City of Waukesha v. Salbashian
| Decision Date | 15 April 1986 |
| Docket Number | No. 85-0384,85-0384 |
| Citation | 382 N.W.2d 52,128 Wis.2d 334 |
| Parties | CITY OF WAUKESHA, a municipal corporation; Paul Keenan; Theodore Fadrow; and the State of Wisconsin ex rel. City of Waukesha, Paul Keenan, and Theodore Fadrow, Plaintiffs-Respondents, v. Sandra SALBASHIAN, Clerk, Town/City of Pewaukee, Brent J. Redford, Chairman, Town/City of Pewaukee, Scott Klein, Michael Hasslinger, Sherman Jacobs, Douglas Ramstack, all as supervisors of the Town/City of Pewaukee; Town of Pewaukee, a body corporate; and Pewaukee City, a purported municipal corporation, Defendants-Appellants. VILLAGE OF PEWAUKEE, a Wisconsin municipal corporation, Plaintiff-Respondent, v. Sandra SALBASHIAN, Clerk, Town/City of Pewaukee, Brent J. Redford, Chairman, Town/City of Pewaukee, Scott Klein, Michael Hasslinger, Sherman Jacobs, Douglas Ramstack, all as Supervisors of the Town/City of Pewaukee; Town of Pewaukee, a body corporate; and Pewaukee City, a purported municipal corporation, Defendants-Appellants. |
| Court | Wisconsin Supreme Court |
Richard K. Nordeng, Madison, argued, for defendants-appellants; Stafford, Rosenbaum, Rieser & Hansen, Madison, on brief.
Harold H. Fuhrman, Special Counsel, Milwaukee, argued, for plaintiff-respondent, City of Waukesha; George E. Lawler, City Atty., Gerald T. Janis, Asst. City Atty.
Timothy P. Garrity, Milwaukee, for plaintiff-respondent, Village of Pewaukee.
This appeal concerns a judgment of the circuit court for Waukesha county, Judge Willis J. Zick, in which the court ruled that the Town of Pewaukee's attempt to incorporate as a fourth-class city under sec. 60.81, Stats., 1981-82, was invalid because Pewaukee is not adjacent to a first-class city. The court concluded that "adjacent," as used in sec. 60.81, means contiguous. Because Pewaukee is six miles from the city of Milwaukee, the nearest first-class city, the court held that Pewaukee is not adjacent to a first-class city and cannot avail itself of the special incorporation procedures found in sec. 60.81. Pewaukee petitioned to bypass the court of appeals, and we granted the petition. Our review focuses on two questions: (1) Do the plaintiffs, City of Waukesha, Village of Pewaukee, Paul Keenan, and Theodore Fadrow, have standing to challenge the incorporation? (2) If so, does "adjacent," as used in sec. 60.81, mean "contiguous" or "near"? Because we conclude that the plaintiffs have standing to challenge the incorporation and because we construe adjacent to mean contiguous, we affirm the circuit court's judgment.
Section 60.81, Stats., 1981-82, establishes a special incorporation procedure for towns which satisfy certain requirements. Although the legislature renumbered sec. 60.81 as sec. 66.012, Stats., effective May 18, 1984, we will refer to the statute as sec. 60.81 throughout this opinion because the case actually was commenced under sec. 60.81. 1 Specifically, sec. 60.81 requires the On February 20, 1984, residents of the Town of Pewaukee (Pewaukee) filed a petition with the Pewaukee town clerk requesting that proceedings be commenced for the incorporation of the town as a fourth-class city under sec. 60.81, Stats. More than one hundred persons, each an elector and taxpayer of Pewaukee, representing more than one-half of the owners of real estate in Pewaukee, signed the petition. 2
following: The town must have a resident population exceeding 5,000, must have an equalized [128 Wis.2d 341] valuation exceeding $20,000,000, and must be adjacent to a city of the first-class. In addition, at least one hundred persons who are both electors and taxpayers of the town and who represent more than one-half of the town's real estate owners must sign a petition requesting an incorporation referendum.
With a population of 8,922, as of 1980, and an assessed valuation in excess of $300,000,000, as of 1984, Pewaukee easily satisfied the population and valuation requirements of sec. 60.81, Stats. The people who signed the petition apparently believed that Pewaukee also satisfied the requirement that the town be located "adjacent to a city of the first class," even though it is six miles from Milwaukee, the nearest first-class city.
At its first regular meeting after the filing of the petition, the Pewaukee town board adopted a resolution providing for a sec. 60.81, Stats., incorporation referendum scheduled for April 3, 1984. The referendum was conducted as scheduled. By a margin of 1,160 to 438 the residents of Pewaukee voted to incorporate as a city.
