March/April 2020 Issue

Also in this issue: COVID-19 Pandemic     |     Municipalities Have New Flexibility to Provide Notice of Open Meetings     |     No Private Cause of Action to Compel Towns to Construct Roads to Meet Wis. Stat. § 82.50 Standards

Wisconsin Supreme Court Upholds City of Sheboygan Annexation

Julia Potter | 04.24.20

In a recent case, Town of Wilson v. City of Sheboygan, 2020 WI 16, the Wisconsin Supreme Court upheld the City of Sheboygan’s annexation of land owned by Kohler Company for development as a world championship golf course. The property was located in the Town of Wilson, but many Town residents and five members of the Town Board had expressed opposition to the proposed development based on environmental concerns, deforestation, and perceived impacts to residential wells. Kohler approached the City of Sheboygan about annexation and independently designed the boundaries of the territory proposed to be annexed, including a large amount of state- and city-owned land, parcels owned by third parties, as well as additional parcels that Kohler had purchased. The annexation was consistent with the City’s comprehensive plan, the Department of Administration (“DOA”) found the annexation to be in the public interest, and City ultimately adopted an ordinance annexing the territory.

The Town of Wilson challenged the annexation on a variety of grounds. First, it argued that the territory was not contiguous with the City, as required by Wis. Stat. § 66.0217(3). The border between the City and the annexed territory was approximately 650 feet wide. The territory then continued in a southeasterly direction, varying between 1,450 feet wide and 190 feet wide before expanding into the large golf course development. The Town argued that the configuration of the territory was virtually identical to an annexation that was struck down in Town of Mt. Pleasant v. City of Racine, 24 Wis. 2d 41 (1964). The court disagreed, explaining that this was not a ​“corridor” or ​“strip” annexation in which the connection between the City and the annexed territory is only ​“a technical strip a few feet wide.” Rather, there was a ​“significant degree of physical contact” between the City and the annexed territory, and the border between the City and the territory in this case was more than four times as wide as the border at issue in the Town of Mount Pleasant. Therefore, the court found that the annexation satisfied the statutory contiguity requirement.

Next, the Town argued that the annexation violated the rule of reason, a long-standing judicial doctrine used to assess whether a city or village has abused its powers of annexation under the facts and circumstances of a given case. In order to satisfy the rule of reason, an annexation must meet three requirements: (1) exclusions and irregularities in boundary lines may not be the result of arbitrariness; (2) some reasonable present or demonstrable future need for the annexed property must be shown; (3) no other factors must exist which would constitute an abuse of discretion on the part of the municipality. The court found that all three requirements were met in this case. However, Justices Rebecca Bradley, Daniel Kelly, and Brian Hagedorn each expressed an interest in abolishing the rule of reason in annexation cases, as they believe that the doctrine has no basis in the statutory text and therefore represents judicial overreach.

Moreover, the Town argued that the annexation petition did not meet statutory signature requirements. Wis. Stat. § 66.0217(3)(a)1 requires a petitioner to obtain signatures from either the owners of half of the land area within the annexed territory or the owners of half of the real property in assessed value within the annexed territory. The Town argued that, because there was so much tax-exempt land within the territory, the petitioners should be forced to calculate the number of signatures needed based on land area, rather than assessed value. The court disagreed, finding no support for that argument in statute itself, which allows petitioners to choose freely between the two methods of calculation. 

Finally, the Town argued that the petition did not contain a certified population count for the territory, as required by Wis. Stat. §66.0217(5)(a), which provides: ​“The petition shall also specify the population of the territory … as shown by the last federal census, by any subsequent population estimate certified as acceptable by the [D]epartment of Administration or by an actual population count certified as acceptable by the [D]epartment of Administration.” The court rejected this argument, noting that the statute does not require the DOA to engage in any particular process to certify a population count and ultimately concluding, based on an affidavit from a DOA employee, that the DOA had certified the petition’s population count as part of its public interest review. 

Because the court found that none of the Town’s challenges to the annexation ordinance were justified, it affirmed the decision of lower court and upheld the annexation as valid.