Boardman Law Firm

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September/October 2011 Wisconsin's Concealed Carry Law: What it Means for Wisconsin Municipalities City Not Liable for Failing to Discover Improper Private Plumbing During Inspection Police Statutory Due Process Procedures Do Not Apply to FMLA Leave Trees and Ancient Fences Sufficient to Rebut Presumption of 4-Rod Wide Highway Municipal Boards Act Separately When "Acting Together" on Town Line Roads Damages for Breach of a Development Agreement Cannot Be Designated as a Tax; City's Interest in Project Subordinate to Bank's DNR Loses Land by Adverse Possession July/August 2011 New State Budget Adopts New Restrictions for Public Construction Local Ordinance Requiring Well Permit Is Preempted by State Law Supreme Court Holds DNR Has Broad Discretion When Approving New High Capacity Wells Wisconsin Supreme Court Refuses to Apply Expansive Test for Exemptions to Notice of Claim Requirements Issue of Distinction Between Zoning and General Ordinances Certified to Supreme Court New State Budget Rolls Back Last Session's Changes to the Prevailing Wage Law Budget Legislation Changes Police and Fire Employment Rules May/June 2011 Wisconsin Supreme Court Upholds Collective Bargaining Legislation Special Assessments For Improvements Addressed by Courts Courts Issue Raft Of Decisions On Condemnation Law Zoning Decisions Issued Court of Appeals Allows Disappointed Bidder to Recover Preparation Expenses March/April 2011 Dramatic Changes to Collective Bargaining Court Order Granting Variances Overturned Town Properly Vacates Unpaved Alley Court Approves Assessment of Specialized Manufacturing Plant and Rejects Claim that there is No Market for the Plant Indemnification Provision in Easement Contract Has Long Life Must Municipalities Maintain Private Streets within Condominium Developments? New Registration Requirements for Municipal Financial Advisors May Cover Municipal Board Members January/February 2011 Court of Appeals Rules Against Walker's Work Hour Reduction Municipality Is Not Proper Party in Certiorari Action for Review of Zoning Appeals Board Decision Special Circumstances Exception to Proper Service Not Applicable in Certiorari Action Against County Pro Se Party's Mistakes Required Dismissal of Lawsuit Against Municipal Utility Court of Appeals Approves City's Assessment of Properties Sold As Part of A Bulk Sale City Violated the Uniformity Clause by Reassessing Only One Property in a Terminal Complex Using the Income Approach Red Flag Rules and Municipal Utilities December 2010 CUMULATIVE TOPICAL INDEX OF ARTICLES 2009 TO 2010 CONSTRUCTION EMINENT DOMAIN EMPLOYMENT ENERGY LAND USE & ZONING LITIGATION/MUNICIPAL LIABILITY MISCELLANEOUS OPEN MEETINGS/OPEN RECORDS PROPERTY TAXATION STORMWATER SUSTAINABILITY TELECOMMUNICATIONS WATER & WASTEWATER November 2010 Eminent Domain Update Landowner Loses Two Arguments: 1) Its Land Transfer Does Not Require Publication of a New Agricultural Impact Statement; and 2) Its Self-Created Violations of County Land Use Ordinances Are Not a Defense to a Taking Highway Design Safety Challenge Does Not Stop Condemnation Plaintiff Fails in Attempt to Avoid Extension of Governmental Immunity to City's Subcontractor September/October 2010 Wisconsin Supreme Court Issues Decision on Public Records and Private Emails PSC Issues New Wind Siting Rules Court of Appeals Limits Applicability of Notice of Claim Requirements Local Ordinance Restricting Water Withdrawals Is Preempted By State Law Court of Appeals Allows Evidence of Future Contamination and Remediation Costs in Eminent Domain Cases Condemnors Not Liable for Expenses if Landowner Appeals from Agreed Price July/August 2010 Damage Caused by Construction Dewatering Not Recoverable Under an Inverse Condemnation Claim Supreme Court Applies Ministerial Duty Rather than "Known Danger" Exception to Governmental Immunity U.S. District Court Rejects City of Reedsburg Appeal on Automatic Stay Ruling Reedsburg to Receive $5.2 Million Recovery Act Grant for Expansion of Broadband Services Citizens' Ability to Challenge High Capacity Well Permits Broadened by New Court Decision PSC Gives WPL Go Ahead for Economic Development Rates Town Lacks Authority to Deny Building Permit for Pier Approved by DNR Court of Appeals Rules on Power Plant Emissions Case May/June 2010 End of Legislative Session Brings New Laws Affecting Municipalities Policy Regarding Courthouse Displays Moots Challenge to Nativity Scene Municipalities Authorized to Make Energy and Water Efficiency Loans to Residents and Businesses Petitioners May Challenge WPDES Permit's Compliance with Federal Law Medical Marijuana OK? Seventh Circuit Addresses Confidentiality of Material Produced by Attorney Investigators Deadlines Extended For Safe Drinking Water Loan Program March/April 2010 Wisconsin Attorney General Issues Informal Opinion Criticizing Use Of E-Mail Voting Joint Town Boards Act As One For Highway Decisions Trial Needed To Determine Reasonableness Of Municipal Fee Towns Must Follow Procedure to Object to Zoning Changes Zoning Variance by Stipulation Not Enforceable January/February 2010 Legislative Push for Clean Energy Jobs Act Begins Governmental Immunity Applies to Design of Storm Water Inlets Employee's Resignation Extinguishes Claim for Wrongful Termination Assessed Value Change Upheld Where Based on Factor Other Than Fair Market Value November/December 2009 Court of Appeals Decision Helps Protect Municipal Electric Service Territories Court of Appeals Whittles Away at Governmental Immunity Use Not Grandfathered When Started with Knowledge of Impending Zoning Change Church Custodian's Residence Not Entitled To Property Tax Exemption Court Upholds Assessing Specialized Manufacturing Facility Using Cost Approach September/October 2009 The Umansky Decision: The Latest Word on Governmental Immunity Under Wisconsin Law Court Upholds Agreement Waiving Right to Annexation Condemnation: Supreme Court Plugs Hole in Unit Rule Towns May Not Circumvent Temporary Extra-territorial Zoning Moratoriums by Defacto Rezoning Wind Turbine Siting Bill Awaiting Governor's Signature Court of Appeals Rules Assessment Procedures Statute Constitutional Court Affirms that Xerox Document Centres and Workcentres Are Taxable Personal Property July/August 2009 Prevailing Wage Law Requirements Substantially Extended Statute of Repose Bars Stormwater Damage Claim Based Upon City's Approval of Development More Than Ten Years State Budget Adopts Water Fees Neighboring Property Owner Owes No Duty To Prevent Stormwater From Flowing Onto Adjacent Property Court of Appeals Reaffirms Powers of Town Boards To Regulate Aspect of Land Development Through Adopted "Village Powers" Court of Appeals Strikes Down Restrictive Wind Turbine Ordinance Condemnation: No Bright-line Test for Project Influence Rule May/June 2009 Wisconsin Supreme Court to Decide Open Records Status of Personal E-mails Wisconsin Supreme Court Adopts Expansive Rules for Insurance Coverage In Asbestos Exposure Case City Actions Do Not Entitle Taxpayer to Property Tax Relief Utility'sExpress Easement Allows Construction of Additional Lines Speakers Forum Supreme Court Refuses Certification of Issues Regarding Nonconforming Use Standards Sale of Land as Part of a Complex Corporate Sale Does Not Constitute an Arm's Length Sale for Property Assessment Purposes Waukesha Asked To Pay Clean Wisconsin's Costs To Intervene In Waukesha's Water Rate Case Use of Property May Be Considered In Area Variance Application March/April 2009 State Gears Up Effort to Tap Federal Stimulus Money— Opportunities Abound for Municipal Projects in Energy Efficiency, Water Conservation, Green Development, and Other Areas American Recovery and Reinvestment Act of 2009 - COBRA Impacts Court Takes Broad View of "Known Danger" Exception to Governmental Immunity Contract for Construction of Town Fire Station Held Invalid Without Electors' Approval Speakers Forum Court Rules Assessment Procedures Statute Unconstitutional Constitutional Requirement of Uniformity in Property Taxation Applied in Challenge to Assessment of an Individual Property Anita Gallucci will be Recognized by the Wisconsin Association of PEG Channels January/February 2009 Dewatering for Construction Held To Constitute Inverse Condemnation Immunity Exception for Public Employees Given Broad Application in Pries v. McMillon Health Plan Changes Must Be in Writing Board of Commissioners of Public Lands Approves Record 34 Million Dollars in Loans in December Speakers Forum League of Wisconsin Municipalities and Alliance of Cities to Consolidate Staff League of Wisconsin Municipalities and Alliance of Cities to Consolidate Staff Smoking Ban Excluding Private, Non-Profit Clubs Survives Equal Protection Challenge Rep. Spencer Black to Chair Assembly Natural Resources Committee State and Municipalities May Not Prohibit Trains from Obstructing Roads, AG Opines Condemnation Power Cannot Be Waived or Estopped Several Recent PSC Decisions Support Water Conservation December 2008 CUMULATIVE TOPICAL INDEX OF ARTICLES 2007 TO 2008 EMINENT DOMAIN EMPLOYMENT ENERGY LAND USE & ZONING LITIGATION /MUNICIPAL LIABILITY MISCELLANEOUS OPEN MEETINGS OPEN RECORDS PROPERTY TAXATION RIGHTS-OF-WAY STORMWATER SUSTAINABILITY TELECOMMUNICATIONS WASTEWATER WATER WATER RIGHTS November 2008 Twelve Communities Added to Governor’s Energy Independence Partnership Program Supreme Court Asked To Rule on Responsibility for Stormwater Runoff Congress Approves Great Lakes Compact Condo Associations Fail to Convince Federal Court to Find A Constitutional Violation In Refusal of City to Maintain Private Streets Moody’s to Recalibrate Municipal Bond Ratings Speakers Forum September/October 2008 Closed Session Proceedings May be Subject to Discovery in Litigation County May Prohibit Construction Manager from Bidding on Construction Contract Governor’s Task Force Issues Final Report on Global Warming Strategy Owners May Not Reserve Riparian Rights When Conveying Property Public Access to Navigable Waters Not Easily Abandoned Plan Administration Tip: Take Care When Using “IRS Publications” in Administering Employee Benefits Speakers Forum July/August 2008 Open Meetings and Public Records Laws Applied to an Economic Development Corporation Towns Shut Out from Challenging Unanimous Direct Annexations Open Records Law Does Not Require Access to Municipality’s Database Assessing Walgreens v. City of Madison Supreme Court Holds Zoning District with No Permitted Uses Unconstitutional May/June 2008 Governor Signs Great Lakes Compact PSC Decision Rejects Utility Position on Utility Relocation Costs HIPAA Privacy Compliance Tips for Municipal Employer Benefit Plans Campus Bars Not Liable For Antitrust Violation In Implementing Drink Special Ban at the Behest of City Regulators Zoning of Highway Signs Not Entirely Preempted By State Law Speakers Forum March/April 2008 Status of Great Lakes Compact Legislation Uncertain Wisconsin Appeals Court Upholds Special Assessment Plan for Road Improvements Denial of Rezoning Cannot Be Based On Applicant’s Reputation History Complete Text of New Ordinances No Longer Needs to be Published in Newspaper Town-Wide Moratorium on Development for Planning Purposes Upheld No Appeal for Municipal Default Judgments Sheriff Cannot Withhold Records Merely Because They Have Been Sent to DA Condemnation: Unit Rule Held Unconstitutional as Applied January/February 2008 Wisconsin’s New Video Franchise Law Took Effect January 9th Court of Appeals Considers Prejudgment In Zoning Case Court Rebuffs Challenge To