Definition of public interest.
For purposes of this subsection "public interest" is determined by the department after consideration of the following:
Whether the governmental services, including zoning, to be supplied to the territory could clearly be better supplied by the town or by some other village or city whose boundaries are contiguous to the territory proposed for annexation which files with the circuit court a certified copy of a resolution adopted by a two-thirds vote of the elected members of the governing body indicating a willingness to annex the territory upon receiving an otherwise valid petition for the annexation of the territory.
The shape of the proposed annexation and the homogeneity of the territory with the annexing village or city and any other contiguous village or city.
Within 60 days after the filing of the petition under sub. (3)
, the common council or village board may accept or reject the petition and if rejected no further action may be taken on the petition. Acceptance may consist of adoption of an annexation ordinance. Failure to reject the petition obligates the city or village to pay the cost of any referendum favorable to annexation.
If the petition is not rejected the clerk of the city or village with whom the annexation petition is filed shall give written notice of the petition by personal service or registered mail with return receipt requested to the clerk of any town from which territory is proposed to be detached and shall give like notice to any person who files a written request with the clerk. The notice shall indicate whether the petition is for direct annexation or whether it requests a referendum on the question of annexation.
If the notice indicates that the petition is for a referendum on the question of annexation, the clerk of the city or village shall file the notice as provided in s. 8.37
. If the notice indicates that the petition is for a referendum on the question of annexation, the town clerk shall give notice as provided in par. (c)
of a referendum of the electors residing in the area proposed for annexation to be held not less than 42 days nor more than 72 days after the date of personal service or mailing of the notice required under this paragraph. If the notice indicates that the petition is for direct annexation, no referendum shall be held unless within 30 days after the date of personal service or mailing of the notice required under this paragraph, a petition conforming to the requirements of s. 8.40
requesting a referendum is filed with the town clerk as provided in s. 8.37
, signed by at least 20% of the electors residing in the area proposed to be annexed. If a petition requesting a referendum is filed, the clerk shall give notice as provided in par. (c)
of a referendum of the electors residing in the area proposed for annexation to be held not less than 42 days nor more than 72 days after the receipt of the petition and shall mail a copy of the notice to the clerk of the city or village to which the annexation is proposed. The referendum shall be held at a convenient place within the town to be specified in the notice.
NOTE: Subd. 3. is shown as affected by two acts of the 1999 legislature and as merged by the revisor under s. 13.93 (2) (c).
Clerk to act.
If more than one town is involved, the city or village clerk shall determine as nearly as is practicable which town contains the most electors in the area proposed to be annexed and shall indicate in the notice required under par. (a)
that determination. The clerk of the town so designated shall perform the duties required under this subsection and the election shall be conducted in the town as are other elections.
Publication of notice.
The notice shall be published in a newspaper of general circulation in the area proposed to be annexed on the publication day next preceding the referendum election and one week prior to that publication.
The referendum shall be conducted by the town election officials but the town board may reduce the number of election officials for that election. The ballots shall contain the words "For annexation" and "Against annexation" and shall otherwise conform to the provisions of s. 5.64 (2)
. The election shall be conducted as are other town elections in accordance with chs. 6
to the extent applicable.
Canvass; statement to be filed.
The election inspectors shall make a statement of the holding of the election showing the whole number of votes cast, and the number cast for and against annexation, attach their affidavit to the statement and immediately file it in the office of the town clerk. They shall file a certified statement of the results in the office of the clerk of each other municipality affected.
If the referendum is against annexation, the costs of the election shall be borne by the towns involved in the proportion that the number of electors of each town within the territory proposed to be annexed, voting in the referendum, bears to the total number of electors in that territory, voting in the referendum.
If the result of the referendum is against annexation, all previous proceedings are nullified. If the result of the referendum is for annexation, failure of any town official to perform literally any duty required by this section does not invalidate the annexation.
An ordinance for the annexation of the territory described in the annexation petition under sub. (3)
may be enacted by a two-thirds vote of the elected members of the governing body not less than 20 days after the publication of the notice of intention to circulate the petition and not later than 120 days after the date of filing with the city or village clerk of the petition for annexation or of the referendum election if favorable to the annexation. If the annexation is subject to sub. (6)
the governing body shall first review the reasons given by the department that the proposed annexation is against the public interest. Subject to s. 59.692 (7)
, an ordinance under this subsection may temporarily designate the classification of the annexed area for zoning purposes until the zoning ordinance is amended as prescribed in s. 62.23 (7) (d)
. Before introduction of an ordinance containing a temporary classification, the proposed classification shall be referred to and recommended by the plan commission. The authority to make a temporary classification is not effective when the county ordinance prevails during litigation as provided in s. 59.69 (7)
The ordinance may annex the territory to an existing ward or may create an additional ward.
The annexation is effective upon enactment of the annexation ordinance. The board of school directors in a 1st class city is not required to administer the schools in any territory annexed to the city until July 1 following the annexation.
The clerk of a city or village which has annexed territory shall file immediately with the secretary of state a certified copy of the ordinance, certificate and plat, and shall send one copy to each company that provides any utility service in the area that is annexed. The clerk shall record the ordinance with the register of deeds and file a signed copy of the ordinance with the clerk of any affected school district. Failure to file, record or send does not invalidate the annexation and the duty to file, record or send is a continuing one. The ordinance that is filed, recorded or sent shall describe the annexed territory and the associated population. The information filed with the secretary of state shall be utilized in making recommendations for adjustments to entitlements under the federal revenue sharing program and distribution of funds under ch. 79
. The clerk shall certify annually to the secretary of state and record with the register of deeds a legal description of the total boundaries of the municipality as those boundaries existed on December 1, unless there has been no change in the 12 months preceding.
Within 10 days of receipt of the ordinance, certificate and plat, the secretary of state shall forward 2 copies of the ordinance, certificate and plat to the department of transportation, one copy to the department of administration, one copy to the department of revenue, one copy to the department of public instruction, one copy to the department, one copy to the department of natural resources, one copy to the department of agriculture, trade and consumer protection and 2 copies to the clerk of the municipality from which the territory was annexed.
Any city or village may direct a survey of its present boundaries to be made, and when properly attested the survey and plat may be filed in the office of the register of deeds in the county in which the city or village is located. Upon filing, the survey and plat are prima facie evidence of the facts set forth in the survey and plat.
(10) Qualifications of electors and owners; elector determination. 66.0217(10)(a)(a)
Under this section, qualifications as to electors and owners shall be determined as of the date of filing a petition, except that all qualified electors residing in the territory proposed for annexation on the day of a referendum election may vote in the election. Residence and ownership shall be bona fide and not acquired for the purpose of defeating or invalidating the annexation proceedings.
For purposes of this section, if a number of electors cannot be determined on the basis of reported election statistics, the number shall be determined in accordance with s. 60.74 (6)
An action on any grounds, whether procedural or jurisdictional, to contest the validity of an annexation shall be commenced within the time after adoption of the annexation ordinance provided by s. 893.73 (2)
. During the action, the application of, and jurisdiction over, any county zoning in the area annexed is as provided under s. 59.69 (7)
An action contesting an annexation shall be given preference in the circuit court.
(12) Validity of plats.
If an annexation is declared invalid but before the declaration and subsequent to the annexation a plat is submitted and is approved as required in s. 236.10 (1) (a)
, the plat is validly approved despite the invalidity of the annexation.
(13) Effective date of annexations.
Because the creation of congressional, legislative, supervisory and aldermanic districts of equal population is a matter of statewide concern, any annexation action that affects a tract of land that is the subject of an ordinance enacted or resolution adopted by any city during the period from January 1, 1990, to April 1, 1991, or any later date, expressing an intent to not exercise the city's authority to annex territory before April 1, 1991, or the specified later date, taken by a municipality during the period beginning on April 1 of the year commencing after each federal decennial census of population and ending on June 30 of the year commencing after that census, is effective on July 1 of the year commencing after that census or at such later date as may be specified in the annexation ordinance. This subsection first applies to annexations effective after March 31, 1991.
History: 1973 c. 37
; 1977 c. 29
, 1654 (8) (c)
; 1977 c. 187
; 1977 c. 315
; 1979 c. 323
; 1979 c. 361
; 1983 a. 29
; 1985 a. 225
; 1987 a. 391
; 1989 a. 192
; 1991 a. 5
; 1993 a. 16
; 1995 a. 27
, 9116 (5)
, 9145 (1)
; 1995 a. 201
; 1997 a. 27
; 1999 a. 96
; 1999 a. 150
; Stats. 1999 s. 66.0217; 1999 a. 182
; s. 13.93 (2) (c).
See s. 62.071
for special provision for annexations to cities of the first class.
In ascertaining whether a petition for annexation pursuant to sub. (2) (a) has been signed by the "owners of one-half of the land" in the proposed area of attachment, acreage within the territory constituting public streets and alleys is not to be taken into account in determining the sufficiency of the petition, no matter how owned or by whom. International Paper Co. v. Fond du Lac, 50 Wis. 2d 529
, 184 N.W.2d 834
When an owner petitions for the annexation of a sizable block of land, it is not void simply because it divides the town into 2 parts. Town of Waukechon v. Shawano, 53 Wis. 2d 593
, 193 N.W.2d 661
When city limits did not extend the full width of a city-owned road, property on the other side is still contiguous. When the boundaries of the parcel to be annexed were drawn by the petitioning landowners, the city could not be charged with arbitrary action. Town of Lyons v. Lake Geneva, 56 Wis. 2d 331
, 202 N.W.2d 228
When property owners, in petitioning for annexation, divide a tract so as to control one parcel by property owners and the other by population, the 2 resulting annexations are valid. Town of Waukesha v. City of Waukesha, 58 Wis. 2d 525
, 206 N.W.2d 585
Abundant benefits to the state from the annexation under review, including the provision of police, fire and solid waste disposal services and library and recreational facilities satisfied the need factor of the rule of reason, since absent unfair inducement or pressures upon the petitioners for annexation, a showing of benefits to the annexed land can be considered on the question of need under the rule of reason. Town of Lafayette v. City of Chippewa Falls, 70 Wis. 2d 610
, 235 N.W.2d 435
An eligible elector and a qualified elector are identical. Ch. 6 applies to annexation referendum elector qualifications under sub. (6). Washington v. Altoona, 73 Wis. 2d 250
, 243 N.W.2d 404
Direct annexation not otherwise in conflict with the "rule of reason" was not invalidated because the petitioners were motivated by the desire to obtain a change in zoning of their land. Town of Pleasant Prairie v. City of Kenosha, 75 Wis. 2d 322
, 249 N.W.2d 581
When an action challenging annexation was filed before the sub. (10) (a) limitation ran, and the plaintiff town board had given no explicit authorization for commencement of an action, the subsequent attempt to ratify the commencement of the action was a nullity. Town of Nasewaupee v. City of Sturgeon Bay, 77 Wis. 2d 110
, 251 N.W.2d 845
The sub. (5) (d) ballot language requirement is directory; substantial compliance is adequate. Town of Nasewaupee v. Sturgeon Bay, 146 Wis. 2d 492
, 431 N.W.2d 699
(Ct. App. 1988).
Under sub. (5) (g), annexation fails in cases of a tie vote. Town of Nasewaupee v. Sturgeon Bay, 146 Wis. 2d 492
, 431 N.W.2d 699
(Ct. App. 1988).
Under s. 893.73 (2) "adoption" refers to the legislative body's action of voting to approve an annexation ordinance and the statute of limitations begins to run as of that date. Town of Sheboygan v. City of Sheboygan, 150 Wis. 2d 210
, 441 N.W.2d 752
(Ct. App. 1989).
An annexation ordinance must meet "rule of reason" requirements. Application of the rule is discussed. Town of Menasha v. City of Menasha, 170 Wis. 2d 181
, 488 N.W.2d 128
(Ct. App. 1992).
A city could not reach across a lake to annex noncontiguous property. Town of Delevan v. City of Delavan, 176 Wis. 2d 516
, 500 N.W.2d 268
The prohibition in sub. (4) of the withdrawal of names from a petition prevents the withdrawal of the entire petition. Town of De Pere v. City of De Pere, 184 Wis. 2d 278
, 516 N.W.2d 1
(Ct. App. 1994).
A town contesting an annexation under sub. (10) is not required to file a notice of claim under s. 893.80 against the annexing municipality. Town of Burke v. City of Madison, 225 Wis. 2d 615
, 593 N.W.2d 822
(Ct. App. 1999).
A petition under sub. (5) (a) must be circulated by a qualified elector residing within the territory to be annexed. City of Chippewa Falls v. Town Of Hallie, 231 Wis. 2d 85
, 604 N.W.2d 300
(Ct. App. 1999).
There are 3 prongs to the rule of reason: (1) that no arbitrary exclusions or irregularities appear in boundary lines; (2) that a need exists for the property; and (3) that the municipality commits no other misuse of discretion in the process. When direct annexation is initiated by property owners, generally, the annexing municipality is not charged with arbitrary action in drawing boundaries and the courts must be responsive to the property owners desires. The need requirement serves the purpose of furthering the policy favoring orderly growth of urban areas by preventing irrational gobbling up of territory. Town of Sugar Creek v. City of Elkhorn, 231 Wis. 2d 473
, 605 N.W.2d 274
(Ct. App. 1999).
The legislature can constitutionally provide for the annexation of territory without a referendum. 60 Atty. Gen. 294.
The rule of reason in Wisconsin annexations. Knowles, 1972 WLR 1125.
Annexation by referendum initiated by city or village.
As a complete alternative to any other annexation procedure, and subject to s. 66.0307 (7)
, unincorporated territory which contains electors and is contiguous to a city or village may be annexed to the city or village under this section. The definitions in s. 66.0217 (1)
apply to this section.
The governing body of the city or village to which it is proposed to annex territory shall, by resolution adopted by two-thirds of the members-elect, declare its intention to apply to the circuit court for an order for an annexation referendum, and shall publish the resolution in a newspaper having general circulation in the area proposed to be annexed, as a class 1 notice, under ch. 985
. The governing body shall prepare a scale map of the territory to be annexed, showing it in relation to the annexing city or village. The resolution shall contain a description of the territory to be affected, sufficiently accurate to determine its location, the name of the municipalities directly affected and the name and post-office address of the municipal official responsible for the publication of the resolution. A copy of the resolution together with the scale map shall be served upon the clerk of the town or towns from which the territory is to be detached within 5 days of the date of publication of the resolution. Service may be either by personal service or by registered mail and if by registered mail an affidavit shall be on file with the annexing body indicating the date on which the resolution was mailed. The annexation is considered commenced upon publication of the resolution.
Application to the circuit court shall be by petition subscribed by the officers designated by the governing body, and shall have attached the scale map, a certified copy of the resolution of the governing body and an affidavit of the publication and filing required under par. (a)
. The petition shall be filed in the circuit court not less than 30 days but no more than 45 days after the publication of the notice of intention.
(2) Protest to court by electors; hearing. 66.0219(2)(a)(a)
If, prior to the date set for hearing upon an application filed under sub. (1) (b)
, there is filed with the court a petition signed by a number of qualified electors residing in the territory equal to at least a majority of the votes cast for governor in the territory at the last gubernatorial election or the owners of more than one-half of the real property in assessed value in the territory, protesting against the annexation of the territory, the court shall deny the application for an annexation referendum. If a number of electors cannot be determined on the basis of reported election statistics, the number shall be determined in accordance with s. 60.74 (6)
If a petition protesting the annexation is found insufficient the court shall proceed to hear all parties interested for or against the application. The court may adjourn the hearing from time to time, direct a survey to be made and refer any question for examination and report. A town whose territory is involved in the proposed annexation shall, upon application, be a party and is entitled to be heard on any relevant matter.
If for any reason the proceedings are dismissed, the court may order entry of judgment against the city or village for disbursements or any part of disbursements incurred by the parties opposing the annexation.
If the court, after the hearing, is satisfied that the description of the territory or any survey is accurate and that the provisions of this section have been complied with, it shall make an order so declaring and shall direct a referendum election within the territory described in the order, on the question of whether the area should be annexed. Such order shall be filed as provided in s. 8.37
. The order shall direct 3 electors named in the order residing in the town in which the territory proposed to be annexed lies, to perform the duties of inspectors of election.
NOTE: Par. (a) is shown as affected by two acts of the 1999 legislature and as merged by the revisor under s. 13.93 (2) (c).
The referendum election shall be held not less than 42 days nor more than 72 days after the filing of the order as provided in s. 8.37
, in the territory proposed for annexation, by the electors of that territory as provided in s. 66.0217 (7)
, so far as applicable. The ballots shall contain the words "For Annexation" and "Against Annexation". The certification of the election inspectors shall be filed with the clerk of the court, and the clerk of any municipality involved, but need not be filed or recorded with the register of deeds.
NOTE: Par. (b) is shown as affected by two acts of the 1999 legislature and as merged by the revisor under s. 13.93 (2) (c).
All costs of the referendum election shall be borne by the petitioning city or village.
If a majority of the votes cast at the referendum election is against annexation, no other proceeding under this section affecting the same territory or part of the same territory may be commenced by the same municipality until 6 months after the date of the referendum election.
If a majority of the votes cast at the referendum election is for annexation, the territory shall be annexed to the petitioning city or village upon compliance with s. 66.0217 (9)
(6) Temporary zoning of area proposed to be annexed.
An interim zoning ordinance to become effective only upon approval of the annexation at the referendum election may be enacted by the governing body of the city or village. Subject to s. 59.692 (7)
, the ordinance may temporarily designate the classification of the annexed area for zoning purposes until the zoning ordinance is amended as prescribed in s. 62.23 (7) (d)
. The proposed interim zoning ordinance shall be referred to and recommended by the plan commission prior to introduction. Authority to make a temporary classification is not effective when the county zoning ordinance prevails during litigation as provided in s. 59.69 (7)
An appeal from the order of the circuit court is limited to contested issues determined by the circuit court. An appeal shall not stay the conduct of the referendum election, if one is ordered, but the statement of the election results and the copies of the certificate and plat may not be filed with the secretary of state until the appeal has been determined.
(9) Territory excepted.
This section does not apply to any territory located in an area for which a certificate of incorporation was issued before February 24, 1959, by the secretary of state, even if the incorporation of the territory is later held to be invalid by a court.
History: 1979 c. 89
; 1987 a. 391
; 1991 a. 269
; 1993 a. 301
; 1995 a. 201
; 1999 a. 150
; Stats. 1999 s. 66.0219; 1999 a. 182
; s. 13.93 (2) (c).
See s. 281.43 (1m)
for provision authorizing use of this section when the DNR orders sewer service to areas outside municipal limits.
A trial court finding that no facts evinced a need for the city to acquire the proposed territory, thereby violating the rule of reason, would not be disturbed when it could be reasonably concluded from the adjudicative facts that: (a) the irregular shape and boundaries of the territory were designed arbitrarily and capriciously solely to assure the success of the annexation and to overcome the opposition of a majority of the electors residing in the towns; (b) a reasonable need for the annexation based on the claimed growth of the city and overflow of population into adjoining areas was not established; and (c) aside from a nursing home some 2 miles distant from the city boundary, there was no showing that the proposed annexation area was in need of the city's services which were adequately supplied by the towns. City of Beloit v. Town of Beloit, 47 Wis. 2d 377
, 177 N.W.2d 361
The term "disbursements" in sub. (3) does not include attorney's fees. City of Beloit v. Town of Beloit, 47 Wis. 2d 377
, 177 N.W.2d 361
Annexation of and creation of town islands.
Upon its own motion, a city or village by a two-thirds vote of the entire membership of its governing body may enact an ordinance annexing territory which comprises a portion of a town or towns and which was completely surrounded by territory of the city or village on December 2, 1973. The ordinance shall include all surrounded town areas except those exempt by mutual agreement of all of the governing bodies involved. The annexation ordinance shall contain a legal description of the territory and the name of the town or towns from which the territory is detached. Upon enactment of the ordinance, the city or village clerk immediately shall file 6 certified copies of the ordinance in the office of the secretary of state, together with 6 copies of a scale map. The secretary of state shall forward 2 copies of the ordinance and scale map to the department of transportation, one copy to the department of natural resources, one copy to the department of revenue and one copy to the department of administration. This section does not apply if the town island was created only by the annexation of a railroad right-of-way or drainage ditch. This section does not apply to land owned by a town government which has existing town government buildings located on the land. No town island may be annexed under this section if the island consists of over 65 acres or contains over 100 residents. Section 66.0217 (11)
applies to annexations under this section. After December 2, 1973, no city or village may, by annexation, create a town area which is completely surrounded by the city or village.
History: 1999 a. 150
A town from which 2 town islands were detached by annexation had no standing to challenge the constitutionality of the statute. Town of Germantown v. Village of Germantown, 70 Wis. 2d 704
, 235 N.W.2d 486
This is a clear and unambiguous provision allowing, with certain exceptions, for the annexation by a city or village in a single ordinance of all town islands meeting the statutorily defined criteria. Annexation by a city of 7 separate town islands via 7 separate municipal ordinances was impermissible under sub. (15) since the power to annex must be exercised by a municipality in strict conformity with the statute conferring it. Town of Blooming Grove v. City of Madison, 70 Wis. 2d 770
, 235 N.W.2d 493
The last sentence means that no city or village may annex land so that a town area is completely surrounded by the annexing city or village. The statute does not prohibit a "functional town island". Wagner Mobil, Inc. v. City of Madison, 190 Wis. 2d 585
, 527 N.W.2d 301
Annexation of territory owned by a city or village.
In addition to other methods provided by law and subject to ss. 59.692 (7)
and 66.0307 (7)
, territory owned by and lying near but not necessarily contiguous to a village or city may be annexed to a village or city by ordinance enacted by the board of trustees of the village or the common council of the city, provided that in the case of noncontiguous territory the use of the territory by the city or village is not contrary to any town or county zoning regulation. The ordinance shall contain the exact description of the territory annexed and the names of the towns from which detached, and attaches the territory to the village or city upon the filing of 7 certified copies of the ordinance in the office of the secretary of state, together with 7 copies of a plat showing the boundaries of the territory attached. Two copies of the ordinance and plat shall be forwarded by the secretary of state to the department of transportation, one copy to the department of administration, one copy to the department of natural resources, one copy to the department of revenue and one copy to the department of public instruction. Within 10 days of filing the certified copies, a copy of the ordinance and plat shall be mailed or delivered to the clerk of the county in which the annexed territory is located. Section 66.0217 (11)
applies to annexations under this section.
A challenge to annexation under this section is not subject to the time limit under s. 66.021 (10) [now s. 66.0217 (11)]. Kaiser v. City of Mauston, 99 Wis. 2d 345
, 299 N.W.2d 259
(Ct. App. 1980).
Municipal boundaries fixed by judgment.
Any 2 municipalities whose boundaries are immediately adjacent at any point and who are parties to an action, proceeding or appeal in court for the purpose of testing the validity or invalidity of an annexation, incorporation, consolidation or detachment may enter into a written stipulation, compromising and settling the litigation and determining the common boundary line between the municipalities. The court having jurisdiction of the litigation, whether the circuit court, the court of appeals or the supreme court, may enter a final judgment incorporating the provisions of the stipulation and fixing the common boundary line between the municipalities involved. A stipulation changing boundaries of municipalities shall be approved by the governing bodies of the detaching and annexing municipalities and s. 66.0217 (9)
shall apply. A change of municipal boundaries under this section is subject to a referendum of the electors residing within the territory annexed or detached, if within 30 days after the publication of the stipulation to change boundaries in a newspaper of general circulation in the area proposed to be annexed or detached a petition for a referendum conforming to the requirements of s. 8.40
signed by at least 20% of the electors of the area to be annexed or detached, is filed with the clerk of the municipality from which the area is proposed to be detached and is filed as provided in s. 8.37
. The referendum shall be conducted as are annexation referenda. If the referendum election is opposed to detachment from the municipality, all proceedings under this section are void. In this section, "municipalities" means cities, villages and towns.
NOTE: This section is shown as affected by two acts of the 1999 legislature and as merged by the revisor under s. 13.93 (2) (c).
History: 1977 c. 187
; 1989 a. 192
; 1991 a. 269
; 1999 a. 150
; Stats. 1999 s. 66.0225; 1999 a. 182
; 1999 a. 186
; s. 13.93 (2) (c).
Detachment of territory.
Subject to s. 66.0307 (7)
, territory may be detached from a city or village and attached to a city, village or town to which it is contiguous as follows: