Walt v. City of Brookfield (In re Town of Brookfield)

• Decision Date: 04 December 2014
• Docket Number: No. 2012AP919.,2012AP919.
• Citation: 359 Wis.2d 541,859 N.W.2d 115
• Parties: In re the Petition to Incorporate as a Metropolitan Village, Unincorporated Lands Located in the TOWN OF BROOKFIELD and Town of Waukesha, Waukesha County, Wisconsin. James J. Walt, Petitioner–Respondent, v. City of Brookfield, Town of Brookfield, City of Waukesha and Village of Sussex, Intervenors, Town of Waukesha, Intervenor–Appellant.
• Court: Wisconsin Court of Appeals

359 Wis.2d 541

859 N.W.2d 115

In re the Petition to Incorporate as a Metropolitan Village, Unincorporated Lands Located in the TOWN OF BROOKFIELD and Town of Waukesha, Waukesha County, Wisconsin.

James J. Walt, Petitioner–Respondent

v.City of Brookfield, Town of Brookfield, City of Waukesha and Village of Sussex, Intervenors

Town of Waukesha, Intervenor–Appellant.

No. 2012AP919.

Court of Appeals of Wisconsin.

Submitted on Briefs Nov. 19, 2012.

Opinion Filed Dec. 4, 2014.

On behalf of the intervenor-appellant, the cause was submitted on the briefs of Dean P. Laing of O'Neil, Cannon, Hollman, DeJong & Laing S.C., Milwaukee, Hector de la Mora and Douglas J. Hoffer of de la Mora & de la Mora, Elm Grove; and supplemental briefs of H. Stanley Riffle and Julie A. Aquavia of Arenz, Molter, Macy, Riffle & Larson, S.C., Waukesha.

On behalf of the petitioner-respondent, the cause was submitted on the briefs of James W. Hammes of Cramer, Multhauf & Hammes, LLP, Waukesha.

Nonparty brief was filed by H. Stanley Riffle and Julie A. Aquavia of Arenz, Molter, Macy, Riffle & Larson, S.C., Waukesha, and Karen Flaherty, city attorney, Brookfield, for the City of Brookfield.

Before BLANCHARD, P.J., LUNDSTEN and HIGGINBOTHAM, JJ.

Opinion

HIGGINBOTHAM, J.

The Town of Waukesha appeals an order of the circuit court dismissing the Town from these proceedings. The Town also appeals an order denying the Town's motion to dismiss a petition for incorporation of a village comprised of portions of two towns.¹

¶ 2 Regarding the question of whether the circuit court erred in dismissing the Town, we conclude that the circuit court erroneously dismissed the Town from these proceedings and we reverse the circuit court's order.

¶ 3 Turning to the denial of the Town's motion to dismiss the petition, the Town argues that the court erred in failing to reach the following conclusions: (1) the incorporation petition fails to meet the minimum signature requirement under Wis. Stat. § 66.0203(2)(a) (2011–12);² (2) the petition fails to set forth facts substantially establishing the required standards for incorporation as required by § 66.0203(2)(c) ; and (3) the four-square-mile minimum area requirement under Wis. Stat. § 66.0205(5) is not satisfied. We conclude that the Town has forfeited the first two of these arguments by failing to raise them before the circuit court.

¶ 4 As to the third minimum-area-requirement argument, the Town argues that the requirement was not met here because the area sought to be incorporated is taken from territory of two towns, and that, standing alone, the territory from each town would not satisfy the requirement. According to the Town, this is significant because territory from two towns cannot be added together to meet the minimum area requirement in the absence of a boundary agreement, and here, no boundary agreement between the two towns exists. We conclude that there is no language in the incorporation statutory scheme set forth in Wis. Stat. ch. 66 that requires two towns with territory that is the subject of an incorporation petition to enter into a boundary agreement in order to meet the minimum area requirement.

¶ 5 In a separate argument first raised by the Town on appeal in a motion for reconsideration, the Town argues that recent amendments to the incorporation statutory scheme created by 2013 Wis. Act 38 (“Act 38”) do not permit the incorporation of territory from two towns unless each town approves the incorporation and, here, the Town did not approve the incorporation of the pertinent part of its territory. We conclude that this issue is not ripe in this appeal, because under our interpretation of the new Act 38 statutes, circuit courts reach this issue only after the incorporation review board grants the petition for incorporation, and this case has not yet reached that stage. On a related issue, Walt argues that the retroactivity provision of Act 38 would be unconstitutional as applied to him because that would deny him his due process rights. We conclude that this argument is not properly before us, because the incorporation review board has yet to make a determination on the incorporation petition.

