Opinion · Wisconsin Supreme Court
Wood v. City of Madison
Wood v. City of Madison, 260 Wis. 2d 71 (Wis. 2003)
- Type
- Opinion
- Court
- Wisconsin Supreme Court
- Jurisdiction
- Wisconsin
- Date
- 2003-04-11
- Topic
- general
ANN WALSH BRADLEY, J. ¶ 1. This case is before the court on certification from the court of appeals.1 The plaintiffs-appellants, Gerald and Debra Wood (the Woods) contend that the City of Madison (Madison)2 improperly used its plat approval authority to mandate land use through a subdivision ordinance. In essence, they assert that Madison used its platting authority to perform a zoning function. ¶ 2. In its certification, the court of appeals more precisely states the issue as follows: Does Wis. Stat. ch. 236 authorize a municipality to reject a preliminary plat under its extraterritorial jurisdictional authority based on a subdivision ordinance that considers the plat's proposed use?
Citator
UpLaw has not yet analyzed Wood v. City of Madison. The absence of a flag is not a finding that it is good law.
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For the defendants-respondents the cause was argued byJames M. Voss, assistant city attorney, with whom on the brief wasLarry W. O'Brien, acting city attorney.
An amicus curiae brief was filed byJohn A. KassnerandBrennan,Steil, Basting MacDougall, S.C., Madison, on behalf of the Wisconsin Realtors Association, and there was oral argument byJohn A.Kassner.Page 74
An amicus curiae brief was filed byMark B. Hazelbaker, Madison, on behalf of the Dane County Towns Association.
An amicus curiae brief was filed byClaire Silverman, Madison, on behalf of the League of Wisconsin Municipalities.
An amicus curiae brief was filed byCarol B. Nawrocki, Shawano, on behalf of the Wisconsin Towns Association.
¶ 2. In its certification, the court of appeals more precisely states the issue as follows:
Does Wis. Stat. ch. 236 authorize 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 addition, the court of appeals requests that we review the holding in
¶ 3. In response to the issue presented, we conclude that Wis. Stat. ch. 236 (1999-2000)3does authorize a municipality to reject a preliminary plat under its extraterritorial jurisdictional authority based upon a subdivision ordinance that considers the plat's proposed use. Because
¶ 5. The Woods submitted an extraterritorial plat and land division application to the City of Madison,Page 76seeking approval of a preliminary plat5that would divide their property into eleven lots.6The Woods sought to change the zoning of nine of the proposed new lots from "Agricultural" to "Commercial."
¶ 6. The City of Madison Department of Planning and Development issued a report analyzing the proposed plat under 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. The report stated that the preliminary plat failed to meet the agricultural land division criteria because it did not "assist and assure the continuation of agricultural land use on this property."
¶ 7. In considering the preliminary plat under the non-agricultural land division criteria, the report concluded that the development of the commercial lots would be incompatible with and would negatively impact the remaining lots and adjacent agricultural lands. It also concluded that commercial development would not constitute "infill," as little of the surrounding area featured commercial use. An addendum to the report indicated that "the Planning Unit concludes that the proposed subdivision plat does not meet the standards for approval at this time." The report recommended that the City of Madison Common Council reject the resolution approving the preliminary plat.Page 77
¶ 8. The City of Madison Plan Commission considered the Woods' application at two separate public hearings, on March 20, 2000 and May 15, 2000. At the first hearing, three representatives of the Woods spoke on their behalf.7After the second hearing, the plan commission recommended denying the Woods' application.
¶ 9. The Common Council subsequently adopted the plan commission's recommendation and rejected the proposed plat. Noting that "the area [adjacent to the Woods' land] is largely agricultur[al]," it concluded that "[t]he subdivision of the bulk of the agricultural lands that exist on the Wood property 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."
¶ 10. The Woods petitioned the Dane County Circuit Court for certiorari review of the City of Madison's decision, pursuant to Wis. Stat. §§236.15(5) and62.23(7)(e)10. The court affirmed Madison's rejection of the plat, finding that the City "did not violate any part of" chapter 236, and that the City's decision was intended to further the quality of the subdivision. It also concluded that the rejection of the plat was "clearly grounded in the plain language of the non-agricultural criteria" of MGO § 16.23. The Woods appealed to the court of appeals, which subsequently certified the appeal to this court.Page 78
¶ 12. Resolution of the remaining issues requires us to review the decision by the Madison Common Council rejecting the Woods' preliminary plat. Appeals from the rejection of a plat are governed by Wis. Stat. §§236.13(5) and62.23(7)(e)10. A person aggrieved by such a rejection may commence a certiorari action. Wis. Stat. §62.23(7)(e)10. On certiorari, a court "shall direct that the plat be approved if it finds that the action of the approving authority . . . is arbitrary, unreasonable or discriminatory." Wis. Stat. §236.13(5). On appeal from an order or judgment entered on certiorari, a reviewing court reviews the record of the agency, not the findings or judgment of the circuit court.
Does Wis. Stat. ch. 236 authorize a municipality to reject a preliminary plat under its extraterritorial jurisdictional authority based on a subdivision ordinance that considers the plat's proposed use?
Chapter 236 of the Wisconsin Statutes is entitled "Platting Lands and Recording and Vacating Plats." It "regulates intensively the process by which land can be divided into building sites."
The purpose of this chapter is to regulate the subdivision of land to promote public health, safety and general welfare; to further the orderly layout and use of land; to prevent the overcrowding of land; to lessen congestion in the streets and highways; to provide for adequate light and air; to facilitate adequate provision for water, sewerage and other public requirements; to provide for proper ingress and egress; and to promote proper monumenting of land subdivided and conveyancing by accurate legal description. The approvals to be obtained by the subdivider as required in this chapter shall be based on requirements designed to accomplish the aforesaid purposes.
¶ 14. Wisconsin requires that all subdivisions be surveyed and that all plats be approved before they can be recorded. Wis. Stat. §236.03(1). Local governments with planning agencies have the power to approve subdivision plats.
¶ 15. Approval of any plat is also conditioned on compliance with any subdivision ordinance validly enacted by the appropriate municipality, town, or county. Wis. Stat. §236.13(1)(b). If multiple governing bodies or agencies with authority to approve or reject a plat have ordinances with conflicting requirements, the plat must comply with the most restrictive requirements. Wis. Stat. §236.13(4).
