Featured Article: The Childcare Crisis in Wisconsin is an Urban Planning Issue, and Planners Can Help
July - August Law Update
Upper Midwest Conference 2020
Virtual, October 12-14 "Planning and Adapting"
The Upper Midwest APA 2020 Virtual Conference is a 3-day conference co-hosted by Iowa, Minnesota, and Wisconsin. The virtual conference offers 30 sessions covering the impacts of COVID-19, Racial Equity and Social Justice, Land Use, Law, Ethics, and much more. Keynote sessions include Dr. Kirk Harris from the School of Architecture & Urban Planning at UW-Milwaukee, Jim Kumon, Executive Director of Incremental Development and a panel of Planning Directors discussing how to deal with controversial issues. Connect with planners throughout the three states during the virtual happy hour. Enjoy all this from the comfort of your home or office using the Whova virtual conference app. You’ll be able to connect with presenters, attendees, and sponsors. Attendees will continue to have access to session recordings after the conference.
The Childcare Crisis in Wisconsin is an Urban Planning Issue, and Planners Can Help
By Drew Pennington, AICP
VP of Chapter Affairs for APA-Wisconsin
Advancing the case for urban and regional planners to embrace reform in early childhood education to address today’s social, economic, and health disparities and their impacts upon our communities. Please click HEREfor an un-abridged version of this editorial. The full length version of this piece goes into greater depth and detail to examine how Wisconsin planners can affect change to the Childcare Crisis in Wisconsin.
Planners are working to create great communities for all, but the early childhood education systems in our communities are a critical and underappreciated factor in our community and economic development work. Lack of access to quality early childhood education perpetuates the educational attainment, income, and health disparities that have become so evident in 2020. According to University of Chicago Economics Professor James Heckman’s research (heckmanequation.org), investing in early childhood education is one of the most impactful ways to promote economic growth and to reduce societal costs associated with remedial education, criminal justice, and health care.
What Should Wisconsin Planners Do?
Evaluate the Zoning Code(s) that you administer, and ensure that childcare/daycare centers are permitted by-right in most if not all of your districts. As a reminder, Wis. Stat. 66.1017 stipulates that family child care homes licensed by DCF must be allowed in zoning districts in which single-family dwellings are permitted by-right.
Engage in data collection, analysis, and detailed policy recommendations to create and support existing and new child care providers in your community during your next Comprehensive Plan update. The Comprehensive Planning Law [Wis. Stat. 66.1001(2)(d)] identifies child care centers as community facilities to be analyzed in terms of location, use, and capacity. Evaluate the existing supply of childcare in your community against the existing and predicted demand, and identify policies to meet the needs of your community.
For those with economic development responsibilities, expand your business retention and expansion activities to include child care. This could include engaging with and supporting existing childcare providers and working with allies such as chambers of commerce, economic development corps, and large employers to discuss the adequacy of childcare in your area. Encourage employers to provide on-site or nearby childcare as a solution to the workforce shortage across the state. Employers across the state are thinking creatively about enticing workers with housing, so why not a subsidy to help pay for childcare tuition as an appealing fringe benefit?
Consider providing free or low-cost land and public subsidies to new developments that include childcare facilities, particularly in “child care deserts.”Evaluate your Tax Increment Financing (TIF) policies and plans and ask whether they can and should explicitly prioritize funding childcare centers in areas of new development or redevelopment. Consider expediting development reviews for projects that include new child care centers.
Advocate for increased public funding of all types to employers offering childcare assistance, working parents and childcare providers themselves from all federal, state, and local sources. Call your federal representatives and urge them to include substantial child care relief funding in the next COVID relief bill.See details at childcarerelief.org.
In conclusion, planners can take immediate and important actions to address the childcare crisis in Wisconsin. Early childhood education affects nearly every aspect of community and economic development, and I urge you to explore some of the opportunities above. Thank you in advance for your advocacy!
Upcoming APA-WI Affiliate Events
The University of Wisconsin - Stevens Point is putting on webinars about zoning and land use through this Fall. The advanced webinars are worth 1 AICP CM, with topics and dates listed below:
The Fall WEDA Conference is taking place at the beginning of October, please visit their site for more information about the events and registration. Many of the presentations taking place will be worth AICP CM as well, with specific topics and dates listed below.
Visit the Law Updates page any time to access the current and past issues of the Case Law Update.
Law Update--August 2020
Wisconsin Court of Appeals Opinions
DOR Immune from Suit for Monetary Damages
Klein v. Dept. of Revenue involved a lawsuit brought by a group of Ashland County taxpayers claiming that the Wisconsin Department of Revenue (DOR) failed to stop the Town of Sanborn’s removal from its property tax rolls of all land belonging to the Bad River Band of Lake Superior Tribe of Chippewa Indians.
A 2006 decision of the U.S. Sixth Circuit Court of Appeals held that property allotted to a Chippewa tribe in Michigan pursuant to a 1854 treaty with the U.S. could not be taxed by the State of Michigan under the terms of the treaty. The Bad River Band in Wisconsin was also allotted land under that treaty. Based on the Sixth Circuit decision, in 2007 the Town of Sanborn passed a resolution giving a blanket exclusion from property taxation to all land owned by the Bad River Band or its members that had been allotted under the 1854 treaty.
Several years later DOR adopted statewide guidance in response to the Sixth Circuit case. DOR endorsed a parcel-by-parcel analysis to determine if land was exempt from property taxes under the case. DOR’s guidance also provided that if the land had been conveyed to a nontribal member and repurchased by the Tribe it would not be exempt from property taxes. The taxpayers believed there were certain parcels that should be taxed and petitioned DOR to conduct a town-wide reassessment. The taxpayers also filed claims with the Town for excessive and unlawful taxation. The Town denied the claims and the taxpayers sued the Town. The circuit court ruled in favor of the taxpayers and ordered the Town to place all the properties back on the tax role unless there was evidence presented that an individual property was exempt from taxation in accordance with DOR’s guidance. The Town did not appeal the circuit court order.
The taxpayers also filed the present action against DOR alleging that DOR had violated its statutory duties to supervise local assessors. Among other things the taxpayers sought a $1.5 million refund of taxes paid by Ashland County taxpayers. The taxpayers and DOR filed motions for summary judgment. The circuit court granted the taxpayers motion for summary judgment and DOR appealed. The Wisconsin Court of Appeals agreed with DOR and reversed the circuit court’s decision. According to the Court’s opinion, the claims for monetary damage were barred by the doctrine of sovereign immunity.
Under the doctrine of sovereign immunity found in the Wisconsin Constitution, the State (and state agencies) cannot be sued unless the legislature specifically consents to the suit. In this case, there was no statute authorizing this type of lawsuit against DOR. The Court also held that DOR’s supervision of assessors was a discretionary function and not a ministerial duty that could be compelled by mandamus. The Court reversed the circuit court decision and remanded the case to the circuit court with direction to dismiss the claims against DOR.
The case is recommended for publication in the official reports.
U.S. Court of Appeals for the 7th Circuit Opinions
The Boundaries of the 1838 Oneida Reservation Remain in Tact
In the words of the Federal Seventh Circuit Court of Appeals, Oneida Nation v. Village of Hobart is “a test of power and jurisdiction between the [Oneida] Nation and the Village of Hobart, Wisconsin,” over the Village’s demand that the Oneida Nation obtain a special event permit from the Village for the Nation’s annual Big Apple Fest. The case delves into the sad and complex history of the U.S. Government’s relationship with the sovereign First Nations.
In 1838, the Oneida Nation entered into a treaty with the U.S. Government establishing the Oneida Reservation in what would later become the State of Wisconsin. The Treaty followed an almost two-decade effort by the U.S. Government to remove the Tribe from their homeland in the State of New York. The Treaty reserved to the Oneida Tribe “a tract of land containing one hundred (100) acres, for each individual, and the lines of which shall be so run as to include all their settlements and improvements in the vicinity of Green Bay.” After a census of the Oneida, the U.S Government surveyed and established a reservation of approximately 65,000 acres in compliance with the Treaty. Land within the reservations was held in trust by the U.S. Government with no individual ownership of land.
In 1887, Congress enacted the Dawes Act allowing for the allotment of reservation lands into individual parcels held by individual tribal members. The U.S. Government allotted the Oneida Reservation in Wisconsin soon after passage of the Dawes Act. Many tribal members sold their allotted lands to non-tribal members. By 1917, only 106 Oneida allotments remained in trust, and over 50,000 of the 65,000 acres of reservation land were owned by non‐tribal members.
In 1934, the U.S. Government’s policy toward tribal land reversed course. Congress passed the Indian Reorganization Act, to stem the loss of tribal land holdings brought on by allotment but also to give tribes the opportunity to re‐establish their governments and land holdings. In 1934, Oneida tribal members voted in favor of organizing under the Act. The U.S. Secretary of the Interior approved the Oneida Constitution in 1936. Since then, the Nation has acquired in fee many of the parcels that had previously been allotted and sold to non‐tribal members. Within the borders of the reservation today, there is a mixture of land held in trust for the Nation by the U.S. Government, land owned in fee by the Oneida Nation, and land owned by non-tribal members. The Village of Hobart is located entirely within the Oneida Reservation boundaries established by the 1838 Treaty.
Since 2009, the Nation has held an annual cultural event called the “Big Apple Fest.” The Big Apple Fest is free and open to the public. It is intended to educate the public about Oneida history and culture, and it offers a range of activities. The Fest takes place on both land held in trust for the Nation by the U.S. and fee land owned by the Nation that is located within the Village. The event is subject to the Nation’s laws and regulations. Oneida Nation personnel (including police) oversee the event to ensure compliance with the Nation’s ordinances pertaining to health, public safety, waste disposal, and sanitation.
In 2016, the Village of Hobart adopted a Special Event Ordinance that applies to any temporary event or activity occurring on public or private property. The Village informed the Nation that it would either have to apply for and obtain a permit for the 2016 Big Apple Fest or face a penalty under the Ordinance. The Nation did not apply for a permit and conducted the 2016 Big Apple Fest under its own laws.
The Nation filed this action in response to the Village's demand that it comply with the Ordinance. The issue in the case is whether the Oneida Reservation defined by the 1838 Treaty remains intact, so the land within the boundaries of the Reservation is “Indian country.” The legal term “Indian country” is defined to include “all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights‐of‐way running through the reservation.” Once land is set aside for a Reservation, no matter what happens to the title of individual plots within the area, the land retains its reservation status until Congress explicitly indicates otherwise. Generally states and local governments do not have authority to regulate tribes within reservations.
The Village of Hobart argued that the Reservation was diminished piece by piece when Congress allotted the Reservation among individual tribe members and allowed the land to be eventually sold to non‐tribal members. The Court of Appeals acknowledges that the Reservation was created by treaty and it can be diminished or disestablished only by Congress but the Court found that Congress had not done either of those things. According to the Court, the was no evidence of a “clear congressional purpose to diminish the reservation.” The Court cites the recent U.S. Supreme Court case McGirt v. Oklahoma, 140 S.Ct. 2452 (2020), decided in June. The McGirt decision (dealing with a criminal law matter) upheld the Indian country status of the Muscogee (Creek) Reservation covering a great portion of the State of Oklahoma. According to the Seventh Circuit Court of Appeals, “McGirt’s allotment analysis has turned what was a losing position for the Village into a nearly frivolous one.”
The Village retains jurisdiction over non-tribal owned lands within the reservation. The Court did note that there may be circumstances in which isolated fee land of the tribe may be subject to local regulation, but the Village presented no reason to believe that such circumstances are present here.