Eminent-domain dispute centers on deadline to contest towns’ local highway projects

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The clock is ticking … both for the Wisconsin Supreme Court and for private citizens’ attempts to meet the statutory deadline for challenging changes that towns make to local highways.

The Wisconsin Supreme Court will weigh in on a dispute stemming from a highway project that rebuilt the intersection of Rock-Walworth County Line Road and County Road M. The work, which took place at the border of the towns of Johnstown and Richmond, started after being approved by the Rock County Board of Supervisors in 2012 and was completed in 2014.

Only months later did the towns pass resolutions and so-called highway orders approving the project.

Margaret Pulera, a resident of Darien, became concerned that the new configuration was unsafe. She accused the towns of approving the highway changes retroactively and asked for a circuit court to review local officials’ actions.

Yet, despite the accusation, the dispute has never got to the question of whether the towns had followed proper procedures. Rather, the arguments have mostly been about whether Pulera had submitted a petition for certiorari soon enough to meet the statutory deadline for such filings.

The relevant statute, Wis. Stat. 82.15, allows someone who is aggrieved by either the issuance of a highway order or the refusal of one to seek judicial review under separate state statutes dealing with municipal administrative procedures. Those separate statutes, contained in Wis. Stat. 68.12, require a certiorari petition to be filed within 30 days of the receipt of a final determination.

It’s unusual for town highway orders to be challenged, said Erik Olsen, a Madison lawyer who mainly represents landowners in eminent-domain cases. Olsen has worked on a case similar to Pulera’s, but it never got into questions over whether a petition had been filed in a timely manner.

The dispute in that case was instead over whether a town had significantly changed a highway order after the local board had voted on it.

“The reality is that often they may at least clean things up a bit after they vote,” he said.

Pulera’s case has instead revealed ambiguity in Wis. Stat. 82.12. In particular, it has shown that the statute does not clearly define when the clock starts running for citizens who want to challenge a town’s decision to change highway plans.

The statute appears to be open to more than one interpretation. A Rock County judge, for instance, dismissed the petition before Pulera filed in Rock County after finding that she had not filed it within 30 days of receiving copies of the highway orders.

State law requires the public to be told of highway orders both through notifications published in local newspapers and through certified letters sent to property owners whose land abuts a particular project. Pulera received a letter informing her of the nearby highway work but waited two months to file her challenge.

Rather than arguing that deadline clock began ticking when she received the certified letter, Pulera said it had actually started once the order had been recorded at the local register of deeds. The court, though, rejected the argument.

The judge overseeing the case reasoned that an interpretation of that sort would be particularly problematic at times when a town had decided to not issue a highway order. Since such decisions, unlike approvals of highway orders, would not be recorded at the register of deeds, there would be no starting point for legal challenges.

Pulera also filed an identical case in Walworth County. This time, the Walworth County judge dismissed her challenge after finding that she had not filed her petition within 30 days of when the towns voted to make the change to the highway. The Walworth County court separately rejected the conclusion reached in Rock County, arguing that it would mean that petitioners could file challenges at different times depending on when they had received notice of a particular highway order.

On appeal, Pulera continued to argue pro se that she had 30 days from when the highway order she is challenging was entered at the register of deeds.

Pulera declined to comment for this story.

The towns, on the other hand, contended that the best way to interpret the statute was that the 30 days started from the day that local officials had approved the highway changes. They argued that such an interpretation would provide ample notice to anyone who might be opposed to a particular action.

The Wisconsin Supreme Court has noted that the separate statutes dealing with highway orders and municipal administrative procedures are not clear when read together. But it has never decided how they ought to be interpreted.

In the high court’s decision in Dawson v. Town of Jackson, Justice David Prosser, writing for the majority, noted that there are two possible readings. One would have it that the clock starts running when a town issues a highway order; the other that it begins when someone petitioning a court for a highway order receives a copy of the town’s decision.

Recognizing this ambiguity, the Court of Appeals, upon taking up Pulera’s dispute, has decided to consolidate her separate cases in Walworth and Rock counties and has asked the Supreme Court to step in and settle the matter.

“Although normally the goal of statutory interpretation is to discern the intent of the Legislature, in this case the language of the relevant certiorari statute has so little connection to the highway order process, and is so lacking in language that provides useful guidance that it is difficult to believe the Legislature held any intent on this question at all,” wrote the Court of Appeals.

The Supreme Court agreed in December to take the case, but exactly when it will hear arguments or issue a ruling has not been decided.

Oral arguments had been scheduled for October but have been delayed because Gov. Scott Walker recently appointed Pulera’s attorney, Dan Kelly, to the high court. Kelly had been providing Pulera with pro bono representation.

Pulera is now being represented by Sarah Huck and Malinda Eskra, two lawyers at the Milwaukee-based firm Reinhart Boerner Van Deuren. The towns are being represented by Sara Gehrig and David Moore, lawyers at Janesville-based Nowlan & Mouat. No new date for oral arguments has been scheduled and the case remains in briefing.

Olsen said he is curious to see how the court will rule in Pulera’s case, especially since Kelly will have to recuse himself and Justice David Prosser, who typically votes in favor of landowner rights, is no longer on the court.

“There’s a long standing rule in eminent-domain law that the eminent-domain statutes are interpreted always in favor of the landowners because the government has, so to speak, all the power,” Olsen said.