Chapter 66

66.0901(11)(a) (a) In this subsection, “construction project” means a road, sewer, water, stormwater, wastewater, grading, parking lot, or other infrastructure-related project or the provision of construction-related services for such a project.

66.0901(11)(b) (b) Except for work ancillary to replacing a utility-side water service line, as defined in s. 196.372 (1) (c), containing lead that is performed with the consent of a private property owner and that does not involve replacing the customer-side water service line, as defined in s. 196.372 (1) (a), containing lead, a political subdivision may not use its own workforce to perform a construction project for which a private person is financially responsible.

66.0901(12) (12) Public building plan information.

66.0901(12)(a) (a) In this subsection:

66.0901(12)(a)1. 1. “Public building plan information” means construction plans, designs, specifications, and related materials for construction work undertaken, or proposed to be undertaken, by a municipality pursuant to a public contract.

66.0901(12)(a)2. 2. “Public plan room” means a nonprofit organization that gathers and makes available to the public for inspection and copying public building plan information.

66.0901(12)(b) (b) Notwithstanding s. 19.35 (3), if a municipality receives a request for public building plan information from a public plan room, the municipality shall provide the requested information by electronic copy, and without charging a fee, if all of the following apply:

66.0901(12)(b)1. 1. The public building plan information relates to a structure or building constructed, or proposed to be constructed, by a municipality.

66.0901(12)(b)2. 2. The public plan room allows the public to register and inspect or copy the public building plan information that it obtains under this subsection without charging a fee.

66.0901(12)(c) (c) A municipality shall provide the requested information under par. (b) even if the municipality contracts with another person to assist the municipality with public contracts, related construction projects, or the management and storage of public building plan information.

66.0901 History History: 1971 c. 154; 1975 c. 390; 1983 a. 27; 1991 a. 316; 1993 a. 112, 399, 490, 491; 1999 a. 150 ss. 257, 258, 328 to 334; Stats. 1999 s. 66.0901; 1999 a. 186 s. 50; 2001 a. 103; 2003 a. 157; 2005 a. 204; 2009 a. 173; 2011 a. 32; 2015 a. 55; 2017 a. 3, 137; 2021 a. 239; 2021 a. 240 s. 30.

66.0901 Annotation Under sub. (5), a bidder has no right to withdraw its bid or demand that it be amended. Under the terms of the proposal, the commission was entitled to retain the deposit upon the plaintiff’s failure to execute the contract within ten days of the notice of award. Nelson Inc. of Wisconsin v. Sewerage Commission, 72 Wis. 2d 400, 241 N.W.2d 390 (1976).

66.0901 Annotation Acceptance of the bid is a precondition to forfeiture of the bidder’s deposit under sub. (5). Gaastra v. Village of Fairwater, 77 Wis. 2d 7, 252 N.W.2d 60 (1977).

66.0901 Annotation When a bid error was discovered after the contract was let, the dispute was governed by the arbitration clause in the contract, not by sub. (5). Village of Turtle Lake v. Orvedahl Construction, Inc., 135 Wis. 2d 385, 400 N.W.2d 475 (Ct. App. 1986).

66.0901 Annotation Sub. (5) does not contemplate bid amendment after bids are open, and municipalities do not have the authority to permit a bidder to amend its bid. The only relief available to a bidder that acknowledges a mistake, error, or omission in its bid is to request that its bid be withdrawn from consideration. James Cape & Sons Co. v. Mulcahy, 2005 WI 128, 285 Wis. 2d 200, 700 N.W.2d 243, 02-2817.

66.0901 Annotation Acceptance of a bid by a municipality is a precondition to forfeiture of a bidder’s deposit under sub. (5). The fourth sentence of sub. (5) specifically contemplates a court proceeding to determine whether a proposal guaranty should be returned to the bidder when a municipality has retained the proposal guaranty. If the bidder can show by clear and satisfactory evidence that its error, omission, or mistake was not caused by any careless act or omission in the exercise of ordinary care in examining the plans or specifications and was in conformance with the conditions of the statute, but the municipality is able to show how the bidder’s withdrawal has prejudiced or will prejudice the municipality, the bidder will have to meet the higher standard that it was free from carelessness, negligence, or inexcusable neglect to avoid forfeiture. James Cape & Sons Co. v. Mulcahy, 2005 WI 128, 285 Wis. 2d 200, 700 N.W.2d 243, 02-2817.

66.0901 Annotation A municipality has no power to enter into a contract unless the bid proposal complies with sub. (7). When a bidder submitted no statement providing any of the assurances required by sub. (7), the bid proposal did not comply with sub. (7), and the municipality had no authority to enter into a contract with the bidder based on that proposal. If there was a contract, it was void at its inception. Andrews Construction, Inc. v. Town of Levis, 2006 WI App 180, 296 Wis. 2d 89, 722 N.W. 2d 389, 04-3338.

66.0901 Annotation Police cars need not be purchased by competitive bid since they are “equipment” and not “supplies [or] material.” 66 Atty. Gen. 284.

66.0901 Annotation Municipalities may require bidders to include a list of subcontractors under sub. (7). Counties may reject a proposal for failure to include a complete list, except when omitted subcontractors themselves submitted timely, written bids to the general contractor. 76 Atty. Gen. 29.

66.0903 66.0903 Prevailing wage.

66.0903(1) (1) Definitions. In this section:

66.0903(1)(c) (c) “Hourly basic rate of pay” has the meaning given in s. 16.856 (1) (b), 2015 stats.

66.0903(1)(d) (d) “Local governmental unit” means a political subdivision of this state, a special purpose district in this state, an instrumentality or corporation of such a political subdivision or special purpose district, a combination or subunit of any of the foregoing or an instrumentality of the state and any of the foregoing.

66.0903(1)(f) (f) “Prevailing hours of labor” has the meaning given in s. 16.856 (1) (e), 2015 stats.

66.0903(1)(g) (g) “Prevailing wage rate” includes the meanings given under s. 66.0903 (1) (g), 2013 stats., and s. 16.856 (1) (f), 2015 stats.

66.0903(1)(h) (h) “Publicly funded private construction project” means a construction project in which the developer, investor, or owner of the project receives direct financial assistance from a local governmental unit for the erection, construction, repair, remodeling, demolition, including any alteration, painting, decorating, or grading, of a private facility, including land, a building, or other infrastructure. “Publicly funded private construction project” does not include a project of public works.

66.0903(1)(j) (j) “Truck driver” includes an owner-operator of a truck.

66.0903(1m) (1m) Statewide concern; uniformity.

66.0903(1m)(b) (b) The legislature finds that the enactment of ordinances or other enactments by local governmental units requiring laborers, workers, mechanics, and truck drivers employed on projects of public works or on publicly funded private construction projects to be paid the prevailing wage rate and to be paid at least 1.5 times their hourly basic rate of pay for hours worked in excess of the prevailing hours of labor would be logically inconsistent with, would defeat the purpose of, and would go against the repeals of s. 66.0904, 2009 stats., and s. 66.0903 (2) to (12), 2013 stats. Therefore, this section shall be construed as an enactment of statewide concern for the purposes of facilitating broader participation with respect to bidding on projects of public works, ensuring that wages accurately reflect market conditions, providing local governments with the flexibility to reduce costs on capital projects, and reducing spending at all levels of government in this state.

66.0903(1m)(c) (c) A local governmental unit may not enact and administer an ordinance or other enactment requiring laborers, workers, mechanics, and truck drivers employed on projects of public works or on publicly funded private construction projects to be paid the prevailing wage rate and to be paid at least 1.5 times their hourly basic rate of pay for hours worked in excess of the prevailing hours of labor or any similar ordinance or enactment. Any such ordinance or other enactment that is in effect on July 1, 2011, is void.

66.0903 History History: 1971 c. 154, 307; 1973 c. 181; 1977 c. 29; 1985 a. 159; 1989 a. 56, 228; 1991 a. 316; 1993 a. 112, 399; 1995 a. 27 ss. 3318, 3319, 9130 (4); 1995 a. 215; 1997 a. 3, 35; 1999 a. 70; 1999 a. 150 s. 335; Stats. 1999 s. 66.0903; 1999 a. 186 ss. 51 to 60; 2009 a. 28, 276; 2011 a. 32, 259; 2015 a. 55; 2017 a. 59.

66.0905 66.0905 Pedestrian malls. After referring the matter to the plan commission for report under s. 62.23 (5), or the town zoning committee under s. 60.61 (4), and after holding a public hearing on the matter with publication of a Class 1 notice of the hearing, the governing body of any city or village, or any town board acting under s. 60.61 or 60.62, may by ordinance designate any street, road or public way or any part of a street, road or public way wholly within its jurisdiction as a pedestrian mall and prohibit or limit vehicular traffic in the pedestrian mall. Creation of a pedestrian mall under this section does not constitute a discontinuance or vacation of the street, road or public way under s. 66.1003 or 236.43.

66.0905 History History: 1993 a. 246; 1999 a. 150 s. 345; Stats. 1999 s. 66.0905.

66.0907 66.0907 Sidewalks.

66.0907(1) (1) Part of street; obstructions. Streets shall provide a right-of-way for vehicular traffic and, where the council requires, a sidewalk on either or both sides of the street. The sidewalk shall be for the use of persons on foot, and no person may encumber the sidewalk with boxes or other material. The sidewalk shall be kept clear for the use of persons on foot.

66.0907(2) (2) Grade. If the grades of sidewalks are not specially fixed by ordinance, the sidewalks shall be laid to the established grade of the street.

66.0907(3) (3) Construction and repair.

66.0907(3)(a) (a) Authority of council. The council may by ordinance or resolution determine where sidewalks shall be constructed and establish the width, determine the material and prescribe the method of construction of standard sidewalks. The standard may be different for different streets. The council may order by ordinance or resolution sidewalks to be laid as provided in this subsection.

66.0907(3)(b) (b) Board of public works. The board of public works may order any sidewalk which is unsafe, defective or insufficient to be repaired or removed and replaced with a sidewalk in accordance with the standard fixed by the council.

66.0907(3)(c) (c) Notice. A copy of the ordinance, resolution or order directing the laying, removal, replacement or repair of sidewalks shall be served upon the owner, or an agent, of each lot or parcel of land in front of which the work is ordered. The board of public works, or either the street commissioner or the city engineer if so requested by the council, may serve the notice. Service of the notice may be made by any of the following methods:

66.0907(3)(c)1. 1. Personal delivery.

66.0907(3)(c)2. 2. Certified or registered mail.

66.0907(3)(c)3. 3. Publication in the official newspaper as a class 1 notice, under ch. 985, together with mailing by 1st class mail if the name and mailing address of the owner or an agent can be readily ascertained.

66.0907(3)(d) (d) Default of owner. If the owner neglects for a period of 20 days after service of notice under par. (c) to lay, remove, replace or repair the sidewalk the city may cause the work to be done at the expense of the owner. All work for the construction of sidewalks shall be let by contract to the lowest responsible bidder except as provided in s. 62.15 (1).

66.0907(3)(e) (e) Minor repairs. If the cost of repairs of any sidewalk in front of any lot or parcel of land does not exceed the sum of $100, the board of public works, street commissioner or city engineer, if so required by the council, may immediately repair the sidewalk, without notice, and charge the cost of the repair to the owner of the lot or parcel of land, as provided in this section.

66.0907(3)(f) (f) Expense. The board of public works shall keep an accurate account of the expenses of laying, removing and repairing sidewalks in front of each lot or parcel of land, whether the work is done by contract or otherwise, and report the expenses to the comptroller. The comptroller shall annually prepare a statement of the expense incurred in front of each lot or parcel of land and report the amount to the city clerk. The amount charged to each lot or parcel of land shall be entered by the clerk in the tax roll as a special charge, as defined under s. 74.01 (4), against the lot or parcel of land and collected like other taxes upon real estate. The council by resolution or ordinance may provide that the expense incurred may be paid in up to 10 annual installments and the comptroller shall prepare the expense statement to reflect the installment payment schedule. If annual installments for sidewalk expenses are authorized, the city clerk shall charge the amount to each lot or parcel of land and enter it on the tax roll as a special charge, as defined under s. 74.01 (4), against the lot or parcel each year until all installments have been entered, and the amount shall be collected like other taxes upon real estate. The council may provide that the street commissioner or city engineer perform the duties imposed by this section on the board of public works.

66.0907(5) (5) Snow and ice. The board of public works shall keep the sidewalks of the city clear of snow and ice in all cases where the owners or occupants of abutting lots fail to do so, and the expense of clearing in front of any lot or parcel of land shall be included in the statement to the comptroller required by sub. (3) (f), in the comptroller’s statement to the city clerk and in the special tax to be levied. The city may also impose a fine or penalty for neglecting to keep sidewalks clear of snow and ice.

66.0907(6) (6) Repair at city expense. The council may provide that sidewalks shall be kept in repair by and at the expense of the city or may direct that a certain proportion of the cost of construction, reconstruction or repair be paid by the city and the balance by abutting property owners.

66.0907(7) (7) Rules. The council may by ordinance implement the provisions of this section, regulate the use of the sidewalks of the city and prevent their obstruction.

66.0907(10) (10) Application of section; definitions. The provisions of this section do not apply to 1st class cities but apply to towns and villages, and when applied to towns and villages:

66.0907(10)(a) (a) “Board of public works” means the committee or officer designated to handle street or sidewalk matters.

66.0907(10)(b) (b) “City” means town or village.

66.0907(10)(c) (c) “Comptroller” means clerk.

66.0907(10)(d) (d) “Council” means town board or village board.

66.0907 History History: 1975 c. 172, 356, 421, 422; 1979 c. 32; 1983 a. 189, 532; 1991 a. 316; 1993 a. 490; 1999 a. 150 s. 542; Stats. 1999 s. 66.0907; 2015 a. 55.

66.0907 Annotation A city cannot delegate its primary responsibility to maintain its sidewalks, nor delegate or limit its primary liability by ordinance. Kobelinski v. Milwaukee & Suburban Transport Corp., 56 Wis. 2d 504, 202 N.W.2d 415 (1972).

66.0907 Annotation The property owners’ failure to remove snow and ice from sidewalks in violation of a municipal ordinance did not constitute negligence per se. Hagerty v. Village of Bruce, 82 Wis. 2d 208, 262 N.W.2d 102 (1978).

66.0907 Annotation A city, exercising its police power, can impose a special tax on properties for the cost of installing a sidewalk on an adjacent city right-of-way without showing that the properties would be benefited. Stehling v. City of Beaver Dam, 114 Wis. 2d 197, 336 N.W.2d 401 (Ct. App. 1983).

66.0909 66.0909 Curb ramping.

66.0909(1) (1) The standard for construction of curbs and sidewalks on each side of a city or village street, or a connecting highway or town road for which curbs and sidewalks have been prescribed by the governing body of the town, city or village having jurisdiction, shall include curb ramping providing access to crosswalks at intersections and other designated locations. Curb ramping includes the curb opening, the ramp and that part of the sidewalk or apron leading to and adjacent to the curb opening. Any person constructing new curbs or sidewalks or replacing curbs or sidewalks within 5 feet of a legal crosswalk in any city street, village street, connecting highway or town road shall comply with the standards for curb ramping under this section.

66.0909(3) (3) Curb ramps shall conform to the following requirements:

66.0909(3)(a) (a) Curb ramping shall be of permanent construction. The ramp shall be at least 40 inches wide. The sides of the ramp shall slope from the sidewalk or apron elevations to the ramp elevation with the widest portion of the side slope not less than 18 inches nor more than 24 inches wide at the curb. The ramp slope may not exceed one inch vertical to 12 inches horizontal from the flow line elevation of the curb. The curb opening shall be not less than 40 inches nor more than 80 inches wide at the flow line of the curb. The taper of the curb from the top of the curb to the flow line of the curb at the curb opening shall be not less than 18 inches nor more than 24 inches wide. The ramp shall be bordered on both sides and on the curb line with a 4-inch-wide yellow stripe or with brick of a contrasting color.

66.0909(3)(b) (b) Curb ramping shall be in one of the following locations, to provide access to each end of each crosswalk affected:

66.0909(3)(b)1. 1. At the center of the curve of the street corner to accommodate crossing for either direction at the intersection. The entire curb corner may not be made into a ramp, but shall provide for standard sidewalk apron and curb on both sides of a ramp. Any safety zone marking required by ordinance shall be provided in the street or town road 40 inches out and parallel with the curb, joining with the standard safety pedestrian crossing markings in the street or town road;

66.0909(3)(b)2. 2. If subd. 1. is not feasible, centered on line with the crosswalk and pedestrian traffic and containing surface texturing to indicate clearly to the sense of touch that the surface differs from that of the sidewalk or street. The surface texturing shall consist of linear impressions one-fourth of an inch to three-eighths of an inch deep, oriented to provide a uniform pattern of diamond shapes. The diamond shapes shall measure approximately 1 1/4 inches wide by 2 1/4 inches long, with the length of the diamond shape parallel to the direction of pedestrian movement. The diamond shapes shall be spaced one-fourth of an inch to three-eighths of an inch apart. This surface texture may be achieved by impressing and removing expanded metal regular industrial mesh into the surface of the ramp while the concrete is in a plastic state; or

66.0909(3)(b)3. 3. If both subds. 1. and 2. are not feasible, at a suitable location as near to the crosswalk as practicable. Any safety zone markings required by ordinance shall be provided in the street or town road 40 inches out and parallel with the curb, joining with the standard safety pedestrian crossing markings in the street or town road.

66.0909(5) (5) The district attorney, on his or her own motion or upon the complaint of any person, may bring an action in circuit court to enforce this section.

66.0909(6) (6) If any person constructs a new or replacement sidewalk or curb, other than the town, city or village with jurisdiction over the curbs or sidewalks, the town, city or village shall inform the person of the requirements of this section. The town, city or village may agree to construct, or bear the cost of constructing, curb ramping required to provide access to sidewalks opposite the new or replacement curb or sidewalk.

66.0909 History History: 1971 c. 283; 1973 c. 98, 243; 1977 c. 29 s. 1654 (3); 1979 c. 272; 1991 a. 32; 1999 a. 150 s. 543; Stats. 1999 s. 66.0909.

66.0911 66.0911 Laterals and service pipes. If the governing body by resolution requires water, heat, sewer and gas laterals or service pipes to be constructed from the lot line or near the lot line to the main or from the lot line to the building to be serviced, or both, it may provide that when the work is done by the city, village or town or under a city, village or town contract, a record of the cost of constructing the laterals or service pipes shall be kept and the cost, or the average current cost of laying the laterals or service pipes, shall be charged and be a lien against the lot or parcel served.

66.0911 History History: 1983 a. 532; 1999 a. 150 s. 545; Stats. 1999 s. 66.0911.

66.0913 66.0913 City and county projects, individual or joint; revenue bonding.

66.0913(1) (1) 

66.0913(1)(a) (a) A county or city, or both jointly, may construct, purchase, acquire, develop, improve, operate or maintain a county or city building, or both jointly, for a courthouse, safety building, city hall, hospital, armory, library, auditorium and music hall, municipal parking lots or other parking facilities, or municipal center or any combination of the foregoing, or a University of Wisconsin college campus, as defined in s. 36.05 (6m), if the operation of the college campus has been approved by the board of regents of the University of Wisconsin System.

66.0913(1)(b) (b) The county board, common council, or both jointly, may, for any of its corporate purposes set forth in this subsection, issue bonds on which the principal and interest are payable from the income and revenues of the project financed with the proceeds of the bonds or with the proceeds together with the proceeds of a grant from the federal government to aid in the financing and construction of the project. In the case of municipal parking lots or other parking facilities the bonds may in addition be payable as to both principal and interest from income and revenues from other similar projects, parking meters, parking fees, or any other income or revenue obtained through parking, or any combination of these methods.

66.0913(1)(c) (c) The credit of the county, or city, or both jointly, may not be pledged to the payment of the bonds, but the bonds are payable only from the income and revenues described in par. (b) or the funds received from their sale or disposal. If the county board, or common council, or both jointly, so determine, the bonds shall be secured either by a trust indenture pledging the revenues or by a mortgage on the property comprising the project and the revenues from the project.

66.0913(2) (2) The bonds or other evidences of indebtedness shall state on their face that the bonds are not a debt of the county, or city, or both jointly, and that the county or city, or both jointly, are not liable for the indebtedness. Any indebtedness created by this section is not an indebtedness of the county or city and shall not be included in determining the constitutional 5 percent debt limitations.

66.0913(3) (3) The provisions of s. 66.0621 relating to the issuance of revenue bonds by cities for public utility purposes, insofar as applicable, and the provisions of ss. 67.08 (1) and 67.09 relating to the execution and registration of municipal obligations apply to the issuance of revenue bonds under this section.

66.0913 History History: 1971 c. 100 s. 23; 1977 c. 26; 1979 c. 89; 1983 a. 24; 1995 a. 225; 1997 a. 237; 1999 a. 150 s. 492; Stats. 1999 s. 66.0913.

66.0915 66.0915 Viaducts in cities, villages and towns.

66.0915(1) (1) Private viaducts in cities, villages and towns. The privilege of erecting a viaduct above a public street, road, or alley, for the purpose of connecting buildings on each side, may be granted by the city council, village board, or town board upon the written petition of the owners of all the frontage of the lots and lands abutting the portion sought to be connected, and the owners of more than one-half of the frontage of the lots and lands abutting upon that portion of the remainder that lies within 2,650 feet from the ends of the portion proposed to be connected. If a lot or land is owned by the state, or by a county, city, village, or town, or by a minor or individual adjudicated incompetent, or the title to the lot or land is held in trust, the petition may be signed by the governor, the chairperson of the county board, the mayor of the city, the president of the board of trustees of the village, the chairperson of the town board, the guardian of the minor or individual adjudicated incompetent, or the trustee, respectively, and the signature of a private corporation may be made by its president, secretary, or other principal officer or managing agent. Written notice stating when and where the petition will be acted upon, and describing the location of the proposed viaduct, shall be given by the city council, village board, or town board by publication of a class 3 notice, under ch. 985.

66.0915(2) (2) Removal of private viaducts. A viaduct in a city, village, or town may be discontinued by the city council, village board, or town board, upon written petition of the owners of more than one-half of the frontage of the lots and lands abutting on the street or road approaching on each end of the viaduct, which lies within 2,650 feet from the ends of the viaduct. If a lot or land is owned by the state, or by a county, city, village, or town, or by a minor or individual adjudicated incompetent, or the title to the lot or land is held in trust, the petition may be signed by the governor, the chairperson of the county board, the mayor of the city, the president of the board of trustees of the village, the chairperson of the town board, the guardian of the minor or individual adjudicated incompetent, or the trustee, respectively, and the signature of a private corporation may be made by its president, secretary, or other principal officer or managing agent. Written notice stating when and where the petition will be acted upon, and stating what viaduct is proposed to be discontinued, shall be given by the city council, village board, or town board by publication of a class 1 notice, under ch. 985, not less than one year before the day fixed for the hearing and a class 3 notice, under ch. 985, within the 30 days before the date of the hearing.

66.0915(3) (3) Lease of space over public places by cities, villages and towns.

66.0915(3)(a) (a) A city, village or town may lease space over any street, road, alley or other public place in the city, village or town which is more than 12 feet above the level of the street, road, alley or other public place for any term not exceeding 99 years to the person who owns the fee in the property on both sides of the portion of the street, road, alley or other public place to be leased, if the governing body of the city, village or town determines that the place is not needed for street, road, alley or other public purpose, and that the public interest will be served by leasing.

66.0915(3)(b) (b) The leasing of each space shall be authorized by ordinance. The ordinance shall set forth the proposed lease, the purpose for which the space may be used and the terms of the lease with reasonable certainty.

66.0915(3)(c) (c) The lease shall be signed on behalf of the city, village or town by the mayor, village president or town board chairperson and shall be attested by the city, village or town clerk under the corporate seal. The lease shall also be executed by the lessee in a manner that binds the lessee. After being duly executed and acknowledged the lease shall be recorded in the office of the register of deeds of the county in which the leased premises are located.

66.0915(3)(d) (d) If the governing body determines that the public interest requires that any building erected in the leased space be removed so that a street, road, alley or public place may be restored to its original condition, the lessor city, village or town may condemn the lessee’s interest in the leased space by proceeding under ch. 32. After payment of any damages in the condemnation proceedings, the city, village or town may remove all buildings or other structures from the leased space and restore the buildings adjoining the leased space to their original condition.

66.0915(4) (4) Sale or lease of space over or below public place.

66.0915(4)(a) (a) A city, village or town may sell or lease the space over or below ground level of any street, road, alley or public place or municipally owned real estate to any person, if the governing body determines by resolution and states the reasons that the action is in the best public interest and the prospective purchaser or lessee has provided for the removal and relocation expense for any facilities devoted to a public use where relocation is necessary for the purposes of the purchaser or lessee. Leases shall be granted by ordinance and shall not exceed 99 years in length. No lease may be granted or use authorized which substantially interferes with the public purpose for which the surface of the land is used.