City of Mayville v. Wis. Dep't of Admin.

Decision Date03 September 2020
Docket NumberAppeal No. 2019AP882
Citation394 Wis.2d 296,2020 WI App 63,950 N.W.2d 925
Parties CITY OF MAYVILLE, Petitioner-Respondent, v. State of Wisconsin DEPARTMENT OF ADMINISTRATION, Respondent-Appellant, Village of Kekoskee, Respondent-Co-Appellant.
CourtWisconsin Court of Appeals

On behalf of the respondent-appellant, the cause was submitted on the briefs of Clayton P. Kawski, assistant attorney general, and Joshua L. Kaul, attorney general. There was oral argument by Clayton P. Kawski.

On behalf of the respondent-co-appellant, the cause was submitted on the briefs of Matthew Parmentier of Dempsey, Edgarton, St. Peter, Petak & Rosenfeldt, Fond du Lac. There was oral argument by Matthew Parmentier.

On behalf of the petitioner-respondent, the cause was submitted on the brief of James W. Hammes of Cramer, Multhauf & Hammes, LLP, Waukesha. There was oral argument by James W. Hammes.

Before Fitzpatrick, P.J., Kloppenburg, and Graham, JJ.

KLOPPENBURG, J.

¶1 This case concerns a cooperative plan (the Plan) prepared pursuant to WIS. STAT. § 66.0307 (2017-18)1 by the Village of Kekoskee and the Town of Williamstown and approved by the Department of Administration (the Department). The Village of Kekoskee is surrounded wholly by the Town of Williamstown's territory. The Plan provides in pertinent part for: (1) the "attachment" by the Village of Kekoskee of all territory located in the Town of Williamstown by eliminating the boundary between the Village of Kekoskee and the Town of Williamstown, resulting in the elimination of the Town of Williamstown; (2) the renaming of the newly expanded Village of Kekoskee as the "Village of Williamstown"; and (3) the creation of a "Village of Williamstown Detachment Area" in portions of what would be the newly expanded Village territory that are "adjacent and proximate" to the City of Mayville.

¶2 The City of Mayville, which is also surrounded wholly by the Town of Williamstown's territory, and which under the Plan would instead be wholly surrounded by Village territory, sought judicial review of the Department's approval of the Plan.2 The circuit court determined that Mayville has standing to seek judicial review of the Department's approval of the Plan. The court also determined that the Department erroneously approved the Plan because WIS. STAT. § 66.0307 "does not allow a Village to absorb an entire Township [as stated in the Plan]." Therefore, the circuit court reversed the Department's decision approving the Plan and remanded the case to the Department.

¶3 The Village and the Department appeal the circuit court's determinations regarding both Mayville's standing and Mayville's challenge to the Department's approval of the Plan. We conclude that Mayville has standing under the applicable judicial review statutes, WIS. STAT. §§ 227.52 and 227.53, because it is aggrieved by the Department's decision approving the Plan in that Mayville's statutory right to be made a party to the Plan was violated. We also conclude that the Department made an error of law in approving the Plan because the Plan does not comply with WIS. STAT. § 66.0307(2). Specifically:

(1) WISCONSIN STAT. § 66.0307(2) requires that a municipality whose boundary is changed or maintained by a cooperative plan under that section must be a party to the cooperative plan;
(2) "change" to a "boundary" or "boundary line" as used in WIS. STAT. § 66.0307 means the physical alteration of, or difference in a geographic line or demarcation of, the limits of an area;3
(3) WISCONSIN STAT. § 66.0307(2) also states that a cooperative plan shall provide one or more of four delineated means by which a boundary line may be changed or maintained, and paragraphs 66.0307(2)(b) and (c) specify two of those means, consisting of optional boundary line changes that may occur subject to conditions set forth in the cooperative plan;
(4) the Plan, through creation of the "Village of Williamstown Detachment Area", provides for optional changes to Mayville's boundary lines subject to the occurrence of conditions set forth in the Plan, but the Plan does not include Mayville as a party.

Accordingly, for reasons separate from those stated by the circuit court, we affirm the circuit court's order reversing the Department's decision and remand to the circuit court to remand to the Department for further proceedings consistent with this opinion.

BACKGROUND

¶4 We present the following undisputed facts to provide context for the discussion that follows. We will state additional pertinent undisputed facts in our discussion of each issue.

¶5 To assist the reader, we include the following map of the affected territories prior to implementation of the Plan, which is Exhibit A of the Plan.

