author: BROWN, J. SNYDER, J.

text:
    Columbus Park Housing Corporation, Plaintiff-Respondent, v. City of Kenosha, Defendant-Appellant.

    Court of Appeals

      No. 02-0699.

      Submitted on briefs September 12,2002. —
    Decided November 20, 2002.

    2002 WI App 310
    (Also reported in 655 N.W.2d 495.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Robert I. DuMez of O'Connor & Willems, S.C., of Kenosha.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of David L. Kinnamon, Anthony A. Tomaselli and David C. Swanson of Quarles & Brady, LLP, of Madison.
    Before Brown, Anderson and Snyder, JJ.

       Petition to review granted 4-22-03.

   BROWN, J.

¶ 1. Columbus Park Housing Corporation, a nonstock, nonprofit organization that rehabilitates and provides housing for qualified low-income residents of the City of Kenosha, seeks an exemption from'real property taxes pursuant to Wis. Stat. § 70.11 (1999-2000) for properties it leased to low-income individuals in 1998 and 1999. In the years in question, Columbus Park used all of its gains and profits for benevolent purposes and devoted all of its leasehold income to the maintenance and construction debt retirement of its leased properties. The City argues that because four of Columbus Park's properties showed a positive net income in 1999, it could not have used the leasehold income from those four properties for maintenance and debt retirement on those particular properties and therefore Columbus Park has not satisfied the dictates of § 70.11. The City also contends that because Columbus Park leases its properties to nonexempt individual tenants it does not exclusively use the properties and has not satisfied the eligibility requirements for a tax exemption.

¶ 2. We hold that Wis. Stat. § 70.11 requires an aggregate analysis of an exempt organization's use of its leasehold income and because Columbus Park used all of its rental income for maintenance and debt retirement, it has satisfied the statutory requirements. We also conclude that Columbus Park exclusively used its properties for benevolent purposes and the term "lessee" should not be so technically defined so as to preclude Columbus Park from receiving a tax exemption. We therefore affirm the trial court's judgment granting a tax exemption for the properties in question.

¶ 3. The following facts are relevant to this appeal. The parties do not contest that Columbus Park is a benevolent association within the meaning of Wis. Stat. § 70.11(4). With the exception of the rental unit the executive director of the organization occupies, Columbus Park leases the homes it has rehabilitated to low-income families who are able to pay "market rate" rents through participation in the federal rent subsidy program under Section Eight of the Federal Fair Housing Act.

¶ 4. In 1998, Columbus Park claimed exemptions from property tax pursuant to Wis. Stat. § 70.11 for sixteen separate properties it owns. During the 1998 calendar year, none of the leased properties had a positive net income. In her affidavit, Columbus Park's executive director stated that in 1998, the organization used all of the leasehold income received from its tenants and all of the lease subsidies obtained from the United States Department of Housing and Urban Development for maintenance and construction debt retirement of the leased properties or both.

¶ 5. The City determined that Columbus Park was actively rehabilitating four of the sixteen properties and thus only those four qualified for exemptions. The City issued real estate property tax bills for the remaining twelve properties, which were leased to qualified low-income families or were substantially rehabilitated and ready for occupancy. Columbus Park did not pay the tax bills and the City treats them as delinquent.

¶ 6. In 1999, Columbus Park again claimed tax exemptions pursuant to Wis. Stat. § 70.11 for nineteen of its properties. In the 1999 calendar year, four of the leased properties had a positive net income, but the leased properties in the aggregate had a negative net income. According to the organization's executive director, in 1999 Columbus Park used all of the leasehold income received from its tenants and all of the lease subsidies acquired from the United States Department of Housing and Urban Development for maintenance of the leased properties, construction debt retirement of the leased properties, or both.

¶ 7. The City once again granted exemptions for the three properties Columbus Park was actively rehabilitating, but denied exemptions for those that tenants occupied or were rehabilitated and ready for occupancy Columbus Park paid the property taxes under protest and filed a claim for a refund. The claim was deemed disallowed and Columbus Park commenced an action to recover the 1999 taxes and requested a. declaratory judgment that the properties were exempt from taxation in 1998. The circuit court granted Columbus Park's motion for summary judgment finding that Columbus Park was a benevolent association whose properties were exempt from Wisconsin property tax for 1998 and 1999 under Wis. Stat. § 70.11 and 70.11(4). The City appeals from this judgment.

¶ 8. We review summary judgment determinations de novo, applying the same standards as the circuit court. Ahrens v. Town of Fulton, 2000 WI App 268, ¶ 7, 240 Wis. 2d 124, 621 N.W.2d 643, aff'd, 2002 WI 29, 251 Wis. 2d 135, 641 N.W.2d 423. Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Wis. Stat. § 802.08(2).

¶ 9. Because the parties do not dispute the facts, the only issues before us require construction of Wis. Stat. § 70.11. The construction of statutes is a question of law. Trustees of lnd. Univ. v. Town of Rhine, 170 Wis. 2d 293, 298, 488 N.W.2d 128 (Ct. App. 1992). Similarly, the application of a statute to an undisputed set of facts presents a question of law. Id. We review questions of law independently and without deference to the conclusions reached by the circuit court. Id. at 299.

¶ 10. In Wisconsin, the taxation of property is the rule and exemption from taxation is the exception. Id. at 299. Generally, we apply a "strict but reasonable construction" to tax-exemption statutes. Detitsches Land, Inc. v. City of Glendale, 225 Wis. 2d 70, 80, 591 N.W.2d 583 (1999). Because exemption from the payment of taxes is an act of legislative grace, the burden of showing that the property in question is exempt from taxation is on the party claiming the exemption, and the court is to resolve all doubts against the exemption and in favor of taxability. First Nat'l Leasing Corp. v. City of Madison, 81 Wis. 2d 205, 208, 260 N.W.2d 251 (1977).

¶ 11. Columbus Park seeks an exemption from real property taxes for the years 1998 and 1999, claiming that it is entitled to such under Wis. Stat. § 70.11(4). The pertinent statutory language is as follows:

70.11 Property exempted from taxation. The property described in this section is exempted from general property taxes .... Leasing a part of the property described in this section does not render it taxable if the lessor uses all of the leasehold income for maintenance of the leased property, construction debt retirement of ■ the leased property or both and if the lessee would be exempt from taxation under this chapter if it owned the property....
(4) Educational, Religious and benevolent institutions; women's CLUBS; HISTORICAL SOCIETIES; FRATERNITIES; LIBRARIES. Property owned and used exclusively by ... benevolent associations ... but not exceeding 10 acres of land necessary for location and convenience of buildings while such property is not used for profit....

Our supreme court has stated that in order to qualify for an exemption under § 70.11(4), an organization must show three facts: (1) that it is a benevolent organization, (2) that it owns and exclusively uses the property, and (3) that it uses the property for exempt purposes. Deutsches Land, 225 Wis. 2d at 82. Where an exempt organization leases a portion of its properties, it must also satisfy the two additional eligibility requirements set forth in the preamble of the statute. Id. at 93.

¶ 12. The City stipulates that Columbus Park is a benevolent association within the meaning of Wis. Stat. § 70.11(4). Therefore, according to our supreme court's construction of § 70.11 we must address two issues: (1) Did Columbus Park exclusively use the properties for benevolent purposes? (2) Did Columbus Park satisfy the eligibility requirements for an exemption of its properties under the preamble to § 70.11?

¶ 13. Whether property for which a benevolent organization seeks a tax exemption is "used exclusively" by the benevolent organization is a fact-specific question, which can be answered only on a case-by-case basis. See Deutsches Land, 225 Wis. 2d at 84. The City argues that Columbus Park has not satisfied the "used exclusively" requirement of Wis. Stat. § 70.11(4) because the tenants, and not Columbus Park itself, make exclusive physical use of the property. In support of its argument, the City cites Dominican Nuns v. City of La Crosse, 142 Wis. 2d 577, 419 N.W.2d 270 (Ct. App. 1987), which defines "exclusive use" as "physically employing] the tangible characteristics of the property." See id. at 580.

¶ 14. The City's reliance on Dominican Nuns is misplaced. First, the facts are distinguishable. There, the religious order had vacated the property, listed it for sale, and permanently relocated elsewhere. Id. at 581. We concluded that because the property was not used for any of the order's regular activities or benevolent purposes and in fact was "wholly vacant and unoccupied," the property was no longer "used exclusively" by the order within the meaning of Wis. Stat. § 70.11(4). Dominican Nuns, 142 Wis. 2d at 581. This is not the situation before us. Columbus Park has not vacated the properties; it leases the properties to its low-income tenants in furtherance of its charitable mission.

¶ 15. Second, in Deutsches Land, our supreme court clarified the apposite inquiry for determining whether a nonprofit organization qualifies for an exemption. Deutsches Land teaches that in order to satisfy the dictates of Wis. Stat. § 70.11(4), a tax-exempt organization must demonstrate that it both owned the property and used the property exclusively for benevolent purposes. Deutsches Land, 225 Wis. 2d at 88 (citing Dominican Nuns for support of this interpretation of § 70.11(4)). The organization claiming the exemption bears the burden of showing its actual benevolent uses of its properties. See Deutsches Land, 225 Wis. 2d at 88. Thus, when determining whether an exempt organization's real property satisfies the exclusive use requirement of the statute, the court must focus on the correlation between the entity's actual uses of the property and its benevolent tax-exempt purposes.

¶ 16. Columbus Park's rental of its properties bears a direct relationship to its benevolent purposes. Its mission is to improve the living conditions of the poor and underprivileged in the city by providing and maintaining safe, decent and affordable housing. By leasing its properties to its qualified low-income tenants, Columbus Park is fulfilling this mission. Columbus Park charges its tenants rent based upon their ability to pay and receives the remainder of the rent by participating in the federal rent subsidy program under Section Eight of the Federal Fair Housing Act. Columbus Park uses all gains or profits from the properties exclusively for the benevolent purposes of the organization. Further, Columbus Park relies upon at-risk groups within the community to perform the labor for the rehabilitation of the properties. We therefore conclude that Columbus Park has met its burden of showing that it exclusively used the properties in question for benevolent purposes in both 1998 and 1999.

