66.0217 Annotation
In ascertaining whether a petition for annexation under 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 (1971).
66.0217 Annotation
An annexation ordinance 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 (1972).
66.0217 Annotation
Although city limits did not extend the full width of a city-owned road, property on the other side was 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 (1972).
66.0217 Annotation
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 (1973).
66.0217 Annotation
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. 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. Town of Lafayette v. City of Chippewa Falls,
70 Wis. 2d 610,
235 N.W.2d 435 (1975).
66.0217 Annotation
An eligible elector and a qualified elector are identical. Chapter 6 applies to annexation referendum elector qualifications under sub. (6). Washington v. Altoona,
73 Wis. 2d 250,
243 N.W.2d 404 (1976).
66.0217 Annotation
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 (1977).
66.0217 Annotation
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 (1977).
66.0217 Annotation
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).
66.0217 Annotation
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).
66.0217 Annotation
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).
66.0217 Annotation
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).
66.0217 Annotation
A city could not reach across a lake to annex noncontiguous property. Town of Delavan v. City of Delavan,
176 Wis. 2d 516,
500 N.W.2d 268 (1993).
66.0217 Annotation
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).
66.0217 Annotation
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),
98-0108.
66.0217 Annotation
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),
99-0832.
66.0217 Annotation
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).
98-2514.
66.0217 Annotation
Separation of lands by a river does not make them noncontiguous under this section. Town of Campbell v. City of La Crosse, 2001 WI App 201,
247 Wis. 2d 946,
634 N.W.2d 840,
00-1914.
66.0217 Annotation
A municipality may not repeal an annexing ordinance already in effect by enacting a correcting ordinance. Town of Windsor v. Village of DeForest, 2003 WI App 114,
265 Wis. 2d 591,
666 N.W.2d 31,
02-0281.
66.0217 Annotation
Under the rule of prior precedence, in case of conflict between competing annexations, or between an annexation and a proceeding for the incorporation of a city or village, the proceeding first instituted has precedence, and the later one must yield. Annexation proceedings did not lose priority status when the ordinances were deemed invalid and dismissed by the circuit court but subsequently vindicated on appeal. Town of Campbell v. City of La Crosse, 2003 WI App 139,
266 Wis. 2d 107,
667 N.W.2d 356,
02-1150.
66.0217 Annotation
Section 66.021 (10) (now sub. (11)) does not prohibit an amendment to the complaint after the 90 days for filing the original complaint has run. Town of Campbell v. City of La Crosse, 2003 WI App 247,
268 Wis. 2d 253,
673 N.W.2d 696,
02-2541.
66.0217 Annotation
If the petitioners for annexation are in need of services that the town cannot provide but the city can, the need factor under the rule of reason is met. When no need is shown by the property owners, the annexing municipality must have a reasonable present or demonstrable future need for a substantial portion of the annexed territory. Whether an annexation is in the interest of the public is not one of the factors in the rule of reason and is not for the courts to decide. Even if the state issues a letter under s. 66.021 (11) (now sub. (6)) that the annexation is not in the public interest, the statute requires only that the city consider it. Town of Campbell v. City of La Crosse, 2003 WI App 247,
268 Wis. 2d 253,
673 N.W.2d 696,
02-2541.
66.0217 Annotation
A municipality is not required to enact a separate annexation ordinance for each of several parcels that are the subject of separate annexation petitions under sub. (2). Town of Baraboo v. Village of West Baraboo, 2005 WI App 96,
283 Wis. 2d 479,
699 N.W.2d 610,
04-0980.
66.0217 Annotation
Sub. (2), when read together and compared with the subs. (6) and (8), does not require the village to inform the department of its intention to annex less than all of the parcels originally proposed for annexation that were submitted for the department's review. Town of Baraboo v. Village of West Baraboo, 2005 WI App 96,
283 Wis. 2d 479,
699 N.W.2d 610,
04-0980.
66.0217 Annotation
Although an annexation petition may not be withdrawn by a petitioner once it is filed, neither sub. (2) nor De Pere prohibits a municipality from declining to annex a given parcel for any reason, including a petitioner's desire not to be annexed. Town of Baraboo v. Village of West Baraboo, 2005 WI App 96,
283 Wis. 2d 479,
699 N.W.2d 610,
04-0980.
66.0217 Annotation
In rule of reason cases, there is an exception to the general rule that a municipality may not be charged with any arbitrariness in the boundaries of an owner-petitioned annexation if the municipality can be shown to have been the real controlling influence in selecting the boundaries. Providing forms to prospective annexation petitioners, preparing maps and legal descriptions for the petitions, and providing other advice and technical assistance to petitioners does not render the municipality the controlling influence behind the annexation petitions nor does arranging an informational meeting of adjacent property owners only after several property owners in the area had contacted the municipality requesting information regarding a possible annexation. Town of Baraboo v. Village of West Baraboo, 2005 WI App 96,
283 Wis. 2d 479,
699 N.W.2d 610,
04-0980.
66.0217 Annotation
Sub. (11) (c) bars a town from contesting a direct annexation by unanimous approval under sub. (2). Under sub. (11) (c) an action to "contest the validity" of an annexation includes challenging an annexation as void. Barring such town actions does not render sub. (14) (b) 1. meaningless, as it still applies to annexations other than direct annexations by unanimous approval. While it may be true that towns may not use the threat of challenging the validity of an annexation to compel payments under sub. (14) (a) 1., that does not explain why a town could not use other means of compelling a village to pay the property tax set-off it owes the town. Town of Merrimac v. Village of Merrimac, 2008 WI App 98,
312 Wis. 2d 754,
753 N.W.2d 552,
07-2491.
66.0217 Annotation
The legislature can constitutionally provide for the annexation of territory without a referendum. 60 Atty. Gen. 294.
66.0217 Annotation
The rule of reason in Wisconsin annexations. Knowles, 1972 WLR 1125.
66.0219
66.0219
Annexation by referendum initiated by city or village. As a complete alternative to any other annexation procedure, and subject to
sub. (10) and
ss. 66.0301 (6) (d) and
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.
66.0219(1)(a)(a) 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.
66.0219(1)(b)
(b) 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.
66.0219(2)
(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).
66.0219(2)(b)
(b) 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.
66.0219(3)
(3) Dismissal. 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.
66.0219(4)(a)(a) 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.
66.0219(4)(b)
(b) 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.
66.0219(4)(c)
(c) All costs of the referendum election shall be borne by the petitioning city or village.
66.0219(5)(a)(a) 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.
66.0219(5)(b)
(b) 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).
66.0219(6)
(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).
66.0219(7)
(7) Appeal. 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.
66.0219(9)
(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.
66.0219(10)(a)1.1. Except as provided in
subd. 2., no territory may be annexed by a city or village under this section unless the city or village agrees to pay annually to the town, for 5 years, an amount equal to the amount of property taxes that the town levied on the annexed territory, as shown by the tax roll under
s. 70.65, in the year in which the annexation is final.
66.0219(10)(b)
(b) No territory may be annexed by a city or village under this section if no part of the city or village is located in the same county as the territory that is subject to the proposed annexation unless all of the following occur:
66.0219(10)(b)1.
1. The town board adopts a resolution approving the proposed annexation.
66.0219(10)(b)2.
2. The county board of the county in which the territory is located adopts a resolution approving the proposed annexation.
66.0219 Cross-reference
Cross-reference: See s.
281.43 (1m) for provision authorizing use of this section when the DNR orders sewer service to areas outside municipal limits.
66.0219 Annotation
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: 1) 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; 2) 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 3) 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 (1970).
66.0219 Annotation
The term "disbursements" in sub. (3) does not include attorney fees. City of Beloit v. Town of Beloit,
47 Wis. 2d 377,
177 N.W.2d 361 (1970).
66.0219 Annotation
Under the rule of prior precedence, in case of conflict between competing annexations, or between an annexation and a proceeding for the incorporation of a city or village, the proceeding first instituted has precedence, and the later one must yield. Annexation proceedings did not lose priority status when the ordinances were deemed invalid and dismissed by the circuit court but subsequently vindicated on appeal. Town of Campbell v. City of La Crosse, 2003 WI App 139,
266 Wis. 2d 107,
667 N.W.2d 356,
02-1150.
66.0221
66.0221
Annexation of and creation of town islands. 66.0221(1)(1) Upon its own motion and subject to
sub. (3) and
ss. 66.0301 (6) (d) and
66.0307 (7), 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 that are 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 subsection does not apply if the town island was created only by the annexation of a railroad right-of-way or drainage ditch. This subsection 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 subsection if the island consists of over 65 acres or contains over 100 residents.
Section 66.0217 (11) applies to annexations under this subsection. Except as provided in
sub. (2), after December 2, 1973, no city or village may, by annexation, create a town area which is completely surrounded by the city or village.
66.0221(2)
(2) A city or village may, by annexation, create a town area that is completely surrounded by the city or village if a cooperative plan for boundary change under
s. 66.0301 (6) or
66.0307, to which the town and the annexing city or village are parties, applies to the territory that is annexed.
66.0221(3)(a)1.1. Except as provided in
subd. 2., no territory may be annexed by a city or village under this section unless the city or village agrees to pay annually to the town, for 5 years, an amount equal to the amount of property taxes that the town levied on the annexed territory, as shown by the tax roll under
s. 70.65, in the year in which the annexation is final.
66.0221(3)(b)
(b) No territory may be annexed by a city or village under this section if no part of the city or village is located in the same county as the territory that is subject to the proposed annexation unless all of the following occur:
66.0221(3)(b)1.
1. The town board adopts a resolution approving the proposed annexation.
66.0221(3)(b)2.
2. The county board of the county in which the territory is located adopts a resolution approving the proposed annexation.
66.0221 Annotation
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 (1975).
66.0221 Annotation
This is a clear and unambiguous provision allowing, with certain exceptions, for the annexation by a city or village in a single ordinance 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 (1975).
66.0221 Annotation
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 (1995).
66.0223
66.0223
Annexation of territory owned by a city or village. 66.0223(1)(1) In addition to other methods provided by law and subject to
sub. (2) and
ss. 59.692 (7),
66.0301 (6) (d), 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.
Sections 66.0203 (8) (c) and
66.0217 (11) apply to annexations under this section.
66.0223(2)
(2) No territory may be annexed by a city or village under this section if no part of the city or village is located in the same county as the territory that is subject to the proposed annexation unless all of the following occur:
66.0223(2)(a)
(a) The town board adopts a resolution approving the proposed annexation.
66.0223(2)(b)
(b) The county board of the county in which the territory is located adopts a resolution approving the proposed annexation.
66.0223 Annotation
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).
66.0225
66.0225
Stipulated boundary agreements in contested boundary actions. 66.0225(1)
(1)
Definitions. In this section, "municipality" means a city, village, or town.
66.0225(2)
(2) Contested annexations. 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 of an annexation may enter into a written stipulation, compromising and settling the litigation and determining the portion of the common boundary line between the municipalities that is the subject of the annexation. 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 body of each municipality and
s. 66.0217 (9) and
(11) shall apply. A change of municipal boundaries under this section is subject to a referendum of the electors residing within the territory whose jurisdiction is subject to change under the stipulation, if within 30 days after the publication of the stipulation to change boundaries in a newspaper of general circulation in that territory, a petition for a referendum conforming to the requirements of
s. 8.40 signed by at least 20% of the electors residing within that territory is filed with the clerk of the municipality from which the greater area is proposed to be removed and is filed as provided in
s. 8.37. The referendum shall be conducted as are annexation referenda. If the referendum election fails, all proceedings under this section are void.
66.0225(3)(a)(a) In this subsection, "boundary action" means an action, proceeding, or appeal in court contesting the validity of an annexation, consolidation, detachment, or incorporation.
66.0225(3)(b)
(b) If 2 municipalities whose boundaries are immediately adjacent at any point are parties to a boundary action, the municipalities may enter into an agreement under
s. 66.0301 (6) or
s. 66.0307 as part of a stipulation to settle the boundary action. The court may approve and make part of the final judgment a stipulation that includes an agreement under
s. 66.0301 (6) or
s. 66.0307.
66.0225(4)
(4) Authority for certain stipulations. A stipulation that is court-approved under this section before January 19, 2008, that affects the location of a boundary between municipalities, is not invalid as lacking authority to affect the location of the boundary.
