1. Immunity Municipal Case Law Update Hon. Paul F. Reilly Wisconsin Court of Appeals

2. Summary of Immunity Case Law-Last 2 Years The Wisconsin Supreme Court is moving away from providing governmental immunity from tort claims as first provided by Holytz v. City of Milwaukee, 17 Wis. 2d 26 (1962). Bostco LLC v. MMSD: Government’s “maintenance of the continuing private nuisance is not a legislative, quasi-legislative, judicial or quasi-judicial function,” and therefore, once government “had notice that the private nuisance it negligently maintained was causing significant harm, immunity under § 893.80(4) was not available.” Brown v. Acuity: No immunity for volunteer firefighter traveling through red light on way to an emergency call without an audible signal as this violated a “clear ministerial duty” under Wis. Stat. § 346.03(3). Legue v. City of Racine: “[I]mmunity does not attach to negligent operation on the part of an emergency operator.” Showers Appraisals, LLC v. Musson Bros: No immunity for government contractor that did not prove that “it was acting as governmental entity’s agent in accordance with reasonably precise specifications.” Oden v. Mil.: 911 called for report of natural gas smell; police & fire respond, firefighters leave while police wait for WE Energies, 1 hour later explosion. No immunity – ministerial duty “known and compelling danger” exception

3. Estate of Seroy v. Leuck: jail inmate dies from ingesting drugs obtained from fellow inmate. Estate sues saying jail did not search properly = immunity granted – discretionary as to their search duties Manning v. Vinton Construct. Co: contractors wanted immunity but course of conduct was under the “means and methods” portion of their contract where damage arose – no 3p immunity per Showers. Larsen v Wisconsin Cty Mut. Co: slippery area in courtroom, person slipped and fell earlier in day. Court reporter slips and falls and is injured = County has immunity; duty to clean up (aka snow) was discretionary

5. Bostco LLC v. MMSD 2013 WI 78, 350 Wis. 2d 554, 835 N.W.2d 160 MMSD maintained the Milwaukee Deep Tunnel to collect storm water and sewage for transport to Milwaukee’s sewage treatment plant. Boston Store, located 1 block away from the Deep Tunnel’s North Shore portion, experienced structural property damage due to MMSD’s negligent maintenance of the Tunnel, which caused a drawdown of the water table Holding: MMSD was not entitled to immunity because it had notice that the negligently maintained Deep Tunnel was causing significant harm, thus constituting a private nuisance. MMSD’s maintenance was not “discretionary” and immunity did not apply. Wis. Stat. § 893.80(3)–(5) did not abrogate MMSD’s duty to abate the negligently maintained private nuisance it had notice of. The monetary damages cap did not violate Bostco’s equal protections rights either facially or as applied to Bostco.

6. Brown v. Acuity 2013 WI 60, 348 Wis. 2d 603, 833 N.W.2d 96 Burditt, a volunteer firefighter and member of the Okauchee Fire Department, was responding to an emergency call. Burditt drove up to an intersection while flashing 3 lights on his emergency vehicle, but sounded no audible signal. Burditt collided with plaintiff’s car after Burditt drove through a red stop light. Plaintiff sustained injuries from the collision and sued Burditt, the Okauchee Fire Department, and Burditt’s insurer. Holding: Burditt was acting within the scope of his duties as a volunteer firefighter when the accident occurred; he was actuated by a purpose to serve the OFD when the accident happened. Public officer immunity applied to this case. However, Burditt violated a clear ministerial duty when he drove through the red stop light without turning on his vehicle’s audible signal. Burditt’s conduct was a violation of the “rules of the road,” codified in Wis. Stat. § 346.03(3). The ministerial duty exception to public officer immunity applied to this case.

7. Legue v. City of Racine 2014 WI 92, 357 Wis. 2d 250, 849 N.W.2d 837 A collision occurred at an intersection between the plaintiff’s car and a City of Racine police car driven by an officer responding to an emergency dispatch. The police officer had the police car’s lights and audible signals on when she drove through the intersection’s red light. The collision occurred after the police officer drove through the red light, and the plaintiff sustained injuries. Holding: The police officer had a duty to maintain a standard of care that is “due regard under the circumstances,” therefore the police officer’s action in driving through the intersection’s red light was outside the scope of immunity. The officer was liable for negligence. The trial court erred in directing a verdict because there was credible evidence to support the jury verdict of causal negligence on the behalf of the police officer.

8. Showers Appraisals v. Musson Bros., Inc. 2013 WI 79, 350 Wis. 2d 509, 835 N.W.2d 226 The DOT and City of Oshkosh entered into a state-municipal agreement for sewer improvement, agreeing that the City would provide funding and construction of sanitary sewers and water mains. Musson was awarded the contract bid for the project. Musson was informed during the bidding process that he would be responsible for any damage or injuries that occurred through contractor negligence. Musson removed the storm sewers from City streets during construction, which caused flooding and damage to Showers Appraisals’ business. Holding: Where a third party’s claim against a governmental contractor is based on the allegation the contractor negligently performed its work under a contract with a government entity, the governmental contractor must prove the following: 1) The contractor was an “agent” under Wis. Stat. § 843.80(4), and 2) The contractor’s act is covered under immunity via § 893.80(4). Musson did not meet the standard for being an agent under Wis. Stat. § 843.80(4), and was not entitled to immunity. Musson also did not assert his acts were covered under immunity via § 893.80(4).

