Nov. 15, 2023 – The attorneys who represent Wisconsin’s 1,883 municipalities deal with a wide variety of issues – everything from employment law to zoning to First Amendment issues.
In this article, three municipal attorneys discuss the transactional issues that kept them busy in 2023.
A Shift in School District Work
Eileen Brownlee, an attorney with Boardman Clark LLP in Fennimore, has been practicing municipal law for nearly 40 years. She represents 60 municipal entities across Wisconsin.
It was the prospect of representing school districts that attracted Brownlee to municipal law.
“When I joined the predecessor firm, what attracted me was that they did a lot of school law, and I was a teacher before I went to law school so I thought that would be interesting and a lot of places that do school law do municipal law,” Brownlee said.
But Brownlee said the hot-button issues that arose from her school district work over the last few years – distance learning, mask mandates, controversial books – have largely died down.
Another aspect of Brownlee’s school district work that’s changed is a reduction in the amount of time she spends on contracts. High interest rates and climbing construction costs have combined to put a crimp in school building projects.
Instead, she’s being called upon to do more work on employment contracts.
“There are just more jobs available it seems, so there are more opportunities for employees,” Brownlee said. “I think everybody has expressed concern, whether it’s public sector or private sector, about finding quality employees.”
“Zoning is a big issue. Solar issues and particularly wind turbine issues are huge.” –
Eileen Brownlee, Boardman Clark
Wound up About Wind Farms
“Zoning is a big issue,” Brownlee said, citing state laws that limit municipalities from regulations. “Solar issues and particularly wind turbine issues are huge.”
Jeff M. Brown, Willamette Univ. School of Law 1997, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6126.
Wind farms are a big issue because many people don’t want wind turbines, which stand 250 feet tall, near their homes.
“There has been substantial legislation saying to local governments, ‘You really can’t be in the business of where a wind turbine is located unless your regulations are in strict conformity with state statutes and Public Service Commission regulations,’” Brownlee said.
“There are a lot of places where people are not fans of wind turbines, and not having much in the way of local control is frustrating.”
In 2009, the legislature enacted a law directing the Public Service Commission (PSC) to promulgate rules limiting the restrictions that local governments may impose on wind farms.
Under the PSC rules, which took effect in 2016, local governments may not enact ordinances imposing any restrictions on wind firms beyond those enacted by PSC: that turbines be located at least 1,250 feet from the nearest residence and at a distance equal to 1.1 times the height of the wind turbine from the nearest property line.
New Law For Housing Permits
Legislation enacted earlier this year has also been keeping Paul Mahler busy.
Mahler, an attorney with Bakke Norman S.C. in St. Croix County, said the legislation requires municipalities to grant permits for housing developments if the applicant meets all the application requirements.
“It takes away the interaction between the developer and the municipality to maybe create a better development,” Mahler said. “If you meet the application requirements, you’re going to get a permit.”
Before, Mahler said, there was room in the law for municipalities to require developers to meet with them and discuss the proposed development before a permit was approved.
It was an opportunity for a town’s planning commission to examine the developer’s plans and, for instance, suggest that the developer change the route of a proposed road given the likely effect on traffic, or site houses on the side of a hill instead of atop the hill.
“We’re not sure what the role of planning commissions will be after this,” Mahler said.
“Up here in vacation land, we’re seeing a lot of municipalities wanting to enact short-term rental ordinances.” –
Paul Mahler, Bakke Norman
More Work on TIF Districts
Like Brownlee, Mahler, who used to work in commercial real estate, has seen municipal construction work slacken.
Mahler said he was at a public meeting recently where a municipal client approved an interim financing package that included an interest rate of 6.3%, the lowest among the lenders who bid on the project.
“Two years ago, [the lowest rate] was around 1%,” Mahler said.
The boost in the cost of borrowing affects municipalities even where the development is being funded by a private entity.
“When the numbers get tighter they either don’t do the project or they come to the municipality and ask for more incentives, and that’s what’s happening now, which puts a strain on local budgets,” Mahler said.
As a result, Mahler’s been doing more work lately on helping municipalities create tax increment financing (TIF) districts.
Ruckus over Short-term Rentals
Mahler has also seen an uptick in the number of municipalities seeking to regulate short-term rentals.
The advent of Vrbo and Airbnb has seen a corresponding rise in the use of vacation homes as income-producing vacation rentals.
