City of Beloit v. Towns of Beloit, Turtle and Rock, in Rock Co.

• Decision Date: 05 June 1970
• Docket Number: No. 236,236
• Citation: 47 Wis.2d 377,177 N.W.2d 361
• Parties: In re Application of City of Beloit for Order for Annexation Referendum. CITY OF BELOIT, Appellant, v. TOWNS OF BELOIT, TURTLE AND ROCK, IN ROCK CO., Wis., Respondents.
• Court: Wisconsin Supreme Court

Page 361

177 N.W.2d 361

47 Wis.2d 377

In re Application of City of Beloit for Order for Annexation Referendum CITY OF BELOIT, Appellant, v. TOWNS OF BELOIT, TURTLE AND ROCK, IN ROCK CO., Wis., Respondents.

No. 236.

Supreme Court of Wisconsin.

June 5, 1970.

Rehearing Denied Sept. 1, 1970.

This is an appeal from a judgment dismissing a proposed annexation by the City of Beloit on its merits. The [47 Wis.2d 379] annexation was proposed by the City of Beloit in a resolution it adopted on January 30, 1968.

The respondents are the Towns of Beloit, Turtle and Rock, al of which have some land within the area of this proposed annexation.

The appellant, City of Beloit, appeals from those portions of the judgment which determined that the proposed annexation violated the constitutional rule of reason and was, therefore, invalid and of no effect, and which awarded the respondents' attorney's fees as an item of disbursement.

Samuel B. Loizzo, City Atty., Beloit, Orr, Isaksen, Werner, Lathrop & Heaney, Special Counsel, Madison, for appellant.

Garrigan, Keithley, O'Neal, Dobson, Elliott & DeLong, Beloit, Brady, Tyrrell, Cotter & Cutler, Milwaukee, for Town of Beloit.

Caskey & Collins, Beloit, for Town of Turtle.

Campbell, Brennan, Steil & Ryan, Janesville, for Town of Rock; Richard W. Cutler, Samuel J. Recht, Milwaukee; Roger D. O'Neal, David Y. Collins, Beloit, David J. MacDougall, Janesville, Michael J. Spector, Milwaukee, for respondents.

CONNOR, T. HANSEN, Justice.

The City of Beloit's proposed annexation covers the identical territory which was the subject of an ordinance adopted on February 6, 1967, and held invalid in In re City of Beloit (v. Town of Beloit) (1968), 37 Wis.2d 637, 155 N.W.2d 633. The proposed annexation, now under consideration, is brought pursuant to sec. 66.024, Stats. Both this action and the annexation previously before this court are known as Caravilla Annexations, the name being dervied from the initiator of the first proceeding, Carvilla, Inc., which owns a nursing home located in the proposed annexation area.

The illustration, prepared by this court from the various exhibits in the record, will help put this dispute in perspective. The Caravilla Nursing Home, located in the Town of Rock, is shown at the extreme north of the proposed annexation area. The power plant is in the Town of Beloit and is located northeast of the Rock river, also in the proposed annexation area.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Further background is provided by the following findings of the trial court:

'29. The territory proposed for annexation contains 2.694 acres of land (more than four square miles) and is populated by approximately 436 persons; 33 in the Town of Beloit, 40 in the Town of Turtle, 23 in the Town of Rock outside the Caravilla Nursing Home and approximately 340 in the Town of Rock inside the nursing home. The annexation extends about 2 1/4 miles north of the City's present boundary.

'30. The territory lies between the north boundary of the City of Beloit and the south boundary of the City of Janesville. * * *

'31. The power plant is located in the northeast corner of the Town of Beloit. The Town of Beloit's share of tax revenues from this plant was $253,550.00 in the year 1967, or approximately 16% of the Town of Beloit receipts from all sources and approximately 39% of the Town receipts from sources other than state, county and school tax levies, which levies merely pass through the Town treasury. This sum represents approximately 3% of the City of Beloit's receipts from all sources.

