City of Mayville v. Wis. Dep't of Admin.

960 N.W.2d 416

2021 WI 57

CITY OF MAYVILLE, Petitioner-Respondent,

v.State of Wisconsin DEPARTMENT OF ADMINISTRATION, Respondent-Appellant-Petitioner,Village of Kekoskee, Respondent-Co-Appellant-Petitioner.

No. 2019AP882

Supreme Court of Wisconsin.

Oral Argument: April 8, 2021

Opinion Filed June 11, 2021

For the respondent-appellant-petitioner, there were briefs filed by Clayton P. Kawski, assistant attorney general; with whom on the brief was Joshua L. Kaul, attorney general. There was an oral argument by Clayton P. Kawski.

For the respondent-co-appellant-petitioner, there were briefs filed by Matthew Parmentier and Dempsey Law Firm, LLP. There was an oral argument by Matthew Parmentier.

For the petitioner-respondent, there was a brief filed by James W. Hammes and Cramer, Multhauf & Hammes, LLP, Waukesha. There was an oral argument by James W. Hammes.

ROGGENSACK, J., delivered the majority opinion for a unanimous Court.

PATIENCE DRAKE ROGGENSACK, J.

¶1 We review a published decision of the court of appeals¹ affirming the order of the Circuit Court for Dodge County² that reversed the Department of Administration's (the "Department") approval of a cooperative plan (the "Plan") between the Village of Kekoskee (the "Village") and the Town of Williamstown (the "Town") and remanded the matter back to the Department. The circuit court determined that the cooperative plan statute, Wis. Stat. § 66.0307 (2017-18),³ did not permit municipalities to use cooperative plans to "absorb an entire Town[ ] into a Village." The court of appeals affirmed on modified grounds concluding that the Plan "changed" the City of Mayville's ("Mayville") boundary line such that Mayville was required to be a party to the Plan.

¶2 We conclude first that Mayville has standing to seek judicial review of the Plan. Next, we conclude that the "Village of Williamstown Detachment Area" set forth in the Plan changes Mayville's boundary line. Because the Plan changed Mayville's boundary line, Wis. Stat. § 66.0307(2) required that Mayville be a party to the Plan. Mayville was not a party to the Plan, therefore, we conclude that the Department erroneously interpreted § 66.0307(2) in approving the Plan. Accordingly, we affirm the decision of the court of appeals, which remanded the Plan to the circuit court to remand to the Department.

I. BACKGROUND

¶3 The Town, the Village and Mayville are located in Dodge County. The Village, which was incorporated from a portion of the Town in 1958, is completely surrounded by the Town's territory. Likewise, Mayville also is surrounded completely by the territory of the Town; however, Mayville does not share a border with the Village. The Town is unincorporated.

¶4 The Village, having difficulty recruiting enough residents to comprise a full village board, notified the Town in 2015 that it was considering dissolution. Representatives from the Village and the Town met to consider alternatives. After discussions, they decided to consolidate the territories of the two municipalities. The municipalities concluded that they could consolidate by entering into a cooperative plan pursuant to Wis. Stat. § 66.0307.

¶5 The two municipalities each adopted resolutions declaring their intent to adopt a cooperative plan, submitted the resolutions and copies of the drafted plan to the Department, and notified Mayville and the other surrounding municipalities. The mayor of Mayville wrote back to the Town stating that "Mayville would be glad to work with you on a cooperative plan." Mayville, however, who was not a party to the plan, was not involved until the Department conducted a public hearing regarding the proposed cooperative plan. At the public hearing, the Town and the Village provided documentation in support of their proposed cooperative plan, and Mayville provided information in opposition.

¶6 The Town and the Village submitted a second plan to the Department for its approval. In May of 2018, the Department wrote to the municipalities, informing them that the second plan failed to "meet any of the statutory criteria."

¶7 Of particular concern for the Department was the second plan's insufficient provision of services such as Emergency Medical Services and sewer, especially in the area that is directly adjacent to Mayville, and the second plan's insufficient consideration of compactness.⁴ The Department "recommend[ed] that the [Town and Village] revise the [c]ooperative [p]lan to provide territory adjacent and proximate to [Mayville] the opportunity to receive higher level services should landowners desire that." The Department suggested, among other things, that the Village consolidate into the Town, which would leave the area surrounding Mayville unincorporated or the plan establish "designate[d] areas for urban growth and higher service levels."

