Annexation is authorized by the Wisconsin legislature. Statutes set forth the process and requirements. Annexation is also affected by caselaw. Numerous Supreme Court and Court of Appeals decisions over the years have created a body of annexation caselaw that is available to interpret the statutes.
2011 Wisconsin Act 128
- repeals the prohibition against towns contesting unanimous consent annexations, and also permits towns to use the mediation process in s. 66.0307(4m) wis. Stats. to trigger Department review of annexations, including annexations in rural counties.
2009 Wisconsin Act 366
- clarifies that unanimous consent petitions must be contiguous to the annexing jurisdiction.
2003 Wisconsin Act 317
- limits annexations into new counties, prohibits towns from contesting unanimous consent annexations, and requires cities and villages to share property tax revenue with towns.
Annexation Case Law
Town of Lincoln v. City of Whitehall (2019).pdf - the Supreme Court reversed the Court of Appeals, finding that the annexation was not truly a unanimous consent annexation because it lacked the signature of a property owning railroad within the annexation territory
. As a result, the Town was improperly limited in the scope of its arguments at the Circuit Court and Appelate levels. Not needing to decide on the contiguity issue, the Court remanded the case back to the Circuit Court.
Town of Lincoln v. City of Whitehall (2018) –
the Court of Appeals upheld a City of Whitehall annexation ordinance. The Court concluded that Towns challenging unanimous consent annexations under s. 66.0217(2) Wis. Stats., who receive a finding from the Department showing lack of contiguity or annexation into a new county, are limited in their subsequent court actions to only challenging those two issues. The Court found that while the annexation's shape was admittedly irregular, its connection to the City was approximately three-quarters of a mile, its narrowest point was still over 1000 feet, and the entire annexation territory was to be utilized in the proposed mining operation. *Note
: this case was reversed by the Wisconsin Supreme Court in Town of Lincoln v. City of Lincoln
City of Wausau v. Village of Maine (2017)
– Marathon County Circuit Court invalidated City annexations of Village territory stating that state statutes only permit annexation of unincorporated town territory. While Maine was formerly a town, it had incorporated as a village by the time the City adopted its annexation ordinances.
Darboy Sanitary District and Town of Harrison v. City of Kaukauna (2013)
- the Town claimed that the City's annexation was invalid because it caused the City to cross into a new county, but the City had not gotten approval resolutions from the Town and Calumet County expressly consenting to the annexation as required by s. 66.0217(14)(b)1, Wis. Stats. However, the Court declined to address this issue, holding that neither the Town nor Darboy Sanitary District had standing to challenge the annexation. The Court referred to the holding in Town of Merrimac v. City of Merrimac, which similarly barred a town challenge due to lack of standing.
Town of Buchanan v. Village of Kimberly (2011)
- the Court of Appeals upheld the circuit court's finding that an agreement between the Town and Village was not actually a legitimate boundary agreement that complied with s. 66.0301 Wis. Stats. As a result, the Village was not able to claim the boundary agreement exception to the statutory requirement that it pay to the Town 5 years' worth of lost property tax revenue lost due to an annexation of Town territory to the Village. UNPUBLISHED
Town of Merrimac v. Village of Merrimac (2008)
- the Court of Appeals upheld the prohibition of towns from contesting unanimous consent annexations under section 66.0217(11)(c) Wis. Stat. In so ruling, the court refused to address the merits of the Town's case -- whether the annexation was void due to non-contiguity of the parcel with the Village and failure of the Village to comply with the property tax payment in s. 66.0217(14) Wis. Stats.
Ostrander v. Village of Genoa City (2006)
- the Town of Randall and area residents challenged an annexation to the Village of Genoa City, the Town claiming the annexation would frustrate its land use planning efforts and the residents alleging that the annexation would raise their taxes. The Court of Appeals affirmed the circuit court, which had dismissed the challenge for lack of standing. The court found that the residents did not allege an injury peculiar to themselves, and that the Town did not have standing because of the prohibition against town challenges in s. 66.0207(11)(c) Wis. Stats. UNPUBLISHED
Town of Baraboo v. Village of West Baraboo (2005)
- the Court of Appeals upheld the Village's annexation over the Town's objections that 1) the Village improperly adopted 11 separate petitions as a single ordinance, 2) failed to re-submit the petition to the Department when it was modified slightly, and 3) violated the "rule of reason". The Court disagreed.
