Incorporation Law

Statutes

Legislative Activity

• 2003 Wisconsin Act 171 - created the Incorporation Review Board  
  
• 2003 Wisconsin Act 233 - amended comprehensive planning law to remove the requirement that a community’s municipal boundary actions such as incorporations, boundary agreements, and annexations must be consistent with its comprehensive plan.  
  
• 1999 Wisconsin Act 1 - created the Comprehensive Planning and Smartgrowth Law which requires consistency between a community’s municipal boundary actions such as incorporations, boundary agreements, and annexations must be consistent with its comprehensive plan.  
  
• 1959 Interim Urban Problems Committee - developed the statutory standards and review process for incorporation that is used today.
  

Court Cases

• Walt v. City of Brookfield (2013) - in opposition to a petition to incorporate a portion of the Towns of Brookfield and Waukesha, the City and Town of Waukesha argue that: 1) the circuit court inappropriately denied the Town of Waukesha's participation in the case as an intervenor; 2) the territory petitioned for incorporation fails to meet the minimum size requirement because it includes territory from two towns despite one of the town's opposition, and 3) the petition fails tosatisfy newly passed 2013 Wisconsin Act 38 which requires the consent of every town whose territory has been included in an incorporation petition.  As to appellants' first argument, the Court of Appeals granted the Town of Waukesha intervenor status.  The Court denied appellant's second argument and found appellant's third argument to not be ripe.  The Court remanded the case to the circuit court and the Incorporation Review Board for them to complete their functions.
  
• Kuehne et al v. Town of Ledgeview (2009) - the Court of Appeals affirmed the circuit court, finding that incorporation of the Town of Ledgeview is unconstitutional. 
  
• Kuehne et al v. Town of Ledgeview (2008) - the Brown County Circuit Court found s. 66.0203(11) Wis. Stats. to be unconstitutional. This statutory section was enacted as part of the 2007-09 biennial budget and created a special exemption for the Town of Ledgeview to enable the Town to incorporate without complying with the incorporation standards in ss. 66.0201 to 66.0213 Wis. Stats. This decision is being appealed. 
  
• Walag v. Wisconsin Department of Administration, 2001 WI App 217 (2001) - Supreme Court upheld the Department's finding that the proposed village of Powers Lake lacked homogeneity and a reasonably developed community center. 
  
• In re the Incorporation of the Town of Port Washington, 2001 WI App 277 (2001) - Court of Appeals reversed the trial court, finding that although the legal description and scale map in the notice and petition contained errors, it reasonably showed the territory intended for incorporation. The Court distinguished the legal descriptions and scale maps requirements for incorporation from the higher standards required for annexations. 
  
• In re the Incorporation of the Town of Sheboygan, 248 Wis. 2d 904 (2001) - Town appeals the circuit court finding that the Town incorrectly filed its subsequent incorporation petition within the required 1 year minimum waiting period after its previous petition had been dismissed. The Court of Appeals affirmed. 
  
• Town of Waukesha v. City of Waukesha [UNPUBLISHED] (2001) - decision interpreting the case law Rule of Prior Precedent. The Town argued that several annexations filed after an incorporation petition had been filed are invalid because the Rule of Prior Precedent requires that the incorporation proceeding must be resolved prior to the the City adopting annexation ordinances. The Court disagreed, finding that the rule is not intended to paralyze the legal porcess so as to delay annexation actions years into the future. The Court found the incorporation petition had very little chance of succeeding and was filed solely to prevent annexation. 
  
• 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. The court also held that the DOD was correct in not excluding lands because they were zoned agricultural. 
  
• Town of Pleasant Prairie v. Department of Local Affairs & Development (1983) - Petitioner's appealed the Court of Appeal's decision (see case below), arguing that the Department (DLAD) erred in interpreting incorporation standards in a manner that makes incorporation of metropolitan communities impossible. In once again upholding the decision, the Supreme Court agreed that the statutory standards make metropolitan incorporations difficult. However, those standards are due to the legislature rather than DLAD interpretation. Additionally, the Court held that DLAD appropriately considered land use patterns and population distribution as part of its homogeneity and compactness analysis. 
  
• Town of Pleasant Prairie et al v. Department of Local Affairs & Development (1982) - the Court of Appeals upheld the Department's (DLAD) finding that the Town's incorporation petition did not meet the Compact and Homogenous, and Territory Beyond the Core standards, as well as the Services and Metro Impact standards. The Town argued that the Department should not have considered the fragmented population, the lack of internal orientation by residents in their shopping and social customs, the large amount of agricultural land included. The Court found these all to be appropriate considerations. The Town also argued that DLAD misapplied the term 'substantial development'. However, the Court found that DLAD's variable definition allows for meaningful examination of each unique petition. 
  
