Town of Lincoln v. City of Whitehall

2019 WI 37

SUPREME COURT OF WISCONSIN
CASE NO.: 2017AP000684-AC
COMPLETE TITLE: Town of Lincoln,
Plaintiff-Appellant-Petitioner,
v.
City of Whitehall,
Defendant-Respondent.

REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 382 Wis. 2d 112,912 N.W.2d 403
PDC No:2018 WI App 33 - Published

OPINION FILED: April 17, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: January 16, 2019

SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Trempealeau
JUDGE: Charles V. Feltes

JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:

ATTORNEYS:

For the plaintiff-appellant-petitioner, there were briefs
filed by Peter M. Reinhardt and Bakke Norman, S.C., Menomonie.
There was an oral argument by Peter M. Reinhardt.

For the defendant-respondent, there was a brief filed by
Ryan J. Steffes and Weld Riley, S.C., Eau Claire. There was an
oral argument by Ryan J. Steffes.

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

An amicus curia brief was filed on behalf of Wisconsin
Realtors Association, League of Wisconsin Municipalities,
Wisconsin Builders Association and NAIOP-WI by Thomas D. Larson,
Madison.

2
 2019 WI 37
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2017AP684-AC
(L.C. No. 2015CV112)

STATE OF WISCONSIN : IN SUPREME COURT

Town of Lincoln,

Plaintiff-Appellant-Petitioner, FILED
v. APR 17, 2019
City of Whitehall, Sheila T. Reiff
Clerk of Supreme Court
Defendant-Respondent.

REVIEW of a decision of the Court of Appeals. Reversed and
cause remanded.

¶1 ANN WALSH BRADLEY, J. The petitioner, Town of

Lincoln, seeks review of a published court of appeals decision
affirming the circuit court's orders granting the City of
Whitehall's motion to dismiss and motion for summary judgment.1
The Town aims to challenge the City's annexation of a portion of
the Town.

1Town of Lincoln v. City of Whitehall, 2018 WI App 33, 382
Wis. 2d 112, 912 N.W.2d 403 (affirming order of circuit court
for Trempealeau County, Charles V. Feltes, J.).
 No. 2017AP684-AC

¶2 Specifically, the Town contends that the court of
appeals' decision was based on the erroneous classification of
the petition as one for direct annexation by unanimous approval
even though the annexation petition lacked the signatures of all
the required landowners. It asserts that the court of appeals
erred in limiting the grounds on which the Town may challenge
the annexation.
¶3 We conclude that the annexation petition in this case
is not a petition for direct annexation by unanimous approval.
Because the limitations on annexation challenges set forth in
Wis. Stat. § 66.0217(11)(c) (2015-16)2 pertain to petitions for
direct annexation by unanimous approval only, such limitations

do not apply here.
¶4 Accordingly, we reverse the decision of the court of
appeals and remand to the circuit court.
I
¶5 This case arises from a direct annexation effort by a
group of landowners to annex a portion of the Town of Lincoln to

the City of Whitehall. The genesis of the annexation attempt
came from Whitehall Sand and Rail, LLC (Whitehall Sand), a
company that sought to site a sand mine on land located in the
Town. However, Whitehall Sand wanted the mine to be within the
limits of the City.

2
All subsequent references to the Wisconsin Statutes are to
the 2015-16 version unless otherwise indicated.

2
 No. 2017AP684-AC

¶6 Between 2013 and 2015, Whitehall Sand identified the
property it desired to include in its proposed sand mine and
approached the property owners with offers to purchase their
land. Some of the offers to purchase were contingent on the
land being annexed by the City.
¶7 In total, Whitehall Sand offered to purchase
approximately 1,248 acres. At its narrowest point, the proposed
annexed territory is about 1,100 feet wide, and the territory
shares an estimated 4,000-foot border with the City.
¶8 The City and Whitehall Sand began negotiations on a
development agreement related to the property to be annexed.
After reviewing Whitehall Sand's proposed annexation maps, the

