Nielsen v. Waukesha County Bd. of Sup'rs

• Decision Date: 28 July 1993
• Docket Number: No. 93-0010,93-0010
• Citation: 178 Wis.2d 498,504 N.W.2d 621
• Parties: Ned NIELSEN, Milton Scholl, Theresa Rojic, B. Lynn Nowak, Donald and Ida Birschel, Mark and Chris Mathews, Gertrude E. Nowak, Daniel Rojic, Andrew and Kathy Marks, Kenneth and Rajina Erback, Virgil Kujawski, Mark and Yvonne Tischer, George and Marge Martin, Ronald Lilland, Donald and Jane Volzka, Robert and Fay Franz, William and Leann Moore, Stanley and Carol Chmielewski, Alice Wilson, Keith and Cathy Farnham, Sophie Weidig, Bernard Heindl, Vernetta L. Wollerman, Randolph and Kathy Kossow and Sara and Chris Christon, Petitioners-Appellants, d v. WAUKESHA COUNTY BOARD OF SUPERVISORS, Lake Keesus Management District, Ken Schuette, Robert A. Schlidt, Nancy Dross, Richard Ray, Walter and Joyce Cook, John Fuchs, Donald Droegkamp, Karl Holt, Don Holt, Tom Milbrath, Kevin Kowalski, Terry Reinders, Mary Schlumpf, Tom Minrath and Dave Sanborn, Respondents-Respondents.
• Court: Wisconsin Court of Appeals

Page 621

504 N.W.2d 621

178 Wis.2d 498

Ned NIELSEN, Milton Scholl, Theresa Rojic, B. Lynn NowakDonald and Ida Birschel, Mark and Chris Mathews, Gertrude E Nowak, Daniel Rojic, Andrew and Kathy Marks, Kenneth and Rajina Erback, Virgil Kujawski, Mark and Yvonne TischerGeorge and Marge Martin, Ronald Lilland, Donald and Jane Volzka, Robert and Fay Franz, William and Leann MooreStanley and Carol Chmielewski, Alice Wilson, Keith and Cathy Farnham, Sophie Weidig, Bernard Heindl, Vernetta L. Wollerman, Randolph and Kathy Kossow and Sara and Chris Christon, Petitioners-Appellants, ^d v.WAUKESHA COUNTY BOARD OF SUPERVISORS, Lake Keesus Management District, Ken Schuette, Robert A. Schlidt, Nancy Dross, Richard Ray, Walter and Joyce Cook, John Fuchs, Donald Droegkamp, Karl Holt, Don Holt, Tom Milbrath, Kevin Kowalski, Terry Reinders, Mary Schlumpf, Tom Minrath and Dave Sanborn, Respondents-Respondents.

No. 93-0010.

Court of Appeals of Wisconsin.

Submitted on Briefs June 11, 1993.

Opinion Released July 28, 1993.

Opinion Filed July 28, 1993.

Before NETTESHEIM, P.J., and BROWN and ANDERSON, JJ.

NETTESHEIM, Presiding Judge.

On this appeal, we affirm the trial court's ruling that the requisite number of valid signatures supported a petition asking the Waukesha County Board of Supervisors to create the Lake Keesus Management District pursuant to subch.IV, ch. 33, Stats.

The appellants are landowners within the district who opposed the creation of the district.They petitioned the circuit court for judicial review of the board's action creating the district and named the county board as an adverse party.The individual respondents, also landowners within the district, supported the creation of the district.Over the objection of the appellants, these individuals, together with the newly created district, were allowed to intervene and to join the county board in resisting the appellants' petition in the circuit court proceeding.Following a hearing, the circuit court rejected the appellants' challenges to the county board's creation of the district and dismissed this petition.We affirm.

STATUTORY PROCEDURE FOR CREATING AN INLAND LAKE PROTECTION

AND REHABILITATION DISTRICT

Before reciting the facts, we summarize the statutory procedure by which a county board may create a public inland lake protection and rehabilitation district.Such a district may be created "for the purpose of undertaking a program of lake protection and rehabilitation of a lake or parts thereof within the district."Section 33.21, Stats.A county board may create such a district.Section 33.24, Stats.¹ First, however, 51% of the landowners within the proposed district must file a petition with the county clerk asking that the district be established.Section 33.25(1), Stats.

The petition must recite the name of the proposed district, the boundaries of the proposed district, the necessity for the proposed district, that the proposed district will promote the public health, comfort, convenience, necessity or public welfare, and that the lands therein will be benefited by the proposed district.Section 33.25(2), Stats.The petition must be accompanied by a plat or sketch indicating the approximate area and boundaries of the proposed district.Section 33.25(3).Finally, the petition must be verified by one of the petitioners.Id.

