COURT OF APPEALS DECISION DATED AND RELEASED June 19, 1996 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-2344
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
CHESTER A. BAHR and
LU ANN BAHR, husband
and wife,
DALE A. BAHR and VICKY
BAHR,
husband and wife, TOWN
OF
SHEBOYGAN, TOWN OF
SHEBOYGAN
SANITARY DISTRICT NO.
2 and
TOWN OF SHEBOYGAN
SANITARY
DISTRICT NO. 3
(WATER),
Plaintiffs-Appellants,
v.
CITY OF SHEBOYGAN,
Defendant-Respondent.
APPEAL from a judgment
of the circuit court for Sheboygan County:
JAMES J. BOLGERT, Judge. Affirmed.
Before Anderson, P.J.,
Brown and Snyder, JJ.
PER
CURIAM. This is an appeal from a judgment affirming the
validity of an annexation ordinance adopted by the City of Sheboygan. We affirm the judgment that the annexation
complies with the "rule of reason."
The City filed the
annexation petition. Annexation was
opposed by the appellants, Chester, LuAnn, Dale and Vicky Bahr, owners of
twenty acres of property annexed; the Town of Sheboygan and the Town of
Sheboygan Sanitary Districts No. 2 and 3.
The annexation splits the Bahrs' property between City and Town
authority. The Town and the Sanitary
Districts constructed and operate a water supply system adjacent to the annexed
property.
The parties agree that Town
of Menasha v. City of Menasha, 170 Wis.2d 181, 188-90, 488 N.W.2d 104,
107‑08 (Ct. App. 1992), sets forth the applicable considerations for
reviewing an annexation ordinance and our standard of review of the circuit
court's decision regarding annexation.
We need not repeat these tests verbatim. It is sufficient to note that the three pronged "rule of
reason" doctrine is utilized in assessing whether annexation is invalid
because it is arbitrary and capricious or an abuse of the municipality's
discretion. See id.
at 189, 488 N.W.2d at 108.
All three prongs require
factual inquiries to be made by the circuit court. Id. at 189-90, 488 N.W.2d at 108. We will not reverse factual findings unless
clearly erroneous. Id. at
190, 488 N.W.2d at 108. For purposes of
appellate review, the evidence supporting the court's findings need not
constitute the great weight and clear preponderance of the evidence; reversal
is not required if there is evidence to support a contrary finding. Bank of Sun Prairie v. Opstein,
86 Wis.2d 669, 676, 273 N.W.2d 279, 282 (1979).
The first requirement
under the rule of reason is that exclusions and irregularities in boundary
lines must not be the result of arbitrariness.
Town of Menasha, 170 Wis.2d at 189, 488 N.W.2d at
108. The issue of arbitrary boundaries
generally arises when landowners or electors opposed to annexation are excluded
to ensure the success of the annexation.
Id. at 190-91, 488 N.W.2d at 108‑09. That is exactly what the appellants contend
happened here by the City's exclusion from the annexation of four parcels of
property.
The circuit court found
that the annexation was for the purpose of bringing to the City suitable vacant
land for future residential development.
As to each of the four parcels, the circuit court found that the City
had logical reasons for excluding them from the boundaries of the
annexation. The City-owned parcel was
not suitable for supporting residential development because it contained
high-quality wetlands. The remainder of
the Bahr property and the two Dhein parcels were already devoted to particular
uses not consistent with the desire for vacant land for residential
development. The circuit court also
found that the City had divided the Bahr property by using the tax parcel line
for ease of administration. These
findings are not clearly erroneous and support a determination that the City
did not act arbitrarily in setting the boundaries of the annexation.
The rule of reason
secondarily requires the City to show some reasonable present or demonstrable
future need for the annexed property. Id.
at 189, 488 N.W.2d at 108. "This
requirement is not satisfied by showing that the territory sought for
annexation is merely desirable, better than that already controlled, or that a
particular city will best be able to provide service to the
territory." Id. at
194, 488 N.W.2d at 110.
To demonstrate a need
for the annexed property, the City advanced the need to maintain and increase
its tax base, the need for area to accommodate residential development and the
need to service city properties north of the annexed property. The circuit court found that the City had
demonstrated how an increased tax basis was important for the City. It also found a need for the City to have
property suitable for future residential development to the north of the
City. Inclusion of the Bahr property
was found to be necessary to facilitate good planning for providing services to
annexed property north of the Bahr property.
The circuit court's findings are supported by the evidence.
We conclude that the City
showed a need for the annexation. We
reject the appellants' contention that the Bahrs' desire to have their property
remain within the township negates the City's need. The sensitivity to a property owner's desire to be located in a
particular municipality is most appropriate in assessing needs where property
owners themselves petition for annexation.
See Town of Delavan v. City of Delavan, 176 Wis.2d
516, 539, 500 N.W.2d 268, 276 (1993).
The appellants argue that because the Bahrs have disavowed any intent to
develop their property, the City's need for their property for residential
development is fiction. However, the
determination of whether the annexation is in the best interest of a city's
future development is not a judicial determination. See id. at 540, 500 N.W.2d at 277. Once the annexing authority shows any
reasonable need for the annexation, the courts must respect the legislative
decision to annex. Town of
Menasha, 170 Wis.2d at 194, 488 N.W.2d at 110.
The final prong of the
rule of reason doctrine is that no other factors exist which constitute an
abuse of discretion on the part of the municipality. Id. at 189, 488 N.W.2d at 108. The appellants argue that the City has
abused its discretion by acting in a deliberate manner which attempts to thwart
Town development. The Town points to
the City's quick purchase of land over which the Town sought a water easement
and the City's subsequent refusal to grant the easement as evidencing the
City's goal to hinder Town development.
The circuit court found
that early on the City had long-range plans to service the annexed area with
water and sewer and that the Town was aware of such plans. The City's purchase of the other property
and refusal to grant the easement were consistent with development plans. Indeed, it was found that the Town had
configured its water system to a new subdivision not for engineering reasons
but to stop city development. These
findings are not clearly erroneous. The
circuit court correctly concluded that there was no unfairness in the City's
annexation.
The appellants also
contend that an abuse of discretion exists because the City annexed property
that it is legally prohibited from serving with the municipal water supply
system. The injunction imposed in the
companion case of Town of Sheboygan, Town of Sheboygan Sanitary District
No. 3 (Water), et al. v. City of Sheboygan, No. 95-1839, (Wis. Ct. App.
June 19, 1996), has been reversed on appeal.
This argument is moot and will not be considered.
Finally, the appellants
argue that the City abused its discretion by adopting the annexation ordinance
before reviewing the advice of the Department of Administration. It appears that this argument is raised for
the first time on appeal. We generally
will not review an issue which is raised for the first time on appeal. Segall v. Hurwitz, 114 Wis.2d
471, 489, 339 N.W.2d 333, 342 (Ct. App. 1983).
The issue is without
merit. In response to the City's notice
of the proposed annexation, the Department of Administration issued an opinion
on June 7, 1994, that the annexation was not against the public interest. Although the letter indicated that a
separate letter would follow discussing some of the issues relating to the
annexation, nothing required the City to wait for the additional letter before
acting. Section 66.021(11)(a), Stats., requires a municipality to
review the advice of the Department of Administration before taking final
action if an opinion is issued that the annexation is against the public
interest. The City was not legally
prohibited from adopting the annexation ordinance on July 18, 1994.
We conclude that there
are no other factors suggesting that the City abused its discretion in annexing
the property. The rule of reason is
satisfied.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.