MADISON, Wis. (CN) – The Wisconsin Supreme Court needled over questions of bordering properties Thursday during oral arguments in a case pitting a town against a nearby city over land annexed for a luxury golf course.
In March 2014, Kohler Co. – a manufacturing company based in Kohler, Wisconsin, with a long history in the state – submitted an application to the town of Wilson for a conditional use permit to build a golf course using property along Lake Michigan in the town’s limits.
The town suspended review of the incomplete application and punted on the matter until other state agencies had weighed in, which Kohler said would be done by early fall 2017.
Wilson alleges that Kohler then became concerned about the town’s political climate hurting its chances for the golf course getting built. Its answer was to build a string of properties connecting the golf course property to the more politically friendly city of Sheboygan, with certain parcels being as thin as 190 feet and not part of the golf course.
Sheboygan approved Kohler’s annexation in August 2017 and rezoned the land at the company’s request. Wilson sued, seeking temporary injunctive relief, but the circuit court denied all of its motions. The Wisconsin Court of Appeals punted and petitioned the state Supreme Court for bypass, which it granted.
At the onset of arguments Thursday, Michael Huitink, the town of Wilson’s counsel with the Sorrentino Burkert Risch firm in Brookfield, Wisconsin, pointed to a previous state high court ruling from 1964 that he claimed settled the case’s annexation questions.
“Fifty-five years ago, this court interpreted the term ‘contiguous’ in the annexation statute and held that exactly what happened in this case did not meet…the statutory requirement for contiguity,” he said.
When prodded by Justice Rebecca Dallet to define contiguous, Huitink said that precedent outlines that a property has to satisfy a “oneness” or “togetherness.”
Justice Daniel Kelly expressed skepticism, saying that “those words you used- ‘oneness’ and ‘togetherness’- I have no idea what that means.”
When Kelly pressed him on the matter, Huitink admitted that the statutory language is vague and does not explicitly outline homogeneity and compactness
The town’s attorney nevertheless pointed to a map of the annexed area and surrounding lands in the courtroom, which he said illustrates a “non-unanimous annexation” by Kohler undertaken “in order to circumvent the government of the town of Wilson,” arguing that the results are an absurd, gerrymandered annexation inconsistent with legislative intent.
Kelly, however, said he looks at statutory language and not legislative intent.
“If the statutory language says ‘contiguous’ and it is contiguous, what is absurd about that?” Kelly said.
Huitink maintained that the rule of reason and the relevant case law render the annexation objectively wrong.
Stan Riffle, Sheboygan’s counsel with the Municipal Law and Litigation Group based in Waukesha, Wisconsin, argued that the only question the court should consider is whether the annexation is contiguous, which it is.
“The rights of landowners to petition for annexation is an extremely valuable property right,” Riffle said, arguing that “the Legislature has asserted broad authority to annex” and challenging that authority comes with a heavy burden, which the town has not met.
When Dallet also charged Riffle with defining contiguity, Riffle stated that it is defined by “touching or nearly touching under exigent circumstances.”
When Dallet bucked against that definition, Riffle maintained that contiguity is loosely defined, but that there is legal support for the idea that very narrow strips of land can constitute contiguity.
Justice Ann Walsh Bradley resisted this tack as well.
“Are you advancing that any kind of touching is enough? Is 2 feet enough?” she asked.
When Riffle began to indicate that he was agreeing with Kelly that merely touching is enough, Dallet shot back that that is not something he has to do, drawing laughter from those in the courtroom.
Justice Brian Hagedorn attempted to clarify the arguments by asking counsel to “assume we have no body of case law on this. Read the statute and tell me what you think the rule of law should be for this case.”
Riffle responded that the Legislature essentially delegated certification of these kinds of annexations to the Wisconsin Department of Administration, which green-lit this annexation, saying that should be enough.
During his rebuttal, Huitink disputed the dilution of the annexation argument into how large or small it is, pushing for common sense.
“This dimension versus dimension argument will lead you to something unworkable,” he said.
Chief Justice Patience Roggensack expressed concern that overturning the court’s precedent and ruling in the town of Wilson’s favor would retroactively void past annexations, which Huitink argued would not happen.
There is no timetable for the high court’s decision.
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