“Instead of buying a cabin to go up there and have your family visit, people are buying cabins as investments and that causes problems because no one wants to be next to a party house when you’ve got a lake place.”
Among the complaints cited by neighbors opposed to short-term rentals are binge drinking, loud music, cars cramming lakeside lanes, and overflowing garbage cans.
In 2017, the legislature limited the ability of municipalities to restrict short-term rentals.
Under the act, a municipality may only prohibit rentals fewer than seven days in length. They may also cap the total number of days in a year when a property may be rented, if the cap numbers 180 or greater and the property is rented for periods of between six and 28 days at a time.
The maximum number of allowable rental days may run consecutively, but municipalities may not specify the season during which the days may run.
“We’ve been working with a number of municipalities to enact ordinances that give them the power to do what they can do under the law,” Mahler said.
‘It’s Been Overwhelming’
Mahler has also been working to help municipal clients respond to a barrage of public records requests, usually related to the conduct of elections. Mahler said the requests are burdensome, especially for towns and villages with part-time clerks.
“When you’ve got a clerk who only works 20 hours a week, he or she is busy,” Mahler. “It’s just been overwhelming because there are entities that are just sending out these requests to everyone.”
“I have some real concerns about this upcoming election cycle, and what it’s going to do to clerks because they’re on the front line, they take a lot of abuse lately, and there’s a shortage of them up here.”
Oshkosh City Attorney Lynn Lorenson said she’s spending more time lately looking at contracts.
“Everyone is trying to limit their liability in agreements through different provisions,” Lorenson said. “Some of it is liability shifting, others are just limiting liability.”
It’s a trend that’s been on the rise for several years, Lorenson said.
“A real common one would be they want to limit liability under an agreement to the amount that the city’s paying them,” Lorenson said.
That’s not such a big deal on a multi-million-dollar construction contract.
“But for other contracts, you may not be paying as much, so every contract has to be evaluated individually,” Lorenson said.
The topic recently came up on a list serve for municipal attorneys.
“I know I’m not alone in seeing it,” Lorenson said. “One of the attorneys suggested that it may be the result of some changes in the insurance industry – upping policy limits – so one way to keep your premium down is to limit your exposure.”
“I’ve been a city attorney for 30 years and for the first, say 25 years, elections just happened – there wasn’t a lot of lawyering going on with them.” –
Lynn Lorenson, Oshkosh City Attorney
Election Law Issues Still Burning
Like Mahler, Lorenson has been spending an increasing amount of time on advising clients about election law matters, especially since 2020.
“I’ve been a city attorney for 30 years and for the first, say 25 years, elections just happened – there wasn’t a lot of lawyering going on with them,” Lorenson said.
Much of Lorenson’s election-related work involves keeping abreast of new laws and regulations and state and federal court decisions.
“We modify our policies, we make sure that we have our poll workers trained and that everybody understands what the legal requirements are and keep up to date with changes in the law, both from legislation and court cases,” Lorenson said.
Signs and Wonders
Election law issues often turn on constitutional amendments. So do proposed regulations on signs and murals.
‘It’s amazing how often signage comes up,” said Lorenson, who describes herself as a “constitutional law geek.”
Two recent U.S. Supreme Court cases loom large in regulating signs.
Reed v. Town of Gilbert, 576 U.S. 155 (2015), the Supreme Court held that a sign code that defined categories of signs based on the information displayed on the signs was an impermissible content-based regulation that violated the First Amendment.
City of Austin v. Reagan Nat. Advertising of Austin, LLC, 596 U.S. __ (2022), the Supreme Court held that an ordinance that distinguished between on-premises and off-premises was content-neutral and therefore allowable under the First Amendment.
“We’re actually taking an amendment to the city council at the next meeting for our mural ordinance,” Lorenson said. “It’s about how the First Amendment relates to regulation of public art and signage, that interplay.”
The Excitement of Municipal Work
Lorenson was inspired to go into municipal law by her mother, who served on the Sturgeon Bay Common Council and the local utility board.
“She really instilled that public-facing mentality in me,” Lorenson said. “She was very focused on doing things for the community, and I think that got passed down to me.”
Lorenson grew up watching her mother and city officials struggle to help the city’s economy transition from one centered around the shipbuilding industry.
“I think that’s something that’s exciting about municipalities,” Lorenson said. “It’s working in the community to adapt to changes, all the time.”