Town of Lincoln v. City of Whitehall

2018 WI App 33, 912 N.W.2d 403, 382 Wis. 2d 112
CourtCourt of Appeals of Wisconsin
DecidedApril 17, 2018
DocketAppeal No. 2017AP684-AC
StatusPublished
Cited by3 cases

This text of 2018 WI App 33 (Town of Lincoln v. City of Whitehall) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Town of Lincoln v. City of Whitehall, 2018 WI App 33, 912 N.W.2d 403, 382 Wis. 2d 112 (Wis. Ct. App. 2018).

Opinion

HRUZ, J.

*119¶ 1 The Town of Lincoln appeals a grant of summary judgment in favor of the City of Whitehall concerning a grassroots annexation procedure known as "direct annexation by unanimous approval."1 The Town sought a declaratory judgment that annexation ordinances passed by the City detaching territory from the Town were invalid. The circuit court concluded the Town, under the facts of this case, was statutorily barred from challenging the ordinances on any basis except the requirement that the annexed territory be contiguous to the annexing municipality. The court subsequently granted the City's summary judgment motion on the Town's contiguousness claim.

¶ 2 Under the undisputed facts here, we first conclude the circuit court properly dismissed all of the Town's claims other than the statutory contiguousness claim. Based upon the interplay between various provisions of the direct annexation statute-namely, WIS. STAT. § 66.0217(6)(d)1., (6)(d)2., and (11)(c) -we conclude a town is limited in a court action to challenging contiguity and county parallelism, the latter of which is not at issue here. Given this statutory bar, the court properly concluded that only the Town's challenge to contiguity remained viable.

*407*120¶ 3 We also conclude the circuit court properly granted summary judgment on the Town's contiguousness claim. Contiguity between the annexed territory and the annexing municipality is satisfied, at a minimum, in instances where there is a significant degree of physical contact between the two. That is plainly the case here, where the annexed territory shares an approximately three-quarter-mile border with the City.

¶ 4 We further conclude summary judgment in the City's favor was appropriate to the extent statutory contiguity also requires that the annexed territory not be arbitrarily selected for inclusion. Because the petition at issue was owner initiated, the relevant case law instructs that a town can challenge arbitrariness only if the annexation is of an exceptional shape, or if the annexing municipality is itself either a petitioner or the "real controlling influence" behind the annexation. We conclude, as a matter of law, that the annexed territory here is of an "unexceptional shape" that does not warrant further scrutiny of the territory's boundaries. Further, based on the record evidence before us, no factfinder could reasonably conclude the City was either a petitioner or the "real controlling influence" directing the annexation proceedings. Consequently, we affirm.

BACKGROUND

¶ 5 In 2015, the City of Whitehall's common council passed four annexation ordinances detaching territory from the Town of Lincoln. The annexation was the initiative of Whitehall Sand and Rail, LLC, which was interested in locating a sand mine to the northwest of the City's then-current borders and desired to have it within the City limits. Whitehall Sand and Rail selected the property to be included in the *121annexed territory, and then it approached the property owners with offers to purchase their land, contingent on annexation.2

¶ 6 The annexation was to occur in four phases, with the territory in each phase the subject of a separate ordinance.3 Phase one consisted of approximately 277 acres extending northward from the City's northern boundary, where the annexed territory and the City shared a border of approximately three-quarters of one mile. Phase two consisted of 292 acres, arranged in a ribbon approximately one-fourth mile wide, extending northwesterly from the northwestern corner of the phase one territory. Phase three consisted of approximately 380 acres, connected to phase two at its southern edge for approximately one-fourth mile before expanding both to the north and to the west. Finally, phase four consisted of approximately 300 acres located to the west of phase three; phases three and four shared a boundary of approximately one-half mile.

¶ 7 Each of the ordinances was adopted pursuant to a method of annexation known as "direct annexation by unanimous approval." This is a grassroots annexation method that requires "all of the electors residing in the territory and the owners of all of the real property in the territory" to petition the city or village for direct annexation. WIS. STAT. § 66.0217(2). Such annexation petitions are presented to the municipality *122on a "take it or leave it" basis. See *408Town of Lyons v. City of Lake Geneva , 56 Wis. 2d 331, 338, 202 N.W.2d 228 (1972). Subject to certain filing requirements and a statutory requirement that the annexed territory be "contiguous" to the annexing authority, the municipality may adopt an annexation ordinance by a two-thirds vote of its governing body. Sec. 66.0217(2).

¶ 8 The Town here sought review of the annexation from the Wisconsin Department of Administration (the Department), as was its right under WIS. STAT. § 66.0217(6)(d). The Department concluded the annexation violated statutory contiguity because the territory was in an impermissible configuration. Specifically, the Department concluded the annexation was a "balloon-on-a-string" configuration because phase two was a "long and narrow corridor of territory which primarily serves to connect the much larger territory" in phases three and four.

¶ 9 After receiving the Department's favorable findings, the Town invoked its right to commence this declaratory judgment action seeking a court declaration that the annexation ordinances were invalid and unenforceable. In addition to challenging the annexed territory's contiguity to the City, the Town made several other claims, including that: (1) the annexation petitions were procedurally defective because they were not signed by all the owners of the real property in the territory; (2) the ordinances were arbitrary and violated the "rule of reason," a judicially created method of reviewing a municipality's exercise of its annexation power; and (3) the City, not the individual petitioners, was the real controlling influence behind the annexation petitions.

¶ 10 The City filed a motion to dismiss all of the Town's claims except its contiguousness claim, asserting *123the Town was barred from challenging those matters under WIS. STAT. § 66.0217(11)(c). The circuit court agreed that para. (11)(c) barred all but the Town's contiguousness claim. The City then filed a motion for summary judgment, asserting statutory contiguity was satisfied as a matter of law because the annexed territory shared an approximately three-quarter mile border with the City and the territory was of an unexceptional shape.

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Related

Town of Wilson v. City of Sheboygan
2020 WI 16 (Wisconsin Supreme Court, 2020)
Town of Lincoln v. City of Whitehall
2019 WI 37 (Wisconsin Supreme Court, 2019)

Cite This Page — Counsel Stack

Bluebook (online)
2018 WI App 33, 912 N.W.2d 403, 382 Wis. 2d 112, Counsel Stack Legal Research, https://law.counselstack.com/opinion/town-of-lincoln-v-city-of-whitehall-wisctapp-2018.