01-2520 Town of Neenah Sanitary District No. 2 v. City of Neenah

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“Section 402 [of the 1982 contract]has no application under the facts of this case. The City did not propose to deliver or discharge wastewater into the system contrary to any rule, regulation or other action by the commission. To the contrary, by withholding its consent, the City has barred the introduction of wastewater into the system. Moreover, the commission’s approval of the District’s request to connect to the Muttart Road Extension was given subject to the City’s approval of the proposal. The City’s refusal to consent to the project does not pit it against any action by the commission. …

“Again, there is nothing in the terms of the agreement that requires the City to provide the consent sought by the District. The agreement unambiguously provides that such consent is required before the District may provide service to an additional territory through the City’s sewer system. Here, the District requested consent and the City refused to grant it. We decline to rewrite the parties’ agreement to provide something that the District failed to include.”

The contract language in the 1988 contract is similarly unambiguous.

“We further conclude that there is no genuine issue of material fact as to whether the City’s action violated Wis. Stat. sec. 133.03. Town of Hallie [v. City of Chippewa Falls, 105 Wis. 2d 533 (1982)]authorizes a municipality to deny the extension of sewer service without running afoul of the antitrust law.

We therefore affirm the judgment of the circuit court.”

Recommended for publication in the official reports.

Dist II, Winnebago County, Hawley, J., Nettesheim, P.J.

Attorneys:

For Appellant: John A. St. Peter, Fond du Lac

For Respondent: John E. Thiel, Appleton