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Town of Lincoln v. Whitehall

Supreme Court of Wisconsin

April 17, 2019

Town of Lincoln, Plaintiff-Appellant-Petitioner,
City of Whitehall, Defendant-Respondent.

          Submitted on Briefs: January 16, 2 019

          REVIEW 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:

          For 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.

          For 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.

          An amicus curiae brief was filed on behalf of Wisconsin Towns Association by Richard Manthe, Shawano.

          An amicus curia brief was filed on behalf of Wisconsin Realtors Association, League of Wisconsin Municipalities,

          Wisconsin Builders Association and NAIOP-WI by Thomas D. Larson, Madison.


         ¶1 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.[1]The Town aims to challenge the City's annexation of a portion of the Town.

         ¶2 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.

         ¶3 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)[2] pertain to petitions for direct annexation by unanimous approval only, such limitations do not apply here.

         ¶4 Accordingly, we reverse the decision of the court of appeals and remand to the circuit court.


         ¶5 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.

         ¶6 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.

         ¶7 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.

         ¶8 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.

         ¶9 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, [3] 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.

         ¶10 The annexation petition was labelled as a petition for "direct annexation by unanimous approval" pursuant to Wis.Stat. § 66.0217(2).[4] 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 annexation area.[5]

         ¶11 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 annexation.[6]

         ¶12 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).[7] 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) .

         ¶13 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."[8] 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 ...

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