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.
Upon the request of the town affected by the annexation, the department shall review an annexation under sub. (2)
to determine whether the annexation violates any of the following, provided that the town submits its request to the department within 30 days of the enactment of the annexation ordinance:
The requirement under sub. (2)
regarding the contiguity of the territory to be annexed with the annexing city or village.
Following its review, and within 20 days of receiving the town's request, the department shall send a copy of its findings to any affected landowner, the town affected by the annexation, and the annexing city or village. If the department does not complete its review and send a copy of its findings within 20 days of receiving the town's request, the effect on the town and the annexing city or village shall be the same as if the department found no violation of the requirements specified in subd. 1.
If the department finds that an annexation violates any requirement specified in subd. 1.
, the town from which territory is annexed may, within 45 days of its receipt of the department's findings, challenge the annexation in circuit court.
If the town commences an action to challenge the annexation and the circuit court rules against the town, the town shall pay the court costs and the city's or village's reasonable attorney fees incurred in defending the annexation. If the town commences an action to challenge the annexation and the circuit court rules in the town's favor and upholds the town's challenge, the city or village shall pay the court costs and the town's reasonable attorney fees incurred in challenging the annexation.
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 70 days nor more than 100 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 percent 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 70 days nor more than 100 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.
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. 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 administration 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 city or village shall also file with the county clerk or board of election commissioners the report required by s. 5.15 (4) (b)
. 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 administration 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 administration 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 administration 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. The court and the parties are encouraged to consider the application of s. 802.12
to an action contesting an annexation.
Except as provided in sub. (6) (d) 2.
, no action on any grounds, whether procedural or jurisdictional, to contest the validity of an annexation under sub. (2)
, may be brought by any town.
(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.
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.
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 the town board adopts a resolution approving the proposed annexation.
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
; 2001 a. 16
; 2003 a. 171
; 2007 a. 43
; 2009 a. 366
; 2011 a. 75
; 2013 a. 80
; 2015 a. 55
; 2017 a. 360
; 2017 a. 365
See s. 62.071
for special provision for annexations to cities of the first class.
In ascertaining whether a petition for annexation under sub. (2) (a) [now sub. (3) (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
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
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
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
The state is specifically authorized to petition for annexation by s. 24.40 (2), which would be rendered meaningless if the petition had to be rejected or an annexation ordinance declared invalid on the grounds that the city could establish no commercial, residential, or mercantile need for the land. Some demonstrable need must be shown or the annexation is of necessity arbitrary and capricious. In cases of direct annexation a showing of benefits to the annexed land can be considered in the overall question of need under the rule of reason. The benefits to the state were abundant in this case where city recreational facilities and better quality fire, emergency police, and rescue service would be provided to the annexed land. 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. Chapter 6 applies to annexation referendum elector qualifications under s. 66.021 (6) [now sub. (10)]. Town of Washington v. City of 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) [now sub. (11) (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) [now sub. (7) (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) [now sub. (7) (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 Delavan v. City of Delavan, 176 Wis. 2d 516
, 500 N.W.2d 268
The prohibition in sub. (4) [now sub. (5)] 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) [now sub. (11)] 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
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
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
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
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
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
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
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
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
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
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. [now sub. (14) (b)] 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
Sub. (11) (c) is unambiguous. Adopting the town's argument that before sub. (11) (c) can act to bar a town's suit, the city must show that the annexation under sub. (2) was valid would render the phrase “no action on any grounds, whether procedural or jurisdictional, to contest the validity of an annexation under sub. (2), may be brought by any town" meaningless. Darboy Joint Sanitary District No. 1 v. City of Kaukauna, 2013 WI App 113
, 350 Wis. 2d 435
, 838 N.W.2d 103
Direct annexation by unanimous approval under sub. (2) is a grassroots annexation method that requires all of the electors residing in the territory and the owners of all of the real property in the territory to petition the city or village for direct annexation. Such annexation petitions are presented to the municipality on a take it or leave it basis. Town of Lincoln v. City of Whitehall, 2018 WI App 33
, 382 Wis. 2d 112
, 912 N.W.2d 403
This section significantly circumscribes a town's ability to litigate a direct annexation by unanimous approval under sub. (2). When commencing a court action under sub. (6) (d) 2., a town is limited to challenging two things: 1) whether the territory to be annexed is contiguous to the annexing authority; and 2) whether the annexation satisfies sub. (14) (b), which requires that some part of the annexing city or village be located in the same county as the territory to be annexed. Sub. (11) (c) bars a town from bringing a general challenge under the rule of reason. However, the rule of reason is not wholly abrogated by sub. (11) (c). That provision places no limitations upon the types of challenges parties other than towns may bring. Even in cases brought by towns, the bar applies only to attempts to invalidate a direct annexation by unanimous approval under sub. (2). Town of Lincoln v. City of Whitehall, 2018 WI App 33
, 382 Wis. 2d 112
, 912 N.W.2d 403
Annexation ordinances enjoy a presumption of validity, and the party attacking an ordinance's validity bears the burden of overcoming this presumption with proof that the ordinance is invalid. Town of Lincoln v. City of Whitehall, 2018 WI App 33
, 382 Wis. 2d 112
, 912 N.W.2d 403
Statutory contiguity is generally satisfied by a significant degree of physical contact between the annexed territory and the municipality's boundary or when any separation between the two boundaries is de minimis. Even if the properties are touching, the boundaries and configuration of the annexed territory in relation to the existing municipal boundaries must not be arbitrary under the first prong of the rule of reason. However, when property owners initiate direct annexation under sub. (2), the court will not review the alleged arbitrariness of the boundaries unless the municipality was the real controlling influence behind the annexation or unless the annexed territory is of an exceptional shape. Town of Lincoln v. City of Whitehall, 2018 WI App 33
, 382 Wis. 2d 112
, 912 N.W.2d 403
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 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.
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.
(4) Referendum election; when ordered and held. 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.
The referendum election shall be held not less than 70 days nor more than 100 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.
All costs of the referendum election shall be borne by the petitioning city or village.