¶8 The Department permitted the Village and the Town to revise the second plan and resubmit it. The parties submitted a third plan, which Mayville once again opposed. The Department found that the third plan again failed to meet several of the statutory criteria. This pattern repeated once more: the Village and the Town resubmitted a cooperative plan, Mayville opposed, but this time, the Department found that the final submission for a cooperative plan met the statutory criteria and approved it.

¶9 Under the Plan, "the Boundary Change will involve the attachment by the Village of all territory located in the Town as of the effective date of the Plan." "As soon as practicable upon completion of the Boundary Change, the Village will take those actions necessary to change its name from ‘Village of Kekoskee’ to ‘Village of Williamstown.’ " To address the Department's concern regarding the draft plans’ insufficient provision of services, the approved Plan, via Section 24, creates a "Village of Williamstown Detachment Area."⁵

Section 24 created an area that purported to be detachable from the Village of Williamstown and attachable to Mayville.

¶10 After the Department approved the Plan, Mayville filed a petition for judicial review in Dodge County circuit court pursuant to Wis. Stat. § 227.52. The Department and the Village filed a motion to dismiss, arguing that Mayville did not have standing to challenge the Department's decision approving the Plan. The circuit court denied the motion and concluded that Mayville had standing.

¶11 On the merits, the question for the circuit court was "whether ... [ Wis. Stat. §] 66.0307 can be used to dissolve a Town and attach its territory to a Village." The circuit court concluded that, in part because there are other statutes that could achieve the municipalities' desired results, § 66.0307 did not permit "a Village to attach an entire [t]own[ ] under the guise of a boundary agreement." The circuit court also reasoned that "[t]he very concept of boundary requires the existence of two units of government; otherwise[,] there can be no boundary." The circuit court concluded that finding for the Department and the Village would require it to read into the statute the ability to completely consolidate two municipalities via a cooperative plan, which the court would not do. Accordingly, the court reversed the Department's decision that approved the Plan and remanded the matter to the Department. The circuit court stayed its order pending appeal.

¶12 The Department and the Village appealed on both issues. The court of appeals affirmed the circuit court's decision on modified grounds. First, the court of appeals held that Mayville had standing to challenge the Department's decision approving the Plan. City of Mayville v. DOA, 2020 WI App 63, ¶12, 394 Wis. 2d 296, 950 N.W.2d 925. The court of appeals based its standing decision on its interpretation of Mayville's statutory rights. Id.

¶13 In addressing Mayville's statutory rights, the court of appeals concluded that Mayville should have been a party to the Plan. Id., ¶¶40-41. The court of appeals reasoned "[t]here can be no dispute that the expansion of Mayville's area envisioned by the Village Detachment Area provision will physically alter Mayville's geographic city limits and, therefore, change Mayville's boundary line." Id., ¶41. Because Mayville was not a party to the Plan, the court of appeals affirmed the circuit court and held that the Department erroneously approved the Plan. The court of appeals did not address the circuit court's conclusion that the cooperative planning statute cannot be utilized for the purpose of consolidating municipalities.

¶14 On review, we agree with the court of appeals that Mayville has standing and that Mayville should have been a party to the Plan. Accordingly, for the reasons discussed below, we affirm the decision of the court of appeals.

II. DISCUSSION

A. Standard of Review

¶15 Whether a party has standing is a question of law that we review independently. Marx v. Morris, 2019 WI 34, ¶21, 386 Wis. 2d 122, 925 N.W.2d 112.

¶16 "When an appeal is taken from a circuit court order reviewing an agency decision, we review the decision of the agency, not the circuit court."

Hilton ex rel. Pages Homeowners' Ass'n v. DNR, 2006 WI 84, ¶15, 293 Wis. 2d 1, 717 N.W.2d 166. As shown in Mayville's petition, it is not challenging the factual bases for the Department's decision, rather, it alleges that "the Department erred in applying the cooperative plan statute to the undisputed facts of record." City of Mayville, 394 Wis. 2d 296, ¶16, 950 N.W.2d 925. The application of law to undisputed facts is a question of law that we review independently. Cnty. of Dane v. LIRC, 2009 WI 9, ¶14, 315 Wis. 2d 293, 759 N.W.2d 571. Finally, whether Mayville was required to be a party to the Plan is a question of statutory interpretation that we review independently. Jefferson v. Dane Cnty., 2020 WI 90, ¶13, 394 Wis. 2d 602, 951 N.W.2d 556.

B. Mayville's Standing

¶17 In all phases of this litigation, the Department and the Village have maintained that Mayville lacked standing. The circuit court denied their motion to...