How to appeal some municipal or state decisions.

Post date: Sep 11, 2013 5:25:30 PM

Don’t agree with the official’s decision? Here is what you can do.

By Bob DuPont, Regulatory Guidance and Design, LLC

Many would agree that municipal and state officials most often “get it right” when applying a code requirement during a plan review or during an inspection. However, what can you do when you feel an official has “gotten it wrong”?

Whether you disagree with the decision of a municipal official or a state official, state law provides ways for you to appeal the decision. This article will address both local decisions and state decisions.

Local Decisions by Themselves

Chapter 68, Wisconsin Statutes, specifies procedures for appealing a decision by a municipality, or an agent acting on behalf of a municipality (such as a private inspection agency). Under this law, “municipality” includes any county, city, village, town and special purpose district (such as a sanitary district). The law states that you have the right to receive written reasons for any local decision, and you have the right to file a request for a review of the local determination by the municipal authority. Chapter 68 is only two and one-half pages long. I encourage you to become familiar with it.

Local Decisions in Conflict with State Orders

Under section 101.02(7)(b), Wisconsin Statutes, any person affected by a local order that is in conflict with an order of the Wisconsin Department of Safety and Professional Services (DSPS) may petition the DSPS for a hearing. The DSPS must then follow through to resolve the issue. Section 101.02(7)(c), Wisconsin Statutes requires that the DSPS hold a hearing to consider and determine the issue raised by such an appeal. The hearing must be held in the village, city or municipality where the local order appealed from was made.

This all means that if a municipal ordinance or decision seems to you to be in conflict with a state code or directive, you have the right to appeal that municipal ordinance or decision to the state DSPS for a determination. However, before filing a formal petition of appeal with the DSPS, you might consider contacting the program section chief in the Industry Services Division of the DSPS to see if they can help.

Traditionally, the Industry Services Division has tried to resolve issues without making an aggrieved party file a formal petition for a hearing. Under this informal process, Division staff receives complaints concerning local orders and investigate almost immediately by contacting the municipal officials involved. In many cases, Division staff is able to resolve the situation within hours or days, by either reinforcing the basis of the local order or by issuing clarifying direction to the municipal official involved.

Note: Section 101.01 (8), Wisconsin Statutes, defines "local order" as any ordinance, order, rule or determination of any common council, board of alderpersons, board of trustees or the village board, of any village or city, or the board of health of any municipality, or an order or direction of any official of such municipality, upon any matter over which the department has jurisdiction.

Section 101.01(9), Wisconsin Statutes, defines an “order” of the DSPS as any decision, rule, regulation, direction, requirement or standard of the department, or any other determination arrived at or decision made by the department.

State Decisions as Unreasonable

As provided under section 101.02 (6) (e), Wisconsin Statutes, any person who owns or occupies a property that is affected by an order of the DSPS may petition the DSPS for a hearing on the reasonableness of the order. Such a petition should give the reasons why the state order is unreasonable and should fully state the issue to be considered by the department.

If the DSPS determines that the issues raised on the petition have previously been adequately considered, the department can confirm, without hearing, its previous determination. If, however, the DSPS determines a hearing is necessary to determine the issues raised, it must order a hearing and then consider and determine the matter in question. All such hearings are to be open to the public.

Once again, before filing a formal petition of appeal with the DSPS, concerning a state level decision, you might consider contacting the program section chief in the Industry Services Division of the DSPS to see if they can help. In many cases the program section chief can investigate almost immediately by contacting the state plan reviewer or inspector involved. In many cases the program section chief is able to resolve the situation within hours by either reinforcing the basis of the staff decision or by issuing clarifying direction to the program staff involved.

Hopefully, you are able to resolve any issue by working directly with the municipal or state official involved. If not, an informal appeal may be your best next step, keeping in mind that for some formal appeals there is a timeline that must be adhered to. If you decide to submit a formal appeal, be it to the municipality or to the state, getting the advice and counsel of an attorney might be advisable.

September 9, 2013.