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Front Page Articles
Land-Use Decision Impacts Extraterritorial Zoning Rules
by Deb Conrad and Tom
Larson
On April 11, 2003 the Wisconsin Supreme Court ruled against the developers in the Wood v. City of Madison case and, in the process, overturned a very important land- use case. In a 4-3 decision, the Court overturned Gordie Boucher v. City of Madison, a 1993 case that held that the City of Madison could not use its extraterritorial plat approval jurisdiction to regulate land-uses to the extent that the city rezoned the property. By overturning the Boucher decision, the Court has substantially enhanced the ability of cities to use their plat approval authority to effectively control or prohibit development within the extraterritorial area within three miles of their borders (1.5 miles for small cities and villages).
In the Wood case, the Woods submitted a preliminary plat to the City of Madison for approval under its extraterritorial plat approval jurisdiction. The proposed 11-lot subdivision lies within the Town of Burke and provides for a mixture of agricultural, commercial and agri-business lots. The Woods' property had been conditionally rezoned for commercial use, contingent upon approval of their plat. The city rejected the plat based upon a Madison subdivision ordinance that considers the plat's proposed use. The city found that the plat promoted some commercial uses in an area that is predominately agricultural and that this commercial development is incompatible with the surrounding agricultural land-use pattern. The WRA, through the Legal Action Program, filed an amicus brief and participated in oral argument in an effort to uphold the Gordie Boucher case.
Gordie Boucher was an important precedent because it stood for the principle that zoning decisions must be made using the zoning process-cities could not attempt to "go in the back door" and use their extraterritorial plat approval powers to exert zoning control. The extraterritorial zoning procedures require notice to land owners, hearings, and a joint zoning commission including representatives from the town board. A town resident who can attend town zoning hearings and elect the town officials on the joint zoning commission, has no representation on the city council that adopts a city subdivision ordinance that regulates the land-use. Under the Wood decision, the city can apply the land-use provisions of the city's subdivision ordinance to proposed extraterritorial plats and reject those plats where the zoning is inconsistent with the land-uses approved in the city's subdivision ordinance.
Now that Gordie Boucher has been overruled, cities will be permitted to unilaterally make zoning decisions through the extraterritorial plat approval process. Whenever a developer proposes a new subdivision within the three-mile extraterritorial zone and the plat proposal complies with local and county zoning, the city can reject based upon city subdivision ordinances that have conflicting use/zoning standards.
This decision will lead to more conflicts between cities and towns over subdivisions, as it has shifted the "balance of power" that previously existed between cities and towns to a situation where the cities have most of the control. By limiting development options in extraterritorial areas, the decision will give cities the upper hand in negotiating annexation agreements with affected property owners. Property owners may be frustrated to find that a community they do not live in (and do not vote in) has additional power to reject their property developments by the applying land-use provisions of city subdivision ordinances.
From a land-use planning perspective, a strong argument can be made that this decision will promote sprawl. As we have seen in many areas of the state, when development is prohibited in extraterritorial areas, development will leapfrog over the 3 miles of land adjacent to a city to get beyond the city's reach, creating an effective growth ring around the city. Such a growth ring could prevent orderly development patterns in the future.
The three concurring judges in this 4-3 decision indicated that there was no need for the court to overrule Gordie Boucher. They concluded that the Legislature "has not authorized municipalities to-in effect-rezone land by means of extraterritorial subdivision regulation and/or extraterritorial planning. It has not given municipalities power to veto uses of land that are consistent with lawful existing zoning, absent reasonable quality concerns or subdivision defects. That is what Gordie Boucher held, and there is no reason to overrule the case."
Because of the important role that the Gordie Boucher case played in maintaining the balance of power between cities and towns and protecting the rights of property owners in extraterritorial areas, WRA staff is continuing to review the Wood case to determine (a) what steps need to be taken to enable our members to adjust to this new decision, and (b) whether a legislative remedy is possible.
To read the full opinion in Wood v. City of Madison, 2003 WI 24, go to
www.wisbar.org/res/sup/2003/01-1206.htm.
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