Attorney General of Wisconsin — Opinion.
June 6, 1972.
Highways — Jurisdiction — Local unit of government is without jurisdiction to unilaterally change segment of state highway system.
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ROBERT W. WARREN, Attorney General
A. HENRY HEMPE, Corporation Counsel, Rock County
I am advised that for a number of years the State Highway Commission has been considering the improvement of highways between the counties of Rock, Walworth and Milwaukee. They finally determined that it would be more feasible to construct new roads as freeways rather than to reconstruct existing highways which served the local property owners. It was the decision of the Commission that, with the construction of new freeways, the existing roads would almost be entirely used by local traffic and, therefore, should become the responsibility of local government.
The method to accomplish this change is clearly set forth in sec. 84.02 (3) of the statutes, which reads as follows:
“(3) CHANGES IN SYSTEM. (a) Changes may be made in the state trunk system by the highway commission, if it deems that the public good is best served by making such changes. The highway commission, in making such changes, may lay out new highways by the procedure under this subsection. Due notice shall be given to the localities concerned of the intention to make changes or discontinuances, and if the change proposes to lay a highway via a new location and the distance along such deviation from the existing location exceeds 2 1/2 miles, then a hearing in or near the region affected by the proposed change shall be held prior to making the change effective. Such notice shall also be given to the secretary of natural resources and to the secretary of the soil conservation board either by registered mail or personally. Whenever the highway commission decides to thus change more than 2 1/2 miles of the system such change shall not be effective until the decision of the highway commission has been referred to and approved by the county board of each county in which any part of the proposed change is situated. A copy of the decision shall be filed in the office of the clerk of each county in which a change is made or proposed.
Where the distance along the deviation from the existing location exceeds 5 miles the change shall constitute an addition to the state trunk highway system. The pre-existing route shall
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continue to be a state trunk highway unless the county board of each county in which any part of the relocation lies and the highway commission mutually agree to its discontinuance as a state trunk highway. Whenever such county board or boards and the highway commission cannot so agree the highway commission shall report the problem to the next ensuing session of the legislature for determination.”
I have ascertained that, according to the records of the commission, due notice was given of its intent to lay two new roads as freeways, Highway 15 and Highways 11 and 14 (which are, in part, routed together). The notice was given to Rock and Walworth Counties on January 15, 1970. This notice was designated as Highway Change Order 675.
By resolution of the county board, Rock County approved the entire change proposal on December 17, 1970. On February 25, 1971, Walworth County approved the change order only as it applied to Highway 15. In compliance with sec. 84.02 (3) b, Stats., the Commission, by minute entry, approved the Highway 15 change as consented to by the Counties, thereby laying out this road as a state highway.
Under these circumstances, where all that the legislature required has been done, the matter is closed. A large sum of money has been spent by the Commission for construction purposes.
The Rock County Board has no authority to reconsider its decision as to Highway 15.
RWW:REB