Town of Baraboo v. Village of West Baraboo

• Decision Date: 28 April 2005
• Docket Number: No. 2004AP980.,2004AP980.
• Citation: 699 N.W.2d 610,2005 WI App 96,283 Wis.2d 479
• Parties: TOWN OF BARABOO, Plaintiff-Appellant, v. VILLAGE OF WEST BARABOO, Defendant-Respondent, LIVING TRUST OF Lloyd and Karen BYXBE and N. Robert Byxbe, Intervenors-Defendants.
• Court: Wisconsin Court of Appeals

283 Wis.2d 479

2005 WI App 96

699 N.W.2d 610

TOWN OF BARABOO, Plaintiff-Appellant, v. VILLAGE OF WEST BARABOO, Defendant-Respondent, LIVING TRUST OF Lloyd and Karen BYXBE and N. Robert Byxbe, Intervenors-Defendants.

No. 2004AP980.

Court of Appeals of Wisconsin.

Submitted on briefs October 14, 2004.

Decided April 28, 2005.

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Wayne L. Maffei and Natalie T. Bussan of Cross, Jenks, Mercer and Maffei, Baraboo.

On behalf of the defendant-respondent, the cause was submitted on the brief of Michael S. Heffernan, Stephan J. Nickels and Allen A. Arntsen of Foley & Lardner, LLP, Madison.

Before Deininger, P.J., Dykman and Vergeront, JJ.

¶ 1. DEININGER, P.J.

The Town of Baraboo appeals a judgment that upheld an annexation by the Village of West Baraboo. The Town claims that the challenged annexation was invalid because (1) the Village improperly granted eleven separate annexation petitions in a single ordinance; (2) the Village failed to notify the Department of Administration and the Town that a twelfth petition would not be granted; and (3) the annexation violates the "rule of reason." The Town also claims the circuit court erred in deciding that the Town lacked standing to challenge the Village's amendment of a tax incremental financing (TIF) district to include newly annexed land. We reject the Town's contentions and affirm the appealed judgment.

BACKGROUND

¶ 2. The owners of twelve parcels of land situated in the Sauk County Town of Baraboo filed separate petitions under WIS. STAT. § 66.0217(2) (2003-04)¹ to annex their parcels to the Village of West Baraboo. The Village submitted the proposed annexations to the Department of Administration for its "advice" as required by § 66.0217(2). See also § 66.0217(6) (providing that department is to opine whether a proposed annexation is "in the public interest or is against the public interest" and notify the annexing body and affected town of its opinion). The department informed the Village and Town clerks by letter that it found the "proposed annexation ... not to be against the public interest," and it recommended that the several annexations "be acted upon as a group (as they depend upon one another for contiguity with the existing municipal limit line)."

¶ 3. The Village enacted a single ordinance annexing the land comprising eleven of the twelve petitions. The twelfth parcel was not included because its owner no longer wished that parcel to be annexed.

¶ 4. The Town commenced an action to have the annexation declared "unlawful and invalid." The Town sought a similar declaration regarding the Village's subsequent amendment of an existing TIF district to include some of the newly annexed land. On the Village's motion, the circuit court dismissed the Town's challenge to the amended TIF district, concluding that the Town lacked "a sufficient legally protectible interest to maintain this claim." Both parties then moved for summary judgment on the annexation challenge. The circuit court granted the Village's motion and denied the Town's. The court entered a judgment that declared the annexation in compliance with WIS. STAT. § 66.0217 and the rule of reason. The Town appeals.

ANALYSIS

¶ 5. We review the granting and denial of motions for summary judgment de novo, applying the same methodology and standards as the trial court. See Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987)

. If there are no disputed issues of material fact, summary judgment is proper where the moving party is entitled to judgment as a matter of law. See id. When, as here, both parties move for summary judgment and neither argues that factual disputes bar the other's motion, the "`practical effect is that the facts are stipulated and only issues of law are before us.'" See Lucas v. Godfrey, 161 Wis. 2d 51, 57, 467 N.W.2d 180 (Ct. App. 1991) (quoted source omitted).

Single Annexation Ordinance

¶ 6. The Town's first claim is that the Village violated WIS. STAT. § 66.0217(2) when it enacted a single ordinance to annex parcels that were the subject of eleven separate annexation petitions. The proper interpretation of § 66.0217(2) presents a question of law, which we review de novo. See State v. Setagord, 211 Wis. 2d 397, 405-06, 565 N.W.2d 506 (1997)

. The statute provides in relevant part as follows:

... [I]f a petition for direct annexation signed by all of the electors residing in the territory and the owners of all of the real property in the territory is filed with the city or village clerk, and with the town clerk of the town or towns in which the territory is located, together with a scale map and a legal description of the property to be annexed, an annexation ordinance for the annexation of the territory may be enacted by a two-thirds vote of the elected members of the governing body of the city or village without compliance with the notice requirements of sub. (4).

