859 N.W.2d 115
Wis. Ct. App.2014Background
- James J. Walt filed (Dec. 5, 2011) a petition under Wis. Stat. § 66.0203 to incorporate 4.075 sq. miles drawn from portions of the Town of Waukesha and an adjacent town to form a village; hearing set for Jan. 12, 2012.
- Town of Waukesha moved to intervene and oppose; the circuit court granted intervention "contingent upon" filing, within 14 days of the Jan. 12 hearing, "a resolution or other documents authorizing [the Town] to participate."
- The Town filed a Jan. 17 resolution (filed Jan. 19) reaffirming a Dec. 27 board action and authorizing intervention; Walt moved to dismiss the Town for lack of prior authorization.
- The circuit court dismissed the Town, reasoning the Town had not produced written authorization that pre‑existed the Jan. 12 hearing as it read the Jan. 30 order.
- The circuit court denied the Town’s motion to dismiss Walt’s incorporation petition; the matter was stayed pending action by the incorporation review board.
Issues
| Issue | Plaintiff's Argument (Walt) | Defendant's Argument (Town) | Held |
|---|---|---|---|
| Whether the Town was properly dismissed for failing to have prior written board authorization to intervene | Town lacked authorization before the Jan. 12 hearing so dismissal proper | Town complied with the court's condition by timely filing the Jan. 17 resolution that evidenced prior (Dec. 27) board authorization | Reversed: court order only required filing a document within 14 days showing board authorization; Town complied |
| Whether the Town preserved challenges that petition failed statutory signature and factual-showing requirements | These defects exist and require dismissal of petition | Town did not raise these arguments below | Forfeited: court will not consider them on appeal |
| Whether territory from two towns may be combined to meet the 4 sq. mile minimum absent a boundary agreement | Combining requires a boundary agreement; petition fails | Statute contains no boundary‑agreement prerequisite; total area exceeds 4 sq. miles | Affirmed in part: no statutory requirement that two towns enter a boundary agreement to satisfy minimum area |
| Whether 2013 Act 38 requires both towns to approve incorporation (and whether retroactive application is unconstitutional as applied to Walt) | Act 38 bars incorporation of territory from only two towns without resolutions from each town; retroactive application would violate due process | Act 38 applies to this petition but the approval question is premature because the incorporation review board has not yet granted the petition | Not ripe: Act 38 applies to the case, but court may only decide town‑approval and related constitutional claims after the review board grants the petition; constitutional challenge premature |
Key Cases Cited
- Town of Nasewaupee v. City of Sturgeon Bay, 77 Wis. 2d 110 (1977) (discusses municipal authorization to participate in litigation)
- Jacobson v. Jacobson, 177 Wis. 2d 539 (Ct. App. 1993) (court orders interpreted like other written instruments)
- Fessler v. Fessler, 147 Wis. 2d 1 (Ct. App. 1988) (interpretation of unambiguous judgments reviewed de novo)
- State ex rel. Kalal v. Circuit Court for Dane Cnty., 271 Wis. 2d 633 (2004) (statutory interpretation principles)
- Whitten v. City of Milwaukee, 267 Wis. 481 (1954) (incorporation procedures governed by statute)