Chapter 66

66.0203 Annotation There are significant conflicts between a contingent narrative description that provides for more than one location and the sub. (2) (c) requirement that the petition describe the territory to be incorporated with sufficient accuracy to determine its location. Town of Campbell v. City of La Crosse, 2003 WI App 139, 266 Wis. 2d 107, 667 N.W.2d 356, 02-1150.

66.0203 Annotation Under the rule of prior precedence, in case of conflict between competing annexations, or between an annexation and a proceeding for the incorporation of a city or village, the proceeding first instituted has precedence, and the later one must yield. Annexation proceedings did not lose priority status when the ordinances were deemed invalid and dismissed by the circuit court but subsequently vindicated on appeal. Town of Campbell v. City of La Crosse, 2003 WI App 139, 266 Wis. 2d 107, 667 N.W.2d 356, 02-1150.

66.0203 Annotation A court’s authority to determine whether two town boards have adopted resolutions under sub. (4m) approving an incorporation is triggered only after the incorporation review board has granted the incorporation petition under sub. (9) (f). Walt v. City of Brookfield, 2015 WI App 3, 359 Wis. 2d 541, 859 N.W.2d 115, 12-0919.

66.0205 66.0205 Standards to be applied by the circuit court. Before referring the incorporation petition as provided in s. 66.0203 (2) to the board, the court shall determine whether the petition meets the formal and signature requirements and shall further find that the following minimum requirements are met:

66.0205(1) (1) Isolated village. Area, one-half square mile; resident population, 150.

66.0205(2) (2) Isolated city. Area, one square mile; resident population, 1,000; density, at least 500 persons in any one square mile.

66.0205(3) (3) Metropolitan village. Area, 2 square miles; resident population, 2,500; density, at least 500 persons in any one square mile.

66.0205(4) (4) Metropolitan city. Area, 3 square miles; resident population, 5,000; density, at least 750 persons in any one square mile.

66.0205(5) (5) Standards when near 1st, 2nd or 3rd class city. If the proposed boundary of a metropolitan village or city is within 10 miles of the boundary of a 1st class city or 5 miles of a 2nd or 3rd class city, the minimum area requirements are 4 and 6 square miles for villages and cities, respectively.

66.0205 History History: 1977 c. 29; 1999 a. 150 s. 37; Stats. 1999 s. 66.0205; 2003 a. 171.

66.0205 Annotation The four square mile requirement of sub. (5) was met when 4.2 square miles of village land were proposed for annexation, although 2.5 square miles of that land was within floodway lines. Town of Campbell v. City of La Crosse, 78 Wis. 2d 246, 254 N.W.2d 241 (1977).

66.0207 66.0207 Standards to be applied by the board.

66.0207(1) (1) Requirements. The board may approve for referendum only those proposed incorporations which meet the following requirements:

66.0207(1)(a) (a) Characteristics of territory. The entire territory of the proposed village or city shall be reasonably homogeneous and compact, taking into consideration natural boundaries, natural drainage basin, soil conditions, present and potential transportation facilities, previous political boundaries, boundaries of school districts, shopping and social customs. An isolated municipality shall have a reasonably developed community center, including some or all features such as retail stores, churches, post office, telecommunications exchange and similar centers of community activity.

66.0207(1)(b) (b) Territory beyond the core. The territory beyond the most densely populated one-half square mile specified in s. 66.0205 (1) or the most densely populated square mile specified in s. 66.0205 (2) shall have an average of more than 30 housing units per quarter section or an assessed value, as defined in s. 66.0217 (1) (a) for real estate tax purposes, more than 25 percent of which is attributable to existing or potential mercantile, manufacturing or public utility uses. The territory beyond the most densely populated square mile as specified in s. 66.0205 (3) or (4) shall have the potential for residential or other urban land use development on a substantial scale within the next 3 years. The board may waive these requirements to the extent that water, terrain or geography prevents the development.

66.0207(2) (2) Additional considerations. In addition to complying with each of the applicable standards set forth in sub. (1) and s. 66.0205 in order to be approved for referendum, a proposed incorporation must be in the public interest as determined by the board upon consideration of the following:

66.0207(2)(a) (a) Tax revenue. The present and potential sources of tax revenue appear sufficient to defray the anticipated cost of governmental services at a local tax rate which compares favorably with the tax rate in a similar area for the same level of services.

66.0207(2)(b) (b) Level of services. The level of governmental services desired or needed by the residents of the territory compared to the level of services offered by the proposed village or city and the level available from a contiguous municipality which files a certified copy of a resolution as provided in s. 66.0203 (6).