¶6 The unincorporated Town of Williamstown is located in Dodge County, Wisconsin. In 1958, the Village of Kekoskee was incorporated from territory that had been a part of the Town; the territory of the Village is completely surrounded by territory of the Town. The territory of Mayville is also completely surrounded by territory of the Town; Mayville does not share a border with the Village.

¶7 As we will explain in more detail, in 2018 the Village and Town submitted three versions of a proposed cooperative plan to the Department pursuant to WIS. STAT. § 66.0307, the last of which the Department approved. Mayville filed a petition for judicial review challenging the Department's approval of the Plan. The Department and the Village moved to dismiss the petition based on Mayville's lack of standing. The circuit court determined that Mayville has standing to bring this action and denied the motion to dismiss. After briefing and a hearing on the merits of Mayville's challenge, the court issued a comprehensive written decision and order reversing the Department's approval of the Plan based on its determination that § 66.0307 does not allow a cooperative plan "to be used to absorb an entire Township into a Village, as was done here." The circuit court remanded the case to the Department to implement the court's order and stayed the order pending this appeal.

DISCUSSION

¶8 As stated, the Village and the Department appeal the circuit court's determinations that Mayville has standing to seek judicial review and that the Department erroneously approved the plan under WIS. STAT. § 66.0307. We address each issue in turn.

I. Mayville has standing to pursue judicial review of the Department's decision.

¶9 We review de novo a motion to dismiss for lack of standing. Town of Delavan v. City of Delavan, LLL , 160 Wis. 2d 403, 410, 466 N.W.2d 227 (Ct. App. 1991).

¶10 WISCONSIN STAT. §§ 227.52 and 227.53(1) govern the issue of standing to seek judicial review of agency decisions. Town of Delavan , 160 Wis. 2d at 409, 466 N.W.2d 227. Pursuant to § 227.52, "[a]dministrative decisions which adversely affect the substantial interests of any person ... are subject to review as provided in [ WIS. STAT. ch. 227]." Section 227.53(1) provides that "[e]xcept as otherwise specifically provided by law, any person aggrieved by a decision specified in s. 227.52 shall be entitled to judicial review of the decision" subject to certain procedural requirements. Thus, in order to have standing to seek judicial review of an agency decision, a petitioner must be "aggrieved" by the decision, meaning that the petitioner must show that the decision has "a direct effect on [the petitioner's] legally protected interests." Wisconsin's Envtl. Decade, Inc. v. PSC , 69 Wis. 2d 1, 9, 230 N.W.2d 243 (1975).

¶11 In determining whether a party has been "aggrieved," we apply a two-part test. Town of Delavan , 160 Wis. 2d at 410, 466 N.W.2d 227. First, the petitioner must demonstrate that he or she sustained an injury as a result of an agency decision. Id. at 411, 466 N.W.2d 227. The "injury must not be hypothetical or conjectural, but must be ‘injury in fact.’ " Id. "Second, the petitioner must show that the injury is to an interest which the law recognizes or seeks to regulate or protect." Id.

¶12 Because, as discussed in the next section of this opinion, the Plan as approved has a direct effect on Mayville's statutory right to be made a party to the Plan, Mayville has standing to seek judicial review of the Department's decision approving the plan.4

II. The Department made an error of law in approving the plan because the plan does not comply with WIS. STAT. § 66.0307(2).

¶13 The Department and the Village argue that the Department properly approved the Plan because WIS. STAT. § 66.0307 authorizes cooperative plans, such as this one, that eliminate a common boundary line. We need not, and do not, reach this general proposition because we conclude that, on the specific facts of this case, the Plan does not comply with the requirements in § 66.0307(2) as outlined above. We summarize these requirements again for the reader's convenience:

(1) WISCONSIN STAT. § 66.0307(2) requires that "[n]o boundary of a municipality may be changed or maintained under this section unless the municipality is a party to the cooperative [plan];"5
(2) "change" to a "boundary" or "boundary line" as used in WIS. STAT. § 66.0307 means the physical alteration of, or difference in a geographic line or demarcation of, the limits of an area;
(3) WISCONSIN STAT. § 66.0307(2) also states that a cooperative plan shall provide one or more of four delineated means by which a boundary line may be changed or maintained, and paragraphs 66.0307(2)(b) and (c) specify two of those means, consisting of optional boundary line changes that may occur subject to conditions set forth in the cooperative plan;
(4) the Plan through creation of the "Village of Williamstown Detachment Area" provides for optional changes to Mayville's boundary lines subject to the occurrence of conditions set forth in the Plan, but the Plan does not include Mayville as a party.

Accordingly, the Department made an error of law in approving the Plan.

¶14 We first set forth the applicable...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT