In State of Wisconsin ex rel. Michael Anderson v. Town of Newbold, 2018AP547 (Oct. 29, 2019), the Wisconsin Court of Appeals, District III, recently upheld a minimum-shoreland-frontage requirement adopted under a town’s subdivision authority, even though an identical requirement could not be validly adopted within the town’s zoning authority.

Michael Anderson owns a lot with 358.43 feet of shoreland frontage in the Town of Newbold. When he sought in 2016 to split the property into two lots, the Town Board denied his request. The Town Board reasoned that the property did not have sufficient total shoreland frontage for each of the proposed lots to satisfy a subdivision ordinance, which requires a minimum of 225 feet of shoreland frontage for each lot. After the circuit court upheld the Town Board’s decision on certiorari review, Anderson appealed.

The court of appeals acknowledged that there is a tension between inconsistent statutes on zoning and subdivision authority. Wis. Stat. § 59.692 prohibits towns from enacting shoreland zoning regulations. Anderson, slip op. at ¶11. However, the Wisconsin Supreme Court has also recognized that Wis. Stat. § 236.45 provides independent authority “to enact subdivision control regulations.” Anderson, slip op. at ¶12 (citing Town of Sun Prairie v. Storms, 110 Wis. 2d 58, 70, 327 N.W.2d 642 (1983)).

The court of appeals considered the critical question to be whether the Town’s subdivision ordinance was authorized by Chapter 236, not whether the ordinance could also be considered zoning. Anderson, slip op. at ¶16 (citing Town of Sun Prairie, 110 Wis. 2d at 70-71). Anderson, however, focused on the similarities between the Town’s subdivision ordinance and a zoning ordinance. Id. at ¶14. Anderson did not argue that the ordinance was improper under Chapter 236. Accordingly, the court seized upon Chapter 236 in rejecting Anderson’s claim that the Town lacked authority to adopt the minimum-frontage requirement in its subdivision ordinance. Id. at ¶16.

The court of appeals also rejected Anderson’s invitation to treat Wis. Stat. § 59.692 as an implicit revocation of the relevant authority in Wis. Stat. § 236.45. Id. at ¶17. Section 59.692 repeatedly states it applies only to zoning, while section 236.45(2)(b) provides that subdivision authority “should be liberally construed in favor of the municipality.” Anderson, slip op. at ¶19. Therefore, even though it acknowledged “undeniable tension” between these two statutes, the court declined to rewrite either of them. Id. at ¶21.

Although this decision recognizes a town’s subdivision authority, it also expressly invites the Legislature to limit that authority in accord with recent strictures on zoning. The Legislature may well take up the court’s invitation. Towns should review their ordinances in the meantime. When the Legislature eliminated towns’ authority to enact shoreland zoning, it vested the rights of those towns that had existing shoreland zoning ordinances. Towns should consider adopting or amending shoreland subdivision ordinances now, so that a similar legislative change to Chapter 236 would not fully divest them of authority to regulate shoreland frontage.

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