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Zoning/Platting distinction abolished

By: dmc-admin//April 16, 2003//

Zoning/Platting distinction abolished

By: dmc-admin//April 16, 2003//

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Evans

“Any regulation relating to the ‘quality’ of a subdivision must necessarily consider the ‘most appropriate use’ of land. We cannot fathom how an ordinance can consider the most appropriate use of land if it cannot consider the use of land.”

Justice Ann Walsh Bradley
Wisconsin Supreme Court

The Wisconsin Supreme Court held on April 11 that Chapter 236 authorizes a municipality to reject a preliminary plat under its extraterritorial jurisdictional authority based on a subdivision ordinance that considers the plat’s proposed use.

In doing so, the court overruled the court of appeals’ decision in Gordie Boucher Lincoln-Mercury v. Madison Plan Comm’n, 178 Wis.2d 74, 503 N.W.2d 265 (Ct.App. 1993), which recognized a difference between zoning and platting.

Gerald G. & Debra L. Wood own a 51.96 acre parcel of land east of Interstate Highway 90/94. Although the parcel is in the Town of Burke, it is also within Madison’s extraterritorial plat approval jurisdiction, because it is within 3 miles of Madison’s corporate limits.

Although some property adjacent to the Woods’ plat is zoned for commercial use, much of the nearby land remains zoned for agricultural purposes, and is used accordingly.

The Woods submitted an extraterritorial plat and land division application to the City of Madison, seeking approval of a preliminary plat that would divide their property into 11 lots. The Woods also sought to change the zoning of nine of the proposed new lots from “Agricultural” to “Commercial.”

Both the town and the county conditionally approved both the plat and the rezoning petition. Nevertheless, the city rejected the plat because it failed to satisfy both the “Criteria for Agricultural Land Division” and the “Criteria for Non-Agricultural Land Division or Subdivision” of Madison General Ordinance (MGO) 16.23(3)(c)1-2.

Under the agricultural criteria, a subdivision must “assist and assure the continuation of agricultural land use on this property.”

Besides obviously failing that criteria, the subdivision also failed the non-agricultural criteria because the development of the commercial lots would be incompatible with and would negatively impact the remaining lots and adjacent agricultural lands. It also would not constitute “infill,” as little of the surrounding area featured commercial use.

Because the adjacent area is largely agricultural, the city concluded that the subdivision “would be a significant expansion of commercial land use in this area, and create additional pressures on the conversion of the remaining agricultural lands that exist on the Wood parcel, as well as adjacent agriculturally-utilized lands.”

The Woods petitioned the Dane County Circuit Court for certiorari review, but Judge Richard J. Callaway affirmed Madison’s rejection of the plat. The Woods appealed, and the court of appeals certified the case to the Wisconsin Su-preme Court, which also affirmed, in a decision by Justice Ann Walsh Bradley.

Justice David Prosser wrote a concurring opinion, joined by Justices Jon Wilcox and Diane Sykes, agreeing with the city’s rejection of the plat, but disagreeing that Gordie Boucher should be overruled.

The Statute

The court began by reciting sec. 236.45(1), which declares the legislative intent of platting as follows: “The purpose of this section is to promote the public health, safety and general welfare of the community and the regulations authorized to be made are designed to … further the orderly layout and use of land; … to prevent the overcrowding of land; to avoid undue concentration of population; …. The regulations provided for by this section shall be made with reasonable consideration, among other things, of the character of the municipality, town or county with a view of conserving the value of the buildings placed upon land, providing the best possible environment for human habitation, and for encouraging the most appropriate use of land throughout the municipality, town or county.”

The court concluded that, not only does the plain language of the statute leave no doubt that subdivision ordinances may consider the use of land, it requires it, emphasizing that portion of the statute providing, that such ordinances “shall be made with reasonable consideration … of the character of the municipality,
town or county with a view … for encouraging the most appropriate use of land throughout the municipality, town or county (emphasis in original).”

Zoning v. Platting

The court then turned to the distinction between zoning and plat approval, and concluded that, because Gordie Boucher permits use to be considered only in zoning, and not plat approval, that decision must be overruled.

The court noted that both sec. 236.45(1), cited above, and sec. 62.23(7)(c), which governs zoning, contain identical language stating that regulations “shall be made with reasonable consideration … of the character of the district … with a view to … encouraging the most appropriate use of land.”

In Gordie Boucher, a car dealer wanted to build a dealership on land in Madison’s extraterritorial jurisdiction, which permitted that use. Nevertheless, Madison denied the plat because it was inconsistent with the City’s Master Plan.

What the court held

Case: Wood v. City of Madison, 01-1206

Issue: Does Chapter 236 authorize a municipality to reject a preliminary plat under its extraterritorial jurisdictional authority based on a subdivision ordinance that considers that plat’s proposed use?

Holding: Yes. The distinction between zoning and platting recognized by the Wisconsin Court of Appeals in Gordie Boucher v. Madison Plan Commission is artificial and is overturned.

