Middleton provides that the city would be able to purchase the array after a seven year initial term.<\/p>\n

At their January 21, 2016 open meeting, all three PSCW Commissioners lauded MGE\u2019s effort to bring forward an innovative program, and underscored their support for utility-owned renewable generation and community solar. However, while Commissioner Huebsch appeared ready to support MGE\u2019s proposal as filed, Commission Chair Ellen Nowak expressed significant misgivings, opining that the proposal\u2019s status as a pilot project did not mean that \u201canything goes.\u201d<\/p>\n

Noting that MGE\u2019s proposal differed from solar pilot tariffs previously approved for WPPI Energy on behalf of New Richmond City Utilities and River Falls Municipal Utilities, and for Northern States Power-Wisconsin — all of which employ a monthly bill credit for subscribing customers, rather than a long-term levelized charge, Commissioner Nowak singled out several features of MGE\u2019s proposal as potentially problematic.<\/p>\n

First, MGE did not adequately explain why the proposal would not discriminate against MGE customers who had already installed rooftop solar, since those customers would be ineligible to participate in the new program. Second, Commissioner Nowak raised concerns about MGE\u2019s quid pro quo<\/span> arrangement with the City of Middleton for the 100 kW array, and wondered whether the smart inverter would actually provide enough system benefits to warrant charging half its costs to non-participating MGE customers. Finally, Commissioner Nowak questioned the long payback associated with the $0.12\/kWh solar charge, suggesting the company had not yet adequately demonstrated that the rate would not result in cross-subsidization by non-participating MGE customers.<\/p>\n

Commissioner Montgomery agreed that a closer look was warranted given the precedent-setting nature of the project, and following a suggestion by Commissioner Huebsch, the Commission agreed to give MGE an additional thirty days to address Commissioner Nowak\u2019s concerns and ensure that the program\u2019s price signals are properly established and fair to all customers.<\/p>\n

Industry stakeholders, renewable energy advocates and interested observers have been following the proceeding because it represents an alternative path for utilities interested in developing utility-scale community solar. MGE will now have an additional 30 days to refine its proposal and address the Commission\u2019s concerns.<\/p>\n

\u2014 Richard A. Heinemann<\/a><\/p>\n<\/div>\n

\n

Boardman & Clark LLP Welcomes Attorney Eileen Brownlee<\/span><\/p>\n

Boardman & Clark LLP is pleased to announce that Eileen Brownlee has become a member of our firm. Eileen joins Boardman & Clark with an established practice and over 30 years of experience in the areas of municipal law, school law, and public sector employment law.<\/p>\n

Prior to joining Boardman & Clark, Eileen was the sole member of her firm, Kramer & Brownlee LLC, located in Fennimore, Wisconsin, where she has served cities, villages, school districts and other municipal corporations throughout the state of Wisconsin. Eileen has a wide practice that includes policy and ordinance drafting and implementation, labor negotiations, salary and benefit analyses, grievance and prohibited practice hearings, employee misconduct investigations, advice on employee improvement plans and performance evaluations, and analysis of and application of all major federal and state labor and employment statutes, including FMLA, ADA, ADEA and other discrimination laws. Eileen has received numerous recognitions for contributions to her practice areas, including the George Tipler Award for Distinguished Service in School Law from the Wisconsin School Attorneys Association (WSAA) and Fellowship of the Wisconsin Bar Foundation. Eileen is a 1984 graduate cum laude of Marquette University Law School. She will maintain her office in Fennimore.<\/p>\n<\/div>\n","excerpt":"

Lead: Litigating Excessive Force Cases Involving Police Officers Continue reading →<\/span><\/a><\/p>\n","date":"2016-02-04 17:22:21","categories":[{"id":35,"slug":"municipal-newsletter","title":"Municipal Newsletter","description":"","parent":32,"post_count":41},{"id":12,"slug":"energy-telecom","title":"Energy & Telecom","description":"","parent":3,"post_count":43},{"id":91,"slug":"local-government","title":"Local Government","description":"","parent":3,"post_count":35},{"id":44,"slug":"utility-law","title":"Utility Law","description":"Links to Energy & Telecom page.","parent":3,"post_count":28}]},{"id":9234,"type":"publications","status":"publish","title":"Employers Beware: Arrest and Conviction Record Discrimination","title_plain":"Employers Beware: Arrest and Conviction Record Discrimination","content":"

Most of us have done it. We have looked up co-workers or prospective employees on Wisconsin\u2019s Circuit Court Access website (CCAP) to learn about past criminal conduct. The CCAP website contains information from Wisconsin circuit courts, including information about arrests and convictions. In addition to CCAP, many employers utilize more formal background check services. What should you do if you have checked CCAP or obtained a background report for prospective employee that details past criminal conduct? Before you act on that concern, it is important that you understand Wisconsin\u2019s law with respect to the use of arrest or conviction records in hiring decisions. In general, Wisconsin\u2019s Fair Employment Act (\u201cWFEA\u201d) prohibits employers from discriminating against applicants or employees on the basis of his or her arrest or conviction record. Each case should be analyzed on a case-by-case basis and employers should not make a blanket rule they will not hire anyone with a criminal conviction.<\/p>\n

\n

What is an arrest record?<\/p>\n

\u201cArrest record\u201d is defined as information indicating that an individual has been questioned, apprehended, taken into custody or detention, held for investigation, arrested, charged with, indicted, or tried for any felony, misdemeanor, or other offense pursuant to any law enforcement or military authority. Wis. Stat. \u00a7 111.32(1).<\/p>\n

What is a conviction record?<\/p>\n

\u201cConviction record\u201d is defined as information indicating that in individual has been convicted of any felony, misdemeanor, or other offense, has been adjudicated delinquent, has been less than honorably discharged, or has been placed on probation, fined, imprisoned, or paroled pursuant to any law enforcement or military authority. Wis. Stat. \u00a7 111.32(3).<\/p>\n

Can an employer refuse to hire someone or fire an employee because of an arrest or conviction record?<\/p>\n

Yes. When an employer can show that the circumstances of an individual\u2019s pending arrest or past conviction \u201csubstantially relate to the circumstances of the particular job,\u201d the employer may fire an employee or refuse to hire a prospective employee. Wis. Stat. \u00a7 111.335. The law does not define \u201csubstantially related,\u201d but generally it means that the circumstances of an offense, like when it happened, where it happened, how it happened, etc., are comparable to the circumstances of the job. For example, if prospective banker has a past conviction for embezzlement, a court would likely find that offense substantially related to the job.<\/p>\n

Can an employer refuse to hire or fire because of a past arrest record?<\/p>\n

No. The employer cannot refuse to hire based upon past arrests, no matter how frequent or concerning. However, an employer may ask an applicant about pending arrests. If the circumstances of the pending arrest substantially relate to the circumstances of the job, the employer may take an adverse employment action.<\/p>\n

Can an employer refuse to hire or fire someone because of a conviction record?<\/p>\n

Yes, but only if the circumstances of the conviction substantially relate to the circumstances of the job.<\/p>\n

What should an employer say when inquiring about a pending arrest record or past conviction record?<\/p>\n

An employer can ask an applicant about pending charges or convictions, but only if the employer makes it clear that it will only consider those offenses that are substantially related to the job.<\/p>\n

\u2014 Kathryn A. Harrell<\/a><\/p>\n<\/div>\n

\n

County Must Pay Annual Fire Protection Charge Imposed by Town<\/span><\/p>\n

Charge Is A Fee Not A Tax<\/span><\/p>\n

Clark County must pay fire protection charges imposed by the Town of Hoard for the County\u2019s medical center located in the Town, the Court of Appeals recently held in Town of Hoard v. Clark County<\/span>, Appeal No. 2015AP678, decided November 12, 2015.<\/p>\n

The Town of Hoard (“Town”), located in Clark County, is part of a fire protection district made up of multiple municipalities. The individual municipalities in the fire district fund the district by contributing an equal share towards the costs of the district. Prior to 2014, the Town funded its annual contribution to the district through general property taxes. Beginning in 2014, the Town funded its contribution to the district by imposing an annual charge on property located within the Town. The charge was established by ordinance and was reflected in a written schedule. The schedule provided a formula for calculating a property\u2019s \u201cdomestic user equivalent\u201d or DUE. A single-family home of 1,500 square feet was assigned 1.0 DUEs. The Town divided its total annual contribution to the fire district by the total number of DUEs located within the Town to arrive at a dollar value per DUE, and then used that dollar amount to determine each property\u2019s annual charge for fire protection.<\/p>\n

Clark County owns a medical center within the Town. Prior to 2014, the County, as a tax-exempt entity, did not pay towards the cost of fire protection provided by the fire district. After the Town adopted the annual charge, the medical center was allocated DUEs, and the County was charged for fire protection service to the medical center on the basis of these DUEs. The County refused to pay the charges claiming that it was exempt because the charges were actually a tax. The Town brought an action for declaratory judgment to compel the County to pay the charge.<\/p>\n

The Court of Appeals agreed with the Town and held that the charge was a fee that the County was obligated to pay. The Court indicated that the test for deciding whether a charge was a fee or a tax was whether the primary purpose of the charge was to raise revenue, in which case it was a tax, or was to cover the expense of providing services, supervision or regulation, in which case it was a fee. The Court held that here the Town established that the charge imposed by the ordinance was used to solely cover the expense of providing fire protection service, and therefore was a fee. The County argued that the fact that the Town is imposing the charge in its role as a municipality, rather than as a public utility, and the fact that non-payment of the charge results in a tax lien against the property, shows that the charge is really a tax. The Court rejected this contention, indicating that these facts are not part of the test set out by the Supreme Court in State v. Jackman<\/span>, 60 Wis. 2d 700, 707 (1973) to determine whether a charge is a tax or fee.<\/p>\n

The Court also held that the Town has authority pursuant to Wis. Stat. \u00a7 60.55(2)(b), to charge a fee to cover the cost of providing fire protection. The County argued that while fire protection was available, it was not actually used by the medical center, and therefore the Town could not charge the County for service that was available but unused. The Court dismissed that argument stating that \u201cthe presence of a fire district standing by ready to extinguish fires constitutes a fire protection service for which a fee may be assessed.\u201d<\/p>\n

\u2014 Lawrie Kobza<\/a><\/p>\n<\/div>\n

\u00a0<\/div>\n
\n

Is a Person Entitled to Notice and a Hearing before Being Banned from City Properties after Threatening City Officials?<\/span><\/p>\n

As is often the case, the answer is not so clear. However, in a recent decision from the Fifth Circuit, Vincent v. City of Sulphur<\/span>, 2015 U.S. App. LEXIS 18761, the Court held that the City of Sulphur, Louisiana (“City”) did not violate Carol Vincent\u2019s constitutional right to due process when it banned him from City properties after he threatened to get a gun and kill the mayor and a City Council member. In response to the threats, the City\u2019s police department issued a no-trespass order prohibiting Vincent from entering city properties, including City Hall, the City County Building and the courthouse. The City issued the order without giving Vincent notice or a hearing.<\/p>\n

Vincent brought a federal lawsuit claiming, among other things, violations of his Fourteenth Amendment right to due process. He argued that he had a well-established liberty interest in being free to move about in the public. The defendants filed a motion to dismiss the case arguing that they were entitled to qualified immunity for their actions. Qualified immunity protects public officials who are acting in the scope of their employment from damages for civil liability if they did not violate an individual’s “clearly established” statutory or constitutional rights.<\/p>\n

The district court ruled in Vincent\u2019s favor, finding that the defendants were not entitled to qualified immunity because the no-trespass order, without notice and an opportunity to be heard, violated well-established case law. The defendants appealed.<\/p>\n

The 5th Circuit Court of Appeals reversed the trial court finding that the cases it relied upon did not reflect clearly established law. The court analyzed various decisions from the United States Supreme Court and other circuits and concluded that \u201cit is untenable to read these decisions as clearly establishing, such that any reasonable officer would be aware, the entitlement of a person in Vincent\u2019s position to notice and a hearing before issuance of the no-trespass order designed to keep him from coming into contact with the targets of the alleged threats.\u201d Based upon this finding, the Court held that the officers who issued the no-trespass order were entitled to qualified immunity.<\/p>\n

\u2014 Kathryn E. Harrell<\/a><\/p>\n<\/div>\n

\n

Recreational Immunity: The Basics<\/span><\/p>\n<\/div>\n

\n

Wisconsin\u2019s Recreational Immunity Statute, Wis. Stat. \u00a7 895.52, was designed to protect certain owners, including governmental bodies, organizations and individuals, from civil liability for injuries or death caused while a person is engaged in recreational activities on their land. The law\u2019s purpose was \u201cto help assure the continued availability in this state of enterprises that offer recreational activities to the public.\u201d Consistent with this purpose, the statute broadly defines \u201crecreational activity\u201d and offers considerable protection to landowners and their affiliates. However, the statute contains a number of important exceptions to the broad immunity it affords.<\/p>\n

Who Is Protected?<\/p>\n

The law protects \u201cowners\u201d of certain property. \u201cOwner\u201d is defined as a person, governmental body or nonprofit organization that owns, leases or occupies property. \u201cOwner\u201d is also defined as a governmental body or nonprofit organization that has a recreational agreement with another owner. A \u201crecreational agreement\u201d is a written authorization granted by the landowner to a governmental body or nonprofit organization that permits public access to all or part of the owner\u2019s property for a recreational activity. The law extends its protections to officers, employees and agents of landowners.<\/p>\n

What Protections Are Afforded?<\/p>\n

Owners cannot be liable for the death or injury to a person who is engaged in a recreational activity on the owner\u2019s property or for death or injury caused by an attack by a wild animal on the owner\u2019s property.<\/p>\n

In addition, owners owe no duty to a person who enters their property to engage in a recreational activity to (1) keep the property safe for recreational activities, (2) inspect the property and (3) warn the person of unsafe conditions on the property.<\/p>\n

What Types of Activities Are Protected?<\/p>\n

Recreational activities are protected. A \u201crecreational activity\u201d is broadly defined as \u201cany outdoor activity undertaken for the purpose of exercise, relaxation or pleasure, including practice or instruction of any such activity.\u201d The statute identifies 37 recreational activities ranging from common activities like camping, bicycling and snowmobiling, to more obscure activities like bird watching and climbing observation towers.<\/p>\n

Are There Exceptions?<\/p>\n

There are some key exceptions identified in the statute. Owners who receive more than $2,000 a year from people using their property are not covered by the statute. Similarly, if an owner charges an admission fee for spectators, there is no immunity. Another exception exists for landowners who sponsor an \u201corganized team sporting activity\u201d on their property. For example, if a municipality takes team registrations, maintains the grounds, and provides referees, scorekeepers, and equipment for a team sport, it is considered a sponsor. While a landowner has no obligation to keep the property safe, if he or she maliciously fails to warn a recreational user against an unsafe condition, there is no immunity. Finally, if a private property owner expressly and individually invites a social guest to his or her property for a specific occasion during which a death or injury occurs, there is no immunity.<\/p>\n

\u2014 Kathryn A. Harrell<\/a><\/p>\n<\/div>\n","excerpt":"

Lead: Employers Beware: Arrest and Conviction Record Discrimination Continue reading →<\/span><\/a><\/p>\n","date":"2015-12-08 11:39:22","categories":[{"id":35,"slug":"municipal-newsletter","title":"Municipal Newsletter","description":"","parent":32,"post_count":41},{"id":7,"slug":"construction","title":"Construction","description":"","parent":3,"post_count":20},{"id":12,"slug":"energy-telecom","title":"Energy & Telecom","description":"","parent":3,"post_count":43},{"id":91,"slug":"local-government","title":"Local Government","description":"","parent":3,"post_count":35},{"id":42,"slug":"public_utility","title":"Public Utility","description":"","parent":3,"post_count":41},{"id":44,"slug":"utility-law","title":"Utility Law","description":"Links to Energy & Telecom page.","parent":3,"post_count":28}]},{"id":9040,"type":"publications","status":"publish","title":"Wisconsin Joins Fourteen States in Clean Power Plan Law Suit","title_plain":"Wisconsin Joins Fourteen States in Clean Power Plan Law Suit","content":"

Wisconsin Attorney General Brad Schimel has signed on to an Emergency Petition for Extraordinary Writ (“Petition”) in a multi-state effort to stay the final greenhouse gas emission rules recently issued by the Environmental Protection Agency (“EPA”) under Section 111(d) of the Clean Air Act, popularly known as the \u201cClean Power Plan\u201d (“Rule”). Citing the EPA\u2019s accelerated timetable for submittal of state compliance plans required by the Rule, the Petition invokes the All Writs Act to take the unusual step of seeking to stay all deadlines in the Rule prior to its actual publication in the Federal Register. The Petition was filed in the DC Circuit Court of Appeals.<\/p>\n

\n

Under the Clean Power Plan, existing coal-fired power plants are subject to emissions performance standards on a state-by-state basis in an effort to drive an aggressive, industry-transforming transition to zero-carbon renewable energy sources by 2030. The Rule provides states with a number of options to achieve an overall carbon reduction target of 32 percent from 2005 standards, beginning by 2022. In addition to improving heat rates at existing coal generation facilities, compliance options available to states include promoting demand-side energy efficiency efforts and expanding nuclear and other non-carbon, renewable generation resources.<\/p>\n

According to the Petition, three features of the Rule stand out as especially problematic. First, the petitioners question EPA\u2019s claim that it has the authority to regulate carbon dioxide under Section 111(d) because it has not chosen to regulate it as a hazardous air pollutant under other sections of the Clean Air Act. Second, the petitioners challenge the EPA\u2019s authority to impose across-the-board energy policy changes \u201coutside the fence,\u201d rather than limiting the scope of the Rule to the ways in which existing facilities operate.<\/p>\n

Finally, the petitioners object to EPA\u2019s \u201caggressive\u201d timetable, in accordance with which states must submit initial State Plans by September 6, 2016. Although the rule allows for two-year extensions, the Petition alleges that work must begin immediately, at considerable cost of administrative resources, for there to be any hope of meeting either the 2016 initial deadline or the 2018 final deadline. The Petition includes affidavits from Ellen Nowick, chairperson of the Public Service Commission of Wisconsin, and Patrick Stevens, the Division Administrator of the Environmental Management Division of the Wisconsin Department of Resources, to support its claims of regulatory duress.<\/p>\n

EPA\u2019s expansive reading of its own authority is viewed by most observers as legally vulnerable, particularly with respect to its potential impact on electric consumer behavior and long-term integrated resource planning. However, because the Rule has yet to be published or implemented, the Petition is generally given only limited chances of success. Three previous petitions were already rejected by the DC Circuit in June. Moreover, the petitioners are likely to have difficulty showing irreparable harm given that another opportunity to petition for a stay will arise once the rules are finally published. Even if the stay is ultimately granted, the prospect of protracted litigation is certain to pose substantial challenges for utilities and regulators alike.<\/p>\n

\u2014 Richard A. Heinemann<\/a><\/p>\n<\/div>\n

\n

Court of Appeals Upholds Boundary Agreement Greatly Expanding Newly Incorporated Village<\/span><\/p>\n

In 2013, the Village of Harrison was incorporated pursuant to the statutory incorporation procedure set out in Wis. Stat. \u00a7\u00a766.0201 to 66.0211. This procedure establishes numerous requirements for the territory proposed for incorporation and requires that a state review board only approve for referendum those proposed incorporations that meet these statutory standards. One standard requires the petitioned territory to be sufficiently compact and uniform to function as a city or village. Another standard requires that the territory beyond the most densely populated square mile have the potential for residential or other land use development on a substantial scale within the next three years. The state review board reviewed the incorporation petition for the Village of Harrison and found that the statutory standards for incorporation were all met. The Executive Summary of the incorporation commented that \u201cPetitioners desire to incorporate this portion of the Town because the area is distinct and essentially unrelated to the rural character of the remaining Town of Harrison. The proposed village is densely populated, urban in character, and distinct socially from the rural areas of the Town, and has much higher service needs and demands.\u201d Voters approved the incorporation in February 2013.<\/p>\n

In June 2013, the new Village and the remaining Town of Harrison published a joint public hearing notice to discuss a proposed intergovernmental cooperation agreement affecting the provision of municipal services and boundary line adjustments between the Village and Town. A joint public hearing took place on July 2, 2013, and following a closed session, both the Village board and Town board approved the agreement. The agreement authorized a major boundary line change that transferred all properties in the Town not subject to a prior boundary agreement with the cities of Appleton or Menasha from the Town to the Village.<\/p>\n

Kaukauna, Menasha and Sherwood challenged the major boundary changes undertaken through the intergovernmental agreement. They argued that allowing municipalities to achieve major boundary changes via intergovernmental agreements would render the more specific statutory processes for other jurisdiction alterations meaningless.<\/p>\n

The Court of Appeals in Cities of Kaukauna and Menasha, and Village of Sherwood, v. Village and Town of Harrison<\/span>, (Ct. App., Dist. 2, decided August 26, 2015) disagreed. First, the Court noted that Wis. Stat. \u00a7 66.0301(6) is silent on the scope of the boundary changes permitted by intergovernmental agreement. Second, the Court noted that Wisconsin statutes provide multiple methods of altering municipal boundary lines as well as multiple methods of incorporation, annexation and consolidation, and that there would be nothing absurd about the legislature creating an additional way to change boundaries. Furthermore, the Court commented that it would not be \u201cabsurd that the legislature would create different procedural requirements from those already in existence in other statutes; in fact, that would appear to be precisely the point.\u201d<\/p>\n

Plaintiffs also challenged the sufficiency of the notices provided to property owners by the Village and Town pursuant to Wis. Stat. \u00a7 66.0301(6). They argued that the notices provided did not inform property owners that approval of the intergovernmental agreement would result in relocating many of them or their neighbors into the new village. This challenge was also rejected, with the Court stating that the notice provided \u201ccomplied with the minimal notice requirement of Wis. Stat. \u00a7 66.0301(6)(c)1.\u201d<\/p>\n

\u2014 Lawrie Kobza<\/a><\/p>\n<\/div>\n

\n

Boardman & Clark LLP Welcomes Kathryn Harrell and Julia Potter<\/span><\/p>\n

Boardman & Clark is pleased to announce the addition of Kathryn (Kate) Harrell and Julia Potter.<\/p>\n

Kate, an experienced trial and litigation attorney, will work primarily with the firm\u2019s municipal and litigation practice groups. Kate has nine years of experience as a trial lawyer. Her trial and appellate practice focuses on the representation of municipalities, insurance companies, individuals, and businesses in litigation and insurance coverage disputes. She is also the Municipal Prosecutor for the Village of Waunakee. Kate received her J.D. from Marquette University. She was named an \u201cUp and Coming Lawyer\u201d by the Wisconsin Law Journal in 2014 and a \u201cRising Star\u201d by Super Lawyers.<\/p>\n

Julia graduated summa cum laude in May, 2015 from the University of Michigan Law School. She graduated Phi Beta Kappa, magna cum laude in 2012 from Brown University in Providence, RI with a degree in International Relations. During law school, Julia clerked for Boardman & Clark and served as a judicial intern to Justice N. Patrick Crooks of the Wisconsin Supreme Court and Judge Richard G. Neiss of the Dane County Circuit Court. Julia will be working in the municipal law practice group, as well as a number of other areas in the firm, including labor and employment law.<\/p>\n<\/div>\n

\n

IRS Ruling Could Allow Tax Credit for Residential Owners in Community Solar Projects<\/span><\/p>\n

In a September 4, 2015 private letter ruling, the Internal Revenue Service concluded that an individual owner of solar panels in an offsite, community solar garden was eligible to claim a tax credit to cover part of the installation costs. This one-time credit, known as the Section 25D residential income tax credit, allows owners of renewable energy equipment used for residential purposes to take a tax credit equal to 30% of qualified installation costs. Under current law, this tax credit will sunset at the end of 2016.<\/p>\n

This ruling is the first time the IRS has weighed in on the applicability of the residential income tax credit to individual owners of solar panels in an offsite community solar array. As community solar projects proliferate, providing the benefits of solar energy to renters and owners of property unable to accommodate solar panels, the availability of this tax credit may spur further growth in the community solar market.<\/p>\n

Private letter rulings apply only to the taxpayer to whom they were issued and are not binding precedent, but may be consulted by IRS employees when issuing letter rulings to similarly situated taxpayers. Thus, this letter ruling indicates that the IRS may be receptive to similar claims for this tax credit by taxpayers who own solar panels in an offsite, community shared solar array whose structure mirrors the structure of the project in the ruling.<\/p>\n

\u2014 Julia Potter<\/a><\/p>\n<\/div>\n

\n

Seemingly Insignificant US Supreme Court Decision Expands Free Speech Protections<\/span><\/p>\n

In a decision dated June 18, 2015, the Supreme Court held that the Town of Gilbert, Arizona\u2019s (\u201cTown\u201d) code regulations governing outdoor signs (\u201cSign Code\u201d) were unconstitutional because they were content-based regulations of speech that did not survive strict scrutiny. Clyde Reed, et al. v. Town of Gilbert, Arizona, et al.<\/span>, 576 U.S. __ (2015). The Sign Code prohibited the display of outdoor signs without a permit, but exempted 23 types of signs from that prohibition. Three of those exempted categories of signs were at issue: ideological signs, political signs and temporary directional signs (defined as signs directing the public to a church or other qualifying event). The Sign Code designated different size, duration and location restrictions for each of these sign categories.<\/p>\n

Good News Community Church and its pastor, Clyde Reed, posted signs on Saturday mornings that included the church name, time and location of the Sunday morning service. The signs were removed mid-day on Sunday. The church received a citation for exceeding the time limit for temporary directional signs and for failing to include an event date on the sign.<\/p>\n

The Supreme Court struck down the Sign Code finding that it unlawfully restricted free speech by imposing different restrictions on signs addressing different subject matters. By doing so, the Court found the Sign Code regulations to be content-based speech regulations. A regulation is content-based if it applies to a particular speech because of the topic, idea or message expressed. The Sign Code was content-based because it defined categories of ideological, political and temporary directional signs on the basis of their messages and then subjected each category to different restrictions. The Town argued that the regulations were not content-based because the Town wasn\u2019t motivated by hostility to any message. Rejecting this argument, the Supreme Court reasoned that a regulation can be content-based if it \u201csingles out a subject matter for differential treatment, even if it does not target viewpoints within that subject matter.\u201d<\/p>\n

When a law is content-based, it is subject to the highest level of judicial scrutiny, called strict scrutiny. To survive strict scrutiny, the Town had to demonstrate that the Sign Code\u2019s differentiation between temporary directional signs and other types of signs \u201cfurthered a compelling governmental interest and was narrowly tailored to that end.\u201d The Town was unable to make that extremely difficult showing, so the Supreme Court struck down the Sign Code.<\/p>\n

Constitutional scholars have called this seemingly insignificant decision \u201cbold,\u201d \u201csweeping\u201d and one that threatens many types of laws. In the past, typically only laws that attempted to suppress speech that was unpopular were deemed content-based. Now, any law that singles out a topic for regulation may be unlawfully discriminating based on content.<\/p>\n

Several courts have already struck down regulations based on the Reed<\/span> decision. A court struck down a law that made it illegal to take a picture of a completed election ballot and show it to others. A different court struck down a law that made it illegal to panhandle in parts of Springfield, Illinois. Another court struck down a law that barred robocalls on political and commercial topics but not others. The far-reaching implications of the Reed<\/span> decision are likely to lead to variety of challenges to municipal, state and federal regulations that single out particular subject matters.<\/p>\n

\u2014 Kathryn A. Harrell<\/a><\/p>\n<\/div>\n

\n

Wisconsin Court of Appeals Upholds Municipal Agency\u2019s Rule Governing Travel with a Weapon<\/span><\/p>\n

In a decision dated August 6, 2015, the Wisconsin Court of Appeals upheld a rule adopted by the City of Madison\u2019s (\u201cCity\u201d) Transit and Parking Commission (\u201cCommission\u201d) that prohibits a person from traveling on a city bus with a weapon. Wisconsin Carry, Inc. et al. v. City of Madison<\/span>, 2015AP146. The City operates a municipal bus system that is governed by the Commission. The City\u2019s General Ordinances include an ordinance that authorizes the Commission to establish \u201crules and procedures\u201d related to transit. Pursuant to this authority, the Commission enacted a rule that prohibits a person from traveling in a city bus with any weapon, including a gun (the \u201cbus rule\u201d).<\/p>\n

The bus rule was challenged by Wisconsin Carry, Inc., a gun rights organization, and one of its members. They argued that the bus rule is preempted by Wis. Stat. \u00a7 66.0409, the law that, among other things, prohibits a political subdivision from enacting an ordinance or adopting a resolution that regulates the keeping, possession, bearing, or transporting of a firearm.<\/p>\n

The City argued that the bus rule is not an \u201cordinance\u201d or \u201cresolution\u201d as those terms are used in \u00a7 66.0409. The court of appeals agreed that the bus rule was not an \u201cordinance\u201d or \u201cresolution\u201d and thereby upheld the bus rule. Wisconsin Carry tried to get around the plain language of \u00a7 66.0409 by arguing that the legislature must have intended the statute to have a broader application to local agency regulations. The court of appeals rejected this argument reasoning that the legislature could have included additional or more expansive language in the statute if it had intended the broad meaning advanced by Wisconsin Carry. The legislature \u201ccould have reasonably distinguished between a municipality\u2019s broad legislative powers and a municipal agency\u2019s more limited powers,\u201d but the legislature did not do this. The court surmised that one of the reasons the legislature did not make this distinction was to permit targeted agency regulation or firearms for limited purposes, such as the bus rule.<\/p>\n

\u2014 Kathryn A. Harrell<\/a><\/p>\n<\/div>\n","excerpt":"

Lead: Wisconsin Joins Fourteen States in Clean Power Plan Law Suit. Continue reading →<\/span><\/a><\/p>\n","date":"2015-09-28 09:58:09","categories":[{"id":35,"slug":"municipal-newsletter","title":"Municipal Newsletter","description":"","parent":32,"post_count":41},{"id":12,"slug":"energy-telecom","title":"Energy & Telecom","description":"","parent":3,"post_count":43},{"id":17,"slug":"land-use","title":"Land Use and Zoning","description":"","parent":3,"post_count":28},{"id":91,"slug":"local-government","title":"Local Government","description":"","parent":3,"post_count":35},{"id":42,"slug":"public_utility","title":"Public Utility","description":"","parent":3,"post_count":41},{"id":44,"slug":"utility-law","title":"Utility Law","description":"Links to Energy & Telecom page.","parent":3,"post_count":28}]},{"id":8630,"type":"publications","status":"publish","title":"Appellate Court Rules Milwaukee May Enforce Its Residency Ordinance","title_plain":"Appellate Court Rules Milwaukee May Enforce Its Residency Ordinance","content":"

In a July 21, 2015 decision, the Wisconsin Court of Appeals ruled that the City of Milwaukee may enforce its residency ordinance and that the ordinance was not \u201ctrumped\u201d by Wis. Stat. \u00a7 66.0502, the law enacted in 2014 that abolished local residency requirements. Black v. City of Milwaukee<\/span>, Appeal No. 2014AP400 (July 21, 2015). Milwaukee adopted its residency ordinance, which requires all City employees to live within the City, pursuant to its home rule authority under the Wisconsin Constitution Article XI, \u00a7 3.(1). That provision states that \u201c[c]ities and villages organized pursuant to state law may determine their local affairs and government, subject only to this constitution and to such enactments of the legislature of statewide concern as with uniformity shall affect very city or every village.\u201d As the court explained, an ordinance created pursuant to a city\u2019s constitutional home rule authority trumps any state law that conflicts with the ordinance unless the state law involves a matter of statewide concern and affects every city and village with uniformity.<\/p>\n

\n

In reaching its conclusion, the court first determined that Wis. Stat. \u00a7 66.0502 did not involve a matter of statewide concern, despite the legislative finding that \u201cpublic employee residency requirements are a matter of statewide concern.\u201d The court made clear that such unsubstantiated statements by the legislature are insufficient to support a finding that the statute deals with a matter of statewide concern. On the contrary, courts are charged with making such determinations on a case-by-case basis by examining the facts in the record. Here, those facts came from a Legislative Fiscal Bureau paper that made clear that the goal of the statute was to target the City of Milwaukee. According to the court, nearly every portion of the Bureau\u2019s analysis explains in great detail how Milwaukee, but no other city or village, will be negatively affected by the proposed legislation.<\/p>\n

Having concluded that Wis. Stat. \u00a7 66.0502 does not involve a matter of statewide concern, the court next considered whether the statute uniformly affects every city or village. In short order, the court concluded that the statute would have a disparate impact on the City of Milwaukee. According to the court, while the statute does not explicitly single out Milwaukee, \u201cthe facts in the record make clear that only one city \u2013 Milwaukee \u2013 will be deeply and broadly affected.\u201d Moreover, the court opined that \u201cthe notion that a statute purports to gut the tax bases and compromise neighborhood integrity of all<\/span> municipalities would pass both houses of the legislature defies logic.\u201d<\/p>\n

In sum, the court concluded that Wis. Stat. \u00a7 66.0502 does not apply to the City of Milwaukee\u2019s residency requirement. Because the decision was based upon Wisconsin’s constitutional home rule provision as opposed to the statutory home rule provision, the court’s ruling likely does not impact the applicability of \u00a7 66.0502 on local residency requirements unless they were enacted as a municipal charter ordinance.<\/p>\n

\u2014<\/span> Anita T. Gallucci<\/a><\/p>\n<\/div>\n

\n

New Open Records Court Cases Are Relevant for Municipalities<\/span><\/p>\n<\/div>\n

\n

In June 2015, the Wisconsin Supreme Court and the Wisconsin Court of Appeals issued decisions involving the Wisconsin Public Records Law that provides significant guidance for municipalities. In both cases, the courts ruled in favor of actions taken by the records custodian. This article will briefly discuss each case and then consider the impact of these cases on municipalities.<\/p>\n

\u201cNotes\u201d Compiled During Investigation Are Not Subject to Disclosure<\/p>\n

In Voice of Wisconsin Rapids, LLC v. Wisconsin Rapids Public School District<\/span>, Case No. 2014AP1256 (June 4, 2015), the Wisconsin Rapids Public School District received a request for records related to allegations of impropriety surrounding a school athletic program. The District had conducted an investigation into these allegations, including interviews conducted by district employees. The employees took notes during the interviews.<\/p>\n

In response to the request, the District withheld documents for various reasons, including that the requested documents did not qualify as \u201crecords\u201d under the Public Records Law because they were \u201cnotes\u201d that are excluded from the definition of a \u201crecord.\u201d A \u201crecord\u201d does not include \u201cdrafts, notes, preliminary computations and like materials prepared for the originator\u2019s personal use.\u201d The District noted that the withheld documents were created for the personal use of district employees since they were never exchanged, shared with anyone, or otherwise available to anyone other than the person drafting the notes.<\/p>\n

The Wisconsin Court of Appeals concluded that the documents were \u201cnotes\u201d and, therefore, were not \u201crecords\u201d subject to disclosure under the law. According to the court, the term \u201cnotes\u201d covers a broad range of frequently created, informal writings. The \u201cnotes\u201d in this case were mostly handwritten and at times barely legible, included copies of post-it notes and telephone message slips, and reflected hurried, fragmentary, and informal writing. In light of the above, the court concluded that the writings were in the nature of notes created for and used by their drafters as part of their preparation for, or as part of their processing after, interviews that they conducted.<\/p>\n

After the court determined that the documents were \u201cnotes,\u201d it then focused on whether the \u201cnotes\u201d were \u201cprepared for the originator\u2019s personal use.\u201d In its analysis, the court noted that the exclusion of material \u201cprepared for the originator\u2019s personal use\u201d is to be construed narrowly. Typically, this exclusion is properly utilized when a person takes notes for the sole purpose of refreshing his or her recollection at a later time. Such notes continue to fall within the exclusion even if the drafter later confers with others for the purpose of verifying the correctness of the notes and the sole purpose for such verification and retention continues to be to refresh the drafter’s recollection at a later time. However, if the notes are distributed to others for the purpose of communicating information, or if they are retained for the purpose of memorializing agency activity, the notes would go beyond mere personal use and would, therefore, not be excluded from the definition of a \u201crecord.\u201d The Court held that based on the specific facts of this case, the interview notes taken by the employees were for their personal use and, therefore, were not \u201crecords.\u201d<\/p>\n

No Unlawful Denial or Delay By Municipality When No Record Existed<\/p>\n

In Journal Times v. City of Racine Board of Police and Fire<\/span>, 2015 WI 56 (June 18, 2015), the Wisconsin Supreme Court reviewed whether the City of Racine Board of Police and Fire Commission unlawfully denied or delayed disclosure of meeting minutes. The newspaper had requested the results of a vote taken in a closed session meeting during which the Commission had decided to reopen the process of hiring a police chief.<\/p>\n

No records existed at the time of the request since the person who normally took notes and drafted minutes did not attend the meeting and, therefore, no minutes of that meeting had been drafted. However, the Commission denied the request based on policy reasons. The newspaper filed a complaint alleging a violation of the Open Records Law, at which point an attorney for the Commission informed the newspaper of the vote taken during the closed session. However, the newspaper did not drop the lawsuit; instead, it argued that it was entitled to attorney fees because the Commission unlawfully denied or delayed the release of the minutes.<\/p>\n

The Supreme Court concluded that the newspaper was not entitled to its requested relief. The court based its decision, in part, on the fact that no responsive record existed at the time of the request and that a reasonable interpretation of the request was that it was for \u201cinformation,\u201d rather than a specific record. Further, the Commission responded to the newspaper with reasonable diligence and released the requested information, even though it was not required to provide the information in response to the request. As a result, the newspaper was not entitled to attorney fees because it did not prevail in substantial part in the lawsuit.<\/p>\n

Important Considerations for Records Custodians<\/p>\n

Both of these cases provide good reminders for records custodians related to the initial steps in responding to any records request.<\/p>\n

One is to determine whether any “records” exist that are within the scope of the request. If no “record” exists, then the records custodian can simply reply to the requester that no record exists that is within the scope of the request. The Public Records Law does not require municipal officials to create records by extracting information from existing records and compiling it into a new format, nor does it require responses to requests for information that is not in a record.<\/p>\n

Another step is to determine whether the documents within the scope of the request are actually \u201crecords\u201d as that term is defined by the Public Records Law. Some documents may fall outside of the definition of \u201crecords\u201d because they are \u201cnotes,\u201d \u201cdrafts\u201d or purely personal in nature. A careful examination of the documents and the circumstances surrounding the creation of them is important before making any determination to disclose the documents.<\/p>\n

\u2014<\/span> Richard F. Verstegen<\/a><\/p>\n<\/div>\n

\n

Prevailing Wage Law for Municipal Construction Projects Eliminated Beginning in 2017<\/span><\/p>\n

The prevailing wage law applicable to local governments is completely repealed as of January 1, 2017. The repeal is included in 2015 Wisconsin Act 55, the Wisconsin budget.<\/p>\n

The budget bill also included a sales tax exemption for materials sold to construction contractors for incorporation into a public project. This provision, however, was vetoed by the Governor. In his veto message, the Governor stated that he \u201csupports a sales and use tax exemption for goods sold to a construction contractor, while fulfilling a real property construction activity, when the goods are transferred to Wisconsin elementary and secondary school districts, municipalities or nonprofit entities if such goods will be a part of a facility located within the state,\u201d but that the language included in the budget is much broader than the intended scope. He encourages separate legislation to enact the intended exemption.<\/p>\n

\u2014<\/span> Lawrie Kobza<\/a><\/p>\n<\/div>\n

\n

Legislature Limits Kenosha\u2019s Ability to Deny Extension of Municipal Water or Sewer Service<\/span><\/p>\n

In its last action before sending the budget bill to the full Legislature, Wisconsin\u2019s Joint Finance Committee approved Motion 999, including Item 66, which limits a municipality\u2019s ability to deny municipal water or sewer service extensions to a neighboring municipality. Under Item 66, a municipality (including a town) that is currently receiving water or sewer service from a neighboring municipal utility in a portion of the municipality may request additional water or sewer service extensions from that neighboring municipal utility. The requesting municipality may specify the point on the neighbor\u2019s municipal utility\u2019s system from which service is to be extended. The neighboring municipal utility must approve or disapprove of the request in writing within 45 days, and may only disapprove a request if the utility does not have sufficient capacity to serve the area that is the subject of the request or if the request would have a significant adverse effect on the utility. A requesting municipality may appeal any decision denying the extension. Item 66 overrides any enacted ordinance or agreement specifying that the municipality is not obligated to provide utility service beyond the area covered by the ordinance or agreement.<\/p>\n

Municipal utility organizations strongly opposed Item 66 and asked legislators to remove Item 66 from the budget. Rather than remove it from the budget completely, however, Item 66 was amended to apply only to municipalities located in Kenosha County. The budget as passed, and as signed by the Governor, includes this provision on the extension of water and sewer in Kenosha County as Wis. Stat. \u00a7 66.0813(5m).<\/p>\n

Based upon newspaper reports, the impetus of the legislation was a particular development in the Town of Somers adjacent to the City of Kenosha. An existing water and sewer agreement between Kenosha and Somers requires Kenosha to provide water and sewer service anywhere in Somers provided service is taken at certain specified master-meter locations. However, there apparently was interest from a developer or property-owner in the Town of Somers in obtaining service at a different location. Rather than seeking to negotiate a revision to the existing water and sewer agreement to allow service at this other location, legislation was sought and obtained to override the agreement.<\/p>\n

The passage of this legislation should be of concern to municipalities for multiple reasons. First, this legislation which was limited to municipalities in Kenosha County could easily be extended to municipalities anywhere in Wisconsin. Second, it is disturbing that the Legislature was willing to adopt legislation to override a previously negotiated agreement between two municipalities. If the terms of a negotiated agreement can be overridden so easily, it calls into question the binding nature of all intergovernmental agreements. Third, the Legislature\u2019s willingness to dictate how a municipality is to use its municipal assets is also troubling. This raises a question of the extent of a municipality\u2019s authority to control its own municipal assets, and how easily the Legislature can supersede that municipal control.<\/p>\n

\u2014<\/span> Lawrie Kobza<\/a><\/p>\n<\/div>\n","excerpt":"

In a July 21, 2015 decision, the Wisconsin Court of Appeals ruled that the City of Milwaukee may enforce its residency ordinance and that the ordinance was not \u201ctrumped\u201d by Wis. Stat. \u00a7 66.0502 Continue reading →<\/span><\/a><\/p>\n","date":"2015-08-10 10:26:49","categories":[{"id":35,"slug":"municipal-newsletter","title":"Municipal Newsletter","description":"","parent":32,"post_count":41},{"id":12,"slug":"energy-telecom","title":"Energy & Telecom","description":"","parent":3,"post_count":43},{"id":91,"slug":"local-government","title":"Local Government","description":"","parent":3,"post_count":35},{"id":42,"slug":"public_utility","title":"Public Utility","description":"","parent":3,"post_count":41},{"id":44,"slug":"utility-law","title":"Utility Law","description":"Links to Energy & Telecom page.","parent":3,"post_count":28}]},{"id":7909,"type":"publications","status":"publish","title":"Zoning Appeals Boards Have Limited Authority to Reconsider Decisions","title_plain":"Zoning Appeals Boards Have Limited Authority to Reconsider Decisions","content":"

\n

A recent court of appeals decision is of interest to municipalities on two fronts. The decision addresses the authority of zoning appeals boards to reconsider their decisions, and the decision also deals with the application of a relatively new statute allowing “realignment” of nonconforming signs as part of a DOT highway project.NextMedia Outdoor, Inc. v. Village of Hayward<\/span>, 2014AP1005 (April 14, 2015) (not recommended for publication). Although the case involves city zoning under \u00a7 62.23, Stats., the reasoning is also applicable to zoning boards of adjustment for counties under \u00a7 59.69, Stats.<\/p>\n

NextMedia had a nonconforming billboard near a highway intersection. The DOT, as part of a highway improvement project, raised the highway such that the sign would no longer be visible. It condemned the sign and the sign permit rights and paid compensation. NextMedia applied to the Village of Howard for a sign realignment permit to move the sign to another location on the same property. The zoning administrator denied the request because NextMedia was asking to increase the height of the sign and to start using a digital display on one face. The village code allowed for realignment of legal nonconforming signs but any changes had to be limited to what was necessary for relocating it. The zoning board of appeals disagreed and granted the permit. Subsequently, the board conducted a new hearing and reversed its decision on the grounds that, contrary to its earlier understanding, the DOT had acquired the permit rights and had not proposed realignment. NextMedia brought a successful certiorari action based on the argument that the board had no authority to reconsider its decision. The court of appeals reversed the circuit court, thereby reinstating the board’s decision denying the permit.<\/p>\n

An Act passed in 2011 enacted \u00a7 84.30(5r), Stats., and gave the DOT some flexibility in dealing with the relocation of signs affected by highway projects. When a sign is legal, nonconforming, instead of having to pay compensation for removing the sign from the property entirely, the DOT can propose that the sign be “realigned.” The word has the specific meaning of moving a sign from one location to another on the same parcel. If a municipality asks the DOT to acquire the sign and permit rights, then the municipality must reimburse the DOT for the cost of acquiring those rights. A municipality, however, is not required to allow realignment in its zoning code.<\/p>\n

At the initial hearing on its application for realignment, NextMedia expressly or implicitly misrepresented that it had the rights to apply for a permit and that the DOT had proposed the realignment since those were both prerequisites to an application. When the DOT found out that a realignment permit had been granted, it notified the zoning administrator, who then obtained a new hearing during which testimony was produced showing that NextMedia no longer owned the sign or the permit rights.<\/p>\n

Much of the argument on the board’s authority to reconsider its decision focused on Goldberg v. City of Milwaukee Bd. of Zoning Appeals<\/span>, 115 Wis. 2d 517, 340 N.W.2d 558 (Ct. App. 1983). Both sides claimed that the case supported its side. In Goldberg<\/span>, the zoning board of appeals granted a variance, but within a few days–without notice or a new hearing–it decided to make the variance applicable only to the current landowners. The issue arose years later when the landowners sold the property and the new owner was required to file a new application, which was then denied. The Goldberg<\/span> court held that the board had exceeded its authority in reconsidering the decision. However, as the court in NextMedia <\/span>pointed out, the Goldberg<\/span> court recognized exceptions for reconsideration when the initial decision is based on a mistake of fact or law. The Goldberg<\/span> court relied on a New Jersey case, which included additional exceptions for inadvertence, surprise, fraud and a substantial change in circumstances. Although neither Goldberg<\/span> nor NextMedia<\/span> expressly adopt those additional grounds for reconsideration, since they were not at issue in either case, it appears that the court of appeals would be receptive to arguments that zoning boards of appeals could rely on the additional grounds to justify reconsideration in appropriate circumstances.<\/p>\n

\u2014 Mark J. Steichen<\/p>\n<\/div>\n

\n

Condemnor Cannot Rely on Known Material Mistake by Landowner<\/span><\/p>\n<\/div>\n

\n

The court of appeals sharply criticized the Wisconsin DOT for trying to evade paying compensation for a piece of land that mistakenly appeared on a recorded certified survey map as \u201cRoad Dedication for Future Highway Purposes (Right-of-Way Width Varies.\u201d Somers USA, LLC v. Wisconsin Department of Transportation<\/span>, 2015 WI APP 33 (March 25, 2015) (published). It is a cautionary tale for municipalities when determining whether property to be used in a public construction project is in public or private ownership.<\/p>\n

Somers owned approximately 47 acres of land adjoining Interstate 94, which it intended to use for the construction of a truck stop. At the time Somers purchased the land, the DOT was planning a highway improvement project. The plans contemplated taking 9.5 acres of Somers\u2019 property for a frontage road and another 3 acres for an on-ramp. Somers engaged an engineering company to prepare a certified survey map (CSM) for the site and obtain the necessary approvals. The CSM required approval from Kenosha County under its land division ordinance adopted under the authority granted in Chapter 236, Stats.<\/p>\n

The CSM went through several drafts based on conversations with the State refining the highway project plans. The initial draft listed both the 9.5- and 3-acre parcels as \u201cFuture Wisconsin D.O.T. Right-of-Way.\u201d The Kenosha County Land Use Committee approved this CSM with certain conditions but without requiring the dedication of any of the property for public use. For reasons that are not explained, Somers later recorded a version of the CSM that was different than the one that was approved. The recorded version described the 9.5-acre parcel as quoted above including the words \u201cRoad Dedication.\u201d The 3-acre parcel was described as a \u201croad reservation for potential future state highway purposes.\u201d The key distinction between a dedication and a reservation is that the former transfers legal title to the government, if the dedication is accepted.<\/p>\n

All of the people involved in drafting and signing the CSM testified that they did not know how the word \u201cdedication\u201d came to be inserted. All parties to the lawsuit (which included Kenosha County and the Town of Somers at times) agreed that none of the governmental bodies involved in the process of reviewing the CSM had required that the 9.5 acres be dedicated for public use and all parties agreed that Somers never intended to dedicate that land.<\/p>\n

The DOT proceeded to use both parcels as part of its highway project without paying any compensation. Somers then filed an inverse condemnation action under \u00a7 32.10, Stats. The procedural history was apparently complicated; but ultimately the circuit court held that the DOT was required to pay compensation for both parcels and the parties stipulated to the amount of compensation.<\/p>\n

The State argued that, while it owed compensation for the 3-acre “reservation” because no title was transferred, title to the 9.5 acres had been transferred to the public by operation of law under \u00a7 236.29(1) and 236.34(lm)(e), Stats. Those statutes provide that, when the appropriate procedures are followed, the recording of a plat or CSM showing easements or tracts as “dedicated” or similar language, has the effect of transferring title and no separate conveyance documents are required. The court rejected the statutory argument on two grounds. First, the procedures for dedicating land, including that the town and the county approve any dedication, had not been followed. On a broader note, the court pointed out that the intent to dedicate land to the public is an essential element and there was no such intent in this case. Finally, the court denied the State’s argument that equitable estoppel should be applied against Somers because the State had not relied on the dedication to its detriment. The fact that the DOT had to reimburse Someror its attorney’s fees and expenses under \u00a7 32.28, Stats., was not a detriment because it was the State’s fault for continuing to defend its position.<\/p>\n

