High court to hear dispute over city’s annexation of land for sand mine

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The Wisconsin Supreme Court will be kicking off 2019 with a lineup of oral arguments that includes a dispute between a city and town over whether the land for a sand mine was properly annexed.

In 2015, the city of Whitehall passed ordinances to annex 1,251 acres of land from the town of Lincoln.

The annexation ordinances were passed using “direct annexation by unanimous approval,” meaning all the residents and owners of real property in the area to be annexed petitioned the city for the annexation. It is one of two ways that land can be directly annexed in Wisconsin.

Whitehall Sand and Rail planned to use the land for a sand mine and wanted the land to be within the city limits. The company made offers to purchase the property contingent on the annexation of the land.

The same year the city passed the ordinances, Lincoln asked the Wisconsin Department of Administration to review the annexation. The department found that the town could challenge the annexation on grounds that the area the city had annexed did not fulfill a “contiguity” requirement, pointing to the 1,251-acre area’s irregular shape.

Lincoln then filed suit in Trempealeau County Circuit Court, asking the court to declare the annexation invalid and challenging it. Lincoln contended that the area had not been properly annexed by unanimous consent because the petition was missing a property owner’s signature, that the area failed to fulfill the contiguity requirement and that the annexation was unreasonable.

Whitehall responded with a motion to dismiss all of Lincoln’s claims except for the contiguity claim. Judge John Damon granted the motion in 2016.

Whitehall later filed a motion to dismiss the contiguity claim. Judge Charles Feltes granted that motion in 2017. Lincoln appealed to the state appeals court.

The state Court of Appeals in April sided with Whitehall and affirmed Feltes’ decision. Lincoln filed a petition for review with the Wisconsin Supreme Court in May, and the justices granted it in September.

Before the high court, Lincoln is continuing to advance the same arguments it made in the lower courts. Whitehall, in addition to again arguing that state statute limits Lincoln’s challenge to the contiguity requirement, is contending that contiguity merely requires significant contact with the annexing city and that there is no unique legal definition attached to the term.

The Wisconsin Towns Association, through an amicus brief, is urging the high court to side with the town of Lincoln.

The association alleges that limiting when towns can challenge annexation would have a negative impact on towns and their residents. It noted that annexing certain irregularly-shaped areas makes it difficult for municipalities to efficiently deliver public services, such as emergency medical services and snow plowing.

On the other side, the Wisconsin Realtor’s Association, the League of Wisconsin Municipalities, the Wisconsin Builders Association and the Wisconsin Chapter of NAOIP, a commercial real estate organization, have filed an amicus brief urging the justices to side with the city of Whitehall.

The four groups are contending, among other things, that broadening the towns’ ability to challenge certain annexations would curtail private property rights and discourage economic development, noting that annexed land is more easily developed because sewer and water utilities are more readily available in cities and villages.

Oral argument in the case is scheduled for the second morning slot on Jan. 16 in the Supreme Court Hearing Room in the state Capitol, according to online court records. Follow @erikastrebel