¶ 17. The City next argues that Columbus Park failed to satisfy the eligibility requirements for tax exemption under the preamble to Wis. Stat. § 70.11. In construing the preamble and the relevant subsection, our supreme court has held that an exempt organization may lease a part of its property and still be exempt from property taxes on that leased portion so long as the following conditions are met: (1) the exempt organization must use the leasehold income for maintenance of the property, construction debt retirement, or both and (2) the lessee would itself be entitled to an exemption if it owned the property. Deutsches Land, 225 Wis. 2d at 93. If an exempt organization fails either the rent use or the lessee identity conditions, it loses its tax-exempt status on the leased portion of its properties. Id. at 94.

¶ 18. We first address the City's contention that Columbus Park has not satisfied the preamble's rent use condition. The City granted tax exemptions for the properties under rehabilitation, but denied exempt status to all of the properties Columbus Park had already leased. The parties stipulated that in 1998 and 1999, Columbus Park did not show a positive net income on its leased properties taken together. In her affidavit, Columbus Park's executive director asserted that the organization used all of its leasehold income for maintenance and debt retirement for its properties for both 1998 and 1999. The City did not refute her assertion. Rather, the City seems to contend on appeal that because four of Columbus Park's properties had a positive net income in 1999, the leasehold income from the four individual properties could not have been used for maintenance or debt reduction on those specific properties and thus Columbus Park is not entitled to a tax exemption on any of its leased properties for that year.

¶ 19. The language of the preamble to Wis. Stat. § 70.11 is straightforward. It requires an exempt organization to use all of the leasehold income it receives strictly for maintenance of the property it leases and construction debt retirement of that property. See § 70.11(4). Obviously, if an organization uses the income for any other purpose, it loses the property tax exemption. Deutsches Land, 225 Wis. 2d at 93-94.

¶ 20. However, statutory language unambiguous on its face can sometimes be rendered ambiguous by the context in which it is sought to be applied. State v. Ramirez, 2001 WI App 158, ¶ 12, 246 Wis. 2d 802, 633 N.W.2d 656, review denied, 2001 WI 114, 246 Wis. 2d 176, 634 N.W.2d 321 (Wis. Aug. 27, 2001) (No. 00-2605-CR). If the statutory language is unclear or ambiguous, the court may look to the scope, history, context, subject matter and object of the statute to determine the legislative intent. State v. Head, 2002 WI 99, ¶ 82, 255 Wis. 2d 194, 648 N.W.2d 413. It is not altogether clear from the four corners of the statute whether the legislature intended for the rent use condition to be applied to each individual leased property as the City appears to argue or to a tax-exempt organization's leasehold property in the aggregate. We therefore look beyond the plain language of the statute to determine the legislature's intent.

¶ 21. Wisconsin has long exempted from taxation the real property of a benevolent association used exclusively for benevolent purposes and not for profit. Milwaukee Protestant Home for the Aged v. City of Milwaukee, 41 Wis. 2d 284, 292, 164 N.W.2d 289 (1969). However, the court has not required that tax-exempt organizations operate at a loss. The court has recognized the gain or profit that destroys the benevolent nature and character of the institution is profit to someone other than the benevolent institution itself. Id. at 297. As the court observed in Order of the Sisters of St. Joseph v. Town of Plover, 239 Wis. 278, 283-84, 1 N.W.2d 173 (1941):

The respondent's claim is to the effect that the River Pines Sanatorium should be taxed on the ground that it aims to operate at a profit.... [A]ll benevolent institutions endeavor so to operate. But as the profit made by these institutions, if any, is payable to nobody, but is only turned back into improving facilities or extending the benevolence in which the institutions are primarily engaged, the profit element becomes immaterial.

Thus, it is the organization's use of the properties and their profits and not whether an individual property earns a profit that has been the focus of the court's inquiries.

¶ 22. In construing the rent use condition, our supreme court seems to indicate that the focus should be on the organization's use of the leasehold income, "[i]f the exempt organization uses the rental income in ways other than [for maintenance or debt retirement], no exemption can be claimed on the leased part of the property." Deutsches Land, 225 Wis. 2d at 93 (emphasis added). The court appears to be addressing the concern that the organization would earn a profit and then use the income for purposes unrelated to its benevolent use of the property. Thus, the proper inquiry is not whether an individual property shows a profit, but rather, it is whether the benevolent organization earns a profit from all of its leasehold property and fails to use the income for the specified exempt purposes. We therefore hold the preamble's rent use condition requires an aggregate analysis of the tax-exempt entity's use of its leasehold income.

¶ 23. This conclusion is consistent with the basic purpose and objective of the Wisconsin tax-exemption statute. In Catholic Woman's Club v. City of Green Bay, 180 Wis. 102, 104, 192 N.W. 479 (1923), our supreme court set forth the statute's objective and purpose:

The statute of exemptions for taxation ... is not difficult of construction. Its intent is plain. It would encourage benevolence, charity, religion, education, and fraternity. It recognizes these qualities of mind and • character as essential to a well-ordered state whose principal object is the general welfare or common good. [Catholic Woman's Club] is a corporation engaged in promoting charity, benevolence, education, and fraternity — not one but nearly all of the objects of the statute. Its property has been wholly acquired by charitable gifts. It makes no profits for any purpose. Its receipts are all devoted to its general purposes above enumerated. No dividend has ever been declared, nor is any in contemplation.
To deny that the [Catholic Woman's Club] comes within the statute of exemptions [Wis. Stat. § 70.11(4)] is to deny the purpose of the statute.

The purpose of the statute, the promotion of charitable activities, is defeated only where a tax-exempt organization is permitted to earn a profit on its properties and use the profit for activities unrelated to its benevolent purposes. Where a tax-exempt organization does not profit from its properties in the aggregate and uses all receipts for exempt purposes, the fact that the organization realizes some margin of income in leasing an individual property and still retains its tax-exempt status does not militate against the objectives underlying the statute, but rather, upholds them.

¶ 24. We now turn to the facts of this case. Columbus Park leases all of its properties solely in furtherance of its exempted benevolent activities. Columbus Park endeavors to improve the living conditions of Kenosha's poor and underprivileged by directly leasing the rehabilitated homes to its low-income tenants who otherwise could not afford decent housing. Despite the positive net income shown on four of its properties, Columbus Park does not earn a profit by leasing its properties overall and devotes all of its rental income to the maintenance and debt retirement of all the properties it leases. If the City wished to challenge this fact, it should have filed an affidavit refuting Columbus Park's assertions. We therefore hold that Columbus Park has demonstrated that it satisfied the rent use element of the preamble to Wis. Stat. § 70.11.

¶ 25. The final issue we address is the City's argument that Columbus Park failed to satisfy the lessee identity prong of the preamble because its individual tenants would not be entitled to an exemption if they owned the property. Columbus Park acknowledges that its low-income tenants, who are not tax-exempt organizations, sign the leases, but counters that because the Kenosha Housing Authority exerts pervasive control over its rentals, the Authority is the tenant in fact, which as a governmental entity would be entitled to the property tax exemption.

¶ 26. While we agree with the City that the Authority is not the true lessee of the properties within the technical definition of the term, the Authority's control is a relevant consideration in making a determination as to the ability of Columbus Park to qualify for an exemption. The strong interplay between the Authority and Columbus Park results in the ability of the low-income tenants to rent the homes. Columbus Park charges the tenants an amount of rent based upon their ability to pay, which is currently thirty percent of the occupant's income as determined by the United States Department of Housing and Urban Development. The Authority then pays to Columbus Park federal government subsidies, which bring the rents up to "market rates" as defined by the federal government. Columbus Park's tenants would not be able to rent the properties but for the Authority's subsidies. Even though the name on the lease is that of the low-income tenant, to pretend that Columbus Park's tenants are independent lessees ignores the role of the Authority in administering and subsidizing the tenants.

¶ 27. To apply the City's strict interpretation under the facts of this case would frustrate and defeat the legislative purpose in granting tax exemptions to benevolent associations such as Columbus Park and its intent in creating the lessee identity condition. In construing this portion of the preamble, our supreme court noted, "if the lessee itself is not an exempt organization but rather a for-profit organization, no exemption can be claimed on the leased part of the property." Deutsches Land, 225 Wis. 2d at 93. Deutsches Land seems to suggest that the "lessee" the statute is addressing is a for-profit entity, which presumably would not be using the property for benevolent purposes.

¶ 28. This is not a case where a for-profit lessee is occupying the property or the nonprofit entity is entering into the leases for pecuniary gain. Columbus Park rehabilitates homes and leases them to provide shelter to low-income individuals in furtherance of its tax-exempt benevolent purposes. The record demonstrates that Columbus Park derives no economic benefit or profit from its activities. The lessees in this instance do not pay "market rate" rents and could not even lease the properties without the assistance of the federal government.

¶ 29. Although statutes conferring tax exemptions are to be strictly construed, the construction must be reasonable. Friendship Village v. City of Milwaukee, 181 Wis. 2d 207, 219-20, 511 N.W.2d 345 (Ct. App. 1993). It would be an unreasonable construction of the term "lessee" in the context of this statute to apply it to the very individuals who are the objects of the tax-exempt activity. Consequently, we conclude that the term "lessee" should not be so technically defined so as to preclude the applicability of the tax exemption to Columbus Park. We therefore affirm the decision of the trial court and hold that Columbus Park is entitled to tax exemptions for the properties in question.

By the Court. — Judgment affirmed.

SNYDER, J.

¶ 30. (dissenting). The majority decision, in essence, holds the City hostage to the accounting practices of a benevolent association. Because a straightforward reading of the statutes requires a reversal of the trial court's decision, I respectfully dissent.

¶ 31. As the majority correctly noted, the taxation of property is the rule and exemption is the exception. Trustees of Ind. Univ. v. Town of Rhine, 170 Wis. 2d 293, 299, 488 N.W.2d 128 (Ct. App. 1992). Tax exemption statutes are matters of legislative grace and must be strictly construed against the granting of an exemption. St. Clare Hosp. of Monroe, Wis., Inc. v. City of Monroe, 209 Wis. 2d 364, 369, 563 N.W.2d 170 (Ct. App. 1997).

¶ 32. The majority inexplicably concludes that, despite the use of "property" in the singular, the statute is ambiguous as to whether the legislature intended its application to each individual property or all the property owned by the benevolent organization in the aggregate. Such a construction renders the application of the statute captive to the accounting methods utilized by the benevolent organization and would create inconsistent rules. A cardinal rule of statutory construction is that statutes must be construed to avoid an absurd or unreasonable result. State v. Mendoza, 96 Wis. 2d 106, 115, 291 N.W.2d 478 (1980). Subjecting a city's ability to tax an individual real estate parcel to a benevolent organization's overall accounting practices creates an absurd or unreasonable result. Furthermore, an ambiguous statute must be strictly construed against granting an exemption. DOR v. N. States Power Co., 212 Wis. 2d 300, 305, 571 N.W.2d 676 (Ct. App. 1997). If Wis. Stat. § 70.11 is ambiguous, it might be construed against Columbus Park in favor of the City.

¶ 33. In addition, in order to qualify for an exemption under Wis. Stat. § 70.11(4), an organization must demonstrate three factors: (1) that it is a benevolent organization; (2) that it owns and exclusively uses the property; and (3) that it uses the property for exempt purposes. Deutsches Land, Inc. v. City of Glendale, 225 Wis. 2d 70, 82, 591 N.W.2d 583 (1999). The last requirement, that the property be used for tax-exempt purposes, is met by demonstrating that (1) the exempt organization uses the leasehold income for maintenance of the property, construction debt retirement, or both and (2) the lessee would itself be entitled to an exemption if it owned the property. Id. at 93. The latter requirement has not been established here by Columbus Park.

¶ 34. Columbus Park directly leases its rehabilitated homes to low-income tenants. Columbus Park acknowledges that its low-income tenants are not tax-exempt organizations. However, the majority holds that the Kenosha Housing Authority's role in administering and subsidizing the tenants elevates it to lessee status sufficient to satisfy the above requirement that the lessee be entitled to a tax exemption if it owned the property. The majority cites no authority for such an assumption. The only names on the leases are those of the low-income tenants, not the Kenosha Housing Authority. The majority opinion acknowledges that the Kenosha Housing Authority is not the true lessee of the properties within the technical definition of the word. I fail to see how the Housing Authority's role in administering and subsidizing the tenants confers "lessee" status upon it.

       Although we acknowledge that the tax years in question predate the 1999-2000 version of the Wisconsin Statutes, we have determined that any differences between the applicable statutes are immaterial for purposes of this appeal. We therefore refer to the 1999-2000 version of the Wisconsin Statutes unless otherwise noted.

       The City cites to Deutsches Land, Inc. v. City of Glendale, 225 Wis. 2d 70, 591 N.W.2d 583 (1999), for this proposition; however, the court in Deutsches Land disposed of the matter without squarely addressing the issue with which we are presented. The pertinent portion of the court's discussion in Deutsches Land concerned a benevolent organization that entered into an oral lease with a for-profit entity for one part of its property. See id. at 88. Because the benevolent organization had not provided sufficient evidence of its exempt use of the property, the court did not reach the question of whether the organization had used all of its rental income for maintenance and construction debt retirement. See id. at 96-99.

       The City did not refute the executive director's statements by a counteraffidavit. Evidentiary matters in affidavits accompanying a motion are deemed uncontested when competing evidentiary facts are not set forth in counteraffidavits. Wis. Elec. Power Co. v. Cal. Union Ins. Co., 142 Wis. 2d 673, 684, 419 N.W.2d 255 (Ct. App. 1987).

       Columbus Park points out: The Authority: (1) requires new tenants of publicly-subsidized housing in the City to attend an orientation session that the Authority holds, (2) issues vouchers to income-qualified tenants that allows them to participate in the Section 8 housing program, (3) conducts an initial inspection of any Columbus Park rental unit selected by an income-qualified tenant to ensure compliance with applicable minimum housing standards, (4) conducts an annual inspection of Columbus Park's Section 8 rental units to ensure compliance with applicable minimum housing standards, (5) requires reports to be made by Section 8 tenants directly to the Authority showing any changes in monthly income, and (6) makes monthly adjustments to Section 8 tenants' rent subsidies based on changes in their income.


source: Caselaw Access Project

author: ANDERSON, J.

license: Public Domain

text:
    In the Interest of Terry T., a person Under the Age of 18: State of Wisconsin, Petitioner-Respondent, v. Terry T., Respondent-Appellant.
    Court of Appeals

      No. 02-2502.

      Submitted on a motion October 25, 2002.—

      Decided November 20, 2002.

    2003 WI App 21
    (Also reported in 657 N.W.2d 97.)

      On behalf of the respondent-appellant, the cause was submitted on the motion and supplemental letter brief of Michael Yovovich, assistant state public defender, Madison.
    On behalf of the petitioner-respondent, the cause was submitted on the briefs of Diane M. Resch, assistant district attorney.
    Before Brown, Anderson and Snyder, JJ.
   ANDERSON, J.

¶ 1. The juvenile court's order of May 6, 2002, placing Terry T. in a secure correctional facility is an "original dispositional order" since it is the first order based on the juvenile court's analysis of the suitability of placing Terry T. in a secure correctional facility. The juvenile court's order also extended placement from the previous expiration date of August 27, 2002, to the juvenile's eighteenth birthday on May 22, 2003. Since Terry T. was seventeen years of age on August 27, 2002, when the previous court order expired and Wis. Stat. § 938.355(4) (1999-2000) prohibits the extension of an "original dispositional order" — placing a juvenile in a secure correctional facility — that expires after the juvenile is seventeen years of age, we reverse that portion of the order extending placement until May 22, 2003.

¶ 2. This case was previously before us, and our decision is reported in State v. Terry T., 2002 WI App 81, 251 Wis. 2d 462, 643 N.W.2d 175. In that decision, we reversed the juvenile court's revision of a dispositional order that placed Terry T. in a five-year Serious Juvenile Offender Program (SJOP) placement. Id. at ¶ 1. On remand, the juvenile court amended the disposi-tional order by removing any reference to Terry T.'s placement in SJOI) ordering him placed in a correctional setting and amending the termination date of the dispositional order to August 27, 2002, the anniversary date of the original dispositional order.

¶ 3. The State then told the juvenile court that the Department of Corrections had filed a petition to extend the dispositional order until Terry T.'s eighteenth birthday on May 22, 2003. The State contended that because the juvenile court cannot extend a dispo-sitional order after a juvenile turns seventeen years of age, the petition for extension had to be filed and acted upon before Terry T.'s seventeenth birthday on May 22, 2002. Terry T.'s counsel objected on the grounds that the request for an extension came too soon. The juvenile court granted the State's motion: "I'm going to extend the modified order then for a year from his birthdate, which is the maximum allowed, to allow for hopefully an orderly reintegration into the community."

¶ 4. Terry T. filed a notice of appeal on September 18, 2002, and one week later he filed a Motion for Summary Reversal. Terry T. asserts that under the clear and unambiguous language of Wis. Stat. § 938.355(4) (a), if a corrections order terminates after a juvenile's seventeenth birthday, the order cannot be extended. He argues that since the dispositional order was revised to place him in corrections and to expire on August 27, 2002, no further extensions could be granted because his seventeenth birthday was May 22, 2002. The State counters that the clear language of § 938.355(4)(a) "allows the court to extend jurisdiction over a juvenile placed in a secure correctional facility beyond the age of seventeen as long as the order was extended before the juvenile's seventeenth birthday. Once the juvenile reaches the age of seventeen the dispositional order can no longer be extended."

¶ 5. After our initial review of this case, we rejected both Terry T.'s and the State's arguments that focus on the juvenile's seventeenth birthday as the center of their respective points of view. We concluded that the critical phrase in the statute is "original dispositional order"; and there is a critical distinction between an "original dispositional order" and an extended or revised dispositional order. In Terry T. we reversed the juvenile court's February 2001 change of placement and revision to the extension order of August 2000, because placement in SJOP could only occur as an original disposition. Terry T, 2002 WI App 81 at ¶ 13. The Juvenile Justice Code also recognizes that there is a difference between an "original dispositional order" and a revised or extended order; for example, an exception to the expiration of dispositional orders is made in Wis. Stat. § 938.368(1), which precisely speaks of "a dispositional order under s. 938.355 or an extension order under s. 938.365."

¶ 6. Because the parties had not addressed the importance of an "original dispositional order" to the resolution of the issue presented in the Motion for Summary Reversal, we requested that they submit supplemental briefs.

Section 938.355(4) refers to the "original disposition[al] order." There is a distinction between "original disposition[al] order" and an extended or revised order. See State v. Kendell G., 2001 WI App 95, 243 Wis. 2d 67, 625 N.W.2d 918; Wis. Stat. § 938.638(1). In State v. Terry T., 2002 WI App 81, ¶ 13, 251 Wis. 2d 462, 643 N.W.2d 175, we reversed because SJOP was not part of the "original disposition[al] order." We question whether the prohibition against extending a custodial placement disposi-tional order hinges on whether it is an original dispo-sitional order or an extended/revised order, rather than the age of the juvenile offender. The parties shall address this issue in their supplemental letter briefs.

We also changed this case from a one-judge appeal to a three-judge appeal, Wis. Stat. Rule 809.41(3), and offered the attorney general, on behalf of the State of Wisconsin, the opportunity to participate, which was declined.

¶ 7. On appeal, we are faced with an issue of statutory interpretation: whether the juvenile court can extend a dispositional order, placing the juvenile in a secure correctional facility, that expires after a juvenile reaches his or her seventeenth birthday. This is a question of statutory interpretation, which we review without deference to the juvenile court's conclusion. State v. Thomas, 2000 WI App 162, ¶ 7, 238 Wis. 2d 216, 617 N.W.2d 230. In State v. Longcore, 2001 WI App 15, ¶ 5, 240 Wis. 2d 429, 623 N.W.2d 201, review denied, 2001 WI 43, 242 Wis. 2d 546, 629 N.W.2d 785, we explained:

The goal of statutory interpretation is to determine and give effect to the legislature's intent. The primary source of interpretation is the statutory language itself. If the language is unambiguous, resort to extrinsic aid for purposes of statutory interpretation would be improper. If the language is clear and unambiguous oh its face, we merely apply that language to the facts at hand. (Citations omitted.)

