Town had authority to discontinue alleyway despite overarching county authority to regulate platted lands
Wis. Stat. ch. 236 gives counties authority to regulate the subdivision of land to promote public health, safety, and general welfare. But that doesn’t mean a town lacks authority to act concerning land use decisions regarding the town where provisions overlap.
By Joe Forward, Legal Writer, State Bar of Wisconsin
Feb. 23, 2011 – A town’s authority to discontinue public or private right-of-ways is not restricted by law that also gives counties such authority, the District II Wisconsin Court of Appeals recently held in Smerz v. Delafield Town Board, 2010AP1186 (Feb. 16).
In May 2009, a Delafield property owner (James Smerz) challenged a petition by other property owners to discontinue portions of an unpaved alleyway located on his block. The Delafield Town Board (town board) granted the petition and did not respond to Smerz.
Wis. Stat. section 66.1003(3) gives a town board authority to “discontinue all or part of an unpaved alley upon the written petition of the owners of more than 50% of the frontage of the lots and lands abutting upon the portion of the unpaved alley sought to be discontinued.”
However, section 66.1003(4)(d) determines that “[n]o discontinuance of an unpaved alley shall be ordered if a written objection to a proposed discontinuance is filed … by the owner of one parcel of land that abuts the portion of the alley to be discontinued and if the alley provides the only access to off-street parking for the parcel of land owned by the objector.”
In a declaratory action, Smerz moved for summary judgment, arguing that the town board lacked authority to discontinue the alley sections because the alleys fall within a recorded plat, and Wis. Stat. ch. 236 (governing platted lands) gives counties exclusive authority to act.
The circuit court ruled that the town board had authority to act under section 66.1003 and, in any event, Smerz did not have standing to challenge the decision. The appeals court affirmed.
Town board’s authority
Smerz argued that Wis. Stat. ch. 236 should apply exclusively because ch. 236 is more specific than section 66.1003(3). That is, ch. 236 deals with streets and alleys in recorded plats, and section 66.1003(3) applies to an unpaved alleys located within a town.
However, the appeals court explained that a ch. 236 grant of authority to counties, at least in this case, is not exclusive to the authority vested in the town under section 66.1003.
“Undoubtedly, some roads and alleys will fall under one statute or the other, while others will fall under both statutes. We have no basis to decide that one takes precedence over the other,” wrote Richard Brown, chief judge for the Wisconsin appeals courts.
Chief Judge Brown also called on the legislature to resolve the conflict: “To the extent that the co-existence of ch. 236 and § 66.1003 creates a problematic dual grant of authority, it is up to the legislature to solve the problem, not us,” he wrote.
Standing
The appeals court ruled that Smerz did not have standing to sue the town board, even though he lived on the same block, because his property did not actually abut the “portion of the alleyway sought to be discontinued,” as required by section 66.1003(3).
Although Smerz identified an injury – he used the vacated alley segments as extra parking and storage – his claim was not within the zone of interest protected by the statute.
“Section 66.10003(4)(D) clearly gives standing to people whose property abuts the discontinued portions of the alleys, not every landowner on the block,” Judge Brown wrote.