Town of Brockway v. City of Black River Falls (2005)
- the Town of Brockway challenged an annexation to the City of Black River Falls, claiming that the City violated the third prong of the rule of reason test - abuse of discretion - by drafting a pre-annexation agreement with the petitioner to amend the zoning, create a TIF district, develop infrastructure to the property, enact special assessments, support issuance of permits from other governmental units for the project, and finally, to annex the property. The Town argued that this agreement was an abuse of discretion because it contracted away the city's governmental powers and injected economic considerations into the annexation process. The Court of Appeals affirmed the circuit court, saying that the pre-annexation agreement was only a draft and therefore not binding on the city until after the city adopted it, which occurred after the city had adopted the annexation ordinance. The court also found that the incentive of TIF is not an illegal incentive for annexation but rather an incentive that is one of the benefits of annexing to an incorporated municipality.
Town of Verona v. City of Verona (2005)
- the circuit court invalidated the City's ordinance because it had failed to agree prior to adopting its annexation ordinance to make property tax revenue sharing payments to the Town pursuant to its obligation in s. 66.0217(14)1. Wis. Stats.
Town of Windsor et al v. Village of DeForest (2003)
- the Village of DeForest passed and ordinance annexing 2100 acres in the Town, but then two months later passed a second 'correction' ordinance which repealed the first ordinance and re-annexed the original 2100 acres plus an additional 100 acres. The Court of Appeals voided the second ordinance because strict conformance with the annexation statute is required and there is no provision in the statute permitting correction ordinances.
In Re Annexation of Smith Property (2001)
- the Town challenged the City's annexation of parcels that were separated from the City by the Black River, arguing that the river broke contiguity. The Circuit Court agreed and invalided the annexations. The Court of Appeals reversed, finding that the parcels actually touched territory in the City underneath the riverbed. The court reasoned that because owners of riparian property hold title out to the geographical center of a river, the parcels were actually contiguous to the City. The court distinguished Town of Delavan v. City of Delavan, 176 Wis.2d 516, 500 N.W.2d 268 (1993), where the Supreme Court had found that a lake broke contiguity, because Delevan involved a lake and not a river. Unlike a river, lake beds are owned by the State, so owners of land abutting lakes own only up to the ordinary high-water mark. Therefore, a lake bed breaks contiguity.
Town of Windsor v. Village of DeForest and ABS Global (2001)
- the Town appeals the circuit court's dismissal of its challenge to the Village's annexation of 234 acres of ABS' total 723 acres. Windsor and DeForest developed a 'points of agreement' memorandum in which DeForest would annex 489 ABS acres with the other 234 acres to remain in Windsor. DeForest subsequently annexed this 234 acres and Windsor brought suit, alleging both breach of contract and violation of the 'need' requirement of the rule of reason. The Court of Appeals affirmed the circuit court, finding that the memorandum was not a binding boundary agreement and that no rule of reason violations occurred. UNPUBLISHED.
Town of Vernon v. Village of Big Bend (2001)
– the Court of Appeals affirmed Big Bend’s annexation over the Town’s objections. Vernon argued that the legal description for the annexation notice and petition differed from the annexation ordinance that Big Bend ultimately adopted. Specifically, the annexation ordinance contained 11.5 acres less than what the petition proposed. Vernon argued that this change meant that property owners did not receive proper notice of what was being proposed for annexation. However, the Court found that the modification dealt with roadway, and was only a minor change that did not materially affect the annexation or the notice, particularly given its 700+ acre size. Vernon also argued that the shape of the annexation was irregular and ‘serpentine’, excluding existing subdivisions and parcels before expanding to include commercial properties at a highway interchange. The Court disagreed. Vernon argued that Big Bend did not show a need for such a large 700+ acre annexation. However the Court held that the burden of proof for showing that the 700+ acres was excessive was on the Town, and the Town failed to meet this burden. Finally, Vernon argues that its incorporation petition, filed on the same day as Big Bend’s annexation notice, takes precedence. However, the Court found that this incorporation petition was not filed in good faith, but instead was just a ploy to stave off annexation. UNPUBLISHED
City of Chippewa Falls v. Town of Hallie (1999)
- the Court of Appeals held that the electors and circulators of a petition to hold an annexation referendum must reside in the annexation territory. Residing elsewhere in the Town is insufficient.
