Incorporation battle heating up as petition up for review

The town of Brookfield's incorporation effort passed one hurdle last week when a circuit court judge passed the petition on to a state review board, but the proposal still faces multipronged opposition.

The petition filed by the town of Brookfield and resident Jay Walt proposes incorporating most of the town of Brookfield and 288 acres of the town of Waukesha as a village. It is now set for review by a five-person board commissioned by the state Department of Administration that will evaluate the benefits and drawbacks of incorporation for those within the petition boundaries, as well as affected neighbors.

"We look to bring this forward in a positive light," said Jay Walt, who initiated the petition with the support of the town of Brookfield. "We believe all communities have value. … It's not just tax rate vs. tax rate. There are a tremendous number of services the town of Brookfield offers."

The town of Brookfield is paying the $25,000 filing fee.

"It pays for the review work the DOA does. It's a pretty involved process. You have to file a lot of studies and documents that address the services that would be needed for the property and if it's financially beneficial, among other criteria," said attorney James Hammes, who is representing the town of Brookfield and Walt.

He noted the review board can ultimately come forward with one of three recommendations, approval, denial or that the boundaries be changed.

Appeal might be coming

Where the next phase of this process plays out - in a courtroom or an administrative conference room - is still unknown.

The town of Waukesha holds that those of its residents living within the proposed incorporation area aren't being given fair opportunity to consent to or refuse inclusion, according to attorney Doug Hoffer, who represented the town at the Jan. 12 hearing. The argument was rejected by Circuit Court Judge Donald J. Hassin Jr., and town of Waukesha officials are deciding whether to appeal.

The review would be postponed by an appeal, and, if an appeal court agreed with the town of Waukesha's point, it could kill the current petition, explained city of Brookfield attorney Karen Flaherty, adding that the city of Brookfield would join the town in the appeal if the town pursues it.

Should the petition win the Incorporation Review Board's and Department of Administration's recommendation, the circuit court will render a final opinion. If it favors the petition, a referendum will be held to give those people living within the incorporation boundaries a chance to decide the matter. The number of town of Brookfield voters would far outweigh the number of town of Waukesha voters.

"In this particular case, the town of Waukesha Town Board is unanimously opposed to it," Hoffer said. "If every land owner in that area is opposed to it, they still have no say in it. That's inconsistent with every other (land transfer) statute."

He points to the state laws governing boundary agreements, annexations and other land transfer mechanisms, which call for separate votes in affected communities.

Foes prepping arguments

If the town of Waukesha foregoes an immediate appeal, the petition will undergo intense scrutiny by the Incorporation Review Board.

Walt and the town intend to show that the proposed village could provide a high level of service to its residents at a reasonable tax rate, and that the village would benefit from the additional powers of an incorporated municipality - including greater autonomy over its zoning and land-use planning, protection against annexation, the ability to provide tax-incremental financing and more.

Gov. Scott Walker earlier this year signed special legislation allowing the town of Brookfield to create a TIF district to fund a proposed $100 million Poplar Creek development on land that includes the abandoned Menard's store, WestPoint theaters and other property along Bluemound Road. An upscale $25 million Von Maur department store would anchor the open-air retail and office development that would resemble Glendale's Bayshore Town Center. It would include a street grid with curbside parking spaces and a town square.

Opponents of the petition have their arguments in line, as well.

City of Waukesha attorney Curt Meitz argued Jan. 12 that the incorporation would harm Waukesha by preventing its logical expansion and eliminating extraterritorial control it now has.

Likewise, Hoffer says the loss of 288 acres would negatively impact the remaining town of Waukesha residents' tax base, and therefore, tax rate.

Flaherty and Hoffer said they would argue that the petition fails to meet statutory requirements for incorporation. For instance, there are pockets of the town of Brookfield that would not be incorporated, and those pockets aren't cohesive enough to function as their own entity.

"The review board will determine whether the remainder of the unincorporated area will constitute a viable government," he said. "Clearly the islands being left of the town of Brookfield won't constitute a viable government."

Hammes said those pockets would remain the town of Brookfield if incorporation occurs.

"Realistically, it's small, isolated areas that likely would get absorbed by the city of Brookfield," he said.

The city of Brookfield has not considered annexing those individual areas, Flaherty said.

Public campaign to begin

Walt said he and the Town Board have been working tirelessly for months preparing the documentation the review board will need.

Those documents will outline the expected tax implications for those involved, expected service levels within the community and more.

As the legal process moves forward, there's also a need to work on educating the potential referendum voters about the impacts of incorporation.

Hammes said he believes incorporation just makes sense.

"(The town of Brookfield) has all the municipal services a village or city has," he said. "It's a town in name only."

The review process is expected to take about six months, and will include a public hearing.