• Pleasant Prairie v. Johnson (1967) - the Supreme Court upholds the trial court's finding that the Department of Resource Development properly denied Pleasant Prairie's proposed incorporation. The Court found the Department's written findings to be supported by sufficient facts and evidence. 
  
• In re Village of Elmwood Park, 9 Wis2d 592 (1960) - Applying the standard of review developed by the Supreme Court in Lamars, the trial court found that the proposed Village of Elmwood Park was a 'village in fact'. However, because 17 of the petitioned acres were found to be swampy and economically difficult to develop, the court denied the petition. The Supreme Court reversed, finding that the trial court exceeded its authority in examining this economic issue, which was not determinative anyway because the swampy land could be designated as parkland. 
  
• Westring v. James (1976) - Supreme Court affirms the Bureau of Local & Regional Planning which recommended dismissal of the proposed village of Allouez. Petitioners argued that: 1) the statute unconstitutionally delegates legislative power to the an agency staff person; 2) Bureau made no express finding about the services standard, but merely found them to be adequate; 3) Bureau did not follow the rules of evidence, which is required because this was a contested case proceeding, and 4) the Bureau's recommendation was not based on substantial evidence and was arbitrary and capricious. The Court disagreed with all of these arguments. Regarding Petitioner's 3rd argument, the Court found that the rules of evidence need not be adhered to because incorporations are not contested case proceedings. One justice dissented on this point. 
  
• Schmidt v Dept of local Affairs and Development (1968) - the Supreme Court upheld the Department of Resource Development's recommendation that the entire Town of Salem proposed for incorporation did not meet the statutory standards. Petitioners challenged the constitutionality of delegating legislative authority to Department staff. The Court found the delegation permissible, given the existence of procedural and judicial safeguards against arbitrary, unreasonable, or oppressive conduct of department staff. 
  
• Scharping v. Johnson (1966) - Supreme Court affirmed the Department of Resource Development's denial of the proposed village of Rockfield. The Department found the area to be little more than a cross-roads, with no community center, almost no services, and an unused church. Additonally, no quarter section contained an average of 30 housing units or greater or had an assessed value that was comprised of at least 25% mercantile, manufacturing, or public utility uses. 
  
• In re Village of Oconomowoc Lake (1959) - Supreme Court reversed the trial court's rejection of the incorporation petition. The proposed village of Oconomowoc Lake consisted of 339 persons on 632 acres of rough wooded terrain unsuitable for agriculture but ideal for residential purposes. Citing Chenequa, the Court found that the traditional and customary view of a community as growing around a marketplace, school, church, and blacksmith shop must give way to a more modern understanding that recognizes the "construction of superhighways and... automobiles [that make] it possible for families to live in one community, be employed in another, and seek recreation in still others. Public transportation of passengers by bus, plane, helicopter, and packages, mail, and freight by truck, has brought communities to within minutes of each other where formerly it was hours." The Court found that although Oconomowoc Lake had no village store or school, etc., it possessed a spirit of togetherness and a unity of purpose. 
  
• In re Village of Oconomowoc Lake (1955) - the Village of Oconomowoc Lake petitioners met the minimum population and area standards, and disagreed with the Intervening Towns of Summit and Oconomowoc that the old Lammers Doctrine still applied. Therefore, Petitioners did not include any details or allegations that the proposed village was a 'village in fact' so as to satisfy the Lammers Doctrine. The Supreme Court agreed with Intervenors that Lammers Doctrine still applied, in addition to the statutory minimum area and population standards. Because the petition failed to state facts sufficient to even allege 'a village in fact', the Court reversed the trial court and sustained Intervenors objections to the incorporation. 
  
• In re Village of Elm Grove (1954) - the Supreme Court remanded the petition to incorporate a portion of the Town of Brookfield as the village of Elm Grove back to the trial court for a rehearing. The Town of Brookfield made five specific objections: 1) the required one year minimum between incorporation attempts had not elapsed; 2) the proposed village limits did not contain all of the potential territory that possessed characteristics of a village; 3) petitioners should have filed as a city of the fourth class rather than as a village; 4) the proposed village boundaries isolate one portion of the Town from the rest of the Town; 5) the village limits are drawn so that the area is so heavily populated that there is little or no room for expansion, and 6) the trial court refused to hear testimony from the Town's expert witness on municipal incorporation. The Court rejected all of the Town's specific objections except for the sixth one, regarding the Town's expert witness, which the Court found to be prejudicial error. 
  
