Lawmakers Modify Wisconsin’s Smart Growth Law to Reduce Future Lawsuits

By: Tom Larson
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During the 2009-10 legislative session, Wisconsin lawmakers made significant changes to Wisconsin’s comprehensive planning law.  These changes were signed into law by Governor Doyle as part of the 2009 Wisconsin Act 372 (Act 372).  The changes were intended to clarify several key sections of the law and delay the consistency deadline for some local communities.  In addition, the changes were supported by the Wisconsin REALTORS® Association and other organizations that developed the comprehensive planning law.

During the 2009-10 legislative session, Wisconsin lawmakers made significant changes to Wisconsin’s comprehensive planning law.  These changes were signed into law by Governor Doyle as part of the 2009 Wisconsin Act 372 (Act 372).  The changes were intended to clarify several key sections of the law and delay the consistency deadline for some local communities.  In addition, the changes were supported by the Wisconsin REALTORS® Association and other organizations that developed the comprehensive planning law.

Background 

Wisconsin’s comprehensive planning law (commonly referred to as “Smart Growth”) was enacted in 1999.  The law requires most local communities to create a comprehensive plan to help guide them in making land-use decisions.  Under the law, a comprehensive plan must contain at least nine elements (housing, natural resources, economic development, etc.), and most local land-use regulations are required to be consistent with the local comprehensive plan after January 1, 2010. 

Recent Changes 

Act 372 made a number of significant changes to Wisconsin’s comprehensive planning law, such as: 

Delaying the consistency requirement for some local governments – Prior law required that beginning January 1, 2010, zoning, subdivision and official mapping ordinances needed to be consistent with a local comprehensive plan.  However, a number of local governments were having difficulty meeting the January 1, 2010 deadline due to a shortfall in revenue and the fact that they applied for, but did not receive, state planning grants.  Other communities have received state planning grants but also received time extensions from the Wisconsin Department of Administration (DOA) to complete their comprehensive plans. 

The new change delays the January 1, 2010 consistency deadline until either January 1, 2012 or the date agreed to by DOA for any community that has (a) applied for, but has not received, a comprehensive planning grant from DOA, or (b) received a comprehensive planning grant and an extension of time to complete it by DOA.

Clarifying that Comprehensive Plans Are Not Regulations – One of the most important changes to the law is the attempt to clarify the legal status of a comprehensive plan.  In other words, is the comprehensive plan a regulation, or merely a guide?  Some confusion has resulted from the fact that comprehensive plans must be adopted by ordinance and that zoning regulations have to be consistent with comprehensive plans. Some people believed that since the comprehensive plan is adopted by an ordinance, a local government can directly regulate land use based on the comprehensive plan alone.  In other words, a community does not need to have a zoning ordinance or subdivision regulations. 

Act 372 attempts to clarify that comprehensive plans are advisory in nature and do not create regulatory requirements independent from other requirements.  Adopting a comprehensive plan is only one step in the process and local communities must take additional steps to implement the plan, if desired, through zoning ordinances and subdivision regulations. 

Specifically, the new changes define “comprehensive plan” to mean “a guide to the physical, social, and economic development of a local governmental unit.”  In addition, the new changes specify that the enactment of the comprehensive plan by ordinance does not make a comprehensive plan by itself a regulation.

Defining “consistency” – Under the comprehensive planning law, all zoning and subdivision regulations are required to be “consistent with” a comprehensive plan.  However, “consistency” is not defined.  As a result, considerable litigation could occur to define the meaning of “consistency,” which would create tremendous uncertainty for local communities and property owners trying to use their property in accordance with a comprehensive plan. 

Act 372 attempts to clarify the consistency requirement by defining “consistent with” to mean “furthers or does not contradict the objectives, goals and policies contained in the comprehensive plan.”  This definition gives discretion to local communities as to how they interpret their local comprehensive plans.  Moreover, the definition clarifies that local comprehensive plans do not need to contain the same detailed land use regulations found in a zoning ordinance in order for the zoning ordinance to be “consistent with” the comprehensive plan. 

Clarifying what must be consistent with the comprehensive plan – Under prior law, confusion existed as to which actions must be consistent with the comprehensive plan and with which parts of the plan these actions must be consistent.  For example, if a community makes a zoning change, it was unclear whether the zoning change had to be consistent with the land use map, the housing element, the economic development element, or every word of every section of the comprehensive plan.  Because plans are supposed to be visionary, rather than regulatory, in nature, this created tremendous confusion. 

Act 372 clarifies that only the ordinances enacted after January 1, 2010 have to be consistent with the comprehensive plan.  This is intended to clarify that that the day after a local community adopts a comprehensive plan, the community’s zoning and subdivision regulations are not invalid if they are not consistent with the newly adopted comprehensive plan.  Since planning is intended to focus on the future, only future ordinance changes need to be consistent with the comprehensive plan. 

The WRA will continue to monitor the implementation of Wisconsin’s comprehensive planning law to ensure that local communities are adopting local plans that, among other things, encourage economic development, protect our natural resources, and provide for an adequate supply of housing.

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Tom Larson is Chief Lobbyist and Director of Legal and Public Affairs for the WRA. 

Published: January 04, 2011
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