Town of Walworth v. Village of Fontana-on-Geneva Lake

• Decision Date: 01 September 1978
• Docket Number: FONTANA-ON-GENEVA,No. 77-665,77-665
• Citation: 85 Wis.2d 432,270 N.W.2d 442
• Parties: TOWN OF WALWORTH, Walworth County, Wisconsin, a Municipal Corporation, Plaintiff-Respondent, v. VILLAGE OFLAKE, Walworth County, Wisconsin, a Municipal Corporation, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 442

270 N.W.2d 442

85 Wis.2d 432

TOWN OF WALWORTH, Walworth County, Wisconsin, a Municipal Corporation, Plaintiff-Respondent, v. VILLAGE OF FONTANA-ON-GENEVA LAKE, Walworth County Wisconsin, a Municipal Corporation, Defendant-Appellant.

No. 77-665.

Court of Appeals of Wisconsin.

Submitted on Briefs July 18, 1978.

Opinion Filed Sept. 1, 1978.

Philip B. Morrissy and Morrissy, Morrissy & Race, Elkhorn, on brief for defendant-appellant.

Paul E. Kremer and Lehman, Seymour & Kremer, Elkhorn, on brief, for plaintiff-respondent.

Before VOSS, P. J., and BROWN and BODE, JJ.

BROWN, Judge.

On February 21, 1977, the Village of Fontana-on-Geneva Lake adopted an ordinance annexing certain noncontiguous property owned by it in the Town of Walworth, Walworth County, Wisconsin. The land was unoccupied and was the site for the village well. Before passing the ordinance, the village indicated that it intended to also use the land for a public ball park.

At the time the ordinance was passed, Walworth County had an ordinance limiting the permitted uses for certain land, including the land owned by the village. Under the ordinance, the use of the land as a well was permitted, but the use of the land for a ball park required rezoning. Before the annexation ordinance was passed, the village did not obtain approval from the County Park and Planning Commission to rezone the area for use as a park. As a result, on April 4, 1977, the Town of Walworth brought an action seeking a declaratory judgment that the annexation ordinance was unconstitutional, unlawful and ultra vires. On August 3, 1977, the defendant filed a motion to dismiss the suit. A hearing on the motion was held on August 12, 1977. On September 19, 1977, the trial court issued a memorandum decision and on February 20, 1978, an order was entered denying the defendant's motion to dismiss. The defendant is now appealing the denial of its motion to dismiss.

The defendant's first claim in support of its motion to dismiss was that the court lacked jurisdiction to decide the case because the attorney general had not been served within 60 days of the commencement of the action.

Section 806.04(11), Stats., provides that in an action for declaratory relief where a statute, ordinance, or franchise is alleged to be unconstitutional, the attorney general must be served with a copy of the proceeding and is entitled to be heard. Failure to serve the attorney general deprives the court of jurisdiction, Bollhoffer v. Wolke, 66 Wis.2d 141, 223 N.W.2d 902 (1974). The defendant's argument is that sec. 806.04(11), Stats., giving the attorney general the right to be heard, makes him a De facto defendant. As a defendant in the action, he must be served within 60 days of filing or the action is not properly commenced pursuant to sec. 801.02(1), Stats. ¹ The defendant thus concludes that since the attorney general was not served within 60 days of the filing of the complaint, the trial court had no jurisdiction over the case and, therefore, erred in refusing to grant the defendant's motion to dismiss.

There is no authority in the statutes or the case law to support the defendant's assertion that sec. 806.04(11), Stats., makes the attorney general a De facto defendant and subject to the 60 day service provision. Section 806.04(11), Stats., states:

In any proceeding which involves the validity of a municipal ordinance or franchise, such municipality shall be made a party, and shall be entitled to be heard, and if the statute, ordinance or franchise is alleged to be unconstitutional, the attorney general shall also be served with a copy of the proceeding and be entitled to be heard.

The statute specifically requires that a municipality be made a party. No such requirement is made for the attorney general. The language of the statute makes it clear that the legislature did not intend to require that the attorney general be made a party. The purpose of the statute is to give the attorney general the opportunity to defend the statute, ordinance or franchise against a claim of unconstitutionality. The attorney general can perform this function without being made a party. Therefore, the 60 day service requirement of sec. 801.02(1), Stats., does not apply.

Section 801.03(3), Stats., defines "defendant," for purposes of that chapter, as a "person Named as defendant." Since the attorney general need not be named as a defendant, he need not be served within 60 days. The only requirement that need be satisfied is that the attorney general be served in time to be heard prior to any determination on the merits of the constitutional claim. In the instant case, a copy of the pleadings was sent to the attorney general on August 11, 1977. Receipt by the attorney general was acknowledged on August 19, 1977. Since no determination on the merits of the constitutional claim has been made to date, the service on the attorney general was timely.

The defendant's second claim is that the plaintiff has no standing to sue. In support of this claim, the defendant first contends that the plaintiff's declaratory judgment suit is, in effect, an enforcement of the county's zoning ordinance and that the plaintiff is not authorized to enforce the zoning ordinance. Second, the defendant asserts that the plaintiff's allegation of damages is not specific enough to give the plaintiff standing. Third, the defendant claims that since the plaintiff is not the enforcing authority for violations of the county ordinance, it must demonstrate that it first made a demand on the county to enforce its ordinance before it can sue. Finally, the defendant alleges that the town board did not formally authorize the suit as required by Town of Nasewaupee v. City of Sturgeon Bay, 77 Wis.2d 110, 251 N.W.2d 845 (1977).

We disagree with the defendant's claim that the plaintiff had no standing to sue. Section 66.029, Stats., states:

In proceedings whereby territory is attached to or detached from any town, the town is an interested party . . . .

In the instant case, the village owned the piece of land here involved, but the land was inside the town limits. When the village passed its annexation ordinance, it voted to detach the land from the Town of Walworth. Under sec. 66.029, Stats., the town is, therefore, an interested party. Section 66.029, Stats., authorized the town board to "institute an action to test the validity of an ordinance, attaching or detaching its territory". Thus, not...