¶ 16. In Wis. Stat. §236.45, the legislature has permitted municipalities, towns, and counties, if they have established planning agencies, to legislate more intensively in the field of subdivision control than provided for the state at large by allowing them to adopt ordinances which are more restrictive than the provisions of ch. 236. Section236.45(3) authorizes municipalities to utilize their subdivision ordinances within their extraterritorial plat approval jurisdiction.
¶ 17. Wisconsin Stat. §236.45(1) explains the legislative intent behind the additional subdivision plat approval authority granted under the section:
(1) Declaration of legislative intent.Page 81The purpose ofthis section is topromote 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 regulationsprovided for by this section shall be made withreasonable consideration, among other things, of thecharacter of the municipality, town or county with aview ofconserving the value of the buildings placed upon land, providing the best possible environment for human habitation, and for
encouraging the mostappropriate use of land throughout the municipality,town or county.
Wis. Stat. §236.45(1) (emphasis added).
¶ 18. In
¶ 19. The plain language of the declaration of intent in §236.45(1) leaves no doubt that subdivision regulations and ordinances may consider the use of land. In fact, the statute requires that such ordinances "
¶ 20. The Woods present no argument to the contrary regarding the meaning of the term "use" as set forth in §236.45(1). They do not claim that the word "use" in the context of the phrase "encouraging the most appropriate use of land" refers to something other than the common, ordinary meaning of the word.
¶ 21. Notwithstanding the explicit language in Wis. Stat. §236.45(1) authorizing the planning agencies of municipalities, towns, and counties to enact subdivision ordinances that consider the "most appropriate use of land," the Woods contend that the use ofPage 82property may not properly be the subject of subdivision approval authority under chapter 236. They assert that platting authority is inherently different from zoning authority and that only zoning regulations may consider the use of land. In essence, they claim that Wis. Stat. §62.23relating to city planning, and in particular subsections (7) and (7a) of the statute, on zoning and extraterritorial zoning, respectively, provide the sole authorization for municipal regulations concerning land use.8
¶ 22. Wisconsin Stat. §62.23(7)(a) authorizes cities to regulate by zoning:
(a) Grant of power. For the purpose of promoting health, safety, morals or the general welfare of the community, the council may regulate and restrict by ordinance, . . . the size of yards, courts and other open spaces, the density of population, and the location and use of buildings, structures and land for trade, industry, mining, residence or other purposes. . . .
Cities are authorized under §62.23(7)(b) to "divide the city into districts . . . as may be deemed best suited to carry out the purposes" of the chapter. Within zoning districts, cities may "regulate and restrict the erection, construction, reconstruction, alteration or use of buildings, structures or land." Wis. Stat. §62.23(7)(b).
¶ 23. The purposes of zoning are listed in §62.23(7)(c), and apply as well to extraterritorial zoning under Wis. Stat. §62.23(7a).9The listed purposes are remarkably similar to those which underlie subdivisionPage 83plat approval authority under §236.45(1). Notably, both zoning and subdivision plat approval authority state that regulation "shall be made with reasonable consideration . . . of the character of the district . . . with a view to . . . encouraging the most appropriate use of land." Wis. Stat. §§62.23(7)(c) and236.45(1).
¶ 24. Although the legislature has conferred upon cities both extraterritorial zoning authority and extraterritorial subdivision plat approval authority, and has stated that the purposes for each type of regulation are nearly identical, the Woods insist that the use of land may not be considered in subdivision plat approval decisions. They largely base their contention on
¶ 25.
¶ 26. On certiorari review, the circuit court concluded that Madison's rejection of Boucher's CSM based on inconsistency with the city's master plan constituted extraterritorial zoning. The court determined that the city "used its plat approval authority to regulate for what, as opposed to how, the parcel may be used."
¶ 27. On appeal, the issue was "whether the plan commission engaged in zoning when it used its plat approval authority to control land use in the city's extraterritorial plat approval jurisdiction."
In this case, however, the approving authority has rejected a proposed land division for reasons having nothing to do with the quality of the division. It is theuseto 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.
¶ 28. The
While ch. 236, Stats., and sec.236.45, Stats., conferPage 85
broad regulatory authority upon local governing bodies, that authority relates to thequality of thesubdivision or land divisionandnot to the use towhich the lots in the subdivision or land division maybe put. Control over the use to which property may bedevoted is a zoning controlwhich can be imposed only by a comprehensive zoning ordinance enacted as required by the zoning enabling act.
¶ 29. The court in
¶ 30. Thus, we do not believe the "quality" standard referred to in
¶ 31. As noted above, in certifying the issue presented in this case, the court of appeals concluded thatPage 86"
¶ 32. The certification specifically points to the language in Wis. Stat. §236.45requiring that governmental bodies enacting subdivision ordinances do so with a view of "encouraging the most appropriate use of land throughout the municipality, town or county." The court of appeals notes that it did not address the above-quoted language in
¶ 33. We agree with the court of appeals that the holding in
¶ 34. The court did not attempt to reconcile its conclusion that land use is strictly a zoning issue with the final sentence in §236.45(1): "The regulationsPage 87provided for by this section 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." The court's conclusion is contrary to this clear statutory language.
¶ 35. Moreover, while
As long as the regulation is authorized by and within the purposes of ch. 236, the fact that it may also fall under the zoning power does not preclude a local government from enacting the regulation pursuant to the conditions and procedures of ch. 236.
¶ 36. We further stated in
Zoning presupposes that the needs of the community have become sufficiently crystallized to permit the enactment of specific regulations.Page 88Subdivisioncontrol, on the other hand,establishes more generalstandards to be specifically appliedby an administrative bodyin order to insure that the changeof use will not be detrimental to the community.
¶ 37. For these reasons, we conclude, in response to the issue set forth in the certification, that Wis. Stat. ch. 236 does authorize a municipality to reject a preliminary plat under its extraterritorial jurisdictional authority based upon a subdivision ordinance that considers the plat's proposed use. Because
¶ 38. Our conclusion in large part is driven by the plain language of the declaration of intent in §236.45(1) which leaves no doubt that subdivision ordinances may consider the proposed use of land. The Woods and the amici argue that such a conclusion is bad policy. The remedy for change of this policy, however, lies with the legislature.11The courts should not rewrite the clear language of the statute.
