Municipalities — incorporation

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Wisconsin Court of Appeals

Civil

Municipalities — incorporation

The Town of Waukesha appeals an order denying its motion to dismiss a petition for the incorporation of a village comprised of portions of two towns and an order dismissing the Town from this case. The Town argues: (1) the circuit court erred in dismissing the Town from this case; (2) the incorporation petition fails to meet the minimum signature requirement under Wis. Stat. § 66.0203(2)(a) (2011-12)[1] because fifty signatures were not collected at least ten days and not more than twenty days after publication of the notice of intent to circulate the petition, pursuant to Wis. Stat. § 66.0203(1); (3) the petition fails to set forth facts substantially establishing the required standards for incorporation as required by § 66.0203(2)(c); and (4) the four-square-mile minimum area requirement under Wis. Stat. § 66.0205(5) is not satisfied.

We conclude that whether the circuit court erred in dismissing the Town is moot. A holding in favor of the Town on this issue would have no practical effect on this case because the Town does not prevail on any of its arguments that the circuit court erred in denying the Town’s motion to dismiss the petition. The Town has forfeited judicial review of whether the petition meets the minimum signature requirement and whether the petition sets forth facts substantially establishing the requirements for incorporation because the Town failed to first raise these arguments in the circuit court. On the only remaining topic of whether the minimum area requirement has been met, the Town contends that where an incorporation involves parts of territory from two towns, each town must consent to the incorporation. The Town maintains that it did not give consent to incorporation of a portion of its territory, and therefore, because the minimum area requirement cannot be met without the portion of its territory designated in the petition for incorporation, the circuit court erred in concluding that the incorporation petition in this case met this requirement.

We reject this argument. Because incorporation proceedings are governed by statute and because no statute requires consent from each town before portions of unincorporated territory from two different towns may be incorporated, we conclude that the circuit court did not err in determining that the minimum area requirement was met and in denying the Town’s motion to dismiss the petition. Accordingly, we affirm. Not recommended for publication in the official reports.

2012AP919 In re the Petition to Incorporate as as a Metropolitan Village, Unincorporated Lands Located in the Town Of Brookfield and Town of Waukesha Waukesha County Wisconsin: Walt v. City of Brookfield, et al.

Dist II, Waukesha County, Hassin, J., Higginbotham, J.

Attorneys: For Appellant: Laing, Dean P., Milwaukee; de la Mora, Hector, Elm Grove; Aquavia, Julie A., Waukesha; For Respondent: Hammes, James W., Waukesha