¶ 8. Wisconsin Stat. § 938.355(4)(a) provides, in pertinent part:

[A]ll orders under this section shall terminate at the end of one year unless the court specifies a shorter period of time .... [Extensions or revisions shall terminate at the end of one year unless the court specifies a shorter period of time. No extension ... of an original dispositional order may be granted for a juvenile who is subject to an order [of correctional placement] if the juvenile is 17 years of age or older when the original dispositional order terminates. Any order made before the juvenile reaches the age of majority shall be effective for a time up to one year after its entry unless the court specifies a shorter period of time. (Emphasis added.)

¶ 9. The issue we must resolve is whether the juvenile court's order placing Terry T. in a secure correctional facility until his eighteenth birthday on May 22, 2003, is an "original dispositional order" or an extended or revised dispositional order. The brief answer is that it is an "original dispositional order" because it is the first order placing Terry T. in a secure correctional facility.

¶ 10.. In this case, the change in Terry T.'s placement, from the Homme Home, see Terry T, 2002 WI App 81 at ¶ 2, to a secure correctional facility required a request for a change in Terry T.'s placement under Wis. Stat. § 938.357(1) and (3). To move a juvenile, already under court supervision, to a secure correctional facility the statute requires:

Subject to sub. (4)(b) and (c) and (5)(e), if the proposed change in placement would involve placing a juvenile in a secured correctional facility, a secured child caring institution or a secured group home, notice shall be given as provided in sub. (1). A hearing shall be held, unless waived by the juvenile, parent, guardian and legal custodian, before the judge makes a decision on the request. The juvenile shall be entitled to counsel at the hearing, and any party opposing or favoring the proposed new placement may present relevant evidence and cross-examine witnesses. The proposed new placement may be approved only if the judge finds, on the record, that the conditions set forth in s. 938.34(4m) have been met.

Sec. 938.357(3).

¶ 11. The statute requires the juvenile court to make findings after an adversarial-type proceeding at which the juvenile is entitled to notice, to counsel, to cross-examine witnesses and to present relevant evidence in opposition to the proposed change in placement. The findings the juvenile court must make are the same findings that must be made when the juvenile court is considering an initial secure correctional facility placement under Wis. Stat. § 938.34(4m):

CORRECTIONAL PLACEMENT. Place the juvenile in a secured correctional facility or a secured child caring institution under the supervision of the department or in a secured group home under the supervision of a county department if the juvenile is 12 years of age or over or, if the juvenile is under 12 years of age, in a secured child caring institution under the supervision of the department or in a secured group home under the supervision of a county department, unless the department, after an examination under s. 938.50, determines that placement in a secured correctional facility is more appropriate, but only if all of the following apply:
(a) The juvenile has been found to be delinquent for the commission of an act which if committed by an adult would be punishable by a sentence of 6 months or more.
(b) The juvenile has been found to be a danger to the public and to be in need of restrictive custodial treatment. If the judge determines that any of the following conditions applies, but that placement in the serious juvenile offender program under sub. (4h) would not be appropriate, that determination shall be prima facie evidence that the juvenile is a danger to the public and in need of restrictive custodial treatment under this subsection:
1. The juvenile has committed a delinquent act that would be a felony under s. 940.01, 940.02, 940.03, 940.05, 940.19(2) to (6), 940.21, 940.225(1), 940.31, 941.20(3), 943.02(1), 943.23(lg), (lm) or (lr), 943.32(2), 947.013(lt), (lv) or (lx), 948.02(1) or (2), 948.025 or 948.03 if committed by an adult.
2. The juvenile has possessed, used or threatened to use a handgun, as defined in s. 175.35(l)(b), short-barreled rifle, as defined in s. 941.28(l)(b), or short-barreled shotgun, as defined in s. 941.28(1) (c), while committing a delinquent act that would be a felony under ch. 940 if committed by an adult.
3. The juvenile has possessed or gone armed with a short-barreled rifle or a short-barreled shotgun in violation of s. 941.28 or has possessed or gone armed with a handgun in violation of s. 948.60.

¶ 12. In Terry T.'s change of placement situation, this is the first time these findings have been made after an adversarial-type hearing. Because these findings are mandated for a change of placement to a secure correctional facility, the dispositional order implementing the change in placement is an "original dispositional order." An adversarial-type hearing and specific findings under Wis. Stat. § 938.34(4m) are not required when a dispo-sitional order is being extended, Wis. Stat. § 938.365; in fact, there is no requirement that the juvenile court revisit or restate the conditions in § 938.34(4m) that must be present to justify placement in a secure correctional facility.

¶ 13. Because we vacated the order placing Terry T. in SJOI) the juvenile court's order on remand (dated May 6, 2002), placing Terry T. in a secure correctional facility and extending his placement until May 22, 2003, was the first time the conditions of Wis. Stat. § 938.34(4m) were considered. For that reason, the order changing Terry T.'s placement to a secure correctional facility is an "original dispositional order." Wisconsin Stat. § 938.355(4)(a) provides that this "original dispositional order" cannot be extended beyond Terry T.'s seventeenth birthday, May 22, 2002. Consequently, the juvenile court erred when it granted the State's motion to extend Terry T.'s correctional placement from the original expiration date of August 27, 2002, until May 22, 2003. We remand with directions that the juvenile court amend its order of May 6, 2002, by striking the expiration date of May 22, 2003, and inserting an expiration date of August 27, 2002.

By the Court. — Order affirmed in part; reversed in part and cause remanded with directions.

       All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       We will not repeat the procedural and factual history set forth in that case, State v. Terry T., 2002 WI App 81, ¶¶ 1-4, 251 Wis. 2d 462, 643 N.W.2d 175.

       The original dispositional order in this case was entered on August 27, 1999, and was set to expire on August 27, 2000. Before the expiration date, the dispositional order was extended to August 27, 2001. In February 2001, the juvenile court revised the dispositional order to include a five-year SJOP placement at Ethan Allen School; the revised order was set to expire on August 27, 2006. See Terry T., 2002 WI App 81 at ¶¶ 2-3.


author: DYKMAN, J.

text:
    Patricia H. Roth, Petitioner-Respondent, v. LaFarge School District Board of Canvassers, Respondent-Respondent, Gail J. Muller, Third Party-Petitioner-Appellant.
    Court of Appeals

      No. 02-0542.

      Submitted on briefs August 9, 2002. —
    Decided November 21, 2002.

    2002 WI App 309
    (Also reported in 655 N.W.2d 471.)

      On behalf of the third-party-petitioner-appellant, the cause was submitted on the briefs of George C. Wilbur of LaFarge.

      On behalf of the petitioner-respondent, the cause was submitted on the brief of Christopher J. Blythe of Lawton & Cates, S.C. of Madison.
    On behalf of the respondent-respondent, the cause was submitted on the brief of David L. Jenkins of Jenkins and Stittleburg of Viroqua.
    Before Vergeront, EJ., Dykman and Deininger, JJ.

       Petition to review granted 5-5-03.

   DYKMAN, J.

¶ 1. This is an appeal from a judgment declaring that a school referendum passed by one vote. Gail Muller, a qualified voter of the district, contends that the trial court improperly disqualified a ballot which "looked erased" from the recount of votes cast. We conclude that Wis. Stat. § 7.50(2)(c) (1999-2000) defines an intent to vote whenever there is a mark in the space opposite the name of a candidate. We therefore reverse with directions to declare that the referendum resulted in a tie vote.

BACKGROUND

¶ 2. On November 7, 2000, a tie vote defeated a referendum proposing that LaFarge School District remodel its school buildings. Patricia Roth, a resident and qualified voter in the LaFarge School District, petitioned the board of canvassers for a recount pursuant to Wis. Stat. § 9.01. The recount resulted in another tie, after the board disqualified three "yes" votes and three "no" votes.

¶ 3. The parties appealed the board's determination to the Vernon County Circuit Court and then this court. We resolved the parties' claims, except for the issue of whether a ballot defined as "partially erased" constituted a "no" vote. We were unable to make that determination because the ballot was not part of the record. We remanded the case to the trial court to determine the intent of the voter of the excluded "no" vote.

¶ 4. The trial court concluded that the intent of the voter was a finding of fact, and pursuant to Wis. Stat. § 9.01(8), deferred to the board's finding that the board could not determine the voter's intent.

ANALYSIS

¶ 5. In recount proceedings, courts review the board's determination pursuant to Wis. Stat. § 9.01(8). The level of review depends upon whether the issue is one of procedure, interpretation of law, or finding of fact. Id. Whether an issue is one of fact or law is a question of law. Crowley v. Knapp, 94 Wis. 2d 421, 429-30, 288 N.W.2d 815 (1980). We review matters of law de novo. First Nat'l Leasing Corp. v. Madison, 81 Wis. 2d 205, 208, 260 N.W.2d 251 (1977). A court shall set aside or modify the construction of an election law if "the board of canvassers. . . has erroneously interpreted a provision of law and a correct interpretation compels a particular action." Section 9.01(8).

¶ 6. Wisconsin Stat. § 7.50(2)(e) provides:

If an elector marks a ballot with a cross (X), or any other marks, as | , A, V, O, /, V, +, within the square to the right of a candidate's name, or any place within the space in which the name appears, indicating an intent to vote for that candidate, it is a vote for the candidate whose name it is opposite.

This statute is ambiguous because it is capable of multiple meanings. State ex. rel. Newspapers Inc. v. Showers, 135 Wis. 2d 77, 87, 398 N.W.2d 154 (1987). A reasonable person could interpret § 7.50(2)(c) to require: (1) the existence of a mark, and (2) indication of an intent to vote. Alternatively, the statute could reasonably mean that any mark indicates intent to vote.