Immunity for Design of Sewer and Water Facilities Residential Property Tax Assessment Upheld Governor’s Veto Impacts Police and Fire Commission Status Marshfield First Wisconsin Municipality To Establish a Permanent Pharmaceuticals Collection Site December 2007 Wisconsin’s Cable Franchise Bill Passes the Senate Struggle Over Waste Transfer Station Siting Focuses On Village’s “Official” Zoning Map Wisconsin Court of Appeals Directs Police Department to Disclose Records of Emergency Mental Health Detention in Response to Open Records Request November 2007 Records Custodians Not Required To Produce Identical Copies of Open Records FERC WATCH Appeals Court Authorizes Public Records Custodian Denial of Overly Broad and Burdensome Records Request Wisconsin Attorney General: Federal Medical Privacy Laws Do Not Prohibit Release of Ambulance Records Garfoot Serves As A Reminder To Follow Your Own Rule September/October 2007 Municipal Liability for Failure to Provide Comparable Replacement Property Is Limited Speakers Forum Condemnation Awards Deposited With A Court May Be Transferred To Private Accounts Wisconsin Supreme Court Denies Property Tax Exemption for Leased Property August 2007 Condemnation: Supreme Court Fractures on Requirements For Taking Possession of Acquired Property Open Meetings Law Revisited DNR Urges New Berlin To Begin Negotiations To Purchase Lake Michigan Water City Cannot Indirectly Require Sewer Hook-up Under Extraterritorial Plat Review Authority By Minimum Lot Size State Supreme Court Upholds “Political Corporation” Status of Statutory Authorities and Districts July 2007 Wisconsin Supreme Court Sets Standards For Public Meeting Notices Pending Case in the Wisconsin State Supreme Court Puts Tort Claims Status of State and Local Authorities at Risk Court of Appeals Upholds Property Tax Assessment of Walgreen Buildings Court Of Appeals Enforces Sewer And Water Connection Fees, Despite PSC’s Claims For Primary Jurisdiction Service of Notice of Disallowance On Claimant’s Daughter Not Sufficient To Trigger 6-month Limitation On Claim Conservation Water Rates Approved for Waukesh May/June 2007 School District Required to Release Porn CD Affordable Housing Coop Denied Property Tax Exemption City of Manitowoc Challenges Wisconsin Public Service Corporation’s Policy Regarding Utility Facility Relocation Costs Proposed Constitutional Amendment Would Allow Dual Property Tax Rates for Municipal Consolidations Speakers Forum April 2007 Public Service Commission to Hear Dispute over Utility Relocation Costs Court of Appeals Decision Narrows Exception to Open Meetings Law Limits On Recovering “Litigation Expenses” In Condemnation Two Takings Cases That Challenge Airports For Generating Overflights and Noise Conditions Affecting Nearby Properties Reach Different Results Speakers’ Forum March 2007 26 Municipalities Intervene in City of Milwaukee’s Suit Against AT&T Billboards: Actual or Assessed Value Applicable to 50% Raze or Repair Rule First Town Challenge To Direct Annexation Defeated FERC Forges Ahead With Mandatory Reliability Standards February 2007 Two Cases Reaffirm State Open Meetings and Public Records Principles Disclosure of Disciplinary Investigation Records Concerned Citizens Group Denied Standing to Challenge Rezonings of Farmland Attorney General Opines that Domestic Partnership Benefits Still Valid WEPCO Enters Into Agreement To Sell Point Beach Nuclear Facility January 2007 Effect of Fear of Natural Gas Pipeline On Market Value Admissible In Condemnation For Pipeline Easement Some Practical Advice from the Court of Appeals A Content Neutral Restriction of Demonstrations On Expressway Overpasses Is Constitutional FCC Classifies Broadband Over Power Lines As “Information Service” December 2006 CUMULATIVE TOPICAL INDEX OF ARTICLES 2005 TO 2006 ELECTRIC EMINENT DOMAIN EMPLOYMENT ENVIRONMENTAL IMPACT FEES LAND USE & ZONING MISCELLANEOUS MUNICIPAL LIABILITY OPEN RECORDS/OPEN MEETINGS PROPERTY TAXATION PUBLIC CONTRACTORS REGULATION TELECOMMUNICATIONS WATER & WASTEWATER November 2006 Circuit Court Upholds Town Subdivision Moratorium Ordinance Municipal Utility Service Contracts Questioned By the PSC State Steps Up Efforts to Promote Renewable Energy Previously Reported Case on ADA Applied To Zoning Advances To En Banc 7th Circuit Decision September/October 2006 Flexible Approach to Valuing Partial Takings Effect of Severability Clauses Weakened in Unpublished Court of Appeals Decision FERC Update Supreme Court Invalidates Sewer Special Assessment Allocated on a Per Taxable Parcel Basis FCC Adopts Order on Broadband Over Power Lines Little-known Exception To Public Records Law Protects Bank Account Information August 2006 County Stuck With Closed Landfill Taken By Tax Deed Court of Appeals Denies Tax Exemption for Leased Property County Entitled To Interest On Deposit of Condemnation Award Pending Outcome of Litigation Conditional Use Permit For Wind Farm Upheld July 2006 Recent Amendment To the Impact Fee Law Raises Concern Noncompliant Retaining Wall Allowed To Stand Based, In Part, On Landowner’s Good Faith Reliance on Contractor Supreme Court Narrows First Amendment Protection of Public Employee Speech Court of Appeals Confirms That A Navigable Stream Does Not Divide A Parcel Into Two Lots Good Faith Negotiation Essential Before Condemning Property June 2006 Federal Court Upholds Local Regulation of AT&T’s Video Programming Service New Notice Requirements for Some Zoning and Plan Enactments New Limitations on Impact Fees Tips for Serving Notice of Claim Denials May 2006 Legislature Bars Use of Condemnation For Purely Economic Development New Law Increases Public Bidding Threshold A Classic “Rock and a Hard Place” Dilemma Confronts the Wisconsin Supreme Court Court of Appeals Holds PSC Can Order Municipal Utility to Convey Its Utility Property to Another Utility Speakers’ Forum Failure To Seek Certiorari Review From Zoning Board Decision Precludes Collateral Attack In Wake of PSC Report, ATC Announces Plans to Build Paddock-Rockdale Line Retroactive Application of Amendment to Impact Fee Statute April 2006 Court Rejects Assessed Value of Section 515 Subsidized Housing Project Guidance Offered on Benefit Owed to Businesses Relocated Due to Condemnation Court of Appeals Affirms County Board of Adjustment Substantial Evidence Standards Court of Appeals Enforces City Lead Abatement Order Against New Property Owner Court Rebuffs Efforts by the Attorney General to Characterize a Private Entity as Covered by the State Public Records Law March 2006 Ability To Take Possession of Condemned Property Is Thrown Into Confusion and Potential Cost Rises Dramatically County Powerless to Require Nonconforming Use to Obtain Conditional Use Permit Appeal From Condemnation Award Not Thwarted By Technical Defects In Notice Boardman Law Firm Welcomes New Municipal Special Services Paralegal February 2006 Pigeon People Lose Appeal: 7th Circuit Upholds Chicago Bird Ban 7th Circuit Upholds Local Ban on Fertilizers Containing Phosphorous Legislature Limits Municipal Power to Remove Nonconforming Signs and Billboards Zoning Board Of Appeals Statute Amended To Eliminate 4 Vote Requirement Supreme Court Rejects Speculative Evidence of Value in Condemnation Case Proper Tax Assessment Method for Billboards Certified to Supreme Court January 2006 “Life Lease” Retirement Community Not Exempt from Property Taxes Tenants Lack Standing to Challenge Municipal Water and Sewer Rates No Bad Faith in Village Policy of Returning Shoplifted Items to Store Lower Burden of Proof Now Applies in State Court Excessive Force Claims November 2005 Inclusionary Zoning Is Not Illegal Rent Control Attorneys Fees Not Available for Frivolous Prosecution of Municipal Ordinance Violation Energy Policy Act of 2005 (Mostly) Good For Public Power House Commerce Committee Releases Draft Telecom Bill October 2005 Bidding Error Ruling Could Impact Public Contracting Procedures Proposed Great Lakes Agreements Could Significantly Impact All Wisconsin Community Water Systems Retroactive Effects of the Ziervogel Variance Case Further Explained September 2005 Wisconsin Supreme Court Provides Guidance to Zoning Boards of Appeals Zoning Boards of Adjustment Regain De Novo Review Powers Internal Investigation Documents Shielded from Open Records Law Important Plan Consistency Question Almost Answered July/August 2005 The Hype Over Kelo: Have Property Rights Vanished? US Supreme Court Rules Cable Modem Service Is an Information Service County-Town Land Use Powers Considered in Two Cases Revocation of CUP Does Not Constitute A Taking Municipal Power Removed By New Minimum Wage Law A Divided 7th Circuit Federal Court Deals with Whether Fair Housing Laws Override Zoning Wisconsin Supreme Court Further Explains How Equitable Estoppel Works in the Context of Zoning Court Okays PTF-II Coal Plants Enforcement of Pre-annexation Agreement June 2005 Impact Fee Collected for “Aquatic Center” Can Pay for “Spray Ground” Court Upholds Municipal Authority to Set Minimum Wage Another Ruling on Board of Adjustment Appeals of Conditional Use Decisions Speakers’ Forum Anti-Trust Claim Against Voluntary Limits on “Drink Specials” Dismissed But on Appeal Annexation Issues Newly Addressed by Court of Appeals May 2005 50% Limit Applies to Nonconforming Properties Defined by Use Not Structure MISO Day 2 Market Launched U.S. Supreme Court Rejects Municipal Liability Under Section 1983 in Cell Tower Cases PSC Reverses Course on Kewaunee Sale U.S. Supreme Court Confirms Narrow Scope of Age Discrimination Based on Disparate Impact Speakers’ Forum April 2005 Has the Wisconsin Supreme Court Marked the End for Liability Waivers? Supreme Court Clarifies Nuisance and Immunity Rules In Dispute Over Water Main Break Denial of Rezoning Imposes Substantial Burden under RLUIPA FCC Releases Video Competition Report Speakers’ Forum March 2005 FERC Transmission Update: Day 2 Market Steams Ahead Court Upholds Arrowhead-Weston Power Line Approval Madison's Minimum Wage Ordinance In Full Swing Speakers' Forum February 2005 TABOR Returns Would Also Impact Municipal Utilities Property Tax Exemption Committee in Disarray Seventh Circuit Finds No Constitutional Violation In Sale of Religious Monument By City of LaCrosse PSC Votes to Reopen Its Kewaunee Docket January 2005 Judge Invalidates PSC’s Approval of WE’s "Power the Future" Plants Governmental Employee Held Immune from Liability for Assembly of Office Chair The Public Service Commission Of Wisconsin Approves New Wireless 911 Rules U.S. Supreme Court Preview U.S. Supreme Court to Decide Availability of Attorney’s Fees in Cell Tower Cases Milwaukee’s Lawsuit Against Lead Paint Manufacturers Allowed To Proceed December 2004 CUMULATIVE TOPICAL INDEX OF ARTICLES 2003 TO 2004 ELECTRIC Federal/Other States Wisconsin EMPLOYMENT ADA Discrimination Issues Employee Benefits ENVIRONMENTAL LAND USE & ZONING Constitutional Issues Variance Law MISCELLANEOUS MUNICIPAL BOUNDARY MUNICIPAL LIABILITY OPEN RECORDS/OPEN MEETINGS PROPERTY TAXATION REGULATION STORMWATER TELECOMMUNICATIONS WATER November 2004 Associations’ Lawsuit Against Municipal Broadband Utility Thrown Out Employment Law Tips—Job Applications and Interviewing Commission Approves WPSC Coal Plant Court Upholds City’s Right To Regulate Hours of Operation of Payday Loan Businesses October 2004 Court Rejects Property Tax Exemption Claim By Hospital Affiliates Quarry Operators Lose Appeal on Registering Property Across County Line Interesting Plan Consistency Cases Final Health Mandates “Opt-out” Regulation Issued with No Changes September 2004 Proposed Great Lakes Agreement Has Potential for Broad Impact Throughout Wisconsin A Texas Zoning Case of Transcending Interest Court Upholds Municipal Liability in Contractor Case Courts Disagree on Meaning of "Public Use" in Eminent Domain Speakers' Forum August 2004 Wisconsin Supreme Court Splits on Attorney-Client Privilege Exception to the Public Records Law Boardman Seminar on New Overtime Rules: Key Impacts on Public Employers Courts Embrace New, More Liberal Standard For Area Variances Uniform Rule Established in Tax Assessment of Federally Subsidized Housing New Case on Paying Overtime July 2004 "Comments" Agenda Item is Inadequate Descriptor for Open Meeting Purposes Board of Adjustment Has No Power to Conduct De Novo Review More Personal Liability For Public Sector Managers and Officials - ADA Retaliates Ordinary Court Procedures Satisfy "Prompt Judicial Review" Requirement for Adult Business Licensing Ordinances June 2004 New Overtime Regulations Impact Public Employers Area Variance/Use Variance Distinction Ratified by Wisconsin Supreme Court Is Your Email System Waiting To Become The Next "Government Scandal"? Court of Appeals Creates Confusion Over Whether A Zoning Appeals Board of Adjustment Has Power To Conduct De Novo Review Speakers' Forum Pewaukee Sign Ordinance Struck Down Health Savings Account Primer May 2004 U.S. Supreme Court Decides That States May Ban Municipal Telcos Lack of Evidence Dooms Exotic Dancing Ordinance Dave Penn To Retire From APPA Legislature Grants Tax Exemption for Nonprofit Housing 9th Circuit Stays Brand X Cable Modem Ruling MISO Files New Energy Market Tariff New Take on Zoning Variance Standards Announced by Wisconsin Supreme Court Court Orders Issuance of Zoning Permit Directly Under Federal ADA and Rehabilitation Acts April 2004 Legislature Throws Up Roadblocks for Municipal Telcos Equitable Defenses Available in Zoning Enforcement Cases Michael May to be New Madison City Attorney Groundwater Quantity Legislation Passes Reverse Age Discrimination not Protected Under the Age Discrimination in Employment Act March 2004 TIF Law Gets Make-Over Court Overturns Municipality's Determination of Need for Annexation Groundwater Quantity Legislation in the Works February 2004 Governor Vetoes Bill Limiting Municipal Liability For Highway Defects Court Finds Personal Liability Under ADA Speakers' Forum Manitowoc Gets Approval For New Power Plant Some Clarification Emerges on Equitable Estoppel Issues Utilities May Face Risk For Failure To Maintain Street Lights Well Established Zoning Rules Applied in Gravel Pit Case Police Allowed To Withhold Internal Investigation Reports In Open Records Request January 2004 Arrowhead-Weston Line Gets PSC Nod Speakers' Forum Two New Commissioners at the FERC No Property Tax Exemption for Nonprofit Affordable Housing Providers Land Use Day In the Supreme Court TRANSLink Suspends Development Activities Interesting Attack on a User Fee Rejected December 2003 U.S. Supreme Court to Revisit Meaning of "Prompt Judicial Review" in Adult Entertainment Licensing Ordinances Direct Legislation Case Follows the Mt. Horeb Path, While Hinting at Future Issues PSC Approves PTF-2 Coal Plants City Can Be Sued For Damage Caused By Water Main Break 7th Circuit Upholds Constitutionality of RLUIPA in Prisoner Case Senate Passes Bill Restricting Municipal Broadband Providers Oral Argument in Land Use Cases To Be Held on Same Day Speaker's Forum November 2003 Medical Clinics Denied Property Tax Exemption Speaker's Forum Supreme Court to Determine Scope of Courts' Equitable Powers In Zoning Enforcement Actions Oral Argument in Land Use Cases To Be Held on Same Day Flexible Spending Plans Now Can Reimburse for Nonprescription Drugs Ninth Circuit Affirms That Cable Modem Service Is Not A Cable Service Chicago Cannot Collect Franchise Fees on Cable Modem Service SOUL, WED May Not Intervene in Transmission Line Challenge Supreme Court to Wade into Variance Morass Again October 2003 Seventh Circuit Upholds Local Zoning Control Over Cell Towers Speaker's Forum Huge Electrical Blackout Hits Northeast U.S. New Open Records Law Limits Impact of Woznicki Case September 2003 Seventh Circuit Court of Appeals Constrains Religious Land Use Challenges to Local Zoning City of Beloit to Purchase Water System Public Assembly Permit Requirements Struck Down Wisconsin Supreme Court Decisions Reinforce Power of PFCs Bill To Create Metropolitan Service Districts To Be Proposed August 2003 Wisconsin Supreme Court Overrules Edgerton Case— Expands Possibility for Insurance Coverage From Pre-1986 Policies Direct Legislation Powers Strengthened Wisconsin Supreme Court Upholds $1.2 Million Stray Voltage Judgment DNR Orders New Mercury Rules Federal Court Upholds Ordinances Banning "Unreasonable" Noise Attorney Client Privilege Exception To The Public Records Law Explained By Court of Appeals Rearrangement of Highway Access Compensable If Done As Part of A Land Condemnation and If Substituted Access Is Unreasonable Supreme Court to Consider Municipalities' Right to Provide Telco Service July 2003 Court of Appeals Rejects Use of "Contingent" Legal Description in Incorporation Proceedings U.S. Supreme Court Declares Municipalities Subject to Treble Damages Under False Claim Act Department's Failure to Extinguish Fire Is Not Private Nuisance Wardens May Hold Keys to RLUIPA in 7th Circuit Utility Holding Company Act Upheld No Municipal Liability for Overwhelmed Storm Sewers Court of Appeals Strikes Down Village's Attempt to Repeal and Reannex Property Previously Annexed June 2003 FERC White Paper: The Long and Winding Road Continues Notice of Claim Not Required for Appeal of Condemnation Award Courts Edge Around Issue of Mandatory or Optional Status of Comprehensive Plans In 2010 Section 1983 Claim for Damages and Attorney's Fees Not Allowed for Violations of Telecommunications Act Videotape Surveillance of Employees Is a Mandatory Subject of Bargaining Judicial Give and Take On Subdivision Regulation May 2003 Gordie Boucher Case Overturned in Extraterritorial Subdivision Regulation Decision Charter Towns Bill Threatens Municipal Utilities The Bumpy Road of Regional Transmission Organizations Speaker's Forum No Liability for "Discrimination by Referendum" Appeal of Permit Denial Bars Subsequent Decision to Issue Permit WPS Files for Rate Increases FCC Confirms Wireless Carriers Have Access Rights to Utility Poles More Judicial Spins on Variance Law April 2003 Developing Public Land for Private Sale Serves Public Purpose FCC Revamps Its ILEC Network Unbundling Rules Citizen Challengers to Negotiated Annexation Lack Standing Wisconsin's "New Property" Approach to Substantive Due Process Limits Judicial Review Effect of Outagamie County Decision Still Uncertain March 2003 What Municipalities Should Know About the New PSC Right-of-Way Rule A New Constitutional Standard for Municipal Regulation of Adult Establishments? PSC Reverses Course, Approves Payments To Municipality Midwest ISO Market Redesign Proposal Proceeds Full Throttle February 2003 TRANSLink Applies To Become State's Second Independent Transmission Company Commission Approves First Phase of PTF-2 Lake District Budgets Must Comply with Municipal Standards Scope of BOA Review Determined by Ordinance, Not Statute Municipalities Must Honor "Mislabeled" Open Records Requests Village Taxpayers Lack Standing to Challenge Violation of TIF District Restrictions January 2003 WISCONSIN SUPREME COURT PREVIEW Supreme Court To Decide Whether Citizens Can Force Their Governing Body To Submit Major Public Works Projects to Referendum Supreme Court To Review Two Police and Fire Commission Cases Wisconsin Supreme Court to Consider A Utility's Liability Exposure in The Face of the Utility's Compliance with PSC Regulatory Orders Court Struggles to Define the Scope and Extent of Due Process Requirements in Land Use Regulation December 2002 CUMULATIVE TOPICAL INDEX OF ARTICLES 2001 TO 2002 ELECTRIC Federal/Other States Wisconsin EMPLOYMENT ADA Discrimination Issues Employee Benefits ENVIRONMENTAL GENERAL Legislation Litigation Open Records Regulations Miscellaneous LAND USE & ZONING RIGHT OF WAY MANAGEMENT STORMWATER TELECOMMUNICATIONS WATER November 2002 Regional Planning Commission Wins First Round Against Governor Court of Appeals Discusses Special Assessment Issues Ninth Circuit Upholds Municipal Right to Review Cable TV Transfers Second Circuit Rules White Plains' ROW Ordinance Violated 1996 Telco Act Task Force Seeks Changes to Promote Intergovernmental Cooperation New FCC Decision Limits Pole Attachment Fee Raze Order Held Valid Despite Lack of Personal Service Speakers Forum October 2002 Water Utilities Work on Proposed Groundwater Legislation Irreparable Loss of Habitability Is A Taking In Inverse Condemnation Suit New Interest in Municipal Utility Ownership Town's Power to Permit the Laying of Pipelines within Town Highways is Not a Bargaining Chip, Says Court of Appeals Check Your Forms September 2002 8th Circuit Rules States Cannot Prohibit Municipal Telcos Supreme Court to Address Municipal Liability for "Discrimination by Referendum" PFC News: Legislation Permitting Arbitration Alternative Vetoed Circuit Court Vacates Shawano's CLEC Certification FCC Rules in Rice Lake's Favor on CTC Complaint PSC Opens Proceeding on Municipal Pole Attachment Agreements State Budget Incentives for Consolidation of Municipal Services Federal Agency Again Tackles Electricity Market Issues August 2002 St. Croix County Wins Challenge To Cell Tower Denial Speakers Forum Court of Appeals Weaves Through the Thickets of Nonconforming and Conditional Uses Farmland Use Value Upheld By Supreme Court Supreme Court Holds Permit Requirement for Door-to-Door Religious Solicitors Unconstitutional Neighbors Lack Standing to Challenge Annexation and Intergovernmental Agreement Budget Repair Bill Preserves Municipal Revenue Sharing —For Now Wisconsin Supreme Court Expands Municipal Immunity FCC Seeks Rehearing of Telco-Competition Case July 2002 New Legislative Districts Released By Federal Court Alliant Energy Loses Challenge to Utility Holding Company Law Joint Legislative Council to Study Open Records Law Matthew D. Weber Joins Boardman Law Firm "Known Danger" Exception to Municipal Immunity Continues to Generate Litigation Court Dismisses Million Dollar Claim Based on Mayor's Ejection of Protester from City Council Meeting June 2002 Land Use Moratorium Upheld Against Takings Claim Commission Approves TRANSLink Application Court of Appeals Upholds Department of Commerce Comm. 83 Rules for Private Wastewater Treatment Systems U.S. Supreme Court: Non-Union Seniority System Generally Trumps Disability Accommodation Request FERC Approves Midwest ISO ROE Hike May 2002 Court Limits Fishing Expeditions Into Allegations of Bias in Zoning Decisions Court Upholds PSC CIAC Order Speaker's Forum Recent Court Decisions on the Legality of Municipal Condemnation of Property for Transfer to Other Private Owners Wisconsin Court of Appeals "Signals Disfavor" and Asks the Supreme Court to Reverse a Prior Appeals Court Land Use Ruling WEPCO Loses Stray Voltage Appeal April 2002 Municipalities Liable for Treble Damages Under False Claims Act Order 888 Upheld By U.S. Supreme Court Speaker's Forum Court of Appeals Upholds PSC Decision Denying Madison Water Utility's Request To Include Cost of Reimbursement Program for Private Lead Pipe Replacement in Water Rates Court Rejects Use of Contingent Legal Description in Incorporation Petition Legislative Update FCC Classifies Cable Modem Service as "Information Service" FERC Uphold Refunds to WEPCO Wholesale Customers March 2002 Governor's Budget Reform Bill Targets Municipalities New Bankruptcy Decision Denies Retroactive Application of Tax Roll Lien on Utility Arrearages WPL Water Rates at Issue in Beloit Wisconsin Municipals Fight Alliant Electric Rate Increase Speaker's Forum Federal Court of Appeals Rejects Takings Case for Failure To Exhaust State Remedy Fact-Finding Delegation To Germany Glimpses Possible Solutions To Current Energy Challenges February 2002 U.S. Supreme Court Issues Important Pole Attachment Decision Supreme Court Flexes Muscles in Carpal Tunnel Case Court of Appeals Upholds Annexation Decision Against Town of Windsor Federal Court of Appeals Upholds FERC RTO Policy Updated Recycling Operation Remains Legal Nonconforming Use Dismissal of $100 Million TV Tower Lawsuit Affirmed on Appeal City Potentially Liable for Razing Buildings Supreme Court Hears Argument on Seniority / ADA Issue Legislative Update January 2002 PSC Transmission Line Order Challenged The Shocking Collapse of Enron Stray Voltage Lawsuits Filed in Wisconsin Federal Commission Modifies Stance on Market Power Legislative Update Midwest ISO Files to Increase Rate of Return; Prepares To Begin Operations IPPs Challenge WEPCO's Power the Future Plan Speaker's Forum December 2001 FCC Approves Pass Through of Cable Franchise Fees Municipality As Developer Legislative Update Insurance Coverage for Environmental Claims: The Saga Continues Eugene, Oregon Wins ROW Fee Case An Interpretation of Covenants With Lessons for the Interpretation of Ordinances Sheboygan Not Liable for Flooding Wisconsin Assembly Approves Increased Utility Shared Revenue Payments to Municipals November 2001 Ban Proposed on Municipal Telcos Consistency Between Planning and Zoning Wisconsin Municipals Face Wholesale Rate Increase January 1, 2002 Deadline to Adopt Traditional Neighborhood Development Ordinance California PUC Suspends Customer Choice FERC To Pursue Aggressive Transmission Policy New TRANSCO Applies For FERC Approval Group Home Not Protected By Fair Housing and ADA Laws Agricultural Use Value Challenge Certified To Wisconsin Supreme Court October 2001 PSC Offers Provisional Support for "Power the Future" Genco Proposal Municipal Adult Establishment Licensing Ordinance Found Unconstitutional Annexations Across River Approved Court of Appeals Rejects Record Punitive Damages Award in WEPCO Pollution Case PSC Holds Public Hearing on ROW Rules Divided Wisconsin Court of Appeals Nixes "Dockominiums" September 2001 Wisconsin Supreme Court Takes Traditional Pro-Government Position on Two Key Property Rights Questions Wisconsin Court Upholds Raze Order for Construction Violating Zoning Codes Speakers' Forum Municipal Regulation of Political Signage Upheld Washington Court Finds E-mail Exchanges May Violate Open Meeting Law Public Service Commission Approves Wausau-Duluth Transmission Line August 2001 Wisconsin Supreme Court Upholds Retirement System Law FERC Finally Sets Price Caps in Western Markets Chicago, Other Munis to Save In Switch From ComEd Street Dedication Offer Could Not Be Revoked After Decades of Public Use Tax Assessment Review Procedure Violates Equal Protection Clause New Zoning Decision Clarifies Distinction Between Variances and Special Exceptions State Supreme Court Issues Long-Awaited Floodplain Variance Decision U.S. Supreme Court Issues New Takings Case July 2001 FERC Rules Against Wisconsin Municipals Supreme Court Rules That Front Pay Is Not Subject To Damages Cap Florida Court Holds Municipalities May Collect Stormwater Charges Even From A State Agency U.S. Supreme Court Bogey's ADA Case Customers First! New Generation Proposal Gaining Support June 2001 Virginia Ban on Municipal Telcos Struck Down City's Decision to Waive Formalities in Competitive Bidding Process Upheld as Neither Arbitrary Nor Unreasonable Wisconsin Attorney General Rejects Constitutional Challenge to Transmission Company Oconto Falls and Reedsburg Are WPPI's Newest Members Laura Sutherland Leaving the Practice of Law Wisconsin Leads the Way in Passing Wetlands Legislation Speakers Forum Dane County Court Allows Madison to Include Lead Replacement in Water Rates Legislative Update May 2001 Pending Legislation Would Make Selling Municipal Utilities Easier Boardman Law Firm Website Now Open Violent Video Games, Nude Dancing and Parade Restrictions: Municipal Ordinances and The First Amendment Municipal Residency Requirements May Be Prohibited State Supreme Court Reverses Decision on Procedural Maneuver to Rescue Rezoning Stalled in Committee Court of Appeals Clarifies Municipal Zoning Authority Over Windmills Two States Dump Electric Deregulation Proposals Under What Circumstances Can Administrative Searches Be Made of Private Properties Without Search Warrants? Speakers Forum April 2001 PSC Approves Stormwater Credit Methodology Why Wisconsin Municipalities Operate Telecommunications Utilities Budget Bill Affects Municipal Entities Federal Energy Legislation Introduced Case Involving Insurance Coverage For Environmental Claims Is Dismissed Midwest ISO and Alliance RTO Reach Settlement March 2001 Dane County Rejects Comm. 83 Challenge Many Anxiously Await Decision Regarding the Wisconsin Retirement System Failure to Notify Insurance Company Results in Loss of Coverage Speakers Forum Immunity for Traffic Control Presents Factual Issue Municipal Cable TV Bill Reintroduced February 2001 Migratory Bird Rule No Longer Protects Wetlands Municipal Utilities Evade Restructuring Turmoil FCC Denies Preemption Petition of Missouri Municipals EPA Issues radionuclides Rule For Water Systems Generation Proposals Filed With Public Service Commission Federal Court Upholds Denial of Cable TV Franchise Renewal January 2001 Cities Must Produce Original Audio 911 Recordings