9. Oden v. City of Milwaukee 2015 WI App 29, __ Wis. 2d __, __ N.W.2d __ 2 residents of the same city block called 911 to report the smell of natural gas. Milwaukee firefighters and police officers were dispatched to the street where a gas leak was confirmed. The firefighters left the scene, while police officers waited for WE Energies representatives to arrive. 1 hour later, Oden’s home exploded, injuring Oden and her son. Holding: Milwaukee Fire Department had a ministerial duty based on the City’s action in delegating to WE Energies both Milwaukee Fire Department emergency response training and performance requirements in the First Responder Handbook. The City did not have immunity and summary judgment was improper. The known and compelling danger exception applied to this case because the gas leak was reported by 2 911 callers, confirmed by City employees upon their arrival, and found to be “‘extremely dangerous [and] more than unsafe” by the circuit court. Therefore, the City had a ministerial duty to act.

10. Estate of Seroy v. Leuck 2014 WI App 120, 358 Wis. 2d 711, 856 N.W.2d 346 Adrianna Seroy died from ingesting mixed prescription drugs while at Monroe County Jail. She obtained the drugs from her fellow inmate, Leuck, who snuck the drugs into the jail by concealing the drugs on her body. Leuck had previously failed a drug test and had her work release suspended, but after jail employees searched Leuck’s cell and residence and found nothing, a judge reinstated Leuck’s work release privileges. Jail administration officials orally warned jail employees that Leuck would have to be watched, but no written directives were created. Holding: The search guidelines contained within the Jail Policy guide were broadly interpreted by the court, giving jail personnel the discretion to determine when and how an inmate’s body is to be inspected. Jail personnel did not have a ministerial duty to conduct cell checks within specified time parameters or to log observations. Imposing rule violations in the jail as contained within the Jail Policy guide dealt with questions of negligence, not immunity, but did not require any different actions for ministerial duties. The possibility that an inmate might smuggle in drugs does not equate an existing present danger, therefore the known danger exception did not apply. Immunity applied to this case.

11. Manning v. Vinton Constr. Co. 2014 WI App 110, 357 Wis. 2d 721, 855 N.W.2d 903 SuperEx and Vinton were contracted by the Village to perform sanitary sewer and storm drain improvements. Each contract stated that the contractor was responsible for the continuous flow in the existing sewer system, and that the contractor was solely responsible for the “means and methods” of the improvements. The Mannings discovered raw sewage in their basement as a result of the contracted improvements, which affected every room in the basement and caused extensive damage to the Mannings’ personal property. Holding: SuperEx was not entitled to immunity because is was not a government agent under Lyons and did not satisfy the “reasonably precise specifications” requirement for immunity. SuperEx failed to demonstrate the Mannings’ allegations were based on the Village's design plan, not SuperEx’s poor execution of the plan.

12. Larsen v. Wisconsin Cnty. Mut. Co 2014 WI App 90, 356 Wis. 2d 328, 855 N.W.2d 493 Portage County employees noticed a slippery area inside the Portage Circuit Court Room. Someone not a party to this case slipped and fell on the area, but did not sustain any injuries. Plaintiff, a court reporter, later slipped on the slippery areas and sustained injuries. Holding: The County’s duty under Wis. Stat. § 101.11 was discretionary, not ministerial. Wis. Admin. Code § SPS 332.21 also did not impose a ministerial duty on the County because the Code did not require a specific action to be taken for slippery surfaces. Because a slippery floor is not so unusual that immediate action is reasonably necessary to be taken, the known and compelling danger exception did not apply.

13. Condemnation/Eminent Domain

15. Summary of Condemnation/Eminent Domain Law Last 2 Years Fromm v. Village of Lake Delton: not your fault that dam broke Somers v. DOT: condemnation cannot be used to take advantage of a clear mistake on part of landowner Nextmedia v. Village of Howard: landowner can’t take advantage of mistake by the Zoning Board Savage v. ATC: The value of what is “taken” is left to the fact finders – don’t play “aerial” games 118 th St. Kenosha v. DOT: “temporary” means just that – as such it is not a taking

16. Fromm v. Village of Lake Delton 2014 WI App 47, 354 Wis. 2d 30, 847 N.W.2d 845 Dell Creek Dam was constructed in 1927. The Village of Lake Delton took over ownership of the Dam in 1994, but made no structural changes to the Dam’s design. Storms caused the water level in Lake Delton to rise, which in turn caused excess water to flow over the Dam’s saddle. This ultimately caused severe damage to Fromm’s house and property via erosion downstream. Holding: The Village did not engage in any action that resulted in Fromm’s property damage, therefore the Village did not take Fromm’s property and is not liable for compensation. The “per se” takings rule does not apply because Fromm did not provide legal authority or a viable rationale tied to pertinent legal principles to support his application of the “per se” takings rule to this case.

17. Somers USA v. DOT 2015 WI App 33, __ Wis. 2d __, __ N.W.2d __ Somers purchased land to construct a truck stop. At the same time, the State was planning a highway improvement project using some of Sommers' land for a frontage road and on-ramp. Somers recorded a CSM for the property, which designated the parcel as a “road reservation for potential future state high way purposes,” and as a “Road Dedication.” The State built the frontage road, but did not compensate Somers, relying on the “reservation” and “dedication” language in the CSM. Holding: Because no governmental board approved the dedication or land grant for inclusion, the CSM did not have the force or effect to convey the property to the State. Additionally, since Sommers never intended to dedicate the property for public use – an essential requirement – the conveyance and CSM were defective.

18. Savage v. American Transmission Co. 2013 WI App 20, 346 Wis. 2d 130, 828 N.W.2d 244 Before Savage owned the property at issue in this case, ATC acquired an easement on the property for high voltage transmission lines. In 2007, ATC wanted to increase the easement for additions to the transmission lines. Negotiations for the additional easement failed between the parties. ATC took the easement on Savage’s property via eminent domain. Savage requested compensation due for ATC’s taking. Holding: The language of the written supplemental easement was unambiguous, showing that the circuit court erred in restricting evidence to only “aerial rights” and granting summary judgment. Savage and his experts were allowed to testify as to their opinions on the fair market value of the whole property before and after the takings. The expert witness testimony would go to the weight of the evidence for loss of fair market value, rather than the evidence’s admissibly.

19. 118 th St. Kenosha LLC v. DOT 2014 WI 125, 359 Wis. 2d 30, 856 N.W.2d 486 Plaintiff owned commercial property consisting of a shopping center. The shopping center had access to 118 th Street before 2010. In 2010, the DOT relocated 118 th Avenue 1 block east. The DOT acquired a temporary easement to construct a new driveway connecting the shopping center to 74 th Place. The commercial value of the plaintiff’s shopping center declined by $400,000 after 2010. Holding: 118 th St. Kenosha LLC could not seek damages under Wis. Stat. § 32.09(6g) for the commercial property’s diminution in value because the temporary easement did not cause the commercial property to lose direct access to 118 th Street. Damages under § 32.09(6g) could not include damages for the loss of direct access and proximity to 118 th Street.

20. Nextmedia Outdoor, Inc. v. Village of Howard 2015 Wisc. App. LEXIS 276 Nextmedia owned a billboard sign that was displaced because of a DOT highway construction project. Nextmedia filed an application to realign the sign to a different spot on the same property under Wis. Stat. § 84.30(5r). The DOT rejected Nextmedia's application because it violated a local ordinance, which allowed realignment only in limited circumstances. Nextmedia appealed the DOT’s decision to the Village’s Board, which also denied Nextmedia’s application and leasehold rights. Holding: The Village acquired Nextmedia’s permit through condemnation and compensated Nextmedia’s for those property interests. Nextmedia knew about the DOT’s compensation, but failed to disclose the compensation to the Board, thus justifying the Board’s decision to deny Nextmedia’s realignment application.

21. Public Records/Open Records

23. Summary of Public/Open Records Law MacIver Inst. v. Erpenbach: identity of email sender to legislator on issue of legislation is a record and subject to disclosure under balancing test Ardell v. Milwaukee Schools: the request for records of a specific employee properly denied disclosure under balancing test given violent history of requestor towards employee Voice of Wis. Rapids v. Wis. Rapids Schools: “notes” taken for personal use and not shared are not “records” under the “personal use” exception §19.32(2) Journal Times v. Racine Police & Fire: confluence of Open Meeting law and Public records law – what record needs to be made and disclosed from a closed “open meeting”? Does a “record” exist despite it not being written down/obligation to do so? Pending S.Ct. opinion WPPA v. Wis. Counties Assn: public records law does not apply to the Association Lakeland Times v. Lakeland H.S.: prospective employee’s submittal to public employer is prohibited from being released by school under §19.36(10)(d) - whether info contained in submittal is truthful is irrelevant to public records request

24. John K. MacIver Inst. for Public Policy, Inc. v. Erpenbach 2014 WI App 49, 354 Wis. 2d 61, 848 N.W.2d 862 During the time period right after Wis. Act 10 was signed into law, the Institute submitted a written request to Erpenbach to obtain copies of all correspondence to and from him relating to collective bargaining. Erpenbach provided some relevant correspondence, but redacted personal contact information and personally identifiable information in the correspondence. Erpenbach refused to provide “public email addresses of state employees and other public employees” to the Institute when requested. Holding: The redaction violated open records law because emails are “records” under law, and the law creates a broad presumption that such records should be disclosed. Under the balancing test, public interest in non-disclosure did not outweigh public interest in disclosure.

25. Voice of Wisconsin Rapids, LLC v. Wisconsin Rapids Public School District 2015 WI App --, 2015 WL 3495545 The newspaper filed a petition against the district under public records law, seeking access to all district records involving a district investigation into allegations of impropriety of a school athletic program. The district withheld the requested documents, partially on the basis that some of the requested documents did not qualify as “records” under Wis. Stat. § 19.32(2) because they are the type of “notes” that are excluded from the definition of “record.” Holding: The sealed record containing the documents were clearly “notes” because they were mostly handwritten, barely legible at times, included copies of post-it notes and telephone message slips, and reflected hurried, fragmentary, informal writing. Witness testimony talked about the creation of these documents as a note- taking process. All the withheld documents are “notes” under Wis. Stat. § 19.32(2) The attorney general opinion, as construed in light of the language of Wis. Sat. § 19.32(2), was a correct interpretation of the personal use exception. While Fox post-dated the major statutory revision of the public records law, the supreme court did not intend in Fox to adopt the quoted language from International Union as gloss on the personal use exception in Wis. Stat. § 19.32(2).

26. State ex rel. Ardell v. Milwaukee Board of School Directors 2014 WI App 66, 354 Wis. 2d 471, 849 N.W.2d 894 Ardell made a public records request under Wis. Stat. § 19.35 for the record of sick days or missed days of a public school employee, notes or disciplinary actions for that same employee, and investigations regarding that employee. MBSD used the public records balancing test to deny Ardell’s request based on Ardell’s domestic abuse injunction against the subject employee. Holding: Using the balancing test, public policy reasons in protecting the MBSD employee’s safety and wellbeing favored non-disclosure over disclosure in light of Ardell’s violent history with the employee and intent to harass the employee.

27. Journal Times v. City of Racine Board of Police & Fire Comm’rs 2014 WI App 67, 354 Wis. 2d 591, 849 N.W.2d 888, review granted The City of Racine Board of Police and Fire Commissioners had a closed meeting about selecting a new police chief. The Journal Times filed an open records request for the motions and roll call votes from the meeting. The Commission denied the request and released the responsive information via email 6 days after the action was filed. 2 months after releasing the responsive information, the Commission asserted that no responsive record existed at the time of the Journal’s request. Holding: The case was remanded to trial to determine if filing of a lawsuit was a cause of the March 22 nd release of information, and if so, to determine attorney fees and costs. The Commission was estopped from arguing a record of the vote did not exist.

