Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.


July 1, 1983


Review of a decision of the Court of Appeals. Affirming Heffernan, J.

The opinion of the court was delivered by: Heffernan

This is a review of a court of appeals' decision (108 Wis. 2d 465, 322 N.W.2d 496 (1982)) which affirmed an order of the Kenosha County Circuit Court, JAMES WILBERSHIDE, Judge, affirming the determination of the Director of the Department of Local Affairs and Development dismissing the town of Pleasant Prairie's petition for incorporation. We affirm the court of appeals.

This is the second time that the Town of Pleasant Prairie has attempted to incorporate as a village. This court, in Pleasant Prairie v. Johnson, 34 Wis. 2d 8, 148 N.W.2d 27 (1967), upheld an earlier determination that the proposed incorporation did not meet the standards and requirements of sec. 66.016, Stats., because there was substantial evidence to sustain the director's finding then that there was a lack of reasonable homogeneity.

The instant case arises out of a petition to incorporate the entire Town of Pleasant Prairie, Kenosha County, Wisconsin, as a village pursuant to secs. 66.013-66.018, Stats. The attempt to incorporate was commenced by the filing of petitions with the clerk of circuit court for Kenosha county on March 21, 1979. Following a hearing, the Judge of the Kenosha county circuit court, Earl D. Morton, determined that the standards set forth in sec. 66.015, had been satisfied, in that the procedures and formal requirements of sec. 66.014 had been met and that the required notices had been given. The court then referred the petition to the Department of Local Affairs and Development to determine whether the standards set forth by the legislature under sec. 66.016 had been met.

The department held hearings during the course of several days in February of 1980. It took the testimony of numerous witnesses called by the town and the city of Kenosha, and it also elicited testimony from members of the general public and received into evidence quantities of written material and information. The department filed its determination with the circuit court on July 2, 1980.

It determined that the town did not satisfy the statutory standards for incorporation as set forth in sec. 66.016(1) and (2), Stats. Specifically, in respect to sec. 66.016(1) (a) (characteristics of territory), the department's determination concluded that, although the town's external boundaries were compact, its patterns of land use, urban development, transportation facilities, population distribution, and shopping and social customs were neither compact nor homogeneous.

Additionally, the department, applying the standards of sec. 66.016(1) (b), Stats. (territory beyond the core), concluded that the town's limited growth potential did not satisfy the statutorily imposed standard that there be "the potential for residential or other urban land use development on a substantial scale within the next 3 years."

The department also considered the factors enumerated by the legislature in sec. 66.016(2), Stats., and stated that it was unable to conclude or to make "an express finding that the proposed incorporation will not substantially hinder the solution of governmental problems affecting the metropolitan community."

A petition for the review of the department's determination was filed by the town with the circuit court for Kenosha county, as provided by sec. 66.017, Stats. That review is subject to the provisions of the Wisconsin Administrative Practices Act, ch. 227. The circuit court for Kenosha county, Judge James Wilbershide presiding because the Kenosha county circuit Judges had disqualified themselves, affirmed the department's decision. The town appealed from that circuit court order, and the court of appeals affirmed. It is from that court of appeals decision of affirmance that this court granted the town's petition for review.

The town's petition for review, which this court granted, posed two questions: First, whether the department erred in interpreting the standards of sec. 66.016, Stats., in a manner which made the approval of the incorporation of an entire town in a metropolitan area difficult or impossible; and, second, whether the department erred when it relied in part, in its determination that it could not say that the proposed incorporation would not substantially hinder the solution of governmental problems affecting the metropolitan community, on general treatises rather than solely relying on the evidence presented.

In addition, this court sua sponte ordered the parties to address the two additional issues: (1) Should the court re-examine Westring v. James, 71 Wis. 2d 462, 238 N.W.2d 695 (1976), insofar as it holds the Department of Local Affairs and Development is an arm of the legislature, to which the legislative responsibility of determining what is in the public interest in respect to the creation of municipalities may be delegated; and (2) does sec. 66.016(2), Stats., constitute a violation of art. IV, sec. 31, Wis. Const., as construed in In re Incorporation of Village of North Milwaukee, 93 Wis. 616, 67 N.W. 1033 (1896).

While the two questions posed by the court have been admirably briefed by the parties -- and we will in this opinion comment on those issues further -- we find that neither of them need be addressed in depth to dispose of the case before this court. Rather, we conclude that the petition for incorporation was appropriately dismissed under the standards of sec. 66.016(1) (a) (characteristics of territory), which portion of the statute the town concedes to be constitutional.

The only issue raised in respect to that portion of the statute is whether, as a matter of law, the department improperly interpreted those standards in such a manner that a whole-town incorporation in a metropolitan area was made impossible. The town does not challenge any of the findings of fact and concedes that the specific findings are supported by substantial evidence. The challenge, rather, is to the interpretation placed upon the words of the legislature in sec. 66.016(1), Stats.

The town states that the legally erroneous misinterpretation of the statute arises from the department's overall misperception of legislative intent and that misperception has the result of making whole-town incorporation in metropolitan areas impossible. Apparently, it is the contention of the town that the department has looked to the admittedly severe legislative restraints upon incorporation of large areas which lie in metropolitan regions and has concluded from that it is the legislature's will that, at least in circumstances where an adjacent city has offered to annex the territory, the purpose of the legislature was to make an independent incorporation substantially impossible. The town has summarized its specific contentions as follows:

"he Department construed Wis. Stat. sec. 66.016 to impose more stringent standards than the 'village-in-fact' requirement of Lammers ; required the boundaries between the Town and the City to be regular; required absolute homogeneity rather than reasonable homogeneity; required shopping and social customs to be internally oriented; ignored the evident societal homogeneity of the Village; found conditions typical of metropolitan communities to preclude homogeneity; required actual rather than potential development; excluded the substantial existing development beyond the 'core' in determining the development standard was not met; required the proponents to demonstrate that existing services equaled those of the central city; and failed to establish that the alternative of annexation was available."

While the town's brief and the oral argument presented to the court skillfully convey the inference that the department has misinterpreted the statute as a matter of law, a reading of the department's determination leads this court to the Conclusion that, in fact, the standards were appropriately and reasonably interpreted in a manner that comports with the legislative intent. It must be conceded that the very strictures placed upon incorporation in metropolitan areas makes such incorporation difficult. The characteristics that naturally evolve in areas bordering upon a major metropolitan community almost dictate facts and physical circumstances that tend to give some support to a logical Conclusion that the outlying areas do not have an independent viability, but a viability that is dependent upon the adjacent metropolis.

At all stages in these proceedings, all parties, including the town, have been in agreement that incorporation of territory in a metropolitan area does indeed present problems that are difficult to surmount. The question is whether the department's interpretation, by misinterpretation, has made these difficulties so onerous that they are impossible to surmount. Whether, under any circumstances, an area situate in respect to a large metropolitan center, as is Pleasant Prairie in respect to Kenosha, could meet the standards is not before us. We must assume that the legislature, by establishing standards, assumed that, at least in some circumstances, incorporation would be possible. We see nothing in the record that indicates any action by the Department which increases the onerousness of the task beyond that which the legislature placed upon areas which seek to incorporate.

The statute, sec. 66.016(1) (a), Stats., provides in part that:

" Characteristics of territory. The entire territory of the proposed village or city shall be reasonably homogeneous and compact, taking into consideration natural boundaries, natural drainage basin, soil conditions, present and potential transportation facilities, previous political boundaries, boundaries of school districts, shopping and social customs."

The requirement of "reasonable homogeneity" shows a legislative concern that the area to be incorporated have a reasonably consistent and uniform composition. The standards set forth in sec. 66.016(1), Stats., indicate that the entire area be a ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.