Municipalities — extraterritorial zoning

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Wisconsin Court of Appeals

Civil

Municipalities — extraterritorial zoning

Where a city’s denial of a preliminary subdivision plat was based on the proposed use, the circuit court properly reversed the denial.

“The City’s thirty-five-acre density restriction is an improper use of its extraterritorial plat approval authority to rezone land over which it has no independent zoning authority. While the City has the authority to review extraterritorial subdivision plats, it cannot use this authority to impose land use restrictions. The City can only impose extraterritorial land use restrictions under its extraterritorial zoning authority, which must be exercised in conjunction with neighboring towns. See WIS. STAT. §62.23(7a). Here, the City improperly used its extraterritorial plat approval authority to supersede the residential zoning that was in place. WISCONSIN STAT. ch.236 ‘does not permit approving authorities to supersede zoning regulations and restrictions.’ Boucher, 178 Wis. 2d at 96. Common knowledge and experience tell us that the ordinance’s blanket density requirements effectively preclude residential development throughout the extraterritorial jurisdiction. Indeed, the ordinance’s preamble states the ordinance was enacted ‘in order to protect rural character and farming viability.’ Although purporting to be a density standard that is part of subdivision regulation for quality under WIS. STAT. §236.45(1), the result bespeaks the intent; the ordinance is a use prohibition, the very essence of zoning. See 83 AM. JUR. 2D, Zoning and Planning § 2 (2013) (overall purpose of zoning is to benefit community by sensible planning of land uses).”

Affirmed.

Recommended for publication in the official reports.

2013AP1202 Lake Delevan Property Co. LLC v. City of Delevan

Dist. II, Walworth County, Carlson, J., Neubauer, J.

Attorneys: For Appellant: Koch, Steven A., Elkhorn; Lochowicz, Bradley J., Elkhorn; For Respondent: Maier, John L., Jr., Elkhorn; Richards, Dean B., Waukesha