Neighboring town board votes don’t aggregate in deciding highway issue 

By Joe Forward, Legal Writer, State Bar of Wisconsin

Aug. 11, 2011 – Neighboring villages, towns or cities must “act together” to consider the location, alteration, or discontinuance of a town line highway. But that doesn’t mean neighboring town board votes, for instance, are aggregated to reach a consensus.

In Dawson v. Town of Jackson, 2011 WI 77 (July 19, 2011), a Wisconsin Supreme Court majority (7-1) clarified that one municipality still has veto power over another when it comes to proposals that impact town line highways under Wis. Stat. section 82.21.

A town line highway is one that “runs on or across the boundary line between a town and another town, a village, or a city.” Wis. Stat. section 82.21 determines that when neighboring municipalities consider an application to “lay out, alter, or discontinue a town line highway,” the governing bodies of the municipalities should do so by “acting together.”

The Dawson family applied to discontinue a portion of Wausakee Road, which lies on and across the municipal boundary line between the towns of Cedarburg and Jackson. The Dawsons own property bordering the affected portion of the road.

The town boards of Cedarburg and Jackson held a joint meeting to consider the Dawsons’ application. All five Jackson board members voted to discontinue Wausakee Road, but the three Cedarburg board members present voted against it.

Ultimately, the Dawsons sought a declaratory judgment that the joint action of the town boards resulted in discontinuance because, “acting together,” the town boards voted 5-3 in favor of it. Cedarburg appealed, and an appeals court affirmed.

But the supreme court majority reversed, declining to interpret the term “acting together” to mean “acting together as one board” when making decision under section 82.21.

“To read the words ‘as one board’ into the mandate that the boards act together adds words to the statute that the legislature did not include,” Justice Prosser wrote for the majority.

The majority feared that counting the votes of town boards in the aggregate could undermine the independence and autonomy of municipalities. “It also runs the risk of permitting larger municipalities – like cities and villages – to impose their will upon smaller municipalities (usually towns)” where a municipal board may have more voting members, the majority reasoned.

The majority also concluded that section 82.15 precludes a party from seeking declaratory relief as the Dawsons did in this case. Instead a person aggrieved by a highway order must seek certiorari judicial review within 30 days of receipt of a final determination under 68.13.

The majority thought it “prudential and necessary” to take the case although the circuit court should have denied the Dawsons request for declaratory judgment, but warned future litigants aggrieved by highway orders to follow the statutorily prescribed method for review.

“Our determination to take up this case should not be interprested as a green light to evade the legislature’s prescribed method certiorari review for matters involving highway orders,” Justice Prosser explained.

Dissent 

Chief Justice Shirley Abrahamson dissented, arguing that “acting together” under section 82.21(2) “requires an aggregate vote count of the combined memberships of the affected governing bodies” under a common reading of the statute.

“As I read the statute, the phrase ‘acting together means the boards are to act as a single group. This interpretation gives a common meaning to the phrase ‘acting together’: doing something in a single group,” the chief justice wrote.

She urged the legislature to re-examine what it means to “act together” under section 82.12(2), noting that a court must “interpret the statute, not rewrite it.”

Attorneys 

Brad M. Hoeft of Huiras, Farrell & Antoine S.C., Port Washington, represented the Town of Cedarburg. John M. Bruce of Schober, Schober & Mitchell S.C., New Berlin, represented the Dawson family.