01-1209 Town of Barton v. Division of Hearings and Appeals

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“We can see no reason why we should interpret ‘water’ in Wis. Stat. sec. 86.16(1) as being limited to ‘fresh water,’ thereby permitting one utility that transports water for the benefit of the public to use the public ways for laying its pipelines and not include another utility, simply because that utility transports ‘waste water.’ Additionally, any disruption in traffic on the highways would not be related to the type of water that the pipelines transport.”

Further, “the power to permit or to deny permission that a town is given under Wis. Stat. sec. 86.16 is not a bargaining chip that a town can use to force a city to provide services to town residents that a city would not otherwise provide under its normal procedures and policies. Accordingly, the Town had no authority to require the City to permit immediate hookup to the sewer, so long as the City’s refusal to do so did not cause an unreasonable obstruction to traffic within the Town.

“Therefore, the circuit court’s decision was not more reasonable than DHA’s which required both of the following conditions: (1) laterals to eliminate the need for future construction, if the abutting properties become eligible for city sewer, and (2) sufficient flow of traffic to ensure that police and fire trucks would not be impeded as they provide service to residents of the Town. Accordingly, we reverse the order of the circuit court and remand to reinstate DHA’s order.”

Order reversed and cause remanded with directions.

Recommended for publication in the official reports.

Dist IV, Dane County, Albert, J., Roggensack, J.

Attorneys:

For Appellant: Richard C. Yde, Madison; Mary L. Binkowski, West Bend

For Respondent: Timothy J. Andringa, Waukesha