¶ 7. Courts have not resolved this ambiguity of Wis. Stat. § 7.50(2)(c). In Schmidt v. City of West Bend Bd. of Canvassers, 18 Wis. 2d 316, 321, 118 N.W.2d 154 (1962), the court considered whether a completely obliterated "X" should he counted as a vote for a mayoral candidate. The ballot at issue was a vote cast for Schmidt that had a cross mark with "a heavy penciling which obliterated the entire square." Id. The supreme court determined the elector had cancelled the vote by making it "barely visible in the square by reason of the heavy shading which fills the square." Id. Because the elector marked "X" in the squares for three other offices appearing on the same ballot, the court determined that the "voter attempted to obliterate and cancel out his vote for mayor." Id. However, the mark on the ballot that Roth challenges is not obliterated.

¶ 8. To resolve the ambiguity of Wis. Stat. § 7.50(2)(c), we employ rules of statutory construction to determine the legislative intent behind the statute. See State v. Newman, 157 Wis. 2d 438, 442, 459 N.W.2d 882 (Ct. App. 1990). Construing a section with other sections of a statute helps to ascertain legislative intent. Id. Applying the in pari materia rule, we see that the legislature prefers validating ballots. Section 7.50(2)(cm) specifically discerns an intent to vote even if there is an apparent erasure of the mark. Under that section, an apparent erasure will only invalidate the partially erased mark if the elector makes an additional mark next to the name of another candidate. Id. This exemplifies the legislature's preference for discerning an intent to vote and saving a ballot from invalidity. The principle is consistent with the statutory mandate to construe election laws to give effect to the voter's intent. Wis. Stat. § 5.01(1).

¶ 9. We also apply the ejusdem generis rule to clarify the legislative intent of what kind of marks indicate intent to vote. The legislature has defined mark: "a cross (X), or any other marks, as |, A, V, O, /, V, + ." Wis. Stat. § 7.50(2)(c). This definition added the general term "any other marks" within a specific list of symbols. The ejusdem generis rule reconciles the tension between the general and specific criteria by narrowing the general term to items of the same type or nature as those specifically enumerated. See State v. Bronston, 7 Wis. 2d 627, 633, 97 N.W.2d 504 (1959), overruled on other grounds, State ex rel. Goodchild v. Burke, 27 Wis. 2d 244, 133 N.W.2d 753 (1965). The list of symbols is not exhaustive, but additional elements must be of the same type as those listed. Accordingly, we interpret legislative intent to mean that any mark of the same kind as those enumerated in Wis. Stat. § 7.50(2)(c) indicates "an intent to vote for that candidate."

¶ 10. The supreme court's holding in Schmidt is consistent with these policies and assists our determination that a mark must be of the same type as those listed in Wis. Stat. § 7.50(2)(c). The "heavy penciling which obliterated the entire square" in Schmidt is unlike the type of marks identified in the statute. Schmidt, 118 Wis. 2d at 321.

¶ 11. A mark which might be a partially erased vote is still a mark, especially if no other vote is cast on the ballot, which is the case here. The mark on the ballot is at least a diagonal line across the square. At most, the mark is a cross ("X") with one diagonal lighter than the other. Nevertheless, the single diagonal line or even the partially lighter "X" is of the same kind as the symbols enumerated in Wis. Stat. § 7.50(2)(c). There are no other marks on the ballot. It is not an obliteration of a mark, as in Schmidt. All marks within the square to the right of a candidate's name indicate intent to vote for that candidate. Section 7.50(2)(c). The mark therefore indicates an intent to vote "no."

¶ 12. We conclude that the board of canvassers and the trial court erroneously interpreted Wis. Stat. § 7.50(2)(c) by not concluding that the mark on the disputed ballot indicated an intent to vote "no." Accordingly, we reverse the trial court's judgment and order with directions to declare that the LaFarge School District referendum resulted in a tie vote.

By the Court. — Judgment reversed and cause remanded with directions.

       All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       Unlike present election laws, Wis. Stat. § 6.42 (1961-62), which governed Schmidt v. City of West Bend Bd. of Canvassers, 18 Wis. 2d 316, 118 N.W.2d 154 (1962), did not establish a scope of judicial review for recount proceedings. Wisoonsin Stat. § 9.01(8) governs judicial review of recount proceedings. Now, courts separately review issues of procedure, interpretations of law and findings of fact. Id.

       WISCONSIN Stat. § 7.50(2)(cm) reads:
      Any apparent erasure of a mark next to the name of a candidate may not be counted as a vote for that candidate if the elector makes another mark next to the name of one or more different candidates for the same office and counting of the mark would result in an excess number of votes cast for the office.


author: VERGERONT, PJ.

text:
    KW Holdings, LLC, a Wisconsin limited liability company, Plaintiff-Appellant, v. Town of Windsor, a body corporate and politic, Town of Windsor Town Board, the governing body of the Town of Windsor, Town of Windsor Plan Commission, a commission created by the Town of Windsor, and Cheryl Theis, Town of Windsor Clerk-Treasurer, Defendants-Respondents.
    Court of Appeals

      No. 02-0706.

      Submitted on briefs August 9, 2002. —
    Decided November 21, 2002.

    2003 WI App 9
    (Also reported in 656 N.W.2d 752.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Troy M. Hellenbrand, Esq. of Hellenbrand & Hellenbrand, S.C., Waunakee.
    On behalf of the defendants-respondents, the cause was submitted on the brief of Lawrence E. Bechler and Matthew J. Fleming of Murphy & Desmond, S.C., Madison.
    Before Vergeront, PJ., Dykman and Deininger, JJ.
   VERGERONT, PJ.

¶ 1. KW Holdings, LLC, appeals an order of the circuit court that affirmed the decision of the town board of the Town of Windsor rejecting the final plat submitted by KW Holdings. The town board rejected the final plat on the ground that KW Holdings failed to satisfy numerous conditions for plat approval. At the time the town board made this decision, Windsor was contesting annexation by the Village of DeForest of an area containing the property subject to the plat. KW Holdings contends: (1) the preliminary plat was approved without conditions by operation of law; (2) after DeForest adopted the annexation ordinance, Windsor lost authority to impose public improvement requirements and therefore could not reject the final plat for failure to satisfy them; (3) none of Windsor's reasons for rejecting the plat was valid; and (4) Windsor violated various procedural statutes and ordinances and therefore the rejection of the final plat was invalid.

¶ 2. We conclude: (1) the preliminary plat was not unconditionally approved by operation of law; (2) under Wis. Stat. §§ 236.10(l)(a) and 236.13(2)(a) (1999-2000), Windsor has authority during a legal contest of the annexation to reject the final plat based on a failure to satisfy public improvement conditions; (3) KW Holdings's failure to satisfy the condition that it widen a right of way was a valid reason for rejecting the final plat; and (4) the decision to reject the final plat was not invalid because of failure to comply with procedural requirements. Accordingly, we affirm the circuit court's order.

BACKGROUND

¶ 3. On May 12, 2000, KW Holdings filed with Windsor a preliminary plat for a residential subdivision lying within Windsor's boundaries. The ninety-day period for review of preliminary plats was extended to September 14, 2000. Windsor conditionally approved the preliminary plat on September 7, 2000, contingent upon satisfaction of conditions established by the Windsor Plan Commission, which included making certain public improvements. On November 13, 2000, DeForest filed a petition for annexation for an area which included the platted land. KW Holdings submitted the final plat to Windsor for approval on November 17, 2000. On December 18, 2000, DeForest adopted an annexation ordinance that annexed the platted land and, on the same date, DeForest approved the plat.

¶ 4. On December 26, 2000, the Windsor clerk notified the plan commission, the town engineer, town planner, and others that the town board was to meet on January 4 to decide if the town was going to contest the annexation. The clerk explained that on advice of counsel no action had been taken on the final plat until DeForest had made a decision on the annexation ordinance. The clerk asked the town engineer, town planner, and town attorney to begin their review of the final plat and have their recommendations prepared for a joint meeting of the plan commission and town board that would take place the week of January 8, 2001, if the board decided to contest the annexation.

¶ 5. The town board did decide to contest the annexation, so on January 5, 2001, Windsor staff posted notices for the joint January 8 meeting to review the final plat and faxed the notice to The DeForest Times Tribune. Windsor filed the action contesting the annexation on January 8, 2001, and later that same day, the plan commission and town board held the joint meeting to review the final plat.

¶ 6. The town engineer's report recommended rejection of the final plat because KW Holdings had failed to satisfy most of the conditions of the preliminary plat approval. The town planner's report advised that a number of conditions had not been addressed in the final plat and that the town board should determine if the plat should be approved with conditions or denied. Based on those reports, the plan commission voted to adopt a draft motion by the town attorney, with certain changes, recommending rejection of the final plat. Before voting on a recommendation, a plan commission member reviewed each point in the draft motion with representatives of KW Holdings. Based on the plan commission's recommendation, as well as the reports from the town engineer and town planner, the town board then voted to reject the plat, specifying twenty-four reasons for the rejection.

¶ 7. KW Holdings sought review by certiorari in circuit court pursuant to Wis. Stat. § 236.13(5), and the circuit court affirmed the decision of the board.

DISCUSSION

¶ 8. On an appeal to the circuit court under Wis. Stat. § 236.13(5), "[t]he court shall direct that the plat be approved if it finds that the action of the approving authority or objecting agency is arbitrary, unreasonable or discriminatory." In this court we review the decision of the town board, not that of the circuit court, and we apply the same standard to the board's decision as did the circuit court. Manthe v. Town Bd. of Windsor, 204 Wis. 2d 546, 551, 555 N.W.2d 167 (Ct. App. 1996). Our review is limited to: (1) whether the board kept within its jurisdiction; (2) whether it proceeded on correct theory of law; (3) whether its action was arbitrary, oppressive, or unreasonable and represented its will and not its judgment; and (4) whether the evidence was such that it might reasonably make the decision in question. Id. Whether Windsor has exceeded its statutory authority is a question of law, which we review de novo. Id. However, in reviewing the reasons for the rejection, we affirm if there is adequate support in the record. Busse v. City of Madison, 177 Wis. 2d 808, 812, 503 N.W.2d 340, 341 (Ct. App. 1993). If a municipality rejects a plat for several reasons, it is sufficient if the record supports one of the reasons, and we need not address the others. Id. at 813.

