Court rules for Sheboygan
Sheboygan gets Wisconsin Supreme Court’s unanimous OK to annex land for Kohler golf course.
SHEBOYGAN - The Wisconsin Supreme Court unanimously ruled Friday that the City of Sheboygan can annex 250 acres in the Town of Wilson where Kohler Co. hopes to build a championship golf course along the Lake Michigan shoreline.
“We have consistently given great weight to the desire of property owners to seek annexation in pursuit of their own perceived best interests,” wrote justices in a majority decision.
The Town of Wilson had challenged a decision by Sheboygan County Circuit Court Judge Daniel Borowski that upheld the annexation.
Town of Wilson attorneys argued Kohler, a private manufacturer that is Sheboygan County’s largest employer, used “balloon on a string” tactics to annex the land, buying a thin strip of properties that connected the city of Sheboygan with property that was more than a mile away, all because it had the sense that town of Wilson officials were unlikely to approve a conditional use permit for the golf course.
According to the Supreme Court’s decision, by 2015, three of the five members of the Town Board were “known to oppose the development.”
In a statement Friday, John Ehmann, a chair of the town’s board, said the decision was “disappointing” and “makes a mockery of Wisconsin’s annexation laws.”
“Moving forward we hope the city of Sheboygan will develop the land responsibly and in accordance with their own ordinances by taking seriously the environmental and other impacts to the subject property and surrounding town residents,” Ehmann wrote.
City of Sheboygan Mayor Mike Vandersteen said Friday that the Town of
Wilson’s appeal had needlessly wasted taxpayer money. Vandersteen called it “great news for the city.”
“Doesn’t seem there’s any door to open to reverse this,” he said.
Kohler Co. plans a third golf resort to join a Sheboygan County portfolio that includes Whistling Straits — which has hosted three PGA Championships and will host this year’s Ryder Cup — and Blackwolf Run.
The company said in a statement Friday that it “looks forward to developing a world-class public golf course in the City of Sheboygan that respects the property’s natural character.”
“A few locals have complained, pre
ferring to leave the land untouched,” it said. “The Company believes the public will be better served with a recreational purpose that enhances an environment and its fauna for a mile stretch north to south and between the Black River to the shores of Lake Michigan, allowing it to breathe and flourish.”
There are still other pending cases involving the proposed course. A local nonprofit, Friends of the Black River Forest, is challenging the Wisconsin Department of Natural Resource’s decision to give Kohler permits for wetland filling and storm drainage and to transfer public land in Kohler-Andrae State Park to a private owner.
Two of those cases — the wetland filling permit and the transfer of public land — are open in the Wisconsin Court of Appeals. The storm drainage permit is in the Sheboygan County Circuit Court.
Nearly a decade ago, Kohler told the Town of Wilson it wanted to turn the land into an upscale campsite, or “tented forest.” In 2014, while that proposal was still pending, it informed the town that it had decided instead to develop a golf course and filed an initial, incomplete application for a conditional use permit.
In April 2017, while the town was awaiting completion of the permit, Kohler published an annexation petition for Sheboygan to annex the land in the town. Earlier that year, Kohler employees and agents had bought two properties that lie between Kohler’s land in the town and the Sheboygan border.
The annexed territory had a population of nine people — six adults and three children. Kohler obtained a fivesignature majority in support of the annexation. That August, the Sheboygan’s Common Council passed an ordinance to annex the land by an 11-5 vote, and the Town of Wilson sued.
According to the Supreme Court’s majority decision, the city had shown previous interest in the land for expansion and development as part of its 2011 Comprehensive Plan. The land would allow the city more land to address its “substantial need for housing,” the decision said.
The court applied something called “the rule of reason,” a set of three requirements stating that the annexation can’t be an arbitrary shape, must meet some future need and can’t constitute an “abuse of discretion.” The court ruled that the annexation satisfies all three prongs of the rule.
While Town of Wilson attorneys characterized the annexation as a milelong strip of gerrymandered land — the land was 190 feet wide at the thinnest and 1,450 feet at the widest — justices also determined that it satisfied the definition of “contiguous.”
And the town had argued that the annexation includes a large amount of non-assessed land, so Kohler should have calculated the number of signatures required for annexation based on acreage of the land, rather than number of residents. The Supreme Court said that is a policy argument that “has no support in the statutory language.”
Ehmann said earlier last week that some of the shoreline in the area for the proposed course has eroded from high water levels, so Kohler may have to alter the proposed design. Pete Dye, who designed Whistling Straits and Blackwolf Run and was designing this new course, died on Jan. 9, at 94.
Wilson Town Board Supervisor Brian Hoffman said Kohler had explained it wanted to work with the City of Sheboygan instead because it believed the city could better meet water and fire protection needs, despite the Wilson Fire Department being “right next door.”
He’s not sure why Kohler felt that the town was opposed to the golf course because, he said, the board was negotiating with the company “in good faith” and just waiting to receive all of the information and a completed permit application.
Hoffman, who has served on the town board for 18 years, learned of the annexation by reading about it in the newspaper after a long weekend. He described it as a “total shock.”
“I’m worried that this is a bad precedent for towns,” he said.
Ehmann said in a statement that it “allows cities to reach deep into townships forcibly and arbitrarily to take town land and develop it at will without representation from or regard for the people who live there.”
“It defeats the Legislature’s intent in the annexation statutes and affirms that anyone with deep pockets can purchase homes and fill them with temporary renters to meet the state’s petition standards, and force other property owners to annex against their will, in order to create a gerrymandered narrow milelong path to meet contiguity requirements.”
Ehmann said the Supreme Court’s decision “turns the issue back to the Legislature” to protect town governments.
Three justices issued concurring decisions Friday that the annexation was appropriate, but that the three-part rule of reason requirements should not be used in future cases.
Justice Rebecca Bradley wrote that the test requires judges to make decisions based on “subjective whim.”
“It is no wonder why, almost 70 years after the creation of the doctrine, nobody knows how it applies or what it prohibits,” she wrote.
The rule of reason derives from a 1964 case between the Town of Mount Pleasant and the City of Racine where a “balloon on a string” argument was also made. Bradley, in an opinion cosigned by Justice Daniel Kelly, said the rule of reason was created out of thin air by that case’s judges, not lawmakers.
“Grounded in the premise that judges know better than the people’s representatives, the rule of reason displays judicial arrogance at its worst,” she wrote.
Justice Brian Hagedorn wrote a separate opinion in general agreement with Bradley but arguing that because the parties in the Town of Wilson case didn’t take issue with the rule, it would be more appropriate for the court to overturn that decision after a full argument in another case.
“(O)ur cases are about as straightforward as a Halloween corn maze and employ interpretive principles that should strike terror into everyone committed to the rule of law, rather than the rule of judges,” he wrote.
“I’m worried that this is a bad precedent for towns.”
Brian Hoffman Wilson Town Board supervisor