Zoning Case Analysis

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Effectively, the decision in the case at bar does exactly what Justice Prosser says — gives municipalities authority to downzone land by use of its extraterritorial subdivision powers.

A property owner can still challenge a platting decision that usurps zoning powers by asserting the Takings Clause, but, as can be seen from Hoepker v. City of Madison Plan Comm’n, 209 Wis.2d 663, 563 N.W.2d 145 (1997), that is no easy thing to do.

Prosser stated in conclusion, “The City of Madison has repeatedly shown hostility to unapproved development in its extraterritorial plat approval jurisdiction. Consequently, a subdivider in Madison’s extraterritorial jurisdiction will have to submit meticulous quality plats if it hopes to prevail in the face of City opposition.”

The court’s decision not only overrules Gordie Boucher, but also withdraws large portions of its own decision in Town of Sun Prairie v. Storms, 110 Wis.2d 58, 327 N.W.2d 642 (1983), despite the majority’s claim that its decision is consistent with that case.

In its certification of this case to the Supreme Court, the court of appeals stated, “Gordie Boucher was probably wrongly decided.” It added, “we believe that the mutually exclusive view of zoning and platting that Gordie Boucher adopted is somewhat artificial and unsupported by either Wisconsin case law or statutes.”

The Supreme Court agreed, and overruled Gordie Boucher. The question now is what to do with all the language in Storms that recognized the obvious difference between the two, but is now deemed “artificial.”

In Storms, the court devoted pages of its analysis to discussing the significant differences between zoning and platting, even though the court concluded the specific issue in that case — lot size — could be regulated via either mechanism. Storms, 110 Wis.2d at 67-71.

In Storms, a town adopted an ordinance, pursuant to its subdivision control powers, that restricted lot size to a minimum of 80,000 square feet, and a minimum of 200 feet of street access.

Zoning ordinances already established minimum lot sizes far less than 80,000 square feet. Nevertheless, the Supreme Court upheld the town’s stricter ordinance, noting that state statutes expressly authorized towns to enact ordinances that more strictly regulate lot size.

The court concluded that lot size was an area of regulation that may be subject to “both subdivision controls and zoning ordinances.” Id., at 67.

Nevertheless, the distinction between the two was specifically maintained. Citing E.C. Yokley, Law of Subdivisions, sec. 39 at 157-58 (2d ed. 1981), the court quoted extensively in relevant part as follows:

“Though zoning is aimed at controlling the uses of land and existing resources, subdivision regulations are designed to control the division of land and to assure that such developments thereon are designed to accommodate the needs of the occupants of the subdivision.

	Links Wisconsin Supreme Court Related Article Zoning/Platting distinction abolished

“Subdivision regulations should be distinguished from zoning ordinances. The purpose of zoning is to provide an overall comprehensive plan for land use, while subdivision regulations govern the planning of new streets, standards for plotting new neighborhoods, and the protection of the community from financial loss due to poor development. Thus, while zoning can prohibit certain uses of property for subdivision purposes, regulations are designed to govern the manner in which unrestricted property is developed.” Id., at 68.

Agreeing with this distinction, the court added, “Thus, zoning and subdividing are complementary land planning devices. Subdivision control is concerned with the initial division of undeveloped land, while zoning more specifically regulates the further use of this land.” Id., at 68.

In the case at bar, the majority did not withdraw any of this language. Nevertheless, it is clear that it has effectively done so, giving planning agencies the power to both plat and zone.

In Storms, the court was careful to find that lot size was one specific area subject to approval by both planning and zoning authorities. In Wood, the court has effectively extended that portion of Storms to all aspects of zoning, and withdrawn the rest of the decision, which meticulously discussed the distinction between the two.

– David Ziemer

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David Ziemer can be reached by email.