2004AP2080 Town of Delavan, et al. v. County of Walworth, et al.

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The defendant Walworth County Zoning Authority granted defendant Gramses’ application for conditional use permits to develop lakefront property in the plaintiff Town of Delavan. The disputed permits satisfied the requirements of the Walworth County shoreland zoning ordinance but violated the plaintiff Town of Delavan’s land division ordinance and master plan. The Town petitioned for certiorari review, contending that the County Zoning Authority violated Wis. Stat. ch. 236 (2003-04), improperly favored the County’s ordinance over the Town’s ordinance, and failed to accord the Town’s master plan sufficient deference. The circuit court disagreed, as do we.

The Town argues that under Wis. Stat. § 236.45, the more restrictive requirements of its land division ordinance and master plan must control. Section 236.45(2)(a) states that “any … town … which has established a planning agency may adopt ordinances governing the subdivision or other division of land which are more restrictive than the provisions of this chapter.” …

“The Town emphasizes that Wis. Stat. § 236.45(2)(a) expressly addresses ‘the subdivision or other division of land’ and argues that the Gramses’ proposal falls under the ‘other division of land.’ We disagree. Although this language broadens the application of § 236.45 to divisions of land that may fall outside of the definition of ‘subdivision,’ it still contemplates ‘divisions of land into parcels.’ Sec. 236.45(2)(a). Nothing in the Gramses’ applications for conditional use permits requires a division of land. The only question before the County Zoning Authority was whether the Gramses’ proposed development was an appropriate conditional use of their two existing lots. Therefore, we hold that § 236.45 does not apply. …”

The Town also argues that the County Zoning Authority misconstrued the law when it considered the Town’s master plan as simply advisory rather than mandatory. In Step Now Citizens Group v. Town of Utica Planning & Zoning Committee, 2003 WI App 109, 264 Wis. 2d 662, 663 N.W.2d 833, we discussed the role of a master plan developed pursuant to the comprehensive planning provisions of Wis. Stat. § 66.1001, and concluded that “a land use plan is not mandatory but merely advisory.”

“[O]ur supreme court concluded that ‘Wis. Stat. ch. 236 does authorize a municipality to reject a preliminary plat … based upon a subdivision ordinance that considers the plat’s proposed use.’ Wood, 260 Wis. 2d 71, 37. Here, the Town erroneously invokes the legal rule of Wood. The Gramses have applied for conditional use permits but have not submitted a plat for approval. Also, we have already determined that ch. 236 does not pertain to the facts at hand. Our holding in Step Now applies and the County Zoning Authority properly acknowledged that the Town’s master plan was not mandatory.”

Finally, the Town states that County Zoning Authority improperly favored the County’s shoreland zoning ordinance over the Town’s land division ordinance.

“Our legislature has given shoreland zoning authority to counties. Wisconsin Stat. § 59.692(1m) states that ‘each county shall zone by ordinance all shorelands in its unincorporated area.’ The statutes also provide that ordinances enacted under a county’s shoreland zoning powers ‘shall not require approval or be subject to disapproval by any town or town board.’ Sec. 59.692(2)(a).[5] Furthermore, ‘[i]n counties having a county zoning ordinance, no zoning ordinance or amendment of a zoning ordinance may be adopted under this section unless approved by the county board.’ Wis. Stat. § 60.62(3). The Town’s desired zoning restrictions were never adopted by the County Board. Accordingly, the County Zoning Authority applied the current Walworth County zoning ordinance and ultimately approved the Gramses’ proposed conditional use.”

Affirmed. Recommended for publication in the official reports.

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

Attorneys:

For Appellant: Steven C. Harvey, Delavan; Steven R. Wassel, Delavan

For Respondent: Mari E. Nahn, Elkhorn