Town of Pleasant Prairie v. City of Kenosha, 75--66

Decision Date18 January 1977
Docket NumberNo. 75--66,75--66
Citation249 N.W.2d 581,75 Wis.2d 322
PartiesTOWN OF PLEASANT PRAIRIE, Appellant, v. CITY OF KENOSHA, Respondent.
CourtWisconsin Supreme Court

Robert E. Hankel, Racine (argued), Schoone, McManus & Hanson, S.C., Racine, on the brief for appellant.

Michael J. McCauley, Asst. City Atty. (argued), with whom on the brief was James W. Conway, City Atty., for respondent.

ABRAHAMSON, Justice.

This is an appeal in a declaratory judgment action brought by the Town of Pleasant Prairie. The issue presented is whether annexation by the City of Kenosha of certain land in the Town of Pleasant Prairie violated the rule of reason established in decisions of this court to test the validity of municipal annexations. We conclude that the annexation is valid.

I.

On September 4, 1973, Robert E. and Doris P. Gangler filed with the Kenosha city clerk a petition seeking direct annexation by the City of a 28 acre parcel of land, roughly rectangular in shape, then located in the Town of Pleasant Prairie. On the following day the Ganglers petitioned the City to rezone most of the proposed annexation for industrial use.

Along its northern boundary the parcel described in the annexation petition was contiguous to existing city limits, which in this region coincided with the northern boundary of a railroad right-of-way owned by the Chicago & Northwestern Railroad. The proposed annexed territory included 2.9 acres of right-of-way owned by the railroad, 2.6 acres owned by Mr. William Kaphengst, 7.7 acres owned by Mr. Timothy Lawler, and 14.8 acres owned by the Ganglers. No electors lived within this territory. Only the Ganglers, who owned more than half of the land in the area, signed annexation petition. 1

An ordinance annexing the territory was approved by the Common Council of the City of Kenosha on October 1, 1973. At the same meeting, the Council referred the zoning petition to the City Plan Commission for reconsideration. Three days later the Town of Pleasant Prairie filed the complaint by which the action now before the court was commenced. The action proceeded to trial in the circuit court in November of 1974, and the Town has taken this appeal from a judgment upholding the validity of the annexation. 2

The Town does not dispute that as a matter of procedure the annexation was accomplished in full compliance with the statutes. The claims made are (1) that in several ways matters respecting industrial zoning for the annexed land so infected the annexation as to render it arbitrary, capricious and an abuse of discretion; (2) that the City and no reasonable need for the territory annexed; and (3) that the boundaries of the territory were arbitrarily and capriciously fixed.

II.

In ch. 66, Stats., the legislature has conferred upon cities and villages broad powers to annex unincorporated territory. This court has often stated that in determining the validity of annexations it is committed to the doctrine which has come to be known as the 'rule of reason.' We have stated the rule of reason, which has as its essential purpose the ascertainment whether the power delegated to the cities and villages has been abused in a given case, in the following terms:

'Under the rule of reason: (1) Exclusions and irregularities in boundary lines must not be the result of arbitrariness; (2) some reasonable present or demonstrable future need for the annexed property must be shown; and (3) no other factors must exist which would constitute an abuse of discretion.' 3

When attacked under the rule of reason, annexation ordinances, like legislative enactments in general, enjoy a presumption of validity, and the burden of overcoming this presumption with proof that the ordinance is invalid rests on the party so claiming. Town of Lafayette v. City of Chippewa Falls, 70 Wis.2d 610, 618, 235 N.W.2d 435 (1975); Town of Waukechon v. City of Shawano, 53 Wis.2d 593, 596, 193 N.W.2d 661 (1972); Town of Mt. Pleasant v. City of Racine, 28 Wis.2d 519, 525, 526, 137 N.W.2d 656 (1965). The rule of reason does not authorize a court to inquire into the wisdom of the annexation before it or to determine whether the annexation is in the best interest of the parties to the proceeding or of the public. These matters are inherently legislative and not judicial in character. Town of Waukechon v. City of Shawano, supra, 53 Wis.2d at 598--599, 193 N.W.2d 661; In re City of Beloit, 37 Wis.2d 637, 644, 155 N.W.2d 633 (1968). As we said in Town of Brookfield v. City of Brookfield, 274 Wis. 638, 646, 80 N.W.2d 800, 804 (1957):

'In annexation proceedings the city council in the first instance determines the suitability or adaptability of the area proposed to be annexed and the necessity of annexing the same for the proper growth and development of the city. Upon a review the courts cannot disturb the council's determination unless it appears that it is arbitrary and capricious or is an abuse of discretion.'

III.

The Town advances several arguments related to zoning which it claims show the annexation herein to be invalid. It is first claimed that annexation was improperly used for the sole purpose of effecting rezoning of the land involved.

The evidence showed that the Ganglers' chief motive for seeking annexation was to enable industrial development of their property, which was zoned for agricultural use while located in the Town under zoning ordinances of Kenosha county. The Ganglers had approached John Maurer, Town Chairman of Pleasant Prairie, concerning the possibility of industrial development of their land. At the trial Robert Gangler testified that Maurer had told him that he considered the Gangler land to be good industrial property, but that the Town could not then provide it with sewer and water services. Maurer himself testified in substance that he had simply told Gangler that the land was not and would not be zoned for industrial development. In any event, the record shows that the Ganglers desired industrial development for their land before annexation to the City was sought and that neither the zoning nor the municipal services that would be necessary to such development were then available in the Town.

When it appeared that their plans for development could not be realized in the Town, the Ganglers initiated contract with Robert F. Kolstad, City Planner for the City of Kenosha, Regarding the possibility of annexing their land to the City. Several meetings were had at which Kolstad explained statutory annexation procedures and advised and assisted the Ganglers in preparing the necessary documents and maps. As stated above, on September 4, 1973, the Ganglers' annexation petition was filed and by letter dated September 5, 1973, Mr. Gangler petitioned the Kenosha Common Council to have most of the annexation rezoned for heavy industrial use. Gangler's letter stated that 'the purpose of annexation and rezoning is to permit the development of this property for industrial purposes, ' and for this reason he requested that the annexation and zoning petitions be considered together. Such joint consideration was in fact undertaken. At its October 1, 1973, meeting the Kenosha Common Council adopted the annexation ordinance and voted to refer the matter of zoning for the annexed area 'back to City Plan Commission for reconsideration--to eliminate all heavy industrial zoning and to provide for a proper buffer zone between the industrial and residential areas.'

We find nothing in this state of affairs which would justify invalidating the annexation now before the court. The Town's assertion that the sole purpose behind the annexation was to obtain a change in zoning is misleading. The Ganglers' purpose was to develop their land, preferably for industrial use, which required zoning and municipal services not available in the Town. It cannot be doubted that a purpose to develop one's land is legitimate, and this court has stated that property owners may seek annexation in pursuit of their own perceived best interests. Town of Lafayette v. City of Chippewa Falls, 70 Wis.2d 610, 629, 630, 235 N.W.2d 435 (1975); Town of Waukesha v. City of Waukesha, 58 Wis.2d 525, 530, 206 N.W.2d 585 (1973). Cf. Town of Madison v. City of Madison, 12 Wis.2d 100, 106 N.W.2d 264 (1960), in which the court recognized that removal of the burden of town zoning ordinances on property in the town owned by the city of Madison was a legitimate goal of the annexation proceeding. We hold that a direct annexation not otherwise in conflict with the rule of reason is not invalidated because the petitioners are motivated by a desire to obtain a change in the zoning of their land.

Nor is this annexation condemned by the existence of a desire or intent to rezone the property on the part of the City of Kenosha. The City sought to justify this annexation by showing that it had a need for land with potential for industrial development. As discussed later, we conclude that a reasonable need for such land was shown to exist. It would be manifestly unreasonable then to say that the annexation is invalidated because of an intent to rezone the land so as to allow it to serve the very need the annexation was designed to fulfill.

The Town next claims that the ordinance is invalid because the City used the economic benefits of rezoning to induce the Ganglers to petition for annexation and because the City in effect delegated its zoning power to the Ganglers. Running through both of these arguments is the Town's assertion that use of the annexed territory for industrial development represents poor urban planning.

This court considered the matter of improper inducement of annexation in Town of Fond du Lac v. City of Fond du Lac, 22 Wis.2d 533, 126 N.W.2d 201 (1964). In that case the City, in connection with the acquisition of options to purchase some of the subsequently annexed land, obtained an oral agreement with the vendor that he would obtain the...

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