The moral of the story goes beyond the specific facts in this case. Courts usually bend over backward to protect landowners’ rights in condemnation matters. When a landowner makes a mistake, a municipality should consider the strategic advantages and disadvantages of relying on it aggressively. A good initial result can turn into a long court battle with the possibility that the condemnor will have to pay the landowner’s attorney’s fees. Having knowledge and experience in the eminent domain area goes a long way in choosing which issues to pursue.<\/p>\n

\u2014 Mark J. Steichen<\/p>\n<\/div>\n

\n

Regulatory Watch<\/span><\/p>\n

\u201cRegulatory Watch\u201d highlights federal and state agency actions of interest to municipalities and their utilities. It is presented as a regular feature of the <\/span>Municipal Law Newsletter<\/span> by Anita Gallucci, Richard Heinemann and Lawrie Kobza. <\/span><\/p>\n

Public Service Commission Approves We Energy’s Acquisition of Integrys<\/strong><\/p>\n

Wisconsin Energy Corporation (WEC) received approval for its proposed acquisition of the Integrys Energy Group from the PSCW at the Commission\u2019s April 29, 2015 Open Meeting. The transaction has also been approved by the Federal Energy Regulatory Commission and the State of Michigan. Pending action from the state commissions of Illinois and Minnesota, the transaction is expected to close in late summer or early fall. The combined new company will be the 15th largest utility in the United States in terms of market value. In approving the acquisition, the commissioners unanimously agreed that the transaction would provide tangible benefits to customers, as required by Wisconsin law. The commissioners specifically cited the company\u2019s plans to retain its corporate headquarters in Wisconsin as a principal benefit to which the company should be held accountable. They also agreed on requiring a withdrawal of Wisconsin Public Service Corporation\u2019s application for approval to construct the Fox 3 Generating Station pending completion of an integrated resource study, and imposed an earnings cap and transmission escrow buy-down mechanism to provide further customer benefits. WEC\u2019s other voluntarily imposed conditions, including its commitment to restrict voting rights in the American Transmission Company LLC, were all accepted by the Commission.<\/p>\n

D.C. Circuit Court of Appeals Vacates Exception to EPA\u2019s RICE Rules<\/strong><\/p>\n

On May 1, 2015, the U.S. Court of Appeals for the District of Columbia Circuit reversed portions of EPA\u2019s final rule amending the national emissions standards for hazardous air pollutants (NESHAP) for reciprocating internal combustion engines (RICE). The provisions at issue allowed backup generators to operate for up to 100 hours per year without emissions controls in emergency demand-response programs. The court held that EPA acted arbitrarily and capriciously in setting the 100-hour exemption by failing to adequately address concerns about the rule\u2019s impact on the reliability of the grid and by relying on faulty evidence in justifying an increase from the previous exemption of 15 hours. The rest of the 2013 RICE NESHAP remains in effect. In reversing the 100 hour exemption, the court said EPA can file a motion to request that the current standards remain in effect or that it be allowed time to develop interim standards served by organized capacity markets. The appeal, filed by the State of Delaware with support from, among others, the Electric Power Supply Association, had been opposed by the American Public Power Association and the National Association of Rural Electric Cooperatives. Many municipal utilities and cooperatives rely on the 100 hour exception to run the units as emergency units and participate in regional load shedding programs without having to invest in costly environmental controls. Challengers to the rule contend that this distorts the capacity market and detracts from grid reliability. The case is Delaware Department of Natural Resources and Environmental Control v. EPA<\/span>, No. 13-1093.<\/p>\n<\/div>\n

\n

Seeking Modification May Be a Useful Tool When Municipal Projects Interrupt Private Easements<\/span><\/p>\n

Municipal street, utility and building projects sometimes prevent the continued use of existing private easements. A recent court of appeals case presents an example of creative thinking to remedy such circumstances rather than potentially incurring claims for substantial compensation even when the easement holders are not unanimous in their approval. Mullenberg v. DOT<\/span>, 2014AP2034 (Ct. App. May 14, 2015) (recommended for publication).<\/p>\n

The case involves five adjacent parcels of land located between Wisconsin Highway 35 and the St. Croix River and having five different owners. All five parcels are bisected by a bluff separating them into higher and lower parts. The owners were able to reach the lower tracts by virtue of a reciprocal easement across all parcels that terminated at a driveway for one of the parcels. The driveway gave them access to the highway.<\/p>\n

The driveway was within the highway right-of-way. As part of a bridge project, the DOT exercised its regulatory authority to relocate the driveway. It planned to construct a path on state property connecting the driveway to a different point along the easement, thereby restoring access. For unknown reasons, the owner of a parcel without the driveway sued under \u00a7 841.01, Stats., seeking a declaration and enforcement of his interest in the original easement. He also sought to enjoin the DOT from relocating the original easement, expanding its scope or interfering with his use of the original easement.<\/p>\n

At trial, the court found that the new trail was equal in all material respects to the original easement. Without the new trail, the original easement would have been useless. The court then exercised its equitable powers under property law to modify the original easement, terminating the portion that ran to the old driveway and adding the new trail. The court of appeals affirmed. A key factor in the appellate court’s decision was the fact that the relocation of the driveway made it impossible, not merely more burdensome, to fulfill the purpose of the easement.<\/p>\n

What municipalities should keep in mind is that it was possible to accomplish this modification even though one of the property owners opposed it.<\/p>\n

\u2014 Mark J. Steichen<\/p>\n<\/div>\n","excerpt":"

A recent court of appeals decision is of interest to municipalities on two fronts. Continue reading →<\/span><\/a><\/p>\n","date":"2015-06-09 10:31:16","categories":[{"id":35,"slug":"municipal-newsletter","title":"Municipal Newsletter","description":"","parent":32,"post_count":41},{"id":12,"slug":"energy-telecom","title":"Energy & Telecom","description":"","parent":3,"post_count":43},{"id":91,"slug":"local-government","title":"Local Government","description":"","parent":3,"post_count":35},{"id":42,"slug":"public_utility","title":"Public Utility","description":"","parent":3,"post_count":41},{"id":44,"slug":"utility-law","title":"Utility Law","description":"Links to Energy & Telecom page.","parent":3,"post_count":28}]},{"id":7656,"type":"publications","status":"publish","title":"Wisconsin Courts Issue Three Decisions Addressing Employer Modification of Retirement Benefits","title_plain":"Wisconsin Courts Issue Three Decisions Addressing Employer Modification of Retirement Benefits","content":"

Wisconsin courts have issued several decisions over the years providing guidance to public sector employers regarding benefits for retirees and how the status of a benefit as \u201cvested\u201d or not affects an employer\u2019s ability to modify the benefit. In general terms, these decisions provide that if a retirement benefit is vested, the employer cannot reduce or modify it; in contrast, if a retirement benefit is not vested, the employer may be able to reduce or modify it. Whether a benefit is vested or not depends on the particular benefit at issue, whether there is a contract, ordinance or statute that affects vesting, and whether the employee has met the applicable conditions for vesting.<\/p>\n

\n

Since December 2014, Wisconsin courts have issued three new decisions regarding vesting of benefits: Stoker v. Milwaukee County<\/span>, 2014 WI 130 (Dec. 19, 2014); Monreal v. City of New Berlin<\/span>, 2014 WI App 458 (Feb. 4, 2015); and Schwegel et al. v. Milwaukee County<\/span>, 2015 WI 12 (Feb. 12, 2015).<\/p>\n

In Stoker v. Milwaukee County<\/span>, the Wisconsin Supreme Court considered a challenge brought by Milwaukee County employees after the County reduced the formula multiplier used to calculate pension benefits. Milwaukee County calculates pension amounts for retired workers by multiplying the highest average salary by a multiplier and the number of service years. The multipliers were set by ordinance and had increased over the years. In 2012, the County passed an ordinance that reduced the multiplier with respect to future service earned after 2012, but did not reduce the multiplier that applied to benefits already earned through 2011.<\/p>\n

Several employees sued for breach of contract, arguing that the County could not amend the ordinance because they had a vested interest in the multiplier increases. The circuit court and Court of Appeals found in favor of the employees, but the Supreme Court reversed.<\/p>\n

The Supreme Court concluded that the County could amend the ordinance because, although the pension benefits at issue became vested as they were earned, the employees did not have vested rights in the pension benefits that had not yet been earned. Thus, the County could reduce future benefits that had not yet been earned or vested.<\/p>\n

Justice Ann Walsh Bradley and Chief Justice Shirley Abrahamson dissented, arguing that the employees\u2019 benefits were protected by a state statute and that the employees\u2019 pension benefits should be found to have vested on the date the employees commenced their employment with the County.<\/p>\n

In Monreal v. City of New Berlin<\/span>, the Court of Appeals reviewed a claim filed by a retired New Berlin police officer and member of the police union who contended that he had a right to deductible-free health insurance for the rest of his life pursuant to the collective bargaining agreement in place when he retired. After serving as a police officer for 30 years, the officer had retired in 2010 because of a service-related injury. The collective bargaining agreement in place from 2009-2011 required that officers who retired receive the same health benefits as active duty officers. The agreement also required the City to reimburse employees for all in-network deductibles. However, after that collective bargaining agreement expired, the City implemented a new \u201chigh deductible\u201d plan for all of its officers.<\/p>\n

The plaintiff officer argued that he was entitled to reimbursement of all his deductibles as provided under the previous agreement. The circuit court agreed with the officer, but the Court of Appeals reversed. The Court of Appeals concluded that although the officer\u2019s future health insurance benefits were vested at the time of his retirement, the collective bargaining agreement limited the scope of those benefits. In particular, one section of the collective bargaining agreement granted vested rights to deductible reimbursements, while another section applying specifically to duty-related disability retirees allowed the plan to change. The Court of Appeals concluded that the City was obligated to provide health insurance coverage to the officer in the future, but that the City was not required to reimburse deductibles.<\/p>\n

A few days after the Court of Appeals\u2019 decision in Monreal<\/span>, the Supreme Court issued a decision in Schwegel, et al. v. Milwaukee County<\/span>. As in Stoker<\/span> and Monreal<\/span>, the Court applied a fact-specific approach to evaluate whether benefits had been vested or could be changed prospectively. In that case, Milwaukee County had amended an ordinance that had required the County to reimburse Medicare Part B premiums for retirees of the County retirement system who had worked for the County for at least 15 years. The County amended the ordinance so that it would no longer pay Medicare Part B premiums for certain employees who retired after a certain date.<\/p>\n

Two employees sued, arguing that their right to Medicare Part B premium reimbursement could not be eliminated before they retired because their benefits had become vested upon commencing their employment with the County.<\/p>\n

The Court of Appeals concluded that the modification was permissible because the employees’ benefits did not accrue until actual retirement. Because the employees had not yet retired at the time the ordinance was modified and the benefit eliminated, they had no vested right to have the County provide reimbursement for the Medicaid Part B premiums.<\/p>\n

The Wisconsin Supreme Court affirmed. The Court undertook an analysis of the applicable ordinance history and discussed the difference between health benefits and pension benefits. The Court relied on its decision in Loth v. City of Milwaukee<\/span>, 2008 WI 129, 315 Wis.2d 35, 758 N.W.2d 766, which had held that that the City of Milwaukee could eliminate no-cost retirement health benefits for employees who had not yet retired.<\/p>\n

Justices Bradley and Abrahamson dissented. As in Stoker<\/span>, these two justices concluded that the employees\u2019 benefits vested at the time of their initial employment.<\/p>\n

\u2014 <\/span>Sarah B. Painter<\/p>\n<\/div>\n

\n

Zoning Variance or Conditional Use Permit Request Does Not Trigger Prohibition on Private Interest in a Public Contract<\/span><\/p>\n

Under Wis. Stat. \u00a7 946.13(1)(a), a public officer or employee is prohibited from negotiating, bidding or entering into a public contract in which he or she has a private pecuniary interest if at the same time he or she is authorized to take official action regarding such contract. A violation of this prohibition constitutes a Class I felony. The Waukesha District Attorney asked the Wisconsin Attorney General whether an alderman would violate this prohibition with respect to properties he owned and for which he was seeking a zoning variance and conditional use permit, if he abstains from voting on the zoning decisions related to the properties.<\/p>\n

In OAG-09-14, the Attorney General opined that Wis. Stat. \u00a7 946.13(1)(a) would not apply in the scenario presented because the statute applies to private interests in public \u201ccontracts\u201d and a request for a zoning variance or conditional use permit does not constitute a contract. According to the Opinion, a municipality\u2019s zoning decision is not a contract under Wisconsin law. The municipality does not make an agreement with the zoned property owner in exchange for consideration. Rather, the municipality\u2019s zoning power constitutes the exercise of the municipality\u2019s police power to be exercised for the health and welfare of the community.<\/p>\n

\u2014<\/span> Lawrie Kobza<\/p>\n<\/div>\n

\n

Summary Judgment on Governmental Immunity Grounds Reversed in Case Involving Natural Gas Explosion<\/span><\/p>\n

The Court of Appeals reversed a summary judgment granted to the City of Milwaukee on the grounds of governmental immunity where the response of the city fire department was alleged to be negligent. Oden v. City of Milwaukee<\/span>, 2014AP130 (Mar. 3, 2015)(recommended for publication).<\/p>\n

Two 911 callers reported smelling natural gas in their homes. The city police and fire departments were dispatched to the scene where they discovered natural gas bubbling up from the street. The responders reported the discovery and said that people were staying in their houses and that the responders would advise if evacuation was necessary. Six minutes later the fire fighters were sent back to their stations and left the police to wait for personnel from We Energies, the utility provider, to arrive. An explosion occurred in the basement of Oden’s home and she and her 8-year old son were seriously injured. An independent inspection concluded that the source of ignition was the water heater pilot light. The pilot light could have been extinguished if the gas supply to the home had been cut off at the outside meter. Oden sued the City, which successfully moved for summary judgment on governmental immunity grounds. The Court of Appeals reversed.<\/p>\n

The Court of Appeals found that two exceptions to governmental immunity were relevant: (1) ministerial duty and (2) known and compelling danger. A ministerial duty is one imposed by law and that is so specific that it removes any element of discretion. The known and compelling danger rule arises where a situation presents such a clear and immediate danger that it gives rise to a ministerial duty to take specific action. The Court held that both exceptions precluded the entry of summary judgment.<\/p>\n

City ordinances adopted by reference the National Fire Prevention Association code. The code requires that gas and electric utilities cooperate with localities to provide specialized training in how to respond to inadvertent gas leaks. The City mandated that all fire department personnel attend training presented by We Energies. This was the only specialized training they received. As part of the training, We Energies provided a First Responder Handbook. The handbook contained numerous statements that the area should be evacuated and that people should not be allowed to stay in their homes. Specific instructions included removing or eliminating all ignition sources. The Court found these instructions sufficiently detailed and specific to create a ministerial duty and that the situation clearly presented such an immediate and high risk of severe injury that the responders were required to take specific action. The Court remanded the case to the trial court for further proceedings to determine whether the responders had acted negligently in their performance of these ministerial duties.<\/p>\n

\u2014 <\/span>Mark J. Steichen<\/p>\n<\/div>\n

\n

Restrictions on the Duration of Rentals in Residential Districts Must Be Clearly Stated<\/span><\/p>\n

In a decision recommended for publication, the Court of Appeals upheld home owners’ rights to rent their homes in a single-family residential district on a short term basis. Heef Realty and Investments LLP v City of Cedarburg Board of Appeals<\/span>, 2014AP62 (Feb. 4, 2015).<\/p>\n

Two couples purchased second homes in single-family residential districts in the City of Cedarburg. When they began renting them out on a short term basis, the city zoning administrator sent them notices stating that their use violated the zoning code. The couples appealed to the city’s board of zoning appeals (BZA). In the appeal, the city zoning administrator testified that the City allows long term but not short term rentals.<\/p>\n

The zoning code lists “single-family dwellings” as a permitted use in its RS-5 residential district. The code has a standard definition of “dwelling,” namely “any building or portion thereof designed or used exclusively as a residence and having cooking facilities, but not including boarding or lodging houses, motels, hotels, tents, cabins, or mobile homes.” It does not include any definitions of short term or long term and there is no express language on the duration of rentals. Ultimately the BZA upheld the zoning administrator’s interpretation.<\/p>\n

On certiorari review, the circuit court reversed the BZA and held that the couples were entitled to rent their properties without any time limitation. The Court of Appeals affirmed. The appellate court began its analysis with the rule that the law favors the free use of land. Since zoning is in derogation of common law, restrictions on use must be clear and unambiguous. The single family residence requirement is fulfilled as long as only one family is occupying the dwelling at any one time. The court cited as dispositive an earlier case upholding a time share arrangement in which 13 families each had 4 weeks’ use of a single home. State ex rel. Harding v. Door County Bd. of Adj<\/span>., 125 Wis. 2d 269, 371 N.W.2d 403 (Ct. App. 1985).<\/p>\n

The Heef Realty<\/span> case probably affects most municipalities in the state since, at least in the author’s experience, few zoning codes include an express minimum duration of rentals. There is a difference in character between short term rentals–in the range of daily, weekly or even monthly stays–and long term rentals on the order of annual leases. In general, the shorter the term of the rental, the less of a stake the tenants have in the character of the neighborhood, which may result in less constraint on their behavior. With shorter rental periods, there is more activity as renters move in and out of the residence on a frequent basis. Plus, neighbors know less about who is authorized to use the residence, making it harder for them to discern strangers who might pose a threat of criminal activity.<\/p>\n

Municipalities who wish to set time limits on rental of homes within single-family or even two-family residential districts will need to include express limitations in their zoning codes. The details of the restrictions involve policy choices and pitfalls; there is no simple one-size-fits-all language. Banning all rentals would place significant hardships on owners. Requiring that the home be the person’s primary place of residence would affect vacation homes and potentially snow birds if a person changes their official residence or spends more time out of state than at their Wisconsin residence. One option is to place an across the board minimum duration for rentals. Another option would be to require, if the home is not owner-occupied, that it be the primary residence of the occupant.<\/p>\n

In the end, municipalities who wish to regulate the duration of rentals must have express language in their zoning codes. Those municipalities should start by identifying their goals and reasons for restricting the duration. Once identified, careful drafting will be necessary to achieve those goals without unwanted, unintended consequences.<\/p>\n

\u2014<\/span> Mark J. Steichen<\/p>\n<\/div>\n

\n

FCC Chairman Responds to the Myths Surrounding Recent \u201cOpen Internet Order\u201d<\/span><\/p>\n<\/div>\n

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In defense of the Federal Communications Commission\u2019s Open Internet Order, which was released March 12th, Commission Chair Tom Wheeler issued a statement intended to debunk the \u201cmyths\u201d regarding the impact of the Order. According to Commissioner Wheeler, the Order promotes net neutrality by putting in place \u201cbright line rules to ban blocking, throttling and paid prioritization (or \u2018fast lanes\u2019).\u201d<\/p>\n

The Order is controversial even among net neutrality supporters primarily because the rules applying to common carriers found in Title II of the Federal Communications Act will now apply to broadband providers. Also controversial is the Commission\u2019s position that Section 706 of the Telecommunications Act of 1996, called \u201cAdvanced Telecommunications Incentives,\u201d gives the FCC authority to impose its new net neutrality rules on Internet service providers. Generally, Section 706 authorizes the FCC to encourage the nation-wide deployment of advanced telecommunications services, including high-speed broadband, by using price cap regulation, regulatory forbearance, measures that promote competition in the local telecommunications market, or other regulating methods that remove barriers to infrastructure investment.<\/p>\n

In response to the charge that the Internet will be regulated just like a public utility, Commissioner Wheeler firmly stated that there is no \u201cutility-style\u201d regulation. Rather, he states, that the Order avoids the \u201ckinds of tariffing, rate regulation, unbundling requirements and administrative burdens that are the hallmarks of traditional utility regulation.\u201d He made clear that \u201c[n]o broadband provider will need to get the FCC\u2019s approval before offering any price, product or plan.\u201d He assured that \u201c[b]roadband providers will be able to adjust retail rates without Commission approval and without having to wait even a minute.\u201d<\/p>\n

In response to the claim that the rules will result in increased consumer bills for Internet service, Commissioner Wheeler explained that the Order does not impose any new taxes or fees, nor does it \u201cimpose mandatory contribution assessments, but simply allows a current, separate proceeding on how to reform universal service contributions to proceed.\u201d<\/p>\n

The Chair also addressed concerns that the new rules \u201cwill embolden authoritarian states to tighten their grip on the Internet,\u201d stating that, to the contrary, the Order is a strong statement that no one \u2013 government or corporation \u2013 should interfere with the user\u2019s right of free and open access to the Internet.\u201d<\/p>\n

Finally, Commissioner Wheeler also made clear that the Order is not part of a larger plan to allow the federal government to take over the Internet. He clarified that the Order does not \u201cregulate the Internet,\u201d but rather applies to broadband providers to \u201cprotect[] consumers\u2019 and innovators\u2019 \u2018last-mile\u2019 access to what\u2019s on the Internet\u2014the applications, content or services that ride on it and the devices that attach to it. It means consumers can go where they want, when they want and it means innovators can develop products and services without asking for permission.\u201d<\/p>\n

The full text of Commissioner Wheeler\u2019s statement can be found at http:\/\/www.fcc.gov\/document\/fcc-open-internet-order-separating-fact-fiction.<\/p>\n

\u2014 <\/span>Anita T. Gallucci<\/p>\n<\/div>\n

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FCC Preempts State Laws Restricting Municipal Broadband in North Carolina and Tennessee<\/span><\/p>\n<\/div>\n

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On the same day the Federal Communications Commission issued it Open Internet Order (see article on page four), the Commission also exercised its authority to preempt state laws in Tennessee and North Carolina that prevented the petitioning municipalities from expanding their broadband service territories in order to meet local demand for broadband service. While the Commission\u2019s order only applies to these two cities, FCC Chair Tom Wheeler has conceded that the decision provides guidance on what the FCC would do with similarly situated municipal providers.<\/p>\n

The Commission\u2019s order finds that the challenged North Carolina and Tennessee laws operate as barriers to broadband deployment, investment and competition, and conflict with the FCC\u2019s mandate pursuant to Section 706 of the Telecommunications Act to promote these goals. The state laws had effectively prevented the cities from expanding broadband service outside their current footprints despite numerous requests for service from neighboring unserved and underserved communities.<\/p>\n

The petitions were filed by the Electric Power Board, a municipal broadband provider in Chattanooga, Tennessee, and the City of Wilson, North Carolina. In addition to providing electric service, both operate broadband networks providing Gigabit-per-second broadband, voice, and video service. The networks in both areas have attracted major employers to both communities. Wilson\u2019s system also provides free Wi-Fi in its downtown area.<\/p>\n

The Tennessee law prohibits municipal electric utilities from providing Internet and cable services outside of the municipality\u2019s electric service territory. The North Carolina law imposed conditions on municipalities that effectively precluded the City of Wilson from expanding its broadband service into neighboring counties. One such condition prevented municipal providers from expanding into areas in which the private sector delivers service at speeds of up to 768 kbps, which is a fraction of the FCC\u2019s current benchmark of 25 Mbps downstream and 3 Mbps upstream.<\/p>\n

In support of its Order, the Commission found that there was a \u201cclean conflict\u201d between Section 706, which authorizes the FCC to take steps to remove barriers to broadband investment and competition, and the Tennessee and North Carolina laws that erect barriers to expansion of service into surrounding communities, including unserved and underserved areas.<\/p>\n

The FCC recognized that its preemption of such laws will likely speed broadband investment, increase competition, and serve the public interest.<\/p>\n

The full text of the Order can be found at http:\/\/transition.fcc.gov\/Daily_Releases\/Daily_Business\/2015\/db0312\/FCC-15-25A1.pdf.<\/p>\n

\u2014<\/span> Anita T. Gallucci<\/p>\n<\/div>\n","excerpt":"

Wisconsin courts have issued several decisions over the years providing guidance to public sector employers regarding benefits for retirees and how the status of a benefit as \u201cvested\u201d or not affects an employer\u2019s ability to modify the benefit. Continue reading →<\/span><\/a><\/p>\n","date":"2015-03-31 13:24:08","categories":[{"id":35,"slug":"municipal-newsletter","title":"Municipal Newsletter","description":"","parent":32,"post_count":41},{"id":12,"slug":"energy-telecom","title":"Energy & Telecom","description":"","parent":3,"post_count":43},{"id":91,"slug":"local-government","title":"Local Government","description":"","parent":3,"post_count":35},{"id":42,"slug":"public_utility","title":"Public Utility","description":"","parent":3,"post_count":41},{"id":44,"slug":"utility-law","title":"Utility Law","description":"Links to Energy & Telecom page.","parent":3,"post_count":28}]},{"id":7497,"type":"publications","status":"publish","title":"Supreme Court Narrows Condemnation Liability for Change in Road Access","title_plain":"Supreme Court Narrows Condemnation Liability for Change in Road Access","content":"

