January/February 2017 Issue

Also in this issue: Prosecutor Trainings Recordings Not Subject to Disclosure Under Public Records Law

Lawsuit Challenging Annexation of Frac Sand Mine Dismissed

Julia Potter | 01.01.17

In a recent decision, Town of Burnside v. City of Independence, 2016AP34-AC (Nov. 29, 2016), the Wisconsin Court of Appeals dismissed a claim by the Town of Arcadia contesting the annexation of town land for a frac sand mine by City of Independence, bringing to a close a multi-party lawsuit that had been ongoing for more than two years. The lawsuit arose out of the City of Independence’s annexation of land in the Towns of Lincoln, Burnside, and Arcadia. A mining company wanted to expand and operate an existing sand mine located in Arcadia, but wished to remove the mine from the reach of Trempeleau County regulations by having the land annexed by the City. The company entered into a pre-annexation agreement with the City, and the City adopted ordinances annexing a thin strip of land extending across Lincoln and Burnside townships and a larger portion of land in the Town of Arcadia, encompassing the existing sand mine. This type of annexation is commonly referred to as ​“balloon-on-a-string,” ​“strip,” or ​“corridor” annexation, and is designed to satisfy the requirement in Wis. Stat. § 66.0217(2) that the annexed property be ​“contiguous” to the annexing city. There were three separate ordinances, one for each town encompassing only the land within that town.

The Towns of Lincoln and Burnside asked the Wisconsin Department of Administration to review the annexation, and the Department determined that the annexation was improper because some of the territory was not contiguous. Lincoln and Burnside then led suit, asking the circuit court to invalidate the annexation both because it failed to meet the statutory requirement that the land be contiguous and because there were procedural irregularities regarding a signature on the annexation petition. Instead of allowing the case to proceed to a final ruling, the parties signed a settlement agreement whereby Burnside and Lincoln agreed to dismiss their lawsuit against the City and the parties entered into an agreement that gave Lincoln and Burnside some control over annexations by the City for the next 20 years. 

After this settlement agreement was signed, but before it was approved by the court, the Town of Arcadia asked the court’s permission to join the lawsuit, challenging the legality of the annexation on the same grounds as Lincoln and Burnside. The City objected, arguing that Arcadia’s request to participate in the lawsuit came too late because it was made after the 90-day statutory deadline to file an action challenging the validity of an annexation. See Wis. Stats. §§ 66.0217(11) and 893.73(2)(b). Arcadia responded with a variety of arguments about why the 90-day deadline should not be applied to parties in its position. In essence, Arcadia argued that because Lincoln and Burnside had led their action prior to the 90-day deadline, and because Arcadia intended to make essentially the same arguments, Arcadia should be allowed to ​“piggy back” on the other towns’ timely filing. The circuit court rejected this argument, and the Court of Appeals agreed. Although it may have raised the same legal arguments, Arcadia’s claim related to different land and a different ordinance than the two ordinances at issue in Burnside’s and Lincoln’s claims. In order to preserve its claim against the City, Arcadia was required to bring an action challenging the annexation within 90 days of the date the City adopted the annexation ordinance. Because Arcadia missed this statutory deadline, the Court dismissed its claim. 

Although the Court did not resolve the underlying claim — whether the type of ​“balloon-on-a-string” annexation used by the City of Independence is legal — this case emphasizes the importance of careful attention to the deadlines and procedures set out in the statutes related to annexation. 

- Julia Potter