Counsel: Troy M. Hellenbrand, Waunakee, Bruce K. Kaufmann, Madison, for appellant; James M. Voss, Larry W. O’Brien, Madison, for respondent.

The court of appeals reversed, concluding that the city exceeded its authority by using its plat approval authority to control land use. The court held, “the approving authority has rejected a proposed land division for reasons having nothing to do with the quality of the division. It is the use to which Boucher proposes to put lot two which the commission claims justifies its rejection of its CSM. Land use control is the function of zoning (emphasis in original).” Gordie Boucher, 178 Wis.2d at 98.

In Gordie Boucher, the court of appeals drew a distinction between zoning and subdivision approval as follows: “[subdivision approval] relates to the quality of the subdivision or land division and not to the use to which the lots in the subdivision or land division may be put. Control over the use to which property may be devoted is a zoning control which can be imposed only by a comprehensive zoning ordinance enacted as required by the zoning enabling act.” Id., at 101-02.

The Supreme Court rejected that distinction, however, noting that there is an overlap between zoning and platting, and concluding that the “quality” requirement is impossible to distinguish from a use requirement.

The court reasoned, “we do not believe the ‘quality’ standard referred to in Gordie Boucher to distinguish between zoning functions and subdivision approval functions is tenable. Under the plain language of the declaration of legislative intent in sec. 236.45(1), all subdivision regulations ‘shall’ be made with a view for ‘encouraging the most appropriate use of land throughout the municipality, town or county.’ Therefore, any regulation relating to the ‘quality’ of a subdivision must necessarily consider the ‘most appropriate use’ of land. We cannot fathom how an ordinance can consider the most appropriate use of land if it cannot consider the use of land.”

Furthermore, the court found Gordie Boucher inconsistent with its decision in Town of Sun Prairie v. Storms, 110 Wis.2d 58, 69, 327 N.W.2d 642 (1983). In Storms, the court stated, “Zoning presupposes that the needs of the community have become sufficiently crystallized to permit the enactment of specific regulations. Subdivision control, on the other hand, establishes more general standards to be specifically applied by an administrative body in order to insure that the change of use will not be detrimental to the community.”

Noting that the decision in Storms spoke of plat authority as “essentially regulating the ‘use’ of land,” the court overruled Gor-die Boucher.

The Merits

Turning to the merits of the decision, the court found that the city’s rejection was neither arbitrary, unreasonable or discriminatory. The court agreed that changing the land from agricultural to commercial use could not “assist and assure the continuation of the agricultural use,” and that the commercial development was not compatible with surrounding developments and land uses.

Accordingly, the court affirmed.

The Concurrence

Justice Prosser agreed that the city acted within its authority in rejecting the subdivision at issue, but wrote separately because he concluded that the majority’s interpretation was at odds with legislative intent, and that Gordie Boucher was correctly decided.

After cursorily reviewing early platting and zoning laws, Prosser heavily emphasized the intellectual climate regarding land use in the early 1950’s, which culminated in the 1955 revisions still largely in effect.

In particular, Prosser emphasized the role of Robert D. Sundby, who was then legal counsel for the League of Wisconsin Municipalities, and who played a key role in the enactment of the statutes, and who, as a court of appeals judge, later wrote the decision in Gordie Boucher.

Prosser cited numerous scholarly works from the early 1950’s, and legislative history that discuss the difference between zoning and platting.

He also quoted extensively from a 1967 summation of land use controls by Professor J.H. Beuscher, who also played a key role in enacting the statutes, in Land Use Controls (Dep’t. of Res. Dev., Wis. Dev. Series, 1967).

Links

Wisconsin Supreme Court

Related Article

Case Analysis

Prosser

Discussing the master plan of the City of Madison, and the decision in Gordie Boucher, Prosser wrote, “There is a point … at which the legislature’s grant of authority to Madison and other municipalities to actually control land use extraterritorially comes to an end, unless these municipalities have exercised lawful authority to zone the land. The court of appeals concluded in the Gordie Boucher case that this point had been reached.”

Prosser reasoned, “There can be no dispute that the legislature has given Wisconsin municipalities expansive subdivision regulatory powers to encourage broad land use objectives and sometimes to enforce them. It has given municipalities substantial planning authority, even beyond three miles of the municipality. But it has not authorized municipalities to — in effect — rezone land by means of extraterritorial subdivision regulation and/or extraterritorial planning. It has not given municipalities power to veto uses of land that are consistent with lawful existing zoning, absent reasonable quality concerns or subdivision defects. That is what Gordie Boucher held, and there is no reason to overrule the case.”

Discussing the particular issue certified by the court, whether Chapter 236 authorizes municipalities to reject a preliminary plat under its extrajurisdictional authority, based on use, Prosser concluded that the answer is not “yes” or “no,” but “‘sometimes,’ depending upon the facts and whether the rejection is ‘reasonable.’”

Click here for Case Analysis.

David Ziemer can be reached by email.

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