Proposed Use Cannot Be Considered In Extraterritorial Plat Review Process

Municipal Law Alert, August 2010

Land development presents numerous issues for landowners, developers and the municipalities in which the development takes place. Comprehensive plans, subdivision and zoning ordinances all impact land development. For development that takes place within 3 miles of a city or within 1½ miles of a village, extraterritorial subdivision and zoning regulations also apply.

Development that occurs in the extraterritorial areas of cities and villages raises issues related to zoning (contained in Chapter 62 of the statutes), as well as platting and subdivision (contained in Chapter 236). The legislature has stated in both Chapters that “land use” is to be considered as a factor when looking at zoning and platting matters. Most people do not commonly think of a subdivision ordinance as controlling the use of property. However, courts reviewing subdivision decisions have followed the stated legislative intent and held that “land use” is a factor to be considered in reviewing and approving a subdivision plat.

Based upon the legislative intent stated in the statutes, the Wisconsin Supreme Court decided Wood v. City of Madison, 2003 WI 24. In this case, the City of Madison denied a subdivision plat based upon the property’s proposed use following the subdivision. The developer on appeal argued that the subdivision of land and zoning are mutually exclusive concepts. Therefore, land use, a typical zoning matter, should not be used to deny a proposed plat, a matter typically covered by a subdivision ordinance. In sum, the developer argued the City should not be able to exert zoning control by virtue of its extraterritorial plat approval process. The Wood court disagreed and upheld the City of Madison’s denial.

However, the legislature has now overruled the decision in Wood. A new law (2009 Assembly Bill 260, 2009 Wisconsin Act 399) was signed by Governor Doyle on May 18, 2010 and became effective on June 1, 2010. The new law provides that “a municipality may not deny approval of a plat or certified survey map…on the basis of the proposed use of land within the extraterritorial plat approval jurisdiction of the municipality, unless the denial is based on a plan or regulations, or amendments thereto, adopted by the governing body” under the statutory provisions for extraterritorial zoning.

By passing the new law, the legislature has determined that “land use” may not be considered by a municipality when denying an exterritorial plat unless the denial is based upon extraterritorial zoning regulations adopted by the municipality. The legislative change is too late for Wood, but in time for future developers. Municipalities will no longer be able to utilize their platting authority to control land use decisions.

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