28. Wisconsin Profession Police Ass’n v. Wisconsin Counties Ass’n 2014 WI App 106, 357 Wis. 2d 687, 855 N.W.2d 715 The Police Association submitted to the Counties Association 2 requests for records pursuant to the public records law. The Counties Association denied these requests, claiming the public records law “does not apply to the Wisconsin Counties Association.” Holding: The dictionary definition of “corporation” and the Beaver Dam court’s application of the totality of circumstances test did not lend support to the fact that the Counties Association was not a corporation under Wisconsin law. Because the Counties Association was not an “authority” by virtue of being a “quasi- government corporation” under Wis. Stat. § 19.32(1), the public records law did not apply.

29. Lakeland Times v. Lakeland Union High School 2014 WI App 110, 357 Wis. 2d 722, 855 N.W.2d 904 The Lakeland Times sought a record used by Lakeland Union High School Board of Review members while hiring a new basketball coach. Lakeland Times believed the record contained fabricated or selectively edited comments and sought discovery. Holding: Summary judgment was appropriate because the complaint’s allegations established all elements of LUHS’s Wis. Stat. § 19.36(1)(d) defense An authority is prohibited from releasing information “relating to one or more specific employees that is used... for staff management planning.” The circuit court erroneously determined that genuine issues of material fact existed as to whether the record was an honest representation of the potential basketball coach hiree’s former employees’ comments. Lakeland Times was not entitled to discovery.

30. Board of Review/Property Taxation

32. Summary of Board of Review/Property Taxation Sausen v. Black Creek: assessor classifies as “productive forest land” vs. property owner’s “undeveloped land.” assessor wins Northbrook v. Niagra: excessive assessment claim properly dismissed as Northbrook did not previously object 3301 Bay Road v. Delavan: when town violates uniformity tax the court is left to come up with an equitable result CED Properties v. Oshkosh: corner lot is given 2 assessments; landowner appeals assessment but did not recognize there were 2 assessments on his one parcel; city’s motion to dismiss the non- referenced assessment denied West Capitol v. Sister Bay: assessor wins property owner’s “undeveloped land” argument; if excessive assessment the court should order reassessment unless 1) in parties best interests to do so 2) ct is able to determine amount of unlawful tax with reasonable certainty Bentivenga v. Delavan: “fee in lieu of room tax” on rooms not rented to public is an unlawful general tax

33. Walgreen v Oshkosh: when you have to comply with 48 hour notice requirement – Duesterbeck controls Walgreen v. Oshkosh: we followed Supreme’s Madison Walgreen’s case – have to value the property not the contract covering the property Yankee Hill v. Mil.: to recover an illegal assessment/tax the notice of claim, request for refund notices not required Hirschberg Trust v. Mil.: “mass appraisal” – even tho significant contrary evidence to valuation existed the presumption of accuracy wins Lands’ End v. Dodgeville: serial litigation; has all the issues and more

34. Collison v. Mil.: even tho property on City’s “do not acquire” list its valuation of $32,900 upheld *** if fight is over amount of valuation or classification then presumption of accuracy/correctness follows

35. Sausen v. Town of Black Creek Board of Review 2014 WI 9; 352 Wis. 2d 576, 843 N.W.2d 39 Town assessor valued Sausen’s property at $27,500 and classified it as “productive forest land.” Sausen argued the classification should have been “undeveloped land.” The Board of Review upheld the town assessor’s classification. Holding: The Board’s determination to adopt the town assessor’s classification of the property was supported by a reasonable view of the evidence. Sausen failed to meet his burden to justify overturning the assessment under Wis. Stat. § 70.47.

36. Northbrook Wisconsin, LLC v. City of Niagara 2014 WI App 22, 352 Wis. 2d 657, 843 N.W.2d 851 Northbrook owned a hydroelectric plant and received notice of the property’s City assessment in June 2010 for $15,930,700. Northbrook negotiated a reduced assessment. In 2011, Northbrook did not receive notice of the 2011 assessment because of Wis. Stat. § 74.30(4)(a)’s requirement for notice only when changes were made from the previous year and the assessment did not change from 2010 to 2011. Holding: A notice of assessment was not required under Wis. Stat. § 74.30(4)(a), therefore the exception that a taxpayer does not need to object before the Board of Review when the taxing authority failed to provided the taxpayer with required notice did not apply. The exception that a taxpayer may file a claim for excessive assessment without first objecting before the BOR does not apply when the taxpayer has acquiesced to that same assessment the year before. Northbrook’s due process rights were not violated because Northbrook should have known of the assessment based on its failure to receive a notice of the 2011 assessment; Northbrook should have known that the 2011 assessment would be unchanged from the 2010 assessment.

37. 3301 Bay Rd. LLC v. Town of Delavan 2014 WI App 18, 352 Wis. 2d 721, 845 N.W.2d 666 The Town of Delavan over-assessed more than 50 lakefront properties while under- assessing numerous “off-lake” properties, violating Wis. Stat. § 70.32 and the constitutional tax uniformity mandate. The lakefront property owners sued to have their properties assessed for 45% below the fair market value – the rate of the “off-lake” properties. Holding: The circuit court did not erroneously exercise its discretion in fashioning a fair remedy for the uniformity violation and in not awarding the 45% reduction in assessment to the lakefront property owners. The lakefront property owners could collect expert witness fees in the same way they would collect expert witness fees if they had each filed separated actions. However, a limitation for the property owners’ ability to collect expert witness fees existed because an excessive assessment claim is a “special proceeding.”

