ExtraterritorialAuthority Discussed in Delavan Case

The Wisconsin Court of Appeals recently decided Lake Delavan Property Company, LLC v. City of Delavan, finding the City’s denial of a proposed plat within the extraterritorial jurisdiction was based on the proposed use of the land, and thus, was prohibited under § 236.45(3)(b), Wis. Stats. In 2004 and 2006, the Company purchased land in the Town of Delavan, but within the City’s 1 ½ mile extraterritorial plat approval jurisdiction, with the intention of subdividing the land and building single family homes. At the time of the property purchases, the land was zoned residential, and was designated as “traditional neighborhood” in the City’s comprehensive plan. In 2011, the City amended its subdivision ordinance, restricting land division within the extraterritorial area to a density of no more than one lot per thirty-five acres and a minimum lot size of one acre. The Company submitted its preliminary plat for the subdivision in May, 2012 and the City denied approval. The Company sought certiorari review, and the circuit court reversed the City’s denial.

Providing a chronological history of the statutes relating to subdivision regulation, zoning and extraterritorial jurisdiction, the court of appeals affirmed the circuit court’s decision. In Wood v. City of Madison, decided in 2003, the Wisconsin courts held a municipality could reject a plat under its extraterritorial authority based on a subdivision ordinance that references the proposed use of the plat. However, in 2009, the legislature enacted § 236.45(3)(b), which explicitly stated that municipalities may not deny an extraterritorial plat based on land use. Now, while the City does have extraterritorial plat approval authority, it cannot use that authority to impose land use regulations that should have been developed jointly with the neighboring town under § 62.23(7a), Wis. Stats. In applying § 236.45(3)(b), the court found that while the City’s density restriction was framed as a subdivision regulation relating to quality, it in fact related to the intent, or use, of the property, which is the province of zoning. Any change to the land use restrictions within the extraterritorial jurisdiction of the City must be exercised in cooperation with the neighboring towns and that did not occur in this case. As a result, the court affirmed the circuit court’s judgment ordering approval of the plat.

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