City of Madison v. Town of Fitchburg

Decision Date01 June 1983
Docket NumberNo. 82-1218,82-1218
Citation332 N.W.2d 782,112 Wis.2d 224
PartiesCITY OF MADISON and Russell E. Mueller, Plaintiffs-Respondents, v. TOWN OF FITCHBURG, Defendant-Appellant.
CourtWisconsin Supreme Court

Richard K. Nordeng, Madison, argued, for defendant-appellant; Carolyn P. Lazar and Stafford, Rosenbaum, Rieser & Hansen, Madison, on brief.

James M. Voss, Asst. City Atty., Madison, argued, for plaintiffs-respondents; Henry A. Gempler, City Atty., and Russell E. Mueller, Madison, on brief.

Burt P. Natkins, legal counsel, Madison, for amicus curiae the League of Wis. Municipalities.

CALLOW, Justice.

This is an appeal from a Dane county circuit court declaratory judgment and order granting a permanent injunction. The circuit court declared the Town of Fitchburg's incorporation Resolution No. 5-81 and the results of its April 7, 1981, referendum null and void and enjoined Fitchburg from certifying the referendum results to the Wisconsin Secretary of State. Fitchburg appealed and petitioned to bypass the court of appeals pursuant to sec. 808.05 and sec. (Rule) 809.60, Stats. We granted the petition to bypass.

On March 24, 1980, a petition requesting an incorporation referendum for Fitchburg under sec. 60.81, Stats., was filed with the Fitchburg Town Clerk. The petition was signed by 2,167 persons who owned real estate in Fitchburg. On March 31, 1980, the Fitchburg Town Board adopted Resolution No. 9-80 which scheduled a sec. 60.81 incorporation referendum for June 3, 1980. The resolution established notice procedures and set forth wards and boundaries for the proposed city. 1 The city of Madison (Madison) sued to enjoin the referendum. The circuit court granted the injunction. Ultimately, however, this court vacated the injunction, holding that the trial court lacked personal jurisdiction over Fitchburg. In re Incorporation of Town of Fitchburg, 98 Wis.2d 635, 299 N.W.2d 199 (1980).

Subsequently, the Fitchburg Town Board passed Resolution No. 5-81 which rescheduled the sec. 60.81, Stats., referendum for April 7, 1981. 2 Madison and Russell Mueller then brought this action to invalidate the resolution and enjoin the referendum. On April 2, 1981, the circuit court denied the plaintiffs' motion for a temporary injunction. The court further ordered, however, that if the majority of votes cast were in favor of incorporation, the town clerk was enjoined from certifying the referendum results to the Wisconsin Secretary of State until it had been finally determined whether sec. 60.81 validly applied to Fitchburg. The referendum was held as scheduled on April 7, 1981. The Fitchburg residents voted by a margin of 1,637 to 304 to incorporate as a city.

Following the referendum, the merits of the case were put before the circuit court on motions for summary judgment brought by both sides. The circuit court held that Madison has standing to maintain this action but did not reach the question of Russell Mueller's standing. The court further held that Fitchburg could not use sec. 60.81, Stats., to incorporate because it is not " 'adjacent to a city of the first class.' " On May 21, 1982, the court entered a declaratory judgment and order which invalidated Resolution No. 5-81 and the referendum results and permanently enjoined Fitchburg from certifying the referendum results to the Wisconsin Secretary of State. Fitchburg appealed.

There are two issues presented on this appeal: (1) whether Madison and Russell Mueller have standing to maintain this action for declaratory judgment, and (2) whether the incorporation procedures set forth in sec. 60.81, Stats., are available to the residents of Fitchburg.

I.

In order to properly maintain a declaratory judgment action, " '[t]here must exist a justiciable controversy--that is to say:

" '(1) A controversy in which a claim of right is asserted against one who has an interest in contesting it.

" '(2) The controversy must be between persons whose interests are adverse.

" '(3) The party seeking declaratory relief must have a legal interest in the controversy--that is to say, a legally protectible interest.

" '(4) The issue involved in the controversy must be ripe for judicial determination.' " Loy v. Bunderson, 107 Wis.2d 400, 410, 320 N.W.2d 175 (1982); Klaus v. Vander Heyden, 106 Wis.2d 353, 364, 316 N.W.2d 664 (1982); State ex rel. La Follette v. Dammann, 220 Wis. 17, 22, 264 N.W. 627 (1936).