for Copying A Wisconsin Election Controversy Time Limits on Conditional Uses New Lawsuit Required to Enforce Variance After Certiorari Review Midwest ISO Future Clouded by Withdrawal Announcements Wisconsin Municipals to Join Transmission Company PSC Denies Madison Water Utility's Request to Include Cost of Reimbursement Program for Private Lead Pipe Replacement in Water Rates Preventive Action With Respect to Future Flooding December 2000 CUMULATIVE TOPICAL INDEX OF ARTICLES 1999 TO 2000 ELECTRIC Federal / Other States Wisconsin EMPLOYMENT ADA Discrimination Issues Employee Benefits Labor Issues Miscellaneous Wage & Hour / Unemployment Compensation ENVIRONMENTAL GENERAL Legislation Litigation Miscellaneous Open Records Regulations LAND USE & ZONING SOLID WASTE Brownfields Landfill / Superfund TELECOMMUNICATIONS WASTEWATER /STORMWATER WATER November 2000 Judicial Spotlight Focuses On Zoning Variances GENCO Proposals Stir Controversy Alliant Lawsuit Seeks Deregulation Legislative Committee Orders PSC To Develop Confidentiality Rules Wisconsin Supreme Court To Decide Insurance Coverage Issue For Environmental Claims Congress Intended That States Not Block Municipal Entry Into The Telecommunications Market, Says RUS and APPA October 2000 RockGen Opponents Take Case to Supreme Court Court of Appeals Holds That Chief Deputies Are Subject to MERA Governor's Commission on State-Local Partnerships For The 21st Century Meets Federal Agency to Investigate Electric Power Markets NLRB Changes Position on Weingarten Application American Transmission Company on Track For January 1 Startup September 2000 Federal DOT Proposes Drive Time Limits Supreme Court: No Requirement to Join Equal Protection and Certiorari Claims Electric Dereg Disaster in California Speakers Forum PSC Draft Strategic Energy Assessment Finds Energy Supply To Be Adequate Portland Open Access Decision Overturned August 2000 Major Case on Fair Play in Local Zoning Divides the Wisconsin Supreme Court Thorps' Lawsuit to Proceed Under Equal Protection Clause Senate Approves Federal Electric Reliability Bill Zoning Laws vs. Wisconsin Fair Housing Act Speakers Forum Federal Court Approves FERC Order 888 County Deputies Can Appeal Commission Decisions to Arbitration or Circuit Court PSC Given Authority To Resolve Disputes Over Sewer Extensions Under Railroad Tracks Employment Law Update: Supreme Court Confirms That Wrongful Discharge Is Alive and Well Power To Condemn Railroad Property Preempted by ICC Termination Act July 2000 Public Service Commission Begins Inquiry into Key Transmission Proposal EPA Sets Numeric Discharge Limit on Municipal Storm Water Permit United States Supreme Court Lessens Plaintiff's Proof in Discrimination Cases Speakers Forum Bulletin to Employers: Suspended Employees May Be Eligible for Unemployment Compensation Jesus Statue Must Be Surrounded by Wrought Iron Fence Municipal Recodification Reference Inside! June 2000 Lawsuit Filed to Challenge New Septic Rules Municipal Law Recodification Signed by Governor Commissioner Mettner Withdraws Dissent From Municipal CLEC Orders FERC Approves PECO Energy-Commonwealth Edison Merger Iowa Electric Restructuring Proposal Dead Speakers Forum PSCW to Develop Municipal Rights-of-Way Rules May 2000 DOE Report Says Market Power Cost California Electricity Consumers $500 Million Keeping the Lid on Employee Medical Privacy: Will the Cure Sicken Employers? Legislative Update Wage and Hour News: New Amendment to FLSA Section 207(k) Provides No Clear Answers R2K Trailer Bill Approved A Human Resources Manager Can Be Personally Liable For Failure to Correct Harassment by Employee PG&E's State Tax Proposal Fails to Pass April 2000 Accelerated Farmland Use Valuation Challenged Ten Wisconsin Munis Form New Electric Joint Action Agency Boardman Attorney Uses Employee Benefits Expertise on State Board, Internet Legislative Update Legal Labor Bits Restrictions on Municipal Cable TV Operators Proposed Court Prohibits Town From Developing Private Residential Property New Ergonomics Standards May Impact Public Employers Contractor's Records Under the Open Records Law WSTA Seeks to Bar Municipal Telecommunications Providers Customer Choice Off to a Slow Start in Illinois March 2000 Reedsburg and Sun Prairie Become Wisconsin's First Municipal Telecommunications Utilities United States Supreme Court to Rule on Applicability of ADA to States Speakers Forum DNR and DATCP Boards Set Hearings on Nonpoint Rules New Septic System Rules Coming; Legal Challenge Possible Sale of City Land and Statue of Jesus Did Not End City's Violation of Establishment Clause Municipal Law Recodification Bill Introduced Continuing Hope for Increased Safe Drinking Water Loan Funds Supreme Court Rules Attorney General Cannot Attack Constitutionality of Law Local Zoning Authority Over Communications Towers (Part II) Will Iowa Restructuring Deal Be Enacted? February 2000 New PSC Dockets To Examine Refunctionalization and Alliant Transco Filing Municipality Immune for Giving Bad Advice on Benefits Michigan Restructuring Plan Proceeds Despite Legal Set-back Local Zoning Authority Over Communications Towers (Part I) Legal Labor Bits Legislative Update New Legislation Triggers Renewable Energy Ventures and Raises Community Planning and Zoning Issues January 2000 Variance Standard Collides with Fair Housing Act Names of Applicants Do Not Have To Be Identified in Open Meeting Notice Speakers Forum Legal Labor Bits: Overtime Wisconsin PSC Rules That Two-Year Billing Limit Requires a Bill, Not a Dispute Minnesota Moving Slowly on Electric Restructuring The State Legislature May Rewrite Standards for Zoning Variances Legislative Update The State Has Changed the Rules For Land Divisions Along State Highways

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