314 Wisconsin Towns Lawyers Conference 2002

23rd Wisconsin Towns Lawyers Conference, April 2002. THERE IS NO PAPER VERSION of THIS in BOOKLET form,
because it was created via scan directly from the original and not replicated for PDF processing. The original from which this PDF was created will not be in the BOOKLET COLLECTION although it may, exist as itself on library shelves or in private collections.

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2002

314 Wisconsin Towns Lawyers Conference 2002.pdf

Linda Valentine Snippets

Linda Valentine Snippets

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Wisconsin

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Kenosha County, Wisconsin

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Valentine
SNIPPETS of SALEM
314- 23rd Wisconsin
Towns Lawyers
Conference
April 2002

THERE IS NO PAPER VERSION of THIS in BOOKLET form,
because it was created via scan directly from the original and not
replicated for PDF processing. The original from which this PDF was
created will not be in the BOOKLET COLLECTION although it may,
exist as itself on library shelves or in private collections.

0-90 pages
NOTE:
The materials herein were contributed by those of the area who wished that the history they have
experienced be saved for the future generations. These may represent private documents as well
as previously published articles and obituaries and images from their saved collections ..
Researchers should also refer to the Valentine Digital archives at the SALEM COMMUNITY
LIBRARY (and perhaps other websites) for more images in this collection or digital images of
items photocopied in this booklet or related to the topic.

Compiled 01/2014 by L S Valentine Copyright©Valentine2014

Valentine
SNIPPETS of SALEM
314- 23rd Wisconsin
Towns Lawyers
Conference
April 2002

THERE IS NO PAPER VERSION of THIS in BOOKLET form,
because it was created via scan directly from the original and not
replicated for PDF processing. The original from which this PDF was
created will not be in the BOOKLET COLLECTION although it may,
exist as itself on library shelves or in private collections.

0-90 pages
NOTE:
The materials herein were contributed by those of the area who wished that the history they have
experienced be saved for the future generations. These may represent private documents as well
as previously published articles and obituaries and images from their saved collections ..
Researchers should also refer to the Valentine Digital archives at the SALEM COMMUNITY
LIBRARY (and perhaps other websites) for more images in this collection or digital images of
items photocopied in this booklet or related to the topic.

Compiled 01/2014 by L S Valentine Copyright©Valentine2014

'•·

The 23rd Annual

Wisconsin Town
Lawyers Conference
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2002, Board of Regents, Univ. of Wis.

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Program Topics
Registration: 8:30-9:00 a.m.
Instruction: 9:00a.m. to 4:15p.m.
9:00- 10:00 a.m.

Town Regulation of Land Use in Towns Without Town Zoning
Richard Lehmann

10:00- 10:30 a.m.

Current Issues Regarding Fire Departments and First Responders
• Overview of Alternative Methods of Providing Service
• Town Departments Authorized to Hold "Volunteer Funds"
• Open Records Implications of Municipal Funding
• First Responders Must Act under Paramedic Sponsorship
Robert Wertsch
Break

10:30- 10:45 a.m.

10:45- 12:00 noon A Practical Approach to Common Legal Questions from Town
· Departments: Highway, Public Works, and Engineering ...
including snow shoveling, highway defects, weed removal, zoning,
safe place duties, flooding, immunity, inspections & enforcement,
and recordkeeping
Raymond Pollen & Amy Doyle
12:00-1:15 p.m.

Lunch Break

1:15- 2:00p.m.

Hiring Consultants: Requests for Proposals and Other
Do's and Don'ts
Thomas Harnisch

2:00- 2:45 p.m.

Town Counsel's Media Relations Role
• Mistakes to A void When Meeting with the Media
• Media Coverage Trends
• What Reporters Look For
• Recent Developments in the Open Meetings Law
john A. St. Peter & Michael Mentzer

2:45 -3:00p.m.

Break

3:00-4:15 p.m.

A 2002 Legislative Update Emphasizing Changes Affecting Towns
Budgets
• Possible Levy Limits
• Cuts in Shared Revenues
• Implications for Present Budgets and Future Budgets
• Advice for the Town Attorney on Budgeting-Related Questions
Richard Stadelman

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Speakers
Amy J. Doyle
Crivello, Carlson & Mentkowski, SC
Milwaukee
Thomas Harnisch
Harnisch Law Office
Neillsville
Richard A. Lehmann
The Boardman Law Firm, LLP
Madison
Michael Mentzer
Fond du Lac Reporter
Fond duLac
Raymond Pollen
Crivello, Carlson & Mentkowski, SC
Milwaukee
John A. St. Peter
Edgarton, St. Peter, Petak, Massey & Bullon
Fond duLac
Richard Stadelman
Wisconsin Towns Association
Robert C. W ertsch
W ertsch Law Office
Oshkosh

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TOWN LAWYERS CONFERENCE
APRIL 26, 2002
TOWN REGULATION OF LAND USE IN TOWNS WITHOUT TOWN ZONING
RICHARD A. LEHMANN
Boardman, Suhr, Curry & Field LLP
Fourth Floor
1 South Pinckney Street
P. 0. Box 927
Madison, WI 53701-0927
Phone: (608) 283-1719
Fax: (608) 283-1709
e-mail: rlehmann@boardmanlawfirm. com

Introduction:
I am going to focus here on the key question of the "Gordie Boucher doctrine" in Wisconsin land
use law.
I will begin with a pre-Gordie Boucher Attorney General opinion that was cited in the Gordie
Boucher case and that involved a Town regulating several aspects of land use with a non-zoning
ordinance.
After that discussion, we will look at the Gordie Boucher decision and the later cases that interpreted
Gordie Boucher and a recent opinion from the League of Wisconsin Municipalities.
Caution to Town attorneys and officials: Gordie Boucher and several of the derivative cases and
the League opinion deal factually with Cities and Villages regulating outside the "box" of zoning.
What does this have to do with Towns?
Gordie Boucher lays down rules that apply universally to any regulating government. Therefore,
the City and Village cases are fully relevant.

I.

The "Rule" in Wisconsin Common Law That Regulations That Look like Zoning Can
Only Be Done Through Zoning
A.

OPINION NO. OAG 15-87, 76 Op. Att'y Gen. 60 (March 31, 1987)

To: Corporation Counsel, Iowa County
You indicate that Iowa County has enacted a comprehensive zoning ordinance and that the Town
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of Arena has adopted that ordinance. You also indicate that the Town of Arena has recently enacted
or adopted a Land Use Guidance System. A copy of that document together with a copy of the
town's land division and building code ordinances were enclosed with your request. Similar
materials were furnished to this office by the town.
Initially, you inquired whether the enactment of the Land Use Guidance System, as incorporated
by reference in the accompanying ordinances, impermissibly constituted the enactment of a zoning
ordinance contrary to the provisions of section 60.62 (3), Stats., or the enactment of a building code
contrary to the provisions of section 101.65 (1)(a), and Wis. Admin. Code§ ILHR 20.02 (1)(b).
Upon being advised that such an inquiry would require a section by section analysis of the
provisions of each ordinance as well as a section by section analysis of the provisions of the Land
Use Guidance System adopted by reference in each ordinance, you referred our office to the Iowa
County Zoning Administrator, who indicated that Iowa County has two principal areas of concern.
The first is whether a town may adopt driveway performance standards as town building regulations
pursuant to either sections 60.22 (3) and 61.34 (1) or section 101.65. The second is whether a town
may set a quota on the number of residential building permits it will issue each year.
I am of the opinion that a town with village powers is not prohibited by statute from any and all
regulation of driveway installation. However, I decline to decide whether the specific provisions of
the town's driveway performance standards are consistent with state law in every respect. I am also
of the opinion that a town which is subject to a county zoning ordinance that contains no limitation
on the issuance of county zoning permits may not set a quota on the number of residential building
permits that the town will issue each year.
A description of the town's Land Use Guidance System is a useful starting point for analysis. In
1985, after receiving recommendations from a long range planning commission, the town enacted
a land use guidance system consisting of three elements. Element I is the long-range policy plan
which contains four land use planning goals: to preserve the family farm and farmland; to guide
future growth of the town; to plan for the provision of necessary public services; and to protect the
natural environment. The plan also contains specific policies aimed at achieving these goals. This
long range policy plan was developed as the town's "master plan" pursuant to section 62.23.
Element II lists the performance standards through which the planning policies are implemented. ·
The land division standards apply to the creation of new parcels for residential and commercial uses.
They establish minimum frontage, parcel size and lot width. They also require that deed restrictions
or similar notations be included on certified survey maps. The building standards for private and
commercial structures restrict the issuance of permits to those that comply with the driveway and
land division standards. They also provide that in any given year, the town will issue only seven
residential construction permits, four of which are granted on the basis oflength ofland ownership,
two of which are granted by drawing and one of which is reserved for farm usage. The driveway
standards apply to residential, agricultural and commercial driveways, and regulate location, access,
width, grade and curve radius. The building permit and driveway standards are incorporated by
reference and enforced through the town building code. The land division standards are similarly
enforced through the town's subdivision ordinance.

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Note: All "Comments" are annotations by Dick Lehmann.
Comment: We are not told whether the driveway standards applied only within the Town
road right of way or for the entire length of the driveway or whether they applied only to
driveways connecting to Town Roads.
Element III sets forth the administrative procedures for reviewing and approving proposed land uses,
granting variances and amending provisions of the Land Use Guidance System.
Under section 61.35, towns exercising village powers pursuant to sections 60.10 (2)(c) and 60.22
(3) may adopt a master plan. The Land Use Guidance System itself therefore creates no potential
conflict between jurisdictions, because a land use guidance system is simply such a master plan.
Potential jurisdictional conflicts arise because the town has given certain aspects of its master plan
the force oflaw by enacting building code and subdivision ordinances which make compliance with
the Land Use Guidance System mandatory.
With respect to your first inquiry, I am not persuaded that a town with village powers is completely
devoid of statutory authority to enact an ordinance concerning the installation of driveways.

Comment: How's this for straightforwardness? The question was: can the Town adopt this
driveway ordinance? The answer was: the Town is not completely without power to regulate
driveways. Huh?
Let's see if we f"md any straighter answer:
Section 101.65 ( 1)(a) permits towns to "[e]xercise jurisdiction over the construction and inspection
of new dwellings by passage of ordinances .... "But Wis. Admin. Code§ ILHR 20.02 (5) provides:
"LANDSCAPING. The scope of this code does not extend to driveways, sidewalks, landscaping and
other similar features not having an impact on the dwelling structure." This provision indicates that
a driveway is not a "dwelling" within the meaning of section 101.65. Therefore, town regulation of
driveway installation is neither permitted nor prohibited by section 101.65.
Another potential source of authority to regulate driveway installation in towns exercising village
powers pursuant to sections 60.10 (2)(c) and 60.22 (3) is section 61.34 (1), which provides:
Powers of village board. ( 1) GENERAL GRANT. Except as otherwise provided by
law, the village board shall have the management and control of the village property,
finances, highways, streets, navigable waters, and the public service, and shall have
power to act for the government and good order of the village, for its commercial
benefit and for the health, safety, welfare and convenience of the public, and may
carry its powers into effect by license, regulation, suppression, borrowing, taxation,
special assessment, appropriation, fine, imprisonment, and other necessary or
convenient means. The powers hereby conferred shall be in addition to all other
grants and shall be limited only by express language.

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In Wind Point v. Halverson, 38 Wis.2d 1, 8, 155N.W.2d654 (1968), the Wisconsin Supreme Court
noted that "[t]he dividing line between a zoning regulation and a building code regulation is not
easily drawn." In that case, the court upheld a village building code regulation requiring minimum
setback lines. In doing so, the court indicated that "a setback ordinance may also be adopted by a
city or village other than by adopting a zoning ordinance, as a building restriction or part of a
building code, pursuantto the general grant of power in sec. 61.34 (1), Stats. This court has liberally
construed the power of a city or village to enact building regulations pursuant to the general grant
of police power .... " Halverson, 38 Wis.2d at 9.
I perceive no meaningful distinction under the language of the statute between a setback ordinance
and an ordinance regulating driveway installation. Both appear to be permissible if enacted "for the
government and good order of the [town or] village ... [or] for the health, safety, welfare and
convenience of the public .... " Sec. 61.34 (1), Stats.
Comment: So, we have authority in the Village statutory home rule provision, brought to the
Town by adoption of Village powers, and no pre-emption of the topic by the State uniform
building code.
This is a very important part of the Opinion. We are being told that Sec. 61.34(1), is not
limited to allowing regulation in relation to municipal highways, property, f'mances, waters
and public services. The powers it grants are as broad as health, safety, welfare, convenience,
commercial benefit, etc. The powers it grants are as wide as regulation, licensing, taxation,
assessment, etc., limited only by express written limits (which will be found where?)
In addition, section 236.45 (1), which authorizes towns that have established planning agencies to
enact subdivision ordinances, provides as follows:
DECLARATION OF LEGISLATNE INTENT. The purpose of this section is to
promote the public health, safety and general welfare of the community and the
regulations authorized to be made are designed to lessen congestion in the streets and
highways; to further the orderly layout and use of land; to secure safety from fire,
panic and other dangers; to provide adequate light and air including access to
sunlight for solar collectors and to wind for wind energy systems; to prevent the
overcrowding of land; to avoid undue concentration of population; to facilitate
adequate provision for transportation, water, sewerage, schools, parks, playgrounds
and other public requirements; to facilitate the further resubdivision oflarger tracts
into smaller parcels of land. The regulations provided for by this section shall be
made with reasonable consideration, among other things, of the character of the
municipality, town or county with a view of conserving the value of the buildings
placed upon land, providing the best possible environment for human habitation, and
for encouraging the most appropriate use ofland throughout the municipality, town
or county.
In Town of Sun Prairie v. Storms, 110 Wis.2d 58,327 N.W.2d 642 (1983), the court upheld a town
subdivision ordinance establishing an 80,000 square foot minimum lot size against a challenge that
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the ordinance impermissibly regulated the zoning process. In reaching this result, the court
emphasized that the statutory delegation of power in section 236.45 is to be liberally construed in
favor of the local unit of government exercising those powers and that site considerations are an
integral part of a municipality's effort to achieve its planning goals. Under Storms, it is therefore
conceivable that certain requirements with respect to driveway installation may also be imposed in
connection with a town's subdivision requirements.
I decline, however, to make any specific judgment as to whether the town's driveway performance
standards, as incorporated by reference in the town's building code, are permissible enactments
under section 61.34 ( 1), or as to whether some of those specific provisions could permissibly be
inserted in the town's land division ordinance pursuant to section 236.45. To a certain extent, such
a judgment would require a factual analysis as to how the town's ordinance operates in actual
practice. An attorney general's opinion is not an appropriate vehicle for resolving such disputes. See
68 Op. Att'y Gen. 416, 421 (1979).
Comment: You weren't asked for an "as applied" analysis.
analysis: Is the Ordinance ultra vires on its face?

You were asked for a facial

More importantly, it is not our function to be the final arbiter ofjurisdictional disputes between local
units of government concerning specific ordinance provisions. Were we to start resolving such
disputes, we would undoubtedly be inundated by similar requests from other counties in their
disputes with towns and other local units of government.
Comment: now we get it, work avoidance.
If a case or controversy exists, the courts are available for the resolution of such disputes. Compare

City of Madison v. Town of Fitchburg, 112 Wis.2d 224, 228-32, 332 N.W.2d 782 (1983). For
practical reasons, my analysis is necessarily limited to the question of whether towns may lawfully
exercise certain kinds of powers without infringing upon the statutory authority granted to counties.
Under the circumstances, I therefore merely conclude that a town exercising village powers does
not lack statutory authority to enact ordinances concerning driveway installation.
Turning to your second area of inquiry, I am also of the opinion that the town lacks statutory
authority to enact an ordinance containing a quota system.
"What the ordinance is called is not as important as its nature." New Berlin v. Stein, 58 Wis.2d417,
422, 206 N. W.2d 207 (1973). The fact that the quota system is contained in the town's building code
ordinance is therefore not controlling.
A zoning ordinance "covers the immediate use ofland .... "Storms, 110 Wis.2d at 68, quoting B.C.
Yokley, Law of Subdivisions, sec. 39 at 157-58 (2d ed 1981). Such quota or "slow growth"
provisions are generally characterized as "exclusionary ... zoning ordinances .... " Construction
Ind. Ass'n, Sonoma Co. v. City of Petaluma, 522 F.2d 897, 908 (9th Cir. 1975), cert. denied, 409
U.S. 1003 (1976). See also, Village of Belle Terre v. Boraas, 416 U.S. 1, 13-14 (1974).

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Section 60.62 provides as follows:
Zoning authority if exercising village powers. (1) Subject to subs. (2) and (3), if a
town board has been granted authority to exercise village powers under s. 60.10
(2)(c), the board may adopt zoning ordinances under s. 61.3 5.
Comment: this statute has been modified subsequent to this Opinion in ways not relevant to
this discussion.

(2) If the county in which the town is located has adopted a zoning ordinance under
s. 59.97, the exercise of the authority under sub. (1) is subject to approval by the
town meeting or by a referendum vote of the electors of the town held at the time of
any regular or special election.
Comment: again, s. 59.97 is now s. 59.69.

(3) In counties having a county zoning ordinance, no zoning ordinance or
amendment of a zoning ordinance may be adopted under this section unless approved
by the county board.
In the fact situation you present, the county board has not approved the ordinance, and it therefore
may not be enforced pursuant to the town's zoning powers. Under Storms and Stein, however,
further analysis is required in order to ascertain whether alternate sources of statutory authority exist
for the exercise of such powers. Since the town has placed these quota provisions in its building
code, I first examine the limitations upon a town's ability to enact an ordinance containing a building
code.
Section ILHR 20.02 of the Wisconsin Administrative Code provides, in part, as follows:
(1) MUNICIPAL ORDINANCES. (a) No municipality shall adopt an ordinance on
any subject falling within the scope of this code including, but not limited to,
establishing restrictions on the occupancy of dwellings for any reason other than
noncompliance with the provisions of this code as set forth ins. ILHR 20.10 (3).
This code does not apply to occupancy requirements occurring after the first ·
occupancy for residential purposes following the final inspection referred to ins.
ILHR 20.10 (l)(b)3.
Comment: ILHR 20 is now COMM 20, and the language has been modified, but not
materially.
The State Code section now has a sub-paragraph (b) saying:
Corum 20.02(2)(b) This code shall not be construed to affect local requirements relating to
land use, zoning, fire districts, side, front and rear setback requirements or other similar
:requirements.... "
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Viewed as a building code enacted pursuant to section 101.65 (l)(a), a quota system runs afoul of
this prohibition because the opportunity to build and to occupy the premises is denied for reasons
totally unrelated to the criteria contained in the Uniform Dwelling Code. Since Wis. Admin. Code
§ ILHR 20.02 (l)(a) indicates that compliance with the uniform dwelling code is the exclusive
standard to be applied under a municipality's building code, the quota system is not a valid exercise
of the town's powers under (Statute) section 101.65 (l)(a).
It can also be argued that, even if a quota system may not properly be enacted as part of a building

code or a zoning ordinance, it can nevertheless be enacted as an exercise of the town's broad police
powers under section 61.34 (1 ), or as an exercise of the town's subdivision power under section
236.45.
Comment: this paragraph says, a Town ordinance that answers the question, can you build
and occupy a house? in those express terms, is part of a building code and cannot be done
outside the State Dwelling Code.
Although it grants broad authority to towns with village powers, section 61.34 (1) cannot be
constmed so as to authorize such towns to engage in zoning without county board approval because
section 60.22 (3) precludes the exercise of "those powers which conflict with statutes relating to
towns and town boards." Unless county board approval is obtained pursuant to section 60.62 (3),
section 61.34 (1) therefore cannot be construed to permit a town with village powers to engage in
the process of zoning.
Comment: now we ask, is a Town Ordinance that says how many houses can be built in a
given time period a form of zoning?
In Beck v. Town ofRaymond, 118 N.H. 793, 394 A.2d 847 (1978), a town did attempt to utilize
its police powers to enact a slow growth ordinance containing a quota system that permitted the
issuance of at least one building permit per year to the owner of record at the commencement of
each succeeding one year period. The New Hampshire Supreme Court applied the following test
from Village House, Inc. v. Town of Loudon, 114 N.H. 76, 314 A.2d 635, 636-37 (1974), to
determine whether the ordinance constituted a zoning ordinance: "[T]he court must consider the
nature and purpose of the regulations, their relationship if any to a general plan of development,
their comprehensiveness, their effect on property values and property rights, and the situation
surrounding their passage." In determining that the ordinance constituted a zoning ordinance under
these criteria, the court held as follows:
The ordinance establishes a definite and detailed scheme of control that substantially
restricts the use of land throughout the town. The general ordinance is not an
emergency measure.

When legislation attempts to control population growth through definite and detailed
control ofland development it must be enacted in accordance with the zoning statute.
[Citations omitted]

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We hold that the Raymond general ordinance is so "comprehensive" as to require
compliance with RSA 31:60-89, and is an invalid exercise of the police power
delegated to a municipality pursuant to RSA 31:39

We hold that the general police power delegated to a municipality pursuant to RSA
31:39 may not be used as a usual and expedient mechanism for effecting zoning
regulations which would otherwise fall within the scope of RSA 31: 60-~9. When
such ordinances become a substitute for a zoning plan, the purpose and effect of the
zoning enabling legislation is defeated. Beck, 394 A.2d at 851.
The holding in Beck is equally applicable here. A slow growth ordinance therefore cannot be
enacted pursuant to the authority granted a town with village powers under section 61.34 (1).
Comments:
1.

The answer, in this Opinion, is no. Why? Because the Ordinance is "comprehensive."
Huh? The New Hampshire Town's ordinance said one house per mother parcel per
year. The Town of :W~'s Ordinance (the one under consideration in the
Attorney General's fipmi))'d.j' said so many permits total per year. What does
"comprehensiveness" mean in this context. We will f"md out, I think, in thermal
paragraph.

2.

Note in the last phrase of the last paragraph of the quote the idea that the purposes of
the zoning statutes will be evaded if people do "zoning" under other statutes.

This recurs in later Wisconsin cases.
Given the Wisconsin Supreme Court's holding in Storms, the question is somewhat closer with
respect to the town's exercise of its subdivision powers under section 236.45. Nevertheless, a town
may not use its subdivision powers as a subterfuge for enacting what would otherwise be an invalid
zoning ordinance. In Rayco Inv. Corp. v. Board of Selectmen of Raynham, 368 Mass. 385, 331
N.E.2d 910 (Mass. 1975), the Town of Raynham enacted a subdivision ordinance prohibiting the
issuance of any additional permits to trailer parks. While acknowledging thattrailer parks are subject
to regulation under a town's police powers, the Massachusetts Supreme Court nevertheless
concluded that the ordinance was, in fact, a zoning ordinance rather than a subdivision ordinance:
A further consideration which leads us to this conclusion is that were we to adopt
the defendants' theory the assorted protections contained in the Zoning Enabling Act
could in many instances be circumvented, thereby defeating the purpose of the
statute. For example, just as the town purports to limit the number of mobile home
parks within its borders under its police power, so another town might want to limit
the number of apartment buildings in the town, perhaps as a health regulation to
protect the town's water supply or sanitation facilities. Under the theory advanced
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by the defendants, the latter measure could be viewed as outside the scope of the
Zoning Enabling Act if not adopted strictly as a zoning regulation. The problem with
this approach is that it views the municipal police power in a vacuum, whereas the
law is clear that a municipality's "independent police powers ... cannot be exercised
in a manner which frustrates the purpose or implementation of a general or special
law enacted by the Legislature . . . .
Rayco, 331 N.E.2d at 915.
Cases such as Beck and Rayco indicate that the question of whether a particular enactment
constitutes a zoning ordinance is often a matter of degree. The more comprehensive the ordinance,
the more likely it will be characterized by a court as a zoning ordinance. A quota system which
virtually precludes all forms of building is far broader in scope than either of the ordinances enacted
in Rayco and Beck. Since such an ordinance constitutes a pervasive regulation of, and in many
instances a prohibition on the use of, land, I therefore conclude that such an ordinance is a zoning
ordinance which requires county board approval.
Comments:
1.

Here, I think we see the issue: the regulation addresses whether a development can
occur, not how?

2.

Earlier on, we read that the Village home rule statute granted authority that is limited
only by "express language" elsewhere. We asked, where is elsewhere? There is no
express language in the zoning statutes or the subdivision statutes saying those statutes
are the exclusive domain by which to regulate use. The express language that the
Opinion relies on is from court decisions from other states, part of what I call the
parallel "common law" of land use.

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B.

BOUCHERLJNCOLN-MERCURYv. MADISON PLAN COMM., 178Wis.2d
74 (Ct.App. 1993) 503 N.W.2d 265, Petition to review denied.

SUNDBY, J.

Comment: Sundby, J. was Robert Sundby, a municipal attorney before taking the bench.
The City of Madison Plan Commission appeals from an order requiring it to conditionally approve
a certified survey map (CSM) of a land division in the city's extraterritorial plat approval
jurisdiction[fn 1] submitted for its review by respondent Gordie Boucher Lincoln-Mercury Madison,
Inc.[fn2] The plan commission contends that it acted within its jurisdiction when it rejected
Boucher's CSM because Boucher's proposed use- an automobile dealership- of a lot created by the
land division is inconsistent with the Permanent Open Space District created for that area in the City
of Madison's Peripheral Area Development Plan. We conclude that the plan commission exceeded
its jurisdiction under sec. 236.13(1) and (3), Stats., when it conditioned its approval of Boucher's
CSM upon compliance with land use controls not enacted as required by the extraterritorial zoning
enabling act, sec. 62.23 (7 a), Stats. The circuit court therefore correctly ordered the plan commission
to conditionally approve Boucher's CSM. We affirm.

Comment: The facts are presented somewhat inconsistently. The Plan Commission denied,
it did not conditionally approve.
Boucher presents an alternative basis to affirm the order of the circuit court. It contends that the plan
commission may not include areas beyond the city boundaries in the city's master plan without the
consent of the Dane County Board of Supervisors because Dane County is a county "where a
regional planning department has been established." Section 62.23(2), Stats. In view of our
affirmance of the circuit court's order, we do not address this contention.
BACKGROUND
On February 19, 1991, the City of Madison Common Council adopted a resolution authorizing an
intergovernmental agreement with the City of Sun Prairie to provide visual open space separation
between the cities' urban areas. Madison, Wis., Resolution No. 47,551 (Feb. 19, 1991). The
resolution incorporated its provisions as an addendum to Sun Prairie's comprehensive plan and as
an element of Madison's master plan.
The City of Madison has adopted a Peripheral Area Development Plan which creates a Permanent
Open Space District to maintain this visual open space separation. City of Madison Department of
Planning and Development, Planning Unit, Peripheral Area Development Plan (Oct. 8, 1990). The
plan was adopted by the City of Madison Common Council as an element of the city's master plan.
Madison, Wis., Resolution No. 47,367 (Dec. 4, 1990). The plan is not limited to this district, but
defines the boundaries of thirty-eight Peripheral Planning Areas located in the city and its
extraterritorial planningjurisdiction.[fn3] Peripheral Area Development Plan at 7. Most of the land
included in the Peripheral Planning Areas is located outside the city. Id. at 5.
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The City of Madison has not amended its zoning ordinance or zoning map to create Permanent Open
Space Districts within the city's boundaries. The city does not presently have in effect an
extraterritorial zoning ordinance applicable in its extraterritorial planningjurisdiction.[fn4]
The city proposes to enforce the Permanent Open Space Districts within its extraterritorial plat
approval jurisdiction by refusing to approve subdivision plats or CSMs of land which the owner
intends to use or develop for purposes inconsistent with the Peripheral Area Development Plan. I d.
at 8, fig. 1. Pursuant to that policy, on April 15, 1991, the plan commission rejected a CSM
submitted by Boucher which proposed to divide a parcel of approximately 41.25 acres into four lots
located in the Madison-Sun Prairie visual open space separation district. Boucher has a contract to
purchase lot two from Browning-Ferris Industries ofWisconsin, Inc. (BFI). On it, Boucher proposes
to operate an automobile dealership. The area which now comprises lot two was zoned C-2
Commercial January 19, 1961, by the Dane County Board of Supervisors.[fu5] An automobile
dealership is a permitted use in a C-2 district. Dane County, Wis., Ordinances§ 10.14(1)(c). The
lot contains approximately 12.2 acres adjacent to U.S. Highway 151 between the City of Madison
and the City of Sun Prairie. A portion of the property is adjacent to the City of Madison. A landfill
owned and operated by BFI occupies the southeast portion of the property.[fu6]
The Town of Burke Board conditionally approved the Boucher CSM April 3, 1991. The Dane
County Zoning and Natural Resources Committee approved the CSM April 10, 1991, subject to
twenty-four conditions. On Aprill8, 1991, the Wisconsin Department of Transportation stated it
had no objection to the proposed division.
TheAprill5, 1991 plan commission meeting minutes show that the commission rejected Boucher's
CSM for five reasons contained in the Planning Unit Staff Report dated April 11, 1991. On appeal,
the commission relies only on the following reason: "The proposed survey is not consistent with the
City's Master Plan, including the Peripheral Area Development Plan, the Land Use Plan, and the
Parks and Open Space Plan. "[fn7]
Boucher appealed from the plan commission's rejection of its CSM by statutory certiorari pursuant
to sec. 236.13(5), Stats., and Madison, Wis., Gen. Ordinances§ 16.23(3)(g). On June 26, 1991, the
circuit court ordered the commission to conditionally approve the CSM. The circuit court concluded
that the city could not accomplish extraterritorial zoning by refusing to approve a CSM of land
which the owner proposed to use for a purpose inconsistent with the city's Peripheral Area
Development Plan. The trial court denied the plan commission's motion for an evidentiary hearing
and reconsideration of its decision.
STANDARD OF REVIEW
Section 236.13( 5), Stats., provides in part: "The court shall direct that the plat be approved if it finds
that the action of the approving authority or objecting agency is arbitrary, unreasonable or
discriminatory." An approving authority or objecting agency may only act within its authority.
Statutory certiorari inquires into the jurisdiction of the board or body making the determination
reviewed. State ex rel. Casper v. Board of Trustees of the Wis. Retirement Fund, 30 Wis.2d 170,
175-76, 140 N.W.2d 301,304 (1966).
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On appeal from a circuit court order or judgment entered on certiorari, we do not review the
judgment or findings of the circuit court, but review the record of the board or agency to which
certiorari is directed. Klinger v. Oneida County, 149 Wis.2d 838, 845 n.6, 440 N. W.2d 348, 351 n.6
( 1989). Whether the plan commission exceeded its authority is a question qflaw. Ledger v. City of
Waupaca Bd. of Appeals, 146 Wis.2d 256,262,430 N.W.2d 370,372 (Ct.App. 1988).
LAND DIVISION REGULATIONS
Chapter 236, Stats., regulates the division ofland within the state for sale or building development.
Section 236.03(1), Stats., requires that any subdivision, as defined in sec. 236.02(12), Stats.,[fn8]
shall be surveyed and a plat thereof approved and recorded as required by chapter 236. A city,
village, town or county which has established a planning agency may by ordinance require that
"other divisions" be surveyed and a plat or map thereof approved and recorded as required by
chapter 236 and the local ordinance. Section 236.45(2), Stats.
The legislature has delegated the authority to review plats of subdivisions and other divisions ofland
to cities, villages, towns and counties. Section 236.1 0(1 ), Stats. Section 236.1 0(1 )(b), Stats.,
prescribes who may review plats of subdivisions located in the extraterritorial plat approval
jurisdiction of a city or village.[fn9] Section 236.13, Stats., prescribes the basis for approval of a
plat:
( 1)

Approval of the preliminary or final plat shall be conditioned upon compliance with:
(a)

The provisions of this chapter;

(b)

Any municipal, town or county ordinance;

(c)

Any local master plan which is consistent with any plan adopted under s.
236.46 ...

(3)

No approving authority or agency having the power to approve or object to
plats shall condition approval upon compliance with, or base an objection
upon, any requirement other than those specified in this section.

Section 236.45, Stats., delegates authority to cities, villages, towns, and counties to enact ordinances
governing the subdivision or other division of land which are more restrictive than chapter
236.[fn10] A city or village may make such an ordinance applicable in its extraterritorial plat
approval jurisdiction. Section 236.45(3), Stats.
The City of Madison Common Council has enacted a subdivision ordinance under sec. 236.45, Stats.
Madison, Wis., Gen. Ordinances§ 16.23. It has made its subdivision ordinance applicable in the
city's extraterritorial plat approval jurisdiction. Id. at § 16.23( 1). Land divisions in the city's
extraterritorial plan approval jurisdiction are subject to ch. 236, Stats., by virtue of the ordinance.
Madison, Wis., Gen. Ordinances§ 16.23(3)(b) .
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PLANNING AND ZONING REGULATIONS
Regulation of the use to which land may be devoted in the City of Madison's extraterritorial
planning jurisdiction involves the planning and zoning authority of the city, the towns within the
city's extraterritorial planning jurisdiction, and the Dane County Board of Supervisors, all acting
pursuant to enabling legislation. The Dane County Regional Planning Commission also performs
planning in such areas. Section 66.945(9) and (10), Stats.
Section 59.97, Stats., is the comity planning and zoning enabling statute. Under subsection (3), the
county zoning agency is to prepare a county developmental plan or parts thereof for the physical
development of the unincorporated territory within the county. Under paragraph (3)(e), the county
zoning agency's development plan is subject to a master plan adopted by a city under sec. 62.23(2)
and (3), Stats.

Comment: under the law as it was in 1993, the City's master plan controlled the County
version of a master plan. This case will rule that the County's zoning trumped the City
Master Plan, even if that zoning was not consistent with the City Master Plan or the County's
Plan (which did not exist.)
Under sec. 59.97(5), Stats., the county board of supervisors may adopt a zoning ordinance which
will be effective in those unincorporated towns which approve the ordinance. The Dane County
Board of Supervisors has adopted a county zoning ordinance which is effective in the Town of
Burke.
Section 62.23, Stats., is the city planning and zoning enabling statute. Under subsection (2), it is the
function and duty of the plan commission to make and adopt a master plan for the physical
development of the city, including any areas outside of its boundaries which in the commission's
judgment bear relation to the development of the city. The master plan shall include a
comprehensive zoning plan. The purpose and effect of the adoption and certifying of the master plan
or part thereof shall be solely to aid the city plan commission and the council in the performance
of their duties. Section 62.23(3), Stats. The common council may by ordinance divide the city into
districts, and within such districts "it may regulate and restrict the erection, construction,
reconstruction, alteration or use of buildings, structures or land." Section 62.23(7)(b), Stats.
In the city's extraterritorial plat approval jurisdiction, the common council may enact an
extraterritorial zoning ordinance, subject to the substantive and procedural requirements of sec.
62.23(7), Stats. Section 62.23(7a), Stats.[fnll] The common council may enact an extraterritorial
zoning ordinance only if the ordinance is approved by a majority of the extraterritorial zoning
committee, composed of representatives of the city plan commission and the affected towns. Section
62.23(7a)(c), Stats.
CONTROL OF LAND USE THROUGH LAND DIVISION REVIEW
The circuit court concluded that the plan commission "improperly attempted to re-zone the
[Boucher] parcel ... because it has used its plat approval authority to regulate for what, as opposed
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to how, the parcel may be used." It concluded that the city's master plan could not override the
county's zoning ordinance; nor could the city zone areas within its extraterritorial jurisdiction
without following the procedure prescribed in sec. 62.23(7a), Stats. On reconsideration, the circuit
court concluded that its decision was "very much in keeping with the 'basic principle of statutory
construction which require[s] the Court to harmonize the statutes to achieve results intended by the
Legislature."'