Action on Preliminary Plat Wis. Stat. § 236.1l(l)(a)

¶ 9. KW Holdings argues that the preliminary plat was automatically approved without conditions by operation of law under Wis. Stat. § 236.11(l)(a) because the town board did not make a definite and final decision on it by September 14, 2001. According to KW Holdings, the board's decision of conditionally approving the preliminary plat on September 7, 2001, was not a definite and final decision because two of the conditions involved subsequent decisions by other entities. The two conditions were: (1) in lieu of payment for parkland, a park improvement credit for upgrading current parks, "provid[ing] this is acceptable to the Town Board and Park Commission," and (2) storm water drainage seventy-five feet wide, except that "the town will act on what the county recommends regarding requesting... a 50-ft variance." Since, in KW Holdings's view, the preliminary plat was automatically approved by operation of law without conditions, the board had no authority to reject the final plat because KW Holdings did not meet certain conditions.

¶ 10. Wisconsin Stat. § 236.11(l)(a) provides in part:

Within 90 days the approving authority, or its agent authorized to approve preliminary plats, shall take action to approve, approve conditionally, or reject the preliminary plat and shall state in writing any conditions of approval or reasons for rejection, unless the time is extended by agreement with the subdivider. Failure of the approving authority or its agent to act within the 90 days, or extension thereof, constitutes an approval of the preliminary plat.

¶ 11. When we construe a statute, our aim is to ascertain the intent of the legislature; and we consider first the language of the statute itself. State v. Setagord, 211 Wis. 2d 397, 406, 565 N.W.2d 506 (1997). If that plainly expresses the legislature's intent, we apply that language to the facts at hand. Id.

¶ 12. We do not agree with KW Holdings's construction and application of Wis. Stat. § 236.11(l)(a). The plain language of the statute requires only that the board "take action to approve, approve conditionally, or reject the preliminary plat and shall state in writing any conditions of approval or reasons for rejection"; it does not specify that no condition may depend upon the subsequent decision of another entity. The board did act within the agreed upon extension to approve the preliminary plat conditionally, and it stated in writing the conditions of approval. The two conditions that KW Holdings points to represent the board's final decision on what the board required, with the inclusion of a more favorable result for KW Holdings if other entities approved.

¶ 13. "The purpose of a preliminary plat is to give the approving authority an idea of the plan for the subdivision and to enable [the authority] to give the subdivider some assurance that he is proceeding in an acceptable manner." Lakeshore Dev. Corp. v. Plan Comm'n of Oconomowoc Lake, 12 Wis. 2d 560, 568, 107 N.W.2d 590 (1961). The requirement of written notice of the conditions is to provide the developer with notice of what must be done in order for the plat to be finally approved. See State ex rel. Albert Realty Co. v. Village Board of Brown Deer, 7 Wis. 2d 93, 99, 95 N.W.2d 808 (1959) (purpose of written statement of reasons for rejection is to give the developer the opportunity to cure any objections to the plat). The written conditions relating to parkland and to storm water drainage were sufficiently definite to give KW Holdings notice of what had to be done to comply with those conditions.

¶ 14. KW Holdings relies on State ex rel. Lozoff v. Board of Trustees of Hartland, 55 Wis. 2d 64, 197 N.W.2d 798 (1972). There the court concluded a preliminary plat was constructively approved by operation of Wis. Stat. § 236.11(l)(a) because the only action the approving authority took within the statutory time period was to table consideration of the preliminary plat. That, the court held, was not a type of action specified in § 236.11(l)(a). Id. at 70. We do not agree with KW Holdings that tabling consideration of a preliminary plat is analogous to the action the board took in this case.

¶ 15. We conclude that the town board acted to conditionally approve the preliminary plat as required by Wis. Stat. § 236.11(l)(a), and the preliminary plat was therefore not approved without conditions by operation of that section.

Windsor's Authority to Require Public Improvements under Wis. Stat. §§ 236.10(a) and 236.13(2)(a)

¶ 16. Wisconsin Stat. § 236.10(a) addresses final plat approvals in the context of annexation contests, and provides:

(1) To entitle a final plat of a subdivision to be recorded, it shall have the approval of the following in accordance with the provisions of s. 236.12:
(a) If within a municipality, the governing body, but if the plat is within an area, the annexation of which is being legally contested, the governing bodies of both the annexing municipality and the town from which the area has been annexed shall approve.

KW Holdings contends that this statute does not authorize Windsor to condition final plat approval on public improvements required by its ordinance, because a more specific statute governs, Wis. Stat. § 236.13(2)(a):

(2)(a) As a further condition of approval, the governing body of the town or municipality within which the subdivision lies may require that the subdivider make and install any public improvements reasonably necessary ... to ensure that he or she will make those improvements within a reasonable time.

According to KW Holdings, since the annexation is presumed valid until declared invalid by a court, the proposed subdivision lies outside Windsor and within DeForest, and under § 236.13(2)(a) only DeForest may establish public improvement requirements.

¶ 17. In construing these statutes, we bear in mind that since they relate to the same subject matter, we read them together and harmonize them if possible. Brookhill Dev. Ltd. v. City of Waukesha, 103 Wis. 2d 27, 36, 307 N.W.2d 242 (1981).

¶ 18. We conclude that Wis. Stat. § 236.13(2)(a) does not restrict Windsor's authority to impose public improvements as conditions for plat approval during a contested annexation. Since Windsor is legally contesting the annexation, the plain language of Wis. Stat. § 236.10(l)(a) requires that both the annexing municipality — DeForest—and the town from which the area has been annexed — Windsor—approve a final plat of a subdivision in accordance with the procedures established in Wis. Stat. § 236.12. There is no indication in § 236.10(1)(a), or any other section in § 236.10, that the legislature intends to limit the authority of the town from which the area is annexed to impose conditions for approval that the town is otherwise authorized to impose. We do not find any such intent expressed in § 236.13, either. Section 236.13(1) governs the conditions that must be met for preliminary and final plat approval, and subsecs. (2) and (2m) provide for additional conditions that may be imposed. None of these subsections address what happens when an annexation contest is pending. The phrase in para. (2) (a) "governing body of the town or municipality within which the subdivision lies" refers to the governing body that is approving the preliminary plat or final plat — and, under § 236.10(l)(a), in the case of a contested annexation, that is both the annexing municipality and the town from which the area is annexed.

¶ 19. The legislature has expressly addressed the potential conflict that may arise when two governmental bodies are required to approve a plat. Wisconsin Stat. § 236.13(4) provides that "[w]here more than one governing body or other agency has authority to approve or to object to a plat and the requirements of such bodies or agencies are conflicting, the plat shall comply with the most restrictive requirements." Thus, any plat approved by both parties to the annexation contest will meet the requirements of the party that prevails in the annexation dispute.

¶ 20. We do not agree with KW Holdings that Rice v. City of Oshkosh, 148 Wis. 2d 78, 435 N.W.2d 252 (1989), supports its argument that only one governing body may exercise authority under Wis. Stat. § 236.13(2)(a) to impose conditions of public improvements in a contested annexation. Rice construed § 236.13(2)(a) in the context of extraterritorial plat approval jurisdiction, not a contested annexation. In Rice, the subdivision was within a town and also within the extraterritorial plat approval jurisdiction of a city. Under Wis. Stat. § 236.02(5), "extraterritorial plat approval jurisdiction" is defined as "the unincorporated area within 3 miles of the corporate limits of a first, second, or third class city, or lVz miles of a fourth class city or a village." Since the subdivision lay within both the town and the extraterritorial plat approval jurisdiction of the city, both had to approve the plat. Wis. Stat. § 236.10(l)(a) and (b). The town approved the plat conditioned on compliance with its public improvement requirements, and the city conditioned approval on compliance with its public improvements requirements. Id. at 80-81. The court concluded that § 236.13(2)(a) plainly did not give the city the authority to do this, because the city was not the governing body within which the subdivision lay. Id. at 84-85. The court also relied on the Interpretative Commentary to the section, which stated: "The authority under [§ 236.13(2) (a)] to require installation of public improvements does not apply extraterritorially." Id at 85. There is nothing in either the reasoning or the result of Rice that indicates legislative intent to restrict a town that is contesting an annexation from exercising the authority it would have under § 236.13(2) (a) in the absence of the annexation.

¶ 21. KW Holdings also relies on Brookhill Development Ltd., 103 Wis. 2d at 27, to support its argument. However, Brookhill is concerned with the authority of two municipalities when part of a plat lies within the extraterritorial plat approval jurisdiction of one, and the rest of the plat lies within the extraterritorial plat approval jurisdiction of the other. The court held in Brookhill that under Wis. Stat. § 236.10(2), Wis. Stat. § 66.0105 (then numbered Wis. Stat. § 66.32) plainly applies to divide the overlapping jurisdiction so that not more than one municipality exercises its extraterritorial powers over the same area. Brookhill Dev. Ltd., 103 Wis. 2d at 35. The court's reference to a prohibition on "the overlap of municipal approval authority," id., was to the specific prohibition in § 236.10(2) and § 66.0105, not to a general prohibition that would apply despite the plain language of § 236.10(1)(a).

¶ 22. It is true, as KW Holding contends, that under Wis. Stat. § 66.0217(8)(c) an annexation ordinance is effective upon enactment of the ordinance; and it continues in effect until declared invalid by a court. State ex rel. Madison v. Monona, 11 Wis. 2d 93, 96, 104 N.W.2d 158 (1960). However, precisely because an annexation may be declared invalid by a court through procedures established by statute to contest it, § 66.0217(11), the legislature has chosen in Wis. Stat. § 236.10(l)(a) to require the approval of the town from which an area is being annexed as well as the annexing municipality when there is a legal contest. The legislature has evidently decided that it is better to require approval of both governing bodies involved in the dispute, since either might prevail, and that is a policy judgment for the legislature to make.

¶ 23. Accordingly, we conclude that Windsor had the authority under Wis. Stat. §§ 236.10(l)(a) and 236.13(2)(a) to condition approval of the plat on satisfying public improvement requirements of its subdivision ordinances.

Validity of Reasons for Final Plat Rejection

¶ 24. Although Windsor listed twenty-four reasons for rejecting the final plat, we address only one. As we have noted above, there need be only one valid reason. Busse, 177 Wis. 2d at 813. We conclude that KW Holdings's failure to widen a right of way as required in the conditions imposed on the preliminary plat is a valid reason for rejecting the final plat. KW Holdings argues that the width of the right of way is a public improvement under the 1987 Ordinance § 2.1(a)(13), and, because of the annexation, Windsor does not have the authority to reject the final plat for failure to meet this condition. However, we have already concluded that Windsor has authority to impose public improvements as a condition of plat approval under Wis. Stat. §§ 236.10(1)(a) and 236.13(2)(a). Since KW Holdings does not present any other basis for the invalidity of this reason for denial, we conclude the board properly rejected the final plat for this reason.

Claims of Procedural Errors in Final Plat Approval

¶ 25. KW Holdings argues that Windsor failed to comply with a number of procedural requirements, and, as a result, its rejection of the final plat was invalid. We address each in turn and conclude none provides a basis for invalidating the rejection of the final plat.

1. Public Hearing

¶ 26. KW Holdings argues that the town clerk failed to schedule a public hearing on the final plat and give notice of the hearing as required by the Town of Windsor Subdivision Ordinance (1979 Ordinance). Windsor responds that it did not need to hold a public hearing on the final plat because the requirement for that hearing in the 1979 Ordinance is inconsistent with provisions in the Town of Windsor Land Division and Subdivision Ordinance (1987 Ordinance), and, therefore, was repealed.

¶ 27. Under the 1987 Ordinance all other ordinances or parts of ordinances were repealed only to the extent that any part was "inconsistent or conflicting" with the 1987 Ordinance. 1987 Ordinance § 1.7. In Manthe, we held that this language is consistent with the concept of repeal by implication, which occurs when "the latter ordinance contains provisions so contrary to or irreconcilable with those of the earlier ordinance that only one of the two ordinances can stand in force." 204 Wis. 2d at 584. While repeal by implication is not favored, id., the purpose of this rule is to aid in ascertaining the intent of the legislative body, and it therefore "does not control an otherwise clear intent, evidenced by the act itself." State ex rel. Thompson v. Beloit City School Dist., 215 Wis. 409, 418, 253 N.W. 598 (1934).

¶ 28. The 1979 Ordinance addressed the procedure for preliminary plats and final plats in separate sections, and for each required notification of commissions and boards, responses from them, and a public hearing before the town board "[with notice] to all property owners within 200 feet of the proposed subdivision." 1979 Ordinance §§ 3.2; 3.4. The 1987 Ordinance retained those procedures for preliminary plats, but changed time limits and added numerous, specific requirements for each step in the process, including additional requirements for notice of the public hearing. Cf. 1979 Ordinance §§ 3.2, 3.3 with 1987 Ordinance §§ 4.2(h), 4.3(b). With respect to final plats, the 1987 Ordinance also retained the requirement of notification of board and commissions and responses from them, again adding details and changing the time limits, and, as with the preliminary plat procedure, it added many details to every other step in the process, including review and recommendations by the town engineer and plan commission; however, there is no provision for a public hearing. Cf. 1979 Ordinance § 3.4 with 1987 Ordinance § 4.4.

¶ 29. We agree with Windsor that a public hearing on the final plat, as provided in the 1979 Ordinance, is inconsistent and irreconcilable with the procedures established in the 1987 Ordinance. The only reasonable construction of 1987 Ordinance §§ 4.3 and 4.4 is that the town board did not intend that a public hearing be held on the final plat. These sections are not silent on this point; rather, by comprehensively addressing the specific procedures for preliminary and final plat approval, and retaining and elaborating on the requirement of a public hearing for a preliminary plat but omitting reference to a public hearing for a final plat, these sections demonstrate an intent not to require that hearing.

2. Compliance with Wis. Stat. § 62.23(5)

¶ 30. KW Holdings contends that Windsor violated Wis. Stat. § 62.23(5), which provides:

(5) Matters referred to City plan Commission. The council, or other public body or officer of the city having final authority thereon, shall refer to the city plan commission, for its consideration and report before final action is taken by the council, public body or officer, the following matters:.. . .Unless such report is made within 30 days, or such longer period as may be stipulated by the common council, the council or other public body or officer, may take final action without it.

As we understand KW Holding's argument, Windsor violated this section in two ways: (1) the town clerk, not the town board, referred the final plat to the plan commission for its review, and (2) the town board held a joint meeting with the plan commission at which the plan commission voted on its recommendation, and the board then adopted the plan commission's recommendation.

¶ 31. KW Holdings does not explain why the town clerk may not refer the final plat to the plan commission on behalf of the board, nor what in the statute requires that the plan commission report to the board before the meeting at which the board decides. The purpose of this statute, plainly expressed in its language, is to require that the plan commission have the opportunity to review and make a recommendation on a final plat before the board or other entity makes a final decision, but not to require the board to wait more than thirty days for the plan commission's report. The plan commission here did have that opportunity. We conclude there was no violation of this section.

3. Time Periods in Ordinance

¶ 32. KW Holdings asserts that because various time periods specified in the ordinance were not adhered to, the town board had no authority to reject the final plat. We conclude that the failure of town officials and employees to adhere to the time periods KW Holdings relies on does not prevent the board from rejecting the final plat. We address first the time limits for the recommendation of the plan commission and the town engineer.

¶ 33. 1987 Ordinance § 4.4(a)(5) provides in part:

The recommendations of the Plan Commission and Town Engineer shall be made within thirty (30) days of the filing of the Final Plat. The Town Engineer shall examine the plat or map and final plans and specifications of public improvements for technical details and if he finds them satisfactory, shall so certify in writing to the Plan Commission. If the plat or map or the plans and specifications are not satisfactory, the Town Engineer shall return them to the owner and so advise the Plan Commission.

1987 Ordinance § 4.4(b)(4) provides:

The Plan Commission shall, within thirty (30) days of the date of filing of the Final Plat with Town Clerk, recommend approval, conditional approval or rejection of the Plat and shall transmit the Final Plat and application along with its recommendations to the Town Board. The Plan Commission may hold the matter in abeyance if there is incomplete or inadequate information.

¶ 34. KW Holdings premises its argument on the use of the word "shall" and the rule of statutory construction that the use of "shall" is presumed to be mandatory, Wagner v. State Medical Examining Board, 181 Wis. 2d 633, 643, 511 N.W.2d 874 (1994). However, the rule regarding statutory time periods is that they may be either directory or mandatory. State ex rel. Jones v. Div. of Hearings and Appeals, 195 Wis. 2d 669, 672, 536 N.W.2d 213 (Ct. App. 1995). Generally, a statute presenting the time within which public officials are required to perform an act is directory, unless the statute denies the exercise of power after such time, or the nature of the act or the statutory language shows that the time was intended to be a limitation. Id. at 672-73. In determining whether a provision is directory or mandatory, the object of the court is to ascertain the legislative intent. Wagner, 181 Wis. 2d at 643. We determine legislative intent by looking at the following factors: (a) the existence of penalties for failure to comply with the time limits, (b) the statute's nature, (c) the legislative objectives of the statute, and (d) the consequences to the parties for failure to comply. Id. Applying these factors, we conclude that the time limits in these sections are directory rather than mandatory.

¶ 35. First, there is no penalty imposed for the failure of the plan commission or the town engineer to act within thirty days of the filing of the final plat. Moreover, nothing in these sections suggests that the town board may not exercise its authority to decide whether to approve or reject a final plat because either the plan commission or the town engineer has not made their recommendations within thirty days. Indeed, the town board may make its decision without the plan commission's recommendation if the recommendation is not timely under Wis. Stat. § 62.23(5). Similarly, nothing in these sections suggests that the board may not consider the recommendation of the town engineer or the plan commission because they are made later than thirty days from the filing of the final plat. Second, this ordinance is a "land division and subdivision ordinance," the purpose of which is to "to promote the public health, safety, convenience and general welfare of the community." 1987 Ordinance § 1.2(b). Third, the specific objectives of § 4.4(a)(5) and (b)(4) are to facilitate this general purpose by allowing the town board to have the benefit of the recommendations of the town engineer and plan commission before it makes its decision, which it must make within sixty days of the filing of the final plat or the plat is approved by operation of law. Wis. Stat. § 236.11(2).

¶ 36. Fourth, the consequence to the parties favors construing the time periods as directory. The consequences to Windsor of prohibiting the board from denying a final plat, regardless of whether it substantially conforms to the preliminary plat including the conditions imposed, is a serious threat to the town's ability to regulate subdivisions for the benefit of the community. KW Holdings argues that the consequence of non-compliance with 1987 Ordinance § 4.4(a)(5) is prejudicial to the owner because, if the town engineer returns the final plat within thirty days of filing as unsatisfactory, the owner has the opportunity to cure deficiencies before the board decides the matter. However, this section does not require that the town engineer advise the owner of the specific deficiencies, nor is there any ordinance provision or statute that entitles the owner to a specified period of time between return of an unsatisfactory final plat from the town engineer and the board's decision. The board may make a decision based on the town engineer's recommendation and the plan commission's recommendation without waiting until the owner has cured the deficiencies. We therefore conclude that allowing the owner time to cure deficiencies in the final plat is not a purpose of specifying thirty days for the town engineer to make a recommendation; thus, we do not view that purpose, or the thwarting of that purpose, as a significant factor in deciding whether the time limits are mandatory or directory.

¶ 37. Our analysis is much the same with respect to the provision that the town clerk shall, within two days of the filing of the final plat, provide copies of the final plat to certain agencies called "objecting agencies," 1987 Ordinance § 4.4(a)(2), and to the plan commission, town engineer and utility companies. 1987 Ordinance § 4.4(a)(5). These sections address the duty of the town clerk; there is no penalty for the town clerk; and there is no indication of an intent to preclude the board from rejecting a final plat because the town clerk did not comply with the time periods. The evident purpose of these provisions is to provide all the entities whose responses the town board either may or must consider with copies of the final plat in an expeditious manner, in order to facilitate their review and the board's final decision-making. That purpose is not served by precluding the board from making a particular decision once it has received the responses.

