If the court determines that an annexation proceeding described under subd. 1.
was initiated on the same date as the publication of the notice under sub. (1)
, the court shall determine which procedure was begun first on that date and that action may proceed and the other action may not proceed unless the first action fails.
If the court determines that an annexation proceeding described under subd. 1.
was initiated more than 30 days after the publication of the notice under sub. (1)
, the annexation is void.
Upon receipt of the petition from the circuit court and payment of any fee imposed under s. 16.53 (14)
, the board shall make any necessary investigation to apply the standards under s. 66.0207
Within 30 days after the receipt by the board of the petition from the circuit court and payment of any fee imposed under s. 16.53 (14)
, whichever is later, any party in interest may request a hearing. Upon receipt of the request, the board shall schedule a hearing at a place in or convenient to the territory sought to be incorporated.
Notice of the hearing shall be given in the territory to be incorporated by publishing a class 2 notice, under ch. 985
, and by mailing the notice to the designated representative of the petitioners or any 5 petitioners and to all town and municipal clerks entitled to receive mailed notice of the petition under sub. (4)
Subject to par. (dm)
, unless the court sets a different time limit, the board shall prepare its findings and determination, citing the supporting evidence, within 180 days after receipt of the referral from the court and payment of any fee imposed under s. 16.53 (14)
, whichever is later. The findings and determination shall be forwarded by the board to the circuit court. Copies of the findings and determination shall be sent by certified or registered mail to the designated representative of the petitioners, and to all town and municipal clerks entitled to receive mailed notice of the petition under sub. (4)
The time period specified or set by the court under par. (d)
shall be stayed for a reasonable period of time to allow for alternative dispute resolution of any disagreements between interested parties that result from the filing of an incorporation petition if all interested parties agree to this stay and provide written notice of their agreement to the board and to the circuit court.
The petition as submitted is dismissed with a recommendation that a new petition be submitted to include more or less territory as specified in the department's findings and determination.
If the board determines that the petition shall be dismissed under par. (e) 1.
, the circuit court shall issue an order dismissing the petition. Except as provided in subd. 2.
, if the board grants the petition, the circuit court shall order an incorporation referendum as provided in s. 66.0211
If sub. (4m)
applies, the court shall dismiss the petition if the court does not find that the resolutions required under sub. (4m)
have been adopted. Paragraph (g)
does not apply to this subdivision.
The findings of both the court and the board shall be based upon facts as they existed at the time of the filing of the petition.
Except for an incorporation petition which describes the territory recommended by the board under sub. (9) (e) 3.
, no petition for the incorporation of the same or substantially the same territory may be entertained for one year following the date of dismissal under par. (f)
of the petition or the date of any election at which incorporation was rejected by the electors.
If the board fails to make a determination within the time limit under par. (d)
, the board shall refund the fees imposed by the board under s. 16.53 (14)
and shall then make a determination as quickly as possible.
Certain towns may become a city or village.
A town that is adjacent to a village that contains an electronics and information technology manufacturing zone that is designated under s. 238.396 (1m)
may become a city or village if the town holds, and approves, an incorporation referendum as described in s. 66.0211 (3)
. None of the other procedures contained in ss. 66.0201
need to be fulfilled, and no approval by the board under s. 66.0207
is necessary for the town to become a city or village.
Sub. (5) does not empower a court to compel joinder. In re Incorporation of Town of Fitchburg, 98 Wis. 2d 635
, 299 N.W.2d 199
An incorporation petition's precedence over a competing annexation proceeding is discussed. Town of Delavan v. City of Delavan, 176 Wis. 2d 516
, 500 N.W.2d 268
Sub. (2) (e) prevents the signer of a petition from withdrawing his or her name. It does not prevent the circulator of the petition from striking invalid signatures. Sub. (2) (b) permits withdrawal of a signature before the petition is filed. Walag v. Town of Randall, 213 Wis. 2d 424
, 570 N.W.2d 623
(Ct. App. 1997), 96-2987
The effect of the requirement in sub. (2) (c) of a description with “sufficient accuracy" and a scale map “reasonably showing" the boundaries of the affected parcel is that the description and map, when viewed together, fairly apprise the public of the territory to be incorporated. Wirth v. City of Port Washington, 2001 WI App 277
, 248 Wis. 2d 893
, 637 N.W.2d 442
There are significant conflicts between a contingent narrative description that provides for more than one location and the sub. (2) (c) requirement that the petition describe the territory to be incorporated with sufficient accuracy to determine its location. Town of Campbell v. City of La Crosse, 2003 WI App 139
, 266 Wis. 2d 107
, 667 N.W.2d 356
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
A court's authority to determine whether 2 town boards have adopted resolutions under sub. (4m) approving an incorporation is triggered only after the incorporation review board has granted the incorporation petition under sub. (9) (f). Walt v. City of Brookfield, 2015 WI App 3
, 359 Wis. 2d 541
, 859 N.W.2d 115
Standards to be applied by the circuit court.
Before referring the incorporation petition as provided in s. 66.0203 (2)
to the board, the court shall determine whether the petition meets the formal and signature requirements and shall further find that the following minimum requirements are met:
Area, one-half square mile; resident population, 150.
Area, one square mile; resident population, 1,000; density, at least 500 persons in any one square mile.
Area, 2 square miles; resident population, 2,500; density, at least 500 persons in any one square mile.
Area, 3 square miles; resident population, 5,000; density, at least 750 persons in any one square mile.
Standards when near 1st, 2nd or 3rd class city.
If the proposed boundary of a metropolitan village or city is within 10 miles of the boundary of a 1st class city or 5 miles of a 2nd or 3rd class city, the minimum area requirements are 4 and 6 square miles for villages and cities, respectively.
History: 1977 c. 29
; 1999 a. 150
; Stats. 1999 s. 66.0205; 2003 a. 171
The 4 square mile requirement of sub. (5) was met when 4.2 square miles of village land were proposed for annexation, although 2.5 square miles of that land was within floodway lines. In re Petition of Township of Campbell, 78 Wis. 2d 246
, 254 N.W.2d 241
Standards to be applied by the board. 66.0207(1)(1)
The board may approve for referendum only those proposed incorporations which meet the following requirements:
Characteristics of territory.
The entire territory of the proposed village or city shall be reasonably homogeneous and compact, taking into consideration natural boundaries, natural drainage basin, soil conditions, present and potential transportation facilities, previous political boundaries, boundaries of school districts, shopping and social customs. An isolated municipality shall have a reasonably developed community center, including some or all features such as retail stores, churches, post office, telecommunications exchange and similar centers of community activity.
Territory beyond the core.
The territory beyond the most densely populated one-half square mile specified in s. 66.0205 (1)
or the most densely populated square mile specified in s. 66.0205 (2)
shall have an average of more than 30 housing units per quarter section or an assessed value, as defined in s. 66.0217 (1) (a)
for real estate tax purposes, more than 25 percent of which is attributable to existing or potential mercantile, manufacturing or public utility uses. The territory beyond the most densely populated square mile as specified in s. 66.0205 (3)
shall have the potential for residential or other urban land use development on a substantial scale within the next 3 years. The board may waive these requirements to the extent that water, terrain or geography prevents the development.
In addition to complying with each of the applicable standards set forth in sub. (1)
and s. 66.0205
in order to be approved for referendum, a proposed incorporation must be in the public interest as determined by the board upon consideration of the following:
The present and potential sources of tax revenue appear sufficient to defray the anticipated cost of governmental services at a local tax rate which compares favorably with the tax rate in a similar area for the same level of services.
Level of services.
The level of governmental services desired or needed by the residents of the territory compared to the level of services offered by the proposed village or city and the level available from a contiguous municipality which files a certified copy of a resolution as provided in s. 66.0203 (6)
Impact on the remainder of the town.
The impact, financial and otherwise, upon the remainder of the town from which the territory is to be incorporated.
Impact on the metropolitan community.
The effect upon the future rendering of governmental services both inside the territory proposed for incorporation and elsewhere within the metropolitan community. There shall be an express finding that the proposed incorporation will not substantially hinder the solution of governmental problems affecting the metropolitan community.
History: 1977 c. 29
; 1983 a. 189
s. 329 (14)
; 1985 a. 297
; 1999 a. 150
; Stats. 1999 s. 66.0207; 2003 a. 171
; s. 35.17 correction in (1) (title), (2) (title).
The delegation of legislative power under sub. (2) (d) is constitutional. The legislature stated the general purpose with sufficient clarity that it can be determined that it is the legislature's will and not that of the administrator [now board] that is served by following consideration guidelines enumerated in subs. (1) and (2). Westring v. James, 71 Wis. 2d 462
, 238 N.W.2d 695
The requirement of homogeneity seeks to assure that an incorporated area is urban rather than rural, that development in such an area is not scattered, fragmented, or haphazard, and that similar land uses are grouped together in appropriate municipal boundaries. Pleasant Prairie v. Department of Local Affairs and Development, 113 Wis. 2d 327
, 334 N.W.2d 893
That the department approved annexations that helped create fragmented town borders did not render arbitrary and capricious the department's determination that the town's proposed incorporation did not meet the requirement of homogeneity and compactness. Incorporation of the Town of Pewaukee, 186 Wis. 2d 515
, 521 N.W.2d 453
(Ct. App. 1994).
Whether incorporation would benefit the proposed village area is not the standard for allowing incorporation. An area must meet all the requirements of subs. (1) and (2). Walag v. DOA, 2001 WI App 217
, 247 Wis. 2d 850
, 634 N.W.2d 906
Review of incorporation-related orders and decisions. 66.0209(3)
Where a proceeding for judicial review is commenced under sub. (2)
, appeal under sub. (1)
may not be taken and the time in which the appeal may be taken does not commence to run until judgment is entered in the proceeding for judicial review.
An incorporation referendum ordered by the circuit court under s. 66.0203 (9) (f)
may not be stayed pending the outcome of further litigation, unless the court of appeals or the supreme court, upon an appeal or upon the filing of an original action in the supreme court, concludes that a strong probability exists that the order of the circuit court or the decision of the board will be set aside.
History: 1977 c. 29
; Sup. Ct. Order, 146 Wis. 2d xiii (1988); 1999 a. 150
; Stats. 1999 s. 66.0209; 2001 a. 103
; 2003 a. 171
When a petition to incorporate is dismissed due to DOA disapproval, sub. (2) prevents appellate court review prior to judicial review under ch. 227. Petition to Incorporate Powers Lake Village, 171 Wis. 2d 659
, 492 N.W.2d 342
(Ct. App. 1992).
Incorporation referendum procedure. 66.0211(1)(1)
The circuit court's order for an incorporation referendum shall specify the voting place and the date of the referendum, which shall be not less than 6 weeks from the date of the order, and name 3 inspectors of election. If the order is for a city incorporation referendum the order shall further specify that 7 alderpersons shall be elected at large from the proposed city. The city council at its first meeting shall determine the number and boundaries of wards in compliance with s. 5.15 (1)
, and the combination of wards into aldermanic districts. The number of alderpersons per aldermanic district shall be determined by charter ordinance.
Notice of referendum.
Notice of the referendum shall be given by publication of the order of the circuit court in a newspaper having general circulation in the territory. Publication shall be once a week for 4 successive weeks. The first publication may not be more than 4 weeks before the referendum.
An incorporation referendum shall be conducted in the same manner as an annexation referendum under s. 66.0217 (7)
to the extent applicable except that the ballot shall contain the words “For a city [village]" and “Against a city [village]". The inspectors shall make a return to the circuit court.
If the referendum is against incorporation, 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 incorporated, voting in the referendum, bears to the total number of electors in the territory voting in the referendum. If the referendum is for a village or city, the costs shall be charged against the municipality in the apportionment of town assets.
Certification of incorporation.
If a majority of the votes in an incorporation referendum are cast in favor of a village or city, the clerk of the circuit court shall certify the fact to the secretary of administration and supply the secretary of administration with a copy of a description of the legal boundaries of the village or city and the associated population and a copy of a plat of the village or city. Within 10 days of receipt of the description and plat, the secretary of administration shall forward 2 copies to the department of transportation and one copy each to the department of administration and the department of revenue. The secretary of administration shall issue a certificate of incorporation and record the certificate.
A referendum is effective immediately if the majority of votes are for incorporation. 70 Atty. Gen. 128.
Powers of new village or city: elections; adjustment of taxes; reorganization as village. 66.0213(1)(1)
Village or city powers.
A village or city incorporated under ss. 66.0201
is a body corporate and politic, with powers and privileges of a municipal corporation at common law and conferred by these statutes.
Ordinances in force in the territory incorporated or any part of the territory, to the extent not inconsistent with chs. 61
, continue in force until altered or repealed.
All officers of the village or town embracing the territory that is incorporated as a village or city continue in their powers and duties until the first meeting of the board of trustees or common council at which a quorum is present. Until a village or city clerk is chosen and qualified all oaths of office and other papers shall be filed with the circuit court with which the petition was filed. The court shall deliver the oaths and other papers with the petition to the village or city clerk when that clerk qualifies.
Within 10 days after incorporation of the village or city, the county clerk of the county in which the petition was filed shall fix a time for the first election, and where appropriate designate the polling place or places, and name 3 inspectors of election for each place. The time for the election shall be fixed no less than 40 nor more than 50 days after the date of the certificate of incorporation issued by the secretary of administration, irrespective of any other provision in the statutes. Nomination papers shall conform to ch. 8
to the extent applicable. Nomination papers shall be signed by not less than 5 percent nor more than 10 percent of the total votes cast at the referendum election, and be filed no later than 15 days before the time fixed for the election. Ten days' previous notice of the election shall be given by the county clerk by publication in the newspapers selected under s. 66.0211 (2)
and by posting notices in 3 public places in the village or city, but failure to give notice does not invalidate the election.
The election shall be conducted as prescribed by ch. 6
. The inspectors shall make returns to the county clerk who shall, within 14 days after the election, canvass the returns and declare the result. The clerk shall notify the officers-elect and issue certificates of election. If the first election is on the first Tuesday in April the officers elected and their appointees shall commence and hold their offices as for a regular term. Otherwise they shall commence within 14 days and hold their offices until the regular village or city election and the qualification of their successors and the terms of their appointees expire as soon as successors qualify.
Taxes levied before incorporation; how collected and divided.
If a village or city is incorporated after the assessment of taxes in any year and before the collection of the taxes, the tax assessed shall be collected by the town treasurer of the town or the town treasurers of the different towns of which the village or city formerly constituted a part, and all moneys collected from the tax levied for town purposes shall be divided between the village or city and the town or the towns, as provided by s. 66.0235 (13) (a) 1.
, for the division of property owned jointly by towns and villages.
Reorganization of city as village.
If the population of any city falls below 1,000 as determined by the United States census, the council may upon filing of a petition conforming to the requirements of s. 8.40
containing the signatures of at least 15 percent of the electors submit at any general or city election the question whether the city shall reorganize as a village. If three-fifths of the votes cast on the question are for reorganization the mayor and council shall record the return in the office of the register of deeds, file a certified copy with the clerk of the circuit court, and immediately call an election, to be conducted as are village elections, for the election of village officers. Upon the qualification of the officers, the board of trustees shall declare the city reorganized as a village, and the reorganization is effective. The clerk shall certify a copy of the declaration to the secretary of administration who shall file the declaration and endorse a memorandum of the declaration on the record of the certificate of incorporation of the city. Rights and liabilities of the city continue in favor of or against the village. Ordinances, so far as within the power of the village, remain in force until changed.
Incorporation of certain towns adjacent to 1st class cities. 66.0215(1)(1)
If the resident population of a town exceeds 5,000 as shown by the last federal census or by a census under sub. (2)
, if the town is adjacent to a 1st class city and contains an equalized valuation in excess of $20,000,000 and if a petition signed by 100 or more persons, each an elector and taxpayer of the town, containing the signatures of at least 50 percent of the owners of real estate in the town and requesting submission of the question to the electors of the town, is filed with the clerk of the town, the procedure for becoming a 4th class city is initiated.
At the next regular meeting of the town board following the filing of the petition under sub. (1)
, the board by resolution shall provide for a referendum by the electors of the town. The resolution shall conform to the requirements of s. 5.15 (1)
and shall determine the numbers and boundaries of each ward of the proposed city and the time of voting, which may not be earlier than 6 weeks after the adoption of the resolution. The resolution may direct that a census be taken of the resident population of the territory on a day not more than 10 weeks previous to the date of the election, exhibiting the name of every head of a family and the name of every person who is a resident in good faith of the territory on that day, and the lot or quarter section of land on which that person resides, which shall be verified by the affixed affidavit of the person taking the census.
Notice of referendum.
Notice of the referendum shall be given by publication of the resolution in a newspaper published in the town, if there is one, otherwise in a newspaper designated in the resolution, once a week for 4 successive weeks, the first publication to be not more than 4 weeks before the referendum.
The referendum shall be conducted in the same manner as elections for supervisors of the town board. The question appearing on the ballot shall be “Shall the town of .... become a 4th class city?". Below the question shall appear 2 squares. To the left of one square shall appear the words “For a city" and to the left of the other square shall appear the words “Against a city". The inspectors shall make a return to the clerk of the town.
Certificate of incorporation.
If a majority of the votes are cast in favor of a city the clerk shall certify the fact to the secretary of administration, together with the result of the census, if any, and 4 copies of a description of the legal boundaries of the town and 4 copies of a plat of the town. The secretary of administration shall then issue a certificate of incorporation, and record the certificate in a book kept for that purpose. Two copies of the description and plat shall be forwarded by the secretary of administration to the department of transportation and one copy to the department of revenue.
A city incorporated under this section is a body corporate and politic, with the powers and privileges of a municipal corporation at common law and conferred by ch. 62
Ordinances in force in the territory or any part of the territory, to the extent not inconsistent with ch. 62
, continue in force until altered or repealed.
All officers of the town embracing the territory incorporated as a city continue in their powers and duties until the first meeting of the common council at which a quorum is present. Until a city clerk is chosen and qualified all oaths of office and other papers shall be filed with the town clerk, with whom the petition was filed, who shall deliver them with the petition to the city clerk when the city clerk is qualified.
First city election.
Within 10 days after incorporation of the city, the town board and the town clerk who received the petition shall fix a time for the first city election, designate the polling place or places, and name 3 inspectors of election for each place. Ten days' previous notice of the election shall be given by the clerk by publication in the newspapers selected under sub. (3)
and by posting notices in 3 public places in the city. Failure to give notice does not invalidate the election. The election shall be conducted as is prescribed by chs. 5
. The inspectors shall make returns to the board which shall, within 14 days after the election, canvass the returns and declare the result. The clerk shall notify the officers-elect and issue certificates of election. If the first election is on the first Tuesday in April the officers elected and their appointees commence and hold their offices as for a regular term. Otherwise they commence within 14 days and hold until the regular city election and the qualification of their successors, and the term of their appointees expires as soon as successors qualify.
“Adjacent" under sub. (1) means “contiguous," not “near." City of Waukesha v. Salbashian, 128 Wis. 2d 334
, 382 N.W.2d 52
Incorporation of certain towns contiguous to 3rd class cities or villages. 66.02162(1)(1)
A town board may initiate the procedure for incorporating its town as a village under this section by adopting a resolution providing for a referendum by the electors of the town on the question of whether the town should become a village if on the date of the adoption of the resolution any of the following is satisfied: