82.27 Landlocked property and property with insufficient highway access.

(1) Definition. In this section, “advantages" means the greater of the following:

(a) The increase in value of the landlocked property after the highway is laid out or the way or road is widened.

(b) The administrative costs under sub. (5), and the estimated cost of constructing or widening the highway, including both the cost of constructing a turnaround, if one is necessary, and the damages paid to the owner of the land over which the highway is laid out or the way or road is widened.

(2) Application. The owner of real estate located within a town may apply to the town board to have a highway laid out to the owner's land. Except as provided in sub. (7), the application shall be delivered to the town clerk of the town in which the real estate is located. The application shall contain an affidavit, executed by the applicant, that describes the affected real estate and recites facts that satisfy the board that the circumstances either in par. (a) or in par. (b) exist:

(a) The real estate is shut out from all public highways by being surrounded by real estate owned by other persons, or by real estate owned by other persons and by water, and that the owner is unable to purchase a right-of-way to a public highway from the owners of the adjoining real estate or that such a right-of-way cannot be purchased except at an exorbitant price, which price shall be stated in the affidavit.

(b)

1. The owner is the owner of a private way or road, whose width shall be stated in the affidavit, that leads from the described real estate to a public highway but the way or road is too narrow to afford the owner reasonable access from the described real estate to the public highway; and

2. The owner is unable to purchase a right-of-way from the described real estate to a public highway, or is unable to purchase land on either or both sides of the existing way or road to make the way or road of sufficient width or that the right-of-way or additional land cannot be purchased except at an exorbitant price, which price shall be stated in the affidavit.

(3) Setting the hearing date; notice. Upon receipt of an application under sub. (2), the town board shall set a time and place to conduct a hearing regarding the application. The hearing shall be held after 10 days and within 30 days of the receipt of the application by the town board. Notice of the time and place of the hearing shall be served as required by s. 82.10 and published as a class 2 notice under ch. 985.

(4) Hearing.

(a) The town board shall meet at the time and place stated in the notice and decide, in its discretion, whether to grant the application. The board may grant the application by either laying out a new highway across the surrounding land or by adding land to the existing way or road described in the affidavit. If the board decides to lay out a new highway, the new highway shall be at least 66 feet wide unless the board determines this width to be impracticable. If the board decides to widen an existing way or road, the resulting highway shall not be less than 49.5 feet nor more than 66 feet in width.

(b) The town board shall determine the damages to the owner or owners of the real estate on which the highway shall be laid out or from whom land shall be taken and the advantages to the applicant. The town board may not determine damages in an amount exceeding the price stated in the affidavit of the applicant.

(c) Upon laying out a highway or widening a private way or road, the town board shall issue a highway order. If it is necessary to include a turnaround, the turnaround shall be laid out on the applicant's land. The applicant shall pay the town treasurer the amount determined as advantages within 30 days of the board's decision. Within 10 days of payment, the town board shall file the order with the town clerk and record the order with the register of deeds for the county in which the land is located.

(5) Charging costs to the applicant. If the town board grants the application, the items listed in pars. (a) to (d) may be included in the determination of advantages. If the town board denies the application, 50 percent of all of the following may be charged to the applicant as a special charge under s. 66.0627:

(a) Attorney fees reasonably incurred by the town.

(b) The cost of any survey or the fee of any expert on valuation, or both, reasonably incurred by the town.

(c) Administrative costs such as clerical costs and publication costs.

(d) If special meetings are held only for the purpose of considering the application, per diem compensation for the supervisors.

(6) Real estate landlocked by sale. In a town, if the owner of land that is accessible or that is provided with an easement to a public highway subdivides and transfers any part of the land, the owner shall provide a cleared easement at least 66 feet in width that shall be continuous from the highway to the part of the subdivision sold. If the seller fails to provide the required easement, the town board may, pursuant to proceedings under this section, lay out a road at least 66 feet wide from the inaccessible land to the public highway over the remaining lands of the seller without assessment of damages or compensation to the seller.

(7) Laying out a highway to an adjoining town. If it is impracticable to lay out a highway to an existing highway that is in the town where the land is situated, a landowner may apply to have a highway laid out to a highway in an adjoining town. The application shall comply with the requirements of sub. (2), except that the affidavit shall also state that it is impracticable to lay out a new highway to an existing highway in the town where the land is located and that it is practicable to lay out a highway to an existing highway in the adjoining town. The owner shall execute the application in duplicate and present one copy to the clerk of the town where the land is located and one copy to the clerk of the town where the proposed highway is to be laid out. The town boards shall proceed as provided in this section, except that all orders and notices shall be signed by both boards, and all papers required to be filed shall be made in duplicate and filed with each town clerk. The applicant shall pay the amount determined as advantages to the treasurer of the town in which the applicant's land is situated within 30 days of the decision. The order shall be recorded within 10 days of payment. All damages assessed shall be paid by the town where the applicant's land is situated.

(8) Highway to islands in Mississippi River.

(a) The owner of an island in the bottoms of the Mississippi River may submit an application under this section if the island is shut out from the bank of the river and from all highway access by islands, sloughs, and the lands of others, and the owner cannot purchase any highway access at a reasonable price.

(b) The application shall describe the affected land and shall contain an affidavit that recites the facts in par. (a).

(c) The town shall not be liable for lack of repair or for defects in a highway laid out pursuant to this subsection, nor shall the town be liable for any accident or injury on a highway laid out under this subsection.

(9) Limit on applications. The determination to deny an application under this section shall be final for the term of 3 years. No application to lay out a highway to the same property shall be considered within 3 years from the date of the refusal.

(10) Highway to remain public for at least 2 years. A highway laid out under this section shall be a public road and shall remain and be maintained as a public road for at least 2 years from the date of the order.

History: 2003 a. 214 ss. 63 to 71, 170.

NOTE: 2003 Wis. Act 214, which affected this section, contains extensive explanatory notes.

A town board need not lay the road over land of the seller under former s. 80.13 (5) [now sub. (6)] but may lay the road over land of another under former s. 80.13 (3) [now sub. (4)]. Gaethke v. Town of Clay Banks, 86 Wis. 2d 495, 273 N.W.2d 764 (1979).

In the exercise of the discretion provided for under former s. 80.13 (3) [now sub. (4)], the town board may elect not to lay out a town road at all. Tagatz v. Township of Crystal Lake, 2001 WI App 80, 243 Wis. 2d 108, 626 N.W.2d 876, 00-1035.