Wood v. City of Madison

Wood, Gerald G. Wood and Debra L. Plaintiffs- Appellants, v. municipal corpora a Wisconsin City Madison, of City ap of Madison Common an tion, Council, proving authority City City of Madison, Commission, Madison Plan a commission created City Olinger, Madison, Mark A. Secre tary City Commission, of Madison Plan

Ray City Fisher, Clerk-Treasurer, Madison

Defendants-Respondents.

Supreme Court 8, argument No. 01-1206. Oral October 2002. Decided April 2003WI 24 (Also 31.) reported 659 N.W.2d (in there were briefs For the plaintiffs-appellants by Troy M. Hellenbrand and appeals) the court S.C., Waunakee, and Bruce & Hellenbrand Hellenbrand Kaufmann, and Law Bruce K. K. Office of Kaufmann M. Hellenbrand. argument by Troy oral Madison, was ar- the cause defendants-respondents For the Voss, James M. attorney, with city assistant gued by O'Brien, acting city Larry W. on the brief was whom attorney. Kassner John A. filed by

An amicus curiae brief was S.C., Steil, Brennan, MacDougall, & Madi- Basting Association, Realtors son, on behalf of the Wisconsin John A. Kassner. by and there was oral argument by An amicus curiae was filed brief Mark B. Hazel- County baker.;Madison, on of the behalf Dane Towns Association. by

An amicus curiae was brief filed Claire Silver- League man, Madison, on behalf Wisconsin Municipalities.

An amicus curiae brief was filed Carol B. Nawrocki, on Shawano, behalf of the Wisconsin Towns Association. BRADLEY, 1. ANN WALSH J. This case is be- ap-

fore the court on certification from the court of peals.1 plaintiffs-appellants, Gerald Debra (the Woods) City Wood contend that of Madison (Madison)2 improperly plat approval authority its used through to land use a mandate subdivision ordinance. they platting essence, In authority assert that Madison used its perform zoning a function. appeals certification, In its the court of more precisely states the issue as follows: Stat. municipality

Does Wis. ch. 236 authorize a reject preliminary under ju- its extraterritorial authority risdictional on a based subdivision ordinance plat's that considers proposed use? appeals requests addition, the court of that we holding Lincoln-Mercury

review the in Gordie Boucher v. Comm'n, Madison Plan 178 Wis. 2d 503 N.W.2d (Ct. App. 1993), previously which addressed this

1 plaintiffs-appellants appeal The an of order the Circuit Court County, Callaway, Judge, for Dane J. denying Richard their affirming writ of certiorari City the decision of the Madison Common Council. 2 We will refer to the several defendants this case collectively City as "the of Madison" or "Madison."

74 appeals advances that Gordie The court of issue. wrongly probably decided." "was Boucher presented, response ¶ we con- issue (1999-2000)3 does autho- ch. 236 clude that Wis. Stat. reject preliminary plat municipality a under its a rize jurisdictional authority upon based a extraterritorial plat's proposed that considers the ordinance otherwise, declared we Because Gordie Boucher use. appeals agree it in error. We the court of that was in the subdi- the standards set forth also conclude that vague nor neither ordinance in this case were vision discriminatory arbitrary, applied unreasonable, or in an City Accordingly, we determine manner. authority, and we affirm Madison acted within its rejection upheld Madison's circuit court order which plat. the Woods'

HH significant are not in 4. The facts of this case parcel dispute. acre of land east own a 51.96 Woods Although parcel Highway is of Interstate 90/94. extrater- it also within Madison's Burke, the Town of is Although prop- jurisdiction.4 plat approval some ritorial adjacent plat erty is zoned for commercial to the Woods' the east and west of the Woods' use, much of the land to purposes, agricultural plat and is used zoned for accordingly. plat an extraterritorial 5. The Woods submitted City application Madison, to the

and land division 3 Statutes are to subsequent references to the Wisconsin All unless otherwise indicated. the 1999-2000 version unincorpo jurisdiction" refers to the "Extraterritorial first, of a corporate limits rated area within 3 miles city a fourth class second, city, or miles of or third class 11/2 236.02(5). village. Stat. Wis. seeking approval preliminary plat5 aof that would property divide their into eleven lots.6 The Woods sought change zoning proposed the of nine of the new "Agricultural" lots from to "Commercial." City Department Planning ¶ 6. The of Madison Development report analyzing pro- issued a the posed plat Agricultural under both the "Criteria for Non-Agricultural Land Division" the for "Criteria Land Division or Subdivision" of Madison Or- General (MGO) 16.23(3)(c)l-2. report dinance The stated that preliminary plat agricultural the failed to meet the land division criteria because it did not "assist and assure the agricultural property." continuation of land use on this considering preliminary plat ¶ 7. the under the non-agricultural report land criteria, division con- development cluded of the commercial lots incompatible negatively would be pact with and would im- remaining adjacent agricultural lots and lands. development It also concluded that commercial would surrounding not "infill," constitute as little of area report featured commercial use. An addendum to the Planning indicated that "the Unit concludes that the proposed not does meet the standards approval report for at this time." The recommended City reject that the of Madison Common Council approving preliminary plat. resolution 5 "preliminary A plat" map showing is "a the salient features of a proposed to an approving authority subdivision submitted - purposes for of preliminary consideration." Wis. Stat. 236.02(9). 6 The Town had previously approved prelimi of Burke nary plat and rezoning petition. the Woods' County The Dane Zoning and Natural conditionally Resources Committee had approved both the preliminary plat rezoning petition. and the City con- Plan Commission of Madison separate public application two at the Woods' sidered May hearings, 15, 2000. At the March on spoke representatives hearing, of the Woods three first hearing, plan the the After second their behalf.7 on denying applica- the Woods' recommended commission tion. subsequently adopted The Common Council 9. rejected plan and recommendation commission's

the [adjacent Noting plat. proposed to the "the area that the largely agricultur[al]," land] it concluded that Woods' agricultural "[t]he lands of the of the bulk significant property abe would on the Wood that exist and expansion area, in this land use of commercial pressures of the on the conversion create additional remaining agricultural exist on the Wood lands that adjacent agriculturally-utilized parcel, lands." as as well County petitioned Cir- Dane the The Woods City of Madison's of the certiorari review Court for cuit 236.15(5) §§ pursuant Stat. to Wis. decision, 62.23(7)(e)10. rejection of affirmed Madison's The court any part City finding plat, "did not violate that the the City's chapter in- decision was 236, and that the of' quality It also of the subdivision. to further the tended "clearly plat rejection was concluded non-agricultural language plain grounded in the appealed to 16.23. Woods criteria" of MGO ap- subsequently appeals, certified the which court of peal this court.

7 (repre Dan Birrenkott hearing, March 2000 At the registered Simon, and Sean Wolf Woods), Sam senting plat application. preliminary of the Woods' spoke support real estate Simon was their surveyor; Birrenkott the Woods' was agent.

77 I—IHH ¶ 11. Resolution of the issue forth in set by appeals requires certification court us to interpret portions chapters 62 and 236 of the Wis Statutory interpretation presents consin Statutes. a question subject independent appellate of law review. City Corp. City of Mequon, Lake v. 207 2d 155, 162, Wis. (1997). N.W.2d remaining requires ¶ 12. Resolution of the issues us to review decision the Madison Common rejecting plat. preliminary Appeals Council the Woods' rejection governed by from the are Wis. Stat. 236.13(5) 62.23(7)(e)10. §§ person aggrieved by A rejection may such a a commence certiorari action. Wis. 62.23(7)(e)10. §

Stat. certiorari, On a court "shall direct plat approved that the be if it finds that the action of the approving authority... arbitrary, is unreasonable or 236.13(5). discriminatory." § appeal Wis. Stat. On from judgment reviewing an order or on a certiorari, entered agency, findings court the reviews record of not the judgment Hoepker City of the court. circuit v. of Comm'n, 663, Madison Plan 209 Wis. 2d 563 N.W.2d (1997). agency 145 Whether an has exceeded its author- ity rejecting presents question a a also of law, subject independent appellate to review. Pederson v. Windsor, Town Bd. Town 191 Wis. 2d n.2, 669 of (Ct. 1995). App. 530 427 N.W.2d

I—I H-l I—I begin presented by ¶ 13. We with the issue appeals: court of to municipality ch. 236 authorize a

Does Wis. Stat. ju- reject preliminary plat under its extraterritorial authority based on ordinance a subdivision risdictional proposed use? plat's that considers is "Plat- 236 of entitled the Wisconsin Statutes Chapter "regu- Plats." It Recording Vacating Lands and and ting can which land be intensively process by lates Sun Prairie v. Town sites." building into divided (1983). Storms, 58, 61, The 110 Wis. 2d 327 N.W.2d is set out in Wis. Stat. 236.01: purpose chapter regulate to purpose chapter of this health, promote safety and public of land to subdivision layout welfare; orderly to further the and use of general land; land; overcrowding prevent to to lessen provide to congestion highways; and for in the streets air; adequate adequate light provision and to facilitate water, requirements; to sewerage public for other and to proper ingress egress; promote for provide monumenting convey- proper land subdivided approvals ancing by legal description. The to accurate required in this be obtained subdivider as chapter requirements designed based on shall be accomplish purposes. the aforesaid all be 14. Wisconsin subdivisions requires can they and that all be before surveyed plats approved 236.03(1). governments Local recorded. Wis. Stat. be approve have the planning agencies power Storms, v. Mequon 61; 2d at plats. 110 Wis. Co., Estates 773, 2d 190 912 Lake 52 N.W.2d Wis. (1971). plat Plats within the extraterritorial located of a jurisdiction require approval municipality approval and the board, agency, the county planning the town by governing body municipality planning or its 236.10(l)(b)l. §§ committee or commission. Stat. Wis. 236.10(3). 3.; Approval any plat ¶ 15. of is also conditioned on compliance any validly with subdivision ordinance en- appropriate municipality, county. acted the town, or 236.13(l)(b). § multiple governing Wis. Stat. If bodies agencies authority approve reject plat or to conflicting requirements, plat have ordinances with the comply requirements. must with the most restrictive 236.13(4). § Wis. Stat. legislature

¶ 16. Stat. 236.45, Wis. the has permitted municipalities, they towns, counties, if planning agencies, legislate have established more intensively in the field of subdivision control than provided large by allowing adopt for the state at them to provi- ordinances which are more restrictive than the 236.45(3) sions of ch. 236. Section authorizes munici- palities to utilize their subdivision ordinances within jurisdiction. plat approval their extraterritorial 236.45(1) explains leg- ¶ 17. Wisconsin Stat. the islative intent behind the additional subdivision approval authority granted under the section:

(1) legislative Declaration of intent. The purpose of promote public health, this section is to safety general welfare of community regulations and the designed authorized to be made are to . .. further land;... orderly layout prevent and use of overcrowding land; to avoid undue concentration of population;.... regulations provided by this for consideration, section shall be made with reasonable among things, other municipality, character county town or with a conserving view the value of buildings land, placed upon providing the best possible habitation, environment for human and for encouraging appropriate through- the most use land of county. or municipality, out the town 236.45(1) added). § (emphasis Stat. Wis. Mequon, 2d at we described 18. 52 Wis. 236.45(1) § legislative of intent in as

the statement permit "indicat[ing] purpose the a that the of law is to adopt regulations encouraging municipality to the most throughout." Noting appropriate land that under use of 236.45(2)(b), § "any adopted by municipal- ordinance a liberally ity in munici- shall be construed favor the § granting pality," we described 236.45 as wide discre- may municipality exercise ordinance or tion that appropriate resolution. Id. plain language of the declaration of 19. 236.45(1) §

intent in regulations leaves no doubt that subdivision may

and ordinances consider the use requires fact, land. In the statute that such ordinances made with reasonable consideration ... of the "shall be municipality, county the with a character of town encouraging appropriate most use of view ... for the county." throughout municipality, land the town or Wis. added). 236.45(1) § (emphasis Stat. argument present

¶ 20. The Woods no to the contrary regarding meaning the of the term "use"as set 236.45(1). They do not claim that the word forth "encouraging phrase "use"in the context of the most something appropriate other than use of land" refers to ordinary meaning common, of the word. Notwithstanding explicit language ¶ 21. 236.45(1) authorizing agen- planning Stat. Wis. municipalities, towns, and counties to enact cies of appro- ordinances that consider the "most priate land," contend that use use Woods

property may properly subject not be of subdivision approval authority chapter They under assert that platting authority inherently zoning different from authority only zoning regulations may and that con- they sider the use of essence, land. In claim that Wis. § relating city planning, particular Stat. 62.23 and in (7) (7a) zoning subsections and of the statute, on and zoning, respectively, provide extraterritorial the sole municipal regulations concerning authorization for land use.8 62.23(7)(a) §

¶ 22. Wisconsin Stat. authorizes cit- regulate by zoning: ies to (a) power. Grant of purpose For the promoting of

health, safety, general morals or the welfare of the community, may the council regulate by and restrict ordinance,.. yards, . the size of courts open and other spaces, the density of population, and the location and use of buildings, trade, structures and land for industry, mining, residence or purposes other .... 62.23(7)(b) § are

Cities authorized under to "divide the city may into districts ... as be deemed best suited to carry purposes" chapter. out the zoning Within may "regulate districts, cities and restrict the erection, construction, reconstruction, alteration or use of build- ings, 62.23(7)(b). § structures or land." Wis. Stat. purposes zoning 23. The of are listed § 62.23(7)(c), apply as well to extraterritorial zon- 62.23(7a).9 ing § under Wis. purposes Stat. The listed remarkably are similar to those which underlie subdi- 8 argument regarding the interaction chapters 62 fully 236 is more set forth in the brief and argument oral the Wisconsin Association, Realtors as amicus curiae in support of the Woods. 62.23(7)(c) Wisconsin Stat. provides: 236.45(1). authority plat approval under Nota-

vision approval authority bly, zoning both and subdivision regulation state that "shall be made with reasonable character of the district. . . consideration ... encouraging appropriate with a view to . .. the most use 62.23(7)(c) 236.45(1). §§ of land." Wis. Stat. Although legislature upon ¶ 24. conferred has zoning authority cities both extraterritorial and extra- plat approval authority, territorial and has subdivision purposes type regulation are stated that the for each nearly identical, the insist that the use of land Woods may plat approval not be considered They largely decisions. base their contention on Gordie Boucher, 2d court of 178 Wis. case decided appeals in 1993. City

¶ 25. Gordie Boucher concerned the of Madi- survey map denial of a certified son Common Council's (CSM) (Boucher) corporation a had which submitted dealership on because it wanted to locate an automobile space open a in lot the Madison-Sun Prairie visual zoning permitted pro- separation district. The lot's the posed land, of Burke and Dane use of and the Town regulations Purposes made in accor- in view. Such shall he designed conges- comprehensive plan and to lessen dance with fire, streets; safety panic and

tion in the to secure from other welfare; promote general provide dangers; health the to to and air, sunlight adequate light including and access to for solar encourage energy systems; to the collectors and to wind for wind resources; prevent overcrowding protection groundwater to land; population; facilitate to avoid undue concentration of to water, schools, sewerage, adequate provision transportation, sites, preserve parks public requirements; other and to burial 157.70(l)(b). regulations made with defined in s. Such shall he as consideration, things, among other of the character of reasonable uses, suitability particular peculiar for and with the district and its encouraging conserving buildings the value of a view to throughout city. appropriate most use of land such County conditionally approved the CSM. Id. at 82-83. City of Madison denied Boucher's CSM for several appeal only However, reasons. on it relied on one of the proposed survey reasons: "The is not consistent with City's including Peripheral Plan, Master Area Development Plan, Plan, the Land Use and the Parks Open Space Plan." Id. at 83.

¶ 26. On certiorari review, the circuit court con- rejection cluded that Madison's of Boucher's CSM based inconsistency city's plan on with the master constituted zoning. extraterritorial city The court determined that the plat approval authority regulate "used its to for opposed parcel may what, as to how, the be used." Id. at city conditionally ap- 89. It therefore ordered the 236.13(5). prove pursuant the CSM to Wis. Stat. Id. at 83-84. appeal, plan 27. On the issue was "whether the engaged zoning

commission when it used its approval authority city's to control land use in the plat approval jurisdiction." extraterritorial Id. at 93. appeals City The court of determined that engaged zoning by controlling Madison had land use. It stated: case, however,

In this approving authority has rejected a proposed land division for reasons having nothing quality to do with the of the division. It is the use to which proposes put Boucher lot two which the justifies rejection commission claims its of its CSM. Land use control is the zoning. function of (emphasis original). Id. at 98 in ¶ 28. The Gordie Boucher court drew a clear zoning approval. distinction between and subdivision It concluded: 236, Stats., 236.45,

While ch. Stats., and sec. confer bodies, regulatory authority upon governing local broad quality the subdivision authority relates to the or land division and not to the use to which the lots in may put. the subdivision land division be Control property may over the use to which devoted is a be zoning control which can be only imposed by compre- a zoning required by ordinance enacted hensive as zoning enabling act. added). (emphasis

Id. at 101-02 recognized ¶ 29. The court in Gordie Boucher an overlap zoning platting plat ap- between when proval imposes "quality" requirements. Id. at 96. How- clearly meaning explain "quality" ever, it did not "quality" in this context. It noted that considerations orderly layout "the of land." Id. include use As appeals case, court of "[i]n stated in its certification of this many impossible distinguish a cases it will be 'quality' requirement from a use restriction because regulating generally maintaining uses is aimed at high quality living." "quality" Thus, do not believe the stan- we distinguish in

dard referred to Gordie Boucher to be- zoning approval tween functions func- plain language tions is Under the tenable. 236.45(1), legislative in all declaration of intent sub- regulations "shall" made a view for division be through- "encouraging appropriate the most use of land county." any municipality, Therefore, out the town or regulation relating "quality" to the of a subdivision necessarily appropriate must consider the "most use" land. cannot fathom how an ordinance can consider We appropriate the most use of land if it cannot consider the use of land. certifying pre- above, 31. As noted the issue appeals case, the court of concluded that

sented this probably wrongly "Gordie Boucher was decided." The appeals questioned reasoning court of in Gordie mutually Boucher: "webelieve that the exclusive view of zoning platting adopted that Gordie Boucher unsupported by somewhat artificial and either Wiscon- sin case law or statutes."10 specifically points

¶ 32. The certification to the language requiring govern- in Wis. Stat. 236.45 that enacting mental bodies subdivision ordinances do so "encouraging appropriate with a view the most use of throughout municipality county." land town or appeals court of notes that it did not address the above-quoted language Boucher, in Gordie and asserts legislature [s] expressed approval that it "believe has municipalities for include their subdivision ordi- plans regarding nances and master considerations proposed plat." use of a agree appeals

¶ 33. We with the court of that the holding accurately in Gordie Boucher does not reflect Although the law and must be overruled. Gordie correctly zoning Boucher noted that and subdivision plat approval authority types are different of land use purposes, controls which do not serve identical it incor- rectly plat approval concluded that subdivision author- ity may appropriate not consider the use of land. attempt

¶ 34. The court did not to reconcile its strictly zoning conclusion that land use is issue with 236.45(1): regulations the final sentence in "The appeals The court of acknowledged in its certification that it does not to overrule the Gordie Boucher power have the holding, but "signal could [its] disfavor" for the decision request this court overruling prior consider holding. Cook, See Cook v. 166, 189-90, 208 Wis. 2d 560 N.W.2d 246 (1997). provided for this section shall be made with reason- ... of able consideration the character of the munici- county pality, encouraging town or with a view ... for appropriate throughout the most use of land the mu- nicipality, county." town or The court's conclusion is contrary statutory language. to this clear

¶ Moreover, 35. while Boucher cited nu- Gordie secondary indicating zoning merous authorities that platting mutually and exclusive, are and that "use" only zoning, disregarded land relates to it case law determining zoning platting that while and are differ- zoning authority authority platting ent, are not mutually Storms, exclusive. we determined that types regulations accomplished by certain zoning could be by approval authority: long regulation by

As as the is authorized purposes may within the of ch. the fact that it also zoning power preclude fall under does not a local government enacting regulation from pursuant to procedures the conditions and of ch. 236. Additionally, City,

Storms, 110 2d at in Wis. 70-71. Lake noting zoning while the different authorizations for platting, authority agency we stated that "the assigned may by zoning to review not be limited regulations." City, Lake 207 Wis. 2d at 173. comparing Storms, 36. We further stated in in

zoning approval authority, and subdivision that:

Zoning presupposes the needs of the commu- nity sufficiently crystallized permit have become to control, Subdivision specific regulations. enactment of general establishes more standards hand, on the other specifically applied by to be in body an administrative change order to insure that use will not be detrimental the community. (citations omitted) added). (emphasis Id. at 69 We thus spoke approval authority essentially of subdivision as regulating the "use" of land. response reasons, For these conclude, we certification,

to the issue set forth in the that Wis. Stat. reject municipality pre- ch. 236 does authorize a liminary plat jurisdictional under its extraterritorial authority upon a based subdivision ordinance that plat's proposed considers the use. Because Gordie holding otherwise, Boucher concluded its must be over- ruled. large part

¶ 38. Our conclusion in is driven - plain language of the declaration of intent 236.45(1) which leaves no doubt that subdivision may proposed ordinances consider the use land. The argue Woodsand the amici policy. that such a conclusion is bad remedy change policy, The for however, this legislature.11 lies with the The courts should not re- language write the clear of the statute.

IV Having regula- ¶ 39. determined that subdivision chapter may tions under 236 consider the use of land, turn we to the ordinances at issue in this case and their application. City The Woods contend that rejection application arbitrary, Madison's of their was discriminatory. They unreasonable, or also advance legislature recently The enacted new "Smart Growth" legislation, 66.1001, § Stat. requires Wis. that municipalities to adopt comprehensive plans provisions. that include land use See parties briefly 1999 Wis. Act 9. Wfliilethe implica address its tions, legislation fully this will not take effect until and 66.1001(3). apply § does not in this case. Wis. Stat. improperly require ordinances the exercise of plat approval authority discretion im- are permissibly vague. provisions part ordinance at issue are Regulations"

Madison's "Land Subdivision ordinance, "regulate which functions to control corporate of land within limits and extraterritorial plat approval jurisdiction City...." of the MGO § Specifically 16.23. at issue is Madison's extraterrito- plat approval "[t]he ordinance, rial under which Plan may approve Commission recommend or the subdivid- ing juris- approval of lands the extraterritorial applicable diction based on the criteria enumerated 16.23(3)(c). hereinafter." MGO "applicable depend ¶ 41. The criteria" on whether agricultural nonagricultural. the land is or The extra- plat approval 16.23(3)(c), ordinance, territorial MGO only agricultural sets forth one criterion for land divi- sion: the subdivision must "assist assure the con- agricultural nonagricultural tinuation of the use." For land, a subdivision or land division must meet each of compatible adjacent four criteria. It must: with "be land general pattern uses" and "maintain the land use development pattern area"; in a "result which is com- patible surrounding developments uses"; and land demonstrably adversely City's ability "not affect the provide public public improvements services, install or accomplish annexations"; future and either constitute "infilling" "provide permanent open land vacant space by general public."12 for lands use the MGO 16.23(3)(c)2.a.-d.

12 16.23(3)(c)l-2 Madison General Ordinance reads: Agricultural 1. Criteria Land The Plan Division. Commission for may grant approval subdividing portions of a land division agricultural provided lands the Commission shall determine that City plan commission deter- of Madison 42. The proposed preliminary did not sat- the mined that the continuation proposed will assist and assure the land division agricultural the use. Nonagricultural or Land Division. Subdivision 2. Criteria for may lands, nonagricultural Plan the Commission the case of approval Council or of a subdivision the Common recommend provided Plan may grant approval that the of a land division proposed land the subdivision or shall determine that Commission followingfour criteria: complies each of the division with compatible land division shall be proposed subdivision or a. The general adjacent the land use and shall maintain with land uses question. pattern of the area in a proposed or land division shall result The subdivision b. surrounding compatible development pattern de- which is compatibility shall con- velopments and land uses. Measures access, sizes, generation, fea- noise and visual traffic sider lot tures. resulting proposed land division and the subdivision or c. The City's demonstrably adversely development affect shall not services, public improvements ability provide public install may accomplish . . The Commission future annexations. . Plan Town(s) City an have reached also consider whether the necessary improvements public agreement public ser- on development. required to serve the vices facilities complywith proposed land division shall one d. The subdivision or following: infilling represent proposed .. . shall i. The Infilling .. . is defined as a subdivision vacant land. development of vacant will accommodate which surrounding existing land uses land located such that any impractical for but similar uses. render the land permanent provide proposed subdivision .. . shall ii. general public in open space lands for use adopted Open Space Parks and conformance with Wisconsin, County, City of Madison Plan for Dane City's Open Space other adopted Parks and Plan or elements, including Periph- adopted Master Plan Development Plan.... eral Area isfy Agricultural the Criteria for Land Division. It comply found that the subdivision did not with MGO 16.23(3)(c)l. § because it would not "assist and assure agricultural prop- of continuation land use on the erty" "development and because of nine lots for com- purposes proposed mercial under the C-2 commercial zoning agriculturally will result in a of loss most of the proposed utilized lands within the boundaries of the preliminary plat." plan The commission determined also that

the subdivision did not meet of three the "Criteria for Non-Agricultural Subdivision or Land Find- Division." ing comply the subdivision did not with MGO 16.23(3)(c)2.a. general it because did not maintain the patterns plan area, use commission stated: property currently

The undivided agricul- consists of tural property lands .... The subdivision of this create nine commercial appear lots does not to be compatible adjacent with land [does not] uses and general pattern maintain the land use area question. The development of nine commercial lots will remaining be inconsistent with the conservation ease- parcel... ment remaining agricultural lands ... vacant, addition agricultural, unimproved lands to the west and to the east. plan

¶ 44. The commission also determined that requirements the subdivision did not meet the of MGO 16.23(3)(c)2.b. development because the commercial compatible surrounding was not land uses: development currently agricultural The lands for purposes commercial proposed preliminary with this scattering unplanned, would extend the com- development general mercial area within the .... development agricultural property lands on this purposes negatively impact for commercial will agricultural rural land uses that will remain on this parcel, adjacent parcels as well as to the immediate east and west. Finally, plan

¶ 45. the 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 scattering there is a of. .. commercial devel- adjacent opment parcel, existing agricultural to this parcel, land use on the combined with the extensive agricultural properties immediately land uses on to the general east and west... establish the character of the area. . .. largely agricultural] [The area] is inter- small, spersed single-family with improved lots. The agricultural subdivision of the bulk of the lands that property exist on the significant Wood would be a expansion of commercial land use in this area.... The creation of nine parcel commercial lots on a where no activity beyond commercial agricultural exists [an] trucking firm support ... does not a conclusion that development.... this would be infill plan ¶ 46. The commission therefore recom- deny proposed mended that the Common Council plat. adopted findings The Common Council of the plan rejected subsequently pro- commission and posed plat.

¶ 47. Like the circuit court, we conclude that the findings City clearly in the of Madison's decision were grounded plain language non-agricultural in the general relating criteria of the Madison ordinances plat approval. Accordingly, we determine City authority that the rejecting of Madison acted within its application and that its actions were not arbitrary, discriminatory. unreasonable, or platting approval ¶ 48. The claim Woods that purely ministerial and that the Common Council's compatibility improper consideration of of uses was required because it an However, exercise of discretion. granted municipalities discretion is to condition approval compliance municipal on ordinances. 236.13(l)(b). city Wis. Stat. A has broad discretion to implement comport if subdivision control its ordinances platting Corp. with the statutes. State ex rel. Columbia Bd., v. 767, 778, Town 92 Wis. 2d 286 N.W.2d130 Pacific (Ct. 1979) 773-74). App. (citing Mequon, 52 2dWis. at dispute proposed plat There is no if a is not in compliance existing statutory requirement with an plat approval may reject properly ordinance, authorities City properly rejected it. In case, this of Madison proposed plat finding after that it was inconsistent with city ordinances. Finally,

¶ 49. the Woods assert that the ordinance provisions application by City and their of Madison vague are too for Madison to fulfill its administrative responsibilities vagueness under the law. Woods' argument premised lacking is on the ordinance set resulting standards, in the unauthorized exercise of discretion. Because we have determined above that the City properly findings of Madison made which com- ported specific with in standards set forth the ordi- City appropriately nances, and that the exercised its vagueness argument discretion, the Woods' must fail. Additionally, vagueness argu- ¶ 50. the Woods' Corp., ment relies on 774, 779, Columbia 92 2d at Wis. asserting regulations in that in the subdivision give adequate warning ordinance fail to as to what the

93 making authority its deci- approving would consider support Corp. the Woods' does not sion. Columbia position. Corp. Columbia The court determined 51. plat approval discretion to have no authorities plat an

reject proposed plats conflicts "unless statutory requirement existing or with an of ch. 236 existing of At the time Id. at 779. written ordinance." Corp., rejection plat was no there in Columbia existing less set standards. ordinance, much written which was ordinance existed however, a written Here, long standing, published and avail- Internet, on the developers property owners.13 able to

V summary, ch. 236 Stat. we hold that Wis. plat reject preliminary municipality a authorizes claiming that argument, an additional The Woods make proposed plat of their approval improperly conditioned Madison However, if one of public improvements. requirement on a adequate, final rejecting the Madison's reasons for are valid. See the other reasons not consider whether court need Madison, 808, 813, 503 N.W.2d City 177 Wis. 2d Busse v. (Ct. 1993). that Madison's have determined App. Because we change in use of the plat based on rejection proposed improvement public reach the proper, we need not land was issue. chal-

Likewise, although the have not note that we Woods forth in constitutionality procedures set lenged the Realtors of the Wisconsin the amicus curiae brief chapter mandate the considerations argues process that due Association Because an control land use. zoning, platting, use of not chapter in 236 provisions challenging procedural argument Woods, it do not address we argued preserved not was here.

94 jurisdictional authority under its extraterritorial based upon plat's a subdivision ordinance that considers the proposed use. We overrule Gordie Boucher because it contrary. held to the We also determine that the stan- in dards set forth the subdivision ordinance in this case vague applied arbitrary, were neither nor in an unrea- discriminatory Accordingly, sonable, or manner. we City determine that the of Madison acted within its authority, and we affirm the circuit court order which upheld rejection plat. Madison's of the Woods'

By the Court.—The order of the circuit court is affirmed. (concurring). PROSSER, DAVID T. J. The purpose statutory interpretation

sole is to ascertain legislature. Stockbridge the intent of the School Dist. v. Dep't Instruction, Pub. 202 2d 214, 219, Wis. (1996). language legislative history N.W.2d96 of Wisconsin's subdivision statutes leave me no choice but to affirm the circuit court on the record this case. My analysis of the statutes is set out in Sections I-VI of this concurrence. separately my analysis I 54. write because of the analysis majority

law is different from the in opinion. particular, there is no need for the court to Lincoln-Mercury overrule Gordie Boucher v. Madison Commission, Plan 178 Wis. 2d 74, 503 N.W.2d 205 (1993). explained As VIII, Sections VII and majority opinion heavily passages too relies on selected policy from the broad declarations of in the subdivision chapter, opposed specific grants authority as in chapter. sight statutory It loses scheme any avoids effort to harmonize the statutes on extrater- regulation ritorial subdivision with the statute on ex- zoning. Consequently, opinion pro- traterritorial intergovern- intergovernmental conflict, not motes majority opinion cooperation. addition, mental history background digest and the extensive fails recognize chapter to the limits or to the subdivision and extraterrito- ordinances of local subdivision content planning. rial majority opinion Although correct in

¶ 55. analysis plat, rejection disputed affirming its of the legislature. This intent of the with the is at odds requires majority's interpreta- me to disavow both regulation to oven- and its decision of subdivision tion rule Gordie Boucher.

HH always its own ¶ has followed 56. Wisconsin regulating It has of land. in the subdivision course City by the Standard from states influenced differed Enabling developed Planning the United States Act Department The Act in 1928. Standard of Commerce municipal subdivisions, but controls over authorized limited than the controls were more these controls tha]b they maintained a clear in and Wisconsin have evolved zoning. planning and between distinction long platting Regulating land has a 57. regulations applicable history on The first in this state. Michigan subject in the Laws of "are contained this provisions in the Revised are contained 1833. Similar territory and of Wisconsin of 1839 of the Statutes of 1849." 35 state, Revised Statutes first statutes (1946). early Att'y Op. 1882 the As as 437, 439 Gen. alleys required legislature in new the streets existing platted streets to conform to be subdivisions alleys. 52, of 1882. 1, ch. Laws Chapter Statutes, en- 236 of Wisconsin Vacating Recording "Platting Lands and titled represents Plats," the sum of this state's subdivision years.. chapter compre- enactments over the was hensively revised 1955. See ch. Laws of 1955. chapter Individual sections of the have been refined governs then, since and it is the current law that this case. key provisions origi- 59. Several of the law's

nated before instance, 1955. For cities have had extra- plat approval authority leg- territorial since 1909. The provided islature that when land was divided within "one and one-half first, miles" of a second, or third class city, the owner of the land had to "cause the streets and alleys map platted shown on the ... to be laid out and to the satisfaction of the common council of such cities." § Any map 1, 121, ch. Laws of 1909. that did not approval receive such could not be recorded. Id. Extra- plat approval authority presently territorial in found 236.45(3) §§236.02(5), 236.10(l)(b), Wis. Stat. (1999-2000).1 jurisdiction The first, extraterritorial second, and third class cities has been extended to three 236.02(5). § miles. Wis. Stat. legislature

¶ 60. In 1945 the created Wis. Stat. § relating 236.143, to the subdivision of land outside the incorporated villages limits of cities or in counties having population a of 500,000. section, This now repealed, important, part gave was in it because populous county power "regulate, state's most to re- specific prohibit strict, and in areas the division or county subdivision of land within the outside the limits incorporated § villages." 2, cities or ch. Laws of added). (emphasis supplemented The section county's already-existing zoning power. See Wis. Stat.

1All subsequent references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise indicated. (1945). as well as coun- Today, municipalities,

§ 59.97 towns, authority ties and have to division "prohibit 236.45(2)(a) when the pro- of land" under Wis. Stat. out the of this section. carry purposes hibition will Former section 236.143 also contained Many phrases "Declaration of Intent."2 Legislative in the this declaration were borrowed from phrases (c) statute for cities. See Wis. Stat. 62.23(7)(a), zoning (1945).3 Much of the that declaration was language

2 The 1945 declaration states: health, purpose promote public to of this section is safety community regula- general and the welfare of the and the designed congestion in tions authorized to he made are to lessen highways orderly layout the streets and and use further land; fire, safety dangers; panic to secure from and other welfare; adequate light promote general provide health and the air; land; prevent overcrowding and to the of to avoid undue adequate provision population; concentration of to facilitate for water, schools, transportation, sewerage, parks, playgrounds and public requirements; other to facilitate the resubdivision further larger parcels regulations into of land. The of tracts smaller provided by with for this section shall he made reasonable consid- eration, among county things, other of the character of the buildings land, conserving placed upon view of the value of habitation, providing possible the best environment for human throughout encouraging appropriate and the most use land for of county. the 236.143(1) (1945) added). § (emphasis Wis. Stat. 62.23(7)(a) (c) Stat. read Wisconsin and as follows: (a) health, power. purpose promoting the of Grant of For safety, general community, morals or the welfare of the the council may by regulate height, ordinance and restrict the number of structures, buildings percentage size and the stories and of other may occupied, yards, open be the of courts and other of lot size density spaces, population, of and the location and use of trade, industry, buildings, structures and land for residence or purposes provided that no other there shall be discrimination ordinance, against temporary any structures. This subsection and

CD later §§ Wis. repeated present Stat. 236.01 and 236.45(1) as of the part 1955 revision of chapter One that was phrase repeated is "further the phrase orderly layout and use of land." The majority heavily relies on the of "use land" to passage its support analysis.4 regulation, resolution or heretofore or hereafter enacted or adopted pursuant thereto, liberally shall he construed in favor of city requirements adopted and as minimum purposes for the any power It stated. shall not he deemed limitation of elsewhere granted. (c) Purposes regulations in view. Such shall be made in comprehensive plan designed accordance with a and to lessen congestion streets; safety fire, panic to secure from and dangers; promote general welfare; other to health and the provide adequate light air; prevent overcrowding land; population; to avoid undue concentration of to facilitate the adequate provision water, transportation, sewerage, schools, parks public requirements. regulations and other Such shall he consideration, among things, made with reasonable other peculiar suitability particular character of the district and its for

uses, conserving buildings and with a view to the value of encouraging appropriate throughout city. the most use land such (c) (1945). 62.23(7)(a), Wis. Stat.

4According 218, to the drafting chapter file on Laws of 1945, chapter resulted passage Assembly from of 1945 Bill by Rep. introduced Milton F. Burmaster of Milwaukee County. drafting file shows that the bill requested by was County Milwaukee prepared was from a draft written C. Stanley Perry, assistant corporation counsel for Milwaukee County. Reflecting Perry's draft, original the bill stated that one purposes of section orderly 236.143 was to "further the layout in Perry use of land." later drafted an amendment to Assembly Bill changed language 359. The amendment added). "orderly layout and (emphasis use of land." Id. This is history language of the "and use of land" that appears now 236.45(1). §§ in Wis. Stat. 236.01 and

HH I—I 62. The of Wisconsin League Municipalities maintained an active interest in land use in the early of the twentieth As an in century. example, decades an in League 1937 the article its April published "A For monthly magazine Platting entitled Manual Wisconsin written Arthur J. Municipalities," Rabuck. Rabuck stated that of his manual purpose in was "to discuss the interest land subdivision public and methods of and inter- promoting protecting A Manual For Wiscon- Platting Rabuck, est." Arthur J. sin Municipalities, The at 77. Municipality, Apr. Rabuck reasons for a interest in gave multiple growing land he Among subdivision. reasons listed were following: haphazard

Premature of land and the subdivision scat- tering of homes are certain sources of economic waste water, sewers, drainage, due enormous costs for streets, police protection, lighting and fire and other services which will sooner or later be demanded. The large municipalities will also be confronted with the problem large being rehabilitating areas which are depopulated rapidly depreciating and in are value due to the movement to the outskirts. platting revision of the state law in 1935 is also regulation

a reason for renewed in the interest subdivision of land.

Encouragement planning zoning by of local governments pro- state federal has resulted planning part nounced interest on the of local municipalities officials. Numerous are Wisconsin now doing planning Planning, zoning, some work. regulation go hand in hand. Some of greatest planning in accomplishment strides have been by made means control over the subdivision land. A of majority planning past mistakes of the can be directly faulty practices. traced to subdivision added). (emphasis Id. urged municipalities develop

¶ 63. Rabuck comprehensive plans. He noted the extraterritorial jurisdiction already existing in the law. He acknowl- edged zoning way was the most effective reserv- ing appropriate land use, "for its most but in the zoning regulations good absence of much can accom- be plished by discouraging the of land . ..." subdivision supra, heading "Improve- Rabuck, at 77-79. Under the May Required," ments good Be Rabuck wrote that "much accomplished by requiring can be ... owner carry specula- more of the subdivider burden of his supra, Rabuck, tive efforts." at 79. League's regula-

¶ 64. The in interest heightened Sundby tion was when Robert D. served as legal its counsel the 1950s.

I II University ¶ 65. The Law School Wisconsin leading study was a center for the of land use years before and after the 1955 revision of the subdivi- chapter. inspired sion This focus was Professor Jacob (1907-1967), H. Beuscher a charismatic scholar and major impact had a on land advocate who Wisconsin use lawyers generations law. Beuscher influenced planners expounded theories, with his law-in-action as publications. in the Wisconsin Law Review other ¶ 66. In a memorial edition of the Law Review published death, after Beuscher's then United States Gaylord Senator Nelson wrote that Beuscher "drafted creating Regional Planning statute Commis- sions. ... He the monumental task of revis- completed ing our eminent domain statute. He was the backbone long our effort to wise land use in develop policies Beuscher, H. Wisconsin." Memoriam Jacob Professor Nelson). L. (Essay by 1967 Wis. Rev. 799 Gaylord issue, In the same Professor Daniel Mandelker wrote that Beuscher:

always fought public for an extension of the influence land, water, over our natural inheritance of and envi- taught legal ronment. . .. He that in principles us planning gain only field land meaning use from the they context in applied, which are and that the rela- tionship legal between the way structure and the in which that structure important is used is more than disputation legal abstract principle about that has no reality. contact with Mandelker).

Id. at 7 (Essay by Daniel R. 67. Articles about land use control appeared See, in regularly the Wisconsin Law Review circa 1950. e.g., Keberle, Note, Ronald D. Land Use — Control Contract, 701; L. Rev. Rosenbaum, Wis. William Note, Control Land Through Contractual Provisions Waste, to Prevent Designed 716; 1950 Wis. L. Rev. Leon Note, Fieldman & Robert Junig, Sales Land— Divisions, in Land Platting Approval 1950 Wis. L. Rev. 750. The latter article declared that: interests,

Private in the creation of land subdivi- sions, substantially determine the character of a community's development. parcels The creation of new point determining city of land is the critical in how the grow will .... If the plan subdivider's is not accord interests, community the community usually is rectifying barred by prohibitive from it . costs... Most serious trouble can be averted if public represented interest is at the creation of the new subdivision. Junig, supra,

Fieldman & at 750. argued ¶ 68. The student authors that both "the quality quantity of new subdivisions should come government scrutiny stage." under at this initial Id. They explained quality way "refers to the which quantity, the land subdivided, much land is how subdivided." Id.

¶ 69. The students examined Wisconsin's subdivi- chapter sion statutes and concluded that not 236 was adequate. They important require- stated that "The planning approved by ment for is that land-divisions be governing [G]overnment approval . . . bodies. should precedent every abe condition new division of land." They argued Id. at 757. that the statutes should set planning standards on which bodies could base their approval disapproval. important course, "Of the most disapproval plans." basis for is a conflict with land use Id. at 758. early

¶ 1950s, In the study 70. Professor Beuscher un Bixby, dertook a of subdivision law. Frank L. Exemption Note, VIII, Wis. Const. Art. 1 — Partial of Proper Subdivision, Value an as Inducement to 1953 Shortly L. 141, 141 thereafter, Wis. Rev. n.2. Beuscher's faculty colleague, Marygold former student and Shire produced comprehensive scholarly study Melli, a en Wisconsin, titled Subdivision Control in which made thoroughgoing the case for a revision of Wisconsin's subdivision statutes. 1953 Wis. L. Rev. 389. page 68-page article, 71. On the first of her explained

Melli that: control, regulation

Subdivision of the division lots, building component of raw land into is a vital

103 pro- [C]ontrol land-use control.... of [the subdivision] recognized integral part any cess has become as an planning land-use scheme.... is, course, only

Subdivision control one of the by community regulate instruments used a the use of privately public closely owned land in the It interest. is zoning preventative related to control in that both are community blight measures intended to avert by requiring deterioration development pro- that new ways according prescribed ceed defined stan- dards. ... recognized

[Subdivision control legitimate as a land-use tool.... Melli, Shire Subdivision

Marygold Control Wiscon- sin, L.Wis. Rev. 72. So timely persuasive was Melli's article

that the Legislative Wisconsin Council's Com- Judiciary mittee a study commenced on the "Subdivision and of Land." The Platting Legislative Melli, Council hired and its Judiciary Committee created an Advisory Com- mittee on Subdivision and Platting, by chaired Robert D. Sundby, legal counsel for the League Wisconsin to the Municipalities.5 According Legislative Council's to the 1955 "All report legislature, sections recom- mended advisory committee were prepared origi- nally by subcommittee drafting of Mr. consisting Sundby, the chairman of the committee, Melli, and M.S. Sundby graduate Robert a University was 1949 of the of Wisconsin Law School. He was elected to the Order of the Coif. 1949 L.Wis. Rev. 823. He served on the Wisconsin Law Review Marygold [Melli] Shire and Daniel Mandelker. 1949 Wis. L. classmates, Rev. 5. Like likely his he was a student of Jacob Beuscher.

104 legislative assigned the council staff member to the Report Legislative of the Coun- committee." Wisconsin iy cil, Volume Conclusions and Recommendations of Judiciary Committee on the Subdivision and Plat- (Jan. 1955) (hereinafter ting Report). Land, at 9 1955 of Legislative report ¶ 73. The Council contained a background lengthy analysis of the of deficiencies existing chapter, together with a draft accompanying report bill with notes each section.6 The objectives study explicit of the and the draft set out six legislation. Report, supra, 1955 at 11-23. These in- Objective legislation I: To formulate which cluded: provide quality control over the of would some subdivi- Objective sion, all of the V: To evaluate burdens regard placed upon particular the subdivider with (em- rights the individual's to the use of his land. Id. added). phasis Although report emphasize

¶ 74. did not mu- adjacent nicipal unincorporated control over land use "[cjontrol acknowledged way in land, it over the up land, i.e., control over which land owner divides his very Report The 1955 stated that "the committee was advisory having advice and assistance of an fortunate organi consisting representatives of a number of committee subject study." in the Preface to zations interested matter of Council, Report Legislative of the Volume Wisconsin IV Judiciary and Recommendations Committee Conclusions (Jan. 1955). Land, Platting on the Subdivision and Wisconsin advisory representative on the towns did not have an official a number report further stated that "there were committee. meetings and contrib of individuals who attended committee Id. Professor J.H. uted much to the committee considerations." University Law School was listed Beuscher Wisconsin Id. among these individuals. type development may make, he one of the

most contested areas of subdivision control." Id. at 12. report The stated:

Minimum quality standards for the of subdivisions important raise an question regarding the extent of control. If the subdivision statute is intended to control development, land use theoretically then it follows land, perhaps all divisions of at least those which create parcels big enough upon, to be built should be con- trolled. ... law, present government may

Under local units 236.143(2) control all present divisions land. of the grants power regulate law to them to division subdivision of land. ...

The committee present recommends that the law retained, i.e., be government that the local units of have option controlling all land See divisions. 236.45 proposed of the .. revision. . changes committee also recommends in the

definition of subdivision which should increase the extent of control degree. of the state statute to a limited ... The committee changes recommends 2 in this definition: an years increase from one to 5 in the time enlargement involved and an purpose of the of division building development. to sale or added). (emphasis Id. at 14-15 Legislative ¶ 75. The Council bill was introduced Sundby as Senate Bill 20. Robert and Jacob Beuscher support testified in both houses in of the bill. Senate passed changes Chapter Bill 20 with few to become Laws of 1955.

IV Chapter was amended 236 of statutes legislature. in the four different bills 1957 session Chapters 88, 237,245, 599,& Laws of 1957. These were many chapter following of to the the first refinements Among comprehensive the revision 1955. the first changes was an amendment to condition a jurisdiction adop municipality's on extraterritorial its map." of a "subdivision ordinance or an official See tion 236.10(1)(b)2. § 2, 1957; ch. Laws of Wis. Stat. Marygold ¶ In Melli co-authored a law 77. Devoy. planner article Robert S. The article review Planning entitled Extraterritorial and Urban was explained Growth, L. Melli 1959 Wis. Rev. 55. community growth "preparation is for the future only planning; not called land use it should consist plans policies future, for the but also of protect plans." Id. at 55. means to those "pow- planning ¶ are 78. Extraterritorial controls given villages providing them with ers to cities and type development control in unincor- some over fringe." porated Id. at 56. This areas on their immediate type power, reasoned, "since a is an unusual she generally required municipal corporation to act is within its own boundaries." Id. fully

Ideally, planning if extraterritorial is to be it all the controls available to effective should embrace Therefore, a community. upon it should be based plan and comprehensive, enforceable master should subdivision, zone, to power include the to to control setbacks, building protect plans and to for establish streets, playgrounds, parks future and other recre- ational facilities. Wisconsin, may adopt a master municipality any beyond municipal area bound-

plan covering development aries related to the of the municipality. In addition, specific grants power extraterritorial have legislature been made approval for subdivision maps and official to cover certain Zoning limited areas. major remains in which no extraterritorial field power granted. has been added). (emphasis Id. argued Melli 79. favor of extraterritorial zon-

ing. principal shortcoming "The of extraterritorial con- trols in Wisconsin results from the fact that there is no zoning authority. power extraterritorial zone, probably control the actual use to land, be made of the important single the most land use control." Id. at 66. acknowledged power Melli that "the to con- map trol new subdivisions and to new streets is much power less effective"without a concomitant to zone. Id. right approve way Nonetheless, she stated that the undeveloped in which land is divided for urban use was important powers municipality pos- one of the most a "may sessed. Id. at 59. She noted that cities exercise corporate subdivision control for 3 miles outside their principal ap- limits." Id. "The limitation on subdivision proval scope." a land as use control is its territorial Id. at 60. accompanied by

¶ 81. Melli's article was an article by Sundby Robert D. entitled The Elimination and Blight, Prevention Urban 1959 Wis. L. Rev. In 73. Sundby among article, course of his stated that blight factors that contribute to urban are "the over- crowding poor layout land, land, use of inadequate provision sewerage, water, for and drain- age." may by Id. at 92. "These factors be controlled adoption adequate and enforcement of regulations." Id. He added: regulates only

The state law subdivisions where the act of division parcels building creates 5 or more

108 area, or less in or where 5 or more sites of 1 acres 1/2 by are created successive divisions within parcels such subject years. of five The state law is therefore period a through process of division to considerable evasion However, cities, the statute authorizes and redivision. towns, villages, adopt and counties to local subdivision ordinances, may ordinances include provides such parcels into regulating divisions of land provisions or divisions of land into less than larger than acres 11/2 Thus, given ample municipalities are author- parcels. any purposes for ity to control division whatsoever building development. sale or

Id. at 92-93. years following the 1955 revision of Legislative

chapter 236, the Council's Urban Problems need for additional land use Committee studied the unincorporated Part of this discussion controls in areas. appeals Judge recounted later then court was Lincoln-Mercury Sundby in Boucher Robert D. Gordie Commission, 74, 2d v. Madison Plan 178 Wis. (1993). Writing Sundby noted court, for the N.W.2d205 legislature approved a on extrater- that the had statute 62.23(7a). zoning, ch. Laws ritorial Stat. See Wis. give a munici- However, of 1963. that statute did not authority pality in an unincor- unilateral to zone land municipality's porated extraterritorial town within "require [d] jurisdiction. that extra- Rather, the statute zoning city plan cooperative effort of the territorial be zoning ordi- and the in which the commission town Boucher, 2d at in effect." 178 Wis. nance will be Gordie Judge Sundby wrote that the Urban Problems 100-101. "rejected proposal giving populous coun- Committee zoning authority adopt comprehensive ordi- ties unincorpo- apply throughout would nances which approval of the individual rated areas without 109 "[w]hile Hence, concluded, Id. at 101. he ch. towns." regulatory . . . and 236.45 . . . confer broad sec. authority governing upon authority bodies, local quality or relates to the of the subdivision land division and the use to which the in the not to lots subdivisión added). may put." (emphasis land division be Id. V year died, In that he Professor Beuscher authored a of remarkable summation his report, on "Land Use Controls." His views published which was part Development as of the Wisconsin Series Department Develop- the Wisconsin of Resource legal ment, focused on means to achieve land use planning goals. spelled Beuscher out his law-in-action philosophy disarming candor:

[M]any planners lawyers compartmentalize tend to governmental powers major first into the areas of: power domain, taxation, of power power eminent of major appropriation, police power. plan Then the tools, implementation police power zoning, such as control, mapping, and official are broken they apart out and often dealt with as if existed from governmental power. the whole fabric of So that com- prehensive planning may successfully areawide be implemented, range police power the entire controls effectively must be coordinated one with another ... short, public's unitary deal in the interest. a more concept range sovereign of the entire powers developed. state must be (Dep't Beuscher,

J.H. Land I-1 Use Controls of Res. 1967). Dev., Series, Dev. Wis. pains

¶ 84. Professor Beuscher took to educate scope planning goals, his including placement readers on of land use development pacing of de- open space. preservation velopment, the of Id. as well as placing clear," wrote, he "that at 1-2. "It seems development of alternative uses of land and the control standpoint necessary to insure from an economic are adequately to resources and use of scarce the wisest protect general safety of the health, and welfare community." and Id. at 1-3. "Governmental services provided to each new subdivision facilities must be community. Since there is a resident of the to each new pacing availability of tax dollars .. . the limit to the rapidly critically important development in becomes growth process [T]he growing regions. . . . urban paced over time." Id. must be many pointedly advocated 85. Beuscher planning changes to effect more com- in the statutes plete development. of such But in the absence control of changes, urged tough-minded utilization of the tools he simple "The time for a return to fundamentals at hand. long niceties, not be on the overdue. focus should particular potentials subtleties, limitations and legal on The focus should be of individual tools. objectives community accomplishment them- development expressed properly prepared selves as Why plans." or it be one control tool Id. at II-2. "must government power he or another?" or one another "Why greater in combi- of two or more not use asked. Id. at II-3. nation?" Report, dis- of his Beuscher Section IV "physical plan" contem- the Master Plan —the

cussed 62.23(2). plated Then he asked: in Wis. Stat. planning to the local plan guide master a mere Is a body, respects or is it in some agency governing land control? legally binding use and of itself 62.23, reflecting philosophy Stat. Wis. on its face to Planning Act of seems

Standard (3) contain the provides answer when it in subsection purpose that: "The adoption and effect of the certifying plan of the master part thereof shall be solely city aid plan to the commission and the council in performance the of their The fact that no public duties.". hearing proposed plan on the required master is only by that it need approved plan be the commission legislative body and not the local seems to be further plan only evidence that the is intended for informal guidance, regulatory not for control.

Nevertheless, adoption from the outset of a master plan has had regulatory plan one effect. Once the is adopted by plan commission, the local governing body may finally variety not act on a of specified public improvement projects until the matter has first been referred plan to the commission and until the commis- reported. sion after consideration has rewriting 236, Chapter Wis. Stats. the subdivi- code, sion Legislature provided: (sub-

Approval preliminary of the or final division) plat upon shall be conditioned (c) compliance any with: ... local master plan map;. or official . . validity

The extent or requirement that a subdivision comply with a local plan master has not been Supreme tested before the Wisconsin Court. Involved technical issue of whether the Legisla- ture delegate plan intended to to the commission a legislative regulatory and a function so far as concerns plans. Legislature intention, master If the had this was delegation under valid the 14th Amendment of the Constitution, Federal imposes obligation which an on property states that not process be taken "without due of law."

Beuscher, at IV-23. supra, it 87. Beuscher counseled would if case for the the local "strengthen plan] governing [the Id. indicated its of the master body approval plan." matter, it "Undoubtedly, practical help also as would statute, a that, not though required by to show was, master as a plan on the public hearing proposed fact, held after due notice before either the matter Id. body commission or the both." governing plan Beus- Returning regulation, subdivision zoning, "[a] cher that besides emphasized control ordinance is another device which important and order regulate placing can be used Id. at VII-13. development." recording private developer seeks benefit of his sale; contemplates public for of he that the will

lots ease streets, sewers, long-run assume the maintenance of lines; undoubtedly he affect the commu- and water will nity existing governmental tax base and alter service ' costs; functions and their and the initial decisions of location, size, width, housing, type lot street of will undoubtedly pattern establish an indelible of land use community generations for to come. that will affect the addition, estate the state is interested secure real conflict; descriptions prevent to fraud and and mort- gage long-term stability in the of lenders are interested neighborhood being which is established. For the new reasons, any body public justified or all these the of regulating process subdividing the and in establish- of upon plat ap- ing those reasonable conditions which proval granted. will be determining . . . arise in what are Difficulties . .. Courts will be moved to

reasonable conditions. accept planning which sound and those conditions empirical analytical justify. They and will evidence overreach, rely reject appear those conditions which to data, incomplete simply or or which are

on erroneous prevent down or devel- stalling designed tactics to slow opment. Theoretically, argue

. one could that all costs . . development be borne the associated with the should buyers, private developer passed on to his who seeking profit all from his decision to after are subsidy subdivide. There should be no hidden to the buyers community in the form of developer or to his Practically, costs. it is not absorption development of possible push plat approval the conditions this far. for all, very First of it is often difficult to determine the development. major true costs of street, water, cost items After settled, and sewer have been cost determi- very speculative process. nation can become a . . . Therefore, imposed plat approval the conditions for reasonable; must be but the definition of reasonable- may expanded by comprehensive planning be ness justify presentation particular of data that challenged of conditions or condition. set added). Id. at VII-13, (emphasis VI of a Today, to entitle the within the extraterritorial plat approval jurisdiction recorded, to be it must have the municipality approval (1) (2) board, governing body town (if the municipality has a subdi- municipality adopted (3) ordinance an official vision map), county 236.10(l)(b). Wis. Stat. planning agency. 90. A landowner land seeking subdivide sub-

¶ mits a to all proposed plat authorities whose is approval 236.11, §§ Stat. 236.12. required. Approval Wis. shall he conditioned upon or final preliminary plat (a) (b) with: compliance 236, provisions chapter (c) ordinance, any municipal, county town or 114 236.13(1). § plan. comprehensive The Wis. Stat. law slightly January 1, different before 2000. The was (c) compliance any required former subsection any adopted plan plan local master consistent with § map adopted Stat. 236.46 or official under under Wis. § Stat. 62.23. Wis. 236.11(l)(b) §

¶ contains the 91. Wisconsin Stat. 236.13(1). § provides flip It that if "the side Wis. Stat. plat plat substantially preliminary final to the conforms plans approved. . . and to local and ordinances as by approval." adopted law, entitled to or authorized it is 236.11(l)(b) added).7 § (emphasis Implicit in Wis. Stat. principle: a counter If a does not this formulation is plans adopted au- conform to local and ordinances as by approval. law, thorized it is not entitled to purpose regulation ¶ 92. The of subdivision 236.45(1) §§ broadly stated in Wis. Stat. 236.01 and orderly layout includes "to further the and use of land."8 236.45(1). §§ 236.01, Wis. Stat. governments adopt Local are authorized to 93. governing

"ordinances the subdivision or other division provisions are restrictive than the of land which more 236.45(2) added). § (emphasis chapter." this Wis. Stat. apply to divisions These "more restrictive" ordinances municipality's in a extraterri- and subdivisions of land 236.45(3). jurisdiction. plat approval torial Wis. Stat. may apply A ordinance "more restrictive" greater any land, either than or less than 5 division 236.45(2)(a). may "prohibit parcels. It Wis. Stat. 7 added to language plans on "local and ordinances" was County legislator, Representative a Dane Jonathan the law Barry, in ch. Laws of 1979. 1980. See history language, footnote 3 of this For the of this see concurrence. prohibition

division of land" in areas where such will carry purposes out the of the section. Id. Wisconsin any adopted Stat. 236.45 and subdivision ordinance liberally under it "shall be construed in favor of the municipality . . . and shall not be deemed a limitation or repeal any power granted requirement appear- or or ing chapter relating elsewhere, in this to the subdi- 236.45(2)(b). vision of lands." Wis. Stat. plain language chapter

¶ 95. the Given legislative history language, the extensive behind this it reasonably argued cannot be that Madison violated spirit either the letter or the when statute it approve plat. failed to the Woods' The Woods' land was agricultural and still is zoned as land. Both this land surrounding and much of the agricultural land are still used as proposed Thus, land. commercial use of City's land Woods' fact inconsistent with the plan. City legitimate qual Moreover, master raised ity questions provision about the of sewers and the adequacy put of roads if the land were to commercial proposed short, use. subdivision violated the City's plan master and its subdivision ordinance. The position challenge Woods are not in a Madison's applied position subdivision ordinance as because their City is so vulnerable to criticism. The was not over reaching in this case.VII Clearly, City adopted

¶ of Madison has strategy suggested by Professor Beuscher and utilized every possible zoning tool short of extraterritorial position planning. adopted enforce its on land use It has very far-reaching legisla- subdivision ordinance. The liberally directed courts to construe ordi- ture has this provi- ordinances, all the nance and similar as'well as chapter sions of 236. point,

¶ however, There at 97. which the legislature's grant authority to Madison and other municipalities actually control land use extraterrito- rially municipalities end, comes to an unless these have authority exercised lawful to zone the land. The court of appeals concluded in the Gordie Boucher case that this point had been reached. City

¶ Boucher, 98. Gordie the of Madison Plan approve survey Commission was asked to a certified (CSM) map of a land division Madison's extraterri- jurisdiction. plat approval torial It refused to do so on grounds plans that for an Gordie Boucher's automobile dealership proposed part on a 12.2 acre site on City's property the subdivided was inconsistent with Peripheral Development Plan, Area which created a Open Space Boucher, Permanent District. Gordie Wis. 2d at 80-82. appeals explained

¶ that the 99. court proposed part of a acre Gordie Boucher land was 41.25 parcel being that was subdivided into four lots. The adjacent specific question Highway lot in was to U.S. an on the 151 on the west and to established landfill It had been zoned C-2 commercial more than 30 east. for years. conditionally Id. at 82. The town of Burke had County Zoning approved the Dane CSM and conditionally ap- Committee had Natural Resources proved the CSM. Id. at 82-83. But the Madison Plan rejected Commission balked and the CSM. Id. at 83. gave Although Plan Commission five disapproval was action, reasons for its the essence its (1) proposed survey not consistent with was City's including Peripheral Plan, Master Area Development Plan, Plan, the Land Use and the Parks (2) Open Space survey map Plan, the certified policy Plan was inconsistent with the Commission's for non-agriculture agriculture and land divisions. The exclusively plan Plan Commission relied on the master appeals. rationale when the case reached court Id. Krueger, Judge, court, 101. The circuit Moria rejected City's grounds reasons on that Madison effectively attempting agricul- was to rezone the lot to through planning ture and subdivision ordinances many when the lot had been zoned commercial for years. City's The circuit court ruled that the Master County's zoning Plan could Dane not override ordi- nance. Id. at 90. appeals agreed.

¶ 102. The court of In a unani- opinion by Judge Sundby, mous written the court ruled that: legislature given city's

[T]he not has master plan, planning tool, a pre-eminence county zoning, over regulatory a tool... . authority There is no for the county zoning commission's contention that a ordi- city's plan. reject nance is subordinate to the master We contention; support commission's it has no in the statutes or case law.

Id. at 90-91. analysis

¶ 103. This was and is unassailable. It require does not reliance on treatises unrelated to the peculiarities of Wisconsin It is law. fundamental Wis- consin law. dispute legisla-

¶ 104. There can be no that the given municipalities expansive ture has Wisconsin sub- regulatory powers encourage division objectives to broad land use given

and sometimes to enforce them. It has municipalities planning authority, substantial even be- three miles of the But it has not yond municipality. authorized to —in effect —rezone land municipalities by of extraterritorial regulation means subdivision and/or extraterritorial It has not planning. given municipali- ties of land that are power veto uses consistent with zoning, lawful absent reasonable con- existing quality cerns or defects. That is what Gordie held, Boucher and there is no reason to overrule the case. 105. The existence of extraterritorial zon- very 62.23(7a), § as set out in a

ing, Wis. Stat. constitutes clear legislative intent. This court is not expression liberty at the mechanism the has ignore legislature for extraterritorial designed zoning.9 62.23(7a) exacting, special § Wisconsin Stat. establishes by city may procedures which a zone land its extraterritorial jurisdiction. zoning complying any appli In addition to with 62.23(7), general zoning requirements city's § cable found in a must, governing body by a adoption specifies resolution zoned, promptly through precise the area to be declare notice requirements prepare comprehensive zoning its intention to a 62.23(7a)(a). ordinance. Wis. Stat. city plan

More a a important, when commission formulates zoning restriction, joint zoning extraterritorial committee is established. This committee consists of three members of the city plan any from commission three town members town 62.23(7a)(c). joint proposal. affected Wis. Stat. prepares zoning plan regulations, committee or amend- thereto, conjunction city plan ments commission. Id. However, only joint may the on the members of committee vote relating zoning regula- plan matters to the extraterritorial Accordingly, governing body adopt tions. Id. "The shall not the thereto, proposed plan regulations, or amendments unless proposals] majority a a the [the receive favorable vote of of 6 short, joint members of the committee." Id. In the statute governing body city adopt only zoning the a to that enables of

VIII majority heavily opinion The on se- relies legislative passages policy of lected two declarations , may support municipality a con- its conclusion that trol the ultimate use of land in its extraterritorial jurisdiction rejection approval through plats. the of new majority following particular, points In guage: to the lan- (1) purpose purpose chapter of 236 and the part, orderly is, "to further the section 236.45 layout Majority op., (quoting ¶¶ 13,17 and use of land." (2) 236.45(1), §§ respectively); Stat. 236.01 and Wis. regulations provided by "The for this section shall be made with reasonable consideration .-. . of the charac- municipality, county ter of town or ... for encour- Majority aging appropriate op., the most use of land." 236.45(1)). § (quoting ¶ 17 Wis. Stat. suspect

¶ 107. This reliance is for several reasons. First, sections or are decla- subsections that labeled as purpose legislative rations or declarations of intent clearly are different from or that sections subsections by joint committee, only has been recommended after public public and a hearing proposal. notice on the 62.23(7a)(e). matter, practical a provides

As statute town's may extraterritorially be land not zoned unless at least one representative of the city's pro- affected town concurs with a posed plan regulations. city No unilateral action permitted. City attempted Had the land Madison rezone plat by exercising regulation within the Woods' its subdivision authority, undergoing 62.23(7a), processes without it necessarily have contravened both the letter and the would specific, enabling spirit of this statute. The harmonization of a city's authority extraterritorial with these extrater- zoning provisions respected by ritorial was the Gordie Boucher decision, ignored by majority but in this case.

grant power. 236.45(1) example, §§ As an Wis. Stat. 236.01 and compared

should be to Wis. Stat. 62.23(7)(a), provision clearly grants power. a which language Second, in the declarations is language. illustrate, conditional To both declarations purpose orderly layout a list to "further the and use of something "help progress land." To "further" is to of' something. Heritage or "advance" The American Dictio- (3d 1992). nary English Language 737 ed. It does imply something. not control of Moreover, the word "orderly" just "orderly" "lay- "use," modifies as modifies Furthering orderly out." use of land is different controlling from the use of land. Looking language upon,

¶ 109. at the other relied we see the terms "reasonable consideration" and "en- couraging appropriate the most use of land." "Reason- implies pass able" that not all "consideration" will "Encourage" muster. a "further," is conditional verb like different from "control" or "effect."These words do not regulatory authority connote the unlimited subdivision majority appears especially to embrace. This is passages upon evident when all the relied are returned they to the context from which have been taken.10 very ¶ 110. Third, existence of conditional recognizes words the declarations the limits on regulation subdivision and the need to harmonize it zoning, both extraterritorial and otherwise. Zon- ing, regulation, like subdivision is an exercise of the police power. municipality given statutory When a

10 . . "[I]t is . well established that courts must not look at a single, portion sentence, isolated sentence or of a but at the role in the entire statute." Alberte v. Anew language relevant Servs., Health Care 7, 10, 587, 2000 WI 232 Wis. 2d 605 Dedeaux, Pilot Ins. Co. v. (citing N.W.2d 515 481 U.S. Life (1987)). "promote authority pass ordinance general safety, public welfare of the health, police power community" reflective of the —the —words authority thereby, given municipality to include is not explicit zoning in ordinance. the subdivision question

¶ before this court is 111. The certified majority: by ch. 236 autho- stated "Does Wis. Stat. reject preliminary plat municipality a under its rize a jurisdictional authority based on a sub- extraterritorial plat's proposed considers the division ordinance that Majority key question op. ¶ in at 2. The word this use?" "reject." question The obvious answer to the is "some- depending upon facts and whether the times," "yes" rejection There is no absolute is "reasonable." may compel municipality a "no" A not seek to answer. validly particular enacted land use that contradicts a rejecting zoning by arbitrarily plat a ordinance under component ordi- the extraterritorial of its subdivision teaching of the Boucher nance. This is the core Gordie case.11 key

¶ 112. word in the cer- "Consider" is not majority opinion "any question. The that tified observes regulation relating 'quality' to the of a subdivision must necessarily appropriate 'the most use' of land. consider cannot fathom an ordinance can consider the We how appropriate of land if it cannot consider the most use added). Majority op. (emphasis Of use of land." at may platting authority course, a consider the use of may impose an land, it not an authorized end but 11 municipality may approval A condition its of a on the compliance municipality's plan, master but the plat's may plan a master that exceeds its municipality not enforce addition, may authority. municipality In not block an other until, say, wise valid the subdivider donates 75 percent public. the land to the question unauthorized means. The certified is not the question question susceptible correct because isit not a precise to a answer. Judge Sundby

¶ 113. Robert anwas architect of the Wisconsin subdivision statute. He was a zealous municipalities. majority's advocate of failure to acknowledge Judge Sundby's pivotal reforming role chapter surprising. 236 of the Wisconsin Statutes is Judge Sundby faithfully applied Boucher, Gordie provisions chapter including Wis. Stat. 236.45 62.23(7a). pari materia with Wis. Stat. sought 114. Even scholars who have to mini- mize the distinction between subdivision control and zoning respected have understood the distinction. Marygold forthrightly "Zoning Melli wrote relates type building development to the which can take place way land; on the subdivision control relates to the ready building in which the land is divided and made for development." Melli, Wisconsin, Subdivision Control in 1953 Wis. L. Rev. 389, 389.

¶ 115. Beuscher, Professor a tireless advocate for planning, recognize land use property rights: nonetheless was careful to Though planning plan implementation of ne- cessity public desires, focus on needs and important it is to be private aware of and understand property rights protected by which exist and are both the federal and state goal constitutions. The of the courts as arbiter public between the in actions which are conflict with or upon alleged private encroach property rights has been to strike a balance —a balance which one will on hand allow public programs needed to be carried out and at preserve the same time large sphere possible as as within private which the private decision-maker property rights may be exercised. supra, Controls, at I-2.

Beuscher, Land Use be con- that "it must ¶ also wrote 116. Beuscher requirement application of the ceded that literal plan approved comply master with the the subdivision in in- some the 14th Amendment violate would par- impact regulatory on .. . because stances great be] [would to constitute so as ticular landowner property taking Id. case." at IV-23. his invalid an pat plan and refuses to stands "If approve commission buy does not and the council may position left land, the owner be condemn being land; and fair return on his to earn a of not able application probably declare the a court would added). (emphasis plan A Id. unconstitutional." master ap- may as be unconstitutional ordinance specific plied to facts.12 City repeatedly shown of Madison has 117. The development

hostility unapproved in its extraterri- to jurisdiction. Consequently, plat approval a subdi- torial jurisdiction will have extraterritorial in Madison's vider prevail plats hopes quality if it meticulous to submit City opposition. face of in-the that JUSTICE I am authorized to state join S. SYKES and JUSTICE DIANE JON E WILCOX concurrence. this relating argument an not advanced The Woods have and, their constitutionality rejection Madison's

therefore, did not brief this issue. parties

Case Details

Case Name: Wood v. City of Madison

Court Name: Wisconsin Supreme Court

Date Published: Apr 11, 2003

Citation: 659 N.W.2d 31

Docket Number: 01-1206

Court Abbreviation: Wis.