Town of Sugar Creek v. City of Elkhorn (1999)
– the Court of Appeals affirmed the Circuit Court’s application of the Rule of Reason, focusing in particular on the Rule’s second and third prongs, whether the City needed the territory, and whether the City illegally enticed Petitioner’s by offering TIF to pay for sewer and water extension.
Town of Wautoma v. City of Wautoma (1997)
- The Court of Appeals invalidated the City's annexation of territory because of a procedural error. Specifically, the annexation petition was not mailed to the Town clerk as required by statute. Instead, it was mailed to the Town board chair. The Court held that strict compliance with the annexation process is required. UNPUBLISHED
Hoepker v. City of Madison (1996)
- owners of territory within the City of Madison's extraterritorial area desired to develop a residential subdivision. However, the City conditioned its approval on, among other things, annexation of the territory to the city. The Hoepkers challenged this condition and were denied relief by the circuit court, however the court of appeals reversed. The supreme court affirmed, holding that a city cannot condition approval of a plat on annexation because municipalities cannot coerce or unfairly induce a property owner into agreeing to annexation. Instead, the annexation process in Chapter 66 if the statutes is intended to be driven by electors and owners.
City of Onalaska v. City of La Crosse (1996)
- Both cities passed competing ordinances to annex overlapping territory in the Town of Medary. Each argued that the others' was invalid. The La Crosse County Circuit Court applied the 'Rule of Reason' test and determined that the annexation to Onalaska met the test. However, the court invalidated the annexation to La Crosse because it's balloon-on-a-string configuration was irregular and arbitrary, contrary to the test's first prong. UNPUBLISHED CIRCUIT COURT CASE
Wagner Mobile v. City of Madison (1995)
- the Supreme Court reversed the Court of Appeals which had invalidated the City's annexation because it created a functional town island that was separated from the rest of the Town by the City and several other jurisdictions. However, the Supreme Court rejected the notion of a 'functional' town island, instead holding that a town island is created only when town territory is completely surrounded by the annexing jurisdiction. This decision overrules Town of Sheboygan v. City of Sheboygan (1992) and Town of Hallie v. City of Eau Claire (1993).
Incorporation of the Town of Pewaukee (1994)
- Supreme Court upheld the Department of Development's (DOD) determination that the Town of Pewaukee failed to meet three of the incorporation criteria. The Court rejected the Town's claim that DOD was arbitrary and capricious in considering previous annexations which made the boundaries irregular because DOD had caused those annexations to occur. The Court disagreed, holding that because DOD's annexation review is advisory, it did not approve or cause those annexations and was therefore appropriate in considering the petition's fragmented and irregular boundaries.
Town of Delevan v. City of Delevan (1993)
- the Supreme Court found that a 400 foot stretch of Lake Delevan broke contiguity between the City and the annexation territory, which was located at the tip of a peninsula. The Court also found that the 'Rule of Prior Precedence' did not prevent the annexation action from proceeding because the incorporation proceeding had been almost entirely completed. Finally, the Court found that the second prong of the 'Rule of Reason' test - need for the territory - was met by the City.
City of La Crosse v. City of Onalaska et al (1993)
- Onalaska annexed approximately 295 acres which the Court of Appeals found to be an illegal balloon-on-a-string type configuration because it was contiguous to the City only via a strip of road right-of-way 250 feet wide and three-quarters of a mile long. The Court rejected Onalaska's contention that the fact that it could serve the territory mitigated the configuration. UNPUBLISHED.
Town of Hallie v. City of Eau Claire (1993)
– the Court of Appeals re-affirmed the holding in Town of Sheboygan v. City of Sheboygan interpreting s. 66.0221 Wis. Stats. as prohibiting functional town islands. The Court upheld the circuit court’s finding that an annexation leaving behind town territory surrounded on three sides by the City of Eau Claire and on the fourth side by US Highway 53 (with no access) constituted a functional town island.
*Note: This case was overruled in 1995 by Wagner Mobile v. City of Madison.
Town of Sheboygan v. City of Sheboygan (1992)
- the Supreme Court invalidated the City's annexation, determining that it would create a town island, contrary to state statute. The annexation parcel was surrounded on three sides by the City and by Lake Michigan on the fourth side. The City argued that this constituted a functional town island but not a legal town island because the City did not completely surround it. The Court disagreed.
*Note: This case was overruled in 1995 by Wagner Mobile v. City of Madison.
Town of Menasha v. City of Menasha (1992)
– applying the Rule of Reason test, the Supreme Court upheld the trial court’s finding that the City’s ordinance violated the Rule’s first and second prongs. Specifically, the Court found the annexation boundaries to be arbitrarily-drawn and the City’s role in the process to be unduly controlling and influential. Regarding need, the Court found that the City failed to show a need for the territory.
City of Waukesha v. Selbashion (1986)
– Utilizing the Oak Creek Law, the Town of Pewaukee incorporated as a 4th Class City. Believing that it met the statutory criteria of sufficient population and assessed value, and that it was ‘adjacent’ to a 1st Class city (Milwaukee), the Town requested and received a certificate of incorporation from the Secretary of State’s Office. However, the City of Waukesha and Village of Pewaukee filed suit arguing that Pewaukee had not in fact met the statutory criteria. The circuit court agreed with them and declared Pewaukee's incorporation invalid. On appeal, the Town of Pewaukee argued first that Waukesha and the Village of Pewaukee do not have standing to challenge the incorporation. Second, Pewaukee argued that it actually is ‘adjacent’ to the City of Milwaukee because adjacent means near, and despite its being 6 miles west of Milwaukee, Pewaukee is part of the Milwaukee metropolitan area. The Supreme Court disagreed with Pewaukee and affirmed the circuit court. The court found that Waukesha and the Village of Pewaukee do have standing and that adjacent means being contiguous to the City of Milwaukee.
Hallie et al v Eau Claire, 471 U.S. 34 (1985)
– four towns surrounding the City of Eau Claire alleged the City of violating the Sherman Anti-Trust Act by acquiring a monopoly over municipal sewer services by refusing to provide the towns service. Only individual landowners who petition for annexation into the City are supplied with municipal sewer services. The US Supreme Court found that Wisconsin statutes authorize Cities to adopt and enforce this annexation-for-service policy, and therefore the City’s allegedly anticompetitive conduct falls within the ‘state action’ exemption to the Sherman Act.
Town of Medary v. City of La Crosse, 88 Wis.2d 101 (1979)
- Town of Medary argued that the City’s annexation was invalid because of 1) improper signatures; 2) the City did not consider the Department’s public interest review, and 3) the annexation violates the Rule of Reason test. Regarding the signatures, the Town argued that signing a petition is a political right and cannot be delegated to another person, such as via a power-of-attorney. Distinguishing this case from De Bauche v. Green Bay and Town of Fond du Lac v. City of Fond du Lac, the Supreme Court held that the political nature of annexations applies to electors, but not to property owners, who may reside far from the area and who may properly delegate their signature authority to a 3rd person. The Town also argued that 3 electors had been coerced to sign the petition by their landlord. The Court disagreed. Regarding the Department’s public interest review letter, the Court found that the City council members did have the letter when they voted to adopt the annexation ordinance. Finally, the Town’s Rule of Reason arguments were that the annexation created irregular boundaries and that the City did not need the additional territory. The Court found that the boundaries between the Town, La Crosse, and Onalaska were already irregular, and that the City did show a need for the territory.
City of Beloit v. Kallas et al (1977)
- The Department of Natural Resources ordered the City of Beloit to connect the Town of Beloit to its sewage transport and treatment system under s. 144 Wis. Stats. in order to improve local water quality. The City then petitioned the circuit court for an order authorizing holding of an annexation referendum seeking to annex the town to the City. The referendum failed, the judge denied the City's annexation petition, and the Town was not connected to the City's public sewerage system. Several Town residents and the State of Wisconsin brought suit alleging that s. 144 Wis. Stats. is unconstitutional because it allows local concerns to supersede state concerns. The Supreme Court disagreed.
Town of Lafayette v. City of Chippewa Falls, 70 Wis.2d 610 (1975)
– the Supreme Court affirmed the trial court in upholding the City’s annexation ordinance, holding that the second prong of the Rule of Reason test – need – was satisfied, and also that a majority of electors had in fact signed the petition. The Town claimed that because 1,400 residents of a group home did not sign, the petition was deficient. However, the Court found the group home’s residents to be mentally deficient and incapable of understanding the annexation issue.
Town of Blooming Grove v. City of Madison (1975)
– the Supreme Court invalidated the City’s annexation where the City had adopted seven separate ordinances annexing seven separate town island areas. The Court strictly interpreted the statute as requiring a single ordinance.
