LEAGUE ANNEXATION MANUAL UPDATE (Current as of 6/18/2013)

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1 LEAGUE ANNEXATION MANUAL UPDATE (Current as of 6/18/2013) The information below updates the League s Annexation of Territory manual by detailing changes made to the annexation law after the manual s printing in Changes Affecting Timing of Referenda Under Various Statutes p. 10 i. Referendum Petition under sec (7)(a)3. Manual reads If such a petition is filed, a referendum will be held in the area proposed for annexation not less than 42 days nor more than 72 days after the town clerk receives the referendum petition. Sec (7)(a) Wis. Act 75 amended (7)(a)3 to provide for a referendum not less than 70 days nor more than 100 days after the receipt of the petition. p. 18. B. Annexation by Court-Ordered Referendum Under sec Conduct of Referendum: 2011 Wis. Act 75 amended (4)(b) to provide for a referendum not less than 70 days nor more than 100 days after the receipt of the petition instead of a referendum not less than 42 days nor more than 72 days. p.43 B. Section Cooperative Boundary Plan 1.d, Advisory Referendum 2011 Wis. Act 43 amended (4)(e)2 to provide for an advisory referendum not less than 70 days nor more than 100 days after adoption of the final plan, instead of not less than 42 days nor more than 72 days. p. 47. D. Section Political Subdivision Revenue Sharing Agreements 2.b. Advisory Referendum 2011 Wis. Act 75 amended (6)(b) (referendum on revenue sharing agreement) and sec (4)(e)2 to provide for a referendum not less than 70 days nor more than 100 days after the receipt of the petition instead of not less than 42 days nor more than 72 days. Changes Affecting Annexation Limitations and Requirements pp m. Limitations on Annexation Authority 2. Town and County Approval Required Where Property Located in Different County. The manual reads: Section (14)(b) prohibits a city or village from annexing property under sec if no part of the city or village is located in the same county as the territory subject to the proposed annexation unless all of the following occur: The town board adopts a resolution approving the proposed annexation; and the county board of the county in which the territory is located adopts a resolution approving the proposed annexation. Effective April 5, 2012, 2011 Wis. Act 128 repealed sec (14)(b)2 which required that the

2 county board of the county in which the territory is located adopt a resolution approving the proposed annexation. p Unanimous Approval Annexations: When Chapter 66 was reorganized and renumbered in 2001, the notes accompanying the Act explained that changes made were primarily organizational and noncontroversial in nature and were not intended to be substantive changes unless expressly noted. When the provision governing direct annexation by unanimous approval was reorganized, it was done in such a way that the requirement that the territory being annexed be contiguous to the annexing municipality was no longer applicable. There was no note indicating that that substantive change was intended. After some municipalities annexed noncontiguous land, the legislature amended (2) to provide that no territory may be annexed by a city or village under the procedure for direct annexation by unanimous approval unless the territory to be annexed is contiguous to the annexing city or village. See 2009 Wis. Act 366, effective June 2, On p.15 the manual reads: Towns may not bring an action on any grounds, whether procedural or jurisdictional, to contest the validity of an annexation by unanimous approval. The above provision was upheld in Town of Merrimac v. Village of Merrimac, 2008 WI App 98, 312 Wis.2d 754, 753 N.W.2d 552 where the Town filed a court action claiming the village s annexation of property by unanimous approval was void because the annexed property was not contiguous with Village property and because the Village failed to pay the property tax amount to the Town as required by sec (14)(a). The court of appeals held that sec (11)(c) unambiguously barred the town from contesting annexation.by unanimous approval through a court action and affirmed the circuit court order dismissing the action. Although sec (11)(c) still generally prohibits towns from bringing an action on procedural or jurisdictional grounds to contest the validity of an annexation by unanimous approval, the law has been amended to provide for limited Department of Administration (DOA) review of direct annexations by unanimous approval and allowing towns to challenge such annexations in court under limited circumstances Wis. Act 128 created sec (6)(d) which requires DOA to review a unanimous approval annexation if the town submits its request for review within 30 days of the annexation ordinance's enactment. DOA's review is limited to determining whether the annexation violates either the requirement under sec (2) that the territory being annexed be contiguous to the annexing city or village, or the prohibition under sec (14)(b) on annexing territory if no part of the village or city is located in the same county as the territory that is subject to the proposed annexation unless the town board adopts a resolution approving the proposed annexation. See 2011 Wis. Act 128, creating sec (6)(d) and repealing sec (14)(b)2 which formerly required the county's approval in addition to the town s approval. Within 20 days of receiving the town's request and following its review, DOA must send its findings to any affected landowner, the town affected by the annexation, and the annexing city or village. If DOA does not complete its review and send a copy of its findings within 20 days of the town's request, the effect on the town and the annexing municipality is the same as if DOA found no violation. If DOA finds that the annexation violates the above requirements, the town may, within 45 days of receiving DOA's findings, challenge the annexation in circuit court.