66.0207(2)(c) (c) Impact on the remainder of the town. The impact, financial and otherwise, upon the remainder of the town from which the territory is to be incorporated.

66.0207(2)(d) (d) Impact on the metropolitan community. The effect upon the future rendering of governmental services both inside the territory proposed for incorporation and elsewhere within the metropolitan community. There shall be an express finding that the proposed incorporation will not substantially hinder the solution of governmental problems affecting the metropolitan community.

66.0207 History History: 1977 c. 29; 1983 a. 189 s. 329 (14); 1985 a. 297 s. 76; 1999 a. 150 s. 38; Stats. 1999 s. 66.0207; 2003 a. 171; 2021 a. 240 s. 30.

66.0207 Annotation The delegation of legislative power under sub. (2) (d) is constitutional. The legislature stated the general purpose with sufficient clarity that it can be determined that it is the legislature’s will and not that of the administrator [now board] that is served by following consideration guidelines enumerated in subs. (1) and (2). Westring v. James, 71 Wis. 2d 462, 238 N.W.2d 695 (1976).

66.0207 Annotation The requirement of homogeneity seeks to assure that an incorporated area is urban rather than rural, that development in such an area is not scattered, fragmented, or haphazard, and that similar land uses are grouped together in appropriate municipal boundaries. Town of Pleasant Prairie v. Department of Local Affairs & Development, 113 Wis. 2d 327, 334 N.W.2d 893 (1983).

66.0207 Annotation That the department approved annexations that helped create fragmented town borders did not render arbitrary and capricious the department’s determination that the town’s proposed incorporation did not meet the requirement of homogeneity and compactness. Redford v. Town of Pewaukee, 186 Wis. 2d 515, 521 N.W.2d 453 (Ct. App. 1994).

66.0207 Annotation Whether incorporation would benefit the proposed village area is not the standard for allowing incorporation. An area must meet all the requirements of subs. (1) and (2). Walag v. DOA, 2001 WI App 217, 247 Wis. 2d 850, 634 N.W.2d 906, 00-3513.

66.0209 66.0209 Review of incorporation-related orders and decisions.

66.0209(1) (1) The order of the circuit court made under s. 66.0203 (8) or (9) (f) may be appealed to the court of appeals.

66.0209(2) (2) The decision of the board made under s. 66.0203 (9) is subject to judicial review under ch. 227.

66.0209(3) (3) Where a proceeding for judicial review is commenced under sub. (2), appeal under sub. (1) may not be taken and the time in which the appeal may be taken does not commence to run until judgment is entered in the proceeding for judicial review.

66.0209(4) (4) An incorporation referendum ordered by the circuit court under s. 66.0203 (9) (f) may not be stayed pending the outcome of further litigation, unless the court of appeals or the supreme court, upon an appeal or upon the filing of an original action in the supreme court, concludes that a strong probability exists that the order of the circuit court or the decision of the board will be set aside.

66.0209 History History: 1977 c. 29, 187; Sup. Ct. Order, 146 Wis. 2d xiii (1988); 1999 a. 150 s. 39; Stats. 1999 s. 66.0209; 2001 a. 103; 2003 a. 171.

66.0209 Annotation When a petition to incorporate is dismissed due to the Department of Administration’s disapproval, sub. (2) prevents appellate court review prior to judicial review under ch. 227. Walag v. Town of Bloomfield, 171 Wis. 2d 659, 492 N.W.2d 342 (Ct. App. 1992).

66.0211 66.0211 Incorporation referendum procedure.

66.0211(1) (1) Order. The circuit court’s order for an incorporation referendum shall specify the voting place and the date of the referendum, which shall be not less than 6 weeks from the date of the order, and name 3 inspectors of election. If the order is for a city incorporation referendum the order shall further specify that 7 alderpersons shall be elected at large from the proposed city. The city council at its first meeting shall determine the number and boundaries of wards in compliance with s. 5.15 (1) and (2), and the combination of wards into aldermanic districts. The number of alderpersons per aldermanic district shall be determined by charter ordinance.

66.0211(2) (2) Notice of referendum. Notice of the referendum shall be given by publication of the order of the circuit court in a newspaper having general circulation in the territory. Publication shall be once a week for 4 successive weeks. The first publication may not be more than 4 weeks before the referendum.

66.0211(3) (3) Return. An incorporation referendum shall be conducted in the same manner as an annexation referendum under s. 66.0217 (7) to the extent applicable except that the ballot shall contain the words “For a city [village]” and “Against a city [village]”. The inspectors shall make a return to the circuit court.

66.0211(4) (4) Costs. If the referendum is against incorporation, the costs of the election shall be borne by the towns involved in the proportion that the number of electors of each town within the territory proposed to be incorporated, voting in the referendum, bears to the total number of electors in the territory voting in the referendum. If the referendum is for a village or city, the costs shall be charged against the municipality in the apportionment of town assets.

66.0211(5) (5) Certification of incorporation. If a majority of the votes in an incorporation referendum are cast in favor of a village or city, the clerk of the circuit court shall certify the fact to the secretary of administration and supply the secretary of administration with a copy of a description of the legal boundaries of the village or city and the associated population and a copy of a plat of the village or city. Within 10 days of receipt of the description and plat, the secretary of administration shall forward 2 copies to the department of transportation and one copy each to the department of administration and the department of revenue. The secretary of administration shall issue a certificate of incorporation and record the certificate.

66.0211 History History: 1971 c. 304; 1973 c. 37, 90; 1977 c. 29 s. 1654 (8) (c); 1977 c. 273; 1979 c. 361 s. 112; 1981 c. 4 s. 19; 1981 c. 377; 1993 a. 184; 1995 a. 27, s. 9116 (5); 1999 a. 150 s. 40; Stats. 1999 s. 66.0211; 2011 a. 32; 2015 a. 55.

66.0211 Annotation A referendum is effective immediately if the majority of votes are for incorporation. 70 Atty. Gen. 128.

66.0213 66.0213 Powers of new village or city: elections; adjustment of taxes; reorganization as village.

66.0213(1) (1) Village or city powers. A village or city incorporated under ss. 66.0201 to 66.0213 is a body corporate and politic, with powers and privileges of a municipal corporation at common law and conferred by these statutes.

66.0213(2) (2) Existing ordinances. Ordinances in force in the territory incorporated or any part of the territory, to the extent not inconsistent with chs. 61 and 62, continue in force until altered or repealed.

66.0213(3) (3) Interim officers. All officers of the village or town embracing the territory that is incorporated as a village or city continue in their powers and duties until the first meeting of the board of trustees or common council at which a quorum is present. Until a village or city clerk is chosen and qualified all oaths of office and other papers shall be filed with the circuit court with which the petition was filed. The court shall deliver the oaths and other papers with the petition to the village or city clerk when that clerk qualifies.

66.0213(4) (4) First village or city election.

66.0213(4)(a) (a) Within 10 days after incorporation of the village or city, the county clerk of the county in which the petition was filed shall fix a time for the first election, and where appropriate designate the polling place or places, and name 3 inspectors of election for each place. The time for the election shall be fixed no less than 40 nor more than 50 days after the date of the certificate of incorporation issued by the secretary of administration, irrespective of any other provision in the statutes. Nomination papers shall conform to ch. 8 to the extent applicable. Nomination papers shall be signed by not less than 5 percent nor more than 10 percent of the total votes cast at the referendum election, and be filed no later than 15 days before the time fixed for the election. Ten days’ previous notice of the election shall be given by the county clerk by publication in the newspapers selected under s. 66.0211 (2) and by posting notices in 3 public places in the village or city, but failure to give notice does not invalidate the election.

66.0213(4)(b) (b) The election shall be conducted as prescribed by ch. 6. The inspectors shall make returns to the county clerk who shall, within 14 days after the election, canvass the returns and declare the result. The clerk shall notify the officers-elect and issue certificates of election. If the first election is on the first Tuesday in April the officers elected and their appointees shall commence and hold their offices as for a regular term. Otherwise they shall commence within 14 days and hold their offices until the regular village or city election and the qualification of their successors and the terms of their appointees expire as soon as successors qualify.

66.0213(5) (5) Taxes levied before incorporation; how collected and divided. If a village or city is incorporated after the assessment of taxes in any year and before the collection of the taxes, the tax assessed shall be collected by the town treasurer of the town or the town treasurers of the different towns of which the village or city formerly constituted a part, and all moneys collected from the tax levied for town purposes shall be divided between the village or city and the town or the towns, as provided by s. 66.0235 (13) (a) 1., for the division of property owned jointly by towns and villages.