On April 4, 1984, the Pewaukee town clerk certified to the Secretary of State for the state of Wisconsin that a majority of the votes cast were in favor of incorporation and delivered to the Secretary of State four copies of a description of the legal boundaries of Pewaukee. On the same date, the Secretary of State issued and duly recorded a certificate of incorporation in the name of Pewaukee City.
On April 9, 1984, as the interim board began preparing for Pewaukee's first city election, the city of Waukesha (Waukesha) commenced a declaratory judgment action After hearing oral argument on the parties cross-motions for summary judgment, the circuit court filed its decision on February 4, 1985. The court's decision initially focused on whether the plaintiffs had standing to bring an action challenging the incorporation of Pewaukee. Pewaukee claimed that under sec. 784.04(1)(c), Stats., quo warranto is the exclusive method for challenging municipal incorporation. It asserted that the plaintiffs lacked standing to bring a quo warranto action. The circuit court, however, concluded that sec. 784.04(1)(c) does not apply to a challenge to the validity of a municipal incorporation. Because the plaintiffs were not precluded from challenging the incorporation through means other than quo warranto, the court, relying upon City of Madison v. Town of Fitchburg, 112 Wis.2d 224, 332 N.W.2d 782 (1983), ruled that the plaintiffs had standing to pursue a declaratory judgment action. 3
asking the court to declare the incorporation[128 Wis.2d 343] illegal and to enjoin the members of the board from taking any further action regarding the incorporation of Pewaukee as a city. On April 27, 1984, Waukesha filed an amended complaint, adding a claim for quo warranto relief and adding two additional plaintiffs: Paul Keenan, mayor of Waukesha; and Theodore Fadrow, mayor of Franklin and a landowner and taxpayer in Pewaukee. On May 4, 1984, the village of Pewaukee (Village) filed a declaratory judgment action. The suits were consolidated for purposes of scheduling, hearing, and decision.
Next, the court addressed whether adjacent mean contiguous or near. Because "adjacent" is not defined in sec. 60.81, Stats., the court undertook a semantical and historical analysis of sec. 60.81 to determine which interpretation of adjacent best serves the legislature's intent. The court found that in enacting sec. 60.81 the legislature expressed concern about annexation by Milwaukee. Because annexation requires contiguity and because the statute is much more precise and less problematic if adjacent is defined as contiguous, the court held that adjacent means contiguous in the context of sec. 60.81.
Having concluded that adjacent means contiguous, the court finally determined that Pewaukee was not adjacent to Milwaukee, the nearest first-class city, because six miles separate their closest boundaries. As a result the court filed its judgment on February 19, 1985, granting the plaintiffs' motions for summary judgment and declaring invalid the incorporation of Pewaukee and the certificate of incorporation which Pewaukee received from the Secretary of State. Because Pewaukee planned to appeal, the circuit court granted Pewaukee's motion for a stay and injunction during the pendency of the appeal. 4
Pewaukee filed a notice of appeal on February 19, 1985. On August 8, 1985, Pewaukee filed a petition to bypass which this court granted on September 10, 1985. This court heard oral argument on January 7, 1986.
Under sec. 802.08(2), Stats., summary judgment is appropriate when there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law. In reviewing a circuit court's grant of summary judgment, an appellate court applies this same standard.
Kremers-Urban Co. v. American Employers Insurance Co., 119 Wis.2d 722, 733, 351 N.W.2d 156 (1984). An appellate court must reverse a grant of summary judgment if the record reveals that material facts are in dispute or that a legal issue was decided incorrectly. Prince v. Bryant, 87 Wis.2d 662, 666, 275 N.W.2d 676 (1979).
In challenging the legality of the incorporation of Pewaukee, Waukesha and the Village primarily rely upon their assertion that Pewaukee is not "adjacent to a city of the first class." They claim that adjacent means contiguous. Because six miles separate Pewaukee from Milwaukee, the nearest first-class city, Waukesha and the Village argue that Pewaukee was not entitled to incorporate under the procedures delineated in sec. 60.81, Stats.
Pewaukee maintains that adjacent means near. It asserts that it satisfies the adjacent requirement precisely because it is only six miles from Milwaukee proper and is within "urbanized, metropolitan Milwaukee" as officially determined by the United States Census Bureau. In addition, Pewaukee contends that Waukesha, the Village, and the named individuals lack standing to challenge its incorporation.
If the circuit court was correct in deciding that quo warranto is not applicable, then under City of Madison v. Town of Fitchburg, supra, the plaintiffs clearly would have standing to challenge Pewaukee's incorporation in a declaratory judgment action. Therefore, standing would not be an issue. If the circuit court was wrong, however, and quo warranto is applicable, standing becomes a crucial...
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