38. CED Props. v. City of Oshkosh 2014 WI 10, 352 Wis. 2d 613, 843 N.W.2d 382 The City issued 2 separate special assessments against CED in accordance with it usual practice of issuing a separate special assessment for each street abutting a property. CED asserted that the City only issued a single assessment when it adopted the Final Resolution 10-227. The City argued CED did not meet notice requirements with its complaint that only referenced that it was challenging one assessment. Holding: The City issued 2 separate special assessments against CED, however CED’s original complaint provided the City with reasonable and sufficient notice that CED intended to appeal the entirety of the special assessments levied against the property.

39. West Capitol, Inc. v. Village of Sister Bay 2014 WI App 52, 354 Wis. 2d 130, 848 N.W.2d 875 West Capitol had property in Sister Bay along the Green Bay shoreline. In 2008, the Village assessed West Capitol’s property at $4,575,000. West Capitol objected to the 2009 assessment and appealed to the Village’s Board of Review, which reduced the assessment to $4,487,500. West Capitol filed an excessive assessment claim against the Village. Holding: The circuit court property determined that West Capitol’s property did not meet the statutory definition of “undeveloped land.” Additionally, the circuit court properly rejected the valuation proposed by West Capitol’s appraiser. The circuit court erroneously exercised its discretion by providing judgment without ordering a reassessment.

40. Bentivenga v. City of Delavan 2014 WI App 118, 358 Wis. 2d 610, 856 N.W.2d 546 Delevan Resort Holdings and the City entered into an agreement in May 2005 to develop the Lodges at Lake Lawn Resort Condominium. The developer agreed that a rental fee would be imposed for all units that did not want to rent to the public, which would be paid to the City “in lieu of the room tax which the City would have otherwise received from rental of such units” to the public. A condominium declaration recorded these changes in January 2006, saying that the City could collect unpaid amounts from either the Owners or the Association. The Owners each had notice of the declaration before closing on purchase of the condominium units. Bentivenga chose not to rent to the public and paid the fee, but filed suit asking for declaratory judgment that the fee was an illegal tax. Holding: The City’s “fee in lieu of room tax” was a tax and revenue generator because it was purely collected for general governmental revenue and designed to supplant taxes the City could otherwise lawfully collect.

41. Walgreen Co. v. City of Oshkosh 2014 WI App 54, 354 Wis. 2d 17, 848 N.W.2d 314 Walgreen owned 2 stores in the City of Oshkosh and contested the City’s assessments of the properties as excessive each year since 2007. Walgreen filed excessive assessment claims with the City, which did not give relief to Walgreen for its 2010 assessments. The record was silent as to the current status or resolution of the 2010 objections. The 2011 assessments were not objected to by Walgreen within the 48-hour notice as required by Wis. Stat. § 70.47(a) and the Board refused to hear Walgreen’s objections. Holding: Under Duesterbeck, a property owner does not need to comply with § 70.47(7)’s objection requirements (1) when a procedurally correct § 70.47(7) objection was filed the previous year, (2) when the assessment is unchanged, and (3) when the prior year’s objection is unresolved as of the BOR’s first meeting. The court reversed and remanded to resolve issues of material fact regarding status of the 2010 assessment as of the date of the BOR meeting.

42. Walgreen Co. v. City of Oshkosh 2015 WI App 13, 359 Wis. 2d 675, 859 N.W.2d 628 Walgreen has 2 stores in the City of Oshkosh and contested the City’s assessments of the properties as excessive in 2009, which was reduced by the City. This assessment remained the same for the 2010 assessment. Walgreen challenged both the 2009 and 2010 assessments for being excessive. Holding: The circuit court properly found that the City’s assessments were not correct because they relied on above-market sales prices and contract rents and did not comply with application law. The circuit court did not err in rejecting the City’s highest and best use for the properties, which required valuation of Walgreen’s business concern and its real property in contravention of Walgreen/Madison. The circuit court did not err in reaching its valuation of the properties.

43. Yankee Hill Housing Partners v. City of Milwaukee 2014 WI App 110, 357 Wis. 2d 722, 855 N.W.2d 699 Yankee Hill paid more than $196,000 in BID special assessment from 2005-2011. The City of Milwaukee added the BID assessments to Yankee Hill’s property tax bills during these years. Yankee Hill discovered the BID’s special assessments it paid for were contrary to Wis. Stat. § 66.1109(5)(a) and requested a refund. The City rejected Yankee Hill’s request because it thought special assessment challenges needed to be brought by January 31 st of the payable tax year and Yankee Hill failed to do so. Holding: Neither Wis. Stat. § 893.80(1d) or any statute of limitations barred Yankee Hill’s claim. Additionally, it was undisputed that Yankee Hill was exclusively a residential property charged a “business improvement district” special assessment contrary to Wis. Stat. § 66.1109(5)(a). Therefore, the court reversed and granted summary judgment to Yankee Hill instead.

44. Joseph Hirschberg Revocable Living Trust v. City of Milwaukee 2014 WI App 91, 356 Wis. 2d 730, 855 N.W.2d 699 Hirschberg owned a multi-unit apartment building that the City of Milwaukee assessed and placed on its assessment roll. The City valued the property via a mass appraisal technique. Hirschberg filed excessive assessment claims under Wis. Stat. § 74.34 for taxes paid on the property from 2007-2014, hiring his own appraiser to value the property via a different method. Holding: The circuit court applied Wisconsin property assessment law correctly, which is also supported by the case’s record. The presumption of accuracy of the assessments was not overcome by significant contrary evidence in this case.

45. Lands’ End, Inc. v. City of Dodgeville 2014 WI App 71, 354 Wis. 2d 623, 848 N.W.2d 904 Lands’ End challenged the City’s 2006 assessment of its property in the City of Dodgeville, and a court set the fair market value for the property at $25,000,000. The City’s 2008 assessment was based on this 2006 court-determined assessment. Lands’ End challenged the City’s 2007 – 2012 assessments of its property. Holding: Lands’ End was entitled to summary judgment before trial as to the 2007 and 2008 assessments because issue preclusion applied, binding the parties to the 2006 fair market value. Issue preclusion did not apply to the 2010 assessment; the circuit court property weighed the competing testimony in adopting the City appraiser’s values. The circuit court lacked discretion to deny Lands’ End’s request for statutory interest as to the 2007 property tax refund.

46. State ex rel. Collison v. City of Milwaukee Bd. of Review 2014 WI App 110, 357 Wis. 2d 721, 855 N.W.2d 903 In January 2012, Collison’s property was assessed at $32,900. Collison timely filed a formal objection stating the market value of the property was zero because the property was part of Milwaukee’s “do not acquire” list under environmental law. Holding: The assessment of Collison’s property did factor the possible contamination of the property into its assessment, therefore Wis. Stat. § 70.32 was not violated. Collison did not meet his burden in showing why his method of valuation was more reliable or accurate than the City’s appraiser’s value. The Board rationally concluded the assessor’s appraisal was accurate because there was no unimpeached or unconverted evidence to support Collison’s claim.

47. Zoning

49. Summary of Zoning Case Law Last 2 Years Heef v. Cedarburg: VRBO rentals – cannot prevent unless your code expressly does not allow these short- term rentals Vilas Cnty v. Accola: VRBO rental – example where zoning ordinance expressly prevents the type of rental in Heef. Oneida 7 v. Green Bay: City gave CUP for incinerator and then after public outcry rescinded CUP based upon “misrepresentation.” Ct. App reversed – if you are going to call someone a liar you need to say what the lie was. Sup. Ct affirmed Ct of Apps on slightly different (unclear) grounds

50. Lake Delavan v. Delavan: extraterritorial zoning; city cannot use “land use” for approval/denial of plat per §236.45(3)(b). Discusses the history of plat approval vs. extraterritorial zoning via Boucher –Wood - §236.45(3)(b) Walworth Cnty v. West Rod: proof of nonconforming use – in this case West Rod did not prove that a marina had been an active and actual use on a more than occasional basis Hegwood v. Eagle: County vs. Town zoning approval; County gave approval for pergola and outdoor fireplace within setback; Town denied variance under their permit – who is the gorilla? The County as its Shoreland Ord. trumps the Town who gets their authority to zone from the county

51. O’Connor v. Buffalo Cnty: R&J sought CUP for frac mining operation, 1 st time denied, applied again with some changes and approved. O’Connor (opposed to the operation) brings cert. action saying claim preclusion and not reasonable. Ct found Bd’s interpretation of its ordinance reasonable and that claim preclusion did not apply.

52. HEEF Realty & Investments, LLP v. City of Cedarburg Bd. Of Appeals 2015 WI App 23, 361 Wis. 2d 185, 861 N.W.2d 797 HEEF Realty and Sandra Desjardin purchased homes to use for short-term rental and eventual retirement. Each owner started renting out their purchased home in 2012. Each owner also received one or multiple notices from the City shortly after rental began that their property use violated City Ordinance 13-1-46. The owners appealed the citations. Holding: Similar to Harding, the Ordinance did not require occupancy over a period of time, meaning time/occupancy restrictions or requirements could not be used in the zoning scheme. The Board did not act according to law because it interpreted the Ordinance to preclude short-term rental of a single-family dwelling in a single-family residential district even though the Ordinance did not clearly and unambiguously prohibit this use.

53. Vilas Cnty. v. Accola 2015 Wisc. App. LEXIS 354 The Accolas purchased a home that was subject to the County’s general zoning ordinances; the property was located in the R-1 zoning district. Section 4.1 provided a list of permitted uses for “low density residential areas.” The Accolas began advertising and renting out their home. The County notified the Accolas that single-family residences in the R-1 district could not be rented for periods of less than 1 month because this otherwise constituted “transient lodging.” In response to the County, the Accolas created the corporation A Better Way to Live and allowed people to stay at the home for period of less than 1 month for “donations” to the corporation. Holding: When reading Section 4.1 and 4.2 together, the phrase “rental of residential dwelling unit” must be read in the context of the definition of transient lodging in Section 4.2(A), which contained a one-month time limitation. HEEF was distinguishable from this case, therefore the court was not required to hold that the ordinance permitted the Accolas to rent the house for period of less than 1 month.

54. Oneida Seven Generations Corp. v. City of Green Bay 2015 WI 50, __ Wis. 2d __, __ N.W.2d __ Oneida Seven Generations Corporation sought a conditional use permit to install a renewable energy facility in the City of Green Bay. Although the City initially voted to grant the permit, it subsequently voted to rescind the conditional use permit on the basis that it was obtained through misrepresentation. Holding: The City’s decision to rescind the conditional use permit was not based on substantial evidence when considered in the context of the evidence presented. The City could not have reasonably concluded that the statements by Oneida Seven's representative to the City government about the proposed facility's emissions and hazardous materials, its stacks, and its technology were misrepresentations.

55. Lake Delavan Prop. Co., LLC v. City of Delavan 2014 WI App 35, 353 Wis. 2d 173, 844 N.W.2d 632 Lake Delavan Property Co. purchased land zoned as residential land in the Town of Delavan in 2004 with the intention of building a subdivision consisting of around 600 single family homes. The land in question was in the Town, but was also within the City’s extraterritorial plat approval jurisdiction under Wis. Stat. § 236.02(5) and § 62.05(1)(d). The property was within the planned sanitary sewer service as was designated as a “traditional neighborhood” in the City’s 1999 Comprehensive Master Plan. On February 8, 2011, the City amended its subdivision ordinance to restrict land division within its extraterritorial jurisdiction to a density of no more than thirty-five acres of land and a minimum lot size of one acre. The City denied the Company’s preliminary subdivision plat based on this new ordinance. Holding: A city may not use its extraterritorial plat approval authority to impose land use regulation that should have been done in cooperation with neighboring towns through extraterritorial zoning. Because the City’s ordinance was a regulation of land use and not a mere density requirement in a subdivision regulation, the City acted outside of its jurisdiction by using the extraterritorial plat approval power to deny a proposed plat based on land use.

56. County of Walworth v. West Rod Cottage Indus. 2015 WI App 20, 360 Wis. 2d 491, 2015 Wisc. App. LEXIS 21 Fred’s Tap was located in Walworth County and had been continuously operating since at least 1961 when Fred Meyer bought the property. The property consisted of two divided parcels – the “tavern” and “lake” parcels. Both parcels had areas to moor boats. Walworth County enacted its shoreland zoning ordinance in 1971 and zoned the “tavern” parcel as a “Waterfront business district” allowed to rent boats and act as a “boat livery” for 10 or fewer boats. The “lake” parcel was zoned as a “lowland resource conservation district” that permitted “boating,” but prohibited marinas/boat liveries. In 2012, the County issued a citation to the owner of Fred’s Tap for "[o]perating a boat marina/access site in the C-4 zone district" in violation of § 74-179 of the Walworth County shoreland zoning ordinance. Holding: The County met its burden to show that Fred’s Tap was using the property in 2011 to rent boat slips in violation of the shoreland ordinance. West Rod did not meet its burden to show that Fred’s Tap had an active and actual boat slip rental/marina operation before the County’s adoption of the shoreland zoning ordinance or that it actively continued such an operation as more than occasional. A valid nonconforming use as to the rental of boat slips did not exist.

57. Hegwood v. Town of Eagle Zoning Board of Appeals 2013 WI App 118, 351 Wis. 2d 196, 839 N.W.2d 111 Hegwood owned shoreline property in the Town of Eagle. He build an outdoor fireplace and pergola on his property, which was located fourteen and eight feet from the lot line. After the structures were built, Hegwood sought variances from the county from its twenty- foot setback requirement provided in the Waukesha County Shoreland and Floodland Ordinance. The county approved the pergola and fireplace. Hegwood applied to the Town for variances from its ordinance relating to its twenty-foot setback requirement. The Town Zoning Board of Appeals denied his application after a hearing. Holding: Hegwood’s property was subject to only the county’s shoreland zoning ordinance.

58. O’Connor v. Buffalo Cnty. Bd. Of Adjustment 2014 WI App 60, 354 Wis. 2d 231, 847 N.W.2d 881 R&J applied to Buffalo County for a CUP, seeking permission to establish a “frac sand mining operation” on property zoned agricultural. After 2 public meetings, the Board denied the application based on its concern that the large number of trucks leaving the mine site each day would decrease traffic safety on Highway 88. R&J submitted a second CUP application identical to the first application, except that it increased the proposed number of trucks leaving the site and the number of hauling days. The Board granted R&J’s application subject to forty-three conditions. O’Connor, one of the citizens who opposed R&J’s application, sought certiorari review of the decision to grant R&J’s application. Holding: O’Connor failed to show that the Board’s interpretation of the Buffalo County zoning ordinance was unreasonable. The Board had a reasonable interpretation of the ordinance’s text, therefore the court deferred to the Board’s interpretation. The Board’s interpretation was consistent with the intent, history, and purpose of the ordinance. Claim preclusion did not bar the Board from considering R&J’s second application This conclusion was supported by the existence of local rules prohibiting successive applications in other jurisdictions and lack of these rules in Buffalo County O’Connor did not meet his burden to overcome the presumption of correctness by showing that the Board acted unreasonably, or outside of its jurisdiction.

59. Federal/Other

61. Markadonatos v. Village of Woodridge 739 F.3d 984 (7 th Cir. 2014) A village's booking fee did not violate the procedural or substantive due process rights of a for-cause arrestee who was later adjudicated not guilty because: (i) there was no risk of erroneous deprivation; (ii) the village had a legitimate government interest in collecting the fee from such arrestees; and (iii) the village had a rational basis for collecting the fee.

62. Annex Books, Inc. v. City of Indianapolis 740 F.3d 1136 (7 th Cir. 2014) The city's requirement that adult bookstores be closed daily from midnight to 10am and all day Sunday violated the First Amendment because the regulation took the form of a closure, rather than an attempt to curb harmful secondary effects.

63. Ballard v. Chicago Park District 741 F.3d 838 (7 th Cir. 2014) An employee of the park district was entitled to FMLA leave to accompany her terminally ill mother on a trip to Las Vegas because she did "care for" her mother during that trip, and the relevant provision of FMLA does not require that the care be related to an ongoing medical treatment.

64. Dodge Cnty. Prof’l Employees Local 1323-A v. Dodge Cnty. 2014 WI App 8 A county employee was entitled under Wis. Stat. section 66.0509(1)(m) to submit a grievance concerning her termination from employment even though the county’s policies and procedures did not classify her dismissal as a “termination.”

65. Town of Greece v. Galloway 134 S.Ct. 1811 (2014) Although predominantly Christian in nature, a prayer to open town meetings did not violate the Establishment Clause of the First Amendment because there was no indication that the town’s prayer program was an attempt to exclude or coerce non- believers.