Accordingly, we affirm in part, reverse in part, and remand to the circuit court with directions.

BACKGROUND

¶ 7 James J. Walt commenced an incorporation proceeding, pursuant to Wis. Stat. § 66.0203, for the incorporation of 4.075 square miles of portions of the Town of Waukesha and an adjacent town, to create a municipal village. On December 5, 2011, Walt filed the petition in circuit court and subsequently gave notice of the filing of the petition to various municipalities in the area, including the Town of Waukesha. The notice stated that a hearing on the petition would be held on January 12, 2012.

¶ 8 After receiving notice of the petition, on December 27, 2011, the Waukesha town board held a meeting at which it unanimously approved a motion authorizing the Town's attorneys to intervene in the incorporation proceedings and oppose incorporation. Thereafter, the Town and the City of Waukesha each filed motions with the circuit court to intervene and to dismiss the petition.

¶ 9 On January 12, 2012, the circuit court held a hearing on the petition to incorporate, at which the court considered the Town's motions to intervene and to dismiss the petition to incorporate. With respect to the motions to intervene, the court asked Walt whether he objected to the participation of any of the parties present at the hearing. Walt stated that he had no objections, but noted that the court file contained insufficient documentation that the Town and the City of Waukesha authorized their participation in the proceedings. Walt requested that the court require both the Town and City to file “appropriate authorization or documents evidencing authorization.”

In response to Walt's request for documentation of authorizations from the Town and City, the court stated it would allow the attorneys for each body to participate in the hearing “contingent upon” the bodies subsequently filing with the court “the appropriate authorizations on behalf of your municipalities for your involvement in the case.” The City's attorney informed the court that the City of Waukesha common council was going to meet the following week, after which the City would be able to file the appropriate documents reflecting the common council's authorization for the City to intervene. The court then suggested to the Town and the City attorneys that they take “whatever necessary” steps were required, in consultation with their clients, to “make sure” that the proper documentation would be submitted, but did not further describe the type of documentation required.

¶ 11 Neither the Town nor the City objected to providing the court with the documentation. A January 30 written order from the court stated that the Town's motion to intervene in the proceeding was granted, subject to the Town filing “within fourteen days of the date of the hearing [January 12], a resolution or other documents authorizing [the Town] to participate as a party in this litigation.”

¶ 12 Following the hearing on the incorporation petition, the circuit court denied the motions to dismiss the petition and referred the petition to the incorporation review board of the Wisconsin Department of Administration to consider whether the standards for incorporation under Wis. Stat. § 66.0207 were met.³

On January 17, 2012, the town board held a meeting at which the board adopted a resolution stating that the board “hereby re-affirms its prior intent as reflected in its prior resolution dated [December, 27, 2011] and authorizes the Town Attorney ... to intervene” and oppose the proposed incorporation. The Town filed the January 17 resolution with the court on January 19, 2012, within the fourteen-day time period set by the court.

¶ 14 Walt filed a motion to dismiss the Town from the proceedings on the ground that the town board had not authorized the attorneys to represent the Town at any time prior to the January 12 hearing. Walt rested his argument in part on Wis. Stat. § 66.0203(5), which states that a “governmental unit entitled to notice ... found by the court to be a party in interest may become a party to the proceeding prior to the time set for the hearing.” Walt argued that the Town failed to qualify as a party “prior to the time set for the hearing.” Walt also argued that, under Wisconsin case law, authorization for a municipality to participate in litigation where the decision to do so is discretionary must be given prior to the municipality participating in the litigation, and that here, the town board did not authorize the Town to intervene until after the January 12 hearing.

¶ 15 The Town argued that it had complied with the court's condition of appearance, set at the January 12 hearing and contained in the January 30 order, by submitting to the court, within the fourteen-day time limitation set by the court, the resolution of January 17, 2012, noting and explicitly reaffirming the Town's December 27, 2011 authorization to intervene through adoption of an oral motion. As part of this argument, the Town contended that there was no requirement in the law that oral approval of a motion by a town board authorizing intervention was not sufficient to establish authorization to intervene, and therefore the Town had no reason to believe that the January 17 resolution would not be sufficient to establish authorization in compliance with the court's order.

¶ 16 At the hearing on Walt's motion to dismiss, the circuit court granted Walt's motion on the ground that the Town had failed to timely file, as required by the court's order, “a resolution or other documents” establishing that the town board had authorized the Town to intervene before the January 12 hearing. The court concluded that the only timely submission by the Town was insufficient because it proved only that the board's authorization was effective on January...