3 If the town challenges the annexation in court and the circuit court rules against the town, the town must pay the court costs and the city or village's reasonable attorney fees incurred in defending the annexation. If the circuit court rules in the town's favor and upholds the town's challenge, the city or village must pay the court costs and the town's reasonable attorney fees incurred in challenging the annexation Wis. Act 128 applies to annexations commenced after April 5, Alternative Dispute Resolution in Contested Annexations 2007 Wis. Act 43 amended subsection (11)(b) to encourage the court and parties to a contested annexation to consider applying current alternative dispute resolution (ADR) provisions in sec to the contested annexation. Act 43 also created subsection (6)(b) in sec to require DOA to make available on its public web site a list of persons who have identified themselves as professionals qualified to facilitate ADR of annexation, boundary and land use disputes. Chapter IV Contest of Annexation p. 36 E. Settlement of Litigation; Municipal Boundaries Fixed by Judgment. Stipulated Boundary Agreements in Contested Boundary Actions, Sec Wis. Act 43 changed the title of sec to Stipulated boundary agreements in contested boundary actions. Act 43 limited the application of sec (boundaries fixed by court judgment) to contested annexations (formerly it also applied to incorporations, consolidations and detachments) and limited the scope of a boundary determination under that procedure to that portion of the boundary that is the subject of the annexation. The Act provided that contested consolidations, detachments, and incorporations may be settled by entering into an agreement under the new sec, procedure or under (boundary agreements by a cooperative plan). Contested actions may also be settled. Chapter VI Cooperative Boundary and Revenue Sharing Agreements Beginning p. 41 (Summary of 2007 Wis. Act 43 provided largely by Wisconsin Legislative Council Act Memo on 2007 Wis. Act 43, written by Don Dyke, former Legislative Council Chief of Legal Services) Chapter VI is affected by 2007 Wis. Act 43 which was developed by the Joint Legislative Council s Special Committee on Municipal Annexation. The Special Committee was directed to review conflicts arising under annexation law and practice and the consequences of those conflicts, including costs to taxpayers and other affected parties, to determine if there is consensus on means to reduce annexation disputes and encourage more boundary cooperation between towns and cities or villages. The manual summarizes some of the advantages and disadvantages of various methods cities and villages could use to cooperate regarding municipal boundaries. One disadvantage of sec was that it was a complicated and time-consuming process. A disadvantage of using the more straightforward and less time consuming authority to cooperate under sec (general intergovernmental cooperation authority) was legal uncertainty. To clarify the law and facilitate cooperation, the following changes were made by 2007 Wis. Act 43, effective January 19, 2008.

4 p. 41 Annexation Procedures Subject to Intergovernmental Cooperation Agreement under (6). All annexation procedures are generally subject to which is the statute governing boundary changes pursuant to an approved cooperative plan Wis. Act 43 established a procedure for an intergovernmental cooperation agreement regarding boundaries and modified the various annexation statutes to make them subject to sec (6) as well as sec p.42 B. Section Cooperative Boundary Plan Wis. Act 43 simplified the plan requirements of sec by substituting a general requirement for consistency with a comprehensive plan for the detailed planning requirements that made sec cumbersome. It also reduced from 120 to 60 the minimum number of days, following the last authorizing resolution by a participating municipality that must pass before the public hearing on the detailed cooperative plan may be held. Mediated Agreement Procedure If a city or village or a town declines to participate in the procedure for developing a cooperative plan to determine common boundaries, 2007 Wis. Act 43 provided a procedure for an adjacent municipality to petition for development of a cooperative plan through mediation. If a city or village refuses to engage in mediation after being requested to do so, an annexation commenced during the shorter of 270 days after the refusal or the period beginning after the refusal until the city or village agrees to engage in mediation may be contested by the petitioning town if the DOA determines the annexation is not in the public interest following an advisory review of the annexation. If a town refuses to engage in mediation, the town may not contest any annexation of its territory to the petitioning city or village that is commenced during the shorter of 270 days after the refusal or the period beginning after the refusal until the town agrees to engage in mediation. If both parties agree to engage in mediation, the mediation period expires after 270 days unless the participating municipalities agree to extend the period. If a cooperative plan is developed through mediation, the Act provides a time period for holding a public hearing on the plan. Otherwise the provisions of sec apply to a cooperative plan agreed to under the mediated agreement procedure. p.41 A. Section Intergovernmental Agreements Wis. Act 43 established a specific procedure for common municipal boundaries to be determined by intergovernmental cooperation agreement under sec In addition to determining common boundaries, an agreement under the procedure may include any other provisions municipalities are authorized to agree to under sec and (revenue sharing agreements). Once an agreement expires, all provisions of the agreement expire with the exception of boundary determinations which remain until subsequently changed. The maximum term of an agreement is 10 years. The boundary agreement procedure requires a public hearing on a proposed agreement and provides for a referendum of the electors residing within the territory whose jurisdiction is subject to

5 change as a result of the agreement if a sufficient referendum petition is timely submitted. A boundary agreement under sec may provide that during the term of the agreement, no other procedure for altering municipal boundaries may be used to alter a boundary that is affected by the agreement (subject to one exception). p. 46 C. Section Agreements Stipulated Boundary Agreements in Contested Boundary Actions, Sec Wis. Act 43 changed the title of sec to Stipulated boundary agreements in contested boundary actions. Act 43 limited the application of sec (boundaries fixed by court judgment) to contested annexations (formerly it also applied to incorporations, consolidations and detachmentsl) and limited the scope of a boundary determination under that procedure to that portion of the boundary that is the subject of the annexation. The Act provided that contested consolidations, detachments, and incorporations may be settled by entering into an agreement under the new sec, procedure or under (boundary agreements by a cooperative plan). Contested actions may also be settled.