Section 66.0217(2) (emphasis added). According to the Town, the emphasized language plainly requires that "an annexation ordinance" must be enacted for "a petition," meaning that a municipality may not enact a single ordinance granting several petitions as the Village did here. We disagree.

¶ 7. The Town correctly notes that municipalities must strictly comply with annexation statutes, and that substantial compliance will not save an annexation that is not accomplished in "strict conformity" with statutory mandates. See Town of Blooming Grove v. City of Madison, 70 Wis. 2d 770, 774, 235 N.W.2d 493 (1975)

. We are satisfied, however, that WIS. STAT. § 66.0217(2) permits the Village's enactment of a single ordinance to annex land that comprised multiple petitions. WISCONSIN STAT. § 990.001(1) provides that, unless it "would produce a result inconsistent with the manifest intent of the legislature, ... [t]he singular includes the plural, and the plural includes the singular." We find no manifest legislative intent expressed in § 66.0217 to require a municipality to enact a separate annexation ordinance for each of several parcels that are the subject of separate annexation petitions under § 66.0217(2).

Quite simply, such a requirement can neither be found in the language of the statute nor reasonably inferred from it.

¶ 8. The Town, however, points to several published appellate opinions in which multiple petitions for annexation were granted by separate ordinances. See Town of Waukesha v. City of Waukesha, 58 Wis. 2d 525, 206 N.W.2d 585 (1973)

; Town of Scott v. City of Merrill, 16 Wis. 2d 91, 113 N.W.2d 846 (1962); Town of Campbell v. City of La Crosse, 2003 WI App 247, 268 Wis. 2d 253, 673 N.W.2d 696. The Town claims that these cases illustrate the proper way for a municipality to annex parcels that are the subject of separate petitions "in a manner consistent with the law." It acknowledges, however, that the single-versus-multiple ordinance question was not at issue in those cases. We go two steps further. The cited cases did not discuss whether separate ordinances were required for the individual petitions, and nothing in their analyses suggests that to be the case.²

Annexation of Less Than All Twelve Parcels

¶ 9. The Town next contends that the Village's acquiescence with the request of one of the twelve original petitioners that its parcel not be annexed provides grounds for invalidating the annexation of the remaining eleven parcels. According to the Town, the "significant modification of the territory" resulting from the exclusion of one parcel required the Village, before proceeding, to notify the Town and the Department of Administration that the proposed annexation now encompassed only the remaining eleven parcels. The Town argues that by proceeding as it did, the Village "failed to satisfy the requirement that it obtain and review the advice of the Department on the annexation area." Again, we disagree. ¶ 10. We conclude there is no requirement that, for annexations under WIS. STAT. § 66.0217(2), the annexing body must obtain the department's review and advice regarding a modification to a proposed annexation that results in less land than originally proposed being annexed. The Village claims that the department's pre-annexation review under the subsection (2) procedure "is voluntary, not mandatory." It points out that WIS. STAT. § 66.0217(6), which sets forth the review requirement, applies to only those annexations where a notice of proposed annexation is required to be published:

No annexation proceeding within a county having a population of 50,000 or more is valid unless the person publishing a notice of annexation under sub. (4) mails a copy of the notice to the clerk of each municipality affected and the department ... within 5 days of the publication. The department shall within 20 days after receipt of the notice mail to the clerk of the town within which the territory lies and to the clerk of the proposed annexing village or city a notice that states whether in its opinion the annexation is in the public interest or is against the public interest and that advises the clerks of the reasons the annexation is in or against the public interest .... The annexing municipality shall review the advice before final action is taken.

Section 66.0217(6)(a) (emphasis added). Annexations "by one-half approval" or "by referendum" trigger the publication requirement under subsection (4); a "direct annexation by unanimous approval" under subsection (2) does not. See § 66.0217(3) and (4).

¶ 11. Not only is there no publication requirement for annexations accomplished under WIS. STAT. § 66.0217(2), an ordinance under that subsection need not be enacted within a specific time frame. Neither is there a requirement in subsection (2) for the governing body to "first review the reasons given by the department that the proposed annexation is against the public interest." See Section 66.0217(8). Both of these...