¶ 40. The ordinance provisions at issue are part of Madison's "Land Subdivision Regulations" ordinance, which functions to "regulate and control the subdivision of land within the corporate limits and extraterritorial plat approval jurisdiction of the City. . . ." MGO § 16.23. Specifically at issue is Madison's extraterritorial plat approval ordinance, under which "[t]he Plan Commission may recommend or approve the subdividing of lands in the extraterritorial plat approval jurisdiction based on the applicable criteria enumerated hereinafter." MGO § 16.23(3)(c).
¶ 41. The "applicable criteria" depend on whether the land is agricultural or nonagricultural. The extraterritorial plat approval ordinance, MGO § 16.23(3)(c), sets forth only one criterion for agricultural land division: the subdivision must "assist and assure the continuation of the agricultural use." For nonagricultural land, a subdivision or land division must meet each of four criteria. It must: "be compatible with adjacent land uses" and "maintain the general land use pattern of the area"; "result in a development pattern which is compatible with surrounding developments and land uses"; "not demonstrably adversely affect the City's ability to provide public services, install public improvements or accomplish future annexations"; and either constitute "infilling" of vacant land or "provide permanent open space lands for use by the general public."12MGO § 16.23(3)(c)2.a.-d.Page 90
¶ 42. The City of Madison plan commission determined that the proposed preliminary plat did notPage 91satisfy the Criteria for Agricultural Land Division. It found that the subdivision did not comply with MGO § 16.23(3)(c)1. because it would not "assist and assure the continuation of agricultural land use on the property" and because "development of nine lots for commercial purposes under the proposed C-2 commercial zoning will result in a loss of most of the agriculturally utilized lands within the boundaries of the proposed preliminary plat."
¶ 43. The plan commission also determined that the subdivision did not meet three of the "Criteria for Non-Agricultural Subdivision or Land Division." Finding that the subdivision did not comply with MGO § 16.23(3)(c)2.a. because it did not maintain the general use patterns of the area, the plan commission stated:
The undivided property currently consists of agricultural lands. . . . The subdivision of this property to create nine commercial lots does not appear to be compatible with adjacent land uses and [does not] maintain the general land use pattern of the area in question. The development of nine commercial lots will be inconsistent with the remaining conservation easement parcel . . . the remaining agricultural lands . . . in addition to vacant, agricultural, unimproved lands to the west and to the east.
¶ 44. The plan commission also determined that the subdivision did not meet the requirements of MGO § 16.23(3)(c)2.b. because the commercial development was not compatible with surrounding land uses:
The development of currently agricultural lands for commercial purposes proposed with this preliminary plat would extend the scattering of unplanned, commercial development within the general area. . . . The development of the agricultural lands on this property for commercial purposes will negatively impact thePage 92
rural agricultural land uses that will remain on this parcel, as well as adjacent parcels to the immediate east and west.
¶ 45. Finally, the plan commission found that the proposed plat was inconsistent with MGO § 16.23(3)(c)2.d. because the commercial lots would not constitute infill:
Although there is a scattering of . . . commercial development adjacent to this parcel, the existing agricultural land use on the parcel, combined with the extensive agricultural land uses on properties immediately to the east and west . . . establish the general character of the area. . . . [The area] is largely agricultur[al] interspersed with small, single-family improved lots. The subdivision of the bulk of the agricultural lands that exist on the Wood property would be a significant expansion of commercial land use in this area. . . . The creation of nine commercial lots on a parcel where no commercial activity exists beyond [an] agricultural trucking firm . . . does not support a conclusion that this would be infill development. . . .
¶ 46. The plan commission therefore recommended that the Common Council deny the proposed plat. The Common Council adopted the findings of the plan commission and subsequently rejected the proposed plat.
¶ 47. Like the circuit court, we conclude that the findings in the City of Madison's decision were clearly grounded in the plain language of the non-agricultural criteria of the Madison general ordinances relating to subdivision plat approval. Accordingly, we determine that the City of Madison acted within its authority in rejecting the application and that its actions were not arbitrary, unreasonable, or discriminatory.Page 93
¶ 48. The Woods claim that platting approval is purely ministerial and that the Common Council's consideration of compatibility of uses was improper because it required an exercise of discretion. However, discretion is granted to municipalities to condition approval on compliance with municipal ordinances. Wis. Stat. §236.13(1)(b). A city has broad discretion to implement subdivision control if its ordinances comport with the platting statutes.
¶ 49. Finally, the Woods assert that the ordinance provisions and their application by the City of Madison are too vague for Madison to fulfill its administrative responsibilities under the law. The Woods' vagueness argument is premised on the ordinance lacking set standards, resulting in the unauthorized exercise of discretion. Because we have determined above that the City of Madison properly made findings which comported with specific standards set forth in the ordinances, and that the City appropriately exercised its discretion, the Woods' vagueness argument must fail.
¶ 50. Additionally, the Woods' vagueness argument relies on
¶ 51. The court determined in
¶ 54. I write separately because my analysis of the law is different from the analysis in the majority opinion. In particular, there is no need for the court to overrule
¶ 55. Although the majority opinion is correct in affirming the rejection of the disputed plat, its analysis is at odds with the intent of the legislature. This requires me to disavow both the majority's interpretation of subdivision regulation and its decision to overrule
¶ 57. Regulating the platting of land has a long history in this state. The first applicable regulations on this subject "are contained in the Laws of Michigan of 1833. Similar provisions are contained in the Revised Statutes of 1839 of the territory of Wisconsin and in the first statutes of the state, Revised Statutes of 1849." 35 Op. Att'y Gen. 437, 439 (1946). As early as 1882 the legislature required that the streets and alleys in new subdivisions be platted to conform to existing streets and alleys. § 1, ch. 52, Laws of 1882.
¶ 58. Chapter 236 of the Wisconsin Statutes, entitled "Platting Lands and Recording and VacatingPage 97Plats," represents the sum of this state's subdivision enactments over the years. The chapter was comprehensively revised in 1955.
¶ 59. Several of the law's key provisions originated before 1955. For instance, cities have had extraterritorial plat approval authority since 1909. The legislature provided that when land was divided within "one and one-half miles" of a first, second, or third class city, the owner of the land had to "cause the streets and alleys shown on the map . . . to be laid out and platted to the satisfaction of the common council of such cities." § 1, ch. 121, Laws of 1909. Any map or plat that did not receive such approval could not be recorded.
¶ 60. In 1945 the legislature created Wis. Stat. § 236.143, relating to the subdivision of land outside the limits of incorporated cities or villages in counties having a population of 500,000. This section, now repealed, was important, in part because it gave the state's most populous county power to "regulate, restrict, and in specific areas
¶ 61. Former section 236.143 also contained a "Declaration of Legislative Intent."15Many phrases in this declaration were borrowed from phrases in the zoning statute for cities.
Premature subdivision of land and the haphazard scattering of homes are certain sources of economic waste due to the enormous costs for water, sewers, drainage, streets, police and fire protection, lighting and other services which will sooner or later be demanded. The large municipalities will also be confronted with the problem of rehabilitating large areas which are being depopulated and are rapidly depreciating in value due to the movement to the outskirts.
. . . .
The revision of the state platting law in 1935 is also a reason for renewed interest in the regulation of the subdivision of land.
Encouragement of local planning and zoning by state and federal governments has resulted in a pronounced interest in planning on the part of local officials. Numerous Wisconsin municipalities are now doing some planning work.Page 101Planning, zoning, and subdivisionregulation go hand in hand. Some of the
greateststrides in planning accomplishment have been made bymeans of control over the subdivision of land. A majority of the planning mistakes of the past can be traced directly to faulty subdivision practices.
¶ 63. Rabuck urged municipalities to develop comprehensive plans. He noted the extraterritorial jurisdiction already existing in the law. He acknowledged that zoning was the most effective way of reserving land "for its most appropriate use, but in the absence of zoning regulations much good can be accomplished by discouraging the subdivision of land. . . ." Rabuck,
¶ 64. The League's interest in subdivision regulation was heightened when Robert D. Sundby served as its legal counsel in the 1950s.
¶ 66. In a memorial edition of the
always fought for an extension of the public influence over our natural inheritance of land, water, and environment. . . . He taught us that legal principles in the field of land use planning gain meaning only from the context in which they are applied, and that the relationship between the legal structure and the way in which that structure is used is more important than abstract disputation about legal principle that has no contact with reality.
¶ 67. Articles about land use control appeared regularly in the
Private interests, in the creation of land subdivisions, substantially determine the character of a community's development. The creation of new parcels of land is the critical point in determining how the city will grow. . . . If the subdivider's plan is not in accord with community interests, the community is usually barred from rectifying it by prohibitive costs. . . .Page 103
Most serious trouble can be averted if the public interest is represented at the creation of the new subdivision.
Fieldman Junig,
¶ 68. The student authors argued that both "the quality and quantity of new subdivisions should come under government scrutiny at this initial stage."
¶ 69. The students examined Wisconsin's subdivision statutes and concluded that chapter 236 was not adequate. They stated that "The important requirement for planning is that land-divisions be approved by governing bodies. . . . [G]overnment
¶ 70. In the early 1950s, Professor Beuscher undertook a study of subdivision law. Frank L. Bixby, Note,
¶ 71. On the first page of her 68-page article, Melli explained that:
Subdivision control, the regulation of the division of raw land into building lots, is a vital component ofPage 104
land-use control. . . . [C]ontrol of [the subdivision] process has become recognized as an integral part of any land-use planning scheme . . . .
Subdivision control is, of course, only one of the instruments used by a community to regulate the use of privately owned land in the public interest. It is closely related to zoning control in that both are preventative measures intended to avert community blight and deterioration by requiring that new development proceed in defined ways and according to prescribed standards. . . .
[S]ubdivision control is recognized as a legitimate land-use tool. . . .
Marygold Shire Melli,
¶ 72. So timely and persuasive was Melli's article that the Wisconsin Legislative Council's Judiciary Committee commenced a study on the "Subdivision and Platting of Land." The Legislative Council hired Melli, and its Judiciary Committee created an Advisory Committee on Subdivision and Platting, chaired by Robert D. Sundby, legal counsel for the League of Wisconsin Municipalities.18According to the Legislative Council's report to the 1955 legislature, "All sections recommended by the advisory committee were prepared originally by a drafting subcommittee consisting of Mr. Sundby, the chairman of the committee, and M.S. Melli,Page 105the legislative council staff member assigned to the committee." Report of the Wisconsin Legislative Council, Volume IV,
¶ 73. The Legislative Council report contained a lengthy analysis of the background and deficiencies of the existing subdivision chapter, together with a draft bill with notes accompanying each section.19The report set out six explicit objectives of the study and the draft legislation. 1955 Report,
¶ 74. Although the report did not emphasize municipal control over land use in adjacent unincorporated land, it acknowledged that "[c]ontrol over the way in which a land owner divides up his land, i.e., control overPage 106the type of development he may make, is one of the most contested areas of subdivision control."
Minimum standards for thequalityof subdivisions raise an important question regarding the extent of control. If the subdivision statute is intended to control land use development, then it follows theoretically that perhaps all divisions of land, at least those which create parcels big enough to be built upon, should be controlled. . . .
Under present law, local units of government may control all divisions of land. § 236.143(2) of the present law grants power to them to regulate the division or subdivision of land. . . .
The committee recommends that the present law be retained, i.e., that the local units of government have the option of controlling all land divisions. See §236.45of the proposed revision. . . .
The committee also recommends changes in the definition of subdivision which should increase the extent of control of the state statute to a limited degree. . . . The committee recommends 2 changes in this definition: an increase from one to 5 years in the time involved and an enlargement of the purpose of division to sale or building development.
¶ 75. The Legislative Council bill was introduced as Senate Bill 20. Robert Sundby and Jacob Beuscher testified in both houses in support of the bill. Senate Bill 20 passed with few changes to become Chapter 570, Laws of 1955.Page 107
¶ 77. In 1959 Marygold Melli co-authored a law review article with planner Robert S. Devoy. The article was entitled
¶ 78. Extraterritorial planning controls are "powers given to cities and villages providing them with some control over the type of development in unincorporated areas on their immediate fringe."
Ideally, if extraterritorial planning is to be fully effective it should embrace all the controls available to the community. Therefore, it should be based upon a comprehensive, enforceable master plan and should include the power to zone, to control subdivision, to establish building setbacks, and to protect plans for future streets, playgrounds, parks and other recreational facilities.
In Wisconsin, a municipality may adopt a master plan covering any area beyond the municipal boundariesPage 108
related to the development of the municipality. In addition, specific grants of extraterritorial power have been made by the legislature for subdivision approval and official maps to cover certain limited areas.Zoning remains the major field in which noextraterritorial power has been granted.
¶ 79. Melli argued in favor of extraterritorial zoning. "The principal shortcoming of extraterritorial controls in Wisconsin results from the fact that there is no extraterritorial zoning authority. The power to zone, to control the actual use to be made of the land, is probably the most important single land use control."
¶ 80. Melli acknowledged that "the power to control new subdivisions and to map new streets is much less effective" without a concomitant power to zone.
¶ 81. Melli's article was accompanied by an article by Robert D. Sundby entitled
The state law regulates only subdivisions where the act of division creates 5 or more parcels or buildingPage 109
sites of 1 1/2 acres or less in area, or where 5 or more such parcels are created by successive divisions within a period of five years. The state law is therefore subject to considerable evasion through the process of division and redivision. However, the statute authorizes cities, villages, towns, and counties to adopt local subdivision ordinances, provides that such ordinances may include provisions regulating divisions of land into parcels larger than 1 1/2 acres or divisions of land into less than 5 parcels. Thus, municipalities are given ample authority to control any division whatsoever for purposes of sale or building development.
¶ 82. In the years following the 1955 revision of chapter 236, the Legislative Council's Urban Problems Committee studied the need for additional land use controls in unincorporated areas. Part of this discussion was recounted later by then court of appeals Judge Robert D. Sundby in
[M]any planners and lawyers tend to compartmentalize governmental powers first into the major areas of: power of eminent domain, power of taxation, power of appropriation, and police power. Then the major plan implementation police power tools, such as zoning, subdivision control, and official mapping, are broken out and often dealt with as if they existed apart from the whole fabric of governmental power. So that comprehensive areawide planning may be successfully implemented, the entire range of police power controls must be effectively coordinated one with another . . . to deal in the public's interest. In short, a more unitary concept of the entire range of sovereign powers of the state must be developed.
J.H. Beuscher,
¶ 84. Professor Beuscher took pains to educate his readers on the scope of land use planning goals, including
¶ 85. Beuscher pointedly advocated many changes in the planning statutes to effect more complete control of development. But in the absence of such changes, he urged tough-minded utilization of the tools at hand. "The time for a return to simple fundamentals is long overdue. The focus should not be on the niceties, the subtleties, the particular limitations and potentials of individual legal tools. The focus should be on the accomplishment of the community objectives themselves as expressed in properly prepared development plans."
¶ 86. In Section IV of his Report, Beuscher discussed the Master Plan — the "physical plan" contemplated in Wis. Stat. §62.23(2). Then he asked:
Is a master plan a mere guide to the local planning agency and governing body, or is it in some respects in and of itself a legally binding land use control?
Wis. Stat. §62.23, reflecting the philosophy of the Standard Planning Act of 1928, seems on its face toPage 112
contain the answer when it provides in subsection (3) that: "The purpose and effect of the adoption and certifying of the master plan or part thereof shall be solely toaidthe city plan commission and the council in the performance of their duties." The fact that no public hearing on the proposed master plan is required and that it need be approved only by the plan commission and not by the local legislative body seems to be further evidence that the plan is intended only for informal guidance, not for regulatory control.
Nevertheless, from the outset adoption of a master plan has had one regulatory effect. Once the plan is adopted by the plan commission, the local governing body may not act finally on a variety of specified public improvement projects until the matter has first been referred to the plan commission and until the commission after consideration has reported.
In rewriting Wis. Stats. Chapter 236, the subdivision code, in 1955, the Legislature provided:
Approval of the preliminary or final (subdivision) plat shall be conditioned upon compliance with: . . . (c) any local master plan or official map; . . .
The extent or validity of the requirement that a subdivision plat comply with a local master plan has not been tested before the Wisconsin Supreme Court. Involved is the technical issue of whether the Legislature intended to delegate to the plan commission a legislative and a regulatory function so far as concerns master plans. If the Legislature had this intention, was the delegation valid under the 14th Amendment of the Federal Constitution, which imposes an obligation on states that property not be taken "without due process of law."
¶ 87. Beuscher counseled that it would "strengthen [the case for the plan] if the local governing body indicated its approval of the master plan."
¶ 88. Returning to subdivision regulation, Beuscher emphasized that besides zoning, "[a] subdivision control ordinance is another important device which can be used to regulate and order the placing of development."
The private developer seeks the benefit of recording his lots for ease of sale; he contemplates that the public will assume the long-run maintenance of streets, sewers, and water lines; he will undoubtedly affect the community tax base and alter existing governmental service functions and their costs; and the initial decisions of location, lot size, street width, type of housing, will undoubtedly establish an indelible pattern of land use that will affect the community for generations to come. In addition, the state is interested in secure real estate descriptions to prevent fraud and conflict; and mortgage lenders are interested in the long-term stability of the new neighborhood which is being established.For any orall of these reasons, the body public is justified inregulating the process of subdividing and inestablishing those reasonable conditions upon whichplat approval will be granted.
. . .Page 114Difficulties arise in determining what arereasonable conditions. . . . Courts will be moved to accept those conditions which sound planning and empirical and analytical evidence justify.They willreject those conditions which appear to overreach,rely
on erroneous or incomplete data, or which aresimply stalling tactics designed to slow down orprevent development.