• In re Incorporation of Village of Twin Lakes (1938) - Supreme Court upheld Twin Lake's incorporation despite objections to the notice and allegations that too much agricultural territory was included. Regarding the excessive territory claim, the Court found the petition to be nearly identical to Chenequa in terms of size and characteristics. 
  
• In re Incorporation of Village of St Francis (1930) - the Supreme Court upheld the trial court's invalidation of the proposed Village of St Francis. While not overruling Chenequa, it nonetheless favored an analytical approach much more in line with the original Lammers Doctrine. The proposed village of St. Francis lay directly south of Milwaukee. While still rural in nature, development was planned for and expected. In fact, street-car service from Milwaukee already ran through the area and many residential subdivisions had been platted, but not yet built. However, the court found the area to be too rural at present to meet the Constitutional notion of a village. The Court also found the proposed area to be criss-crossed many times over by railroad lines. These lines bisected the proposed village into separate areas, both physically and socially, and was indicative of an overall lack of community identity and interest. 
  
• In re Village of Chenequa (1928) - Supreme Court upheld Chenequa's incorporation over four primary objections from the Town of Merton, including 1) the Town's objections were not adequately considered; 2) the petition was signed by non-residents; 3) the territory does not have characteristics normally associated with a village, according to the Lammers doctrine; 4) the petition included excessive lands not appurtenant and necessary for future growth. The case is significant because it liberalized the Lammers Doctrine. Chenequa consisted of woodlands surrounding Pine Lake. Most of the 200 residents were wealthy persons who commuted to work 30 miles away in Milwaukee. The proposed village lacked stores, churches, etc., and opponents argued that it was not a real village like the framers of Wisconsin's Constitution had in mind in 1848. The court disagreed. As in Lammers, the justices transported themselves mentally back to the year 1848, into the shoes of the framers. They found the framers to be "optimistic" men who foresaw a future of transportation and automotive wonders that would revolutionize daily life and make possible rural suburban communities such as Chenequa, whose sole purpose was comfortable residential living. The Court found that a traditional village center was no longer necessary in modern life. 
  
• Incorporation of Village of Biron (1911) - Supreme Court upheld an incorporation petition, despite plaintiff residents' claim that the petition was made available for viewing at a corporation rather than a residence, and also that the signatures were insufficient. 
  
• Fenton v Ryan (1909) - Supreme Court upheld the trial court in dismissing an incorporation petition that was almost entirely rural and sparsely settled agricultural lands. Only 38 acres could be considered urban. Relying on the Lammers Doctrine, the Court found the proposed incorporation territory did not have the characteristics of a village. 
  
• State ex rel. Town of Holland v. Lammers (1902) - the Supreme Court upheld an incorporation over several Town of Holland objections, including that the statute was unconstitutional because it contained no size or density limitations. Theoretically, the Town argued, a village could be gigantic and inconsistent with a typical village, and contrary to section 23, article IV of the Wisconsin Constitution which provides that the legislature shall establish but one system of town and county government, which shall be as nearly uniform as possible. The upholding the statute, the Court created the Lammers Doctrine, which defined the term 'village' for the first time as having a "reasonably compact center or nucleus of population, and not a mere agricultural community." Also, any additional territory included beyond the core area must reasonably possess some connection and be necessary for future growth and development. The Lammers Doctrine would become firmly imbedded in Wisconsin Law, and over the next five decades enable the judicial branch to substantively review incorporation petitions on a case by case basis. 
  
• In re Incorporation of Village of North Milwaukee (1896) - the Supreme Court invalidated the trial court's incorporation of the Village of North Milwaukee, finding that courts cannot decide questions of legislative policy by determining whether or not a village should be incorporated. The Court found that the legislature may properly say what prerequisites must exist, and what steps must be taken before incorporation can be effected, and may authorize the courts to determine whether such facts exist. However, no discretion can be vested in the courts to grant or refuse incorporation. 
  
• In re Schumaker (1895) - Supreme Court upheld an incorporation over the town's objected that the statute authorizing circuit courts to incorporate villages is unconstitutional.
  

Law Review Articles

• Legal and Illegal Methods for Controlling Community Growth on the Urban Fringe, by Richard Cutler, Vol. 1961, No. 3 May.
  
• Characteristics of Land Required for Incorporation or Expansion of a Municipality, by Richard Cutler, Vol. 1958, No. 1 January.