May/June 2019 Issue

Also in this issue: A Comparison of the First Three Approved Financial Assistance Programs for Private Lead Service Line Replacements     |     Municipalities Lose the Right to Raise the Notice of Claim Statute as a Defense if Not Plead as an Affirmative Defense

Supreme Court Allows Town to Proceed with Broad Challenge to Annexation Ordinance

Julia Potter | 05.31.19

In April of 2018, the Wisconsin Court of Appeals ruled against the Town of Lincoln in its challenge to the City of Whitehall’s annexation of a sand mine located within the Town. (For a detailed discussion of the Court of Appeals’ decision, see July/​August 2018 Issue of the Municipal Law Newsletter.) In a recent decision, Town of Lincoln v. City of Whitehall, 2019 WI 37, 382 Wis. 2d 112, 912 N.W.2d 403, the Wisconsin Supreme Court reversed the Court of Appeals.

The Court of Appeals’ decision was based on the assumption that, in accordance with the title that appeared on the petition, the annexation petition qualified as a petition for ​“direct annexation by unanimous approval” under Wis. Stat. § 66.0217(2). This procedurally streamlined form of annexation requires that an annexation petition be signed by all of the electors residing in the territory to be annexed, along with all owners of the property located within that territory. The annexation petition is then presented to the annexing municipality on a ​“take it or leave it” basis. Subject to certain filing requirements and the requirement that the property be ​“contiguous” to the annexing municipality, the municipality may then adopt an annexation ordinance by a ²⁄₃ vote of its governing body.

Because a direct annexation by unanimous approval is initiated by electors and landowners, rather than the annexing municipality, Wis. Stat. § 66.0217(11)(c) provides that the town from which the territory was annexed may only bring a legal challenge to the annexation on the narrow grounds of contiguity or county parallelism. Thus, the Court of Appeals concluded that the Town could not raise any other theories in its lawsuit challenging the annexation (e.g., failure to obtain necessary signatures on the petition, or lack of reasonable present or demonstrable future need for the annexed property).

The Town appealed that decision to the Wisconsin Supreme Court. Rather than relying on the title of the annexation petition, the Wisconsin Supreme Court began by examining its substance. In order to qualify as a petition for direct annexation by unanimous approval under Wis. Stat. § 66.0217(2), the court observed that the annexation petition must be signed by all of the electors residing in the territory and the owners of all of the real property in the territory. The court examined the petition and noted that the owner of a very narrow strip of railroad land in the proposed annexation area had not signed it. The City argued that this omission was minor and should not affect the classification of the petition because the railroad, whose operations are governed almost exclusively by federal law, had no reason to care whether its track was located in the Town or the City. The court rejected this argument and, relying on the plain language of the statute, held that a petition that lacks the signature of an owner of real property in the territory proposed for annexation does not qualify as a petition for direct annexation by unanimous approval under Wis. Stat. § 66.0217(2). Instead, such a petition should be treated as a petition for annexation by one-half approval or by referendum under Wis. Stat. § 66.0217(3), and may be challenged in court on grounds beyond simply contiguity and county parallelism.

This case should serve as a reminder to municipalities that details matter, particularly in the context of annexation petitions. Instead of relying on the titles petitioners place on annexation petitions, a municipality should carefully examine the petition to ensure that it meets the relevant statutory requirements and includes all required landowner signatures, including signatures from railroad landowners.