Comment: This is the clearest statement of law we have seen yet: regulating "what" (can
is zoning; regulating "how" the parcel may be used is master planning/subdivision
regulation. You cannot do the "what" part without following the procedures of the zoning
statutes. It doesn't say you cannot do the "what" part and call it something else. The issue is
procedure. This is the trial court ruling.
dev~lop)

Eight months earlier, the same panel of appellate judges upheld Madison's denial of a
preliminary plat in the extraterritorial area on grounds that the site was not suitable for
development. Judge Sundby dissented on grounds that the City had not explained why a
conditional approval could not resolve the issues, which had been done by the other reviewing
entities, but acknowledged that the City had the right to deny the development outright.
The planning, zoning and subdivision regulation statutes are in pari materia and must be construed
together.[fn12]
When determining the meaning and effect of statutory sections in pari materia, "[i]t
is assumed that whenever the legislature enacts a provision, it has in mind previous
statutes.relating to the same subject matter. In the absence of any express repeal or
amendment, the new provision is presumed in accord with the legislative policy
embodied in those prior statutes. Thus, they should all be construed together."
State FarmMut. Auto. Ins. Co. v. Kelly, 132 Wis.2d 187, 190, 389N.W.2d 838, 839 (Ct.App. 1986)
(quoting2AN. SINGER,SUTHERLANDONSTATUTESANDSTATUTORYCONSTRUCTION
§ 51.02, at 453 (Sands rev. 4th ed. 1984) (footnotes omitted)).
We first examine the trial court's conclusion that the city's master plan may not override Dane
County's zoning ordinance. The city's application of its extraterritorial land division review authority
to control land use in the areas where the county also exercises zoning authority creates an apparent
conflict. "Statutes for the same subject, although in apparent conflict, are I construed to be in
harmony if reasonably possible." 2B N. SINGER, SUTHERLAND ON STATUTES AND
STATUTORY CONSTRUCTION§ 51.02, at 122 (5th ed. 1992) (hereinafter SUTHERLAND). See
also State v. Wagner, 136 Wis.2d 1, 5, 400 N.W.2d 519, 521 (Ct.App. 1986).
The plan commission sees no need to harmonize the city's master plan statute with the county zoning
statute. It asserts that its master plan supersedes the Dane County zoning ordinance in the city's
extraterritorial plan approval jurisdiction. However, it does not cite any language in either statute
which so provides. The legislature has given the city's master plan preeminence over other planning
in the extraterritorial planning jurisdiction. See sec. 59.97(3)(e), Stats. (master plan adopted under
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sec. 62.23(2) and (3), Stats., controls over county development plan in unincorporated territory); sec.
236.46(1)(b), Stats. (county plan for platting of lands does not apply in extraterritorial areas without
city's or village's approval).
However, the legislature has not given the city's master plan, a planning tool, pre-eminence over
county zoning, a regulatory tool. The plan commission argues that Quinn v. Town of Dodgeville, 122
Wis.2d 570,364 N.W.2d 149 (1985), supports its claim. Quinn held only that the power to zone may
be shared by the county and the town without violating the constitution. Id. at 581, 364 N.W.2d at
156. The Quinn court was not required to harmonize conflicting statutes. The commission also relies
on Bell v. City of Elkhorn, 122 Wis.2d 558, 567,364 N.W.2d 144, 148 (1985), where the court said:
"The dear intent of the legislature in enacting sec. 62.23, Stats., was to have cities design a general
plan to control the use of property in the community." When this sentence is read in the context of
the entire opinion it is plain that the court referred to the design of a comprehensive zoning plan. The
issue in Bell was whether a zoning ordinance may constitute a comprehensive plan. Id. at 564, 364
N. W.2d at 14 7. There is no authority for the commission's contention that a county zoning ordinance
is subordinate to the city's master plan. We reject the commission's contention; it has no support in
the statutes or case law.
The commission asserts that there is no disharmony between its use of plat approval authority to
control land use in the city's extraterritorial plat approval jurisdiction and the extraterritorial zoning
statute, sec. 62.23(7a), Stats., because when it exercises land division review authority, it is not
engaged in zoning. The commission argues: "Zoning is only one tool, and it is not [superior] to the
municipality's authority to regulate land development through the exercise of its extraterritorial plat
approval, which jurisdiction applies the requirements of the City's Master Plan." The commission
relies on Town of Sun Prairie v. Storms, 110 Wis.2d 58,70-71,327 N.W.2d 642, 647 (1983), where
the court said: "As long as the regulation is authorized by and within the purposes of ch. 236, the fact
that it may also fall under the zoning power does not preclude a local government from enacting the
regulation pursuant to the conditions and procedures of ch. 236." The commission applies this
principle at such a level of generality that it eliminates any distinction between zoning and
subdivision control.
Subdivision regulations are to be distinguished from zoning ordinances. The Storms court quoted the
following from B.C. YOKLEY, LAW OF SUBDIVISIONS§ 39, at 157-58 (2d ed. 1981), with
approval:
Subdivision regulations should be distinguished from zoning ordinances. The
purpose of zoning is to provide an overall comprehensive plan for land use, while
subdivision regulations govern the planning of new streets, standards for plotting
new neighborhoods, and the protection of the community from financial loss due to
poor development. Thus, while zoning can prohibit certain uses of property for
subdivision purposes, [subdivision] regulations are designed to govern the manner
in which unrestricted property is developed.
Zoning covers the immediate use of land, while planning restricts transferability and
future use, and the power to regulate the subdivision of land is, like zoning, another
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tool for planning.
Storms, 110 Wis.2d at 68, 327 N. W.2d at 646.
The commission contends that it was not engaged in zoning when it rejected Boucher's CSM:
"[r]ather the Plan Commission appropriately used a legislatively granted planning tool to further the
orderly development of land within its extraterritorial jurisdiction." Boucher argues that "[b]y
attempting to restrict land uses within its recommended 'open space districts' [through its land
division approval authority], the City is improperly exercising 'extraterritorial zoning' without first
following the inter-governmental requirements and procedures set forth in [sec.] 62.23(7a), Stats."
Thus, the parties agree that the result in this case hinges on whether the plan commission engaged
in zoning when it used its plat approval authority to control land use in the city's extraterritorial plat
approval jurisdiction.
"The very essence of zoning is the territorial division of land into use districts according to the
character of the land and buildings, the suitability of land and buildings for particular uses, and
uniformity of use." 83 AM. JUR. 2D Zoning and Planning § 2, at 36 (citing Schultz v. Pritts, 291
Md. 1, 432 A.2d 1319 (1981)). If the very essence of zoning is the territorial division of land into
use districts, the Peripheral Area Development Plan is zoning. The Plan covers thirty-eight Peripheral
Area Planning Areas, or districts, to which the plan commission has assigned one of six district
classifications: Urban Expansion -A, Urban Expansion- B, Transition Reserve, Unincorporated
Urban Use, Agricultural/Rural Use, and Permanent Open Space.[fnl3] The Peripheral Area
Development Plan outlines the characteristics of each Peripheral Planning Area and the city's
objectives as to the use of the land in each area. The characteristics and objectives are summarized
in the Peripheral Area Development Plan. See Peripheral Area Development Plan, at 8, fig. 1. The
plan commission's avowed intention to use its plat and CSM approval authority to enforce the use
restrictions of the Peripheral Area Development Plan transforms the plan from a planning tool to a
regulatory tool.

Comment: Here the emphasis is on Districting.
We believe that the attorney general has stated the proper test to determine when a local regulation
may be imposed under the locality's general police power or other delegated authority and when the
regulation is zoning which can only be exercised in conformance with the zoning enabling statutes.
In 76 Op. Att'y Gen. 60 (1987), the attorney general concluded that a town's Land Use Guidance
System ordinance, which imposed a quota on residential building permits, was a zoning ordinance.
The attorney general opined that: "The more comprehensive the ordinance, the more likely it will be
characterized by a court as a zoning ordinance." Id. at 68. "[A]n ordinance [which] constitutes a
pervasive regulation of, and in many instances a prohibition on the use of, land . . . is a zoning
ordinance" .... I d. The essence of the attorney general's opinion is that some land use controls are
so pervasive that their imposition must be surrounded with the substantive and procedural safeguards
which zoning requires.

Comment: how do you analogize Madison's districted master plan with the totally undistricted
quota system discussed by the Attorney General?
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Again the question, can you only regulate the "what" by zoning or only by a regulatory system
that provides the procedural and substantive safeguards of (or comparable to?) zoning? The
answer is two paragraphs down.
Wisconsin was one of the first states to declare zoning restrictions constitutional. State ex rei. Carter
v. Harper, 182 Wis. 148, 196 N.W. 451 (1923). The court did so on the theory that: "[T]here is a
reciprocity ofbenefits resulting from limitations imposed upon the use of property by general laws.
He who is limited in the use of his property finds compensation therefor in the benefits accruing to
him from the like limitations imposed upon his neighbor'' Id. at 154, 196 N.W.2d at453. To insure
that this "reciprocity of benefits" will inure to the property owner, the legislature has mandated that
"[zoning] regulation [in a city] shall be made in accordance with the comprehensive plan." Section
62.23(7)(C), Stats. It is not a legislative accident that the city master plan must contain "a
comprehensive zoning plan." Section 62.23(2), Stats.
The procedures by which cities and counties impose zoning controls on the use of land satisfy
constitutional requirements. First, in each case the zoning ordinance must be comprehensive. Second,
property owners must be given notice and the opportunity to be heard. After adoption, the zoning
regulations are protected against change by hearing procedures, and by protest procedures which
trigger an extraordinary vote of the governing body to approve a zoning change.

Comment: So, it isn't the statutes. It's the constitution. Comprehensiveness, notice and
hearing to adopt and to amend and protest petition. These are constitutional mandates for
regulating the "what" parts of land use. One can question whether protest petitions are
constitutionally grounded, but we will let that pass.
In contrast to the substantive and procedural safeguards which surround zoning, the city's master plan
may be adopted without notice and hearing. Such requirements are not constitutionally required for
the formulation and adoption of a master plan because the plan is purely advisory. The enactment
of a subdivision ordinance under sec. 236.45, Stats., requires prior notice and a public hearing.
However, it is not that ordinance, but the city's master plan which divides the city's peripheral area
into use districts.
Nonetheless, the plan commission insists that in sec. 236.45, Stats., the legislature has delegated to
localities broad authority in addition to and independent of zoning authority to enact regulations
controlling the use of land. The commission makes no attempt to harmonize sec. 236.45 with the
planning and zoning enabling acts.[fn14] This is the fundamental fallacy of the commission's
argument. When sec. 236.45 is construed with the planning and zoning enabling acts, which we
believe the canons of statutory construction require, it is plain that sec. 236.45 permits approving
authorities to legislate more restrictively to ensure that subdivisions meet community quality
standards, but does not permit approving authorities to supersede zoning regulations and restrictions.
Section 236.45(1), Stats., emphasizes that the public health, safety and general welfare are to be .
promoted thereunder by regulations designed to further the quality of the subdivision and its
integration into the community, e.g., "the orderly layout and use ofland"; "adequate light and air";
"prevent[ing] the overcrowding of land"; "avoid[ing] undue concentration of population"; and
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"facilitat[ing] adequate provision for transportation, water, sewerage, schools, parks, playgrounds
and other public requirements." If the local regulation is intended to enhance the quality of the
individual subdivision or division of land, it may be imposed in a subdivision regulation as well as
a zoning ordinance. One of the principal objectives of the 1955 repeal and recreation of ch. 236,
Stats., was to give localities the authority to impose specific quality requirements upon subdivisions.
Report of the Wisconsin Legislative Council, Volume IV, Conclusions and Recommendations of the
Judiciary Committee on the Subdivision and Platting of Land, at 13-15 (January 1955) (Part A,
Objective I, Recommendation 1, Provisions relating to quality standards in the statutes).
Certainly the provision of open space or green-space is a quality requirement which an approving
authority may impose as a condition of approval of a subdivision or other division ofland.[fn15] A
residential development requires parks, playgrounds and green-space to provide residents with
amenities which contribute to the quality of residential living. A developer may be required to
provide such amenities or to contribute to their cost. Jordan v. Village of Menomonee Falls, 28
Wis.2d 608, 137 N.W.2d 442 (1965), appeal dismissed, 385 U.S. 4 (1966). An approving authority
may condition approval of a subdivision or other division of land upon preservation of natural
features, natural resources and environmentally sensitive lands. The creation and preservation of open
space, occasioned by the layout of a subdivision or other land division, is the legitimate object of an
approving authority's concern.
In this case, however, the approving authority has rejected a proposed land division for reasons
having nothing to do with the quality of the division. It is the use to which Boucher proposes to put
lot two which the commission claims justifies its rejection of its CSM. Land use control is the
function of zoning.
Moreover, the Wisconsin Supreme Court has recognized the value of shared zoning authority in
deliberative land use development. Quinn v. Town of Dodgeville, 122 Wis.2d at 586,364 N.W.2d
at 158. "The power to locally zone is shared between town and county governments and that fact
accentuates the importance and value in deliberative land use development." Id. In the city's
extraterritorial planningjurisdiction, the power to locally zone is shared between the town, the county
and the city governments. The plan commission seeks to avoid shared control through the unilateral
exercise of its land division approval authority.

Comment: the rulings of the Quinn case were in support of the Town veto of a County zoning
amendment that had been sought by Mr. Quinn, who was represented by attorney Robert
Sundby, before he became an appellate judge.
The plan commission contends that the legislative history of the revision of ch. 236, Stats., supports
its construction of the statutes. Our review of the legislative history of chapter 236, and the
extraterritorial zoning statute, sec. 62.23(7a), Stats., confirms that the legislature did not intend to
give municipalities the power to zone or accomplish zoning objectives through subdivision
regulations.
Chapter 236, Stats., was repealed and recreated by sec. 4, ch. 570, Laws of 1955. The bill which
became ch. 570 - Senate Bill 20 - was introduced by the Legislative Council. The bill represented
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the work of the Advisory Committee on Subdivision and Platting of the Council's Judiciary
Committee. The conclusions and recommendations of the Judiciary Committee were submitted to
the governor and the legislature in the Report of the Wisconsin Legislative Council, Volume IV
(January 1955). That report contains no evidence that either committee considered that the authority
to approve plats could be used to impose zoning-type restrictions on the use of land proposed to be
divided. Indeed, the philosophy shared by the committees was to encourage compliance with the
platting law by decreasing, where possible, the burdens placed on the person who plats his or her
land. Id. at 11.
Shortly after the re-creation of ch. 236, Stats., the Legislative Council, through its Urban Problems
Committee, studied the need to provide land use controls in unincorporated urban areas. Plainly the
legislature considered that chapter 236 did not provide communities with all the tools needed to deal
with fringe area growth. Marygold S. Melli, research associate for the Legislative Council's Judiciary
Committee, said that the revision was not enough to control growth in the unincorporated fringe
areas:
The principal shortcoming of extraterritorial controls in Wisconsin results from the
fact that there is no extraterritorial zoning authority. The power to zone, to control
the actual use to be made of the land, is probably the most important single land use
control. Without it, the power to control new subdivisions and to map new streets is
much less effective. In order to achieve maximum results, extraterritorial controls
should include the same land use controls available within the municipality.
Melli and Devoy, Extraterritorial Planning and Urban Growth, 1959 WIS. L. REV. 55, 66 (1959).
During meetings of the Legislative Council's Urban Problems Committee the question arose whether
communities having extraterritorial plat approval authority were using that authority to impose
zoning-type controls. The minutes record the following:
[Mr. Sachse, executive director] emphasized the importance of coordinating the
extraterritorial plat approval and zoning powers to avoid a situation where the intent
of LRL 131 could be circumvented by relying on the plat approval power to supply
zoning type controls.
There was some discussion of whether the plat approval power is used to impose
zoning type controls in areas outside the municipal boundaries. It was agreed that
while there is no statutory authority for such action [see§ 236.13(3)], in practice a
subdivider is likely to comply with suggestions made by the approving authority,
even though such suggestions may transcend the literal letter of the law.
Minutes of the Urban Problems Committee, Wisconsin Legislative Council, August 20, 1962
(emphasis added).
The plan commission seeks a path to extraterritorial land use control rejected by the legislature when
it enacted sec. 62.23(7a), Stats.- unilateral land use control. The Urban Problems Committee advised
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the legislative council that "an integral feature of. .. [sec. 62.23(7a), Stats.,] is thatthetowns affected
will have a substantial voice in the preparation of the [extraterritorial zoning] ordinance."
Conclusions and Recommendations of the Urban Problems Committee Regarding Extraterritorial
Zoning Authority for Cities and Villages, Wisconsin Legislative Council (January 1963).
Consistent with that view, sec. 62.23(7a), Stats., requires that extraterritorial zoning be a cooperative
effort of the city plan commission and the town in which the zoning ordinance will be in effect. This
approach was recommended by the Urban Problems Committee after it heard and rejected a proposal
giving populous counties authority to adopt comprehensive zoning ordinances which would apply
throughout the unin~orporated areas without the approval of the individual towns. Staff
Memorandum to the Urban Problems Committee, Cooperative Action in Urban Fringe Areas,
Wisconsin Legislative Council (June 12, 1962).
The minutes of the meetings and hearings of the Urban Problems Committee show that there was
virtually unanimous agreement of all knowledgeable persons that extraterritorial zoning was
necessary to provide urban areas with effective land use controls in the areas adjacent to cities and
villages.[fn16] The major point of disagreement was whether those controls should be imposed
unilaterally by a designated authority or should be arrived at by consensus and cooperation. Section
62.23(7a), Stats., makes clear that the latter view prevailed.
Comment: I do not think the court is saying that unilateral controls are unconstitutionaL This
is the Court veering offin a different direction from its focus on constitutional requirements
for valid regulation of the "what" question.

While ch. 236, Stats., and sec. 236.45, Stats., confer broad regulatory authority upon local governing
bodies, that authority relates to the quality of the subdivision or land division and not to the use to
which the lots in the subdivision or land division may be put. [fn 17] Control over the use to which
property may be devoted is a zoning control which can be imposed only by a comprehensive zoning
ordinance enacted as required by the zoning enabling act. The plan commission's attempt to control
the use to which Boucher will devote his property by refusing to approve his CSM was beyond its
delegated authority. We therefore affirm the circuit court's order directing the commission to
conditionally approve Boucher's CSM.

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By the Court. - Order affirmed.
[fn1] "'Extraterritorial plat approval jurisdiction' means the unincmporated area within 3 miles of
the corporate limits of a first, second or third class city, or 1 112 miles of a fourth class city or a
village." Section 236.02(5), Stats. For plat approval purposes, Madison is a second class city.
[fn2] An approving authority may approve a preliminary plat subject to conditions. Section
236.11(1)(a), Stats. Unless waived by the secretary of the plan commission, an acceptable
preliminary plat shall be filed by the subdivider prior to, or with, the CSM. Madison, Wis., Gen.
Ordinances§ 16.23(5)(e)l.
[fn3] We use "extraterritorial planning jurisdiction" to refer to the unincorporated area in which the
city may: extend its master plan, sec. 62.23(2), Stats.; exercise extraterritorial zoning authority, sec.
62.23(7a), Stats.; review plats of subdivisions, sec. 236.02(5), Stats.; and review certified survey
maps of other land divisions, sec. 236.45(3), Stats.
[fn4] The City of Madison Common Council enacted an interim extraterritorial zoning ordinance in
1979. Madison, Wis., Gen. Ordinances, No. 6,496 (Jan. 1, 1970). The common council repealed the ·
ordinance in 1984. Madison, Wis., Gen. Ordinances, No. 8,320 (May 11, 1984).
[fri5] Lot one is zoned C-2 Commercial. Lots three and four are zoned partly C-2, but principally A-1
Agricultural.
[fn6] The lots included in Boucher's CSM are now part of a Neighborhood Development Plan
adopted by the plan commission and common council. Comment: Note that the Plan was
adopted by the Common Council, not just the Plan Commission. Nelson Neighborhood
Development Plan, City of Madison Department of Planning and Development, Planning Unit
(March 1992). Neighborhood Development Plans implement the Peripheral Area Development Plan.
"The Neighborhood Development Plans should be seen as creative opportunities to design
neighborhoods which advance the City's policy objectives ... as well as satisfying the needs of
developers, businesses and residents." Peripheral Area Development Plan at 44. The Nelson
Neighborhood Development Plan was adopted after the plan commission's rejection of Boucher's
CSM and after entry of the trial court's order.
Comment: is there an implication here that court thought the later-adopted plan was more
development friendly??
[fn7] The plan commission states in its brief:
The primary reason for the denial of Boucher's proposed CSM was that the parcel is
within an area which, in accordance with the Peripheral Area Development Plan,
included in the City's Master Plan, is designated a permanent open space district, for
the purpose of "maintaining a visual open space separation between the Sun Prairie
and Madison urban areas." The commission also states: "Although several reasons
supported the denial of Boucher's proposed CSM, the clear basis was its failure to
-23-

"2.-

t~

1

meet the requirements of the Master Plan." (Emphasis added.) In its brief, Boucher
states that the commission has abandoned all other reasons for rejecting Boucher's
CSM. In its reply brief, the commission does not contradict Boucher's assertion. We
conclude that the commission has abandoned reliance on any other reason for
rejecting Boucher's CSM.
[fn8] Section 236.02(12), Stats., provides:
"Subdivision" is a division of a lot, parcel or tract ofland by the owner thereof or the
owner's agent for the purpose of sale or of building development, where: (a) The
act of division creates 5 or more parcels or building sites of 1 112 acres each or less
in area; or (b) Five or more parcels or building sites of 1 1/2 acres each or less in area
are created by successive divisions within a period of 5 years.
[fn9] Section 236.10(1), Stats., provides in part:
To entitle a final plat of a subdivision to be recorded, it shall have the approval of
the following in accordance with the provisions of s. 236.12:

(b) If within the extraterritorial plat approval jurisdiction of a municipality: 1. The
town board; and 2. The governing body of the municipality if . . . it adopts a
subdivision ordinance or an official map under s. 62.23; and 3. The county planning
agency if such agency employs on a full-time basis a professional engineer, a
planner or other person charged with the duty of administering zoning or other
planning legislation.
[fnlO] Section 236.45(2)(a), Stats., provides in part:
To accomplish the purposes listed in sub; (1), any municipality, town or county
which has established a planning agency may adopt ordinances governing the
subdivision or other division of land which are more restrictive than the provisions
of this chapter. Such ordinances may include provisions regulating divisions ofland
into parcels larger than 1 1/2 acres or divisions ofland into less than 5 parcels, and
may prohibit the division of land in areas where such prohibition will carry out the
purposes of this section. Such ordinances may make applicable to such divisions any
of the provisions of this chapter, or may provide other surveying, monumenting,
mapping and approving requirements for such division. The governing body of the
municipality, town or county may require that a map, plat or sketch of such division
be recorded with the register of deeds and kept in a book provided for that purpose

[full] The introduction to sec. 62.23(7a), Stats., provides:
The governing body of any city which has created a city plan commission under sub.
-24-

··~o

(1) and has adopted a zoning ordinance under sub. (7) may exercise extraterritorial
zoning power as set forth in this subsection. Insofar as applicable sub. (7)( a), (b), (c),
(ea), (h) and (i) shall apply to extraterritorial zoning ordinances enacted under this
subsection. This subsection shall also apply to the governing body of any village.
[fn12] In pari materia means: "Upon the same matter or subject." BLACK'S LAW DICTIONARY
791 (6th ed. 1990).
[fn13] The Peripheral Planning Areas or districts extend from Madison's urban fringe to urban Sun
Prairie, urban Cottage Grove, Lake Kegonsa, Lake Waubesa, urban Fitchburg, urban Verona, far
beyond urban Middleton, and almost to urban Waunakee.
[fn14] We recognize that sec. 236.45, Stats., was enacted in 1955, after the planning and zoning
enabling acts were created. The statutes are nonetheless in pari materia with those acts because there
is no irreconcilable conflict between them. See SUTHERLAND§ 51.03, at 140 ("To be in pari
materia, statutes need not have been enacted simultaneously or refer to one another."). Also, the
extraterritorial zoning statute, sec. 62.23 (7a), Stats., was enacted in 1963, after sec. 236.45, was
created.
[fn15] The void in open space regulation in the city's extraterritorial planning jurisdiction which the
plan commission claims justifies its Peripheral Area Development Plan is filled to some extent by
Dane County's Greenspace Plan. Greenspace Committee of the Dane County Board of Supervisors,
Greenspace Plan ( 1991 )(adopted October 17, 1991, by Dane County Board of Supervisors,
Resolution 91 (1991-92)). Dane County proposes to preserve natural resources and environmentally
sensitive lands which have severe limitations for development. However, subsection 2 of Resolution
91 provides: "The [Greenspace Plan] ... does not affect a Landowner's right to develop or otherwise
use his or her land as and to the extent permitted by existing law." I d. at 57. The Dane County Board
of Supervisors recognized the Madison-Sun Prairie proposal for permanent open space in the U.S.
Highway 151 corridor· and recommended that protection of the open space be achieved through
cluster zoning and some acquisition. I d. at 18. The county also recommended that a detailed plan for
open space preservation in the area be worked out cooperatively between the cities of Madison and
Sun Prairie, the Town of Burke, the DCRPC, and Dane County. Id.

Comment: although not part of the decision, the fact is that the Greenspace Plan was not
developed under the County Development Plan statute and was adopted at the end of a nearly
all-night County Board meeting and has never been heard of since.
[fn 16] Extraterritorial plat approval is an inadequate substitute for extraterritorial zoning because that
control can be exercised only when a lot or parcel is proposed to be divided.
[fn 17] We do not suggest that an approving authority may not condition approval of a subdivision
plat or CSM upon compliance with the applicable zoning ordinance.

C.

Cases interpreting Gordie Boucher

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J1

(I)

City of Waukesha v. Town of Waukesha, 198 Wis.2d 592, 605, 543 N.W.2d 515(Ct. App.
1995).
Relies on the last paragraph in the Gordie Boucher decision to say "control over use .. .is
zoning which can only be imposed by a comprehensive zoning ordinance ... "

(2)

Manthe v. Town of Windsor, 204 Wis.2d 546, 555 N.W.2d 167 (Ct.App.1996)
Requiring sewer service and connection as a condition of implementing a use is not
regulating use.

(3)

Lake City Corp. v. Mequon, 207 Wis.2d 155, 558 N.W.2d 100 (1997).
Limits Gordie Boucher to extraterritorial situations where the zoning procedures safeguard
the rights of the county and the town. Here the non-zoning control involved density, not use,
but the court does not make the distinction

(4)

Heitman v. Mauston, 226 Wis.2d 542, 595 N.W.2d 450(Ct.App. 1999)
A regulation that outlaws a use otherwise available in several zoning districts is pervasive,
addresses use, and, therefore, must be done by zoning in order to make available statutory
safeguards.

D.

League Opinion

League of Wisconsin Municipalities
Legal Opinion
Zoning#461
December, 2001
Published in the Municipality, February 2002
You recently wrote to request a legal opinion from the League regarding the propriety of your city
Plan Commission's denial of a proposed development because it does not comply with the lot size
requirements of the City's master plan. You also provided a proposed ordinance that seeks to address
the issues raised by the Plan Commission's action.
You explained that a CSM for a proposed development in the extraterritorial plat review area of the
city has been submitted. The CSM would create 5-acre lots for residential development.
The City has a master plan that addresses development in the city's extraterritorial plat review
jurisdiction (EPRJ). It includes a land use plan element that identifies and maps areas inside and
outside the city by land use categories. The categories include an Agriculture/Rural designation that
effectively establishes a 35-acre lot size requirement for single-family residential development in
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71/'

such areas. Although not dear, I will assume, based on your letter and the Plan Commission's reason
for its decision, that the proposed CSM is for single-family residential development and falls within
a designated EPRJ Agricultural/Rural area.
You report that the city Plan Commission, referencing section 236.13( 1), Stats., refused to approve
the proposed CSM due to noncompliance with the 35-acre requirement. You ask whether, in light
of Boucher v. City of Madison, 178 Wis. 2d 74 (1992), a city plan commission may condition
approval of a proposed land division within a city's EPRJ upon compliance with the lot size
requirements of the city's master plan when an applicable town zoning ordinance establishes a less
restrictive lot size for the subject area. In my opinion, Boucher does not prohibit such action by a
plan commission and compliance with the city's master plan lot size requirements is required by sec.
236.13, Stats.
In Boucher, the Madison Plan Commission (Commission) applied the land use provisions of the
city's master plan to a proposed 4-lot CSM for land in the city's EPRJ. It denied approval because
the proposed land use for two lots of the proposed CSM, an automobile dealership, was contrary to
the land use provisions of the master plan for the CSM area.
The developer appealed to circuit court. The circuit court ruled that the Commission had exceeded
its authority and directed it to approve the proposed CSM.
Affirming the circuit court, the court of appeals noted that the city's master plan divided land in its
extraterritorial area into use districts. The court observed that the essence of zoning is the territorial
division of land into use districts. Accordingly, the court determined that the master plan land use
restrictions were zoning regulations.
The court further observed that the master plan land use controls were enacted unilaterally by the city
without complying with the extraterritorial zoning procedures of section 62.23(7 a), Stats. Thus, the
court concluded the Commission exceeded its authority under sees. 236.13(1) and (3), Stats., when
it conditioned approval of Boucher's proposed CSM upon compliance with land use (zoning) controls
in the master plan.
You indicate that certain circumstances addressed in Boucher are not present in your city and make
Boucher distinguishable. I agree that those circumstances, no county zoning ordinance and adoption
of the master plan after notice and hearing, are significant. However, I think the principal rule of
Boucher is that a municipal reviewing authority may not condition the approval of a proposed land
division in the municipality's EPRJ upon compliance with a unilaterally adopted zoning regulation.
Accordingly, determining whether your plan commission may rely on the lot size requirements of
the city's master plan to deny a proposed CSM in the city's EPRJ area depends most on whether or
not those requirements are unilaterally adopted zoning regulations.

Comment: two paragraphs earlier, this opinion says the Gordie Boucher court said that the
master plan use designations were zoning. I would argue that the correct interpretation is that
the court said the designations had to be implemented through zoning. The same issue pertains
to the immediately preceding paragraph.
-27-

This Opinion treats the Gordie Boucher decision as resting on its final paragraph, rather than
on the decision's discussion of comprehensiveness, notice and hearing and protest petition.
Accordingly, it shrugs off the exculpatory effect of the fact that the master plan had a noticed
hearing.
In Boucher, although it argued that its actions did not constitute zoning, the city agreed that the
subject master plan restrictions were designed and would be used to control the uses to which land
in the EPRJ areas could be put. Consequently, in light of its observation that land use control is the
function of zoning, the court did not engage in any in-depth analysis of what types of restrictions fall
within the scope of 62.23(7a) and cannot be unilaterally enacted and enforced in a city's EPRJ.
It is readily ascertained upon reading that 62.23(7a) does not identify the matters covered by
extraterritorial zoning ordinances. Rather, it cross-references and makes applicable to extraterritorial
zoning several sections of the general zoning enabling statute, including the general grant of zoning
power set forth in section 62.23(7)(a), Stats.

Unlike 62.23(7a), 62.23(7)(a) does identify the matters which can be governed by city zoning
regulations. It authorizes a city council to regulate and restrict by ordinance: "the height, number of
stories and size of buildings, and other structures, the percentage oflot that may be occupied, the size
of yards, courts and other open spaces, the density of population, and the location and use of
buildings, structures and land for trade, industry, mining, residence or other purposes ... "Noticeably
absent from this list is any reference to lot size. Thus, the city zoning enabling statute does not
expressly recognize or categorize a lot size requirement as an object of a city's zoning authority.

Comment: this is an interesting observation. One could argue that lot size is a measure of
density, coupled with a rule of one house per lot or equivalent, or that lot size is a standard that
assures that the lot will have space for the required yards and other open spaces, along with
the percentage of the lot that will be allowed to be occupied. In other words, lot size is an end,
but not a means of addressing the enumerated issues.
In contrast, the Wisconsin platting statute does identify lot size control as an object of subdivision
regulation. Specifically, section 236.16(1), Stats., establishes minimum lot width and area
requirements for residential lots. Although minimum lot size may be imposed pursuant to a city's
zoning power, 1 in light of the lack of reference to lot size in 62.23(7)(a) and (7a), 236.16(1) is good
evidence of legislative intent to designate lot size provisions as primarily a subdivision tool.
The master plan restrictions at issue in Boucher directly controlled the uses to which land could be
put. The court of appeals, responding to the city's argument that the ordinance implementing these
restrictions was authorized by section 236.45, Stats., discussed the scope of authority provided to
The Wisconsin Supreme Court concluded in Lake City Development v. Mequon, 207 Wis. 2d
156, 558 N.W.2d 100, 107 (1997), that "[m]inimum lot size is an area of shared power that may
be regulated by a municipality through its authority under ch. 236, or through the enactment of
zoning ordinances by the applicable zoning authority.
-28-

municipalities under chapter 236 and 236.45. It held that the broad regulatory authority conferred
upon municipalities by those laws "relates to the quality of the subdivision or land division and not
to the use to which the lots in the subdivision or land division may be put." Thus, under Boucher, a
key factor for determining whether an ordinance or restriction is a zoning regulation is whether it
directly controls the uses that may be conducted on a parcel of land.
Lot size restrictions are likely to affect the use to be conducted on a parcel of land. Large lot
requirements will eliminate certain types ofland uses due to economics. Small lot size requirements
will prevent land uses that require large spaces. However, these are indirect consequences oflot size
restrictions. The direct result of a lot size regulation is the establishment of a dimensional
characteristic of the lots or parcels created by a land division. Consequently, although lot size
restrictions may affect the use of land, they principally relate to the quality of the land division.
For the foregoing reasons, unless specifically enacted as a zoning regulation, lot size restrictions are
not zoning restrictions that cannot be enforced in a city's EPRJ without complying with the 62.23(7 a)
extraterritorial zoning procedures. Accordingly, my answer to your first question is no. In my
opinion, the Boucher decision does not prohibit a city plan commission from conditioning the
approval of a proposed CSM in an EPRJ area upon compliance with the lot size requirements of a
city master plan. This conclusion however does not fully address whether the lot size requirements
in the city's master plan supersede the lot size requirements established by town ordinance.
In Boucher, the court briefly addressed the issue of conflicting regulations. The city argued that its
master plan land use restrictions superseded the county zoning ordinance. The court disagreed with
this argument and stated, "There is no authority for the commission's contention that a county zoning
ordinance is subordinate to the city's master plan." However, this conclusion should not be read too
broadly in light of section 236.13(4), Stats., which provides:
(4) Where more than one governing body or other agency has authority to approve or object
to a plat and the requirements of such bodies or agencies are conflicting, the plats hall comply
with the most restrictive requirements.
(Emphasis added.)
Thus, it is accurate to say that a county zoning ordinance is not subordinate to a city master plan.
However, if a non-land use control provision of a city master plan is more restrictive than a county
or town ordinance requirement then the former does supersede the latter under 236.13(4).
In your case, the town ordinance allows 5-acre lots for the area proposed for development. However,
the city's master plan requires 35-acre lots. Applying 236.13(4), the city's master plan lot size
requirements, being more restrictive than the town ordinance, would control and must be satisfied.
Finally, regarding the proposed ordinance you provided, I note that it seeks to codify certain lot size
requirements for the city's EPRJ. However, it also requires all CSMs within the city's EPRJ to
conform to the requirements of the city's master plan, which includes restrictions on the uses to
which land may be put. The proposed ordinance would therefore impose land use controls as well
-29-

"7)

as lot size requirements on land within the city's EPRJ.
As noted earlier, Boucher prohibits a municipality from imposing land use controls in its EPRJ
through a master plan since such action is the equivalent of extraterritorial zoning, which can only
be accomplished in accordance with the procedures of 62.23(7a). Thus, I think the land use
restrictions in your city's master plan are probably not enforceable in the EPRJ and should not be
included in the scope of the proposed ordinance.
The proposed ordinance also requires a party seeking approval of certain CSMs in EPRJ areas that
are designated Agriculture/Residential in the city's master plan to record a restrictive covenant that
prohibits residential use of the property without city approval. My concern is this requirement could
fairly easily be construed by a court as a land use control. Consequently, the court could determine
that the city's enactment of the provision was an act of zoning regulation. Applying the reasoning
of Boucher and its rule prohibiting unilateral extraterritorial zoning by a city, the court would
invalidate this part of the ordinance.
An alternative approach would limit the scope of the ordinance to lot size restrictions. Moreover, in
light of the Boucher court's discomfort with use district designations in an EPRJ, linking lot size
requirements to use districts should be avoided. Instead, the ordinance could establish lot size
requirements for areas in a less zoning-like map. For example, the ordinance, cross-referencing an
Extraterritorial Area Lot Size or similarly labeled map incorporated into the ordinance by reference,
might establish a 35-acre requirement for all lots or parcels within Area A; 5 acres for all lots in Area
B, etc.

Comment: That's interesting. Have districts in the plan but don't name them by type ofland
use.
II.

What does this boll down to?

We do not have a case or an opinion since Gordie Boucher in which a local government drew on the
statutory home rule powers, to which Towns have access to via Village powers and sec. 61.34(1),
to adopt a community-wide regulation (which may be a regulation linked to a plan) addressing a
variety of land uses (therefore, being comprehensive), using districts in some manner, but avoiding
addressing matters that the State has pre-empted (such as building construction standards), and
included all the procedural protections that zoning statutes contain for the benefit of property owners.
(I realize the Judge Sundby's opinion in Gordie Boucher treated town and county powers under
municipal extraterritorial zoning in the same manner as he treated property owner protections, but
there is no claim to property rights in the jurisdiction of a municipality over land use. See New
Rochelle v. Town of Mamaroneck, 111 F.Supp.2d 353 (S.D. N.Y.2000), where a municipality
asserted a property right to control land use in its jurisdiction against the extraterritorial incursions
by a neighboring municipality. The court described the alleged municipal property right as the right
to "bestow largess upon developers," before rejecting the claim that such a "right" had any
constitutional protection.]

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The municipality whose extraterritorial program was opined upon in the League Opinion noted that
its program had notice and hearing. But that is, I think, not enough.
The last paragraph of the Sundby opinion in Gordie Boucher goes farther than the rest of the opinion
demands. It creates a rule that zoning alone has, and can have, the procedural protections and the
substantive feature of comprehensiveness that are needed to regulate the land use aspects efland use
regulation. And it creates the sometimes false dichotomy of the "what" vs. the "how" aspects of
various regulations.
Therefore, while I appreciate the fact that there is a Gordie Boucher body of law out there, I think
the body of law has not shut the door to non-zoning regulatory programs.

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C? 7

23rd ANNUAL TOWN LAWYERS CONFERENCE- 2002
CURRENT ISSUES REGARDING FIRE DEPARTMENTS
AND FIRST RESPONDERS
Prepared by:
Robert C. Wertsch
Wertsch Law Office
417 N. Sawyer Street
Oshkosh, Wisconsin 54902
(920) 231-3401

1.

Towns have alternative methods available to provide required fire
protection and to fund it.
a.

b.

Towns have a statutory duty to provide fire protection. Wis. Stats.
§60.55(1). The duty to accomplish this rests with the town board.
The statute gives the board several alternative methods it may use,
either alone or in combination, to provide the service. They are:
1.

Establish a town fire department.

11.

Join with one or more other municipalities to create a joint
fire department. The other municipalities may be towns,
cities, or villages. Ifthe town joins with a village of5,500
or more population, a joint board of fire commissioners
must be formed.

m.

Contracting with any person.

tv.

Utilizing a fire company organized under Ch. 213. These
companies are Ch. 181 nonstock corporations. Typically,
these are nonprofit corporations.

Various portions of the town may be served by different sources of
fire protection. This writer represents one town that is served by
three different sources. One is a joint department with an adjoining
village and town. The others are Ch. 213 companies.

77

2.

c.

The type of organization that is utilized impacts how various
matters are handled, including the holding offunds, open meeting
and public records requirements, and even the sale ofbeer at fund
ratsers.

d.

WIS STAT §60.55(2) sets forth the various funding options
available to the town board. They are:
1.

Appropriate money for fire protection.

u.

Charge property owners a fee for the cost of fire protection
provided to their property according to a written schedule
established by the board. This fee approach can be used to
charge a particular class of properties for the cost of
providing specialized equipment not othervvise needed in the
town. Examples would be a ladder truck to service tall
buildings or the equipment needed to serve facilities where
toxic chemicals are stored or used.

m.

Levy taxes on the entire town to pay for fire protection.

IV.

Levy taxes on property served by a particular source of fire
protection, to support the source of the protection.

Town Fire Departments, Emergency Technician Departments, and
First Responder Departments are authorized to hold '"volunteer
funds."
a.

Until authorized by the budget bill (2001 Wisconsin Act 16), the
Town Treasurer was required by Wis. Stats. §60.34 to receive,
take charge of, and disperse all money belonging to the town.
1.

This requirement applied to aU funds of town departments
because the department is part of the town. It included all
money received by the department, including donated
monies or proceeds of department fund raisers.

2

LfU

11.

Chapter 213 fire companies, on the other hand, could hold
their own funds, whether donated money, fund raiser
proceeds, or contractual payments from one or more
municipalities.

111.

This distinction was often lost on town boards and
volunteer firemen. As we all know, volunteer firemen from
various departments tend to associate with one another and
have interactive functions such as water fights and parades.
Members of town departments expect to have the same
level of autonomy as experienced by Chapter 213
companies.

tv.

Town Treasurer and town board attempts to properly
control department monies can lead to problems:

v.

b.

(1)

political friction

(2)

loss of morale and even department membership

The result is that towns have frequently ignored the
requirements even when it was known to be improper.

The 2001 budget bill, (2001 Wisconsin Act 16) attempts to deal
with this by creating Wis. Stats. §66.0608 providing an exception
to the requirements ofWis. Stats. §60.34(1) allowing town owned
departments to hold what are called "volunteer funds."
1.

The statute applies to "volunteer funds" raised by
employees, volunteers, or donated to a municipality's fire
department, emergency technician department, or first
responder's department for the benefit of the department.

11.

It permits the governing body to enact an ordinance
(I)

authorizing a particular official or employee ofthe
town's fire, EMT or first responder department to
deposit volunteer funds of his or her department in a
3

.J;

public depository.

111.

3.

(2)

the ordinance can give the department, through the
designated official or employee, exclusive control
over the expenditure of the department's volunteer
funds.

(3)

The ordinance may include limitations and
requirements as authorized by the statute
(a)

It can limit the type and amount of funds that
can be placed into the account.

(b)

It can limit the amount and purposes for
which withdrawals can be made.

(c)

It may include reporting and audit
requirements.

The statute specifically provides that notwithstanding the
enactment of the ordinance, volunteer funds remain the
property ofthe municipality. As such, it would seem
auditing requirements, at least as stringent as those used by
the town for its own general fund should be imposed, For
example, if the town, either voluntarily or because of
statutory requirement utilizes a certified pubic accounting
firm to audit the general fund, it would seem appropriate to
include the department's account in that audit.

Fire departments and fire companies may have public records law
responsibilities.
a.

The policy of the law is that providing persons with information on
the affairs of government is "an essential function of a
representative government and an integral part of the routine duties
of officers and employees whose responsibility it is to· provide such
information. To that end, ss. 19.32 to 19.37 shall be construed in
4

Y'--·

every instance with a presumption of complete public access,
consistent with the conduct of governmental business. The denial
of public access generally is contrary ~o the public interest, and only
in an exceptional case may access be denied." Wis. Stats. §19.31.
b.

The public records law gives the public access to public records
kept or created by an authority.
( 1)

"Record" means any material on which written,
drawn, printed, spoken, visual or electromagnetic
information is recorded or preserved, regardless of
physical form or characteristics, which has been
created or is being kept by an authority. "Record"
includes, but is not limited to, handwritten, typed or
printed pages, maps, charts, photographs, films,
recordings, tapes (including computer tapes),·
computer printouts and optical disks. "Record"
does not include drafts, notes, preliminary
computations and like materials prepared for the
originator's personal use or prepared by the
originator in the name of a person for whom the
originator is working; materials which are purely the
personal property of the custodian and have no
relation to his or her office; materials to which
access is limited by copyright, patent or bequest; and
published materials in the possession of an authority
other than a public library which are available for
sale, or which are available for inspection at a public
library. Wis. Stats. §19.32 (2).

(2)

"Authority' means any ofthe following having
custody of a record: a state or local office, elected
official, agency, board, commission, committee,
council, department or public body corporate and
politic created by constitution, law, ordinance, rule
or order; a governmental or quasi-governmental
corporation ... a nonprofit corporation which
receives more than 50% of its funds from a county

5
'/

7

· or a municipality, as defined ins. 59.001 (3), and
which provides services related to public health or
safety to the county or municipality; a nonprofit
corporation operating the Olympic ice training
center under s. 42.11 (3); or a formally constituted
subunit of any of the foregoing." Wis. Stats.
§19.32( 1).
c.

It would appear that a town owned fire department is clearly an
authority by statutory definition. This would seem to be the case
whether or not it is a joint department

d.

There are three theories upon which it might be argued that a
Chapter 213 fire company organized as a nonprofit corporation
under Chapter 181 is also an authority or that records kept by. a
municipality in relation to the fire department are subject to the law.
1.

As stated above, "authority" as set forth in Wis. Stats.
§19.32 (1) includes" ... a nonprofit corporation which
receives more than 50% of its funds from a county or a
municipality, as defined in s.59.001 (3), and which provides
services related to public health or safety to the county or
municipality, ... " This is true regardless ofthe munipality's
source of the funds. The funds do not have to originate as
property tax dollars. Cavey v. Walrath, 229 Wis. 2d 105,
958 NW 2d 240 (Ct. App. 1999).
(I)

This clearly includes Ch. 213 nonprofit fire
companies who receive more than 50% of their
funding from one municipality.

(2)

The position has been taken that it is only a
nonprofit corporation that acquires more than 50%
of its funding from a single county or municipality
that is included as an authority. This writer is of the
opinion that such reasoning is contrary to the policy
of the law and ignores the rule of statutqry
construction set forth in Wis. Stats. § 990.001 (1)
6

Lt

which states "The singular includes the plural, and
the plural includes the singular." It is a close
question. Ifthe statute were found to be clear, the
rules of construction would not come into play.
u.

Wis. Sta:ts. § 19.32 (l) also includes " ... a governmental or
quasi governmentalcorporation ... " as an authority.
Because of the parallels, we often look to open meetings
law holdings for authority regarding the public records law.
There are neither drafter's notes nor case law that help with
determining what constitutes a governmental or quasi
governmental corporation.

(l)

80 Op. Att'y Gen. 129 (1991) takes the position that
the Milwaukee Economic Development Corporation
and Metropolitan Milwaukee Enterprise Corporation
are subject to the Open Meetings Law because they
closely resemble governmental corporations in
function, ·effect, or status. The facts that four of
nine directors were city officials serving because
they were city officials, that the city selects the
officers, the offices are in city buildings, and the staff
is on the city payroll were determinative.

(2)

The. mere fact that more than 50% of the funding of
a nonprofit corporation that provides public health
or safety services comes from a municipality does
not bring it within the definition of a quasi
governmental corporation under Wis. Stats. § 19.82
(1 ). The opinion refers with approval to 66 Op.
Att'y Gen 113 (1977) determining that the Palmyra
Volunteer Fire Department which is organized as a
Chapter 181 nonstock, nonprofit corporation was
not a "governmental or quasi-govermnental
corporation" within the meaning of Wis. Stats. §
19.82(1)
.
.

(3)

In the typical situation a Chapter 213 fire company

7

./

Lf·S

organized as a Chapter 181 nonprofit corporation
would appear not to qe subject to the public records
law. However, ifthe relationship to the municipality
was sufficient to cause it to resemble a governmental
corporation in function, effect, or status, it could be
drawn in as a§ 19.32 (1) authority: A case by. case
analysis is required.
m.

4.

In addition, a municipality that uses a Chapter 213 fire
company's services may be required to provide access to
records maintained or collected by the department under a
contract with the municipality. This would be under the
contractor's records provision in Wis. Stats. § 19.36 (3).

Organizational structure of fire· department affects beer sales
alternatives.

a.

The four basic types of licenses authorized by Wis. Stats. Chapter
125 are
1.

Class A Fermented· Malt Beverage License. This license
authorizes the sale of beer by stores, etc in original
packages and containers to be consumed away from the
premises where sold.
·

11.

Class A Intoxicating Liquor License. This license
authorizes the sale ofintoxicating liquor by stores, etc. in
original packages and containers to be consumed away from
the premises where sold.

m.

Class B Fermented Malt Beverage License." This license
authorizes the sale ofbeer by taverns, hotels, restaurants,
clubs, societies, lodges, fair associations,· etc. for
consumption on or off the premises where sold.

IV.

Class B Intoxicating Liquor License. This license
authorizes the sale of intoxicating liquor by taverns, hotels,
restaurants, clubs, societies, lodges, fair associations, etc.
8

tj{t;
!

for consumption on the premises where sold, unless the
local municipality adopts an ordinance authorizing sale for
off premises consumption in quantities up to four liters.
Wine can be sold for consumption either on or off premises.

b.

A Temporary Class B Fermented Malt Beverage license (commonly
known as a "Picnic Beer License") can be issued to a Chapter 213
volunteer fire company organized under Chapter 181. This type of
license is issued for short term events. It can be issued only to bona
fide clubs, to county or local fair associations or agricultural
societies, to churches, lodges or societies that have been in
existence for at least six months before the date of application and
to posts ofveteran's organizations. Wis. Stats. § 125.26 (6).

c.

A Temporary Class B Wine license can also be issued under Wis.
Stats. § 125.51 ( 10) to the same organizations that qualify for a
Picnic Beer License. This authorizes the sal~ of wine in an original
package, container or bottle or by the glass if the wine is dispensed
directly from an original package, container or bottle at a particular
picnic or similar gathering, at a meeting_ of the post, or during a fair
conducted by the fair association or agricultural society. Not more
than two licenses can be issued to the same entity under this statute
in any twelve-month period.

d.

A town cannot license itself or its town owned fire department.
However, the town can sell beer without a license under Wis. Stats.
§ 125.06 (6) which states that no license or permit is required for
sales meeting certain criteria.
1.

Sale must be in a public park operated by a county or
municipality.

n.

Fermented malt beverages shall be sold by officers or
employees of the county or municipality.

m.

Sales must be under an ordinance, resolution, rule or
regulation enacted by _the governing body.
9

L/1

IV.

Restrictions as to hours, operator's licenses, and the source
from which beer must be purchased are not regulated. Beer
can be sold either' in original containers or by the glass.

v.

The town must be the seller. It should purchase the beer
and. the proceeds go into the .town treasury. The town
would have to have a pudget item to pay these funds over to
the department.

v1.

Liability is a drawback ofthis approach. Provision should
be made for adequate insurance to protect the town and any
individual liability incurred by town officials.

v11.

The governing body must enact an ordinance, resolution,
rule or regulation authorizing the sale.

10

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CrivelloCarlson&Mentkowskis.c.
Attorneys at Law

710 North Plankinton Avenue
Milwaukee, Wisconsin 53203
Internet: www.milwlaw.com
E-Mail: ccm@milwlaw.com
FAX (414) 271-4438
Telephone (414) 271-7722

COMMON LEGAL QUESTIONS FROM HIGHWAY
DEPARTMENTS, ADMINISTRATORS AND
MUNICIPAL ENGINEERS

23rd Annual Wisconsin Town Lawyers Conference

Madison, Wisconsin
and Wislin Sites

April 26, 2002
Raymond J. Pollen
AmyJ.Doyle

Recent decisions in the Wisconsin courts have caused a reevaluation of the issues which may lead to liability in these
departments and the potential for defenses which can limit or
eliminate the claims. This outline covers some of the more
common questions arising because of these new cases and
potential strategies to reduce risk.

~··q

Decisions Impacting on the Liability And Defenses of Highway
Departments, Administrators and Municipal Engineers
RAYMOND J. POLLEN
. AMY J. DOYLE
Phone: (414) 271-7722
Fax: (414) 271-4438
E-Mail: ray@milwlaw.com
adoyle@milwlaw.com
April 26, 2002

I.

ICE AND SNOW ACCUMULATION
A.

Wagner v. Wisconsin Municipal Mutual Insurance Company,
230 Wis. 2d 633, 601 N.W.2d 856 (Ct. App. 1999).
1.

Pedestrian sued the city for injuries sustained when· he fell
on an icy, snow-covered sidewalk while he was loading
boxes onto a truck. Plaintiff recognized that the sidewalk
was slippery and that it could be a hazard. Even though he
had used a handcart for his first few trips, the plaintiff was
carrying the last box when he slipped and fell. There was
some evidence that the snow/ice accumulation had been
present for at least three weeks.

2.

The City moved for summary judgment based on open and
obvious danger, which the trial court found existed. The
trial court held that "[t]o hold otherwise would essentially
impose a zero tolerance on municipalities for snow and ice
build-up, which is unrealistic for cities in Wisconsin." The
court of appeals reversed and remanded.

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B.

3.

The court of appeals held that since the City's argument of
open and obvious contradicts Sec. 81.15, Stats., which
allows recovery for injuries due to snow accumulation that
had been present for at least three weeks; the City could not
rely on public policy to resolve liability. Since liability can
exist for accumulations of snow and ice that existing for
more than three weeks even if the accumulations were
"open and obvious", a jury question is presented was to the
apportionment of negligence.

4.

The application of the open and obvious doctrine is limited
to those cases justifying an abrogation of the comparative
negligence statute. It should not be used to resolve liability
in cases involving ordinary negligence even if evidence
· exists that the plaintiff was negligent.

5.

The term "highway" as used in Sec. 81.15, Stats. includes
sidewalks. Damaschke v. City of Racine, 150 Wis. 2d 279,
283, 441 N.W.2d 332 (Ct. App. 1989).

Schlough v. Citizens Security Mutual Ins. Co., 209 Wis. 2d 84,
562 N.W.2d 927 (Ct. App. 1997) (table) (unpublished).
1.

Schlough was injured when she fell on a snow and ice
covered public sidewalk that was abutting a private
landowner's property. The issue was whether a private
landowner could be held liable for injuries caused by a
natural accumulation of snow on the sidewalk adjacent to
her residence.

2.

The court held that owners of property abutting a public
sidewalk could not be held liable for injuries caused from
accumulations of snow and ice. This is the case even if the
municipal ordinance requires the property owner to remove
this snow. The only liability that can be imposed on a
property owner is any penalty prescribed in the
municipality's ordinance. See also Hagerty v. Village of
Bruce, 82 Wis. 2d 208,262 N.W.2d 102 (1978) and Walley
v. Patake, 271 Wis. 530, 74 N.W.2d 130 (1956).

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C.

D.

Parrett v. Sudeta, 2001 WI App. 224, 247 Wis. 2d 989, 635
N.W.2d 26 (Ct. App. 2001) (table) (unpublished)
1.

Parrett sued for injures caused when the vehicle in which
he was a passenger was struck by Sudeta's truck. The
plaintiffs vehicle was pulled over by the Vilas County
Sheriffs Department for defective brake lights. Due to
large snowdrifts, the vehicles were unable to pull off of the
road and, therefore, were stopped in the right lane of traffic
of a 4-lane highway. Sudeta's truck hit the rear of the
Sheriffs car causing it to hit plaintiff's vehicle. The
defendant filed a third party complaint against Vilas
County for contribution alleging that he was negligent in
the manner in which he conducted the stop.

2.

Vilas County moved for summary judgment on the fact that
its actions were discretionary under Sec. 893.80(4), Stats.
The deputy's decision to stop Parrett at the location that it
did involved the assessment and consideration of several
factors and, therefore, were discretionary and entitled to
immunity.

3.

Plaintiff also alleged that Sec. 346.03, Stats. allows for a
negligence action if the deputy failed to drive with due
regard for the safety of others when conducting this stop.
The court declined to find liability under Sec. 346.03, Stats
since there was no allegation or evidence that the deputy
was "driving" erratically. The only claim was based on the
manner in which he stopped the vehicle.

Tomlin v. Langlade Co., 2001 WI App. 254, 248 Wis. 2d 529,
635 N.W.2d 906 (table) (unpublished)
~

1.

Plaintiff was awarded compensation for damages to his
motor vehicle caused by slush, gravel and "little rocks"
thrown onto his vehicle by a passing snowplow.

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2.

H.

The court found the driver had no duty to stop the
snowplow every time a vehicle approached. Rather, the
court found there was a question raised as to whether
controlling the speed of the vehicle would reduce the
potential for propelling materials into the on coming land.

DEFECTS IN ROADS AND HIGHWAYS
A.

B.

Morris v. Juneau County, 219 Wis. 2d 244, 579 N.W.2d 690
(1998).
1.

The Morris' sustained injuries when their vehicle was hit
by another vehicle that had lost control of her car due to a
rut between the blacktop and the gravel shoulder of the
road. The plaintiffs' claim was based on the County's
failure to properly repair/maintain the roadway.

2.

The court determined that the term "highway" as used in
Sec. 81.15, Stats., does include the shoulder of that
highway and, therefore, Sec. 81.15, Stats. would be
applicable. In general, there is municipal liability for
damages caused by highway defects (i.e. potholes, worn
ruts, etc.) and, therefore, Sec. 81.15, Stats. is an exception
to the immunity provisions delineated under Sec.
893.80(4), Stats.

3.

The court acknowledged the repeated attempts and
Most
recommendations to repeal Sec. 81.15, Stats.
recently, 2001 Assembly Bill 6 was to repeal Sec. 81.17
and to amend Sec. 81.15, Stats. This bill was to eliminate
the immunity exception under which the municipality may
be held liable for insufficiency or want of repair of a
highway. No action was taken on this bill in this term.

Makeffv. Eau Clai:re County, 212 Wis. 2d 243,568 N.W.2d 786
(Ct. App. 1997) (table) (unpublished)
1.

Complaint alleged the county was responsible for
plaintiffs loss of control of his motorcycle when he
traveled through spilled and tracked oil on the highway.

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7'-1

2.

C.

The court found discretionary immunity barred the
plaintiffs claims.

Van Cleve v. City of Marinette, 2002 WI App. 10, _Wis. 2d
_ , 639 N.W.2d 792
1.

Plaintiff was injured after tripping on a recently constructed
curb and gutter. The plaintiff sued both the City and
contractor responsible for constructing the curb.

2.

The plaintiff signed a Pierringer release in favor of the
contractor. The City signed the stipulation and order
dismissing the contractor, which expressly stated that the
City's cross-claim against the Contractor, was settled. The
jury found the City 90 percent negligent, the contractor 9
percent negligent and the plaintiff 1 percent negligent. The
City moved under Sec. 81.17 to dismiss the plaintiffs
claim.

3.

Sec. 81.17, Stats. provides the municipality with
conditional immunity since the contractor is primarily
liable and the City is secondarily liable. The City claimed
that the plaintiff could not recover against the City until it
was unable to recover the judgment against the contractor.

4.

The court of appeals held that the Sec. 81.17, Stats provides
conditional protection to a municipality when it is sued
along with a contractor or other third party for injuries
caused by highway defects. If both are found liable,
regardless of the apportionment, the contractor/third party
is responsible for the entire award. The municipality must
pay only if the contractor is unable to pay.

5.

The court of appeals determined that the City did not waive
its right by failing to object to the Pierringer release since it
had no right to the contractor in the case. Also, the court
found that the cross-claim for contribution and the
affirmative defense based on Sec. 81.17, Stats. were two
distinct parts of the pleadings and that the affirmative
defense is not conditioned on its contribution claim.

,_.... , /

'/J
- 5© Crivello, Carlson & Mentkowski, S.C. 2002

HI.

WEEDS AND OVERGROWN VEGETATION
A.

Physicians Plus v. Midwest Mutual Insurance Company, 2001
WI App. 148, 246 Wis. 2d 933, 632 N.W.2d 59, (review
granted), (oral argument January 9, 2002)
1.

The plaintiffs motorcycle collided with another vehicle at
an intersection because that other driver did not notice a
stop sign since branches of a tree obscured it. This tree was
located in a private property owner's yard but the branches
overhung onto the right of way maintained by the town.
The County placed the stop sign.

2.

The plaintiff's claim was based on nuisance and not on any
negligent act or omission. The court of appeals found that
the County, the Town and the property owner had each
breached a duty to abate the nuisance created by the tree
branches and that the obstruction was a cause of the
accident. All three defendants filed an appeal.

3.

In general, based on public policy, a municipality may not

be liable for the failure to cut vegetation. Walker v.
Bignell, 100 Wis.2d 256, 301 N.W.2d 447 (1981). The
court of appeals, however, refused to extend this policy
where the traffic control sign and not just general visibility,
was obstructed. Once the decision to erect a stop sign is
made, the municipality has a duty to maintain it, which
include ensuring that it is visible to motorists. Therefore,
the court held that the public policy rationale expressed in
Walker could not protect the County from liability. The
court of appeals also found that the Town and homeowner
were potentially liable for a nuisance.

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B.

Estate of Wagoner v. City of Milwaukee, 2001 WI App 292,
249 Wis. 2d 306, 638 N.W.2d 382, (review filed)

1.

Wagoner lost his life in a car/motorcycle accident. The
median area included portions of a guardrail and the city
had cut the vegetation outside of the guardrail but it did not
cut the vegetation within the guardrail area. Wagoner's
estate sued the City claiming that the overgrown vegetation
obscured the vision of Wagoner and the driver of the other
car.

2.

Plaintiff argued that this case was distinguishable from
previous cases finding immunity for overgrown vegetation
since this claim was not based on the failure to cut roadside
vegetation but the manner in which the vegetation was cut.
See Estridge v. City of Eau Claire, 166 Wis. 2d 684, 480
N.W.2d 513; Walker v Bignell, 100 Wis. 2d 256, 301
N.W.2d 447 (1981). In other words, once the city decided
to undertake the task to cut the vegetation it assumed a duty
to do so with reasonable care.

3.

The court determined that the City had had no common-law.
duty to cut roadside vegetation and that a municipality is
immune from liability for injuries related to uncut
vegetation. There is no distinction between not cutting the
vegetation and doing it improperly.

4.

The court also rejected the argument that Sec. 80.01(3),
Stats. creates a private cause of action for any failure to
comply with this section. This provision provides that
municipalities are to cut roadside vegetation that was
planted by that municipality for beautification or erosionprevention purposes.

5.

In a concurrence, Justice Shudson invited the State

Supreme Court to evaluate whether the Walker holding
should be so all encompassing. Shudson suggested that the
vegetation adjacent to a highway should be distinguished
from vegetation within a median; this would enhance
highway safety and not undermine the policies expressed in
Walker.

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C.

D.

Brown v. Dane County, 2002 WI App. 56, _ Wis. 2d _, 640
N.W.2d 564 (table) (unpublished)
1.

This involved an automobile accident wherein the plaintiffs
allege that the County was negligent in failing to properly
place a stop sign and failed to trim/remove vegetation that
obscured the view along the road.

2.

The decision to install the stop sign is a discretionary
decision. Once a municipality decides to install a sign, it
should be installed consistent with the Manual for Uniform
Traffic Control Devices, as required under§ 349.065, Stats.

3.

The court concluded that the sign was placed within the
manual's distance parameters and that the precise location
of the sign within those parameters is a matter of discretion.

4.

The County conceded that it had a duty under § 80.01(3),
Stats., which requires cutting roadside vegetation when the
municipality was the one to plant this vegetation for
beautification or erosion control purposes. Since there was
no evidence that the County planted or authorized this
vegetation, plaintiff's claim could not be maintained.

Schey v. Wisconsin County Mutual Insurance Corporation,
229 Wis. 2d 253, 599 N.W.2d 666 (Wis. App. 1999) (table)
(unpublished)
1.

The plaintiff sued the County for injuries caused by a tree
lying across the roadway that was just cut by the County.

2.

The trial court denied the County's motion based on
immunity since it found that the City's decision regarding
how to cut the tree was ministerial and not discretionary.
The court of appeals reversed in part. The court of appeals
held that the initial decision of how to bring down the tree
was discretionary and protected under§ 893.80(4), Stats.

- 8© Crivello, Carlson & Mentkowski, S.C. 2002

c;{

However, the court determined that once the tree fell onto
the roadway, the crew had an absolute, certain and
imperative duty to warn the public of the obstruction and to
remove it from the road. Whether the crew was negligent
in this regard was a question for the jury.
3.

IV.

The court declined to adopt plaintiffs argument based on
the reasoning in Scarpaci v. Milwaukee County, 96 Wis. 2d
663, 292 N.W.2d 816 (1980), that the tree cutting crew
exercised discretion in the profession of tree cutting and not
governmental discretion and, therefore, discretionary
immunity should not apply. The court confirmed that the
decision in Scarpaci was limited to the exercise of medical
discretion.

ZONING DECISIONS
A.

Eternalist Foundation v. City of Platvme, 225 Wis. 2d 759, 593
N.W.2d 84 (Ct. App. 1999)
1.

The Foundation sued the City of Platville alleging that the
zoning decisions made by the City violated its
constitutional rights. The plaintiff agreed to the annexation
of a portion of land only because the City had accepted the
development plan for the remaining land, which included
development for commercial and single and multi-family
housing. This parcel was rezoned only to permit the
development of single-family houses. The plaintiff had no
knowledge of the City's intent to rezone the parcel. The
City denied three requests to rezone the parcel.

2.

Zoning decisions are not a "taking" where beneficial uses
remain. Even a dramatic reduction does not constitute a
taking if the owner is left with some beneficial uses of the
property.

3.

A political body cannot be bound to an agreement
involving property when it has legitimate reasons for
change. There was no evidence that the decision was based
on illegitimate or corrupt reasons.

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4.

B.

The court also disregarded plaintiffs claim that the City
treated it differently from other property owners for no
rational reason, thereby violating its equal protection rights.
Inconsistency in making decisions does not violate the
constitution.

R.W. Docks & Slips v. State of Wisconsin, 2001 WI 73, 244
Wis. 2d 497,628 N.W.2d 781

1.

The dredging permit needed to complete the final phase of
plaintiffs marina development was denied due to the
existence of a small weed bed along the shores of Lake
Superior. The Wisconsin Department of Natural Resources
sided with protecting the weed bed and denied the
plaintiffs request for this permit. Ironically, the weed bed
emerged as a result of a breakwater build by the developer
in the early stages of the project.

2.

The developer sued the DNR alleging a regulatory taking
without just compensation. The trial court dismissed the
case on summary judgment and it was affirmed by the court
of appeals since the developer retained the benefit of all or
substantially all of the property and the denial of the permit
for the remaining boat slips was not an unconstitutional
taking.

3.

The Supreme Court affirmed the holding that "there is no
compensable categorical taking unless the regulatory action
in question deprives a property owner of all economically
beneficial use of his property."

4.

The court, considering the property as a whole, concluded
that the action did not impact or interfere with the
developer's reasonable investment expectations as to
constitute an unconstitutional taking.

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C.

D.

Palazzolo v. Rhode Island, 533 U.S. 606, 150 L. Ed. 2d 592, 121
S. Ct. 2448 (2001).

1.

Palazzolo became the landowner after the restrictive state
zoning laws went into effect. The State refused to allow
him to fill nearly all of his coastal wetland in Rhode Island.

2.

The court determined that property can be "taken" when
regulations restricting use were in place before plaintiff
purchased property. Therefore, a party can have reasonable
investment expectations to develop his land even if the
regulations predated his ownership of the land.

3.

The damage from this decision is that it essentially
eliminates the "notice defense". The "notice defense" is a
theory that a purchaser or a successive titleholder who has
notice of earlier enacted regulations should not be
permitted to recover for lost value when they acquired title
knowing of the limitation.

Tahoe Sierra Preservation Council v. Tahoe Regional Plan.
Comm., 216 F.3d 764 (9th Cir. 2000), (review granted) 121 S.
Ct. 2589 (June 29, 2001).

1.

Owners ofhigh hazard lands around the alpine lake brought
an action against the regional planning agency claiming
that the temporary moratorium on development constituted
on unconstitutional taking of property. The temporary
moratorium was in place until a new regional plan was
developed.

2.

The ninth circuit held that the temporary moratorium on
development did not amount to a taking since the owners
had economically viable uses of their land even if the
moratorium had negative impact on property values.

3.

Issue before the Supreme Court is whether a "temporary
moratorium" is a taking requiring that the property owner
be compensated.

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V.

SEWER, FLOODING AND BACK-UPS
A.

Anhalt v. Cities and Villages Mut. Ins. Co., 2001 WI App. 271,
249 Wis. 2d 62,637 N.W.2d 422 (review :filed).
1.

Residents of Sheboygan sustained damage to their homes
from flooding and alleged that the City was responsible
based on claims of negligence, private nuisance, inverse
condemnation, waste and was unconstitutional.

2.

The acts of designing, planning and implementing a sewer
system are discretionary acts protected under Sec.
893.80(4), Stats.
See Allstate Insurance Co. v.
Metropolitan Sewerage Commission of the County of
Milwaukee, 80 Wis. 2d 10, 258 N.W.2d 148 (1977). The
court determined that the City's decision to implement a
system with a capacity to handle only a 1-year storm event
is protected under Sec. 893.80(4), Stats. Also, the City's
refusal to follow the recommendations of its consultants
who advised to implement a system to handle a 100-year
storm event is a legislative determination protected by
immunity.

3.

Knowledge that the sewer system was inadequate to drain
storm water does not necessarily establish a claim based on
nuisance. The court concluded that "the City is under no
obligation to collect the rainwater that may accumulate in
the street, but if it takes possession of the water and
assumes responsibility for it, the City may be liable in
nuisance for subsequently discharging the water onto
adjoining property." Id. at 80. The Court distinguished
between inadequate capacity and intentionally discharging
water in an unreasonable manner.

4.

The court held that the plaintiffs could not prevail on a
permanent or temporary taking claim since there was no
imposed legal restrictions or physical occupation by the
city.

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B.

5.

The court
based on
involved.
system is
property.

held that plaintiff could not maintain a claim
waste since there was no possessory interest
The right to maintain and construct a sewer
not the equivalent to a possessory interest in

6.

The court determined that the plaintiff could not maintain a
claim under Sec. 1983 since there was no evidence of a
violation of equal protection based on the allegation that
the City used different design criteria for different areas of
the city. This fact alone did not create any inference of an
intent to discriminate or that it had acted irrationally.

Menick v. City of Menasha, 200 Wis. 2d 737, 547 N.W.2d 778
(1996).
1.

Menick brought an action after raw sewage twice flooded
her basement. Plaintiff alleged several theories including
that the flooding was a taking under the Fifth Amendment,
a deprivation under Sec. 1983, a taking under the
Wisconsin Constitution, an interference with real property
under Sec. 844.01, Stats. and a private nuisance.

2.

The decision to install and provide a sewer system in a
community is a discretionary act. However, there is no
discretion to maintaining the system so as not to cause
injury to residents.

3.

The court determined that damage caused by flooding of
private property by a municipal sewer system does not
constitute a 51h amendment taking because it was not a
permanent, physical occupation of the property.

4.

The court determined that there was no taking under the
Wisconsin Constitution for a temporary taking.

5.

When flooding diminishes the value of the property, there
can exist a taking. Anderson v. Village of Little Chute, 201
Wis. 2d 467, 549 N.W.2d 737 (Ct. App. 1996).

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C.

D.

Bratonja v. City of Milwaukee, 3 Wis. 2d 120, 87 N.W.2d 777
(1958)
1.

Property owners sued the City for damages caused from
flooding ofbuildings by rainwater.

2.

A municipality has no obligation to build a storm sewer
system at all. Therefore, a municipality has no liability if it
designs and builds a storm sewer system that is inadequate
to control surface rainwater, even during normal rainfall.

3.

However, regular discharge of collected water onto private
property can be actionable as a nuisance for which there is
no immunity. Hillcrest Golf & Country Clum v. City of
Altoona, 135 Wis. 2d 431, 400 N.W. 493 (Ct. App.
1986)(rev denied).

Strzelec v. Citv of Franklin, 2001 WI 114, 246 Wis. 2d 174, 634
N.W.2d 320
1.

The plaintiffs claimed that their next-door neighbors
unlawfully interfered with the free drainage of water by
filling in a groove between the properties. The plaintiff
claims that the City and its engineer were negligent,
violated their constitutional rights, and permitted a
nuisance. . Essentially, the plaintiff contends that the City
and its engineer, Bennett, did not effectively monitor the
landscaping and filling work done by their former
neighbors and that this led to the ponding on plaintiffs
property.

2.

Negligence in overseeing the filling work does not amount
to a ministerial duty and the failure by the City to fix the
problem caused by a private party does not support a
inverse condemnation claim.

- 14-

©Crivello, Carlson & Mentkowski, S.C. 2002

[e lf

VI.

PERMIT, INSPECTION AND ENFORCEMENT
A.

B.

Hawes v. Germantown Mutual Ins. Co., 103 Wis. 2d 524, 309
N.W.2d 356 (Ct. App. 1981).
1.

Plaintiff sued the masonry subcontractor, the City of
Muskego and its building inspector after his basement wall
collapsed.

2.

The court held that it would be not against public policy for
a municipality to be liable for damages that resulted from
improper application of a building code. The court noted
that the liability was not based on routine periodic
inspections where the defect could be possibly concealed or
overlooked.
Rather, it arose out of the improper
application of a building code when plans for both the
issuance of a building permit and final construction were
approved for issuance of an occupancy permit. The
problem could have been easily discemable from review of
the plans, specifications or the building.

Allstate Insurance v. Metro Sewerage Comm'n, 80 Wis. 2d 10,
258 N.W.2d 148 (1977).
1.

An automobile accident occurred when one of the vehicles
was attempting to go around a sewer truck. The insurers of
the two vehicles brought a contribution action against the
defendant alleging that it was negligent.

2.

The actions as part of the general enforcement of a
municipal code including the issuance of permits is a quasijudicial function are entitled to immunity and exempt from
suit for any error in the absence of a corrupt or malicious
motive.

- 15© Crivello, Carlson & Mentkowski, S.C. 2002

{v~

C.

VII.

Willow Creek v. Town of Shelby, 2000 WI 56, 235 Wis. 2d 409,
611 N.W.2d 693.
1.

The plaintiff contended that the Town's and County's
decision in regulating the zoning of the plaintiff's game
bird farm were illegal and unconstitutional since the DNR
had the exclusive authority to make such determinations.
Prior to pursuing the game farm, plaintiff was informed by
a town official that no rezoning was needed for this type of
property/business. After the farm was completed and after
receiving a permit by the DNR, the Town informed the
plaintiff that he needed to rezone the property and obtain a
conditional use permit.

2.

The court concluded that the DNR's authority in this area
did not preclude the Town and County from regulating the
zoning of plaintiff's game bird farm. The court also
concluded that the actions of the Town and County were
constitutional and protected from suit under Sec. 893.80(4),
Stats.

PERMIT ISSUANCE
A.

Lake City Corp. v. City of Mequon, 207 Wis. 2d 156, 558
N.W.2d 100 (1997)
1.

Developers became aware of the city's goal to revise its
master plan and zoning regulations and, therefore, began
submitting plans for projects in an attempt to gain approval
before the completion of these revised plans.

2.

The court determined that a municipality could reject a
developer's proposed subdivision plat because it conflicts
with the municipality's master plan even though the plat
was consistent with current zoning regulations. The Master
Plan was not just considered an administrative tool.

3.

"Vested rights" in a development accrues only when the
permit application strictly complies with the master plan.

- 16© Crivello, Carlson & Mentkowski, S.C. 2002

h{t?

B.

Lake Bluff v. South Milwaukee, 197 Wis. 2d 157, 540 N.W.2d
189 (1995)

1.

The plaintiff purchased the land with the intent of
developing multi-family development that would qualify
for low income housing. The plaintiff, before purchasing
the land, verified that the zoning allowed for multi-family
developments. At some time after purchase, there was a
moratorium placed on the issuance of any building permit
while the Council considered whether to rezone this
property. The land eventually was rezoned to permit only
single-family development.

2.

The plaintiff claimed that it had acquired vested rights in
the prior zoning of the property before it was rezoned. The
City argued that the plans that were submitted did not
comply with the zoning requirements and therefore, no
vested rights were created.

3.

The court determined that since the plaintiff never
submitted a proposal for a building permit, which
conformed to the zoning and building code requirements, it
did not have a vested right in the forming zoning. In other
words, vested rights in a development accrue only when
permit application strictly complies with zoning and
building regulations.

VIII. ENTRY WITHOUT PERMISSION/WARRANT
A.

Montville v. Lewis, 87 F.3d 900 (7t11 Cir. 1996)

1.

A homeowner brought a Sec. 1983 action against various
city officials alleging that their administrative searchers of
her home violated the 4th amendment. The contractor on a
job invited inspectors into a horne after they inquired about
whether renovations complied with the building code. The
plaintiff was then issued building code violations based on
the inspector's observations from these visits.

- 17©Crivello, Carlson & Mentkowski, S.C. 2002

/p1

2.

B.

IX.

The court found that there was no evidence that third party
consent to warrantless searches was well established at the
time of the search and, therefore, the defendants were
entitled to qualified immunity.

Floatrite v. ViUage of Somerset, 2001 WI App. 113, 244 Wis.2d
34, 629 N.W.2d 818

1.

The plaintiff sought a declaration that a Village ordinance
allowing law enforcement and others to enter premises of
inner tube rental business was unconstitutional. The
plaintiff argued that this ordinance allowed for warrantless
and nonconsensual searches in violation of the 4th
Amendment.

2.

To constitute a search under the 4th Amendment, there must
be an expectation of privacy. Here, the court upheld the
inspection of the inner tube rental business and essentially
permitted inspectors to enter the portion of a business open
to the public and to observe what is observable by the
public. The court did note that the personnel would not
have unlimited access to every area.

IMMUNITY FOR INDEPENDENT CONTRACTORS
A.

Powell v. Milwaukee Area Technical College Bd., 225 Wis. 2d
794, 594 N.W.2d 403 (Ct. App. 1999).

1.

The plaintiff sued for injuries from a fall from a utility pole
during a class offered by MATC held in a yard outside a
building owned by WEPCO and partially leased to MATC.
The plaintiff claimed that the defendants were negligent
under the safe place statute for failing to maintain a safe
place of employment.

2.

The court affirmed the trial court's ruling that Zauner the
instructor of the class who was a WEPCO employee hired
by MATC to teach the class, was a loaned employee of
MATC engaged in a discretionary act which was immune
under§ 893.80(4), Stats.

- 18© Crivello, Carlson & Mentkowski, S.C. 2002

6?'

In other words, since Zauner was a loaned employee, he

and MATC were immune for discretionary acts. With
respect to WEPCO, the court found as a matter of law that
the poles did not represent a structural defect and the
maintenance of the poles was the sole responsibility of
Zauner and MATC.
3.

B.

WEPCO, as owner and lessor of the property where the
class was conducted had no safe place statute liability
because it had no control over the utility pole or its
maintenance. Even though WEPCO fell within the safe
place statute as the owner of a public building, it did not
have any liability since it did not exert any control over the
pole to incur liability.

Giffin v. Poetzl , 2001 WI App. 207, 247 Wis. 2d 906, 634
N.W.2d 901

1.

The plaintiff filed a claim against the town and the building
inspectors alleging that the construction defects violated the
Town's building code and that they negligently provided
inspections services.
The Town contracted with the
inspector company to perform building inspections for the
town.

2.

The court held that under§ 101.65, Wis. Stats. the town is
allowed to contract out for building inspection services.
Under§ 101.65, the Town may pay the state to perform the
inspections, perform the inspections itself or contract out
for the inspections.

3.

The second issue was whether this contract created an
employee or independent contractor relationship. The court
held that based on the little control and supervision that the
Town had over the details of the work, the inspectors were
independent contractors for the Town and the town was not
liable for their actions.

4.

The court stated that these "contract" inspectors may be
entitled to rely on municipal immunity defenses.

- 19©Crivello, Carlson & Mentkowski, S.C. 2002

b1

C.

D.

Malinowski v. DeLuca, 177 F.3d 623 (7t11 Cir. 1999)
1.

Apartment building owners sued the Village and private
property inspection agency for constitutional violations
resulting from the search of their apartment building
pursuant to a special inspection warrant.

2.

The court held that for federal constitutional claims the
private property inspectors are not protected under
qualified immunity when they are working under contract
with a municipality. The company could not establish
anything special about the job to justify extension of the
governmental immunity and there was little control by the
municipality over the action and duties of the inspectors.

Lyons v. CNA Ins. Co., 207 Wis. 2d, 558 N.W.2d 658 (Ct. App.
1996).
1.

The plaintiff was killed in a car accident when the other
driver failed to stop at the stop sign after passing over the
bridge.
The action alleged that the defendant
municipalities were negligent in the construction and
maintenance of the bridge thereby contributing to the
failure to see the stop sign.

2.

The designer of the bridge was retained by the town of East
Troy. Since the bridge was built with highway funds, it
had to be approved by the DOT.

3.

The design of the bridge changed resulting in it not
conforming to the American Association of State Highway
and Transportation Officials (AASTO). However, the
changed plans were approved by the DOT.

4.

The issue was whether a private entity could be found to be
entitled to governmental immunity when they carry out
governmental directives.

5.

The court held that an engineer may have immunity even
though may have a duty not to proceed with plan, as three
factors are present:

-20©Crivello, Carlson & Mentkowski, S.C. 2002

7

6.

E.

(a)

the governmental authority approved reasonably
precise specifications;

(b)

the contractor's actions
specifications; and

(3)

the contractor warned the supervising governmental
authority about the possible dangers associated with
those specifications that were known to the
contractor but not to the governmental officials.

conformed

to

those

This test will ensure that state and municipal government
and the public is able to make the best use of professional
design assistance but that the professional contractors are
not unfairly burdened by lawsuits when they follow
governmental directives.

Reuter v. Murphy, 2000 Wis. App. 276 622 N.W.2d 629
N.W.2d 784
1.

School sued driver and school district to recover for
student's injuries as passenger in the driver's car. The
defendant had an oral agreement with the school district
under which she was paid a fixed sum to transport children
to and from school using her own vehicle.

2.

Primary factor of determining whether ari individual is a
servant or an independent contractor is whether the alleged
master has the right to control the details of the servant's
work.

3.

A driver hired to transport children to and from school was
an independent contractor rather than a servant and
therefore, the statutory damage caps on the district's
liability did not apply.

- 21 © Crivello, Carlson & Mentkowski, S.C. 2002

71

X.

COMPELLING
IMMUNITY
A.

XI.

AND

KNOWN

DANGER

EXCEPTION

TO

Lodl v. Progressive Northern Ins. Co., 2001 WI App. 3, 240
Wis. 2d 652, 625 N.W.2d 601 (Petition for review granted)(oral
argument November 6, 2001).
1.

A relatively busy intersection was dark because the traffic
lights were not working. The plaintiffwas struck broadside
by another car.

2.

The court held that an intersection whose traffic controls
were not operating during a storm was a compelling and
known danger of such force that it creates a ministerial duty
in the performance of a traffic control.

3.

Whether the officer on the scene was aware of the danger
and failed to exercise his discretion when a known and
present danger exists is a factual question and therefore,
· summary judgment was inappropriately granted.

4.

If the fact finder finds that the officer took some action, in
the face of this known and present danger, even if
negligent, immunity would apply.

IMMUNITY FOR RECORDS/REPORTS OF INSPECTORS
A.

Dixson v. WI Health Organization Ins. Corp., 2000 WI 95, 237
Wis. 2d 149, 612 N.W.2d 721.
1.

The plaintiff sued her landlord for injuries her daughter
suffered as a result of ingesting lead based paint presenting
her duplex. The landlord sued Milwaukee County for
contribution.

2.

Issue was whether Milwaukee County had a duty to test
rental property for the presence of lead-based paint given
the federally mandated duty to inspect rent assistant
property.

-22©Crivello, Carlson & Mentkowski, S.C. 2002

7Z/

3.

The requirement that the County inspect the rent assistance
property did not carry with it a duty to test for lead-based
paint. Municipality did not gratuitously assume liability
when it advised that a rental unit "appears to be in
compliance with HUD lead based paint regulations."

-23©Crivello, Carlson & Mentkowski, S.C. 2002

7

CrivelloCarlson&Mentkowskisc.
Attorneys at Law

710 North Plankinton Avenue
Milwaukee, Wisconsin 53203
Internet: www.milwlaw.com
E-Mail: ccm@milwlaw.com
FAX (414) 271-4438
Telephone (414) 271-7722

RAYMOND J. POLLEN
Ray is an attorney with the law finn of Crivello, Carlson & Mentkowski, S.C. in
Milwaukee, Wisconsin. He receives his Bachelor of Science degree from the
University of Wisconsin-Madison and his law degree from the Marquette
University Law School. His principal work is in litigation for Wisconsin
municipalities and their insurers. He also currently serves as Village Attorney
for the Village of Shorewood. Ray is a member of the American Bar
Association, the State Bar of Wisconsin, the Civil Trial Counsel of Wisconsin,
and the International Municipal Lawyers Association. He is a frequent lecturer
on topics including civil rights, environmental liability, insurance and issues of
interest to municipal entities.

ray@milwlaw.com

AMY J.DOYLE
Amy is an attorney with the law finn of Crivello, Carlson & Mentkowski, S.C.
in Milwaukee, Wisconsin admitted to bar 1990, Wisconsin; U.S. District Court,
Eastern and Western Districts of Wisconsin. Her principal practice is in
Municipal Law and Civil Rights litigation in federal and state court. Education:
University of Wisconsin-Milwaukee (B.A. 1987); Marquette University Law
School (J.D. 1990). Member: American Bar Association; State Bar of
Wisconsin; Civil Trial Counsel of Wisconsin. Amy's recent presentations
include seminars on employment liability and municipal liability.

adoyle@milwlaw .com

7cf

HIRING CONSULTANTS: REQUEST FOR PROPOSALS
AND OTHER DO'S AND DON'TS BY:
THOMAS W. HARNISCH, LEGAL COUNSEL FOR THE WTA
I.

Introduction
A. A Municipal Independent Consultant Contractor would be generally a person or firm hired
by a Municipality who retains the right to control the details of the work for which
Contractor was hired. Numerous "control" and "supervisory factors may indicate whether
the person hires is or is not an "Independent Consultant Contractor." (See Snider vs. NSP
81 Wis2d 224, 260 NW2d 260 (1977)).

B. Typical Towns and Small Villages have the following Independent Contract Consultants and
Service Providers.
1. Engineers
2. Planners
3. Attorneys
4. Assessors
5. Building Inspectors
6. Accountants
7. Architects
8. Drug Testers
9. Insurance Agents
10. Road Maintenance and Snowplow Service Contractor
11. Computer Consultants
12. Real Estate Brokers
13.
"

t~~te~~V;j#JU"Y
,

C. Typical Towns and small Villages have other Independent Contractors for Supplies,
Materials, and Labor- "Public Work." These Contractors would not be normally
considered "Consultants" providing only Consulting Services. They would be:
1.
2.
3.
4.
5.

Road and Bridge Contractors
Sewer and. Water Contractors
Building Contractors, including Plumbers, Carpenters, and Electricians
Demolition Contractors
Recycling/Waste Collection Contractors

D. Independent Consultant Contractors for Services vs. an Employee ofMunicipality. Will the
Independent Consultant Contractor be considered an employee for Unemployment or
Workers Compensation?
1. Jarrett vs. LIRC 233 Wis2d 174, 607 NW2d 326 (2000) (workers compensation)
(See 102.07(8)(6) Wis Stats.
2. Larson vs. LIRC 184 Wis2d 378, 516 NW2d 456 (1994) (unemployment
compensation) (See 108.02(12)(b).
1

?5

E. Independent Consultant Contractor as Agent ofMunicipality. What expressed or implied
acts will make the Independent Consultant Contractor an "agent?"

1. Majorowicz vs. Allied Mutual212 Wis2d 513, 569 NW2D 472 (1997). Agent may
be an employee/servant or an Independent Consultant Contractor may in some
instances be an agent for particular matters.
2. Kettner vs. Wausau Insurance Corp. 191 Wis2d 723, 530 NW2d 399 (1995). Bus
Driver Contractor was not agent for purposes of limiting liability under §893.80(3)
Wis Stats.
3. Reuter vs. Murphy 240 Wis2d 110, 644 NW2d 464 (2000)- (No master/servant
relationship for school driver, thus no statutory damage limitation under
§893.80(3) Wis Stats).
II.

Potential Civil Liability ofMunicipality for acts oflndependent Consultant Contractor
A. General "black letter law" is that Municipality is not liable for civil harm or damage done to
third persons by acts or omissions of an Independent Consultant Contractor. (See Giffin vs.
Poetzl247_Wis2d 906, 634 NW2d 901 (2001)- (Negligent actions of a Town Building
Inspector do not make Town liable.) Exceptions to this "black letter law" might include:
1. Principal has full control over project- (See Snider vs. NSP 81 Wis2d 224, 260
NW2d 260 (1977).
2. Activity is abnormally dangerous- (See Estate of Thompson vs. Jump River CoQQ 225 Wis2d 2588, 593 NW2d 901).
3. Specific delegation of liability prohibited by statute.
(See Potter vs. Kenosha 268 Wis2d 361, 68 NW2d 4 (1955)) (non-delegation of
Safe Place Statute).
4. Specific delegation ofliability by contract prohibited- (See Majorwicz vs. Allied
212 Wis2d 513, 569 NW2d 472 (1997)).

B. Municipal Civil Immunity from third party Civil Liability actions may be extended to
Independent Consultant Contractors who have an agreement with Municipality.
1. Envirologix Corp. vs. City ofWaukesha 192 Wis2d 277, 531 NW2d 357 (1995).
Was Engineer and Subcontractor an agent under §893.80(4)?
2. Estate ofLyons vs. CNA Insurance Co. 207 Wis2d 446, 558 NW2d 658 (1996)Independent Contractor will be "agent" to be provided for governmental statutory
immunity under "three (3) part test", or will be provided common law immunity.
3. Jankee vs. Clark County 222 Wis2d 151, 585 NW2d 913 (1998) (statutory
immunity vs. statutory liability damage cap)- Reversed on other grounds (See 235
Wis2d 700, 612 NW2d 297 (2000)
4. Giffin vs. Poetzl247 Wis2d 906, 634 NW2d 901 (2001). Confirms immunity
protection under Estate of Lyons vs. CNA Insurance Co.
C. A Municipality has a legal duty to third parties to select and control the Independent
Consultant Contractor to avoid civil negligence and damage.

2

?fo

1. Wagner vs. Cont. Cas. Insurance 143 Wis2d 379, 421 NW2d 835 (1988) (Third
person damage protection from negligent acts oflndependent Contractor).
2. Miller vs. Wal-Mart 219 Wis2d 250, 580 NW2d 233 (1998)- Negligent employee
supervision).
3. Madison Newspapers vs. Pinkerton's Inc. 200 Wis2d 468, 545 NW2d 843 (1996)(Negligent supervision of Contractor discussed in concurring opinion).
4. Chapman vs. Mutual Service 35 FED SUPP 2d 699 (1999)

D. Independent Contractor may be liable for civil damages to Municipality for negligent or
intentional actions ofthe Subcontractor.
1. Brooks vs. Hayes 133 Wis2d 228, 395 NW2d 167 (1986)- Independent Contractor

agreed to provide "all services and material." This means services and materials
from Subcontractor.
2. Jacob vs. West Bend Mutual Inc. 203 Wis2d 524, 553 NW2d 800 (1996).
Independent Contractor was to perform work in workman like manner and in
accordance with industry standards.
III.

Bid, Advertising, and Independent Contractor Law

A Municipality, in absence of Ordinance or Statutory requirement, does not need to advertise
or let for bids for any Municipal agreement to any potential Independent Consultant
Contractor.
1. Cullen vs. Rock County 244 Wis2d 12 NW2d 38 (1943)
2. Joyce vs. County ofDunn and County of Chippewa 192 Wis2d 699, 531 NW2d
628 (1995). Equipment is not under the bidding requirement under §60.47 Wis
Stats.
3. Menzl vs. City ofMilwaukee 32 Wis2d 266, 145 NW2d 198 (1966)
4. 66 WIS OP ATT. Gen 284 (1977)
B. Bids and Advertising requirements exist for Independent Contractors who propose to
provide supplies and materials to Municipalities under specific statutes for certain types of
described "public work" or "pubic contracts" between the Municipalities and the
Independent Contractors. However, the lowest bidder has no absolute right to the agreement
under the statutes. The question is whether the Municipality was arbitrary or unreasonable
in not selecting the lowest bidder. (See Glacier State Distributors vs. Wis. DOT 221 Wis2d
359, 585 NW2d 652 (1998)). (See also Aqua-Tech vs. Como Lake Protection District 71
Wis2d 541, 239 NW2d 25 (1976)).
1.
2.
3.
4.

Towns- §60.47 Wis Stats
Villages- §61.55 Wis Stats
Cities- §62.15 Wis Stats
General- §66.0901 Wis Stats

C. Requests for bids for an Agreement with Independent Consultant for certain services,
supplies, and materials for a "public contract" or "public work" may have specific Federal or
State requirements.
3

"77

1. Prevaili!lg wage rate under §66.093 Wis Stats. (See Strong vs. Olsen 184 Wis2d
619,516 NW2d 719 (1984)). (See also Elliot vs. Morgan 214 Wis2d 253,57
NW2d 866 (CT. APP. 1997)).
2. Federal statutory non-discrimination, affirmative action inspection and audit of
records requirements.
D. Requests for bids for an Agreement with Independent Consultant Contract for scientific and
professional skill services are not required under "public contract" or "public work" statutes.
1. Waste Management vs. Wis. Solid Waste Recycling Authority 84 Wis2d 462, 267
NW2d 659 (1978)

E. Errant bids provided by any Independent Contractor, including an Independent Consultant
Contractor, to a Municipality still may obligate Independent Consultant Contractor to an
agreement with Municipality.
l. Nelson Inc. vs. Sewer Comm. ofMilwaukee 72 Wis2d 400,241 NW2d 390 (1976)
2. City ofMerrill vs. Wenzel Bros. 88 Wis2d 676, 277 NW2d 799 (1979)
3. Powers System vs. City ofBloomer 197 Wis2d 817, 541 NW2d 214 (1995)

F. Non-compliance with statutory provisions by Municipality may void any bid and any
agreement with Independent Consultant Contractor.
1. Open Meeting Law- §19.99 Wis Stats.
2. Specific statutory requirement- (e.g. 60.47)- See Federal Paving Corp vs. City of
Wauwatosa 231 Wis 2d 655, 286 NW2d 546 (1939).
G. Without an executed agreement, the "unjust enrichment" to a Municipality due to services
provided by Independent Consultant Contractor may still require payment to Independent
Consultant Contractor for these services for the actual costs incurred by Contractor, or for
the benefits received by Municipality from the Contractor. (See Village ofMcFarland vs.
Town ofDunn 82 Wis2d 469, 263 NW2d 167 (1978).
IV.

HIRING CONSULTANTS- THE DO'S FOR THE MUNICIPALITY

A. Prepare and approve "requests for qualifications", "requests for proposals", or "requests for
bids", conduct the interviews, select the appropriate possible Independent Consultant Contractor
negotiate the final agreement, and approve the final agreement to retain the Independent
Contract Consultant acting in compliance with Ethics, Open Records, Criminal Administration,
and Open Meeting statutory and common law laws.

B. Establish and comply with proper statutory and ordinance authority to bid, contract, and to
retain Independent Contract Consultant.
1. Village Powers
2. Specific statutory authority
3. Specific ordinance provisions for contracting
4

~;
(

C. Establish a proper annual Town or Village budget amount to fund the project and to meet the
projected consulting agreement financial costs and terms.
D. Select and appoint, when appropriate, any Town or Village committee or responsible contact
person(s) to create and forward the requests for qualifications, the requests for proposals or bids,
to arrange or conduct the interviews, to select the proposed Independent Consultant Contractor,
to negotiate the agreement, and to recommend the final agreement to the governing body of the
Municipality.
E. Forward in writing to a number of possible Independent Consultant Contractors a request for
qualifications. (RFQ).
F. After proper selection of the "qualified" Independent Consultant Contractors, create and
forward written requests for proposals (RFP) to those "qualified" Independent Consultant
Contractors. Where no bid is required or requested, the request shall be for a "proposal." The
elements in a written request for bids or proposals might include:
1. An introduction ofthe project ofthe Town or Village, including survey and basic data
describing the project and the proposed agreement.
2. A detailed description of the scope of the project and the proposed agreement.
3. A detailed description of the minimum requirements and expectations for the Contractor
for the project and agreement, including the specific identification of the scope of
services, and the documents, and materials to be provided by the Contractor and
Subcontractor and by the agents and employees of the proposed Independent Consultant
Contractor and Subcontractor.
4. An identification of the contact person or persons for the Town or Village for the project
and the proposed agreement.
5. An identification of the timeline for the project and the work plan for the project to be
incorporated in the proposed agreement.
6. An identification of any pre-proposal or pre-bid meetings to aid in describing to the
prospective Independent Consultant Contractor the project and to answer questions
about the proposed project.
7. An identification of any physical documents, maps, and other materials to be provided
by the proposed Independent Consultant Contractor to the Town or Village under the
project and agreement, and a description of who will own and who will have the right to
access these documents, maps, and other materials.
8. An identification of the Town or Village budget for the project and the agreement,
including the proposed payment schedules and the type, amount, and conditions of
proposed payments to the Independent Consultant Contractor.
9. An identification ofthe interview and selection process and criteria, including whether
the request is for a "bid" or for a "proposal."
10. Equal opportunity, conflict of interest, and confidentiality clauses for the proposed
agreement.
11. A non-collusion affidavit and non-contingency fee and "kick-back" affidavit.
12. A statement that costs and expenses incurred in responding by the proposal or bid by
prospective Independent Consultant Contractor shall not be costs incurred by Town or
Village.
5

77

13. An identification of any specific services and materials to be provided by the Town or
Village and its agents or employees.
14. An identification of any specific Federal, State, or Local laws, regulations and
ordinances that must be complied with for the bid, proposal, and agreement during the
project.
15. An identification ofany specific insurance, bond, surety, legal indemnification, hold
harmless, and other requirements for financial protection for the Town or Village to be
under the proposed agreement.
16. An identification ofthe methods to be used for dispute resolutions and possible penalties
for non-compliance with the proposed agreement.
17. An identification of the documents that will be integrated and incorporated by reference
with the proposed agreement.
18. An identification ofthe methods to be used ifthe project exceeds with "extra charges"
the projected budget and expenses, and agreement financial amounts.
19. An identification ofthe citizenship or immigration status ofthe Consultant.
G. After selection of the finalists to be the Independent Consultant Contractor, if appropriate where
there are two (2) or more "finalists", then create a rating system and criteria for any interviews
and selection by the Town or Village, or their designees, of the finalist Independent Consultant
Contractor. A minimum twenty (20) criteria for selection might be:
1.
2.
3.
4.
5.
6.
7.

Professional firm and staff qualifications and experience of Contractor.
Prior experience with subject Town or Village by Contractor.
Prior experience with other similar Towns and Villages (references on similar projects).
Potential conflicts of interest/Prior litigation with other Municipalities.
Professional and non-professional staffofContractor availability for project.
Past reputation with similar projects. ("responsible bidder")
Projected fees, costs, expenses, and charges for project, including any potential special
fee costs or "extra charges" for additional services.
8. Completeness and responsiveness of the bid or the proposal.
9. Scope of proposed services, documents, and materials to be provided by Contractor for
project.
10. Timeline for services by Contractor to be provided for project, including commencement
and completion dates.
11. The plans, maps, and other documents provided by Contractor with the bid or proposal.
12. Subcontractors and the specific non-professional and professional staff of the
Subcontractor to be used, and their experience/qualifications.
13. Understanding of the project by Contractor and staff.
14. Proposed project approach by Contractor and staff.
15. Public relations and specific municipal experience of Contractor and staff.
16. Proposed number and type of meetings and public hearings by Contractor or staff during
project with the specific officials, staff, and residents of Town or Village.
17. Quality of interview by Contractor and staff with Town or Village.
18. Organization of material prior to and at interview provided for Town or Village by
Contractor and staff.
19. Proposed draft final agreement with the specific work plan and timeline provisions for
project provided by Contractor.
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20. Proposed financial security and surety to be provided for compliance with agreement by
Contractor.
H. Upon selection of the finalist Independent Consultant Contractor, the Town or Village by its
proper officials, employees, or agents shall attempt to negotiate a final agreement with this
Contractor.
I.

The Town or Village should write in its requests for proposal or bid documents the right 1) to
reject any and all responses and submittals, 2) waive any irregularities in any responses or
submittals, 3) re-issue any requests for proposals or bids, and 4) to not award any later
agreement on the project.

J. The Town or Village should, prior to the final negotiated agreement, have executed and adopted
a written work schedule and timeline for the finalist Independent Consultant Contractor that will
be as detailed as possible and that will be integrated and incorporated by reference into the final
agreement.
K. The Town or Village, when appropriate, should have a contact person or persons responsible for
leadership agreement to prepare and let bids or proposals, to negotiate the agreement, to arrange
proper financial protection and surety with bid and agreement, to manage the project, to audit
finances with Independent Consultant Contractor to obtain and maintain compliance with the
agreement by the Independent Consultant Contractor, and to terminate the project and
agreement upon completion of the project or upon violation of the agreement.
L. The Town or Village should negotiate a final agreement for execution that, at minimum, might
contain the following:

1. The length of the term of the agreement, including commencement and termination
dates, with any option timelines for renewal or termination of the agreement.
2. Definition of terms, if agreement contains technical terms.
3. The scope of the services and documents to be provided by Contractor under agreement,
including specific plans, maps, materials, and documents to be accessed and to be owned
by Town or Village.
4. The work plan and timelines for completion of the project. What constitutes completion
of the project and termination of the agreement should be established.
5. The specific responsibilities and duties of the Town or Village under the agreement.
6. The compensation to be provided and withheld for expenses, fees, and costs to be
charged or incurred by the Independent Consultant Contractor, including the method,
amount, and any variables for additional "extra service" compensation or for less
compensation, and for reimbursement of specific costs and expenses. What constitutes
additional "extra" services or other considerations for additional compensation under the
project and agreement should be established. What maximum amount, where
appropriate, may be included?
7. The specific responsibilities and duties of the Independent Consultant Contractor under
the project, including, when appropriate, specific requirements for:
a. Insurance, bonds, surety and indemnification and hold harmless
requirements.
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b. Specific performance requirements to attempt to insure professional and
workmanlike standards compliance by Contractor in project.
c. Specific requirements on what specific employees and subcontractors can and
will provide of what services or documents during the project.
d. Specific limitations on the assignment or subcontracting ofthe agreement.
e. Specific requirements for compliance by Contractor with Federal, State, and
Local laws, regulations and ordinances during the project and agreement.
f Specific requirements to integrate and incorporate by reference to the
agreement, specific documents, including any work plan and timelines.
g. Specific requirements to attend specific public meetings and public hearings
related to the project.
h. Specific requirements to timely prepare and file with the Town or Village
specific reports on status of project.
1.
Specific requirements to timely file with Town or Village all diaries, maps,
surveys, logs, notebooks, accounts, reports, records, and other documents and
data prepared by Contractor for project.
J. Specific requirements to timely prepare and file on the Internet specific
documents related to the project.
k. Specific requirements to timely prepare and file all specific public documents
that are necessary to be filed under the project with the appropriate governing
authority.
L Specific requirements for Contractor to be responsible for acts or omissions
ofthe Subcontractors, and the agent and employee of the Contractor and any
Subcontractors.
m. Specific requirements related to potential conflicts of interest and ethical
concerns, including "kick back" and contingency fee and payment
restrictions.
n. Specific requirements related to the locations required for performance of
elements of the agreement and specific requirements related to the time that
should be devoted by Contractor to the project, including monthly time
requirements.
o. Specific requirements related to dispute resolutions, options, and penalties for
non-compliance with agreement by the parties, including payment of
reasonable attorney's fees.
p. Specific requirements as to the confidentiality of any closed meetings
attended or closed records provided to the Contractor.
q. Specific requirements as to the type, amount, and type of service or materials
to be provided by Subcontractor or specific professional and non-professional
staff.
r. Specific requirements and rights to terminate the project and agreement.
s. Specific requirements for Independent Consultant Contractor to pay all taxes
incurred from compensation.
t. Specific requirements for municipality to own all Patents and Copyrights
obtained as a result of the agreement.
8. The specific provisions that establish the agreement as an Independent Consultant
Contractor agreement.
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9. The specific "supervisory" and control rights of the Town or Village under the
agreement.
10. The specific rights of the Town or Village and the Independent Consultant Contractor to
terminate the services and the agreement, including the compensation that will be
allowed and the type and method of notices and to be required upon such termination.
11. The specific jurisdiction for administration, interpretation, and litigation under the laws
of what State.
IV.

HIRING CONSULTANTS - THE DON'TS FOR THE MUNICIPALITY

A. Do not, with any request for bids or for proposals to an Independent Consultant Contractor,
and with any proposed written negotiated agreement with an Independent Consultant
Contractor, fail to clearly establish in writing that the firm or person that is to be retained for
the project will be retained only as an "Independent Consultant Contractor", not as an
employee.
B. Do not, with any formal written request for bid or request for proposal to an Independent
Consultant Contractor, fail to establish whether the request is for a "bid" or for a "proposal"
and do not fail to establish the specific conditions by the Municipality for the submittal by
the Independent Consultant Contractor and the acceptance by the municipality of any "bid"
or for any "proposal" that may be submitted by the lndependent Consultant Contractor.
C. Do not, with any request for bids or a request for proposals, and with any proposed written
negotiated agreement with any Independent Consultant Contractor, fail to clearly establish
what, if any, Federal, State, or Local laws, regulations, or ordinances apply to the requests
for bids and proposals, and to the proposed written agreement.
D. Do not fail to properly supervise and control the hire, work, and actions of the Independent
Consultant Contractor.
E. Do not supervise and control the Independent Consultant Contractor to a level of detail
where the Independent Consultant Contractor is in reality and can be legally determined to
be "employee" of the Municipality.
F. Do not fail to establish the proper financial protections and legal indemnification for the
Municipality in the written agreement to financially protect the Municipality from any
potential civil damages to be incurred or to be alleged by any third parties.
G. Do not fail to establish the dollar amount, the time, the conditions, and the method for
compensation of the Independent Consultant Contractor from the Municipality, including
the specific amounts, time, conditions, and method for compensation for any "extra service"
compensation.
H. Do not fail to establish the penalties for non-compliance by the Independent Consultant
Contractor with the agreement, including specific rights for the Municipality to terminate the
agreement and to seek a new agreement.

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I.

Do not fail to establish in detail in the agreement the responsibilities and duties of the
Independent Consultant Contractor, including the specific scope of services and, if
appropriate, documents, maps, and other materials to be provided by the Independent
Consultant Contractor to the Municipality, including the work plan.

J.

Do not fail to establish in detail in the agreement the responsibilities and duties of the
municipality, including the specific scope of services and, if appropriate, any documents,
maps, and other materials, if any, to be provided by the Municipality to the Independent
Consultant Contractor.

K. Do not fail to establish specific timelines for commencement and completion of the services
under the agreement by the Independent Consultant Contractor.
L. Do not fail to establish, where they exist, the specific professional standards for which the
consulting services shall be provided under the agreement by the Independent Consultant
Contractor and any Subcontractors, including the confidentiality, conflict of interest, and
professional due diligence standards for the Independent Consultant Contractor and the
Subcontractors.

M. Do not fail to establish what, if any, legal agency and civil immunity the Independent
Consultant Contractor has been granted, under the agreement, to act for the Municipality and
has been provided under the agreement as civil immunity as an "agent" of the municipality
from potential civil liability as a result of any acts of the Independent Consultant Contractor.

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2002 TOWN LAWYERS CONFERENCE
UNIVERSITY OF WISCONSIN LAW SCHOOL
APRIL 26, 2002

"TOWN COUNSEL'S MEDIA RELATIONS ROLE"

John A. St. Peter
Edgarton, St. Peter, Petak.
Massey & Bullon
10 Forest Avenue
P.O. Box 1276
Fond duLac, WI 54936-1276

Michael Mentzer
Fond duLac Reporter
33 W. 2nJ Street
Fond duLac, WI 54935

In the old days men had the rack, now they have the Press.
Oscar Wilde, 1891
Politicians who complain about the media are like ships' captains
who complain about the sea.
Enoch Powell, 1959

TOWN COUNSEL'S MEDIA RELATIONS ROLE
I.

THE LAWYER'S VIEW
A.

ASPECTS OF WISCONSIN'S OPEN MEETINGS LAW
1.

Declaration of policy per§ 19.81, Stats.
(a)
(b)

(c)
2.

A representative government is dependent upon an informed
electorate.
The public is entitled to the fullest and most complete
information regarding the affairs of government as is
compatible with the conduct of governmental business.
The law shall be liberally construed to achieve its purposes.

Relevant requirements.
(a)

The law creates a presumption that meetings must be held in
open session. State ex rel. Newspapers vs. Showers, 135 Wis.
2d 77, 97, 398 N.W. 2d 154 (1987).

g{

(b)

(c)

Exemptions to the open session requirement are to be invoked
sparingly and only where necessary to protect the public
interest. Jd. at 102.
Notice requirements.
(i)
(ii)

Proper notice 24-hours in advance.
Notice must specify the date, time, place and subject
matter and any contemplated closed sessions.

Practice Tip: Often the governmental body fails to comply
with the "subject matter" requirement. Use your meeting
agenda for the notice. A simple sentence capturing the
essence of the proposed action is sufficient, e.g., "Discussion
and possible action to appoint a new plan commission."
Never rely on the cover of"such other matters as are
authorized by law" if you are aware that a particular matter
might be discussed.
B.

ASPECTS OF WISCONSIN'S PUBLIC RECORDS LAW
1.

Declaration of policy per § 19.31, Stats.
(a)
(b)
(c)
(d)
(e)

2.

A representative government is dependent upon an informed
electorate.
All persons are entitled to the greatest possible information
about governmental action.
It is essential to provide information to all persons.
Statutory presumption of complete public access consistent
with the conduct of public business.
The denial of public access is allowed only in exceptional
cases.

Relevant requirements.
(a)

(b)
(c)
(d)

Virtually every form of information created or kept by an
authority is a "record" except where there is a specific
exemption.
There is no duty to create a record. §19.35(1)(1), Stats.
"Any person" means any person, even a newspaper reporter.
No reason need be given for the request. § 19.35(1)(i), Stats.
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(e)

The request may be made orally. An oral request can be
satisfied with an oral response, unless a written response is
requested.
Practice Tip: The Attorney General's Office recommends that
the response be given within ten (10) business days. Absent
unusual circumstances, respond immediately to media
requests. Waiting ten (10) days often invites greater scrutiny
than would otherwise be applied.

C.

ETHICAL DUTIES TO THE LAW AND COURTS
1.

SCR 20: 3.6 Trial publicity.
(a)
(b)
(c)

We must strike a balance between protecting the right to a fair
trial and safeguarding the right of free expression.
Special uses of confidentiality govern proceedings in juvenile
domestic relations and mental disability proceedings.
Matters that will have a substantial likelihood of materially
prejudicing an adjudicative proceeding include:

(i)
(ii)
(iii)

2.

the character, credibility, reputation or criminal record
of a party;
information the lawyer knows or reasonably should
know is likely to be inadmissible as evidence;
the performance or results of any examination or test or
the identity or nature ofphysical evidence expected to
be presented.

SCR 20: 4.1 Truthfulness in statements to others.
(a)

A lawyer shall not knowingly:

(i)

make a false statement of a material fact or law to a
third person; or

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(ii)

fail to disclose a material fact to a third person when
disclosure is necessary to avoid assisting a criminal or
fraudulent act by a client, unless disclosure is
prohibited by other rules.

Practice Tip: Understand the media's need for a "talking
head" to merely confirm the existence of a case, a filing
deadline, etc. without the necessity of commenting on the
substance of a case.
II.

THE MEDIA'S VIEW
A.

MEDIA COVERAGE TRENDS
1.
2.
3.
4.
5.

B.

WHAT A REPORTER LOOKS FOR
1.
2.
3.
4.
5.
6.
7.

C.

24/7 news availability.
Deadlines are now immediate.
More news is being reported than ever before.
Taxpayers are wary of government and respond well to "whistleblower" and similar stories.
Independent media operations are disappearing.

Information about important people.
Events involving large numbers of people.
Events affecting large numbers of people.
Conflict, attack and controversy.
Unique events.
Compelling human interest stories.
Change.

OTHER FACTORS THAT INFLUENCE COVERAGE POTENTIAL
1.
2.
3.
4.
5.

Deadlines.
Complexity of an event.
Ease of covering.
Assignments from editors.
Relations with sources.

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i

III.

DO'S AND DON'T'S WHEN DEALING WITH THE MEDIA.
A.

DO'S.
1.
2.
3.
4.
5.
6.
7.

Prepare.
Assume you are being recorded.
Respect media deadlines.
Speak officially - no opinions.
Give the whole story.
Treat all reporters equally.
Say "I don't know" if you don't know. (Then offer to get the
pertinent info as soon as possible.)
Practice Tip: If you don't know an answer, you can always say, "I
don't know, but I will see if I can get that information and call you
back this afternoon."

8.
9.
10.
11.
12.
B.

Be there for reporters (return calls).
Think "soundbite" or quote.
Listen to the question.
Anticipate questions.
Correct media mistakes.

DON'T'S.
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.

Lie.
Fake it.
Go "off the record."
Say "no comment."
Use professional slang or terminology.
Speculate.
Make flippant remarks.
Put down your detractors.
Argue with the press.
Try to say everything at once.
Answer hypotheticals.
Be a "slow bleed" of information.
View the media as the enemy.
Practice Tip: If you can help reporters with background information,
interviews and maybe even a news tip or two, they may be more
willing to help you when you need it most.
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C.

CHOOSE THE RIGHT WORD.
1.

Are your statements protected?
(a)

(b)

2.

There is a conditional privilege against defamation for
statements at public meetings. Vultaggio v. Yasko, 215 Wis.
2d 326, 572 N.W. 2d 450 (1998). (You are protected ifyou
act in good faith and if you reasonably believe that your
comments are true.)
Statements made before or after a meeting have no privilege
and are subject to the laws of defamation.

The wonderful world of synonyms and euphemisms.
(a)
(b)
(c)
(d)
(e)
(f)

"Confused" not "stupid."
"Misinformed" not "liar." (Or, if one wants to show off, say
"his truth quotient wasn't always the highest.")
"He has a complex history" not "He's a known criminal."
"An efficient solution" not "a cheap choice."
"Community" not "the people on Limestone Road."
"The matter is being carefully considered" not "I don't know
what to do."

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