HIGGINBOTHAM, J.
¶ 1 The Town of Waukesha appeals an order of the circuit court dismissing the Town from these proceedings. The Town also appeals an order denying the Town's motion to dismiss a petition for incorporation of a village comprised of portions of two towns.
¶ 2 Regarding the question of whether the circuit court erred in dismissing the Town, we conclude that the circuit court erroneously dismissed the Town from these proceedings and we reverse the circuit court's order.
¶ 3 Turning to the denial of the Town's motion to dismiss the petition, the Town argues that the court erred in failing to reach the following conclusions: (1) the incorporation petition fails to meet the minimum signature requirement under WIS. STAT. § 66.0203(2)(a) (2011-12);
¶ 4 As to the third minimum-area-requirement argument, the Town argues that the requirement was not met here because the area sought to be incorporated
¶ 5 In a separate argument first raised by the Town on appeal in a motion for reconsideration, the Town argues that recent amendments to the incorporation statutory scheme created by 2013 Wis. Act 38 ("Act 38") do not permit the incorporation of territory from two towns unless each town approves the incorporation and, here, the Town did not approve the incorporation of the pertinent part of its territory. We conclude that this issue is not ripe in this appeal, because under our interpretation of the new Act 38 statutes, circuit courts reach this issue only after the incorporation review board grants the petition for incorporation, and this case has not yet reached that stage. On a related issue, Walt argues that the retroactivity provision of Act 38 would be unconstitutional as applied to him because that would deny him his due process rights. We conclude that this argument is not properly before us, because the incorporation review board has yet to make a determination on the incorporation petition.
¶ 6 Accordingly, we affirm in part, reverse in part, and remand to the circuit court with directions.
¶ 7 James J. Walt commenced an incorporation proceeding, pursuant to WIS. STAT. § 66.0203, for the incorporation of 4.075 square miles of portions of the Town of Waukesha and an adjacent town, to create a municipal village. On December 5, 2011, Walt filed the petition in circuit court and subsequently gave notice of the filing of the petition to various municipalities in the area, including the Town of Waukesha. The notice stated that a hearing on the petition would be held on January 12, 2012.
¶ 8 After receiving notice of the petition, on December 27, 2011, the Waukesha town board held a meeting at which it unanimously approved a motion authorizing the Town's attorneys to intervene in the incorporation proceedings and oppose incorporation. Thereafter, the Town and the City of Waukesha each filed motions with the circuit court to intervene and to dismiss the petition.
¶ 9 On January 12, 2012, the circuit court held a hearing on the petition to incorporate, at which the court considered the Town's motions to intervene and to dismiss the petition to incorporate. With respect to the motions to intervene, the court asked Walt whether he objected to the participation of any of the parties present at the hearing. Walt stated that he had no objections, but noted that the court file contained insufficient documentation that the City of Waukesha and the Town authorized their participation in the proceedings. Walt requested that the court require both the Town and City to file "appropriate authorization or documents evidencing authorization."
¶ 10 In response to Walt's request for documentation of authorizations from the Town and City, the court stated it would allow the attorneys for each body to participate in the hearing "contingent upon" the bodies subsequently filing with the court
¶ 11 Neither the Town nor the City objected to providing the court with the documentation. A January 30 written order from the court stated that the Town's motion to intervene in the proceeding was granted, subject to the Town filing "within fourteen days of the date [January 12] of the hearing, a resolution or other documents authorizing [the Town] to participate as a party in this litigation."
¶ 12 Following the hearing on the incorporation petition, the circuit court denied the motions to dismiss the petition and referred the petition to the incorporation review board of the Wisconsin Department of Administration to consider whether the standards for incorporation under WIS. STAT. § 66.0207 were met.
¶ 13 On January 17, 2012, the town board held a meeting at which the board adopted a resolution stating that the board "hereby re-affirms its prior intent as reflected in its prior resolution dated [December, 27, 2011] and authorizes the Town Attorney ... to intervene" and oppose the proposed incorporation. The Town filed the January 17 resolution with the court on January 19, 2012, within the fourteen-day time period set by the court.
¶ 14 Walt filed a motion to dismiss the Town from the proceedings on the ground that the town board had not authorized the attorneys to represent the Town at any time prior to the January 12 hearing. Walt rested his argument in part on WIS. STAT. § 66.0203(5), which states that a "governmental unit entitled to notice ... found by the court to be a party in interest may become a party to the proceeding prior to the time set for the hearing." Walt argued that the Town failed to qualify as a party "prior to the time set for the hearing." Walt also argued that, under Wisconsin case law, authorization for a municipality to participate in litigation where the decision to do so is discretionary must be given prior to the municipality participating in the litigation, and that here, the town board did not authorize the Town to intervene until after the January 12 hearing.
¶ 15 The Town argued that it had complied with the court's condition of appearance, set at the January 12 hearing and contained in the January 30 order, by submitting to the court, within the fourteen-day time limitation set by the court, the resolution of January 17, 2012, noting and explicitly reaffirming the Town's December 27, 2011 authorization to intervene through adoption of an oral motion. As part of this argument, the Town contended that there was no requirement in the law that oral approval of a motion by a town board authorizing intervention was not sufficient to establish authorization to intervene, and therefore the Town had no reason to believe that the January 17 resolution would not be sufficient to establish
¶ 16 At the hearing on Walt's motion to dismiss, the circuit court granted Walt's motion on the ground that the Town had failed to timely file, as required by the court's order, "a resolution or other documents" establishing that the town board had authorized the Town to intervene before the January 12 hearing. The court concluded that the only timely submission by the Town was insufficient because it proved only that the board's authorization was effective on January 17, when the board adopted the January 17 resolution. The court concluded that its January 30 order required the Town to produce a written document that was in existence prior to the January 12 hearing and that established the town board's authorization to intervene.
¶ 17 In May 2012, the parties stipulated to a stay of the proceedings before the incorporation review board could act. The stay remains in effect and the Town of Waukesha appeals.
¶ 18 The Town argues that the circuit court erroneously dismissed it from the incorporation proceedings because it met the conditions set by the court for intervention. We agree. Our agreement is based on our interpretation of the court's order setting conditions the Town was required to meet in order to intervene in this case and on our rejection of Walt's alternative argument supporting dismissal of the Town. For the reasons that follow, we conclude that, construing the January 30 order under a plain language interpretation, the Town complied with the court's conditions for intervention.
¶ 19 We interpret court orders as we do other written instruments. See Jacobson v. Jacobson, 177 Wis.2d 539, 546, 502 N.W.2d 869 (Ct.App.1993) (interpreting a written judgment). Because we review court orders as we do other written instruments, we independently interpret the court's order. See id. at 547, 502 N.W.2d 869; see also Fessler v. Fessler, 147 Wis.2d 1, 8, 432 N.W.2d 103 (Ct.App. 1988) (interpreting an unambiguous judgment from the circuit court under the de novo standard of review). "[W]e begin with the plain language of the [order]" and "[w]e only turn to extrinsic evidence when the plain terms ... are ambiguous." BV/ B1, LLC v. InvestorsBank, 2010 WI App 152, ¶ 25, 330 Wis.2d 462, 792 N.W.2d 622. If we determine that the order's language is unambiguous, we "end[] with the language" of the order. Town Bank v. City Real Estate Dev., LLC, 2010 WI 134, ¶ 39, 330 Wis.2d 340, 739 N.W.2d 476. We conclude that the language of the order is unambiguous.
¶ 20 As noted above, the January 30 written order tracks the court's oral pronouncement at the January 12 hearing, in establishing the conditions the Town was required to meet in order to intervene. The court granted the Town's motion to intervene contingent upon the Town "filing with the Court, within 14 days of the date of the [January 12] hearing, a resolution or other documents authorizing [the Town] to participate as a party in this litigation." We interpret the order as unambiguously setting two, and only two, conditions that the Town had to satisfy in order to intervene: (1) the Town had to produce one or more documents that reflected authorization by the town board for the Town to intervene, and (2) the document(s) had to be filed with the court within fourteen days of the January 12 hearing. Notably, and contrary to the circuit court's apparent assumption, we do not see language in
¶ 21 Looking at the two conditions that were imposed and, turning to the Town's submission of January 19, we conclude that the Town complied. The January 17 resolution evidences town board authorization on December 27 (albeit reaffirmed on January 17) and the document was timely filed.
¶ 22 On appeal, Walt seems to argue that, regardless of conditions imposed by the circuit court, case law and statutory law support the circuit court's decision to dismiss the Town as a party. The problem with this alternative argument is that it wrongly assumes that the Town failed to present evidence that its participation was authorized prior to the January 12 hearing. Specifically, Walt argues that, under Town of Nasewaupee v. City of Sturgeon Bay, 77 Wis.2d 110, 251 N.W.2d 845 (1977), and the plain language of WIS. STAT. § 66.0203(5), authorization for a municipality to participate in litigation where the decision to do so is discretionary must be given prior to the municipality participating in the litigation, and that here, the town board did not authorize the Town to intervene until after the January 12 hearing. We need not weigh in on whether Town of Nasewaupee and § 66.0203(5) impose this requirement (much less how such a requirement can be met) because, even if these sources do impose such a requirement, it is met here. As we have indicated, the Town submitted evidence showing that the town board authorized the Town's participation on December 27, 2011, well before the January 12 hearing.
¶ 23 For these reasons, we conclude that the circuit court erred in dismissing the Town from these proceedings. Because the authorization issue was the only basis for dismissing the Town as a party, we reverse the order dismissing the Town.
¶ 24 As we have indicated, the Town argues that the circuit court erred in denying the motion to dismiss the petition because the petition fails to meet the signature requirement and does not set forth facts substantially establishing the requirements for incorporation. See WIS. STAT. §§ 66.0203(2)(a) (signature requirement), 66.0203(2)(c) (factual requirement). In his response brief, Walt correctly observes that the Town did not make either of these arguments in the circuit court.
¶ 26 The Town argues that the circuit court erroneously concluded that the four-square-mile minimum area requirement was met, as set forth in WIS. STAT. § 66.0205(5), and consequently the court erred in denying the Town's motion to dismiss the petition.
¶ 27 As we have indicated, it is undisputed that the entire territory sought to be incorporated consists of more than four square miles, but that the area sought to be incorporated from each town, standing alone, is less than four square miles. Thus, in order to meet the minimum area requirement here, it is necessary to count the areas sought to be incorporated from both towns together.
¶ 28 As stated above, the procedure for incorporating a village is governed by statute. See Whitten v. City of Milwaukee, 267 Wis. 481, 482, 66 N.W.2d 333 (1954); WIS. STAT. §§ 66.0201-0211. We find no language in the incorporation statutory scheme requiring boundary agreements as a prerequisite to the joining of territory from two towns for the purpose of incorporating as a village. And, as we have indicated, the Town does not direct our attention to any supporting statutory language, or any other support for that matter.
¶ 29 The Town argues that recent amendments to the incorporation statutory scheme created by Act 38 do not permit the incorporation of territory from two towns unless both towns approve the incorporation, and here, the towns did not approve the incorporation of the pertinent part of their territories. [Blue Supp1:3] As we discuss in greater detail in the following paragraphs, the new statutes apply here. However, we conclude that the question of whether the approval requirement is satisfied is not ripe for our consideration.
¶ 30 In enacting Act 38, the legislature created two additional requirements to the incorporation process set forth in the current version of WIS. STAT. § 66.0203 (through 2013 Wis. Act 380, October 4,
The legislature also amended subsection (9) in the following way, as pertinent, to address the timing of dismissals of petitions:
¶ 31 In addressing this issue we must construe and apply the current version of WIS. STAT. § 66.0203 (2014) to the facts of this case. Statutory interpretation is a question of law subject to de novo review. Harnischfeger Corp. v. LIRC, 196 Wis.2d 650, 659, 539 N.W.2d 98 (1995).
¶ 32 As we have stated previously, when interpreting a statute, we begin with the statutory language. State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, ¶ 45, 271 Wis.2d 633, 681 N.W.2d 110. If the meaning of the statute is plain, we ordinarily stop the inquiry and apply that meaning. Id.
¶ 33 Applying these principals of statutory interpretation, we conclude that the amendments to WIS. STAT. § 66.0203 (2014) apply to this case. The Town points to § 3 of Act 38, which provides that the "act first applies to an incorporation petition filed with a circuit court but that has not been granted by the incorporation review board on the effective date of this subsection." The effective date of Act 38 was July 6, 2013. See 2013 Wis. Act 38. On that date, the incorporation petition at issue had not yet been acted on by the incorporation review board. As we indicated, the Town and Walt stipulated to stay these proceedings, a stay that remains in effect. Thus, under a plain language interpretation of § 3 of Act 38, the amendments created by the Act apply to this case.
¶ 34 Turning to the merits of the Town's argument that the circuit court erred by denying the Town's motion to dismiss the incorporation petition, we conclude that this issue is not ripe at this stage of the incorporation proceedings.
¶ 35 Both the Town and Walt agree that, under a plain language interpretation of WIS. STAT. § 66.023(4m) and (9)(f) (2014), when the provisions are read together, the court's authority to determine whether the two town boards have adopted resolutions approving the incorporation is triggered only after the incorporation review board has granted the Town's petition. As we stated previously, the incorporation review board has not acted on the petition. Thus, the review board has not determined whether the petition meets the statutory requirements set forth in WIS. STAT. § 66.0207. Only after the review board has granted the petition may the court determine whether the two town boards have
¶ 36 Walt raises an additional issue regarding the amendments in Act 38. Walt contends that the retroactive application of new requirements in WIS. STAT. § 66.0203 (2014) is unconstitutional as applied to him because he has a vested property right in the incorporation proceedings and retroactive application denies him his due process rights. This is also a premature argument.
¶ 37 In response to Walt's argument, we understand the Town to argue that we should not address the constitutionality of the application of WIS. STAT. § 66.0203(4m) and (9)(f)2 (2014) to Walt because Walt's incorporation petition has not been considered by the incorporation review board.
¶ 38 We agree with the Town that the constitutional issue Walt raises on this appeal is not properly before us at this time. As explained above, the amendments to WIS. STAT. § 66.0203 (2014) do not require the circuit court to determine whether the two towns have approved the incorporation petition until after the incorporation review board has granted the petition. Because the review board has not made a determination on Walt's petition, the new statutory provisions have not been applied to Walt and, depending on future events, may never be applied to Walt. At this stage in these proceedings, there is no constitutional issue for this court to consider.
¶ 39 Based on the foregoing, we conclude that the circuit court erred in dismissing the Town as an intervening party to the incorporation proceedings. We also conclude that the Town has forfeited its arguments that (1) the incorporation petition fails to meet the minimum signature requirement under WIS. STAT. § 66.0203(2)(a), and (2) the petition fails to set forth facts substantially establishing the required standards for incorporation as required by § 66.0203(2)(c), because these issues were not raised in the circuit court. As for whether the circuit court erred in denying the Town's motion to dismiss the petition, we conclude that there is no language in the incorporation statutory scheme, set forth in WIS. STAT. ch. 66, that requires two towns with territory that is the subject of an incorporation petition to enter into a boundary agreement in order to meet the minimum area requirement. In addition, we conclude that the Town's argument that the amendments in WIS. STAT. § 66.0203(2014) do not permit the incorporation of territory from two towns unless both towns approve the incorporation is not ripe in this appeal, because under our interpretation of the new Act 38 statutes, circuit courts reach the issue of whether to dismiss an incorporation petition only after the incorporation review board grants the petition for incorporation, and this case has not yet reached that stage. Regarding Walt's as-applied constitutional challenge to the retroactive
Orders affirmed in part; reversed in part and cause remanded with directions.