2010 WI App 24
court of appeals of
published opinion
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2009AP120 |
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†Petition for Review Filed |
2010 WI App 24
COURT OF APPEALS DECISION DATED AND FILED January 6, 2010 David
R. Schanker Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Dale Dawson, Gudrun Dawson and Edward Thomas,
Plaintiffs-Respondents, v. Town of
Defendant-Respondent, Town of
Defendant-Appellant. |
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APPEAL
from a judgment of the circuit court for
Before Brown, C.J., Anderson and Snyder, JJ.
¶1 SNYDER, J. The Town
of
BACKGROUND
¶2 The Dawsons applied to both towns, Cedarburg and Jackson,
seeking to vacate a portion of the town highway known as
¶3 The joint meeting took place on January 9, 2008. The town board for each municipality consists
of five members. All five
¶4 On June 20, 2008, the
DISCUSSION
¶5 Cedarburg renews the same three issues on appeal. First, it argues that the
¶6 These issues were resolved by summary judgment in the circuit
court. Summary judgment is appropriate
when no genuine issue of material fact exists and only questions of law
remain. Wis. Stat. § 802.08(2).
On appeal, we review a grant of summary judgment using a well-known
methodology that need not be repeated here.
See, e.g., Lambrecht v. Estate of Kaczmarczyk, 2001 WI 25, ¶¶20-24, 241
Certiorari Review vs. Declaratory Judgment
¶7 We begin with Cedarburg’s assertion that this action should
have been brought under Wis. Stat. § 82.15,
which states that “[a]ny person aggrieved by a highway order, or a refusal to
issue such an order, may seek judicial review under [Wis. Stat.] s. 68.13.”[3] The
¶8 Certiorari review limits the issues to: (1) whether the board kept within its jurisdiction, (2) whether it acted according to law, (3) whether it acted arbitrarily or unreasonably, and (4) whether the evidence was such that the board might reasonably make the determination it made. See Cohn v. Town of Randall, 2001 WI App 176, ¶25, 247 Wis. 2d 118, 633 N.W.2d 674. Cedarburg directs us to Master Disposal Inc. v. Village of Menomonee Falls, 60 Wis. 2d 653, 657, 211 N.W.2d 477 (1973), for the proposition that a declaratory judgment action is not authorized where a more specific method of review is set forth by statute.
¶9 The Dawsons respond that the issue placed before the circuit
court was outside the scope of certiorari review. They did not allege that the Cedarburg and
Jackson town boards exceeded their jurisdiction, failed to act according to
law, acted arbitrarily, or reached a determination unsupported by the
evidence. Rather, the
¶10 We agree with the
§ 806.04 is remedial, intended to “settle and to afford relief from uncertainty
and insecurity” and it is to be “liberally construed and administered.” Sec. 806.04(12). Here, the
Estoppel
¶11 Cedarburg next
argues that the
¶12 “The elements of
equitable estoppel are: (1) action or
non-action, (2) on the part of one against whom estoppel is asserted, (3) which
induces reasonable reliance thereon by the other, either in action or
non-action, and (4) which is to his or her detriment.” Milas v. Labor Ass’n of
¶13 Cedarburg argues
that the
¶14 Cedarburg also
points to language in the Dawsons’ August 30, 2007 correspondence to both
towns, which advised that “[e]ach Board must come to a determination within 90
days” of receipt of the application and closed by stating that “[t]he final
step in the process, assuming approval by both Boards, is for the Town Boards
to authorize execution of a ‘Highway Order’ which is then recorded.” Cedarburg argues that the letter confirms the
¶15
Wis. Stat. §§ 82.10 to
82.13. See Wis. Stat.
§ 82.21(2). Nothing in the statutes
makes any exception if the applicant previously directed an application to just
one of the towns. We agree. Even if we were to accept that the
Interpretation of
“Acting Together” in Wis. Stat. § 82.21(2)
¶16 Cedarburg next argues that the circuit court
incorrectly interpreted the term “acting together” in Wis. Stat. § 82.21(2).
At the joint hearing, the five
¶17 When we construe
a statute, we begin with the language of the statute and attribute to it the
common, ordinary, and accepted meaning. Cambier
v. Integrity Mut. Ins. Co., 2007 WI App 200, ¶13, 305
(1) Initiating the procedure. The procedure to lay out, alter, or discontinue a highway on the line between a town and another town, a city, or a village, or a highway extending from one town into an adjoining town, city, or village, shall begin only when one of the following occurs in each affected municipality:
….
(2) Contents of the application or resolution. An application or resolution under sub. (1) shall contain a legal description of the highway to be discontinued or of the proposed highway to be laid out or altered and a scale map of the land that would be affected by the application. Upon completion of the requirements of sub. (1), the governing bodies of the municipalities, acting together, shall proceed under ss. 82.10 to 82.13.
Wis. Stat. § 82.21 (emphasis added).
¶18 Although we owe
no deference to the circuit court on questions of statutory interpretation,[5]
we benefit from the court’s rationale, which stated in relevant part:
Where there
is a separate vote then one town board can veto. Where there is a joint vote then the majority
of the supervisors of the two towns acting as one would decide the issue. If the legislature had meant to authorize an
individual town to block an attempt to lay out, alter or discontinue a highway
on a town line they could have done so simply by requiring approval by both
towns. A particular procedure would not
have been necessary. Separate approval
is the opposite of “acting together.”
….
The Town of
¶19 We agree with
the circuit court that the correct procedure when towns act together under Wis. Stat. § 82.21(2) is to count
all of the votes of all town board members present and, from all votes cast,
determine whether an application is approved or denied. We hold this to be the proper interpretation
for two reasons.[6]
¶20 First, the
statutory context in which the language appears makes clear that towns act in
concert at other points in the Wis.
Stat. § 82.21 procedural process.
Cedarburg acknowledges in its brief that once an application to modify a
shared town highway is submitted, the statute requires the towns, “acting
together, [to] proceed under ss. 82.10 to 82.13.” See
§ 82.21(2). Under Wis. Stat.
§ 82.11(1), the towns must act together to provide notice of a time and
place where public comment will be received and the supervisors, here the town
board members, from each town must “personally examine the highway” before
making a decision on the application.
Under Wis. Stat. §
82.12(1), the towns must act together to “make a determination” on the
application within ninety days. The
theme of acting together continues in § 82.21(4)(b), which indicates that two
towns “meeting together” make “an order” regarding apportionment of authority
for a shared highway.
¶21 In summary, the
plain language of the statutes directs that when an application regarding a
shared town highway is submitted, the towns are required to act together in
holding a public meeting, hearing comments, gathering information about the
highway, making a determination on the application, and apportioning
responsibility as required by any resulting highway order. Under Cedarburg’s interpretation, each town
would vote separately and if the application was not approved by a majority of
the board members for each individual town, the application would fail. Thus, the act of voting on the application
would be distinguished during the process as the only event on which the towns
did not act in concert. We reject this
interpretation as contrary to the legislative scheme of cooperation and joint
action.
¶22 Second, the
circuit court’s interpretation is consistent with what earlier courts have
held. We note that the
(5) Apportionment board. The boards … of the municipalities … thereof selected for that purpose, acting together, shall constitute an apportionment board. When any municipality is dissolved by reason of all of its territory being so transferred the board … thereof existing at the time of such dissolution shall for the purpose of this section, continue to exist as the board … of such municipality
(6) Meeting. The board … of the municipality to which the territory is transferred shall fix a time and place for meeting …. The apportionment may be made only by a majority of the members from each municipality who attend ….
Wis. Stat. § 66.03
(1943). Because the statute
provided for an apportionment “by a majority of the members … who attend,” the supreme court concluded
that a majority of those board members who attended the meeting would have the
authority to make the apportionment. Walsh,
247
¶23 Here,
¶24 In addition,
¶25 The statute under consideration by the Minnesota court stated
that when a petition concerning a road between adjoining towns was filed, “the
town board of each of such towns, or a majority of each, acting together as one board, shall determine said petition.”
[T]here is created for the hearing and determination of proceedings to establish town line roads, an independent tribunal composed of a majority of the members of the affected towns, with authority, ‘acting together as one board,’ to determine the matters thereby presented. The statute does not require that a majority of the members of each town concur in an order laying out the roads, if that be the conclusion reached, but only that a majority of the members of each town shall compose the board or body authorized to act in the matter. In that situation, and in the absence of a statute to the contrary, a concurrence of a majority of the body thus constituted is as valid and legally effective as though all had joined therein.
¶26 Cedarburg argues that Skrove is of little help because the
¶27 As a final observation, 4 Eugene
McQuillin, The Law of Municipal Corporations, § 13.36 at 904-05 (3d rev.
ed. 2002), provides the following guidance on joint assembly of municipal
boards: “When the meeting has once been
duly organized, the identity of the component bodies forming it, in legal
contemplation, disappears, and the vote of the majority of those constituting
the joint body who are present controls ….”
This general rule is consistent with the two cases discussed above. It aligns with the plain language of the
statute and the legislatively crafted scheme of joint action. We conclude, based on all of the foregoing,
that the votes of the
CONCLUSION
¶28 The Dawsons
properly sought a declaratory judgment rather than certiorari review to clarify
the meaning of the term “acting together” in Wis.
Stat. § 82.21(2) and thereby determine the result of the vote on
their application to discontinue a portion of
By the Court.—Judgment
affirmed.
[1] All references to the Wisconsin Statutes are to the 2007-08 version.
[2] The nearest thing to an estoppel argument in Cedarburg’s brief on summary judgment is a section titled “Plaintiffs’ Prior Actions Are Inconsistent With Their Current Argument.” Nowhere in this section is the word “estoppel” used, nor is any case law on the issue employed.
[3] Wisconsin Stat. § 68.13 states in relevant part: “Any party to a proceeding resulting in a final determination may seek review thereof by certiorari within 30 days of receipt of the final determination.”
[4] The
[5] When
the issue requires the application of a statute to undisputed facts, we proceed
with our review de novo. State
ex rel. McElvaney v. Schwarz, 2008 WI App 102, ¶8, 313
Wis. 2d 125, 756 N.W.2d 441, review
denied, 2008 WI 122, 314 Wis. 2d 70, 758 N.W.2d 91
(WI Aug. 18, 2008) (No. 2007AP415).
[6] The
Wisconsin Towns Association filed an amicus curiae brief supporting Cedarburg’s
interpretation of the statute. It
criticizes the
Municipalities will increase their board member sizes, not for concerns of best representing their local constituents, but instead for the sole purpose of jointly-owned public highway wars. Municipalities will be driven so as to purposefully schedule meetings when it will be difficult for full memberships of governing bodies to appear.
We do not envision such a total breakdown of order and cooperation, nor do we accept the proposition that every board member from a particular town will vote in lockstep. Because we do not accept the validity of the Wisconsin Towns Association’s prediction, we do not address it further.