66.0213(6) (6) Reorganization of city as village. If the population of any city falls below 1,000 as determined by the United States census, the council may upon filing of a petition conforming to the requirements of s. 8.40 containing the signatures of at least 15 percent of the electors submit at any general or city election the question whether the city shall reorganize as a village. If three-fifths of the votes cast on the question are for reorganization the mayor and council shall record the return in the office of the register of deeds, file a certified copy with the clerk of the circuit court, and immediately call an election, to be conducted as are village elections, for the election of village officers. Upon the qualification of the officers, the board of trustees shall declare the city reorganized as a village, and the reorganization is effective. The clerk shall certify a copy of the declaration to the secretary of administration who shall file the declaration and endorse a memorandum of the declaration on the record of the certificate of incorporation of the city. Rights and liabilities of the city continue in favor of or against the village. Ordinances, so far as within the power of the village, remain in force until changed.

66.0213 History History: 1977 c. 203 s. 106, 1989 a. 192; 1991 a. 32, 316; 1993 a. 301, 329; 1995 a. 16 s. 2; 1995 a. 201, 216; 1999 a. 150 s. 41; Stats. 1999 s. 66.0213; 2011 a. 115, 130; 2013 a. 80, 165; 2015 a. 55.

66.0215 66.0215 Incorporation of certain towns adjacent to 1st class cities.

66.0215(1) (1) Petition. If the resident population of a town exceeds 5,000 as shown by the last federal census or by a census under sub. (2), if the town is adjacent to a 1st class city and contains an equalized valuation in excess of $20,000,000 and if a petition signed by 100 or more persons, each an elector and taxpayer of the town, containing the signatures of at least 50 percent of the owners of real estate in the town and requesting submission of the question to the electors of the town, is filed with the clerk of the town, the procedure for becoming a 4th class city is initiated.

66.0215(2) (2) Referendum. At the next regular meeting of the town board following the filing of the petition under sub. (1), the board by resolution shall provide for a referendum by the electors of the town. The resolution shall conform to the requirements of s. 5.15 (1) and (2) and shall determine the numbers and boundaries of each ward of the proposed city and the time of voting, which may not be earlier than 6 weeks after the adoption of the resolution. The resolution may direct that a census be taken of the resident population of the territory on a day not more than 10 weeks previous to the date of the election, exhibiting the name of every head of a family and the name of every person who is a resident in good faith of the territory on that day, and the lot or quarter section of land on which that person resides, which shall be verified by the affixed affidavit of the person taking the census.

66.0215(3) (3) Notice of referendum. Notice of the referendum shall be given by publication of the resolution in a newspaper published in the town, if there is one, otherwise in a newspaper designated in the resolution, once a week for 4 successive weeks, the first publication to be not more than 4 weeks before the referendum.

66.0215(4) (4) Voting procedure. The referendum shall be conducted in the same manner as elections for supervisors of the town board. The question appearing on the ballot shall be “Shall the town of .... become a 4th class city?”. Below the question shall appear 2 squares. To the left of one square shall appear the words “For a city” and to the left of the other square shall appear the words “Against a city”. The inspectors shall make a return to the clerk of the town.

66.0215(5) (5) Certificate of incorporation. If a majority of the votes are cast in favor of a city the clerk shall certify the fact to the secretary of administration, together with the result of the census, if any, and 4 copies of a description of the legal boundaries of the town and 4 copies of a plat of the town. The secretary of administration shall then issue a certificate of incorporation, and record the certificate in a book kept for that purpose. Two copies of the description and plat shall be forwarded by the secretary of administration to the department of transportation and one copy to the department of revenue.

66.0215(6) (6) City powers. A city incorporated under this section is a body corporate and politic, with the powers and privileges of a municipal corporation at common law and conferred by ch. 62.

66.0215(7) (7) Existing ordinances. Ordinances in force in the territory or any part of the territory, to the extent not inconsistent with ch. 62, continue in force until altered or repealed.

66.0215(8) (8) Interim officers. All officers of the town embracing the territory incorporated as a city continue in their powers and duties until the first meeting of the common council at which a quorum is present. Until a city clerk is chosen and qualified all oaths of office and other papers shall be filed with the town clerk, with whom the petition was filed, who shall deliver them with the petition to the city clerk when the city clerk is qualified.

66.0215(9) (9) First city election. Within 10 days after incorporation of the city, the town board and the town clerk who received the petition shall fix a time for the first city election, designate the polling place or places, and name 3 inspectors of election for each place. Ten days’ previous notice of the election shall be given by the clerk by publication in the newspapers selected under sub. (3) and by posting notices in 3 public places in the city. Failure to give notice does not invalidate the election. The election shall be conducted as is prescribed by chs. 5 to 12. The inspectors shall make returns to the board which shall, within 14 days after the election, canvass the returns and declare the result. The clerk shall notify the officers-elect and issue certificates of election. If the first election is on the first Tuesday in April the officers elected and their appointees commence and hold their offices as for a regular term. Otherwise they commence within 14 days and hold until the regular city election and the qualification of their successors, and the term of their appointees expires as soon as successors qualify.

