Neighboring town board votes don’t aggregate in deciding highway
Village, town, or city has veto power over neighboring village, town,
or city if the entities don’t agree on issues relating to town
By Joe Forward, Legal Writer,
State Bar of Wisconsin
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.
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
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
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
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
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
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.
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.”
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.