City informed Whitehall Sand that its annexation petition could
not exclude certain properties that would result in "islands"
that were part of the City, yet surrounded entirely by the Town.
Consistent with this directive, Whitehall Sand revised the
annexation petitions and hired a land surveyor to prepare maps
and legal descriptions. However, Whitehall Sand and the City

were not able to finalize an agreement prior to the filing of
the annexation petition that is the subject of this case.
¶9 On February 9, 2015, the direct annexation petition
was filed with the City. The petition requested annexation of
the identified Town land by the City in four phases,3 with the

3 Whitehall Electric Utility requested a four-phase
annexation to ensure that it would be able to provide
electricity to Whitehall Sand.

3
 No. 2017AP684-AC

territory in each phase the subject of a separate city
ordinance. Attached to the petition were four documents
containing the legal descriptions of the land proposed to be
annexed and corresponding maps.
¶10 The annexation petition was labelled as a petition for
"direct annexation by unanimous approval" pursuant to Wis. Stat.
§ 66.0217(2).4 However, the petition did not include the

4 Wis. Stat. § 66.0217(2) provides:

Direct annexation by unanimous approval. Except as
provided in this subsection and sub. (14), and subject
to ss. 66.0301(6)(d) and 66.0307(7), if a petition for
direct annexation signed by all of the electors
residing in the territory and the owners of all of the
real property in the territory is filed with the city
or village clerk, and with the town clerk of the town
or towns in which the territory is located, together
with a scale map and a legal description of the
property to be annexed, an annexation ordinance for
the annexation of the territory may be enacted by a
two-thirds vote of the elected members of the
governing body of the city or village without
compliance with the notice requirements of sub. (4).
In an annexation under this subsection, subject to
sub. (6), the person filing the petition with the city
or village clerk and the town clerk shall, within 5
days of the filing, mail a copy of the scale map and a
legal description of the territory to be annexed to
the department and the governing body shall review the
advice of the department, if any, before enacting the
annexation ordinance. No territory may be annexed by
a city or village under this subsection unless the
territory to be annexed is contiguous to the annexing
city or village.

4
 No. 2017AP684-AC

signature of Fox Valley and Western, LTD, which owned a narrow
strip of railroad land in the proposed annexation area.5
¶11 On April 29, 2015, the City's common council met and
passed four annexation ordinances detaching the land described
in the petition from the Town. The four ordinances corresponded
to the four phases of the requested annexation.6
¶12 One month following the City's passage of the
annexation ordinances, the Town timely sought review of the
annexation from the Department of Administration (DOA) pursuant
to Wis. Stat. § 66.0217(6)(d).7 In its review of the annexation,

5 The record reflects that on May 1, 2015, after the
annexation petition had been filed, Trempealeau County's Real
Property Lister Department sent a letter to the land surveyor
hired by Whitehall Sand that asked: "Has the railroad company
signed the petition to annex into the City of Whitehall?" In
his deposition, the surveyor indicated that he did not think he
responded to the letter, but that he did provide the letter to
Whitehall Sand.
6 The parties agree that the four annexation ordinances
should be analyzed as if they constitute a single annexation.
7 Wis. Stat. § 66.0217(6)(d)1. sets forth the scope of the
Department of Administration's review of a direct annexation by
unanimous approval:

(d) Direct annexation by unanimous approval. 1. 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:

a. The requirement under sub. (2) regarding the
contiguity of the territory to be annexed with
the annexing city or village.

(continued)
5
 No. 2017AP684-AC

the DOA considered two requirements imposed by § 66.0217(6)(d)1.
First, it considered the requirement that the annexation
territory must be contiguous to the annexing city or village
(the contiguity requirement). § 66.0217(6)(d)1.a. Second, it
considered the requirement that if no part of the annexing city
or village is located within the same county as the annexation
territory, then the town board whose territory is being annexed
must first adopt a resolution approving the proposed annexation
(the same-county requirement, sometimes referred to as the
"county parallelism" requirement). §§ 66.0217(6)(d)1.b.,
66.0217(14)(b).
¶13 The DOA determined that although the City's annexation

ordinance met the same-county requirement, it failed the
contiguity requirement. Specifically, it observed that "Phase 2
constitutes a long and narrow corridor of territory which
primarily serves to connect the much larger territory in Phases
3 and 4." Accordingly, the DOA concluded that the annexed land
formed an impermissible "balloon-on-a-string" configuration that

is "contrary to annexation law because it fails to constitute
appropriate contiguity."8 The DOA indicated that its "finding is
advisory in nature, and is not binding upon any party."
However, it also advised that its "finding does entitle the Town
of Lincoln to challenge the annexation in circuit court,

b. The requirement under sub. (14)(b).
8
See Town of Mt. Pleasant v. City of Racine, 24 Wis. 2d 41,
45-47, 127 N.W.2d 757 (1964).

6
 No. 2017AP684-AC

pursuant to Wis. Stats. s. 66.0217(6)(d)2., should the Town
choose to do so."9
¶14 Invoking its right to challenge the annexation in
circuit court, the Town filed this declaratory judgment action.
It sought a declaration that the City's annexation ordinances
are invalid and unenforceable.
¶15 The Town raised several objections to the annexation.
First, it contended that this petition for direct annexation by
unanimous approval was procedurally defective in that it was not
signed by all of the owners of real property in the territory.
Because the Town advanced that the petition was not unanimous
pursuant to Wis. Stat. § 66.0217(2), it argued that the petition

was mislabeled as a "direct annexation by unanimous approval."
Second, the Town asserted that the annexed territory was not
contiguous to the annexing City. Third, the Town challenged the

9 Wis. Stat. § 66.0217(6)(d)2. provides:

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.

7
 No. 2017AP684-AC

annexation as arbitrary and in violation of the "rule of
reason."10 Relatedly, the Town argued that the City, rather than
the petitioning landowners, was the "real controlling influence"
behind the annexation petitions.11
¶16 Moving to dismiss each of the Town's claims with the
exception of the contiguity challenge, the City argued that the
Town was statutorily barred from challenging matters other than

10The "rule of reason" is a judicially-created doctrine
courts have applied to assess the validity of annexations. See
Town of Pleasant Prairie v. City of Kenosha, 75 Wis. 2d 322,
326-27, 249 N.W.2d 581 (1977). Pursuant to this rule, "which
has as its essential purpose the ascertainment whether the power
delegated to the cities and villages has been abused in a given
case": (1) exclusions and irregularities in boundary lines must
not be the result of arbitrariness; (2) some reasonable present
or demonstrable future need for the annexed property must be
shown; and (3) no other factors must exist which would
constitute an abuse of discretion. Id. at 327; Town of
Lafayette v. City of Chippewa Falls, 70 Wis. 2d 610, 624-25, 235
N.W.2d 435 (1975).
11 When the municipality is the "real controlling influence"
in selecting the boundaries of annexed territory, the
municipality may be charged with any arbitrariness in the
boundaries even though the property owners are the petitioners.
In re Smith, Becker and McCormick Props., 2003 WI App 247, ¶22,
268 Wis. 2d 253, 673 N.W.2d 696. "'Influencing' the
proceedings, in this context, means more than providing mere
technical assistance or recommendations to the petition signers;
rather, it means conduct by which the annexing authority
dominates the petitioners so as to have effectively selected the
boundaries." Town of Menasha v. City of Menasha, 170
Wis. 2d 181, 192, 488 N.W.2d 104 (Ct. App. 1992) (internal
citation omitted). Stated differently, the annexing
municipality is a "puppeteer and the petitioners puppets dancing
on a municipal string." Town of Waukesha v. City of Waukesha,
58 Wis. 2d 525, 530, 206 N.W.2d 585 (1973).

8
 No. 2017AP684-AC

contiguity pursuant to Wis. Stat. § 66.0217(11)(c).12 The
circuit court agreed with the City and dismissed all claims
except the contiguity challenge.
¶17 The City subsequently filed a motion for summary
judgment asserting that the contiguity requirement was met as a
matter of law. Again, the circuit court agreed with the City.
It determined that "there is no genuine issue of material fact
that the annexed territory is, in fact, contiguous to the
boundary of city of Whitehall in Wisconsin as it existed at the
time of the annexation."
¶18 After the Town appealed, the court of appeals affirmed
the circuit court's determination of both the motion to dismiss

and the motion for summary judgment. It concluded first that
the circuit court properly dismissed all of the Town's claims
other than the statutory contiguity claim. Relying on Wis.
Stat. §§ 66.0217(6)(d)1., (6)(d)2., and (11)(c), it determined
that "a town is limited in a court action to challenging
contiguity and county parallelism, the latter of which is not at

issue here." Town of Lincoln v. City of Whitehall, 2018 WI App
33, ¶2, 382 Wis. 2d 112, 912 N.W.2d 403.
¶19 The court of appeals concluded next that the circuit
court properly granted the City's summary judgment motion on the
Town's contiguity claim. It arrived at this determination

12
Wis. Stat. § 66.0217(11)(c) states: "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."

9
 No. 2017AP684-AC

because there is a "significant degree of physical contact"
between the annexed territory and the annexing municipality.
Id., ¶3.

¶20 Third, the court of appeals determined that the
annexation is not subject to an arbitrariness challenge. Id.,
¶4. It concluded that the annexed territory here is of an
"unexceptional shape that does not warrant further scrutiny of
the territory's boundaries." Id. Finally, the court of appeals
concluded that "no factfinder could reasonably conclude the City
was either a petitioner or the 'real controlling influence'
directing the annexation proceedings." Id.
II

¶21 We are asked to review the court of appeals'
determination that the circuit court properly granted the City's
motion to dismiss on the ground that Wis. Stat. § 66.0217(11)(c)
limits the Town's challenges to those of contiguity only.
Whether a motion to dismiss was properly granted is a question
of law this court reviews independently of the determinations
rendered by the circuit court and court of appeals. Brew City
Redevelopment Grp., LLC v. Ferchill Grp., 2006 WI 128, ¶15, 297
Wis. 2d 606, 724 N.W.2d 879.
¶22 We are also asked to review the court of appeals'
decision affirming the circuit court's grant of summary judgment
concluding that the annexed land is contiguous to the City as a
matter of law. Likewise, we review a grant of summary judgment
independently, applying the same methodology as did the circuit
court. Novell v. Migliaccio, 2008 WI 44, ¶23, 309 Wis. 2d 132,
10
 No. 2017AP684-AC

749 N.W.2d 544. Summary judgment is appropriate where there is
no genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law. Id.

¶23 In our review, we are required to interpret Wis. Stat.
§ 66.0217. Statutory interpretation is a question of law we
review without deference to the determinations of the circuit
court and court of appeals. Horizon Bank, Nat'l Ass'n v.
Marshalls Point Retreat LLC, 2018 WI 19, ¶28, 380 Wis. 2d 60,
908 N.W.2d 797.
III
¶24 We begin our analysis with the threshold question of
whether the petition for annexation that was filed in this case

is a petition for "direct annexation by unanimous approval"
within the meaning of Wis. Stat. § 66.0217(2). It is a
threshold question because if we determine that the petition was
erroneously denominated as one by unanimous approval, then the
grounds on which the Town can challenge the annexation include
unanimity and are not limited to contiguity only. Thus we would
not need to address the substance of the contiguity issue.
¶25 "Direct annexation by unanimous approval" refers to a
simplified procedure for direct annexation when all the electors
and owners in the proposed territory to be annexed are unanimous
in their approval of the annexation. Town of Lyons v. City of
Lake Geneva, 56 Wis. 2d 331, 338, 202 N.W.2d 228 (1972). Such a
procedure is a creature of Wis. Stat. § 66.0217(2). In relevant
part, § 66.0217(2) provides:

11
 No. 2017AP684-AC

[I]f a petition for direct annexation signed by all of
the electors residing in the territory and the owners
of all of the real property in the territory is filed
with the city or village clerk, and with the town
clerk of the town or towns in which the territory is
located, together with a scale map and a legal
description of the property to be annexed, an
annexation ordinance for the annexation of the
territory may be enacted by a two-thirds vote of the
elected members of the governing body of the city or
village without compliance with the notice
requirements of sub. (4). . . .
¶26 The Town contends that the annexation petition in this
case is not a petition for direct annexation by unanimous
approval. Despite being styled as such, the Town asserts that
it is missing the signature of Fox Valley and Western, LTD,
which owns land included in the annexation area. Responding to
this argument, the City invokes Wis. Stat. § 66.0217(11)(c) to
argue that the Town is limited to challenging the contiguity of
the territory to be annexed. See § 66.0217(6)(d). In the

City's view, § 66.0217(11)(c) precludes the Town from raising

its challenge to the unanimity of the petition.
¶27 To resolve this dispute, we must interpret Wis. Stat.
§ 66.0217. Statutory interpretation begins with the language of
the statute. State ex rel. Kalal v. Circuit Court for Dane
Cty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110. If the
meaning of the statute is plain, we need not further the
inquiry. Id. Statutory language is given its common, ordinary,
and accepted meaning, except that technical or specially-defined
words or phrases are given their technical or special
definitional meaning. Id.

12
 No. 2017AP684-AC

¶28 We begin with the language of Wis. Stat.
§ 66.0217(11)(c): "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."13 On its face, the restriction on
"actions" supplied by this statute applies to a challenge to "an
annexation under sub. (2)" only.14
¶29 Subsection (2) is entitled "Direct annexation by
unanimous approval." Wis. Stat. § 66.0217(2). A petition under
sub. (2) must be "signed by all of the electors residing in the

territory and the owners of all of the real property in the
territory . . . ." Id. (emphasis added). This is consistent

with the common, ordinary, and accepted meaning of "unanimous":
"having the agreement and consent of all." Merriam-Webster's
Collegiate Dictionary 1360 (11th ed. 2014) (emphasis added); see

13 See supra, ¶13 n.8.
14In addition to the limitation on challenges contained in
Wis. Stat. § 66.0217(11)(c), there are two additional
characteristics that distinguish a petition for direct
annexation by unanimous approval from its counterpart annexation
method, direct annexation by one-half approval.

First, with regard to signature requirements, a petition
for direct annexation by unanimous approval must be "signed by
all of the electors residing in the territory and the owners of
all of the real property" in the proposed annexation territory.
Wis. Stat. § 66.0217(2). In contrast, a direct annexation by
one-half approval is less stringent. § 66.0217(3)(a)1-2.
Second, petitions for direct annexation by one-half approval
have certain notice requirements that do not apply to petitions
for direct annexation by unanimous approval. See § 66.0217(4).

13
 No. 2017AP684-AC

also Black's Law Dictionary 1756 (10th ed. 2014) (defining

"unanimous" as "[a]rrived at by the consent of all") (emphasis
added).
¶30 At oral argument before this court, the City conceded
that if a petition for annexation does not have unanimous
approval, then the petition does not fall under sub. (2), which
applies to unanimous petitions only. Giving effect to the plain
language of Wis. Stat. § 66.0217(2), we accept this concession.
¶31 Further, the City conceded at oral argument that the
petition was not unanimous.15 An examination of the annexation
petition filed here confirms the propriety of the City's
concession: the petition is missing the signature of Fox Valley

and Western, LTD. A petition that lacks the signature of an
owner of real property in the territory proposed for annexation
is not "unanimous" for purposes of Wis. Stat. § 66.0217(2).16

