by Gary Taylor
Wisconsin Court of Appeals, July 20, 2023
**In Wisconsin, per curiam opinions may not be cited in any Wisconsin court as precedent or authority.
The Village of Kekoskee was incorporated in 1958 from territory that had previously been part of the Town of Williamstown. In 2015, the Village notified the Town that it was having difficulty seating a full Village board, and as a result, was considering dissolution. Representatives from the Town and Village met several times to explore their options and ultimately determined that the appropriate approach was to consolidate the territories of the Town and Village through a Cooperative Plan under Wis. Stat. sec. 66.0307, and in 2018, they did so. The plan was approved by the Wisconsin Department of Administration, but The City of Mayville filed suit challenging the approval because the plan purported to change the city’s boundary line. After the court sided with the City, the Village and Town went back to the drawing board and entered into a new agreement under a different statute, Wis. Stat. sec. 66.0301(6). Under their new agreement, when the Village adopts a “triggering ordinance” the boundary line between the Village and Town would be adjusted and a “major portion” of the Town’s territory would become part of the Village except for a remnant of four parcels totaling 163 acres. These four parcels had no residents and no public improvements, but after the adoption of the “triggering ordinance” the owners would be given 60 days to pursue procedures to annex to the City, to the Village, or to “demonstrate a willingness and ability to remain [an] independent [Town].” If “in the opinion of the Village” the owners have not demonstrated the willingness and ability to remain an independent Town then the Village would be entitled to annex the remnant parcels. The agreement also provided that after adoption of the triggering ordinance:
- all real, personal, and intangible property of the Town, and all its assets and liabilities, become those of the Village.
- the Town’s governing body transitions into the governing body of the Village, which would involve the sequential resignation of Village board members and the appointment of Town officials to fill these vacancies.
When, in 2021, the Village adopted a triggering ordinance, the City challenged the agreement, taking the position that the agreement effectuated a consolidation which was not authorized by Wis. Stat. 66.0301. The trial court sided with the Town and Village, and the City appealed.
The City made several arguments to the Wisconsin Court of Appeals. First, the agreement, rather than “determining” a common boundary line between two municipalities, in fact eliminated all boundary lines and thus effected a consolidation of the Town and Village. This, so argued the City, can only be accomplished through Wis. Stat. sec. 66.0229 or Wis. Stat. sec. 66.0230. The Court declined to address whether Wis. Stat. 66.0301 authorizes a complete consolidation of municipalities. Rather, it concluded that because four remnant parcels remained in the Town, a boundary line between the Town and Village also remains. It noted that Wisconsin courts have recognized that Wis. Stat. 66.0301 allows “major” boundary changes to occur via agreement. “The plain language of [the statute]… does not limit the scope of boundary changes to only ‘modest’ changes.”
Second, the City argued that just because the eventual absorption of the remnant parcels of the Town into the Village is set to occur in stages it does not alter the conclusion that a consolidation will eventually occur. The Court disagreed, noting that consolidation is not, in fact, a foregone conclusion, noting that the owners of the four parcels will still have the option to remain a Town.
Third, the City asserted that the physical transfer of territory is not the only indicator of municipal consolidation; rather, the Town and Village effectively consolidated through the resignation of Village board members and appointment of Town board members to fill their seats. The Court, however, noted that the agreement provided for the change in boundaries allowed under Wis. Stat. 66.0301, and it did not see how the changing of municipal governance in any way impacted this fact.
The Court dismissed other arguments made by the City as either being underdeveloped, or being raised for the first time at the Court of Appeals level (a no-no), and concluded that the City failed to show that the agreement was contrary to Wis. Stat. 66.0301.