Kaukauna loses appeal over right to provide sewer service

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Failure to file a timely challenge could cost the city of Kaukauna its right to provide sewer service to 89 acres of land in the town of Harrison, according to a Wisconsin Court of Appeals decision issued Tuesday.

Kaukauna lost its appeal of a circuit court ruling that upheld a Feb. 24, 2009, Wisconsin Department of Natural Resources decision allowing Darboy Sanitary District No. 1 to expand its sewer services into land previously controlled by the city.

In anticipation of commercial development in the area, Darboy, a regional public water and sewer service provider in Outagamie County, asked the East Central Wisconsin Regional Plan Commission to lift a hold designation on 37 acres of land in Harrison. The district also sought to service a 52-acre area that had previously been designated for service by Kaukauna.

After the ECWRPC denied the request, Darboy appealed to the DNR, which conditionally approved the proposal.

Rather than initially contest the DNR ruling, Kaukauna waited to see if the Outagamie Circuit Court would review the decision and if the Heart of the Valley Metropolitan Sewerage District, a government entity jointly created to provide wastewater treatment in the Fox Valley, intended to annex the 89 acres into its district.

The gamble didn’t pay off, said Harrison attorney Andrew Rossmeissl, of Herrling Clark Law Firm Ltd., Appleton.

“Kaukauna took a great risk by not appealing the DNR decision at that point in time,” Rossmeissl said. “They lost both times because the land was annexed into the sewerage district and the circuit court upheld the DNR ruling.”

According to the District III Court of Appeals decision, Kaukauna did not seek judicial review within a six-month statutory window because there was never a contested administrative hearing held on the DNR decision.

After the DNR’s February 2009 decision, Kaukauna waited until Jan. 7, 2010, to challenge the ruling. The appellate court remanded the case to Outagamie Circuit Court to dismiss for lack of jurisdiction.

“The court of appeals said it should have never gotten to this point,” Rossmeissl said. “The DNR said ‘Yes, the sewer service area belongs to someone who can actually service the territory.’”

Kaukauna mayor Eugene Rosin declined to comment on the appellate court decision. He said the city is working with Harrison to come to a boundary agreement, based on Heart of the Valley annexation approval.

The Heart of the Valley endorsed the annexation in December 2009. The town of Harrison is now reviewing the request.

If an agreement is reached, Rosin said, the city and Darboy could ultimately share sanitary service in the 89 acres.

“That agreement would be worked out between the city of Kaukauna, Heart of the Valley and Darboy,” Rosin said. “The city may not service the entire area and we could come to a mutual agreement to split some off.”

There is still a question, Rossmeissl said, as to whether Kaukauna can legally stake a claim to any service within the 89 acres.

While boundary negotiations are in progress, he argued the city tried to preserve its ability to provide sanitary services in the territory only after the Heart of the Valley approved annexation of the land.

“After the DNR decision was upheld in circuit court, Kaukauna swooped in and took land from the town illegally,” Rossmeissl said. “Now the town of Harrison and Darboy are looking to the courts to say that Kaukauna can’t benefit from its blatant and knowing illegal annexation.”

In its decision Tuesday, the Court of Appeals stated that waiting for a third party, in this case Heart of the Valley, to determine finality seems to be “an invitation for the type of gamesmanship we have repeatedly condemned.”