Appeals court affirms lower court decision in litigation between the city and town of Waukesha

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In consolidated cases, the City of Waukesha appeals from orders dismissing its actions against the Town of Waukesha.  The City challenges the Town’s incorporation as a village on grounds that the Town failed to meet certain statutory conditions. The District II Court of Appeals affirmed the lower court’s decision, according to court documents obtained by the Wisconsin Law Journal.

According to court documents, The Town of Waukesha was interested in incorporating as a village through WIS. STAT. § 66.02162. However, as of mid-2019, it had still not met the last three conditions of § 66.02162(1)(a). That is, the Town had not entered into any cooperative boundary agreements and had not established either a tax incremental district (“TID”) or a sanitary district. Accordingly, it took steps to address those deficiencies.

In the months that followed, the Town entered into two separate cooperative boundary agreements—one with the Town of Vernon and another with the Town of Mukwonago—that were approved by the Department of Administration (DOA). It also established a TID and a sanitary district. These actions were completed by March 2020. The Town Board subsequently adopted a resolution asserting that the conditions of WIS. STAT. § 66.02162 had been met and providing for an incorporation referendum. The residents of the Town voted to incorporate. Eventually, on May 12, 2020, the DOA issued a certificate of incorporation to the Town.

The City filed actions against the Town, et al., prior to, and shortly after, the DOA’s issuance of the certificate. The actions were joined for litigation. Collectively, they contested the lawfulness of the Town’s cooperative boundary agreements, TID, and sanitary district and sought to invalidate the Town’s incorporation under WIS. STAT. § 66.02162, court documents state.

After a hearing on the matters, the circuit court issued orders dismissing the City’s actions. The court determined that the Town’s cooperative boundary agreements, TID, and sanitary district were lawful and that the Town’s incorporation was proper under WIS. STAT. § 66.02162.

On appeal, the City renews its challenge to the Town’s incorporation under WIS. STAT. § 66.02162. It asserts that the last three conditions of § 66.02162(1)(a) were not met because (1) the Town’s cooperative boundary agreements did not secure necessary comments, join an essential party, or have legal effect; (2) the Town’s TID did not satisfy a requirement for sewer service and was not supported by needed findings; and (3) the Town’s sanitary district did not include a proposal for physical improvements and lacked a legitimate purpose, court documents state.