Upon receiving the petition, the county board must arrange a hearing to be held not later than thirty days from the date of presentation of the petition.Section 33.26(1), Stats.The county board must also appoint a committee to conduct the hearing.Id.

Any person who objects to the organization of the proposed district may file such objections with the county clerk before the hearing date.Id."At the hearing all interested persons may offer objections, criticisms or suggestions as to the necessity of the proposed district as outlined and to the question of whether their property will be benefited by the establishment of such district."Id.

Following the hearing, the committee shall report to the county board.Section 33.26(3), Stats."If it appears to the board, after consideration of all objections, that the petition is signed by the requisite owners as provided in s. 33.25" and if it further appears that the proposed district meets other stated statutory criteria, the board shall create the district.Id."If the board finds against the petition, it shall dismiss the proceedings...."Section 33.26(4)."Any person aggrieved by the action of the board may petition the circuit court for judicial review."Section 33.26(7).

FACTS

The governing facts, while lengthy and somewhat tortured, are not disputed.The petition in this case actually consists of sixteen separate petitions which were circulated by landowners within the proposed district.²Each of these owners/circulators also executed a written statement reciting that "the signatures on the petitions attached hereto are true and correct to the best of his/her knowledge."However, these statements were not actually affixed to the particular petition to which they pertained.In this separate form, these petitions and statements were delivered on July 1, 1991 to the town clerk for the town of Merton.

The town clerk then forwarded these materials to the county clerk together with a letter stating, "The signatures on the enclosed petitions have been verified by this office as accurately as possible using the information we have."The county clerk construed the town clerk's letter as an attempt to meet the verification requirements of sec. 33.25(3), Stats.Because the statute requires that verification of the petition must be made by one of the petitioners and because the town clerk was not one of the petitioners, the county clerk returned the petitions to the town clerk.

Later the same day, the petitions and the statements of the owners/circulators were refiled with the county clerk.This time, however, the statement of each owner/circulator was affixed to the particular petition to which the statement pertained.In this revised form, the county clerk accepted the petitions.In accord with the statutes, the county board scheduled a public hearing, directed its standing Land Conservation Committee to conduct the hearing and published a notice of the hearing.

The committee conducted the public hearing on July 29, 1991.After the hearing, certain petitioners wrote to the county clerk asking to have their names removed from the petitions.The clerk forwarded this information to the committee.On August 20, 1991, the committee met to consider its report to the county board.The discussions at this meeting focused on the validity of some of the petition signatures and the withdrawal requests by some of the petitioners.Ultimately, the committee voted to recommend against the creation of the district.

Thereafter, the committee received additional information from the town clerk regarding the disputed signatures.In light of this information, the committee revisited this matter at a meeting on September 4, 1991.After discussing the issue, the committee voted to reopen its recommendation to the county board.The committee then postponed the matter so that it could acquire additional information regarding the validity of some of the signatures and the withdrawal requests from some of the petitioners.

The committee also consulted the Waukesha county corporation counsel for its opinion.The corporation counsel advised the committee that the petition withdrawal requests did not affect the validity of the petition because the requests had not been presented until after the public hearing.Instead, the corporation counsel advised the committee to consider the withdrawal requests as objections to the proposed district.The corporation counsel also stated that it, together with the county clerk, would investigate the remaining challenges to the signatures and then report back to the committee.

On October 2, 1991, the committee again considered the matter.The committee again voted to recommend against the proposed district.The committee confirmed this recommendation at a subsequent meeting on October 16, 1991, when it approved a report to the county board documenting its rejection of the proposal.

The matter came before the county board on December 17, 1991.It appears, however, that the only issue which the board considered at this meeting was the validity and sufficiency of the signatures on the petitions.After hearing from the corporation counsel on this point, the county board rejected the recommendation of the committee.The county board then sent the matter back to the committee to consider the other statutory criteria.Seesec. 33.25(2)(b) & (c), Stats.

At a meeting on January 2, 1992, the committee determined that the proposed district satisfied the other statutory criteria.Therefore, the committee recommended to the county board that the district be created.At a meeting on January 21, 1992, the county board formally adopted a resolution creating the district.

On judicial review to the circuit court, the appellants raised a host of challenges to the signatures on the petitions.The appellants contended that the alleged defects (in some instances individually and in other instances collectively) reduced the number of valid signatures supporting the petition below the 51% figure required by sec. 33.25(1), Stats.The circuit court rejected the appellants' challenges.They appeal.

For purposes of this appeal, we adopt the county's count of 339 landowners in the proposed district.³Thus, the requisite number of valid petition signatures must total at least 173 (51% of 339, rounded off to the next highest number).The number of signatures on the petitions filed with the county clerk totaled 238.We now examine the appellants' challenges to determine if the requisite number of valid signatures supported the petition.

SCOPE OF REVIEW AND STANDARD OF...