'32. The present proceedings is the fifth in a series of coordinated attempts (Project X) to annex lands (including the power plant) in the Town of Beloit. The City's initial attempt at annexation as a proceeding under section 66.024 of the statutes, published September 7, 1966, to annex approximately 13 square miles, including the centers of population in the Towns of Beloit and Turtle. This attempt was defeated in December, 1966, by the filing of protest petitions signed by approximately 2,606 electors comprising approximately 75 per cent of the electors residing in the territory sought to be annexed. During this time, September-October, 1966, a petition for annexation was drafted by the City (the Branigan annexation) omitting these centers of population from the territory sought to be annexed so that only 32 Town of Beloit and Town of Turtle electors resided in the new 2 1/2 square mile annexation area. The power plant was still included in this annexation at the request of the City. The Branigan petitions were never signed by a sufficient number of electors and property owners. Then, in December, 1966, a new and third petition (Caravilla No. 1) was drafted still including the power plant at the suggestion of the City, but adding for the first time a half square mile of the Town of Rock which contained a nursing home inhabited by approximately 340 persons. This nursing home was more than two miles from the northernmost city limits of the City of Beloit. This third annexation was adopted by the City on February 6, 1967. Finally, the City, in March, 1967, attempted again to annex the centers of population in the Towns of Beloit and Turtle by nine new 66.024 annexations, but these attempts were again defeated by protest petitions signed by the overwhelming majority of electors. On January 30, 1968, within hours of the Supreme Court's decision that the third annexation attempt (Caravilla No. 1) was invalid, the City adopted a resolution under section 66.024 setting forth its intention to initiate the present proceedings. The area selected by the City to be annexed was exactly the same as the area involved in the third annexation attempt. The five attempted annexations can be summarized as follows:

                                                                Approximate
                "No.       Name             Date Started        Square Miles
                ----  ---------------  -----------------------  ------------
                 1    Community        September 7, 1966             13
                 2    Branigan         September-October, 1966        2 1/2
                 3    Caravilla No. 1  December, 1966                 4
                 4    9 Annexations    March, 1967                    7
                 5    Caravilla No. 2  January 30, 1968               4"
                

RULE OF REASON

In Town of Brookfield v. City of Brookfield (1957), 274 Wis. 638, 80 N.W.2d 800, this court held that an annexation must be a reasonable one:

'The authorities in thickly settled areas are becoming more conscious of the necessity for reasonable plans for orderly suburban development. It is clear that the time has come to consider that as an element in reviewing annexation cases. In order to properly plan for the development of areas adjacent to a city it is now necessary to see that areas bordering the same are properly zoned and platted so that through streets may be provided for and so that slums will not develop along the borders of cities that will involve many problems and much expense in future development.

'* * * On the motion for review we hold that questions involving the reasonable suitability and adaptability and the reasonable necessity for the proper growth, development, and welfare of a city are material and relevant in reviewing annexation proceedings.' Town of Brookfield v. City of Brookfield, supra, pp. 645, 646, 80 N.W.2d p. 804.

In Town of Fond du Lac v. City of Fond du Lac (1964), 22 Wis.2d 533, 126 N.W.2d 201, the boundary line of the annexed areas was drawn so as to create an island in the middle of the annexed territory and existing city limits. The rule of reason was applied and the annexation held invalid: 'Creating an island within the city solely for the purpose of assuring the success of the annexation was an arbitrary and capricious action and an abuse of discretion and invalidates the annexation.' Town of Fond du Lac v. City of Fond du Lac, supra, p. 542, 126 N.W.2d p. 205.

The rule of reason was held applicable to an annexation proceeding under sec. 66.024, Stats., in Village of Elmwood Park v. City of Racine (1966), 29 Wis.2d 400, 139 N.W.2d 66. In that case, this court concurred in the conclusion reached by the trial court that the annexation was violative of the rule of reason. The trial court's memorandum decision was quoted wherein the following were noted as relevant in applying the rule of reason: (1) The annexation in its entirety should be considered; (2) increase in population and overflow in growth beyond the boundaries of a city; (3) need for additional area for construction of homes and industry to accommodate the present or reasonably anticipated future growth of a municipality; and (4) extension of police, fire, sanitary protection or other services to substantial numbers of residents of adjacent areas. In affirming, this court emphasized the requirement that a municipality demonstrate a present or future need for the territory.

'The trial court found, and appellants do not dispute, the Elmwood Park had no reasonable basis to annex Mt. Pleasant, there being no present need or demonstrable future need for that territory. Without a showing of some reasonable need, the proceeding, in legal parlance, is arbitrary and capricious, and contrary to the rule of reason. * * *' Elmwood Park v. Racine, supra, pp. 412, 413, 139 N.W.2d p. 72.

In In re City of Beloit, supra, the procedures in sec. 66.021(11)(b), Stats., were held unconstitutional. Respondents in that case (appellants in this one) urged that the definition of 'public interest' in sec. 66.021 was a codification of the rule of reason. However, the broad definition of public interest was not applicable because sec. 66.021 confined that term to three factors: Government service, shape and homogeneity. Sec. 66.021(11)(c). Nevertheless, judicial determination of public interest in sec. 66.021(11)(b) was held not to be the same function as applying the rule of reason and, therefore, the statute was not saved...