The Town of Waukesha might seek an appellate court review of whether a town's land can be unwillingly included in another town's incorporation request.

If the Town of Waukesha challenges the move by the Town of Brookfield, the City of Brookfield will join the appeal, City Attorney Karen Flaherty told aldermen Tuesday night.

The Town of Brookfield is seeking to incorporate as a village in order to protect its borders from annexation by neighboring cities and preserve its future autonomous government and tax base. For more on the incorporation request, see this Brookfield Patch story and a BrookfieldNOW story.

But to do so, it needs additional land because it has already been annexed to the point where it no longer has the minimum required 4 square miles of territory to become a village or city.

A petition filed by town resident Jay Walt and supported by town government, which plans to pay the $25,000 incorporation filing request to the state, proposes including about 288 acres of continguous land in the Town of Waukesha, south of Greenfield Avenue, west of Springdale Road and east of Highway 164. The lands represent about $35 million in tax base, and includes the former Wal-Mart and Don Jacobs car dealership, Town of Brookfield attorney James Hammes has said.

At a hearing last week, Town of Waukesha officials asked Waukesha County Circuit Judge Donald Hassin Jr. to reject the incorporation petition as flawed because the inclusion of Town of Waukesha lands was illegal without that municipality's consent.

Hassin denied the motion and sent the incorporation petition to the state Department of Administration for review and ruling. Town of Waukesha officials are considering asking the state District II Court of Appeals, based in Waukesha, to rule on the issue.

If the appeals court overturns Hassin's decision, the Town of Brookfield incorporation request could be moot and not proceed to the state agency, Flaherty said.