Submitted on Briefs: January 16, 2 019
OF DECISION OF THE COURT OF APPEALS Reported at 382 Wis.2d
112, 912 N.W.2d 403');">912 N.W.2d 403 PDC No:2018 WI.App. 33
Circuit Court Trempealeau county, L.C. No. 2015CV112 Charles
V. Feltes Judge:
the plaintiff-appellant-petitioner, there were briefs filed
by Peter M. Reinhardt and Bakke Norman, . S.C., Menomonie.
There was an oral argument by Peter M. Reinhardt.
the defendant-respondent, there was a brief filed by Ryan J.
Steffes and Weld Riley, S.C., Eau Claire. There was an oral
argument by Ryan J. Steffes.
amicus curiae brief was filed on behalf of Wisconsin Towns
Association by Richard Manthe, Shawano.
amicus curia brief was filed on behalf of Wisconsin Realtors
Association, League of Wisconsin Municipalities,
Wisconsin Builders Association and NAIOP-WI by Thomas D.
WALSH BRADLEY, J.
The petitioner, Town of Lincoln, seeks review of a published
court of appeals decision affirming the circuit court's
orders granting the City of Whitehall's motion to dismiss
and motion for summary judgment.The Town aims to challenge
the City's annexation of a portion of the Town.
Specifically, the Town contends that the court of
appeals' decision was based on the erroneous
classification of the petition as one for direct annexation
by unanimous approval even though the annexation petition
lacked the signatures of all the required landowners. It
asserts that the court of appeals erred in limiting the
grounds on which the Town may challenge the annexation.
We conclude that the annexation petition in this case is not
a petition for direct annexation by unanimous approval.
Because the limitations on annexation challenges set forth in
Wis.Stat. § 66.0217(11)(c) (2015-16) pertain to
petitions for direct annexation by unanimous approval only,
such limitations do not apply here.
Accordingly, we reverse the decision of the court of appeals
and remand to the circuit court.
This case arises from a direct annexation effort by a group
of landowners to annex a portion of the Town of Lincoln to
the City of Whitehall. The genesis of the annexation attempt
came from Whitehall Sand and Rail, LLC (Whitehall Sand), a
company that sought to site a sand mine on land located in
the Town. However, Whitehall Sand wanted the mine to be
within the limits of the City.
Between 2013 and 2015, Whitehall Sand identified the property
it desired to include in its proposed sand mine and
approached the property owners with offers to purchase their
land. Some of the offers to purchase were contingent on the
land being annexed by the City.
In total, Whitehall Sand offered to purchase approximately 1,
248 acres. At its narrowest point, the proposed annexed
territory is about 1, 100 feet wide, and the territory shares
an estimated 4, 000-foot border with the City.
The City and Whitehall Sand began negotiations on a
development agreement related to the property to be annexed.
After reviewing Whitehall Sand's proposed annexation
maps, the City informed Whitehall Sand that its annexation
petition could not exclude certain properties that would
result in "islands" that were part of the City, yet
surrounded entirely by the Town. Consistent with this
directive, Whitehall Sand revised the annexation petitions
and hired a land surveyor to prepare maps and legal
descriptions. However, Whitehall Sand and the City were not
able to finalize an agreement prior to the filing of the
annexation petition that is the subject of this case.
On February 9, 2015, the direct annexation petition was filed
with the City. The petition requested annexation of the
identified Town land by the City in four phases,
with the territory in each phase the subject of a separate
city ordinance. Attached to the petition were four documents
containing the legal descriptions of the land proposed to be
annexed and corresponding maps.
The annexation petition was labelled as a petition for
"direct annexation by unanimous approval" pursuant
to Wis.Stat. § 66.0217(2). However, the petition did not
include the signature of Fox Valley and Western, LTD, which
owned a narrow strip of railroad land in the proposed
On April 29, 2015, the City's common council met and
passed four annexation ordinances detaching the land
described in the petition from the Town. The four ordinances
corresponded to the four phases of the requested
One month following the City's passage of the annexation
ordinances, the Town timely sought review of the annexation
from the Department of Administration (DOA) pursuant to
Wis.Stat. § 66.0217(6)(d). In its review of the annexation,
the DOA considered two requirements imposed by §
66.0217(6) (d)l. First, it considered the requirement that
the annexation territory must be contiguous to the annexing
city or village (the contiguity requirement). §
66.0217(6)(d)l.a. Second, it considered the requirement that
if no part of the annexing city or village is located within
the same county as the annexation territory, then the town
board whose territory is being annexed must first adopt a
resolution approving the proposed annexation (the same-county
requirement, sometimes referred to as the "county
parallelism" requirement). §§
66.0217(6)(d)l.b., 66.0217(14) (b) .
The DOA determined that although the City's annexation
ordinance met the same-county requirement, it failed the
contiguity requirement. Specifically, it observed that
"Phase 2 constitutes a long and narrow corridor of
territory which primarily serves to connect the much larger
territory in Phases 3 and 4." Accordingly, the DOA
concluded that the annexed land formed an impermissible
"balloon-on-a-string" configuration that is
"contrary to annexation law because it fails to
constitute appropriate contiguity." The DOA indicated
that its "finding is advisory in nature, and is not
binding upon any party." However, it also advised that
its "finding does entitle the Town of ...