66.0215 History History: 1971 c. 304; 1977 c. 29 s. 1654 (8) (c); 1979 c. 89; 1981 c. 4 s. 19; 1981 c. 377; 1983 a. 532 s. 11; Stats. 1983 s. 66.012; 1991 a. 316; 1993 a. 329; 1995 a. 16 s. 2; 1995 a. 201; 1999 a. 150 s. 31; Stats. 1999 s. 66.0215; 2011 a. 115; 2013 a. 80; 2015 a. 55.

66.0215 Annotation “Adjacent” under sub. (1) means “contiguous,” not “near.” City of Waukesha v. Salbashian, 128 Wis. 2d 334, 382 N.W.2d 52 (1986).

66.02162 66.02162 Incorporation of certain towns contiguous to 3rd class cities or villages.

66.02162(1) (1) Conditions. A town board may initiate the procedure for incorporating its town as a village under this section by adopting a resolution providing for a referendum by the electors of the town on the question of whether the town should become a village if on the date of the adoption of the resolution any of the following is satisfied:

66.02162(1)(a) (a) All of the following conditions apply:

66.02162(1)(a)1. 1. The most recent federal decennial census shows that the resident population of the town exceeds 6,300.

66.02162(1)(a)2. 2. The town is contiguous to a 3rd class city.

66.02162(1)(a)3. 3. The most recent data available from the department of revenue show that the equalized value for the town exceeds $600,000,000.

66.02162(1)(a)4. 4. In one of the 5 years before the year in which the town board adopts the resolution, the town’s equalized value increased more than 7 percent, compared to the town’s equalized value for the prior year.

66.02162(1)(a)5. 5. The town board of the town is authorized to exercise village powers.

66.02162(1)(a)6. 6. The town has entered into, and is bound by, at least 2 separate cooperative boundary agreements under s. 66.0307 with at least 2 municipalities.

66.02162(1)(a)7. 7. The town has created at least one tax incremental financing district as authorized under s. 60.23 (32).

66.02162(1)(a)8. 8. The town has established at least one town sanitary district under subch. IX of ch. 60.

66.02162(1)(b) (b) All of the following conditions apply:

66.02162(1)(b)1. 1. The most recent federal decennial census shows that the resident population of the town exceeds 2,300.

66.02162(1)(b)2. 2. The most recent data available from the department of revenue show that the equalized value for the town exceeds $190,000,000.

66.02162(1)(b)3. 3. The area of the town exceeds 40 square miles.

66.02162(1)(b)4. 4. The town is contiguous to a village to which all of the following conditions apply:

66.02162(1)(b)4.a. a. The most recent federal decennial census shows that the resident population of the village is less than 300.

66.02162(1)(b)4.b. b. The area of the village is less than 2 square miles.

66.02162(1)(b)4.c. c. The aggregate net tax rate of the village, as determined by the department of revenue under s. 70.114 (3), is greater than 36 mills.

66.02162(1)(b)5. 5. The village under subd. 4. and the town are located in a county for which the most recent federal decennial census shows that the resident population is less than 150,000.

66.02162(2) (2) Referendum resolution. The resolution of the town board required under sub. (1) shall do all of the following:

66.02162(2)(a) (a) Certify that the requirements under sub. (1) are satisfied.

66.02162(2)(b) (b) Contain a description of the territory to be incorporated sufficiently accurate to determine its location and a statement that a scale map reasonably showing the boundaries of the territory is on file with the town clerk.

66.02162(2)(c) (c) Determine the numbers and boundaries of each ward of the proposed village, conforming to the requirements of s. 5.15 (1) and (2).

66.02162(2)(d) (d) Determine the date of the referendum, which may not be earlier than 6 weeks after the adoption of the resolution.

66.02162(3) (3) Notice of referendum. The town clerk shall publish the resolution adopted under sub. (1) in a newspaper published in the town. If no newspaper is published in the town, the town clerk shall publish the resolution in a newspaper designated in the resolution. The town clerk shall publish the resolution once a week for 4 successive weeks, the first publication to be not more than 4 weeks before the referendum.

66.02162(4) (4) Voting procedure. The referendum shall be conducted in the same manner as elections for town board supervisors. The question appearing on the ballot shall be: “Shall the town of .... become a village?” Below the question shall appear 2 squares. To the left of one square shall appear the words “For a village,” and to the left of the other square shall appear the words “Against a village.” The inspectors shall make a return to the town clerk.