15
Counsel for the City responded, "Correct," when asked by
the court, "So, the petition is not unanimous?"
16
We observe also, as the City acknowledged at oral
argument before this court, that if this petition had been filed
as a petition for direct annexation by one-half approval
pursuant to Wis. Stat. § 66.0217(3)(a) instead of by unanimous
approval, it would similarly be invalid. A direct annexation by
one-half approval must meet the notice requirements of
§ 66.0217(4). The City conceded at oral argument that "the
petitioners did not comply with the notice requirements."

14
 No. 2017AP684-AC

¶32 Such a defect in the petition is not de minimis, a
possibility that the City raises in its brief.17 The language of
Wis. Stat. § 66.0217(2) leaves no room for such a conclusion.
"Unanimous" means "unanimous."
¶33 Additionally, allowing a petition for annexation to
proceed as a petition for direct annexation by unanimous
approval despite a facial deficiency in the unanimity of the
petition would potentially encourage the mislabeling of
annexation petitions. This would prevent towns from raising
challenges that would otherwise be available under the law if
the petition had been labeled accurately. We are not bound by
the labels placed on documents and instead must look to their

substance. See In re Incorporation of Town of Fitchburg, 98

Wis. 2d 635, 647-48, 299 Wis. 2d 199 (1980).
¶34 The City also contends that even though Wis. Stat.
§ 66.0217(11)(c) bars towns from making certain annexation
challenges, other parties remain able to challenge the
annexation. We find this argument unpersuasive because the
notice requirements for petitions for direct annexation by
unanimous approval are different from those pertaining to

17The City contends that the "procedural deficiency" in the
petition was de minimis. It asserts that "[n]early all state
and local regulation of railroads is preempted by the Interstate
Commerce Commission Termination Act of 1995, 49 U.S.C. § 10101
et seq. The railroad company, which owns some of the land on
which its tracks lie and has a right-of-way over the remaining
land, thus has no reason to care whether the section of track at
issue is in the Town of Lincoln or the City of Whitehall."

15
 No. 2017AP684-AC

petitions for annexation by one half-approval or by referendum.
Compare § 66.0217(2) with § 66.0217(4).

¶35 Wisconsin Stat. § 66.0217(2) explicitly states that
"an annexation ordinance for the annexation of the territory may
be enacted by a two-thirds vote of the elected members of the
governing body of the city or village without compliance with
the notice requirements of sub. (4)." In contrast, the specific
notice requirement presented in sub. (4) applies to other types
of annexation petitions. Namely, § 66.0217(4) requires the
publication of a notice of intention to circulate a petition for
direct annexation by one-half approval in the territory proposed
for annexation. Additionally, the notice must be served upon

the clerk of each municipality affected, the clerk of each
school district affected and each landowner affected.
¶36 Because the petitioners in this case denominated the
petition as one by unanimous approval, they did not follow the
notice provisions of Wis. Stat. § 66.0217(4). Practically
speaking, if electors or property owners in the annexation area
receive no personal notice of a proposed annexation, how are
they to file a timely challenge?
¶37 We therefore conclude that the annexation petition in
this case is not a petition for direct annexation by unanimous
approval. As the limitations on annexation challenges set forth
in Wis. Stat. § 66.0217(11)(c) pertain to petitions for direct

annexation by unanimous approval only, such limitations do not
apply here.

16
 No. 2017AP684-AC

¶38 Because we determine that the petition was
misclassified as a petition for direct annexation by unanimous
approval and reverse the decision of the court of appeals on
that basis, we need not address the substance of the Town's
contiguity challenge.
¶39 Accordingly, we reverse the decision of the court of
appeals and remand to the circuit court.
By the Court.—The decision of the court of appeals is
reversed and the cause remanded to the circuit court.

17
 No. 2017AP684-AC

1