Town Boards Not Required to Act as One for Highway Decisions

August 23, 2011

In a recent decision, the Wisconsin Supreme Court addressed the issue of how an application to discontinue a town-line highway is resolved. In Dawson v. Town of Jackson, the court decided that, when a highway lies on and across the border of two municipalities, the two municipal boards are expected to meet together and cooperate to resolve a joint application for a discontinuance, but they are not required to count their votes in aggregate as if they were a single board.

Typically, a town board decides whether to grant an application to have a highway discontinued by a vote. If the application receives a majority of the board members’ votes, a highway order is recorded and the road is discontinued. Complications arise, however, when a highway, like Wausaukee Road, runs on or across the municipal boundary line of two towns.

In May 2007, the Dawsons applied to have a dead-end portion of Wausakee Road discontinued. The portion of the road was completely surrounded by property owned by the Dawsons, and lay on and across the border between the towns of Jackson and Cedarburg. The Dawsons filed a joint application with the two towns, and the two town boards met together to consider the application. All five of the Jackson board members were present at the meeting, while only three of Cedarburg’s members were in attendance. At the meeting Jackson’s board unanimously voted to grant the discontinuance, while Cedarburg’s board unanimously rejected it. After the meeting it was unclear whether the discontinuance had been granted. In aggregate, a majority of the board members present supported granting the discontinuance (5-3), but a majority was not achieved by the Cedarburg board separately (0-3). As a result, Jackson recorded a highway order discontinuing part of the road, but Cedarburg failed to do the same.

The question, which finally reached the Wisconsin Supreme Court in 2010, was decided based upon the court’s interpretation of the phrase “acting together” in a Wisconsin statute that provides procedures for discontinuing a highway that lies on or across the border of two municipalities. The court was asked to determine whether “acting together” required that the two boards’ votes be counted in aggregate as if they were a single board, or whether the boards were to jointly consider the application but vote separately. The court determined that “acting together” required that the boards consider an application jointly, but in order for a discontinuance to be granted a majority of each town board must vote in support. As a majority was not achieved by the Cedarburg board, the court determined that the discontinuance had not been granted.

The decision, which overturned a court of appeals decision interpreting “acting together” to require a vote aggregation, was also based upon the concern that not all municipal governing boards are equally sized. Although the court’s decision avoids the possibility of a tyrannical municipality, it also means that stalemates can occur where two municipalities disagree on an application. Such a stalemate may result in the landowner’s application being refused indefinitely.

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For more information about "Town Boards Not Required to Act as One for Highway Decisions," contact Buck V. Sweeney at csweeney@axley.com or 608.283.6743.