Statutory Contiguousness Claim

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WI Court of Appeals – District III

Case Name: Town of Lincoln v. City of Whitehall

Case No.: 2017AP684-AC

Officials: Stark, P.J, Hruz and Seidl, JJ.

Focus: Statutory Contiguousness Claim

The Town of Lincoln appeals a grant of summary judgment in favor of the City of Whitehall concerning a grassroots annexation procedure known as “direct annexation by unanimous approval.” The Town sought a declaratory judgment that annexation ordinances passed by the City detaching territory from the Town were invalid. The circuit court concluded the Town, under the facts of this case, was statutorily barred from challenging the ordinances on any basis except the requirement that the annexed territory be contiguous to the annexing municipality. The court subsequently granted the City’s summary judgment motion on the Town’s contiguousness claim.

Under the undisputed facts here, we first conclude the circuit court properly dismissed all of the Town’s claims other than the statutory contiguousness claim. Based upon the interplay between various provisions of the direct annexation statute—namely, WIS. STAT. § 66.0217(6)(d)1., (6)(d)2., and (11)(c)—we conclude a town is limited in a court action to challenging contiguity and county parallelism, the latter of which is not at issue here. Given this statutory bar, the court properly concluded that only the Town’s challenge to contiguity remained viable.

We also conclude the circuit court properly granted summary judgment on the Town’s contiguousness claim. Contiguity between the annexed territory and the annexing municipality is satisfied, at a minimum, in instances where there is a significant degree of physical contact between the two. That is plainly the case here, where the annexed territory shares an approximately three-quarter-mile border with the City.

We further conclude summary judgment in the City’s favor was appropriate to the extent statutory contiguity also requires that the annexed territory not be arbitrarily selected for inclusion. Because the petition at issue was owner initiated, the relevant case law instructs that a town can challenge arbitrariness only if the annexation is of an exceptional shape, or if the annexing municipality is itself either a petitioner or the “real controlling influence” behind the annexation. We conclude, as a matter of law, that the annexed territory here is of an “unexceptional shape” that does not warrant further scrutiny of the territory’s boundaries. Further, based on the record evidence before us, no factfinder could reasonably conclude the City was either a petitioner or the “real controlling influence” directing the annexation proceedings. Consequently, we affirm.

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.