The Wisconsin Legislature recently made a number of changes to the subdivision platting requirements contained in Chapter 236 of the Wisconsin Statutes, including limiting a municipality’s authority to deviate from time limits and other requirements contained in the statutes. See 2009 Wisconsin Act 376. Specifically, Act 376 amended section 236.45(2)(ac) to provide that a local subdivision ordinance cannot “modify in a more restrictive way time limits, deadlines, notice requirements, or other provisions of [chapter 236] that provide protections for a subdivider.” Starting January 1, 2011, a local subdivision ordinance that is inconsistent with Act 376 is not enforceable.
Municipalities with local subdivision ordinances must amend their ordinances in response to Act 376. We recommend a two-pronged approach. First, we recommend amending the local subdivision ordinance to include the following (or similar) language:
“To the extent that this Chapter contains time limits, deadlines, notice requirements, or other provisions that are more restrictive than time limits, deadlines, notice requirements, or other provisions that provide protections for a subdivider contained in Chapter 236 of the Wisconsin Statutes, the time limits, deadlines, notice requirements or other provisions that provide protections for a subdivider contained in Chapter 236 shall apply.”
This first amendment needs to occur before January 1, 2011 so that the municipality can continue to apply and enforce its local subdivision ordinance.
Second, municipalities should review their subdivision ordinance to identify how and where the ordinance is inconsistent with time limits, deadlines, notice requirements, or other provisions in Chapter 236 that provide protections for subdividers. The phrase “other provisions in Chapter 236 that provide protections for subdividers” is open to interpretation because it is not defined in Act 376 or elsewhere in the statutes. Once the inconsistencies are identified, the municipality should amend its subdivision ordinance. We are available to assist in this process.
Act 376 made other changes to Chapter 236, including:
- Section 236.11(1)(b) previously stated that if a final plat was not submitted within 24 months after the last required approval of a preliminary plat, the approving authority had the discretion to refuse to approve the final plat. Act 376 changed the deadline from 24 months to 36 months, and amended the section to allow an approving authority to extend the deadline for submission of the final plat.
- Creating section 236.11(1)(c) requiring a professional engineer, planner or other person charged with the responsibility to review plats to provide the approving authority with conclusions as to whether the final plat conforms substantially with the preliminary plat and with a recommendation on approval of the final plat. The conclusions and recommendation need not be in writing and must be made a part of the record at the proceeding at which the final plat is considered.
- Amending section 236.13(1)(b) to provide that a person seeking approval of a plat must comply with the ordinances in effect at the time the person submits the preliminary plat, or at the time the person submits the final plat if no preliminary plat is submitted.
- Amending section 236.13(2)(a) to allow a subdivider to construct a project – including necessary public improvements – in phases approved by the governing body, and the approval may not be unreasonably withheld. If the project is constructed in phases, the amount of any surety bond or other security required by the governing body must be limited to the phase of the project being constructed. The governing body may not require the subdivider to provide security for improvements sooner than is reasonably necessary before the commencement of the installation of the improvements.
If you would like additional information regarding 2009 Wisconsin Act 376 and its impact, please contact your Stafford Rosenbaum attorney or an attorney on our Government Law Team.