Town of Lincoln v. City of Whitehall
| Decision Date | 17 April 2019 |
| Docket Number | No. 2017AP000684-AC,2017AP000684-AC |
| Citation | 925 N.W.2d 520,2019 WI 37,386 Wis.2d 354 |
| Parties | TOWN OF LINCOLN, Plaintiff-Appellant-Petitioner, v. CITY OF WHITEHALL, Defendant-Respondent. |
| Court | Wisconsin Supreme Court |
For the plaintiff-appellant-petitioner, there were briefs filed by Peter M. Reinhardt and Bakke Norman, S.C., Menomonie. There was an oral argument by Peter M. Reinhardt.
For the defendant-respondent, there was a brief filed by Ryan J. Steffes and Weld Riley, S.C., Eau Claire. There was an oral argument by Ryan J. Steffes.
An amicus curiae brief was filed on behalf of Wisconsin Towns Association by Richard Manthe, Shawano.
An amicus curia brief was filed on behalf of Wisconsin Realtors Association, League of Wisconsin Municipalities, Wisconsin Builders Association and NAIOP-WI by Thomas D. Larson, Madison.
¶1 The petitioner, Town of Lincoln, seeks review of a published court of appeals decision affirming the circuit court's orders granting the City of Whitehall's motion to dismiss and motion for summary judgment.1 The Town aims to challenge the City's annexation of a portion of the Town.
¶2 Specifically, the Town contends that the court of appeals' decision was based on the erroneous classification of the petition as one for direct annexation by unanimous approval even though the annexation petition lacked the signatures of all the required landowners. It asserts that the court of appeals erred in limiting the grounds on which the Town may challenge the annexation.
¶3 We conclude that the annexation petition in this case is not a petition for direct annexation by unanimous approval. Because the limitations on annexation challenges set forth in Wis. Stat. § 66.0217(11)(c) (2015-16)2 pertain to petitions for direct annexation by unanimous approval only, such limitations do not apply here.
¶4 Accordingly, we reverse the decision of the court of appeals and remand to the circuit court.
¶5 This case arises from a direct annexation effort by a group of landowners to annex a portion of the Town of Lincoln to the City of Whitehall. The genesis of the annexation attempt came from Whitehall Sand and Rail, LLC (Whitehall Sand), a company that sought to site a sand mine on land located in the Town. However, Whitehall Sand wanted the mine to be within the limits of the City.
¶6 Between 2013 and 2015, Whitehall Sand identified the property it desired to include in its proposed sand mine and approached the property owners with offers to purchase their land. Some of the offers to purchase were contingent on the land being annexed by the City.
¶7 In total, Whitehall Sand offered to purchase approximately 1,248 acres. At its narrowest point, the proposed annexed territory is about 1,100 feet wide, and the territory shares an estimated 4,000-foot border with the City.
¶8 The City and Whitehall Sand began negotiations on a development agreement related to the property to be annexed. After reviewing Whitehall Sand's proposed annexation maps, the City informed Whitehall Sand that its annexation petition could not exclude certain properties that would result in "islands" that were part of the City, yet surrounded entirely by the Town. Consistent with this directive, Whitehall Sand revised the annexation petitions and hired a land surveyor to prepare maps and legal descriptions. However, Whitehall Sand and the City were not able to finalize an agreement prior to the filing of the annexation petition that is the subject of this case.
¶9 On February 9, 2015, the direct annexation petition was filed with the City. The petition requested annexation of the identified Town land by the City in four phases,3 with the territory in each phase the subject of a separate city ordinance. Attached to the petition were four documents containing the legal descriptions of the land proposed to be annexed and corresponding maps.
¶10 The annexation petition was labelled as a petition for "direct annexation by unanimous approval" pursuant to Wis. Stat. § 66.0217(2).4 However, the petition did not include the signature of Fox Valley and Western, LTD, which owned a narrow strip of railroad land in the proposed annexation area.5
¶11 On April 29, 2015, the City's common council met and passed four annexation ordinances detaching the land described in the petition from the Town. The four ordinances corresponded to the four phases of the requested annexation.6
¶12 One month following the City's passage of the annexation ordinances, the Town timely sought review of the annexation from the Department of Administration (DOA) pursuant to Wis. Stat. § 66.0217(6)(d).7 In its review of the annexation, the DOA considered two requirements imposed by § 66.0217(6)(d)1. First, it considered the requirement that the annexation territory must be contiguous to the annexing city or village (the contiguity requirement). § 66.0217(6)(d) 1.a. Second, it considered the requirement that if no part of the annexing city or village is located within the same county as the annexation territory, then the town board whose territory is being annexed must first adopt a resolution approving the proposed annexation (the same-county requirement, sometimes referred to as the "county parallelism" requirement). §§ 66.0217(6)(d) 1.b., 66.0217(14)(b).
¶13 The DOA determined that although the City's annexation ordinance met the same-county requirement, it failed the contiguity requirement. Specifically, it observed that "Phase 2 constitutes a long and narrow corridor of territory which primarily serves to connect the much larger territory in Phases 3 and 4." Accordingly, the DOA concluded that the annexed land formed an impermissible "balloon-on-a-string" configuration that is "contrary to annexation law because it fails to constitute appropriate contiguity."8 The DOA indicated that its "finding is advisory in nature, and is not binding upon any party." However, it also advised that its "finding does entitle the Town of Lincoln to challenge the annexation in circuit court, pursuant to Wis. Stats. s. 66.0217(6)(d)2., should the Town choose to do so."9
¶14 Invoking its right to challenge the annexation in circuit court, the Town filed this declaratory judgment action. It sought a declaration that the City's annexation ordinances are invalid and unenforceable.
¶15 The Town raised several objections to the annexation. First, it contended that this petition for direct annexation by unanimous approval was procedurally defective in that it was not signed by all of the owners of real property in the territory. Because the Town advanced that the petition was not unanimous pursuant to Wis. Stat. § 66.0217(2), it argued that the petition was mislabeled as a "direct annexation by unanimous approval." Second, the Town asserted that the annexed territory was not contiguous to the annexing City. Third, the Town challenged the annexation as arbitrary and in violation of the "rule of reason."10 Relatedly, the Town argued that the City, rather than the petitioning landowners, was the "real controlling influence" behind the annexation petitions.11
¶16 Moving to dismiss each of the Town's claims with the exception of the contiguity challenge, the City argued that the Town was statutorily barred from challenging matters other than contiguity pursuant to Wis. Stat. § 66.0217(11)(c).12 The circuit court agreed with the City and dismissed all claims except the contiguity challenge.
¶17 The City subsequently filed a motion for summary judgment asserting that the contiguity requirement was met as a matter of law. Again, the circuit court agreed with the City. It determined that "there is no genuine issue of material fact that the annexed territory is, in fact, contiguous to the boundary of city of Whitehall in Wisconsin as it existed at the time of the annexation."
¶18 After the Town appealed, the court of appeals affirmed the circuit court's determination of both the motion to dismiss and the motion for summary judgment. It concluded first that the circuit court properly dismissed all of the Town's claims other than the statutory contiguity claim. Relying on Wis. Stat. §§ 66.0217(6)(d)1., (6)(d)2., and (11)(c), it determined that "a town is limited in a court action to challenging contiguity and county parallelism, the latter of which is not at issue here." Town of Lincoln v. City of Whitehall, 2018 WI App 33, ¶ 2, 382 Wis. 2d 112, 912 N.W.2d 403.
¶19 The court of appeals concluded next that the circuit court properly granted the City's summary judgment motion on the Town's contiguity claim. It arrived at this determination because there is a "significant degree of physical contact" between the annexed territory and the annexing municipality. Id., ¶ 3.
¶20 Third, the court of appeals determined that the annexation is not subject to an arbitrariness challenge. Id., ¶ 4. It concluded that the annexed territory here is of an "unexceptional shape that does not warrant further scrutiny of the territory's boundaries." Id. Finally, the court of appeals concluded that "no factfinder could reasonably conclude the City was either a petitioner or the ‘real controlling influence’ directing the annexation proceedings." Id.
¶21 We are asked to review the court of appeals' determination that the circuit court properly granted the City's motion to dismiss on the ground that Wis. Stat. § 66.0217(11)(c) limits the Town's challenges to those of contiguity only. Whether a motion to dismiss was properly granted is a question of law this court reviews independently of the determinations rendered by the circuit court and court of appeals. Brew City Redevelopment Grp., LLC v. Ferchill Grp., 2006 WI 128, ¶ 15, 297 Wis. 2d 606, 724 N.W.2d 879.
¶22 We are also asked to review the court of appeals' decision affirming the circuit court's grant of summary judgment concluding that the annexed land is contiguous to the City as a matter of law. Likewise, we review a grant of summary judgment independently,...
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