Reprinted by permission of Richard A. Lehmann, Boardman Law Firm, Madison, Wisconsin

In a decision released on April 11, 2003, the Wisconsin Supreme Court held that a city can deny approval to an extraterritorial land subdivision based on land use standards. Wood v. City of Madison, 2003 WI 24, Case No. 01-1206.

The decision overturns the separate but related 1993 Court of Appeals decision in Gordie Boucher Lincoln-Mercury v. Madison Plan Commission, 178 Wis. 2d 74, 503 N.W.2d 265 (Ct. App. 1993). In that case, the City of Madison denied approval to a certified survey map in its extraterritorial area based upon noncompliance of the proposed land use with the municipal land use plan. The Court of Appeals found that the City had acted beyond the scope of its authority, holding that extraterritorial land subdivision regulation decisions could not override the county zoning applicable to the property.

A decade later, Wood v. City of Madison came before the Wisconsin Supreme Court. The case involved the same City exercising land subdivision review in the same Town (Burke), and once more denying subdivision approval for land use reasons. This time, the land use bases for the decision were found in criteria that had been included in the City Subdivision Ordinance, but this turned out not to be a significant difference. The new case presented the Supreme Court with a recommendation from the Court of Appeals that the ruling of Gordie Boucher be overturned. The Court of Appeals had made the Gordie Boucher decision in 1993, but as an intermediate appellate court, it was unable to overturn the decision.

The reason for overturning the Gordie Boucher decision was that the statement of purpose for local land subdivision ordinance in section 236.45 of the Wisconsin Statutes says that such ordinances shall be adopted and enforced for several purposes, one of which is to encourage "the most appropriate use of land throughout the municipality�." While this does place land subdivision regulation in overlapping position with land use regulation through zoning, this overlap is the product of legislation. The Supreme Court sees no reason for the courts to interfere.

The majority decision, written by Justice Bradley and joined by Chief Justice Abramson and Justices Crooks and Bablitch, devotes 24 pages to establishing this point and determining that Madison's land use criteria were sufficiently specific and were reasonably applied to the subdivision plat.

A concurring opinion written by Justice Prosser and joined by Justices Sykes and Wilcox, devotes 32 pages to explaining that the Gordie Boucher decision does not need to be, and should not be overturned, although the concurring Justices agree that the plat in question was properly denied by the City.

The concurring opinion traces the history of Wisconsin's land subdivision laws back to 1839. It notes that cities have had extraterritorial plat approval powers since 1909. It pays homage to the late Professor Jacob Beuscher, who was instrumental in shaping the present version of land subdivision statutes in the mid 1950s. Another contributor to the present statutes was attorney Robert D. Sundby representing the League of Wisconsin Municipalities in that era. Mr. Sundby went on to become a member of the Wisconsin Court of Appeals and was the author of the Gordie Boucher decision.

The concurring opinion concludes that the Legislature has given cities an array of powers that can be combined. In the Wood case, the proposed commercial land use conflicted with the applicable agricultural zoning, the City's land use plan, and the City's land use policies in its subdivision ordinance, and was not serviceable with adequate transportation and sewer facilities. The City was using its powers aggressively, but was not overreaching when applying them to a development proposal that was "so vulnerable to criticism."

But, the concurring justices see Gordie Boucher as having dealt with a subdivision that had no defects of platting or municipal services. The proposed use was consistent with the zoning. Under these circumstances, the City was beyond its bounds in stretching extraterritorial plat review to overrule applicable zoning. The extraterritorial subdivision denial was arbitrary, as applied to the facts.

The concurring justices argue that concern for property rights demands that control of extraterritorial land use through the unilateral powers of extraterritorial subdivision review be bounded by a test of reasonableness. They see the majority as having given municipalities too much of a blank check to control use through plat review.

Neither the majority nor the concurrence seriously address the issue of "regulation without representation," a situation inherent in extraterritorial regulation. This issue had been raised in constitutional terms by the Wisconsin Realtors Association in an amicus brief, which argued that the Town's involvement was necessary to protect the due process rights of citizens and property owners in the Town. The justices directed substantial attention to this issue during oral argument in this case last October. However, while the main parties acknowledged the issue, they did not deal with it in their briefs. The Supreme Court may have determined that the issue was not sufficiently developed to allow a meaningful ruling.