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In 118th Street v. Wisconsin Department of Transportation (DOT)<\/span>, 2014 WI 125, the Wisconsin Supreme Court scaled back the liability that municipalities and all other bodies with condemnation power faced in condemnation that is indirectly related to road expansion, relocation or abandonment. The ruling overturns the Court of Appeals decision in 118th Street v. DOT<\/span>, 2013 WI App 147, 352 Wis. 2d 183, 841 N.W.2d 568.<\/p>\n

The case involves a property owner (118th Street Kenosha, LLC) who had a commercial property located on 118th Street in Kenosha. The property had a driveway with direct access onto 118th Street. It had another driveway around the corner onto a private road named 74th Place. As part of a larger construction project, the DOT abandoned 118th Street along the block abutting the property and relocated it a block further east. The DOT acquired a temporary limited easement (TLE) from the owner along 74th Place and built an additional two-lane driveway entrance so that the property now had two driveways onto 74th Place. The owner and the DOT stipulated to compensation for the TLE itself in the amount of $21,000 based on the rental value of the land temporarily used by the DOT to construct the new driveway. The owner’s appraiser opined that the property declined in value by $400,000 as a result of the relocation of 118th Street. The owner sought compensation for the diminished value under section 32.09(6g), Wis. Stats., which governs compensation for the taking of easements.<\/p>\n

The trial court granted the DOT’s motion in limine<\/span> excluding evidence of damages caused by the loss of direct access to 118th Street. The court reasoned that section 32.09(6g) only allows damages that result from an easement. The court found that the loss of direct access was caused by the relocation of 118th Street and not by the acquisition of the TLE. The Court of Appeals reversed. Section 32.09(6g) talks about compensation for an easement comparing its value before the taking and its value after the taking “assuming completion of the public project.” The Court of Appeals considered the “public project” to encompass the entire road improvement project, including the relocation of 118th Street. Accordingly, it found that taking the TLE was an “integral part” of the public project and that the owner was entitled to a jury determination as to the impact of the loss of direct access to 118th Street.<\/p>\n

The Supreme Court faced three issues: (a) whether a temporary limited easement is compensable under section 32.09(6g)[as opposed to, for example, the Wisconsin Constitution’s takings clause]; (b) whether, assuming that 32.09(6g) applies, the diminution in value due to the loss of direct access to 118th Street is compensable on the theory that the TLE caused the loss, and; (c) whether no compensation for the diminished value was required because the relocation of 118th Street was an exercise of the police power. The Court assumed without deciding that section 32.09(6g) applied but rejected the “integral part” theory and held that the taking of the TLE did not cause the loss of direct access and no compensation for diminished value was permitted. Because the Court decided the case based on this narrow issue, it did not reach the question about the police power. The Court did hint that the analysis might be different if the owner’s case was based on a different theory. While cryptic, the Court may be referring to an inverse condemnation claim based directly on the relocation of 118th Street.<\/p>\n

Issues involving changes in road access is a whole subset of law in eminent domain. The Court reviewed the circumstances in a number of prior cases to distill the rules governing when a taking of property that is part of a larger public project involving changes in a road abutting the property may be compensable. One of the leading cases on which property owners rely in making claims for damages for change in road access is National Auto Truck Stops Inc. v. DOT<\/span>, 2003 WI 95, 263 Wis. 2d 649, 665 N.W.2d 198, which holds, in part, that a property owner is entitled to compensation if its existing access is taken and the substitute access it retains after the taking is “unreasonable.” The Court distinguished this case from a number of others. In National Auto<\/span>, the truck stop had two points of access to the highway. The DOT acquired a strip of land encompassing both access points in order to build a new frontage road. In that case, the owner was entitled to “reasonable” replacement access and to compensation if the replacement access was “unreasonable” (what constitutes “reasonable access” is a fact-intensive question for the jury). The Court contrasted National Auto<\/span> with several other cases, including Carazalla v. State<\/span>, 269 Wis. 593, 71 N.W.2d 276 (1955). In Carazalla<\/span>, the owner’s property abutted Highway 51 in Marathon County. The county acquired 13.05 acres of land from the Carazallas and Highway 51 was relocated to that land. However, the land that was acquired did not include the property’s access point to the highway. Therefore, evidence of a change in value of the property due to the relocation of Highway 51 was not compensable. Since the property that was taken did not access the highway in the pre-existing condition, it did not cause the loss in value. Of critical importance is that the Court did not consider an expansive view of the highway project in comparing the value of Carazalla’s entire property before the taking to the value of the entire property afterward.<\/p>\n

The Supreme Court’s decision in 118th Street<\/span> is beneficial to municipalities because it rejects the “integral part” test that was adopted in the Court of Appeals’ decision. The “integral part” test opened up potential damages to creative theories by property owners that would be difficult for condemnors to assess in advance. The decision must be viewed with some caution, however. The Court limited its holding to whether the taking of the temporary limited easement under these particular circumstances was compensable under section 32.09(6g). It did not rule out other potential theories for recovery.<\/p>\n

\u2014<\/span> Mark J. Steichen<\/p>\n<\/div>\n

\n

Lower Streetlight Utility Rates May Be Available to Some Municipalities<\/span><\/p>\n

In the recent Wisconsin Electric Power Company (WEPCO) electric rate case, the Public Service Commission of Wisconsin approved new utility rates for streetlighting that could reduce costs for some municipalities. Municipalities that might be eligible should contact WEPCO to ask about these new streetlight rates.<\/p>\n

In the WEPCO rate case, the PSC approved the creation of a new, optional, St2 tariff for streetlights owned by local governmental units. (Final Decision in PSC Docket 5-UR-107.) WEPCO\u2019s existing St1 tariff is a time of use streetlight tariff available to governmental units. The St1 tariff has a 14-hour on-peak period from 7:00 a.m. to 9:00 p.m. That means that a local government would pay peak energy rates for streetlighting that is on between 7:00 a.m. to 9:00 p.m. The optional St2 tariff will have a 12-hour on-peak period, so that a local government would only pay peak energy rates for streetlighting that is on between 6:00 a.m. to 6:00p.m. According to WEPCO, local governments currently using the St1 tariff could save between $1.0 and $1.2 million dollars annually in streetlight electricity costs by changing to the proposed St2 tariff.<\/p>\n

\u2014<\/span> Lawrie Kobza<\/p>\n<\/div>\n

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Town Fire Protection Charge Is Not a Disguised Tax According to Wisconsin\u2019s Attorney General<\/span><\/p>\n

A town\u2019s fire protection charge imposed under Wis. Stat. \u00a7 60.55(2)(b) is not a tax, but rather is a fee which can properly be charged to a tax-exempt entity such as a county, according to the Wisconsin Attorney General. (OAG-01-15). A town in Clark County adopted an ordinance that charged all real property within the town a fire protection charge using a fee schedule based on the size and type of property (called a domestic user equivalent). Clark County received bills for fire protection under this ordinance. Clark County asked the Attorney General for an opinion on whether this fire protection charge was a fee or a tax, and whether it could be charged to a tax exempt entity like the county.<\/p>\n

In reaching his conclusion that the fire protection charge was a fee that could be charged to the county, the Attorney General first opined that the town had the authority to impose a charge under Wis. Stat. \u00a7 60.55(2)(b) for \u201cfire protection,\u201d and that this charge could be imposed regardless of whether a fire call to a property was actually made.<\/p>\n

The Attorney General next addressed the bigger question of whether the charge could be imposed against a tax exempt entity like the county. The answer to that question, he stated, depended upon whether the charge was a tax imposed on property owners to raise general revenues or as a fee assessed for services provided. After analyzing the question, the Attorney General opined that the charge was more in the nature of a fee than a tax. In support of his opinion, he noted that the legislature referred to the charge as a \u201cfee\u201d rather than a tax, and that it would have been reasonable for the legislature to provide a fee mechanism for towns to recover the cost of fire protection services from tax-exempt entities. The Attorney General also stated, with relatively little discussion, that the primary purpose of the charge was to recoup the cost of the expense of providing fire protection to property in the community, and that it was not designed to raise general revenue.<\/p>\n

In support of his opinion, the Attorney General cited to City of River Falls v. St. Bridget\u2019s Catholic Church<\/span>, 182 Wis. 2d 436, 513 N.W.2d 673 (Ct. App. 1994). In that case, the Wisconsin Court of Appeals concluded that a similar public fire protection charge for water availability imposed under Wis. Stat. \u00a7 196.03(3)(b) was a fee, not a tax, which could be charged to tax exempt properties.<\/p>\n

In both OAG-01-15, and St. Bridget\u2019s<\/span>, the fire protection charges at issue took into account characteristics of the real property provided with fire protection service. In OAG-01-15, fire protection charges were based on the size and type of property using a \u201cdomestic user equivalent\u201d methodology. In St. Bridget\u2019s<\/span>, fire protection charges were based on property value. In both cases, the charges were upheld as proper fees. Neither case, however, provided much discussion on the use of property characteristics or property value to establish fees.<\/p>\n

\u2014<\/span> Lawrie Kobza<\/p>\n<\/div>\n

\n

Community Broadband Back in the News Nationally: What Does This Mean for Wisconsin?<\/span><\/p>\n

In his State of the Union address (\u201cSOTU\u201d), President Obama said he wanted to extend the reach of the Internet \u201cto every classroom, and every community, and help folks build the fastest networks, so that the next generation of digital innovators and entrepreneurs have the platform to keep reshaping our world.\u201d The President has made clear that he believes municipal government has a significant role to play in helping the nation achieve that goal.<\/p>\n

The Obama Administration recently announced that the Department of Commerce is launching a new initiative, called BroadbandUSA, to promote broadband deployment and adoption. The program will offer online and in-person technical assistance to communities; host a series of regional workshops around the country; and publish guides and tools that will aid communities in addressing problems in broadband infrastructure planning, financing, construction, and operation.<\/p>\n

The Obama Administration also supports the removal of state law barriers that prevent or hinder local communities from responding to the broadband needs of their citizens. Toward that end, just a few days after SOTU, the Community Broadband Act (“Act”) was introduced in the Senate by a group of Democratic senators. The Act, which will amend the Telecommunications Act of 1996, is intended to remove roadblocks states have thrown up to prevent or delay the creation and expansion of municipally owned broadband networks. About 19 states around the country have passed laws that prohibit or make it difficult for municipalities to create or expand their own broadband networks. The Community Broadband Act seeks to overturn these laws.<\/p>\n

The Act\u2019s proponents believe that municipal broadband can provide an affordable and reliable means of bridging the \u201cdigital divide\u201d that has left many rural and low-income communities across the country without reasonable access to high-speed Internet services.<\/p>\n

Wisconsin is often listed as one of the 19 states that has erected administrative hurdles, making it more difficult for municipalities to become community broadband providers. A closer look at the relevant Wisconsin law, however, leads to a different conclusion; namely, that there are no significant legal impediments preventing Wisconsin municipalities from addressing the broadband needs of their community.<\/p>\n

To begin with, Wisconsin cities, villages, and towns all have authority to construct, own and operate broadband systems to provide Internet service. However, there are certain procedural steps a municipality must follow under Wis. Stat. \u00a7 66.0422 in doing so. That is, before the municipality may enact an ordinance or adopt a resolution authorizing a project to construct, own, or operate any facility to provide broadband service, the municipality must take the following steps:<\/p>\n

Step 1:<\/span> Prepare a Report. The municipality must prepare a report that estimates the total costs of, and revenues derived from, constructing, owning, or operating the facility. The report is to include a 3-year cost-benefit analysis, which examines personnel costs and the costs of acquiring, installing, maintaining, repairing, or operating any plant or equipment. The analysis must include an appropriate allocated portion of costs of personnel, plant, or equipment that are jointly used to provide both broadband services and other municipal services (e.g., electric, water, sewer).<\/p>\n

Step 2: <\/span> Publish the Report. The municipality must make its report available for public inspection at least 30 days before holding a public hearing on the authorizing ordinance or resolution.<\/p>\n

Step 3:<\/span> Hold a Public Hearing. Before adopting the authorizing ordinance or resolution, the municipality must hold a public hearing on the proposed project. Typically, the report would be presented at the public hearing, as well as any other studies the municipality had conducted related to the feasibility, cost, and funding of the project.<\/p>\n

These steps do not have to be onerous and most communities would likely do more than what the statute requires before proceeding with a broadband project.<\/p>\n

\u2014<\/span> Anita T. Gallucci<\/p>\n<\/div>\n

\n

B&C Teams Up with League to Sponsor Energy Workshop for Municipalities<\/span><\/p>\n

Many municipalities are facing higher energy costs, as well as growing interest from local residents and businesses in efforts to promote energy efficiency, renewable energy and improved air quality. In recognition of this, Boardman & Clark is joining forces with the League of Wisconsin Municipalities to sponsor a special seminar on what local governments can do — and in many cases, are doing — to develop a more proactive approach to energy issues. The one day workshop, which is titled \u201cOn the Road to Energy Self-Sufficiency: Practical Approaches to Net-Zero,\u201d is scheduled to take place on March 4, 2015 at the Olympia Resort in Oconomowoc.<\/p>\n

At the workshop, Wisconsin local government officials will conduct working sessions to discuss a wide-range of energy initiatives they are currently undertaking to serve their communities. Scheduled presentations include representatives from: (i) the Sheboygan Regional Wastewater Treatment Plant discussing biogas production at their facility; (ii) the City of Monona discussing their recent solar energy installations; (iii) the City of Racine discussing how they have implemented an LED street light program; and (iv) the City of Janesville discussing a project to use compressed natural gas to fuel city vehicles. The presenters will explain how their community chose the project, how the project was implemented, how it is performing, the costs of the project, and the project\u2019s return on investment. Each presentation will be followed by discussion in order to provide attendees with the opportunity to get questions answered and share their own experiences.<\/p>\n

The workshop also features a keynote address from Jeff Rich of Gundersen Health Systems in La Crosse explaining how and why they became the first health system in the nation to achieve energy independence. A luncheon presentation by noted municipal energy specialist Mike Bull will highlight the City of Minneapolis\u2019s efforts to achieve its energy policy goals by working collaboratively with their electric utility.<\/p>\n

The workshop is being offered to registrants at a cost of $49 per attendee and is aimed especially at municipal officials from small to medium-sized municipalities, including municipal utility and city project managers, city administrators, finance directors, and other local officials interested in energy issues. For additional information about the seminar and registration, contact Charlene Beals at 608-283-1723, or go directly to the League of Wisconsin Municipalities website: http:\/\/bit.ly\/342015ENERGYseminar.<\/p>\n

\u2014<\/span> Richard A, Heinemann<\/p>\n<\/div>\n","excerpt":"

The Wisconsin Supreme Court has scaled back the liability that municipalities and all other bodies with condemnation power faced in condemnation that is indirectly related to road expansion, relocation or abandonment. Continue reading →<\/span><\/a><\/p>\n","date":"2015-02-05 17:00:28","categories":[{"id":35,"slug":"municipal-newsletter","title":"Municipal Newsletter","description":"","parent":32,"post_count":41},{"id":12,"slug":"energy-telecom","title":"Energy & Telecom","description":"","parent":3,"post_count":43},{"id":91,"slug":"local-government","title":"Local Government","description":"","parent":3,"post_count":35},{"id":42,"slug":"public_utility","title":"Public Utility","description":"","parent":3,"post_count":41},{"id":44,"slug":"utility-law","title":"Utility Law","description":"Links to Energy & Telecom page.","parent":3,"post_count":28}]},{"id":7382,"type":"publications","status":"publish","title":"Municipal Newsletter – December 2014","title_plain":"Municipal Newsletter – December 2014","content":"

Click here to view newsletter PDF<\/a>.<\/p>\n","excerpt":"

Cumulative Topical Index of Articles 2013 to 2014. Continue reading →<\/span><\/a><\/p>\n","date":"2015-01-07 11:53:14","categories":[{"id":35,"slug":"municipal-newsletter","title":"Municipal Newsletter","description":"","parent":32,"post_count":41},{"id":12,"slug":"energy-telecom","title":"Energy & Telecom","description":"","parent":3,"post_count":43},{"id":91,"slug":"local-government","title":"Local Government","description":"","parent":3,"post_count":35},{"id":42,"slug":"public_utility","title":"Public Utility","description":"","parent":3,"post_count":41},{"id":44,"slug":"utility-law","title":"Utility Law","description":"Links to Energy & Telecom page.","parent":3,"post_count":28}]},{"id":7280,"type":"publications","status":"publish","title":"Public Service Commission Tells Milwaukee to Accelerate Water Main Replacement","title_plain":"Public Service Commission Tells Milwaukee to Accelerate Water Main Replacement","content":"

\n
\n

The Public Service Commission (PSC) approved Milwaukee\u2019s request for a water rate increase on October 30, 2014 (PSC Docket No. 3720-WR-108). Several noteworthy requirements regarding Milwaukee\u2019s water main replacement program were included in the decision.<\/p>\n

The PSC raised concerns with aging water infrastructure and the need to spend increasing amounts on main replacements in its decision. Milwaukee initially took the position that it would replace 15 miles of main per year using cash financing. After the hearing was held, but before the PSC\u2019s decision, Milwaukee proposed accelerating its main replacement program to replace 15 miles of main in 2015-17, 18 miles in 2018-2019, and 20 miles in 2020. Milwaukee\u2019s water superintendent indicated that a revised funding plan had been worked on with the City\u2019s Budget Office, which would propose to issue $92 million in debt by 2020 in order to fund this quantity of main replacements.<\/p>\n

The PSC accepted Milwaukee\u2019s revised main replacement program as a minimal effort and opined that Milwaukee will likely need to expand its main replacement efforts above proposed levels. The PSC required Milwaukee to hire an independent consultant to do a main replacement study and to submit a copy of the final report prepared by the consultant. In addition, Milwaukee must report to the PSC every six months regarding the condition of its mains and provide a copy of its main break reports.<\/p>\n

During the hearing, PSC staff raised concerns about Milwaukee\u2019s main replacement program. Milwaukee has a total of 1,961 miles of main. Based on an average useful life of 77 to 100 years, PSC staff calculated that Milwaukee must replace between 20 to 25 miles of main each year to ensure mains do not exceed their useful life. When considering facts relevant to the condition of Milwaukee\u2019s water mains, PSC staff testified that Milwaukee would need to replace even more main each year. Milwaukee has 843 miles of main that were installed between 1880 and 1943 (pre-World War II) that have a remaining life of 54 years. At least 15.6 miles of this main would have to be replaced each year to upgrade it by the end of its remaining life. Milwaukee also has 431 miles of main installed between 1943 and 1963 (post-World War II) which is in worse condition than the pre-World War II main. Milwaukee indicated this main is expected to have a remaining life of 34 years. PSC staff computed that it will require 12.7 miles of main to be replaced each year to upgrade this vintage of main by the end of its remaining life. Using straight line depreciation, PSC staff testified that Milwaukee would need to replace about 28 miles of main per year to upgrade each vintage of main by the end of their respective remaining lives.<\/p>\n

Data regarding Milwaukee\u2019s actual experience with its main breaks was also presented during the rate case. Milwaukee provided a 70-page list of sections of main that are still in the ground that have experienced one or more main breaks. The PSC also raised concerns that Milwaukee experienced 82 main breaks in six days when the Howard Avenue Treatment Plant was shut down and that the system relied solely on the Linnwood Treatment Plant, which required higher water pressure exiting the Linnwood Plant. This information was presented to demonstrate the concern that deferred maintenance could lead to possible catastrophic failures.<\/p>\n

The PSC also discussed Milwaukee\u2019s method of funding water main replacements. Milwaukee originally testified that it intended to cash finance all main replacements. As a general proposition, PSC staff testified that for small water systems that are primarily constructed over a few years, it is not reasonable to finance construction through current rates because current ratepayers would be paying for improvements that would primarily benefit future users, thereby creating intergenerational inequities. While it may be possible for a large water utility to finance main replacements from current rates if those mains were originally installed over an extended period of time, and are not failing or reaching the end of useful life simultaneously, Milwaukee has not steadily replaced its water mains. According to the PSC, Milwaukee has replaced less than 1% of its mains since at least 1972 and needs to catch up due to deferred main replacements. PSC staff computed that using cash financing only, with a 5.38% rate of return, Milwaukee would only have funds to replace about 17 miles of main a year \u2013 much less than the 28 miles of main per year that PSC staff felt needed to be replaced. PSC staff testified that Milwaukee could issue $100 million in debt and that its total debt would still be below 28% of its total capital structure.<\/p>\n

The PSC\u2019s decision noted that, while water utilities have a great deal of latitude in selecting their financing methods, the PSC has an interest in ensuring intergenerational equity when it comes to financing infrastructure. The PSC put Milwaukee on notice that, given Milwaukee\u2019s funding needs and its ample future bonding capacity, Milwaukee may need to issue more debt than the amount proposed in its revised financing plan in order to meet its future infrastructure replacement needs.<\/p>\n

\u2014<\/span> Lawrie Kobza<\/p>\n<\/div>\n

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Contractual \u201cFee in Lieu of Room Tax\u201d Struck Down<\/span><\/p>\n

The City of Delavan entered into a development agreement with Delavan Resort Holdings related to the development of the Lodges at Lake Lawn Resort Condominium. Part of the development agreement required the developer to adopt condominium declarations that would require that part of the development be deemed to be rental units. The developer agreed in the development agreement that a fee would be imposed on the owner of a rental unit in the affected area who did not want to rent his or her unit to the public. The agreement required that the fee would be paid to the City \u201cin lieu of the room tax which the City would have otherwise received from the rental of such Unit to the public.\u201d<\/p>\n

Certain owners chose to not rent their units to the public and paid the fee. They then sued the City and the condominium association seeking a judgment declaring the fee to be illegal and requesting a refund of fees paid to date. The City argued that the fee was a valid and enforceable contractual term and not a tax. The circuit court sided with the City, and the owners appeal. On appeal, the Court of Appeals reversed and held the \u201cfee in lieu of room tax\u201d to be a tax that the City was not authorized to impose. Bentivenga v. City of Delavan,<\/span> (Ct. App., Dist. II, Decided October 15, 2014)<\/p>\n

In its finding that the \u201cfee in lieu of room tax\u201d was a tax, the Court focused on the fact that the revenue collected from the owners who chose not to rent their units was not dedicated to the provision of any service or regulation but was purely for general government revenue. The Court also noted that increases in the fee were linked to increases in the consumer price index or average room tax collections at the resort, not the expense of any specific governmental services.<\/p>\n

The Court rejected the City\u2019s argument that the fee was not a tax, but a \u201ccontractual penalty\u201d that the City could bargain for in its proprietary capacity. The City, relying on Baylake Bank v. Fairway Properties of Wisconsin, LLC,<\/span> No. 2010AP2632, unpublished slip op. (WI App Sept. 15, 2011), argued that it was authorized to impose such a penalty via the development agreement as a back-up mechanism to receive room taxes lost by the owners\u2019 decision to not rent their units to the public. The Court stated that the City\u2019s reliance on Baylake Bank<\/span>, which dealt with a liquidated damages penalty provision in a development agreement, was misplaced. The provision at issue in Baylake Bank<\/span> allowed the city to recoup the expenses it incurred for its part of the agreement if the developer did not develop property as promised to generate revenue to cover the City\u2019s costs. The \u201cfee in lieu of room tax\u201d at issue in this case did not help the City recoup its investment in the resort development, but rather was the City\u2019s way of collecting revenue that it had hoped to receive through taxation. The Court noted that the revenue at issue here was not designated for any development-related purpose but was to go into the City\u2019s general fund.<\/p>\n

The fact that the \u201cfee in lieu of room tax\u201d was imposed by contract did not give the City the authority to impose the tax. According to the Court, the \u201cfee in lieu of room tax\u201d is a revenue generator for the City that is imposed on a certain class of residents without legislative permission and is therefore illegal.<\/p>\n

\u2014<\/span> Lawrie Kobza<\/p>\n<\/div>\n

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Public Records Law Not Applicable to Wisconsin Counties Association<\/span><\/p>\n

The Wisconsin Court of Appeals has decided that the Wisconsin Counties Association is not subject to the public records law. Wisconsin Professional Police Association, Inc. v. Wisconsin Counties Association<\/span>, 2014AP249 (Ct. App. Dist. IV, decided September 18, 2014).<\/p>\n

The Wisconsin Police Association submitted a public records request to the Wisconsin Counties Association. The Counties Association is an unincorporated not-for-profit association. The Counties Association responded that the public records law \u201cdoes not apply to the Wisconsin Counties Association\u201d and the Police Association sued to enforce the public records law against the Counties Association. The circuit court found that the public records law did not apply to the Counties Association, and the Police Association appealed.<\/p>\n