66. Lane v. Franks 134 S.Ct. 2369 (2014) Public employee’s sworn testimony is outside the scope of his ordinary duties and is entitled to First Amendment protection because sworn testimony in judicial proceedings is a quintessential example of citizen speech for the simple reason that anyone who testifies in court bears an obligation, to the court and society at large, to tell the truth. That obligation is distinct and independent from any separate obligations a testifying public employee might have to his employer.

67. Riley v. California 134 S.Ct. 2473 (2014) Warrantless searches of cell phone data incident to arrest violated the Fourth Amendment because such searches are unreasonable.

68. Kvapil v. Chippewa County 752 F.3d 708 (7 th Cir. 2014) A county did not violate the due-process rights of a seasonal employee when it terminated him without notice or a hearing because he did not have a protected property interest in his employment.

69. Madison Teachers Inc. v. Walker 2014 WI 99 Legislation, 2011 Wisconsin Act 10, which prohibits general employees (as opposed to public-safety employees) from collectively bargaining on issues other than base wages, prohibits municipal employers from deducting labor organization dues from paychecks of general employees, imposes annual recertification requirements, and prohibits fair- share agreements requiring nonrepresented general employees to make contributions to labor organizations does not violate the constitutional associational and equal protection rights of the employees they represent nor the home rule amendment to the Wisconsin Constitution or the constitutionally protected right of parties to contract with each other.

70. League of Women Voters v. Walker 2014 WI 97 The voter identification process set forth in 2011 Wisconsin Act 23 does not violate article III of the Wisconsin Constitution in that Act 23 imposes no additional elector qualifications; does not conflict with the voter registration provisions of article III, section 2 of the Wisconsin Constitution; and is reasonable.

71. Milwaukee Branch of the NAACP v. Walker 2014 WI 98 The burdens and inconveniences imposed by 2011 Wisconsin Act 23’s photo ID requirement are constitutional; voter identification cards must be issued without requiring documents for which an elector must pay a fee.

72. State v. Dumstrey 2015 WI App 5, 359 Wis. 2d 624, review granted Dumstrey claimed his Fourth Amendment rights were violated when an off-duty officer who pursued him in traffic followed him into the parking garage of his apartment complex and blocked the garage door so that on-duty officers could enter and arrest him. The court of appeals held that the warrantless and nonconsensual entry into Dumstrey's apartment complex parking garage did not violate Dumstrey's Fourth Amendment right to be free from unreasonable search and seizure because the area was not curtilage of Dumstrey's apartment home. It was not an area in which he had a reasonable expectation of privacy.

73. Burlington Graphic Sys., Inc. v. Dep't of Workforce Dev. 2015 WI App 11, 359 Wis. 2d 647 Employer sought review of DWD administrative law judge’s decision that it violated the state Family and Medical Leave Act (FMLA) when it fired an employee, an undocumented worker, after she took medical leave from work. The court of appeals held that as a matter of first impression, employer violated FMLA when it discharged employee for missing at least one day of work due to medical leave for a serious health condition, even though she could have been discharged due to her undocumented status, and the ALJ did not erroneously exercise its discretion in ordering employer to pay employee's attorney fees, even though ALJ did not award back pay.

74. Wisconsin Federation of Nurses and Health Professionals v. Milwaukee County 2015 WI 12 Plaintiffs claimed a vested contract right to reimbursement of Medicare Part B premiums upon retirement, even though they had not yet retired. The Wisconsin Supreme Court concluded that Milwaukee County did not abrogate a vested contract right when it prospectively modified a health insurance benefit it offered for employees who had not yet retired. The court held that under the contract, the County employees have a vested contract right to Medicare Part B premium reimbursement when they fulfill all three criteria for its payment: (1) reaching retirement age; (2) providing 15 or more years of credited county service; and (3) retiring before the dates established by Milwaukee County. The court held that employees who do not meet all three criteria have not fulfilled the requirements necessary to establish a vested contract right to reimbursement.

75. Monreal v. City of New Berlin 2015 WI App 24, 361 Wis. 2d 172 Retired city police officer did not have a vested right, under prior collective bargaining agreement in place at retirement, to have the city reimburse him for deductibles incurred under city health insurance plan, and thus city could change to a high- deductible plan and cease reimbursing officer for deductibles; the officer had a vested right to participate in a health plan offered by the city for the rest of his life, but the agreement to reimburse for deductibles lasted only until the end of the agreement in effect when officer retired.

76. Milwaukee City Housing Auth. v. Cobb 2015 WI 27 Federal law preempts the right-to-remedy provision of Wis. Stat. § 704.17(2)(b) when a public housing tenant is evicted for engaging in “drug-related criminal activity” within the meaning of 42 U.S.C. § 1437d(l). City housing authority was not required to give tenant an opportunity to cure before evicting tenant for using marijuana inside federally- subsidized apartment; any right to cure past illegal drug activity was counter to Congress' goal of providing drug-free public housing, and any right to cure past illegal drug activity was in conflict with Congress' method of achieving that goal by allowing eviction of tenants who engaged in drug-related criminal activity.

77. In re Town of Brookfield 2015 WI App 3, 359 Wis. 2d 541, 859 N.W.2d 115 Petition for incorporation, seeking to incorporate portions of town and adjacent town to create municipal village, met four-square-mile minimum area requirement for incorporating a village, even though there was no boundary agreement joining territory from the two towns; territory sought to be incorporated consisted of more than four square miles, and there was no language in incorporation statutory scheme requiring boundary agreements as prerequisite to joining of territory from two towns for purpose of incorporating as a village.