. . . Theoretically, one could argue that all costs associated with the development should be borne by the private developer and passed on to his buyers, who after all are seeking to profit from his decision to subdivide. There should be no hidden subsidy to the developer or to his buyers in the form of community absorption of development costs.Practically, it isnot possible to push the conditions for plat approvalthis far. First of all, it is often very difficult to determine the true costs of development.After themajor cost items of street, water, and sewer have beensettled, cost determination can become a very speculative process. . . . Therefore, the conditions imposed for plat approval must be reasonable; but the definition of reasonableness may be expanded by comprehensive planning and the presentation of data that justify the particular challenged set of conditions or condition.
¶ 90. A landowner seeking to subdivide land submits a proposed plat to all authorities whose approval is required. Wis. Stat. §§236.11,236.12. Approval of the preliminary or final plat
¶ 91. Wisconsin Stat. §236.11(1)(b) contains the flip side of Wis. Stat. §236.13(1). It provides that if "the final plat
¶ 92. The purpose of subdivision regulation is broadly stated in Wis. Stat. §§236.01and236.45(1) and includes "to further the orderly layout and use of land."21Wis. Stat. §§236.01,236.45(1).
¶ 93. Local governments are authorized to adopt "ordinances governing the subdivision or other division of land which are
¶ 94. A "more restrictive" ordinance may apply to
¶ 95. Given the plain language of the chapter and the extensive legislative history behind this language, it cannot reasonably be argued that Madison violated either the letter or the spirit of the statute when it failed to approve the Woods' plat. The Woods' land was and still is zoned as agricultural land. Both this land and much of the surrounding land are still used as agricultural land. Thus, the
¶ 97. There is a point, however, at which the legislature's grant of authority to Madison and other municipalities to actually
¶ 98. In
¶ 99. The court of appeals explained that the proposed Gordie Boucher land was part of a 41.25 acre parcel that was being subdivided into four lots. The specific lot in question was adjacent to U.S. Highway 151 on the west and to an established landfill on the east.
¶ 100. Although the Plan Commission gave five reasons for its action, the essence of its disapproval was that (1) the proposed survey was not consistent with the City's Master Plan, including the Peripheral AreaPage 118Development Plan, the Land Use Plan, and the Parks and Open Space Plan, and (2) the certified survey map was inconsistent with the Plan Commission's policy for agriculture and non-agriculture land divisions.
¶ 101. The circuit court, Moria Krueger, Judge, rejected the City's reasons on grounds that Madison was effectively attempting to rezone the lot to agriculture through planning and subdivision ordinances when the lot had been zoned commercial for many years. The circuit court ruled that the City's Master Plan could not override Dane County's zoning ordinance.
¶ 102. The court of appeals agreed. In a unanimous opinion written by Judge Sundby, the court ruled that:
[T]he legislature has not given the city's master plan, a planning tool, pre-eminence over county zoning, a regulatory tool. . . . There is no authority for the commission's contention that a county zoning ordinance is subordinate to the city's master plan. We reject the commission's contention; it has no support in the statutes or case law.
¶ 103. This analysis was and is unassailable. It does not require reliance on treatises unrelated to the peculiarities of Wisconsin law. It is fundamental Wisconsin law.
¶ 104. There can be no dispute that the legislature has given Wisconsin municipalities
¶ 105. The very existence of extraterritorial zoning, as set out in Wis. Stat. §62.23(7a), constitutes a clear expression of legislative intent. This court is not at liberty to ignore the mechanism the legislature has designed for extraterritorial zoning.22Page 120
¶ 107. This reliance is suspect for several reasons. First, sections or subsections that are labeled as declarations of purpose or declarations of legislative intent are different from sections or subsections that clearlyPage 121grant power. As an example, Wis. Stat. §§236.01and236.45(1) should be compared to Wis. Stat. §62.23(7)(a), a provision which clearly grants power.
¶ 108. Second, the language in the declarations is conditional language. To illustrate, both declarations list a purpose to "further the orderly layout and use of land." To "further" something is to "help the progress of" or "advance" something.
¶ 109. Looking at the other language relied upon, we see the terms "reasonable consideration" and "encouraging the most appropriate use of land." "Reasonable" implies that not all "consideration" will pass muster. "Encourage" is a conditional verb like "further," different from "control" or "effect." These words do not connote the unlimited subdivision regulatory authority the majority appears to embrace. This is especially evident when all the passages relied upon are returned to the context from which they have been taken.23
¶ 110. Third, the very existence of conditional words in the declarations recognizes the limits on subdivision regulation and the need to harmonize it with zoning, both extraterritorial and otherwise. Zoning, like subdivision regulation, is an exercise of the police power. When a municipality is given statutoryPage 122authority to pass a subdivision ordinance to "promote the public health, safety, and general welfare of the community" — words reflective of the police power — the municipality is not thereby given authority to include explicit zoning in the subdivision ordinance.
¶ 111. The certified question before this court is stated by the majority: "Does Wis. Stat. ch. 236 authorize a municipality to reject a preliminary plat under its extraterritorial jurisdictional authority based on a subdivision ordinance that considers the plat's proposed use?" Majority op. at ¶ 2. The key word in this question is "reject." The obvious answer to the question is "sometimes," depending upon the facts and whether the rejection is "reasonable." There is no absolute "yes" or "no" answer. A municipality may not seek to compel a particular land use that contradicts a validly enacted zoning ordinance by arbitrarily rejecting a plat under the extraterritorial component of its subdivision ordinance. This is the core teaching of the
¶ 112. "Consider" is not the key word in the certified question. The majority opinion observes that "any regulation relating to the `quality' of a subdivision must necessarily
¶ 113. Judge Robert Sundby was an architect of the Wisconsin subdivision statute. He was a zealous advocate of municipalities. The majority's failure to acknowledge Judge Sundby's pivotal role in reforming chapter 236 of the Wisconsin Statutes is surprising. In
¶ 114. Even scholars who have sought to minimize the distinction between subdivision control and zoning have understood and respected the distinction. Marygold Melli wrote forthrightly that "Zoning relates to the type of building development which can take place on the land; subdivision control relates to the way in which the land is divided and made ready for building development." Melli,
¶ 115. Professor Beuscher, a tireless advocate for land use planning, nonetheless was careful to recognize property rights:
Though planning and plan implementation of necessity focus on public needs and desires, it is important to be aware of and understand private property rights which exist and are protected by both the federal and state constitutions. The goal of the courts as arbiter between the public actions which are in conflict with or encroach upon alleged private property rights has been to strike a balance — a balance which will on one hand allow needed public programs to be carried out and at the same time preserve as large a sphere as possible within which the private decision-maker and private property rights may be exercised.Page 124
Beuscher,
¶ 116. Beuscher also wrote that "it must be conceded that literal application of the requirement that the subdivision comply with the approved master plan would violate the 14th Amendment in some instances . . . because the regulatory impact on the particular landowner [would be] so great as to constitute an invalid taking of property in his case."
