City (WI) cannot use extraterritorial plat approval authority to regulate land use

by Rachel Greifenkamp

Lake Delavan Property Company, LLC v. City of Delavan

(Wisconsin Court of Appeals, February 12, 2014)

Delavan, a city in southeastern Wisconsin recently attempted to “protect rural character and farming viability” by utilizing its extraterritorial plat approval authority to deny a proposal made by Lake Delavan Property Company to develop a 600-home subdivision just outside of the city limits.  According to WIS. STAT. § 236.10(1)(b), a municipality is authorized to exercise extraterritorial plat approval authority over land within one and one-half miles of the city limits. The land that the developer purchased is in the Town of Delavan, but within one and one-half miles of the City of Delavan.

The question in this case was whether the City’s denial of the Company’s plan is prohibited by WIS. STAT. § 236.45(3)(b). This provision states that a city may not use its extraterritorial power to deny the approval of a plat on the basis of the proposed land use unless the denial is based on zoning regulations passed cooperatively with neighboring towns. The only part of the statute that was contested was whether the proposed subdivision was denied on the basis of the proposed land use. The city maintained that the denial was based on its application of its density restrictions (one residential dwelling per 35 acres in the extraterritorial area), which is a permissible use of extraterritorial plat approval authority. Conversely, the developer claimed that the thirty-five acre density restriction is designed to keep the borders of the city agricultural.

When a developer believes that the denial of a plat was arbitrary, unreasonable, or discriminatory, they can appeal to the circuit court where, if it is found that the denial of the plat was arbitrary, unreasonable, or discriminatory, the court will direct the City to approve the plat. In the circuit court it was ruled that the city acted outside its jurisdiction by using its extraterritorial power to deny the proposed plat based on land use. The state court of appeals agreed with the circuit court. “The city’s 35-acre density restriction is an improper use if its extraterritorial plat approval authority to rezone land….Common knowledge and experience tell us that the ordinance’s blanket density requirements effectively preclude residential development throughout extraterritorial jurisdiction. Indeed, the ordinance’s preamble states the ordinance was enacted ‘in order to protect rural character and farming viability.'”  The judgment in favor of Lake Delavan Property Company was affirmed.

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