Village’s extraterritorial zoning valid and applicable to condominium development

by Kaitlin Heinen

Village of Newburg v. Deerprint Enterprises, LLC
(Wisconsin Court of Appeals, August 15, 2012)

Deerprint Enterprises, LLC filed a motion for summary judgment seeking declaration that its condominium plat the Town of Trenton approved in 2007 is not subject to the Village of Newburg’s extraterritorial plat approval ordinances. The Village also filed a motion for summary judgment seeking declaration that the Town’s earlier approval is void, so as to require that Deerprint’s development be reapproved. The circuit court granted the Village’s motion and denied Deerprint’s.

The case was previously before the Court of Appeals on a related question.  Deerprint proposed a 6-unit condominium that sits on a 35-acre parcel of land zoned as CES-5 Country Estates under the Town’s zoning ordinance. This zoning allows one single-family unit per a minimum of 5 acres in a residential development; however one of the condominium units was initially commercial. The Village objected to the Town’s approval of the mixed-use development, designated as a Planned Development Overlay (PDO) and sought a declaration that it was invalid under the Village’s extraterritorial zoning authority that was in place at the time. The Wisconsin Court of Appeals agreed and remanded the case to the trial court.

On remand, the trial court held the Town’s approval was null and void and granted the Village’s motion for a summary judgment. Deerprint then simply amended their condominium declaration to make all units residential. The Village objected, arguing that no valid condominium plat existed that could be amended, since the Town’s approval had since been invalidated, and was never re-submitted to the Village for approval. The trial court found that amending the rejected declaration was insufficient and granted the Village’s request for summary judgment. Deerprint appealed again, or as Judge Todd K. Martens cleverly remarked, Deerprint “essentially [tried] for a second kick at the same old cat.”

Deerprint argued that the circuit court erred in that neither the Town nor the Village can prohibit the condominium form of ownership according to WIS. STAT. §703.27(1), but the Wisconsin Court of Appeals disagreed. The trial court did not require Deerprint to get approval for condominium ownership but to be approved for a multi-family residential development on land zoned for single-family residence per five acres. Additionally, WIS. STAT. §703.27(1) does not exempt condominiums from zoning regulations. Rezoning via another PDO is required then since the first PDO designation was invalidated.

WIS. STAT. §703.27(1) “(1) prohibits zoning ordinances from either outlawing the condominium form of ownership or imposing on condominiums requirements not imposed on other forms of ownership; and (2) requires a municipality to pass an ordinance if it wants to apply subdivision ordinances to condominiums.”  WIS. STAT. §236.10(1)(b) requires approval by both the town and the governing municipality for the property within the overall jurisdiction of both. The Village’s extraterritorial plat approval encompasses the condominium plat by VILLAGE OF NEWBURG,WIS., ORDINANCES ch. 18, § 18.04(6)(b) (2007), which expressly states that platting regulations are applicable to condominiums. Also, WIS. STAT. §236.45 authorizes a municipality to regulate subdivisions, which are applicable outside city and village boundaries. And WIS. STAT. § 703.27(1) authorizes the inclusion of condominiums under these regulations. Since the Village’s ordinance expressly refers to condominiums, it is applicable to Deerprint’s parcel.

The Court held that all zoning provisions have to be met for a condominium to be valid. Deerprint’s parcel clearly lies within the Village’s jurisdiction, and Deerprint has never sought approval from the Village. So the judgment of the circuit court was affirmed.

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