The Police Association argued that the Counties Association is an \u201cauthority\u201d under the public records law. The term \u201cauthority,\u201d is defined in Wis. Stat. \u00a7 19.32(1). The Police Association argued that the Counties Association specifically fit within the statutory category of a \u201cquasi-governmental corporation.\u201d The Counties Association argued that it did not fall within the category of a \u201cquasi-governmental corporation\u201d because it is an unincorporated association \u2013 not a corporation. The Court of Appeals agreed that in order to be a \u201cquasi-governmental corporation\u201d under the definition of \u201cauthority\u201d an entity had to first be a corporation. The Court of Appeals was not persuaded that the Counties Association was a \u201ccorporation\u201d for purposes of the law. The Police Association argued that the Court of Appeals\u2019 interpretation created a loop-hole for unincorporated associations. But the Court of Appeals\u2019 responded that a contrary interpretation \u201cwould effectively rewrite the statute to eliminate the legislature\u2019s use of the word \u2018corporation.\u2019\u201d<\/p>\n

The Police Association made a late argument that the Counties Association also constituted a \u201cgovernmental body,\u201d covered by the public records law. The Court of Appeals, however, refused to address that issue because the Police Association did not raise that argument before the circuit court.<\/p>\n

\u2014<\/span> Lawrie Kobza<\/p>\n<\/div>\n

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DNR Must Require CAFO to Monitor Groundwater Where Area Is Susceptible to Contamination<\/span><\/p>\n<\/div>\n

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In describing the proliferation of contaminated wells in the Town of Lincoln, Kewaunee County, as \u201ca massive regulatory failure to protect groundwater,\u201d an Administrative Law Judge (ALJ) ordered the Wisconsin Department of Natural Resources (DNR) to require a large animal feeding operation to conduct groundwater monitoring as part of its wastewater discharge permit. The case involved Kinnard Farms, a concentrated animal feeding operation (CAFO), in the Town of Lincoln, Kewaunee County. Kinnard Farms applied to the DNR for reissuance of a Water Pollutant Discharge Elimination System (WPDES) permit and for approval of the plans and specifications for its facility. The DNR subsequently reissued the WPDES permit and conditionally approved the plans and specifications for the facility. Midwest Environmental Advocates (MSA) filed a petition for a contested case hearing with the DNR on behalf of petitioners who reside near the Kinnard Farms facility. A contested case hearing was held before the Wisconsin Department of Hearing and Appeals. On October 29, 2014, the ALJ issued his decision in Case No.: IH-12-071, approving, but modifying the WPDES permit.<\/p>\n

Wastewater discharges from CAFOs are regulated by Wisconsin Administrative Code Chapter NR 243. NR 243 does not require the calculation of water quality based effluent limits for CAFOs, but instead effluent limitations are based on proper manure and process wastewater storage, containment and land application practices. The WPDES permit issued to Kinnard Farms required that discharges authorized by the permit comply with surface water quality standards and groundwater quality standards. The ALJ found, however, that the DNR failed to include a groundwater monitoring condition in the WPDES permit to assure compliance with groundwater protection standards in this area which was susceptible to groundwater contamination.<\/p>\n

The ALJ found that the DNR is obligated to require groundwater monitoring in a WPDES permit when necessary. The DNR administrative code for CAFOs requires the installation of groundwater monitoring wells at a facility if it determines that groundwater monitoring “is necessary to evaluate impacts to groundwater and geologic or construction conditions warrant monitoring.” Wis. Admin. Code \u00a7 NR 243.15(7). The ALJ found that the petitioners and members of the public carried their burden of proof in establishing that groundwater monitoring is necessary in this case because the area at or near the facility and subject to landspreading contracts is “susceptible to groundwater contamination within the meaning of NR 243.15(3)(2)(a).”<\/p>\n

In reaching his decision, the ALJ noted that groundwater monitoring is not a standard requirement for WPDES permits. However, the ALJ found that the level of groundwater contamination including E. coli bacteria in the area at or near the project site was also very unusual, as was the proliferation of CAFOs in Kewaunee County. According to the ALJ, \u201c[m]embers of the public described what could fairly be called a groundwater contamination crisis in areas near the site.\u201d Witnesses testified that up to 50% of private wells in the Town of Lincoln were contaminated and that as many as 30% of the wells had tested positive for E. coli bacteria. Public comment witnesses suggested a plausible and even likely connection between the large numbers of CAFOs in the County and area and problems with groundwater contamination. They also testified about the hardship and financial problems that well water contamination had on their businesses, homes and daily life.<\/p>\n

Testimony also established that the area around Kinnard Farms was very vulnerable to groundwater contamination. Any pollution at the surface can travel rapidly through the shallow, glacial till soils and fractured carbonate bedrock. There would be little opportunity for attenuation and dispersion given the rapid transport through groundwater. In karst areas such as these, pollution at the surface would be able to travel rapidly through groundwater into down gradient wells.<\/p>\n

The ALJ described the proliferation of contaminated wells as \u201ca massive regulatory failure to protect groundwater in the Town of Lincoln.\u201d Given the proliferation of contaminated wells in the vicinity of Kinnard Farms and the likely presence of karst features including fractured bedrock, the ALJ found that the DNR should have exercised its clear regulatory authority to require groundwater monitoring at and near the facility. While the ALJ noted that it may be difficult to establish a reliable system of groundwater monitoring under these geologic circumstances, he stated that \u201c[t]he fact that groundwater monitoring might be difficult because of the very karst geological features that make the area particularly susceptible to groundwater contamination must not be used as an excuse not to exercise the DNR’s clear regulatory authority and duty to do so. Rather, such an effort must be undertaken to ensure that there is no further contamination of groundwater under these deplorable background conditions.\u201d<\/p>\n

The ALJ ordered that the WPDES permit be modified \u201cto do what is reasonably necessary to protect the drinking water of the residents\u201d and further protect the groundwater from contamination. The ALJ ordered that the permit be amended to require the permitee to establish a plan acceptable to the DNR for groundwater monitoring, which would include no less than six groundwater monitoring wells, at least two of which would monitor groundwater quality impacts from off-site landspreading.<\/p>\n

\u2014<\/span> Lawrie Kobza<\/p>\n<\/div>\n<\/div>\n","excerpt":"

The Public Service Commission (PSC) approved Milwaukee\u2019s request for a water rate increase on October 30, 2014 (PSC Docket No. 3720-WR-108). Continue reading →<\/span><\/a><\/p>\n","date":"2014-11-21 14:36:00","categories":[{"id":35,"slug":"municipal-newsletter","title":"Municipal Newsletter","description":"","parent":32,"post_count":41},{"id":12,"slug":"energy-telecom","title":"Energy & Telecom","description":"","parent":3,"post_count":43},{"id":17,"slug":"land-use","title":"Land Use and Zoning","description":"","parent":3,"post_count":28},{"id":91,"slug":"local-government","title":"Local Government","description":"","parent":3,"post_count":35},{"id":42,"slug":"public_utility","title":"Public Utility","description":"","parent":3,"post_count":41}]},{"id":7124,"type":"publications","status":"publish","title":"Circuit Court Rejects Diocese\u2019s Challenge to La Crosse\u2019s Stormwater Charge","title_plain":"Circuit Court Rejects Diocese\u2019s Challenge to La Crosse\u2019s Stormwater Charge","content":"

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The Diocese of La Crosse brought a lawsuit against the City of La Crosse challenging the City\u2019s imposition of stormwater utility charges against the Diocese, six Parishes associated with the Diocese, and Aquinas Catholic Schools. The Diocese argued that they were exempt from the City\u2019s stormwater charge. The City, represented by Boardman & Clark LLP, moved for summary judgment dismissing the lawsuit. In an August 1, 2014 decision, the La Crosse County Circuit Court granted the City\u2019s motion and dismissed the Diocese\u2019s challenge.<\/p>\n

La Crosse\u2019s stormwater utility was established as of January 1, 2012. Like other stormwater utilities across the state, it imposed stormwater charges on all developed property with impervious area in the City. The charges imposed were based on ERUs (or Equivalent Residential Units). One ERU is equal to the statistical average impervious area of a residential housing unit within the City. Residential property owners are charged for one ERU, and non-residential property owners are charged for the actual number of ERUs of impervious surface area on their property. La Crosse allows property owners to earn credits against their stormwater charges by implementing their own stormwater management practices on their property.<\/p>\n

The Diocese argued that, as a tax exempt entity, it is exempt from the City\u2019s stormwater charge. The Diocese argued that the City\u2019s stormwater charge was actually a \u201ctax,\u201d and it cited to a host of federal case law in support of its argument that the stormwater charge is really a tax, relying particularly on San Juan Cellular Telephone Co. v. Public Service Commission of Puerto Rico<\/span>, 967 F.2d 683 (1st Cir. 1992) and Oneida Tribe of Indians of Wisconsin v. Village of Hobart,<\/span> 891 F. Supp. 2d 1058 (E.D. Wis. 2012). The City argued, and the Court agreed, that these federal law cases were inapplicable to whether a charge was a tax under state law.<\/p>\n

Further, these federal cases did not address how the City\u2019s stormwater charge is a general property tax. As the Court noted, the Diocese is exempt from paying general property taxes, not from paying any and all taxes. The Court easily concluded that the City\u2019s stormwater charge is not a general property tax levied under Chapter 70 of the Wisconsin Statutes. Unlike general property taxes, the stormwater service charge is not levied on all property, and the amount of the service charge is in no way tied to a property\u2019s value.<\/p>\n

The Court also concluded that the City\u2019s stormwater charge imposed under Chapter 66 of the Wisconsin Statutes is not a different type of tax, but rather is a service charge allowed by the legislature under Wis. Stat. \u00a7 66.0821. According to the Court, under \u00a7 66.0821, municipalities have a choice of how to fund their stormwater management systems, and La Crosse has elected to fund its stormwater system by stormwater service charges instead of by taxation.<\/p>\n

The Court also commented with approval on certain characteristics of La Crosse\u2019s stormwater program. One, all money collected via the City\u2019s stormwater utility charges are used solely to fund stormwater utility projects and are not shared with any other part of the City\u2019s budget. Two, other than residential properties, the City\u2019s stormwater charge is tailored to each property based on the amount of impervious area on the property calculated using the most accurate methods possible. Three, property owner can receive a credit for taking positive steps to reduce their contribution to the stormwater system. According to the Court, these characteristics serve to demonstrate that the City\u2019s stormwater charges are genuine service charges rather than taxes.<\/p>\n

The Diocese also briefly raised the argument that the City\u2019s stormwater charge violated Article I, Section 18 of the Wisconsin Constitution. However, since the Diocese did not brief this issue, it was deemed waived.<\/p>\n

Attorneys Lawrie Kobza, Rich Bolton and Sarah Painter from Boardman & Clark LLP represented the City of La Crosse in the case.<\/p>\n

\u2014<\/span> Lawrie Kobza<\/p>\n<\/div>\n

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Milwaukee Seeks Rehearing of PSC Streetcar Decision on Utility Relocation Costs<\/span><\/p>\n

On September 17th, the City of Milwaukee petitioned the Public Service Commission of Wisconsin (the Commission) to rehear the Commission\u2019s final decision issued on August 29th in the Milwaukee Streetcar case. At issue in this declaratory ruling proceeding was whether a Milwaukee ordinance and resolution were unreasonable on the basis that that they each required We Energies, AT&T and others to relocate or modify their facilities in the right-of-way at the companies\u2019 expense to accommodate Milwaukee’s proposed streetcar project.<\/p>\n

The Commission determined that both the ordinance and the resolution as well as any other \u201ccurrent or future municipal regulations . . . that require the [companies] to pay any amount of modification or relocation costs to accommodate the Streetcar Project . . . are unreasonable and void, as applied\u201d to the project.<\/p>\n

In its rehearing request, Milwaukee asked, among other things, for the Commission to clarify just what effect its decision would have. The ordinance, which requires utilities to relocate their facilities at their expense when necessary to allow a public works project to proceed in city streets, is a relic from the days when Wisconsin courts made a distinction between governmental projects (for which the utilities paid their relocation expenses) versus proprietary projects (for which the city had to pay the utilities\u2019 relocation expenses). Since that distinction was rejected by the Wisconsin Supreme Court 52 years ago, Milwaukee has not relied on or applied that ordinance. Thus, Milwaukee asked the Commission to explain what effect voiding \u201cas applied\u201d an ordinance that has not, nor ever would have been, applied to the streetcar project could possibly have.<\/p>\n

The resolution voided by the Commission\u2019s final decision was adopted by the Milwaukee Common Council in July 2011. It approved the streetcar project and directed the Commissioner of Public Works, among others, to carry out the streetcar project. There was no directive requiring utilities to relocate or modify their utilities at their expense to accommodate the project. The rehearing request asked the Commission to clarify what the Commission intended by voiding this resolution and argued that the Commission had no authority to void a public works project, such as the streetcar project.<\/p>\n

Finally, the rehearing request questioned the Commission\u2019s authority to declare unreasonable and void actions that may or may not take place sometime in the future.<\/p>\n

The Commission has 30 days from the date the rehearing request was filed to act on the request. If the Commission does nothing, then the rehearing request is deemed denied as a matter of law. If that happens, the City will still have the opportunity to petition the circuit court for review of the PSC\u2019s final decision.<\/p>\n

\u2014<\/span> Anita T. Gallucci<\/p>\n<\/div>\n

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DNR Review of High Capacity Well Application Requires Consideration of Cumulative Impacts<\/span><\/p>\n

An Administrative Law Judge (ALJ) has determined that the Wisconsin Department of Natural Resources (DNR) is obligated to consider cumulative impacts related to a proposed high capacity well if it is presented with concrete information on those impacts. In reaching this conclusion, the ALJ rejected the DNR\u2019s contention that when reviewing a high capacity well application its legal authority is limited to considering only the potential adverse environmental impacts of the proposed high capacity well for which approval is being sought. The DNR took the position that it does not have the legal authority to take into account the cumulative impacts to the environment caused by the drawdown from the proposed well combined with the existing drawdowns of groundwater and surface waters.<\/p>\n

The case involved Richland Dairy which proposed to construct a concentrated animal feeding operation (CAFO) in Adams County, part of Wisconsin\u2019s Central Sands area. The Dairy filed an application for approval of two high capacity wells for the CAFO operation. The DNR approved the application for the two wells at a pumping rate of 72.5 million gallons per year (mgy). Family Farm Defenders, Friends of Central Sands, Pleasant Lake Management District and the Hanaman Family filed petitions for a contested case hearing regarding the well approval. A contested case was held and the ALJ issued his decision on September 3, 2014.<\/p>\n

The ALJ agreed with petitioners and held that the DNR was obligated to consider cumulative impacts from the proposed withdrawal and existing withdrawals in order to prevent \u201cpotential harm to waters of the state.\u201d According to the ALJ, \u201c[i]t is scientifically unsupported, and impossible as a practical matter, to manage water resources if cumulative impacts are not considered. That is, when assessing impacts to a resource, one must examine how existing and proposed impacts affect the resource as a whole from a pre-pumping or pre-impacted condition.\u201d<\/p>\n

The ALJ based his decision on a consideration of Wisconsin\u2019s specific high capacity well permitting statutory scheme, the Wisconsin Supreme Court\u2019s Lake Beulah <\/span>decision, and general common law principles set forth in the modified reasonable use doctrine. Under the modified reasonable use doctrine as set out in the Michels Pipeline <\/span>case, a landowner\u2019s rights to the use of groundwater for a beneficial use is recognized as being qualified. One cannot cause harm to others by lowering the water table or adversely impacting surface water.<\/p>\n

The ALJ found that the petitioners had met its burden of providing concrete evidence showing that pumping over the past several decades have impaired navigation on a nearby lake, deterred riparian owners from using the lake, eliminated boat access to a nearby wetland and harmed near-shore vegetation. According to the ALJ, Richfield Dairy\u2019s application would contribute to and likely worsen that condition at a 72.5 mgy pumping rate. Therefore, based upon his consideration of the concrete scientific evidence presented at hearing, the ALJ concluded that the permit should be limited to 52.5 mgy to prevent significant adverse impact to the nearby lake, wetland, creek, and spring.<\/p>\n

According to the ALJ, a reduction in the maximum annual withdrawal to 52.5 mgy would allow the dairy operation a \u201creasonable use\u201d of groundwater necessary to proceed while also ensuring that it does so in a manner that better protects public waters. Although public waters would still remain at some risk at this level of pumping, the ALJ concluded that a preponderance of the credible evidence supported a finding that at this reduced level detrimental environmental impacts would not be significant enough to deny the permit outright.<\/p>\n

According to the ALJ, his decision represents an appropriate balance between the rights of private parties to a reasonable use of waters of the State, and the rights of the public to not experience detrimental impacts to those public waters. \u201cInherent in the balancing which is at the heart of Wisconsin\u2019s rich tradition and practice in interpreting the public trust doctrine is the idea that neither private rights not public rights are paramount, and that, accordingly, often no single party gets exactly what it wants. This approach has served the state and its natural resources very well.\u201d<\/p>\n

\u2014<\/span> Lawrie Kobza<\/p>\n<\/div>\n

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Regulatory Watch<\/span><\/p>\n<\/div>\n

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\u201cRegulatory Watch\u201d highlights federal and state agency actions of interest to municipalities and their utilities. It is presented as a regular feature of the Municipal Law Newsletter by Anita Gallucci, Rhonda Hazen, Richard Heinemann and Lawrie Kobza.<\/span><\/p>\n

FERC Issues Presque Isle Decision<\/p>\n

The Federal Energy Regulatory Commission (FERC) issued its order in the Presque Isle Power Plant (PIPP) proceedings on July 29, 2014. The original filing was made by the Midcontinent Independent System Operator (MISO) on January 31, 2014 in Docket No. ER14-1242, in order to recover costs necessary to maintain operations of the PIPP to ensure transmission system reliability. The PIPP is located in the Upper Peninsula of Michigan. A protest was filed in April by the Public Service Commission of Wisconsin (PSC) alleging that MISO had unjustly and unreasonably sought to collect costs from Wisconsin customers who do not benefit from continued operations of the plant (March\/April Regulatory Watch<\/span>). The July 31st FERC order appeared to support the PSC’s contention and required MISO to make a compliance filing to revise the proposed system support rate, based on an updated analysis of customer load impacts. However, MISO’s August 11th compliance filings continued to allocate the lion’s share of PIPP-related costs to Wisconsin customers, resulting in a new round of protests and requests for rehearing from utilities, wholesale customers and state regulatory agencies. A decision on the rehearing requests is expected within a few weeks.<\/p>\n

PSC Begins Hearings on We Energy’s Proposed Acquisition of Integrys<\/p>\n

Wisconsin Energy Corporation (WEC) announced in June that it intends to acquire the Integrys Energy Group, which includes Wisconsin Public Service Corporation and Peoples Gas among its holdings, in a stock purchase deal worth nearly $6 billion. On August 6, 2014, WEC filed a request for approval with the PSC under Wisconsin’s Wisconsin Utility Holding Company Act (PSC Docket No. 9400-YO-100). According to the filing, WEC is proposing several conditions to expedite the requested approval, including proposals to waive recovery of a $2.4 billion acquisition premium and transaction costs; measures to mitigate the impact of the combined company\u2019s majority interest in the American Transmission Company LLC, and a two-year commitment to preserve the jobs of union employees. WEC has also filed to seek FERC approval of the proposed acquisition. Numerous customer stakeholder groups, including the Municipal Electric Utilities of Wisconsin, Great Lakes Utilities, WPPI Energy and the Citizens’ Utility Board, have intervened in the PSC proceeding. Testimony and briefs will be due over the next several months, with a public hearing and final decision expected in 2015.<\/p>\n

MGE and WEPCO Rate Cases Generate Controversy<\/p>\n

Madison Gas & Electric (MGE) and Wisconsin Electric Power Company (WEPCO) have both filed applications at the PSC to substantially change the design of their retail rates in order to increase fixed monthly customer charges and reduce variable energy rates (PSC Docket Nos. 3270-UR-120 and 5-UR-107, respectively). The filings reflect efforts by both companies to better absorb the impacts of anticipated increases in the installation of customer generation and energy efficiency facilities and have generated widespread concerns on the part of renewable energy developers and customers with large distributed generation facilities. In response to public criticisms, MGE has already scaled back the scope of its initial filing, reducing the proposed fixed customer charge and limiting the application to rate year 2015 (July\/August MLN). WEPCO’s filing seeks to replace over a dozen current buyback and customer generation tariffs with four new, consolidated tariff options designed to compensate parallel generation customers at lower avoided cost rates, rather than at current retail rates. The filing also includes a proposal for a mandatory standby tariff designed to ensure that large customers with their own generation pick up a share of system costs associated with grid support and back-up power. The PSC is expected to decide both rate cases by the end of the calendar year.<\/p>\n<\/div>\n<\/div>\n","excerpt":"

The Diocese of La Crosse brought a lawsuit against the City of La Crosse challenging the City\u2019s imposition of stormwater utility charges against the Diocese, six Parishes associated with the Diocese, and Aquinas Catholic Schools. Continue reading →<\/span><\/a><\/p>\n","date":"2014-09-30 16:49:23","categories":[{"id":35,"slug":"municipal-newsletter","title":"Municipal Newsletter","description":"","parent":32,"post_count":41},{"id":12,"slug":"energy-telecom","title":"Energy & Telecom","description":"","parent":3,"post_count":43},{"id":91,"slug":"local-government","title":"Local Government","description":"","parent":3,"post_count":35},{"id":42,"slug":"public_utility","title":"Public Utility","description":"","parent":3,"post_count":41},{"id":44,"slug":"utility-law","title":"Utility Law","description":"Links to Energy & Telecom page.","parent":3,"post_count":28}]},{"id":7019,"type":"publications","status":"publish","title":"Wisconsin Supreme Court Finds Act 10 Constitutional","title_plain":"Wisconsin Supreme Court Finds Act 10 Constitutional","content":"

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On Thursday, July 31, 2014, the Wisconsin Supreme Court issued its decision on MTI v. Walker<\/span>, the state court action challenging aspects of Acts 10 and 32. In a 5\u20132 decision, the Wisconsin Supreme Court held that Acts 10 and 32 were constitutional.<\/p>\n

The challenge to Acts 10 and 32 began on September 14, 2012, when Dane County Judge Juan Colas issued a declaratory judgment in MTI v. Walker<\/span>. Specifically, the declaratory judgment found parts of Act 10 and 32 were unconstitutional. On June 14, 2013, the Wisconsin Supreme Court agreed to review the September 14, 2012, declaratory judgment issued by Judge Colas.<\/p>\n

The plaintiffs argued that key provisions of Act 10\u2014its limits on the scope of collective bargaining, its annual recertification requirements, and its prohibition on fair share agreements and dues deductions on behalf of labor organizations\u2014violated employees’ rights to freedom of association and equal protection guaranteed by the United States and Wisconsin Constitutions. Plaintiffs also argued that the portion of Act 10 that forbids the City of Milwaukee from paying employee contributions to the City\u2019s retirement plan was unconstitutional because it violated the City\u2019s right to local control under the Home Rule Amendment of the Wisconsin Constitution and because it impermissibly interfered with the right of the City to contract with its employees.<\/p>\n

In an opinion written by Justice Gableman, the majority of the court found each of these challenges to Act 10 unfounded, declaring that “[w]e now uphold Act 10 in its entirety.”<\/p>\n

The court rejected plaintiffs’ freedom of association claim, holding that “the plaintiffs’ associational rights are in no way implicated by Act 10’s modifications to Wisconsin’s collective bargaining framework.” The court reasoned that Act 10 does not prevent employees from exercising their constitutional right to freely associate together and petition their employer on work-related issues\u2014it merely restricts the scope of statutory collective bargaining, which is “a creation of legislative grace\u201d and not a constitutional entitlement. Because participation in the statutory collective bargaining scheme is not a fundamental constitutional right, but simply a benefit extended to state and municipal employees by the legislature, the court ruled that the legislature is free to define the contours and limitations of that benefit, within reason.<\/p>\n

Similarly, the court rejected plaintiff\u2019s claim that Act 10 violates state and municipal employees’ equal protection rights. Because public employees are not a protected class under the Constitution and because Act 10 does not interfere with any fundamental constitutional rights, all the state had to show in order for the law to be upheld is that Act 10’s differential treatment of employees is rationally related to the legislature\u2019s pursuit of a legitimate government interest. The court found that, although the law treats employees differently based on whether they choose to associate with a collective bargaining representative, this differential treatment is justified by the state’s interest in promoting flexibility in government budgets by providing public employers with more leverage in negotiations.<\/p>\n

Finally, plaintiffs’ challenge to the part of Act 10 that prohibits the City of Milwaukee from funding employee contributions to the City’s retirement plan was also unsuccessful. Plaintiffs argued that this provision impermissibly interfers with Milwaukee’s right to self-governance under the Home Rule Amendment to the Wisconsin Constitution, which authorizes local regulation over matters of local concern and protects those local regulations against conflicting state law. Because the court concluded that this provision of Act 10 concerned a matter of primarily of statewide concern, it held that Act 10 did not run afoul of the Home Rule Amendment. Plaintiffs also argued, in the alternative, that this provision impermissibly interfered with a contract between the City of Milwaukee and its employees. The court rejected this argument, finding that the ordinance providing that the City would fund its employees’ contributions did not create a contractual relationship between the employees and the City. Because there was no contract in the first place, the court found that there could be no impermissible contractual interference.<\/p>\n

The majority opinion upholding Act 10 was written by Justice Gableman and joined by the rest of the court’s conservative wing – Justices Prosser, Roggensack, and Ziegler. Justice Crooks agreed with Majority’s conclusion and their legal analysis, but wrote a separate concurrence to express his displeasure at the “unnecessary” damage Act 10 has caused to public employee unions in Wisconsin. Justice Bradley wrote a dissent, which Chief Justice Abrahamson joined.<\/p>\n

This decision brings to a conclusion the uncertainty surrounding Act 10 caused by the Colas decision. Municipal employment relations are now securely in a different paradigm. It is important for municipalities to consider the key point of the majority opinion; namely, that Act 10 involves only a municipality\u2019s duty to engage in collective bargaining with its organized employees. Act 10 does not impact, however, the constitutional right of employees to organize for the purpose of addressing employment issues with their employer.<\/p>\n

\u2014 <\/span>Steven C. Zach
(Julia Potter, a law clerk at Boardman & Clark, provided valuable assistance in writing this article)<\/p>\n<\/div>\n

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Municipal and Coop Pole Attachment Rates Under Attack<\/span><\/p>\n<\/div>\n

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In what may well be a bellwether for Wisconsin\u2019s municipal electric utilities and electric cooperatives, North Carolina\u2019s Business Court ruled in favor of Time Warner Cable in Rutherford EMC v. Time Warner Entertainment\/Advance-Newhouse Partnership<\/span> on May 22, 2014. At issue was the standard to be used to determine the reasonableness of pole attachment rates an electric cooperative may charge a cable company to attach to the coop\u2019s utility poles.<\/p>\n

When Congress passed the federal Pole Attachment Act in 1978, it specifically exempted cooperatives and municipal utilities from pole attachment rate regulation by the Federal Communications Commission (\u201cFCC\u201d). Some states have adopted statutes regulating to some extent the pole rates that consumer-owned utilities may charge. In 2009, the North Carolina legislature adopted N.C. Gen. Stat. \u00a7 62-350, which requires North Carolina cooperatives to allow communication service providers to attach to their poles at \u201cfair and reasonable rate[s].\u201d The North Carolina statute also directs North Carolina\u2019s Business Courts to resolve disputes where the parties are unable to agree on a pole attachment rate. Wisconsin has a similar statute with respect to the rates that public utilities (which includes municipal utilities, but not electric cooperatives) may charge cable companies and other users for the use of their poles. See Wis. Stat. \u00a7 196.04(2). Prior to 2011, the Wisconsin statute did not apply to cable operators or other video service providers.<\/p>\n

The Rutherford EMC<\/span> case was the first rate dispute to be decided under the North Carolina statute. In deciding in favor of Time Warner, the Business Court ruled that the FCC\u2019s so-called Cable Rate Formula, which produces rates in the $3.00 to $4.00 range, \u201coffered the most credible basis for measuring the reasonableness of [Rutherford\u2019s] pole rates.\u201d For the period in dispute (2010 to 2013), the FCC rates were determined to be in the range of $2.54 to $3.63 per pole. Rutherford\u2019s rates were well above that mark and in the range of $15.50 to $19.65. The average rate for the same period that was charged by North Carolina\u2019s FCC-regulated investor owned utilities ranged from $5.91 to $6.06. The court gave the parties 90 days within which to \u201cnegotiate and adopt new rates for the years 2010 through 2013 that are consistent with the reasoning of this Order.\u201d<\/p>\n

According to the attorneys who led the charge for Time Warner, the North Carolina decision \u201cshould serve as helpful precedent in other states that have yet to rationalize escalating cooperative and municipal pole rates.\u201d See http:\/\/www.natlawreview.com\/article\/north-carolina-court-issues-first-decision-controlling-coop-pole-attachment-rates. One can only assume that, given its success in North Carolina, Time Warner and other cable companies will continue the attack on pole rates charged by consumer-owned utilities.<\/p>\n

\u2014<\/span> Anita T. Gallucci<\/p>\n<\/div>\n

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Federal Court Invalidates Wisconsin\u2019s Same-Sex Marriage Ban<\/span><\/p>\n<\/div>\n

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On June 6, 2014, U.S. District Judge Barbara B. Crabb issued a decision invalidating Wisconsin\u2019s ban on same-sex marriage. She concluded specifically that state statutory restrictions on marriage and the state\u2019s constitutional amendment Art. XIII, \u00a7 13 defining marriage as between \u201cone man and one woman\u201d violate the fundamental right to marry and the right to equal protection of laws for same-sex couples. The decision also invalidates any law that denies recognition of marriages between same-sex couples performed in other states. Judge Crabb\u2019s ruling was the latest in a series of federal trial court decisions in recent months striking down similar laws in other states.<\/p>\n

The case was brought by eight same-sex couples who were either married outside Wisconsin or wanted to legally obtain Wisconsin marriage licenses. They argued that Wisconsin\u2019s marriage amendment, which was passed in 2006 as a statewide referendum by 59% of voters, violated both the Due Process and Equal Protection clauses of the U.S. Constitution. The state attempted to defend the ban on numerous grounds, all of which were ultimately rejected by Judge Crabb in her 88-page decision.<\/p>\n

Judge Crabb explained that the Due Process Clause prohibits states from depriving persons of life, liberty, or property without due process of law. The Due Process Clause is implicated by the state’s ban on same-sex marriage because the \u201cliberty\u201d protected by the constitution includes the fundamental right to marry. When a state law significantly interferes with a fundamental right, the state must show that it has a sufficiently important state interest to justify the burden to the fundamental right and that the law is closely tailored to that interest. Judge Crabb wrote that Wisconsin\u2019s marriage amendment and the Wisconsin statutes defining marriage as requiring a \u201chusband\u201d and \u201cwife\u201d significantly interfere with same-sex couples\u2019 right to marry and thus, the laws must be supported by \u201csufficiently important state interests\u201d that are \u201cclosely tailored to effectuate only those interests,\u201d in order to survive constitutional scrutiny.<\/p>\n

Judge Crabb rejected the argument made by the state that the fundamental right to marry applied only to heterosexual couples based on the link between marriage and procreation, tradition and the \u201cnature\u201d of marriage. She noted that gay persons have the same ability to procreate as anyone else and that same-sex couples often raise children together. She also stated that \u201calthough the Supreme Court has identified procreation as a reason for marriage, it has never described procreation as a requirement.\u201d As for tradition, Judge Crabb dismissed the idea that fundamental rights are only those that are \u201cdeeply rooted\u201d in the country\u2019s legal tradition. She pointed out that contraception and abortion were not deeply rooted traditions when the U.S. Supreme Court recognized those rights as constitutionally protected. Additionally, she cited Supreme Court decisions striking down laws prohibiting interracial marriage and homosexual conduct to support her conclusion that the state could not rely “on a history of exclusion to narrow the scope of a [fundamental] right.” Finally, she wrote that the argument made in a non-party (\u201camici\u201d) brief about the \u201cnature\u201d of marriage \u201csimply reveals another similarity between the objections to interracial marriage and amici\u2019s objections to same-sex marriage. In the past, many believed that racial mixing was just as unnatural and antithetical to marriage as amici believe homosexuality is today.\u201d<\/p>\n

With respect to the Equal Protection Clause, she found that there was no controlling precedent that determined the appropriate level of scrutiny that should apply to laws that distinguish between people based on sexual orientation. After analyzing various factors, including the history of discrimination based on sexual orientation and the nature and severity of the deprivation at issue, she ultimately concluded that \u201cheightened scrutiny\u201d should apply. This standard of review is similar to the heightened level of scrutiny that applies to legal classifications based on gender.<\/p>\n

After concluding that same-sex couples have a fundamental right to marry and that any purported state interest was subject to heightened scrutiny, Judge Crabb concluded that the state had not identified any important state interest that justified the ban on same-sex marriage. She addressed each purported interest presented by the state and amici, including preserving tradition, protecting the institution of marriage, promoting optimal child-rearing, proceeding with caution and “slippery slope.” She found none of these arguments to be persuasive.<\/p>\n

Judge Crabb also addressed federalism, which is the concept that states should be “laboratories of democracy” and should be allowed to choose whether to extend certain rights. With respect to federalism in particular, the state argued that Wisconsin should be permitted to determine whether the state wants to recognize same-sex marriage and that, in fact, the citizens had already made that determination by voting in favor of the 2006 referendum banning same-sex marriage. Judge Crabb rejected this argument, writing that states cannot be left to \u201cexperiment\u201d with social policies that violate the constitution. Federalism cannot trump due process and equal protection rights.<\/p>\n

Judge Crabb noted that the amendment to the state constitution \u201crepresents a rare, if not unprecedented, act of using the Wisconsin constitution to restrict<\/span> constitutional rights rather than expand them and to require discrimination against a particular class.\u201d Because laws already on the books in 2006 had limited marriage to opposite-sex couples, \u201censhrining the ban in the state constitution seems to suggest that the amendment had a moral rather than practical purpose.\u201d<\/p>\n

Like other judges who have invalidated same-sex marriage bans, Judge Crabb relied in part on the Supreme Court\u2019s U.S. v. Windsor<\/span> decision from June 2013 striking down a key part of the federal Defense of Marriage Act. Although acknowledging that the Windsor<\/span> decision did not apply to state law bans on marriage between same-sex couples, Judge Crabb noted that:<\/p>\n

In light of Windsor <\/span>and the many decisions that have invalidated restrictions on same-sex marriage since Windsor, it appears that courts are moving toward a consensus that it is time to embrace full legal equality for gay and lesbian citizens. Perhaps it is no coincidence that these decisions are coming at a time when public opinion is moving quickly in the direction of support for same-sex marriage. Compare Richard A. Posner, Should There Be Homosexual Marriage? And If So, Who Should Decide?<\/span> 95 Mich. L. Rev. 1578, 1585 (1997) (\u201cPublic opinion may change . . . but at present it is too firmly against same-sex marriage for the courts to act.\u201d), with Richard A. Posner, \u201cHomosexual Marriage\u2014Posner,\u201d The Becker-Posner Blog <\/span>(May 13, 2012) (\u201c[T]he only remaining basis for opposition to homosexual marriage . . . is religious. . . . But whatever the [religious objections are], the United States is not a theocracy and should hesitate to enact laws that serve religious rather than pragmatic secular aims.\u201d)<\/p>\n

In the initial June 6 decision, Judge Crabb did not formally order state officials to stop enforcing the ban on same-sex marriage. Instead, she asked both sides to file a proposed order to put her decision into effect. She also asked them to address the state\u2019s request that her decision be stayed. Over the next several days, hundreds of Wisconsin same-sex couples were married in the state. However, in a decision on June 13, Judge Crabb halted further weddings pending appeal of the June 6 decision. Judge Crabb wrote that she believed she was required to stay her decision pending appeal because the Supreme Court had ordered a stay of a similar federal court decision in Utah. The state has since appealed, and the Court of Appeals for the Seventh Circuit has placed the case on a fast-track with a similar case out of Indiana.<\/p>\n

\u2014<\/span> Sarah B. Painter & JoAnn M. Hart<\/p>\n<\/div>\n

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MGE Rate Proposal Garners State-Wide Attention<\/span><\/p>\n<\/div>\n

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A sweeping change in its electric and gas rate design proposed by Madison Gas & Electric (MGE) is wending its way through the Public Service Commission of Wisconsin (PSCW) hearing process and generating wide-spread attention from customer groups, renewable energy advocates, neighboring municipalities and public utilities throughout the state.<\/p>\n

In an application filed in June in PSCW Docket 3270-UR-120, MGE sought to increase its fixed customer charge over the next two years from $10 to as high as $69 for standard residential customers, while also decreasing its variable energy charge. The company has since modified its proposal to include a fixed charge of $19\/month and an energy charge of 13 cents per KWh in 2015 (down from 14.4 cents currently), while pulling back its proposal for 2016 in order to allow time to explore alternative approaches with customer groups.<\/p>\n

According to the company’s pre-filed testimony, the proposal is intended as the first step in a comprehensive re-design of the company’s electric and natural gas rates largely intended to send more accurate price signals to customers contemplating investments in energy efficiency or renewable energy.<\/p>\n

Currently, MGE recovers a substantial percentage of its fixed costs in its variable energy use charge, reflecting long-standing regulatory policy intended to hold down costs for low-use and low income customers. The company’s proposal contemplates a three-part rate design similar to what is currently used for its large industrial customers. It includes a larger fixed customer charge to recover administrative and customer-service related costs; demand-based-charges, which will include both a fixed and a variable component; and variable energy-based charges. If the PSCW approves the proposal, the company anticipates future investments in automated and demand-based metering to further enhance the link between cost and actual customer energy use.<\/p>\n

In its testimony, the company contends that the proposed electricity rate design will lead to increased transparency and more stable energy rates since reductions in energy use will not result in subsequent rate increases as the company seeks to maintain recovery of its fixed costs for generation and distribution system infrastructure. The rate design is also intended to eliminate the competitive disadvantage faced by industrial customers and high-tech commercial customers whose variable production costs include fixed cost components that benefit users system-wide.<\/p>\n

Customer advocates, in contrast, contend that the increase in fixed customer charges, combined with reduced energy charges, will disproportionately harm low income energy users and discourage residential customers from undertaking energy efficiency measures. Renewable energy advocates have also expressed concern that the proposal will especially harm efforts by the City of Madison and neighboring communities to promote the installation of solar panels (MLN September\/October, 2013). The City of Monona recently installed nearly 400 solar panels on municipal buildings in anticipation of energy savings due to reduced usage. Monona and Madison have both filed separate interventions in the case.<\/p>\n

The rate case is still in its discovery phase, with additional testimony and opportunity for public comment before a scheduled public hearing on October 1. The Commission is expected to issue a decision before the end of the year.<\/p>\n

\u2014<\/span> Richard A. Heinemann<\/p>\n<\/div>\n

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Arrest of Man Driving with Gun in His Hand Is Reasonable in Light of Unclear Open-Carry Law<\/span><\/p>\n<\/div>\n

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A June 17, 2014 decision from the Court of Appeals for the Seventh Circuit in Gibbs. v. Lomas<\/span> considered whether a City of Madison police officer violated a citizen’s constitutional rights by charging him with disorderly conduct after he was seen driving through the city with a gun in his hand. The court ultimately concluded that the officer was entitled to qualified immunity because it was uncertain whether Wisconsin’s recently enacted gun legislation protected the man’s conduct.<\/p>\n

The case arose out of an incident that occurred in the City of Madison in July 2012. Officer Brooke Lomas responded to a complaint that a young man in a red Jeep was driving through Madison holding an unholstered handgun near his head, pointed at the roof of the car. The caller said the driver was not threatening anyone, but that he was \u201cdriving badly\u201d and “speeding really fast.” The caller told police dispatch that the man with the gun had parked and gone into a bar.<\/p>\n

Officer Lomas and three other officers arrived just as a man matching the given description walked out of the bar. The man was Roric Gibbs. Officer Lomas and another officer handcuffed Mr. Gibbs, frisked him for weapons, and placed him in the back of a squad car. Officer Lomas then called the citizen who had reported seeing the man with a gun to confirm the details of what had been seen.<\/p>\n

Eventually, Officer Lomas and the officers on the scene learned from Mr. Gibbs that he had been handling an airsoft gun in his car. Airsoft guns are replicas of real firearms and usually have the same color, dimensions and markings as real guns. Mr. Gibbs had been driving home from an airsoft event when he had realized that he was still wearing an airsoft gun, which had led to him handling it while driving. After the discussion with Mr. Gibbs, Officer Lomas searched Mr. Gibbs\u2019 jeep and found two airsoft guns. Officer Lomas then discussed the situation with her supervisor, and they jointly decided to release Mr. Gibbs after issuing him a citation for disorderly conduct.<\/p>\n

Mr. Gibbs subsequently sued Officer Lomas, claiming that he had been arrested without probable cause and that his car had been searched without a warrant. Mr. Gibbs argued that his conduct could not qualify as disorderly conduct based on amendments to Wisconsin\u2019s disorderly conduct law that were added as part of the Personal Protection Act, 2011 Wisconsin Act 35, more commonly known as the Concealed Carry Law. Among other things, the Concealed Carry Law amended Wisconsin’s disorderly conduct statute to add a new subsection (2) related to carrying a firearm. The amended statute provides:<\/p>\n

947.01 Disorderly Conduct<\/p>\n

(1) Whoever, in a public or private place, engages in violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct under circumstances in which the conduct tends to cause or provoke a disturbance is guilty of a Class B misdemeanor.<\/p>\n

(2) Unless other facts and circumstances that indicate a criminal or malicious intent on the part of the person apply, a person is not in violation of, and may not be charged with a violation of, this section for loading, carrying, or going armed with a firearm, without regard to whether the firearm is loaded or is concealed or openly carried.<\/p>\n

Subsection (2) is the newly-added portion of the statute. Mr. Gibbs argued that under that section, his action of driving with an airsoft gun in his hand did not qualify as disorderly conduct because it amounted to \u201cloading, carrying, or going armed with a firearm\u201d and because there was no evidence that he had criminal of malicious intent.<\/p>\n

Officer Lomas moved for dismissal of the claim in the federal district court, arguing that her conduct was immunized by the doctrine of qualified immunity. That doctrine protects governmental actors from liability for discretionary actions, so long as the action did not violate any \u201cclearly established statutory or constitutional rights\u201d of which a reasonable person would have known. The district court rejected Officer Lomas\u2019 arguments, concluding that no reasonable officer would have believed that Mr. Gibbs\u2019 conduct qualified as disorderly conduct in light of Wisconsin\u2019s new gun rights laws.<\/p>\n

Officer Lomas appealed. In a unanimous opinion, the Seventh Circuit Court of Appeals reversed the district court, stating that it was not at all clear whether Mr. Gibbs\u2019 conduct was protected by the newly amended disorderly conduct law. Because the enactment of the amended law was so recent, officers had received little guidance from courts about what conduct was punishable as disorderly and what was protected by the newly added subsection (2). Without such guidance, a reasonable officer could have concluded that Mr. Gibbs\u2019 act of raising an unholstered gun in the air while driving was more than simply \u201ccarrying or going armed with a firearm\u201d and was not protected by the statute. Additionally, a reasonable officer could have concluded that Mr. Gibbs\u2019 actions evidenced a criminal or malicious intent, as Wisconsin law makes it illegal to fire a gun from a vehicle or to enter a bar with a handgun. The court of appeals concluded that \u201ceven if Officer Lomas was mistaken in believing that she had probable cause to arrest Mr. Gibbs, such a mistake was reasonable in light of the facts and circumstances of this case and in light of the undeveloped case law regarding subsection 947.01(2).”<\/p>\n

Notably, the court of appeals did not decide whether Mr. Gibbs\u2019 conduct actually violated the disorderly conduct statute. The court decided only that Officer Lomas did not violate any \u201cclearly established\u201d rights and thus, was entitled to qualified immunity. The scope of the recently enacted amendment to the disorderly conduct statute remains uncertain.<\/p>\n

Boardman & Clark represented Officer Brooke Lomas in this litigation. For additional information regarding the implications of Wisconsin\u2019s recently amended disorderly conduct statute, see the September\/October 2013 Municipal Newsletter located in the newsletter archives on Boardman & Clark\u2019s website.<\/p>\n

\u2014<\/span> Sarah B. Painter & JoAnn M. Hart<\/p>\n<\/div>\n<\/div>\n<\/div>\n","excerpt":"

On Thursday, July 31, 2014, the Wisconsin Supreme Court issued its decision on MTI v. Walker, the state court action challenging aspects of Acts 10 and 32. Continue reading →<\/span><\/a><\/p>\n","date":"2014-08-01 14:01:35","categories":[{"id":35,"slug":"municipal-newsletter","title":"Municipal Newsletter","description":"","parent":32,"post_count":41},{"id":7,"slug":"construction","title":"Construction","description":"","parent":3,"post_count":20},{"id":12,"slug":"energy-telecom","title":"Energy & Telecom","description":"","parent":3,"post_count":43},{"id":17,"slug":"land-use","title":"Land Use and Zoning","description":"","parent":3,"post_count":28},{"id":18,"slug":"litigation","title":"Litigation","description":"","parent":3,"post_count":74},{"id":91,"slug":"local-government","title":"Local Government","description":"","parent":3,"post_count":35},{"id":42,"slug":"public_utility","title":"Public Utility","description":"","parent":3,"post_count":41}]},{"id":6947,"type":"publications","status":"publish","title":"Supreme Court Approves Ceremonial Invocations With Sectarian Content Before Legislative Meetings","title_plain":"Supreme Court Approves Ceremonial Invocations With Sectarian Content Before Legislative Meetings","content":"

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In Town of<\/span> Greece v. Galloway, <\/span>the United States Supreme Court recently clarified the acceptable content of invocations delivered before legislative meetings. Whether such invocations could include sectarian references had become a hotly debated topic, particularly at the municipal or local level of government. The Supreme Court concluded in Town of Greece<\/span> that invocations before legislative bodies generally may include sectarian content, including references to specific religious figures and messages, as long as the practice is non-discriminatory and essentially ceremonial. While the Court\u2019s decision does not abrogate all limits on legislative prayer, the decision recognizes the general acceptability of sectarian invocations, and the decision thereby lessens the need for individualized case-by-case adjudications of local practices.<\/p>\n

The Supreme Court has long construed the Establishment Clause in the United States Constitution to prohibit governmental practices that give the appearance of religious endorsement. Governing bodies have grappled with this proposition as it applies to invocations before legislative meetings. The Supreme Court, in Marsh v. Chambers<\/span>, decided in 1983 that a state legislature\u2019s practice of opening its sessions with a prayer delivered by a chaplain did not violate the Establishment Clause because the practice had long been understood as compatible with the Establishment Clause. The Court concluded that legislative prayer lends gravity to public business, reminds lawmakers to transcend petty differences in pursuit of a higher purpose, and expresses a common aspiration to a just and peaceful society.<\/p>\n

Since the Supreme Court\u2019s decision in Marsh v. Chambers<\/span>, uncertainty has persisted as to the constitutionality of specific invocation practices. In the Town of Greece<\/span> case, opponents of legislative prayer argued that the Marsh decision did not approve of prayers containing sectarian language or themes. The opponents of the practice at issue in Town of Greece<\/span> further argued that the setting and conduct of local governmental meetings is significantly different than at the state and federal level. At the local level, more immediate social pressure may be felt that forces nonadherents to participate in, or at least tolerate, sectarian religious endorsement. The opponents of legislative prayer specifically expressed concern about offending representatives who sponsor prayer and who will also vote on matters that citizens bring before the legislative body.<\/p>\n

The Supreme Court decided in Town of Greece<\/span> that legislative invocations do not have to be non-sectarian, or unidentifiable with any one religion. According to the Court, to require that invocations be non-sectarian would force the legislatures that sponsor prayers, and the courts that are asked to determine the propriety of such prayers, to act as supervisors and censors of religious speech. This would involve government in religious matters to a far greater degree than the practice under review, which neither edited nor approved prayers in advance, and did not criticize their content after the fact.<\/p>\n

In rejecting the claim that legislative prayer must always be non-sectarian, the Supreme Court expressly denied that no restraints remain on the content of such prayers. The relevant constraint, according to the Court, derives from the place of legislative prayer at the opening of legislative sessions, where it is meant to lend gravity and reflect values long part of the Nation\u2019s heritage. Prayer that is solemn and respectful in tone, and that invites lawmakers to reflect upon shared ideals and common ends before they undertake the fractious business of governing, serves that legitimate solemnizing purpose. However, \u201cif the course and practice [of legislative prayer] over time shows that the invocations denigrate non-believers or religious minorities, threaten damnation, or preach conversion, many present may consider the payer to fall short of the desire to elevate the purpose of the occasion and to unite law makers in their common effort.\u201d That situation would present a different case than the one before the Supreme Court in Town of Greece.<\/span><\/p>\n

Ceremonial prayers before legislative meetings, even those that include specific sectarian references, therefore do not automatically violate the Establishment Clause of the Constitution. Absent a pattern of prayers that over time denigrate, proselytize, or betray an impermissible government purpose, a challenge based solely on the content of a prayer will not likely establish a constitutional violation, according to the Supreme Court in Town of Greece.<\/span> So long as a legislative body maintains a policy of non-discrimination, moreover, the Constitution does not require local government officials to search beyond their borders for non-Christian prayer-givers in an effort to achieve religious balancing.<\/p>\n

While approving sectarian legislative prayer, the Supreme Court implicitly rejected the heightened concern about coercion at the local level. Considered against the backdrop of historical practice, the Court concluded that legislative prayer is not deemed by reasonable observers to be coercive, but rather it is perceived as an accepted part of our heritage and tradition, with the purpose to lend gravity to public proceedings and to acknowledge the place religion holds in the lives of many private citizens.<\/p>\n

The Supreme Court\u2019s coercion analysis emphasized that the intended audience for legislative invocations is not the public, but lawmakers themselves. The Court stated that its analysis might well be different if the public was directed to participate in legislative prayers, or if dissidents were singled out for opprobrium, or if legislators indicated that their decisions might be influenced by a person\u2019s acquiescence in the prayer opportunity. For this reason, prayer delivered during \u201cthe ceremonial portion\u201d of legislative meetings, rather than during the deliberative portion of meetings, remains an important consideration. In such circumstances, the Court concluded that prayer before meetings is acceptable for its permissible ceremonial purpose.<\/p>\n

The Supreme Court\u2019s decision in Town of Greece<\/span> will likely reduce the amount of conflict, including litigation, about the practice and content of legislative invocations. The issue is not completely resolved in all cases, however, if the practice is abused so as to promote or encourage religious participation. The Court held that legislative prayer is not prohibited simply because it includes sectarian references. Such practices, however, should still emphasize the ceremonial aspects of the practice, without encouraging or promoting specific sectarian participation or beliefs. The Court, nonetheless, has made clear that legislative invocations that include sectarian references are not thereby automatically unconstitutional.<\/p>\n

\u2014<\/span> Richard L. Bolton<\/p>\n<\/div>\n

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Deadline for Objecting to Tax Assessment May Not Apply When Prior Year’s Objection Is Pending<\/span><\/p>\n

The process for objecting to real estate tax assessments is statutory and detailed. Generally, the property owner must object to the assessment in spring after the tax assessor files the assessment roll with the local government. At least 48 hours before the first meeting of the board of review, the owner must notify the clerk of his intention to file an objection; otherwise the right to appeal has been waived. There is an exception, however, where the taxpayer appealed the same assessed amount last year and the appeal is still pending. Walgreen Co. v. City of Oshkosh<\/span>, 2013AP1610 (Ct. App. April 2, 2014) (recommended for publication).<\/p>\n

Tax assessors submit their assessment rolls to local governments no later than April for counties and May for cities and villages. The clerk must then publish notice at least 15 days in advance of when the roll will first be open for examination. Section 70.45, Stats. If the assessed value of a parcel has changed from the previous year, the tax payer must be notified at least 15 days in advance of the time and place of the first board of review meeting. Section 70.36, Stats. If there has been no change, the clerk does not have to send notice to the taxpayer. In order to preserve the right to appeal, the taxpayer must give notice either orally or in writing at least 48 hours of his intent to appeal. The actual appeal must be filed within the first two hours of the board’s first meeting. The timely filing of an objection to the assessment is usually a condition of filing an action for excessive assessment.<\/p>\n

In Walgreen,<\/span> the Wisconsin Court of Appeals held that a timely objection is not required under narrow circumstances. The exception applies only when all three of the following criteria are met: (a) the taxpayer filed a procedurally correct objection the prior year; (b) the assessed value did not change from the previous year; and (c) the objection from the previous year has not received a final determination. The exception was first developed in Duesterbeck v. Town of Koshkonong<\/span>, 2000 WI App. 6, 232 Wis. 2d 16, 605 N.W.2d 904, which based it on the principles behind the dual notice requirements imposed on the government and the tax payer. The court reasoned that, since the taxpayer is already aware of the assessed value because of the prior year’s notice and since the government is already aware that the taxpayer objects to the amount because he is still pursuing the previous year’s objection, the purpose of the notice requirement has been served.<\/p>\n

The prior year’s objection is not deemed to be finally resolved unless all administrative and judicial appeal rights have been exhausted, which includes the expiration of any deadlines for appeals. Moreover, the objection from the previous year must still be pending when the deadline for an objection in the current year passes. The court in Walgreen<\/span> noted another recent decision in Northbrook Wisconsin LLC v. City of Niagara<\/span> 2014 WI App 22, in which the court held that the exception was inapplicable because the prior year’s objection was settled through informal negotiations long before the board of review meeting for the current year.<\/p>\n

The court in Walgreen reversed the summary judgment granted to the city and remanded the case to the circuit court to determine whether the third criterion for the Duesterbeck<\/span> exception was met. The record was undisputed that Walgreen met the first two. However, the record was devoid of evidence from either side as to the status of the prior year’s objection.<\/p>\n

\u2014<\/span> Mark J. Steichen<\/p>\n<\/div>\n

Public Records Law Requires Release of Email Senders\u2019 Names and Email Addresses<\/span><\/p>\n

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In The John K. MacIver Institute For Public Policy, Inc. v. Jon Erpenbach<\/span>, Appeal No. 2013AP1187 (decided April 9, 2014), the Wisconsin Court of Appeals held that the names and email addresses of email senders could not be redacted in a response to an open records request.<\/p>\n

The open records request asked for emails sent to Senator Jon Erpenbach on Act 10, the law which restricted collective bargaining for most governmental bodies. The Senator responded to the open records request but redacted the names and email addresses of the senders. The requester brought a mandamus action to require the Senator to release the emails without redacting the names and email addresses. The requestor subsequently modified its request to ask for unredacted emails sent from state and local government email accounts.<\/p>\n

The Senator argued that his decision to redact identifying information in the emails was in compliance with the custom and practice of the Wisconsin Senate, and that under the Wisconsin Constitution a court may not review decisions made in accordance with Senate rules. The court rejected this argument indicating that the open records law applies to elected officials generally, and no special exemption exists for individual state legislators or houses of the legislature.<\/p>\n

The Senator also argued that the names and email addresses should not be released because the information sought is \u201cpurely personal\u201d and therefore not subject to disclosure under Schill v. Wisconsin Rapids School District<\/span>, 2010 WI 86, 327 Wis. 2d 572, 786 N.W.2d 177. The Senator also asserted that the public interest in nondisclosure of the information outweighed the public interest in disclosure.<\/p>\n

In considering this argument, the court discussed the standard for reviewing a determination under the records law. When responding to an open records request, a records custodian is first to determine whether a requested item is a record and whether any statutory or common law exceptions to disclosure apply. If an item is determined to be a record and no exceptions apply, the custodian must then conduct a balancing test to weigh the competing interests involved and determine whether permitting inspection would result in harm to the public interest which outweighs the public interest in allowing inspection. The custodian must specify reasons for nondisclosure. If the custodian\u2019s decision is challenged, a court is to make its own independent decision regarding these matters. If the custodian states no reason or insufficient reasons for refusing to disclose information, the court should order the disclosure of the information. The custodian\u2019s decision on disclosure is entitled to no deference. According to the court, \u201c[i]t is the burden of the party seeking nondisclosure to show that \u2018public interests favoring secrecy outweigh those favoring disclosure.\u2019\u201d<\/p>\n

Under this standard of review, the court found that the Senator\u2019s reasons for redacting the names and addresses of email senders were insufficient, and that the information should be released. The emails which were sent to an elected lawmaker for the purpose of influencing the lawmaker\u2019s position on public policy were undeniably public records. While the Senator argued that the names and email addresses were \u201cpurely personal,\u201d the court disagreed, stating that the public has a strong interest in understanding who is attempting to influence public policy, from where, and for what purpose.<\/p>\n

The Senator also argued that the public interest justified redacting this type of identifying information in order to respect senders\u2019 privacy, rights to free speech, and rights to petition the government. The Senator argued that releasing this information would have a \u201cchilling effect\u201d on future citizen communications. The court noted that under the United States Supreme Court\u2019s recent decision in Doe v. Reed<\/span>, 561 U.S. 186, 130 S. Ct. 2811 (2010), the release of a public record could be enjoined if those resisting disclosure can show a reasonable probability that the disclosure will subject them to threats, harassment, or reprisals. However, the court found that in this case the Senator did not sufficiently establish a reasonable probability of harm from disclosure. It was not enough that the Senator showed a possibility<\/span> of harm from disclosure.<\/p>\n

In response to the Senator\u2019s argument that disclosure of the e-mail senders\u2019 identifying information will \u201cchill\u201d citizens from communicating with legislators, the judges offered different perspectives. Judge Gundrum, the opinion\u2019s author, noted that nothing would prevent citizens \u201cfrom sharing their views with public officials via phone or in-person communication, two routinely utilized methods which allow citizens to share their views with a public official without necessarily creating a public record related to those views. . . . If a citizen has a genuine concern about his or her views becoming public, he or she need not express such views through means which create a public record.\u201d<\/p>\n

Judge Brown, however, was more concerned about the impact that this case could have on communications with legislators. \u201cMy fear is that citizens who want to express an opinion to their own legislators, but who want their communications to remain private, will either refrain from voicing their opinions or will use the anonymous social media that is the antithesis of civil discourse. It is no answer that these people can pick up the phone and call their legislators or see them personally. Access is often difficult. And it bothers me that a citizen who wishes his or her views to remain private is limited in the kind of communication to be used.\u201d Yet even with this concern, he concluded that redaction should not be allowed. \u201c[A]llowing the redaction in this particular case would lead down the path where the risk of citizen suppression and harassment would be in the eyes of the beholder and the validity of the custodian\u2019s rationale would be either praised or castigated depending on what political party the custodian happened to belong to. Every controversial redaction would then draw the courts into the political fray. Outcomes would depend upon, or at least would be seen to depend upon, politics. That would be a disaster.\u201d<\/p>\n

The court of appeals concluded by finding that the Senator had not met his burden of establishing that the public interest in nondisclosure of the redacted information outweighs the significant public interest in disclosure. The court remanded the case to the circuit court with directions to order the legislator to release the requested records without redaction of identifying information. The circuit court was also directed to determine the appropriate costs and fees to be awarded the requester under Wis. Stat. \u00a719.37(2)(a).<\/p>\n

\u2014<\/span> Lawrie J. Kobza<\/p>\n<\/div>\n

\n

Raze Order Enjoined Where City\u2019s Grounds Were Pretextua<\/span>l<\/p>\n<\/div>\n

\n

The Wisconsin Court of Appeals has affirmed an injunction barring the enforcement of a raze order. Although the decision is not recommended for publication, it tells a cautionary tale of abuse of a municipality\u2019s authority to condemn buildings on asserted health and safety grounds. Nabham v. City of Beloit<\/span>, 2012AP1997 (April 24, 2014) (not recommended for publication).<\/p>\n

A municipality has the authority to order a building to be razed when it:<\/p>\n

\u201cis so old, dilapidated, or out of repair and consequently dangerous, unsafe, unsanitary or otherwise unfit for human habitation and unreasonable to repair.\u201d Wis. Stat. \u00a7 66.0413(1)(b)<\/p>\n

Repairs are presumed to be unreasonable if their cost exceeds 50 percent of the assessed value of the building.<\/p>\n

Nabham owned a building constructed in the 1900s. It comprised a store on the first floor and five apartments on the second floor. On March 15, 2011, the city fire inspector conducted an inspection, cited Nabham for substantial code violations and ordered the following upgrades: a new automatic fire alarm system and sprinkler system, a new bathroom for one of the apartments and electrical upgrades for each of the apartments. On June 2, 2011, the city issued an order pursuant to section 66.0413 requiring that Nabham raze the building within 30 days.<\/p>\n

A municipality has the authority to order a building to be razed when it:<\/p>\n

\u201cis so old, dilapidated, or out of repair and consequently dangerous, unsafe, unsanitary or otherwise unfit for human habitation and unreasonable to repair.\u201d Wis. Stat. \u00a7 66.0413(1)(b)<\/p>\n

Repairs are presumed to be unreasonable if their cost exceeds 50 percent of the assessed value of the building.<\/p>\n

Nabham sought a restraining order against the city pursuant to section 66.413(1)(h). The circuit court found that the city\u2019s assertion that the cost of repairs was unreasonable was unfounded and a pretext for having the building demolished without having to pay compensation. The court of appeals affirmed.<\/p>\n

There were three factors at issue in determining whether the cost of repairs was reasonable: (a) what repairs were required; (b) whether the assessed value was appropriate; and (c) what the real motivation was for the raze order. With regard to the repairs, the evidence showed that the city had inspected the building regularly since 1997 and that rental permits had been issued every year. An inspection in November 2010 found only minor code violations. The fire inspector\u2019s report of substantial code violations came just four months later. The circuit court found it mysterious that these violations had allegedly existed for years when the city had no explanation for why these defects had not been found earlier.<\/p>\n

The fire inspector admitted at trial that there had been no changes to the building and no changes to the city\u2019s building code that would have triggered a requirement for the electrical upgrades. A rental permit, which would not have been issued if there were uncorrected code violations, had been issued on February 14, 2011. She testified that the property deteriorated so much in just the intervening month that the electrical upgrades were needed.<\/p>\n

The plumbing inspector testified that he had found violations during a May 19, 2011 inspection but had not issued any citations because he was told the raze order was coming. He explained the repairs for the violations he found during that inspection would have cost $2,000 at most. He admitted that the building was not required to have the fire alarm or sprinkler systems or the new bathroom installed prior to the raze order. The city building inspector testified that the estimate of the repair costs was not prepared until after the raze order was issued. He was not asked to price the cost of the repairs required by the raze order until after the order was issued. The estimate for those repairs was $72,500.<\/p>\n

With respect to the assessed value of the building, the city assessor testified that in 2010 the assessment was reduced to $49,300, a 50% decrease. He based it on a drive-by exterior view he had done three years earlier and the deterioration in the real estate market. Only three other properties in the city had their assessments reduced by 50% between 2007 and 2011. The circuit court found that the city\u2019s motive was to reduce the value to an amount where the city could claim that the repairs would exceed 50% of the assessed value.<\/p>\n

The circuit court concluded that the alleged violations, the repairs required by the raze order and the decrease in the assessed value were mere pretexts. The court noted that the fire inspector\u2019s report from the March 15th inspection included references to Nabham\u2019s appearance as a person of Middle East ethnicity, that he spoke with a heavy accent and that the television in the store was tuned to something in Arabic. The court appeals deferred to the circuit court\u2019s factual findings and evaluation of the credibility of the witnesses and held that the record supported those findings.<\/p>\n

\u2014<\/span> Mark J. Steichen<\/p>\n<\/div>\n

\n

No Taking Occurs Where Government Takes No Affirmative Action<\/span><\/p>\n<\/div>\n

\n

The torrential rain fall in June 2008 led to the overflow of Lake Delton with the dramatic erosion of a channel sweeping way houses that made national news. Almost four years later, the Wisconsin Court of Appeals decided that the Village of Lake Delton had not taken the homeowners’ properties and did not owe them just compensation. Fromm, et al. v. Village of Lake Delton<\/span>, 2013AP14 (Ct. App. 4\/3\/14) (recommended for publication).<\/p>\n

A dam was built across Delton Creek in 1927 creating Lake Delton. The highest elevation of the dam was approximately 3-12″ lower than part of the Fromms’ land that bordered the lake, which left a dip or what is described as a “saddle” area. The dam was constructed with floodgates that opened to a maximum height of 6 feet. The village acquired ownership of the dam in 1994. The only structural alteration it made to the dam since then was to reduce the maximum opening height of the floodgates to 4 feet.<\/p>\n

On June 6-7, 2008, flood waters overtopped the Fromms’ property and eroded away a wall of the lake, eventually draining it entirely and taking the Fromms’ and other houses with it. The Fromms and neighbors brought an inverse condemnation action against the village under section 32.10, Wis. Stats. The circuit court granted summary judgment for the village and the plaintiffs appealed.<\/p>\n

The court of appeals professed some difficulty identifying the precise basis for the Fromms’ claims and characterized the Fromms’ arguments as being: (a) that a governmental entity that controls a dam should be held liable per se<\/span> for a taking when flooding occurs; and (b) that the village’s inaction in the face of knowledge of the lower elevation and its reduction of the maximum opening height of the flood gates constituted takings. The court quickly dismissed the first argument, holding that a taking must result from governmental action. Action can be in form of a physical occupation of private property or where regulations deprive a landowner of all or substantially all beneficial use of his property.<\/p>\n

The Fromms argued that the two potential actions by the village were: (a) altering the floodgates; and (b) failing to act on the information that their property was below the highest elevation of the dam. The court dismissed the argument about the floodgates, because there was no evidence in the record that the flooding would have been averted if the original height of the gates had been left intact.<\/p>\n

With respect to the failure to act on knowledge of the respective elevations, the court questioned whether the record supported the claim but assumed for purposes of argument that the village was on notice that there were no other locations along the rim of the lake that were substantially lower than the Fromms’ property and any other physical features of the land around the lake that would draw potential flooding away from their property. Even so, the court rejected the Fromms’ reliance on the recent condemnation decision in Brenner v. City of New Richmond<\/span>, 2012 WI 98, 343 Wis.2d 320, 816 N.W.2d 291d. In Brenner<\/span>, the city extended a runway at its airport. It acquired avigation easements for two properties in the FAA designated flight paths, but planes regularly flew over adjoining parcels. While the city did not have direct control over the pilots, the court in that case held that the city was in a better position than the landowners to reign in the overflights and that the flights were a result of the city’s action of expanding its runway. The court in Fromm<\/span> refused to accept an analogy, characterizing Brenner<\/span> as imposing liability for the city’s failure to stop the overflights.<\/p>\n

In short, Fromm<\/span> continues to draw a strong line between government action and inaction as forming a takings action under the U.S. or Wisconsin Constitutions.<\/p>\n

\u2014<\/span> Mark J. Steichen<\/p>\n<\/div>\n<\/div>\n","excerpt":"

In Town of Greece v. Galloway, the United States Supreme Court recently clarified the acceptable content of invocations delivered before legislative meetings Continue reading →<\/span><\/a><\/p>\n","date":"2014-06-17 10:10:58","categories":[{"id":35,"slug":"municipal-newsletter","title":"Municipal Newsletter","description":"","parent":32,"post_count":41},{"id":7,"slug":"construction","title":"Construction","description":"","parent":3,"post_count":20},{"id":12,"slug":"energy-telecom","title":"Energy & Telecom","description":"","parent":3,"post_count":43},{"id":42,"slug":"public_utility","title":"Public Utility","description":"","parent":3,"post_count":41},{"id":44,"slug":"utility-law","title":"Utility Law","description":"Links to Energy & Telecom page.","parent":3,"post_count":28}]},{"id":6638,"type":"publications","status":"publish","title":"Certiorari, Not De novo, Review Applies to Liquor License Renewals","title_plain":"Certiorari, Not De novo, Review Applies to Liquor License Renewals","content":"

\n

The November 2012 edition of this newsletter reported on a Wisconsin Court of Appeals decision reversing a circuit court holding that municipal denials of liquor license renewals are subject to de novo<\/span>rather than certiorari review under Wis. Stat. \u00a7 125.12. Nowell v. City of Wausau<\/span>, 2012 WI App 100, 344 Wis. 2d 269, 823 N.W.2d 373. The Wisconsin Supreme Court reversed that decision and agreed with the circuit court that certiorari is the appropriate method.<\/p>\n

\n

The Nowells operated a tavern known as “IC Willy’s.” The tavern held a combined intoxicating liquor and fermented beverage license issued by the City of Wausau. Shortly after it was issued the police began receiving noise complaints. After being warned that adult entertainment was prohibited, the tavern held a “Girls Gone Wild” event at which the police witnessed nudity and lewd behavior. The Nowells agreed to a 15-day suspension and offered a 16-point plan to deal with the problems. In May, the city informed the Nowells that it did not intend to renew the license because of numerous police calls and their failure to meet compliance checks or to comply with the plan. A city committee held a 14-hour hearing at which 18 witnesses testified and 42 exhibits were received. The committee issued a decision recommending that the city council not renew the license. After further argument, the council accepted the recommendation.<\/p>\n

The Nowells filed an action with the circuit court alleging that the city had unfairly discriminated against them and precluded them from offering evidence of disparate treatment. In addition, they claimed that the city wanted to give the license to another business and therefore exercised its will rather than its judgment. The circuit court held a two-day hearing at which the Nowells were allowed to present evidence on their disparate treatment and arbitrariness claims. The court applied the four-part certiorari test, citing <\/span>Marquette Savings & Loan Ass’n v. Village of Twin Lakes<\/span>, 38 Wis. 2d 310, 316, 156 N.W.2d 425 (1968), and concluded that the Nowells had failed to prove that their allegations. Accordingly, the court affirmed the city’s decision. <\/span><\/p>\n

The Nowells appealed, arguing that they were entitled to <\/span>de novo<\/span> review of the denial. The court of appeals agreed, reversed the judgment and remanded for further proceedings. The court of appeals found the issue to be a straight forward matter of statutory construction. At the time Marquette was decided, there were different statutes applicable to fermented beverage and intoxicating liquor licenses. The <\/span>de novo<\/span> standard applied to fermented beverages. The intoxicating liquor statute did not specify any manner for judicial review and the supreme court adopted the certiorari standard as being generally applicable to the review of municipal decisions. In 1981, the legislature consolidated the alcohol statutes and the court of appeals held that the current version, section 125.12(2)(d), continues the standard for judicial review that applied to fermented beverages when Marquette decision was issued.<\/span><\/p>\n

In support of its conclusion, the court of appeals noted that the statute provides that review proceedings be treated the same as civil actions; that the parties must file a complaint and answer respectively; that a court hearing may be held within as few as 5 days; that the court has the authority to issue subpoenas and to compel the attendance of witnesses; and that there is no provision for the filing the record from the municipality with the court. While noting that it was a substantial departure from the usual method applied to the review of municipal actions, the court of appeals found that these procedures are simply incompatible with the common law and statutory certiorari process and that the legislature intended decisions on alcohol licenses to be reviewed on a <\/span>de novo<\/span> basis.<\/span><\/p>\n

The supreme court reversed. It went through an extensive statutory review and addressed each of the points on which the court of appeals had relied. It found that the procedures set out in section 125.12 did not conflict with the certiorari procedure. The court emphasized that alcohol regulations in particular are considered the exercise of police power to be enforced by local governments and that these decisions are legislative in character. Consequently, <\/span>de novo<\/span> review would cause the judiciary to usurp the prerogatives of the legislative branch. <\/span><\/p>\n

\u2014 Mark J. Steichen<\/p>\n<\/div>\n

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Extraterritorial Density Regulation Deemed Zoning Not Subdivision Control<\/span><\/p>\n

The distinction between regulations that may be applied as extraterritorial zoning versus extraterritorial subdivision ordinances has been litigated over many years. The difference is significant. Extraterritorial zoning requires a joint body of the city or village and the town to establish regulations. Extraterritorial subdivision regulations are adopted and enforced unilaterally by a city or village over town land. In a decision recommended for publication, the Wisconsin Court of Appeals reversed the denial of an extraterritorial subdivision plat on the grounds that it constituted zoning regulation. <\/span>Lake Delavan Property Company, LLC v. City of Delavan<\/span>, Appeal No. 2013AP1202 (Ct. App. Feb. 12, 2014). <\/span><\/p>\n

The plaintiff is a development company that had purchased land in the Town of Delavan with the intention of subdividing it and building about 600 single-family homes. The land was zoned residential by Walworth County. It was in the planned sanitary sewer service area by the Southeast Wisconsin Regional Planning Commission and the city’s comprehensive plan designated it as a “traditional neighborhood.” The county’s and town’s comprehensive plans showed the area as urban density residential, with lots smaller than five acres. <\/span><\/p>\n

Several years later, the city amended its subdivision ordinance adopting a minimum 35-acre lot size for land within its extra territorial subdivision jurisdiction. The following year, the company submitted a preliminary subdivision plat with lots smaller than the 35-acre regulation. The city rejected the plat and the company brought a certiorari action. <\/span><\/p>\n

The rejection of the plat under these extreme circumstances would most likely have been reversed under previous case law. In general terms, extraterritorial subdivision regulations are intended to make development consistent with the infrastructure and character of development in anticipation of eventual annexation into the neighboring city or village. In this case, the regulation went in the opposite direction and was clearly intended to effectively prevent residential development and keep open space on the city’s borders. That is a classic function of zoning law. <\/span><\/p>\n

The case is significant, because it is written in very broad terms and relies heavily on a 2009 amendment to statutory section 236.45 authorizing extraterritorial subdivision. The amendment prohibits the refusal to approve a plat or CSM on the basis of the “proposed use of the land” unless the regulation is adopted as part of extraterritorial zoning. The case expressly calls into question the validity of prior case law. In practice, distinguishing between “use” regulations that are zoning rather than land division has proven more complicated than just applying labels and generalities. The case begs the question of whether minimum lot size requirements will now be deemed exclusively zoning in nature or whether the particular circumstances of this case rendered the 35-acre provision a zoning regulation. The case is likely to re-energize the debate.<\/span><\/p>\n

\u2014 Mark J. Steichen<\/p>\n<\/div>\n

\n

Supreme Court Reverses on Sufficiency of Special Assessment Appeal<\/span><\/p>\n

The May\/June 2013 edition of this newsletter reported on a published decision of the court of appeals addressing the applicability of the notice pleading and relation back doctrines of sections 802.02(1) and 802.09 of the Wisconsin Statutes to special assessment appeals. <\/span>CED Properties, LLC v. City of Oshkosh<\/span>, 2013 WI App 75, 348 Wis. 2d 305, 836 N.W.2d 654. The court held that the doctrines apply. However, by a split decision 2-1, the court found under the facts of the case, the taxpayer’s complaint specifically addressing a first assessment was insufficient to appeal a second one.<\/span><\/p>\n

In a unanimous decision, the supreme court has reversed the outcome. It agreed that the doctrines apply, but found that the complaint encompassed both assessments. <\/span>CED Properties, LLC v. City of Oshkosh<\/span>, 2014 WI 10 (Mar. 6, 2014).<\/span><\/p>\n

CED owns a corner property at the intersection of Jackson Street and Murdock Avenue in the City of Oshkosh. In 2010, the city embarked on an improvement project that encompassed both streets at this intersection. The city issued two separate assessments against CED’s property, one for each street. The resolutions stated that they “are hereby combined as a single assessment,” but went on to state that “any interested property owner shall be entitled to object to each assessment separately or both assessments, jointly . . .” The Jackson Street and Murdock Avenue assessments were listed as separate items with different amounts for each one.<\/span><\/p>\n

The city’s resolutions for the two assessments were published on July 27 and 31, 2010, respectively. CED filed a complaint with the circuit court on September 23, 2010–within the 90 days required by statute. The complaint listed the property’s Jackson Street address and tax parcel number. It also recited the amount of the assessment for the Murdock Avenue improvement, but not for the Jackson Street portion. The complaint alleged that the Murdock Avenue amount was “for the street repair of the Jackson Street-Murdoch Avenue intersection improvement project.” When CED moved for summary judgment, the city argued that the complaint applied only to the Murdock assessment. On June 28, 2011, CED filed an amended complaint that modified each paragraph to specifically refer to the Jackson Street assessment. <\/span><\/p>\n

At the circuit court, the city conceded that the assessment process was procedurally flawed and the court granted summary judgment for CED on the Murdock Avenue amount. It granted summary judgment in the city’s favor on the Jackson Street assessment. The circuit court reasoned that the notice pleading and relation back rules do not apply to assessments because of the specific statute, Wis. Stat. <\/span>\u00a7<\/span> 66.0703, that governs assessment appeals.<\/span><\/p>\n

The court of appeals affirmed but on different grounds. All three judges agreed that that the notice pleading and relation back rules apply to special assessments under Wis. Stat. <\/span>\u00a7<\/span> 66.0703. The rationale was simple. Section 801.01(2) provides that Chapters 801 through 847 govern practice and procedure in the circuit courts for special proceedings as well as civil actions–unless the statutes governing the particular type of special proceedings provide otherwise. A special assessment appeal is a special proceeding. Section 66.0703 does not contravene the pleading rules of Chapter 802. Therefore, the notice pleading and relation back rules apply to appeals of special assessments.<\/span><\/p>\n

The dispute between the majority and dissent focused on whether the original complaint was sufficient to refer to the assessments for both streets. For an amended complaint to relate back to a prior complaint for purposes of the date of filing, the original complaint must have given the defendant notice of the facts underlying the claims. The majority noted that the original complaint recited the assessment amount for Murdock Avenue but not for Jackson Street. In addition, the majority focused on the part of the resolution permitting appeals of individual assessments. The dissent argued that, based on the liberal notice pleading rule requiring a complaint to read in the light most favorable to the plaintiff, the reference in the original complaint to the project at the intersection was sufficient to put the city on notice that the appeal concerned both streets.<\/span><\/p>\n

The supreme court agreed with the dissent and reversed. It confirmed that the pleading rules apply to special assessments. The court went on to find that the initial complaint gave the city sufficient notice that both assessments were being appealed because: (1) the complaint identified the parcel number to which both assessments applied; (2) it identified the improvement project as the “Jackson Street-Murdock Avenue intersection improvement project”; and (3) the city’s project name referred to both streets by name. <\/span><\/p>\n

\u2014 Mark J. Steichen<\/p>\n<\/div>\n

\n

REGULATORY WATCH<\/span><\/p>\n

\u201cRegulatory Watch\u201d highlights federal and state agency actions of interest to municipalities and their utilities. It is presented as a regular feature of the <\/span>Municipal Law Newsletter<\/span> by Anita Gallucci, Rhonda Hazen, Richard Heinemann and Lawrie Kobza.<\/span><\/p>\n<\/div>\n

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Wisconsin Public Service Commission Files Complaint Against Presque Isle Cost Shifts<\/p>\n

Responding to a proposed System Support Resource Agreement (“SSR Agreement”) intended to subsidize the cost of running the 340 MW Presque Isle coal plant owned by WE Energy and located in the Upper Peninsula of Michigan, the Wisconsin PSC has filed a complaint with the Federal Energy Regulatory Commission (FERC). The PSC complaint alleges that the SSR Agreement, which was submitted to FERC for approval by the Midcontinent Independent System Operator, Inc. (MISO) in January, 2014, unreasonably shifts costs onto Wisconsin ratepayers. FERC regulations authorize MISO to enter SSR agreements with generation owners whenever a proposed plant shut down causes potential reliability concerns. The agreements are intended to allocate the costs associated with running the generation resource to transmission system users for a temporary period until alternative arrangements for the plant or necessary infrastructure investments are made. The Presque Isle plant was slated for shut down by WE Energy in 2013 when two large coal mines previously served by the plant opted to obtain electric service from another supplier in accordance with Michigan retail choice law. Fixed monthly costs to the transmission customers allegedly benefiting from the proposed SSR Agreement are estimated to be over $4 million, and numerous regulatory agencies, utilities, large customer coalitions and environmental groups have protested various aspects of the SSR Agreement, including the proposed method of allocating costs. FERC approved the SSR Agreement on April 1, 2014 and the PSC promptly filed its complaint in order to shift a greater share of SSR Agreement-related costs onto the Michigan customers it purportedly benefits.<\/p>\n

FERC Concerned With Unusual Market Conditions This Past Winter<\/p>\n

This winter\u2019s frigid temperatures, which have wreaked havoc with wholesale energy markets, have prompted a number actions by federal regulators. On March 20th, FERC initiated a proposed rulemaking to improve the coordination and scheduling of natural gas pipeline capacity with electricity markets because of the increasing reliance by electric generators on natural gas as a fuel supply. By starting the natural gas operating day earlier and increasing daily scheduling flexibility, it is hoped that shippers will be able to better adjust to shifting demand. These and related efforts to better coordinate gas and electricity markets are being undertaken alongside an overarching investigation by FERC into the gas and electric markets, which has seen periods of unprecedented spiking in the gas and electric spot markets throughout the winter months. FERC\u2019s area of inquiry includes the possibility of market manipulation by market participants, as well as the role played by industrial demand fluctuation, supply shortages, exports to Mexico and a wide range of other market conditions. FERC is also scheduling a technical conference on April 1 to address the challenges presented by the extreme cold this winter.<\/p>\n

\u201cState of the Markets\u201d Report Underscores Concern for Dependence on Gas-Fired Generation<\/p>\n

According to FERC\u2019s \u201cState of the Market\u201d report for 2013 and the first part of 2014, gas demand was up, setting a new daily record of 137 Bcf\/d in January. Gas and electricity spot prices increased overall in 2013, even as electricity demand fell for the third consecutive year. Emergency demand response resources were called upon by independent system operators in 2013 more than in any of the past five years. There was also an overall increase in generation capacity by 2,000 MW in 2013, with a 5,000 MW gain in gas-fired generation resources, which offset about 3,000 MW of nuclear and coal plant retirements. Such statistics provide context for recent public comments by FERC commissioners Moeller and Norris expressing concern for increasing dependence on gas-fired capacity in the generation market in the event that industrial demand picks up over the next several years.<\/p>\n<\/div>\n<\/div>\n","excerpt":"

The November 2012 edition of this newsletter reported on a Wisconsin Court of Appeals decision reversing a circuit court holding that municipal denials of liquor license renewals are subject to de novo rather than certiorari review Continue reading →<\/span><\/a><\/p>\n","date":"2014-04-07 14:22:13","categories":[{"id":35,"slug":"municipal-newsletter","title":"Municipal Newsletter","description":"","parent":32,"post_count":41},{"id":12,"slug":"energy-telecom","title":"Energy & Telecom","description":"","parent":3,"post_count":43},{"id":17,"slug":"land-use","title":"Land Use and Zoning","description":"","parent":3,"post_count":28},{"id":42,"slug":"public_utility","title":"Public Utility","description":"","parent":3,"post_count":41},{"id":44,"slug":"utility-law","title":"Utility Law","description":"Links to Energy & Telecom page.","parent":3,"post_count":28}]},{"id":6383,"type":"publications","status":"publish","title":"Milwaukee County Judge Strikes Down City of Milwaukee\u2019s Residency Requirement","title_plain":"Milwaukee County Judge Strikes Down City of Milwaukee\u2019s Residency Requirement","content":"

On January 27, 2014, Milwaukee County Circuit Court Judge Paul Van Grunsven declared the City of Milwaukee\u2019s long-standing residency requirement to be unenforceable. The City\u2019s rules, which required all employees of the City to live within the City limits, have been in place since 1938, but some City employees have challenged the requirement over the years. City employees gained a promising basis for challenging the rule last year when the state legislature passed a law specifically prohibiting residency requirements. The new law, Wis. Stat. \u00a7 66.0502, was signed by Governor Walker and took effect on July 2, 2013.<\/p>\n
\n

The law declares that \u201cpubic residency requirements are a matter of statewide concern\u201d and prohibits \u201clocal government units,\u201d including cities, villages, towns, counties and school districts, from requiring, \u201cas a condition of employment, that any employee or prospective employee reside within any jurisdictional limit.\u201d The law provides an exception for residency rules requiring non-volunteer law enforcement, fire, or emergency personnel to reside within 15 miles of the jurisdictional boundaries of the local government unit.<\/p>\n

Immediately following the enactment of Wis. Stat. \u00a7 66.0502, the City of Milwaukee’s Common Council passed a resolution directing City officials to continue enforcing the City’s residency requirement on the grounds that the new state law violated the City’s home rule authority under the Wisconsin Constitution. The Milwaukee Police Association filed a lawsuit challenging the City’s residency ordinance and the Common Council’s resolution; the Milwaukee Professional Fire Fighters Association Local 215 later joined the suit. The police and firefighters argued that the City’s residency requirements were preempted by the new state law, and also that the new law created a “liberty interest,” protected by the United States Constitution, giving municipal employees the right to be free from residency requirements as a condition of employment.<\/p>\n

In response, the City argued that residency requirements for municipal employees are a matter of local concern, not statewide concern. Thus, under its constitutional right to home rule, the City, not the state, has the authority to regulate such matters. The City explained that the residency requirements are necessary to protect the City’s tax base and ensure that City employees are motivated and invested in the City and its future.<\/p>\n

Judge Van Grunsven acknowledged that the residency of municipal employees is a local issue in some respects because, among other things, municipalities have an interest in ensuring loyalty and longevity among their employees. However, Judge Van Grunsven concluded that residency requirements are primarily<\/span> a matter of statewide concern. In particular, the legislature has a clear interest in governing terms and conditions of employment, including prohibiting discrimination in employment and protecting employees from unfairly restrictive employment conditions. Because the new state law governs a matter primarily of statewide concern, the legislature could prohibit municipalities from enacting contrary ordinances without violating a municipality’s home rule authority. Judge Van Gunsven also agreed with the police and firefighters’ arguments that Wis. Stat. \u00a7 66.0502 created a constitutional “liberty interest” for public employees to be free from residency requirements as a condition of employment. Therefore, if the City were to enforce its residency rules, the City would be violating the United States Constitution.<\/p>\n

Because the City’s residency requirements violated state and constitutional law, Judge Van Grunsven declared the requirements to be void and unenforceable. The City has announced that it intends to appeal the decision to the Wisconsin Court of Appeals.<\/p>\n

\u2014 Sarah B. Painter<\/p>\n<\/div>\n

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Lack of Evidence of Municipal Negligence Results in Dismissal of Sewer Backup Case<\/span><\/p>\n

In order to proceed with a sewer backup claim, a plaintiff must provide evidence that the public entity who owns the sewer system is negligent. A public entity that owns a sewer system is not deemed to be negligent under the doctrine of res ipsa loquitur<\/span> just because repeated sewer backups occur. Davis v. City of Milwaukee<\/span>, Appeal No. 2013AP 741, Ct. App, decided December 27, 013, unpublished.<\/p>\n

In Davis<\/span>, plaintiff alleged that four sewage backups, occurring between 2008 and 2010 at his residential property, resulted from the negligence of the City of Milwaukee (City) and the Milwaukee Metropolitan Sewerage District (MMSD). Plaintiff claimed that under the doctrine of res ipsa loquitur<\/span>, negligence could be inferred from the fact that multiple sewage backups occurred in a two-year time span. The trial court disagreed, and after the conclusion of plaintiff’s case at trial, the trial court dismissed plaintiff’s claims against both MMSD and the City because plaintiff failed to provide evidence that either the City, MMSD, or both together, caused any of the backups. Plaintiff appealed the trial court’s directed verdict. The Court of Appeals affirmed the trial court.<\/p>\n

The Court of Appeals held that the doctrine of res ipsa loquitur<\/span> did not apply in this case. Res ipsa loquitur<\/span> permits a factfinder to infer that negligence caused damage or injuries when the following three conditions are met:<\/p>\n

(a) either a layman is able to determine as a matter of common knowledge or an expert testifies that the result which occurred does not ordinarily occur in the absence of negligence; (b) the agent or instrumentality causing the harm was within the exclusive control of the defendant; and (c) the evidence offered is sufficient to remove the causation question from the realm of conjecture, but not so substantial that it provides a full and complete explanation of the event.<\/p>\n

The Court of Appeals found that based upon the evidence provided at trial, these three conditions could not be met in this case. While the City and MMSD were each involved in providing the sewer system, no expert testimony or other evidence was offered at trial that suggested the City or MMSD, individually or collectively, caused the backups. To the contrary, City and MMSD witnesses testified without contradiction that the unusually heavy rains in the summers of 2008 and 2010 — over which they obviously had no control — could have overwhelmed the sewer system and caused the backup. Given these facts, plaintiff could not rely upon the doctrine of res ipsa loquitur<\/span> to infer that negligence by the City and MMSD caused the sewer backups.<\/p>\n

In order to proceed with his claims, plaintiff was required to provide evidence the City and MMSD were negligent in their operation and maintenance of their sewer systems and that their negligence caused the sewer backups and plaintiff’s damages. Plaintiff failed to do that at trial, and his case against the City and MMSD was properly dismissed by the trial court.<\/p>\n

\u2014 Lawrie Kobza<\/p>\n<\/div>\n

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Manure Is Not an Excluded “Pollutant” Under Farmowner’s Insurance Policy<\/span><\/p>\n<\/div>\n

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Manure is not an excluded “pollutant” under a farmowner’s insurance policy, the Court of Appeals held in Wilson Mutual Insurance Co. v. Falk<\/span>, Appeal No. 2013AP691 & 2013AP776 Ct. App., decided December 11, 2013 (recommended for publication). Insurance coverage is therefore potentially available to cover claims that a farmer’s manure spreading resulted in contamination of neighboring wells.<\/p>\n

The Falks own and operate a dairy farm and use manure from their cows as fertilizer for their fields. In 2011, the DNR notified the Falks that manure from their farm had polluted a local aquifer and contaminated their neighbors\u2019 water wells. Several neighbors demanded compensation for the well contamination. The Falks notified Wilson Mutual, the provider of their farmowner’s insurance policy, of the claims. Wilson Mutual sought a court declaration that it had no duty to defend or indemnify the Falks for any damages arising out of the water well contamination because manure is a \u201cpollutant\u201d under the farmowners policy\u2019s pollution exclusion clause. The circuit court agreed with Wilson Mutual. The Falks appealed.<\/p>\n

On appeal, the question was whether cow manure falls within the definition of a \u201cpollutant\u201d under Wilson Mutual\u2019s farmowners policy. The policy provides that the insurer will pay all sums the Falks become liable by law to pay because of property damage or bodily injury caused by an occurrence to which coverage under the policy applies. The policy expressly excludes losses resulting from the discharge of “pollutants.” “Pollutant” is defined in the policy as \u201cany solid, liquid, gaseous \u2026 irritant or contaminant, including \u2026 waste. Waste includes materials to be recycled, reclaimed, or reconditioned, as well as disposed of.\u201d<\/p>\n

The Court of Appeals noted that the insurance policy’s definition of \u201cpollutant\u201d is broad and virtually boundless \u201cfor there is virtually no substance or chemical in existence that would not irritate or damage some person or property.\u201d In order to apply a reasonable interpretation to the term “pollutant,” the term must be considered \u201cas understood by a reasonable person in the position of the insured<\/span>,\u201d the Court stated.<\/p>\n

According to the Court, a reasonable farmer would not consider manure to be a \u201cpollutant,\u201d an \u201cirritant,\u201d a \u201ccontaminant,\u201d or \u201cwaste.\u201d<\/p>\n

Manure is an everyday, expected substance on a farm that is not rendered a pollutant under the policy merely because it may become harmful in abnormally high concentrations or under unusual circumstances. (citation omitted.) Manure is a matter of perspective; while an average person may consider cow manure to be \u201cwaste,\u201d a farmer sees manure as liquid gold. Manure in normal, customary use by a farmer is not an irritant or a contaminant, it is a nutrient that feeds the farmer\u2019s fields that in turn feeds the cows so as to produce quality grade milk. Manure in the hands of a dairy farmer is not a \u201cwaste\u201d product; it is a natural fertilizer. While bat guano is \u201cwaste\u201d to a homeowner, and lead paint chips are universally understood by apartment building owners to be dangerous and pollutants, manure is beneficial to a dairy farmer. Manure, by act of nature, has always been universally present on dairy farms and, if utilized in normal farming operations, is not dangerous.<\/p>\n

Since a reasonable farmer would not consider manure to be a pollutant, it should not be considered to be “pollutant” excluded from coverage under the farmowner’s insurance policy, the Court concluded.<\/p>\n

\u2014 Lawrie Kobza<\/p>\n<\/div>\n

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Grievance Policy Found to Violate Act 10<\/span><\/p>\n<\/div>\n

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Under 2011 Wisconsin Act 10, municipalities were required to adopt by October 2011 a grievance policy that established a procedure for “terminations,” “discipline” and “workplace safety.” \u00a766.0509, Stats. However, the statute did not define those terms and municipalities universally undertook to define them in their discretion. In doing so, most policies excluded certain employment actions from the grievance process. For example, “terminations” has been generally defined across the state to exclude situations, among others, in which an employee voluntarily quit, was laid off and retired. Some municipalities defined “discipline” to exclude verbal or written warnings.<\/p>\n

With the passage of time since these policies were adopted, we are starting to see issues arise involving the application of the procedures to actual grievances–for example, the use of the standard used by the Impartial Hearing Officer and governing body when judging the administrative action. In Dodge County Professional Employees Local 1323-A, AFSCME, AFL-CIO and Heidi Burden v. Dodge County<\/span>, 2013AP535 (Ct. App. Dec. 5, 2013), the Court of Appeals addressed the ability of municipal bodies to define what constitutes a “termination” as that term is used in \u00a766.0509, Stats.<\/p>\n

The issue arose with respect to Dodge County’s definition of termination that excluded from the grievance procedures a “termination of employment due to \u2026lack of qualification\u2026” Burden’s job required that she not have been convicted of operating a motor vehicle while intoxicated within the past twelve months. When Burden was convicted of OWI, the County immediately dismissed her from employment. Burden sought to grieve her dismissal under the County’s grievance system, but was advised that her dismissal was not a termination under the policy so as to allow her to utilize it.<\/p>\n

Burden filed a declaratory judgment action in circuit court contending that Dodge County’s grievance system violated \u00a766.0509, contending that her dismissal constituted a “termination” as used in the statute. The circuit court held that Dodge County had broad discretion to define “termination” under the statute and that by excluding dismissals for “lack of qualification,” Dodge County did not violate the statute. Burden appealed this decision and the Court of Appeals ruled in her favor, reversing the circuit court decision.<\/p>\n

In reaching its decision, the Court of Appeals was required to establish what the legislature meant by the word “termination.” In doing so, the court looked to the dictionary which defined a “termination” as the discontinuation of employment or dismissal. Dodge County contended that \u00a766.0509 authorized municipalities to exclude some forms of terminations from its coverage. The Court of Appeals agreed with the proposition that all forms of separation from employment are not “terminations,” for example, voluntary quits or retirement, and further acknowledged that “in all situations it will [not] be clear whether a ‘termination’ within the meaning of the statute has occurred.” Notwithstanding this, the Court of Appeals concluded that Burden’s dismissal was a “termination” within the plain meaning of the statute. The Court of Appeals found significant the fact that the Dodge County policy defined the employment action taken when an employee was found to “lack qualifications” for the position as a “termination.”<\/p>\n

Municipalities were given a short window in which to adopt grievances systems in 2011 and not much guidance from the legislature as to the details of what they should and could address. This case, and the growing body of grievances under the systems, is starting to provide a sufficient background of information to assess policies adopted in 2011. We recommend that sometime in the near future, municipalities review with legal counsel their Act 10 grievances policies.<\/p>\n

\u2014 Steven C. Zach<\/p>\n<\/div>\n

DNR Must Consider Impacts from Proposed New Wells In Conjunction with Impacts from Existing Wells When Conducting A Cumulative Impacts Analysis<\/span><\/p>\n

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In Family Farm Defenders, Inc. v. DNR<\/span>, Appeal No. 2012AP1882, Ct. App., decided December 19, 2013, the Wisconsin Court of Appeals decided that the environmental assessment of two proposed high capacity water wells at a new large dairy by theWisconsin Department of Natural Resources (DNR) was insufficient. The court ordered that on remand the DNR must consider the potential cumulative effects the two proposed wells, in conjunction with other existing wells, would have on the environment.<\/p>\n

The case involves Richfield Dairy’s proposal to construct a large dairy facility that would house approximately 4,300 dairy cows and 250 steers in Adams County. The dairy applied for a Wisconsin Pollutant Discharge Elimination System (WPDES) permit for the facility. Before granting a WPDES permit, the DNR is required to conduct an environmental assessment (EA). The purpose of the EA is to determine whether an environmental impact statement (EIS) must be conducted for a particular activity. One of the factors that must be considered in an EA is the cumulative effect of high capacity groundwater pumping on the environment within the region.<\/p>\n

The DNR conducted an EA of the Dairy’s two proposed high capacity wells and concluded that an EIS was not required for the construction of the wells. The primary issue in the case was whether the DNR properly considered the cumulative effects from the proposed high capacity wells as required by Wis. Admin. Code \u00a7 NR 150.22(2)(a)2. The DNR took the position that its review of the potential impacts of the high capacity wells on the environment was limited to whether the two proposed wells would cause a potential significant adverse environmental impact. The DNR conducted its EA based upon this standard. Plaintiffs argued that DNR’s review was too limited, and that the DNR must consider the impacts the proposed wells would have in conjunction with other existing and proposed future wells.<\/p>\n

The Court of Appeals noted that there were no Wisconsin cases construing this requirement in \u00a7 NR 150.22(2)(a)2. The court therefore turned to federal case law interpreting similar requirements. Based upon the reasoning set forth in several cited federal cases, the court concluded that \u00a7 NR 150.22(2)(a)2. “requires an EA to include an analysis of the cumulative environmental effects of past, present, and ‘reasonably anticipated’ similar or related activities.” The court further stated that, “[a]pplying this reading of \u00a7 NR 150.22(2)(a)2. to the proposed activities in this case, this regulation requires the EA to reflect consideration by the DNR of the cumulative environmental effects of the two high capacity wells in conjunction with other past, present, and reasonably anticipated high capacity water pumping wells, and other activities affecting surface and underground water resources in the relevant geographical area.”<\/p>\n

The court found that the DNR’s analysis did not comply with the analysis the court determined was required by \u00a7 NR 150.22(2)(a)2. Since the DNR limited its consideration of the evidence from the effects of the two high capacity wells only, and did not consider the cumulative effects of the proposed high capacity wells in conjunction with other high capacity wells in the region, the DNR’s EA was inadequate.<\/p>\n

In an interesting footnote to its decision, the Court of Appeals admitted that it was not sure what a sufficient cumulative effects analysis would look like, but left that issue open for another day.<\/p>\n

\u2014 Lawrie Kobza<\/p>\n<\/div>\n<\/div>\n","excerpt":"

On January 27, 2014, Milwaukee County Circuit Court Judge Paul Van Grunsven declared the City of Milwaukee\u2019s long-standing residency requirement to be unenforceable. Continue reading →<\/span><\/a><\/p>\n","date":"2014-02-11 11:34:34","categories":[{"id":35,"slug":"municipal-newsletter","title":"Municipal Newsletter","description":"","parent":32,"post_count":41},{"id":7,"slug":"construction","title":"Construction","description":"","parent":3,"post_count":20},{"id":12,"slug":"energy-telecom","title":"Energy & Telecom","description":"","parent":3,"post_count":43},{"id":17,"slug":"land-use","title":"Land Use and Zoning","description":"","parent":3,"post_count":28},{"id":18,"slug":"litigation","title":"Litigation","description":"","parent":3,"post_count":74},{"id":42,"slug":"public_utility","title":"Public Utility","description":"","parent":3,"post_count":41},{"id":44,"slug":"utility-law","title":"Utility Law","description":"Links to Energy & Telecom page.","parent":3,"post_count":28}]}]