¶ 117. 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.
¶ 118. I am authorized to state that JUSTICE JON P. WILCOX and JUSTICE DIANE S. SYKES join this concurrence.Page 125
- The plaintiffs-appellants appeal an order of the Circuit Court for Dane County, Richard J. Callaway, Judge, denying their writ of certiorari and affirming the decision of the City of Madison Common Council. ↩
- We will refer to the several defendants in this case collectively as "the City of Madison" or "Madison." ↩
- All subsequent references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise indicated. ↩
- "Extraterritorial plat jurisdiction" refers to the unincorporated area within 3 miles of the corporate limits of a first, second, or third class city, or 1 1/2 miles of a fourth class city or a village. Wis. Stat. §236.02(5). ↩
- A "preliminary plat" is "a map showing the salient features of a proposed subdivision submitted to an approving authority for purposes of preliminary consideration." Wis. Stat. §236.02(9). ↩
- The Town of Burke had previously approved the preliminary plat and the Woods' rezoning petition. The Dane County Zoning and Natural Resources Committee had conditionally approved both the preliminary plat and the rezoning petition. ↩
- At the March 20, 2000 hearing, Dan Birrenkott (representing the Woods), Sam Simon, and Sean Wolf registered and spoke in support of the Woods' preliminary plat application. Birrenkott was the Woods' surveyor; Simon was their real estate agent. ↩
- The argument regarding the interaction of chapters 62 and 236 is more fully set forth in the brief and oral argument of the Wisconsin Realtors Association, as amicus curiae in support of the Woods. ↩
- Wisconsin Stat. §62.23(7)(c) provides:
Purposes in view. Such regulations shall be made in accordance with a comprehensive plan and designed to lessen congestion in the streets; to secure safety from fire, panic and other dangers; to promote health and the general welfare; to provide adequate light and air, including access to sunlight for solar collectors and to wind for wind energy systems; to encourage the protection of groundwater resources; to prevent the overcrowding of land; to avoid undue concentration of population; to facilitate the adequate provision of transportation, water, sewerage, schools, parks and other public requirements; and to preserve burial sites, as defined in s.157.70(1)(b). Such regulations shall be made with reasonable consideration, among other things, of the character of the district and its peculiar suitability for particular uses, and with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout such city.
↩ - The court of appeals acknowledged in its certification that it does not have the power to overrule the
Gordie Boucherholding, but could "signal [its] disfavor" for the decision and request that this court consider overruling the prior holding.SeeCook v. Cook,208 Wis.2d 166,189-90,560 N.W.2d 246(1997). ↩
- The legislature recently enacted new "Smart Growth" legislation, Wis. Stat. §66.1001, that requires municipalities to adopt comprehensive plans that include land use provisions.
See1999 Wis. Act 9. While the parties briefly address its implications, this legislation will not fully take effect until 2010, and does not apply in this case. Wis. Stat. §66.1001(3). ↩
- Madison General Ordinance § 16.23(3)(c)1-2 reads:
1.
Criteria for Agricultural Land Division.The Plan Commission may grant approval of a land division subdividing portions of agricultural lands provided the Commission shall determine that the proposed land division will assist and assure the continuation of the agricultural use.2.
Criteria for Nonagricultural Subdivision or LandDivision.In the case of nonagricultural lands, the Plan Commission may recommend approval of a subdivision to the Common Council or may grant approval of a land division provided that the Plan Commission shall determine that the proposed subdivision or land division complies with each of the following four criteria:a. The proposed subdivision or land division shall be compatible with adjacent land uses and shall maintain the general land use pattern of the area in question.
b. The proposed subdivision or land division shall result in a development pattern which is compatible with surrounding developments and land uses. Measures of compatibility shall consider lot sizes, traffic generation, access, noise and visual features.
c. The proposed subdivision or land division and the resulting development shall not demonstrably adversely affect the City's ability to provide public services, install public improvements or accomplish future annexations. . . . The Plan Commission may also consider whether the City and Town(s) have reached an agreement on necessary public improvements and public services facilities required to serve the development.
d. The proposed subdivision or land division shall comply with one of the following:
i. The proposed subdivision . . . shall represent infilling of vacant land. Infilling is defined as a subdivision . . . which will accommodate the development of vacant land located such that surrounding existing land uses render the land impractical for any but similar uses.
ii. The proposed subdivision . . . shall provide permanent open space lands for use by the general public in conformance with the adopted Parks and Open Space Plan for Dane County, Wisconsin, the City of Madison adopted Parks and Open Space Plan or the City's other adopted Master Plan elements, including the Peripheral Area Development Plan. . . .
↩ - The Woods make an additional argument, claiming that Madison improperly conditioned approval of their proposed plat on a requirement of public improvements. However, if one of Madison's reasons for rejecting the final plat is adequate, the court need not consider whether the other reasons are valid.
SeeBusse v. City of Madison,177 Wis.2d 808,813,503 N.W.2d 340(Ct.App. 1993). Because we have determined that Madison's rejection of the proposed plat based on the change in use of the land was proper, we need not reach the public improvement issue.
Likewise, we note that although the Woods have not challenged the constitutionality of the procedures set forth in chapter 236, the amicus curiae brief of the Wisconsin Realtors Association argues that due process considerations mandate the use of zoning, not platting, to control land use. Because an argument challenging the procedural provisions in chapter 236 was not argued or preserved by the Woods, we do not address it here. ↩ - All subsequent references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise indicated. ↩
- The 1945 declaration states:
The purpose of this section is to promote the public health, safety and the general welfare of the community and the regulations authorized to be made are designed to lessen congestion in the streets and highways and
further the orderly layout and use ofland; to secure safety from fire, panic and other dangers; to promote health and the general welfare; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population; to facilitate adequate provision for transportation, water, sewerage, schools, parks, playgrounds and other public requirements; to facilitate the further resubdivision of larger tracts into smaller parcels of land. The regulations provided for by this section shall be made with reasonable consideration, among other things, of the character of the county with a view of conserving the value of buildings placed upon land, providing the best possible environment for human habitation, andforencouraging the most appropriate use of landthroughout the county.