(2) The Town Clerk shall, within two (2) days after filing, transmit two (2) copies to the appropriate sanitary district, four (4) copies to the County Planning Agency, two (2) copies to the Director of the Planning Function in the Wisconsin Department of Development, additional copies to the Director of the Planning Function for retransmission of two (2) copies each to the Wisconsin Department of Transportation if the subdivision abuts or adjoins a state trunk highway or a connecting street and the Wisconsin Department of Industry, Labor and Human Relations if the subdivision is not served by a public sewer and provision for service has not been made, and the original Final Plat and adequate copies to the Plan Commission. The County Planning Agency, the Wisconsin Department of Development, the Wisconsin Department of Transportation, and the Wisconsin Department of Industry, Labor and Human Relations shall he hereinafter referred to as objecting agencies.
(5) The Town Clerk shall refer two (2) copies of the Final Plat to the Plan Commission, one (1) copy to the Town Engineer, and a copy each to the telephone and power and other utility companies. The abstract of title or registered property report may be referred to the Town Attorney for his examination and report. The Town Clerk shall also refer the final plans and specifications of public improvements to the Town Engineer for review.

¶ 38. It may be, as KW Holdings appears to argue, that even when time periods are directory, a public official's failure to adhere to them could be arbitrary or unreasonable. However, we conclude Windsor had a reasonable basis for waiting to begin the review process until it was certain it had the authority to act under Wis. Stat. § 236.10(a), and it did make the final decision within the sixty-day period prescribed in Wis. Stat. § 236.11(2). In addition, although KW Holdings has made general allegations of prejudice resulting from Windsor's failure to adhere to the directory time periods, it does not explain how that failure prevented it from satisfying any particular condition or curing any particular deficiency, let alone all twenty-four that were the reasons for the rejection.

By the Court. — Order affirmed.

       All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       The conditions established by the plan commission, which were adopted by the board and included in the engineer's August 24, 2000 letter, stated that the park areas added up to 5.17 acres. Under Town of WindsoR Land and Subdivision ORDINANCE § 8.5, when the amount of parkland in a subdivision falls below certain minimum requirements, Windsor may accept fees in lieu of parkland, according to a specified formula.

       KW Holdings also relies on Miswald v. Waukesha County, 202 Wis. 2d 401, 550 N.W.2d 434 (1996), which does not even address Wis. Stat. § 236.11(l)(a), but is concerned with what constitutes a final decision for purposes of the timeliness of an appeal of the decision of a board of adjustment under Wis. Stat. § 59.99(10). The court concluded that a decision that expressly stated that the matter might be taken up at the next scheduled hearing and was subject to change or modification was not the final decision; rather, the decision resulting from the next hearing was. Miswald, 202 Wis. 2d at 408-09. The facts and the statute at issue in Miswald are too dissimilar from those in this case for Miswald to have any application here.

       KW Holdings also argues that under Wis. Stat. § 236.45(3) Windsor may not adopt an ordinance regulating subdivisions within its extraterritorial plat-approval jurisdiction, because § 236.45(3) allows a municipality to do so only if it has the right to approve or object to plats within that area under Wis. Stat. § 236.10(1) (b)2 and (2), and Windsor does not have that right. However, Windsor does not contend that it has the right to approve or object to plats under those subsections, but rather relies on § 236.10(l)(a). Accordingly, we do not address this argument.

       We do not fully understand KW Holdings's argument that under Wis. Stat. § 236.13(4) certain of Windsor's ordinance requirements are inapplicable because they conflict with DeForest's and are less restrictive. If the requirements Windsor imposes conflict with those imposed by DeForest, the plat must comply with the more restrictive. Section 236.13(4). If they do not conflict, the plat must comply with all of them. Wis. Stat. § 236.10(l)(a). There may be situations where application of this section is problematic. However, KW Holdings does not relate this argument to the failure to widen a right of way, which, we conclude later in this decision, was a valid basis for rejecting the final plat. Accordingly, we need not address this argument further.

       Wisconsin Stat. § 236.10(l)(b) provides:
      (1) To entitle a final plat of a subdivision to be recorded, it shall have the approval of the following in accordance with the provisions of s. 236.12:
      (b) If within the extraterritorial plat approval jurisdiction of a municipality:
      1. The town board; and

        2. The governing body of the municipality if, by July 1, 1958, or thereafter it adopts a subdivision ordinance or an official map under s. 62.23; and
      3. The county planning agency if such agency employs on a full-time basis a professional engineer, a planner or other person charged with the duty of administering zoning or other planning legislation.

       WISCONSIN Stat. § 236.10(2) provides that if a subdivision lies within the extraterritorial plat approval jurisdiction of more than one municipality, Wis. Stat. § 66.0105 applies. Section 66.0105 provides:
      Jurisdiction of overlapping extraterritorial powers. The extraterritorial powers granted to cities and villages by statute, including ss. 30.745, 62.23 (2) and (7a), 66.0415, 236.10 and 254.57, may not be exercised within the corporate limits of another city or village. Wherever these statutory extraterritorial powers overlap, the jurisdiction over the overlapping area shall be divided on a line all points of which are equidistant from the boundaries of each municipality concerned so that not more than one municipality shall exercise power over any area.

       One of the conditions imposed when the preliminary plat was conditionally approved was that the right of way from Wolf Hollow Road must be widened to 135 feet from the 100 feet proposed.

       In its first brief, KW Holdings made a one-sentence argument that the clerk "did not publish notice of the meeting on January 8, 2001, in the official Town newspaper, as required by [the 1987 Ordinance] sections 4.4(a)(1) and 4.3(a)(2)." There is no citation to the record except for the citation to these ordinance sections. Under § 4.4(a)(1) the clerk "shall give notice of the Plan Commission's meeting" on the final plat in the manner prescribed in § 4.3(a)(2), which provides for notice "by listing [the plan commission's review] as an agenda item in the Commission's meeting notice published in the official Town newspaper." In response, Windsor points to the lack of any record citation to support KW Holdings's argument, and refers us to a copy of the agenda for the January 8, 2001 meeting indicating that notice was faxed to The DeForest Times Tribune on January 5. In reply, KW Holdings asserts that notice was faxed on January 5, 2001, a Friday, to The DeForest Times Tribune for the Monday, January 8 meeting, but that the newspaper is a weekly newspaper, published on Thursdays. KW Holdings provides a record cite for this latter proposition to a publication notice for a DeForest rezoning ordinance relating to the preliminary plat, from which one may reasonably infer that the newspaper is a weekly newspaper published on Thursdays.
      We decline to address the merits of KW Holdings's argument on the newspaper notice. Windsor did not have an opportunity to respond to this argument, because it was so inadequately identified in KW Holdings's first brief, and it was not an argument that KW Holdings developed in the trial court. (In the trial court, KW Holdings challenged notice of the January 8 meeting on other grounds under other ordinance provisions and the open meetings law; the trial court ruled against KW Holdings and it has not pursued these issues on appeal.) Moreover, although the reply brief does identify the argument, it does not develop it sufficiently to permit us to address it.

       The record shows this ordinance was adopted in 1978. Nevertheless, because the parties and the court call it the 1979 Ordinance, we use that term.

       There is no statutory requirement for a public hearing on either a preliminary or a final plat.

       The 1987 Ordinance § 4.3(b) provides:
      The Town Clerk shall schedule a public hearing on the Preliminary Plat before the Town Board. The Town Clerk shall give notice of the Town Boar[d]'s review and public hearing on the Preliminary Plat or certified survey by listing it as an agenda item in the Board's meeting notice published in the official Town newspaper. The notice shall include the name of the applicant, the address of the property in question and the requested action. Property owners within two hundred (200) feet of the proposed land division shall receive written notice of the public hearing.

       KW Holdings also argues that the trial court erred in deciding that the public hearing requirement in the 1979 Ordinance was implicitly repealed because the court made the erroneous assumption that Wis. Stat. § 236.11(l)(b) was enacted after 1979. Section 236.11(l)(b) provides: "[i]f the final plat conforms substantially to the preliminary plat as approved, including any conditions of that approval, and to local plans and ordinances adopted as authorized by law, it is entitled to approval." Because, as we noted above, we review the decision of the town board, not that of the trial court, we need not address this argument. Manthe v. Town Bd. of Windsor, 204 Wis. 2d. at 551. However, we agree with Windsor's explanation of the point the trial court intended to make. While § 236.11(l)(b) was enacted before the 1979 Ordinance, the section was amended later (by Laws of 1979, ch. 248, § 4) to make the change the trial court considered relevant. Since the municipality could no longer revise its position at the final plat stage if the final plat conformed substantially to the preliminary plat as approved, including conditions, there was no longer a purpose served by a public hearing on the final plat.

       The 1987 Ordinance § 4.4 provides in part:

       KW Holdings also argues that the town clerk did not send copies of the final plat at all to certain agencies, termed "objecting agencies," as required by 1987 Ordinance § 4.4(a)(2), and therefore Windsor was not able to inscribe its approval on the final plat. KW Holdings points out that § 4.4(c)(1) of the 1987 Ordinance prohibits the town board from inscribing its approval unless the clerk certifies on the face of the final plat "that the copies were forwarded to objecting agencies as required herein, the date thereof and that no objections have been filed within twenty (20) days or, if filed, have been met." There is no merit to this argument for two reasons: first, the town board's decision to reject the final plat had nothing to do with this requirement; second, § 4.4(a)(2) is based on Wis. Stat. § 236.12(2) which requires the subdivider to submit to the clerk the copies and the list of the authorities to which they must be sent; in the alternative, the subdivider may submit the original plat to the department of administration, which will then make and send the requisite copies at the subdivider's expense. The record shows KW Holdings did the latter. The town clerk therefore could have certified that copies were sent to the objecting agencies.