International Paper v. City of Fond du Lac (1971)
- the Supreme Court reversed the Circuit Court which had invalidated the annexation because the City, as sole signer of a one-half approval annexation, did not own one one-half or more of the territory, at least not when public streets and alleys were taken into account. The Supreme Court held that territory constituting public streets and alleys is not be taken into account in determining the sufficiency of the petition, no matter how owned or by whom, whether in fee simple, or easement. The Supreme Court withdrew language in Town of Menasha v. City of Menasha, 42 Wis.2d 719 which had held that highway land was to be taken into account.
In re Petition for Fond du Lac Metropolitan Sewerage District (1969)
- City refused to extend sanitary sewer service to town areas because the Department of Natural Resources had not ordered it and because the town areas had not requested annexation. The trial court ordered connection to the City's sanitary sewer system. The Court of Appeals reversed.
Village of Elmwood Park v. City of Racine (1966)
- the trial court dismissed the Village's annexation of the entire Town of Mount Pleasant because it violated the Rule of Reason and because it was actually a consolidation thinly disguised as an annexation. The Supreme Court disagreed about the consolidation holding but did affirm the trial court, finding that the annexation was arbitrary since the Village had no present need for 35 square miles of territory.
Town of Mount Pleasant v. City of Racine (1965)
– the City annexed the same territory considered in Mt. Pleasant v. Racine (1964), however, this time landowners added substantially to the territory so that compactness and contiguity were no longer an issue. Instead, the Supreme Court reversed the trial court which had invalidated the City’s annexation ordinance because it violated the Rule of Reason’s third prong - arbitrary and capricious – for excluding 20 electors. The Supreme Court found no arbitrary or capricious intent on the part of the City. The Court also found that the Department’s public interest review may be considered as evidence.
Town of Mount Pleasant v. City of Racine (1964)
- the Town appealed the City's annexation of 145 acres of territory which was only contiguous to the City via a strip of land 1,704 feet in length, varying in width from 152 to 305 feet. The Department of Development found the annexation 'not against the public interest', and the trial court upheld the City's annexation ordinance. However, the Supreme Court reversed, finding that the connecting strip of land violates the arbitrary and capricious prong of the Rule of Reason test because it created a 'shoestring' and 'crazy-quilt' city/town boundary that is difficult to administer.
Village of Brown Deer et al v. City of Milwaukee et al (1956)
- issue of which takes priority: annexations by the Village of Brown Deer in the Town of Granville, an annexation by the City of Milwaukee for the same territory, or subsequent consolidation of the City of Milwaukee and Town of Granville. The Supreme Court held that the Village's annexations took priority over the consolidations because of the rule of prior precedence. However, the consolidation beyond the annexation territory was found to be valid. The Court remanded the case to the circuit court to resolve the competing City and Village annexations.
In re Village of Brown Deer (1954)
- in determining whether an annexation petition filed first by the City of Milwaukee for territory in the Town of Granville took precedence over an incorporation filed second for the same territory, the Supreme Court reversed the Circuit Court and found that although the annexation had been filed first, the City was not reasonable in expediting the annexation. Therefore, the incorporation action should take precedence. This issue was codified by 2003 Wisconsin Act 171.
Milwaukee v. Sewerage Comm., 268 Wis. 342 (1954)
– the Supreme Court upheld the City of Milwaukee’s consolidation with the Town of Lake over the following objections by the sewerage commission: 1) the consolidation statute is an unconstitutional delegation of legislative power to towns; 2) the consolidation statute is void for uncertainty in that it specifies no procedure for holding the required referendum; 3) Were the referendum questions correctly stated; 4) Pending annexations by the City of Milwaukee and Village of St. Francis preclude a consolidation of the same area, and 5) The pending annexation by the City of St. Francis broke the contiguity of the Town and City for purposes of consolidation. The Court found the consolidation statute to be constitutional, the referendum process properly followed, St. Francis’ annexation to be invalid, and Milwaukee’s annexations of no legal consequence.
Zweifel v. Milwaukee (1925)
- the Town argued that in cases where the annexation territory includes multiple jurisdictions, a majority of electors from each jurisdiction must sign the petition. The Supreme Court disagreed, holding that the statute does not define elector so narrowly and that a majority of electors from the total annexation territory is sufficient. The Town also argued that the City may not repeal a prior defective ordinance and adopt a corrective ordinance. The Supreme Court held that repeal was unnecessary because the prior ordinance was clearly invalid.
Annexation Law Review Articles