It is the third component of justiciability which is at issue in this case. The legal interest requirement has often been expressed in terms of standing. Tooley v. O'Connell, 77 Wis.2d 422, 438, 253 N.W.2d 335 (1977). In order to have standing to sue, a party must have a personal stake in the outcome of the controversy. Mast v. Olsen, 89 Wis.2d 12, 16, 278 N.W.2d 205 (1979); Tri-State Home Improvement Co., Inc. v. Labor & Industry Review Commission, 111 Wis.2d 103, 113, 330 N.W.2d 186 (1983); Moedern v. McGinnis, 70 Wis.2d 1056, 1064, 236 N.W.2d 240 (1975).

Fitchburg challenges Madison's standing on the ground that it does not have a legal interest in the sec. 60.81, Stats., incorporation proceeding. Unlike Chapter 66, 3 sec. 60.81 does not specifically grant standing to neighboring municipalities. According to Fitchburg, this court has previously decided that without such a standing provision a city cannot maintain an action to prevent the electors of an adjacent town from choosing to incorporate.

In Schatzman v. Greenfield, 273 Wis. 277, 77 N.W.2d 511 (1956), the plaintiff brought an action seeking to enjoin an incorporation referendum by the town of Greenfield. The city of Milwaukee petitioned for leave to intervene and be interpleaded, claiming that it had a substantial stake in the controversy. Milwaukee's alleged interests in the action were as follows: It had begun to annex certain town areas; it was already servicing those areas to some extent; Greenfield's incorporation would thwart its expansion; and it owned property in the town. This court held that these interests did not make Milwaukee a necessary party, and, therefore, the trial court did not err in denying the petition. We also suggested that Milwaukee may not have been a proper party to the action.

We considered essentially the same question in Milwaukee v. Oak Creek, 8 Wis.2d 102, 98 N.W.2d 469 (1959). In that case Milwaukee challenged the incorporation of Oak Creek under sec. 60.81, Stats. Oak Creek demurred to the complaint alleging, among other things, that Milwaukee lacked standing to sue. The trial court sustained the demurrer. On appeal Milwaukee contended that it had standing by virtue of its ownership of property in Oak Creek and an annexation attempt. This court upheld the ruling of the trial court, finding that no rights or interests of Milwaukee were adversely affected by Oak Creek's incorporation.

Fitchburg argues that under Greenfield and Oak Creek, Madison is without standing to maintain this action. We disagree. Those cases do not compel such a result. 4 Since the Greenfield and Oak Creek decisions, the Wisconsin rules of standing have been liberalized. In Wisconsin's Environmental Decade, Inc. v. PSC, 69 Wis.2d 1, 13, 230 N.W.2d 243 (1975), we held that "the law of standing in Wisconsin should not be construed narrowly or restrictively." 5 Indeed, we have recently recognized that even a trifling interest may be sufficient to confer standing. State ex rel. First National Bank v. M & I Peoples Bank, 95 Wis.2d 303, 309, 290 N.W.2d 321 (1980). Thus interests which were not sufficient to establish standing when Greenfield and Oak Creek were decided may enable a party to maintain an action under current notions of standing.

Madison has the same interests in this controversy as Milwaukee had in Greenfield: It owns property in Fitchburg; it has instituted annexation proceedings for parts of Fitchburg; Fitchburg residents receive certain services from Madison and make use of Madison's facilities; and Fitchburg's incorporation will hinder Madison's growth by precluding future annexation of the Fitchburg area. Madison's stake in this case is not, however, limited to these interests. The incorporation of Fitchburg under sec. 60.81, Stats., would extinguish Madison's extraterritorial zoning and plat approval jurisdiction in the Fitchburg area. These powers, which are conferred by secs. 62.23(7a), 236.02(2), and 236.10, enable Madison to protect itself from hazardous or undesirable land uses within three miles of its corporate limits. Madison's extraterritorial jurisdiction is limited, however, to unincorporated lands by sec. 66.32. 6 Thus, if Fitchburg becomes a city, Madison will be precluded from regulating land use for its general welfare within this extraterritorial zone.

Madison also has an interest in protecting its city classification status. If Madison were elevated from a city of the second class to the first class, it would be required to make changes in its governmental structure and operations. Although Fitchburg does not attempt to force Madison to become a city of the first class, its effort to incorporate under sec. 60.81, Stats., implies that Madison has reached that status.

We conclude that, taken together, the aforementioned interests establish that Madison has a personal stake in the outcome of this controversy. Therefore, under the current law of standing Madison may properly maintain this action.

Fitchburg also contests Russell Mueller's standing. Mueller contends that he has a legal interest in this controversy because by incorporating under sec. 60.81, Stats., Fitchburg will deprive him the opportunity to participate in the pending incorporation proceedings under Chapter 66. Mueller further maintains that several procedural irregularities committed by Fitchburg in implementing the sec. 60.81 incorporation process injured him. Lastly, Mueller joins Madison in the assertion that sec. 60.81 violates ...

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