Wis. Stat. § 236.143(1) (1945) (emphasis added). ↩ - Wisconsin Stat. §62.23(7)(a) and (c) read as follows:
(a) Grant of power. For the purpose of promoting health, safety, morals or the general welfare of the community, the council may by ordinance regulate and restrict the height, number of stories and size of buildings and other structures, the percentage of lot that may be occupied, the size of yards, courts and other open spaces, the density of population, and the location and use of buildings, structures and land for trade, industry, residence or other purposes provided that there shall be no discrimination against temporary structures. This subsection and any ordinance, resolution or regulation, heretofore or hereafter enacted or adopted pursuant thereto, shall be liberally construed in favor of the city and as minimum requirements adopted for the purposes stated. It shall not be deemed limitation of any power elsewhere granted.
(c) Purposes in view. Such regulations shall be made in accordance with a comprehensive plan and designed to lessen congestion in the streets; to secure safety from fire, panic and other dangers; to promote health and the general welfare; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population; to facilitate the adequate provision of transportation, water, sewerage, schools, parks and other public requirements. Such regulations shall be made with reasonable consideration, among other things, of the character of the district and its peculiar suitability for particular uses, and with a view to conserving the value of buildings and
encouraging the mostappropriate use of land throughout such city.
Wis. Stat. §62.23(7)(a), (c) (1945). ↩ - According to the drafting file on chapter 218, Laws of 1945, the chapter resulted from passage of 1945 Assembly Bill 359, introduced by Rep. Milton F. Burmaster of Milwaukee County. The drafting file shows that the bill was requested by Milwaukee County and was prepared from a draft written by C. Stanley Perry, assistant corporation counsel for Milwaukee County. Reflecting Perry's original draft, the bill stated that one of the purposes of section 236.143 was to "further the orderly layout in use of land." Perry later drafted an amendment to Assembly Bill 359. The amendment changed the language to "orderly layout
anduse of land."Id.(emphasis added). This is the history of the "and use of land" language that now appears in Wis. Stat. §§236.01and236.45(1). ↩
- Robert Sundby was a 1949 graduate of the University of Wisconsin Law School. He was elected to the Order of the Coif. 1949 Wis. L. Rev. 823. He served on the Wisconsin Law Review with Marygold Shire [Melli] and Daniel Mandelker. 1949 Wis. L. Rev. 5. Like his classmates, he was likely a student of Jacob Beuscher. ↩
- The 1955 Report stated that "the committee was very fortunate in having the advice and assistance of an advisory committee consisting of representatives of a number of organizations interested in the subject matter of the study." Preface to the Report of the Wisconsin Legislative Council, Volume IV,
Conclusions and Recommendations of the JudiciaryCommittee on the Subdivision and Platting of Land, (Jan. 1955). Wisconsin towns did not have an official representative on the advisory committee. The report further stated that "there were a number of individuals who attended committee meetings and contributed much to the committee considerations."Id.Professor J.H. Beuscher of the University of Wisconsin Law School was listed among these individuals.Id.↩
- The language on "local plans and ordinances" was added to the law by a Dane County legislator, Representative Jonathan Barry, in 1980.
Seech. 238, Laws of 1979. ↩
- For the history of this language, see footnote 3 of this concurrence. ↩
- Wisconsin Stat. §62.23(7a) establishes exacting, special procedures by which a city may zone land in its extraterritorial zoning jurisdiction. In addition to complying with any applicable general zoning requirements found in §62.23(7), a city's governing body must, by adoption of a resolution that specifies the area to be zoned, promptly declare through precise notice requirements its intention to prepare a comprehensive zoning ordinance. Wis. Stat. §62.23(7a)(a).
More important, when a city plan commission formulates a zoning restriction, a joint extraterritorial zoning committee is established. This committee consists of three members of the city plan commissionandthree town members from any town affected by the proposal. Wis. Stat. §62.23(7a)(c). The joint committee prepares the zoning plan and regulations, or amendments thereto, in conjunction with the city plan commission.Id.However, only the members of the joint committee may vote on matters relating to the extraterritorial zoning plan and regulations.Id.Accordingly, "The governing body shall not adopt the proposed plan and regulations, or amendments thereto, unless [the proposals] receive a favorable vote of a majority of the 6 members of the joint committee."Id.In short, the statute enables the governing body of a city to adopt only zoning that has been recommended by the joint committee, and only after public notice and a public hearing on the proposal. §62.23(7a)(e).
As a practical matter, the statute provides that a town's land may not be zoned extraterritorially unless at least one representative of the affected town concurs with a city's proposed plan or regulations. No unilateral action by the city is permitted. Had the City of Madison attempted torezoneland within the Woods' plat by exercising its subdivision regulation authority, without undergoing the processes of §62.23(7a), it would necessarily have contravened both the letter and the spirit of this specific, enabling statute. The harmonization of a city's extraterritorial subdivision authority with these extraterritorial zoning provisions was respected by theGordie Boucherdecision, but ignored by the majority in this case. ↩ - "[I]t is . . . well established that courts must not look at a single, isolated sentence or portion of a sentence, but at the role of the relevant language in the entire statute."
Alberte v. Anew Health CareServs.,2000 WI 7, ¶10,232 Wis.2d 587,605 N.W.2d 515(citingPilot Life Ins. Co. v. Dedeaux,481 U.S. 41,51(1987)). ↩
- A municipality may condition its approval of a plat on the plat's compliance with the municipality's master plan, but the municipality may not enforce a master plan that exceeds its authority. In addition, a municipality may not block an otherwise valid subdivision until, say, the subdivider donates 75 percent of the land to the public. ↩
- The Woods have not advanced an argument relating to the constitutionality of Madison's rejection of their plat and, therefore, the parties did not brief this issue. ↩