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Honing an Old Land Use Tool: Regulating Rural Land Division at the Town Level

The process of parcelization is hardly new. When rural zoning was introduced in the late 1920s to constrain rampant �farmland� sales on sand and gravel lands in the north, recreation was promoted as a suitable land use in far flung lake districts. Speculators then created thousands of shoreland and near-shore lots in the first half of the 20th Century. As a result, many �ghost plats� still invisibly dot the landscape, harboring undeveloped small parcels that await a landowner with a blueprint and a variance request.

The parcelization process in rural Wisconsin is adding thousands of new homes in previously undeveloped areas. The time lag between when a landowner or developer creates a new parcel and a buyer builds something on it ensures a steady supply of future homes. One could argue that landowners and developers are oversupplying the market for rural lots, in part because it is relatively easy to create new lots that are small enough (and thus affordable enough) to be purchased by nearly everyone. Today, one can buy a two acre wooded lot in rural northern Wisconsin for less than $15,000.

While second-home seekers and retirees may relish in the availability of affordable getaways, there is scarce evidence that anyone is adequately considering the cumulative effect of these developments. The �external costs� of lot creation and rural development are paid by neither seller nor buyer, but rather the public in general. More homes in the forests means greater challenges for fire crews called on to save those homes when fires come through the woods. Development in shoreland areas is sure to increase runoff to lakes and rivers, degrading water quality, fisheries and wildlife habitat.

One thing that has changed in the last 100 years is our collective understanding of the damages and costs that this form of scattered rural development can bring. Today, more and more local communities are searching for adequate tools to manage the rate and pattern of lot creation. The recent surge in comprehensive planning in rural Wisconsin has contributed to both greater local understanding and concern. An increasing number of rural towns are finding that land division ordinances are both more appropriate and more powerful for managing residential growth locally.

One potential application of the land division ordinance is to increase the minimum lot size allowable in new rural subdivisions, from perhaps two acres to ten acres, twenty acres, or more. While such a policy in a suburban area would rightly be criticized for exacerbating sprawl and potentially creating exclusive suburbs, this approach could effectively �internalize� the external costs of rural development and help tighten what is currently an artificially loose market. The net effect would be to temper and slow the rate of land division.

The balance of this article explains in more detail why a town might wish to consider this option, and provides some issues that a town should consider when seeking to develop a land division ordinance.

THE LIMITS OF ZONING
It could be argued that much of the emphasis on zoning in rural Wisconsin has been misplaced. Zoning ordinances were originally designed to reduce the intermingling of incompatible land uses. Most people would agree, for example, that communities should separate industrial facilities from residential districts. There is less agreement that a use like recreational homes is incompatible with Wisconsin�s rural lake and forest country. Indeed, most people would agree that these land uses are fully compatible, but that we should be concerned about the details of how landowners place those homes in the landscape.

For example, when developers are creating a new lakeshore subdivision, they should situate lots such that a septic system can be safely separated from both a well and the lake. Roads over a certain length ought to be designed to allow fire fighting equipment easy access. Zoning ordinances, which deal with broad classes of land use, can also deal effectively with lot sizes, setbacks and other dimensional requirements, but they are not designed to deal with infrastructure issues including roads and drainage systems. This can limit their usefulness in shaping new development. Land division regulations, in contrast, have always been used specifically to guide the land development process. Because Wisconsin has long emphasized zoning, local communities have paid less attention to land division ordinances and greater attention to zoning.

Another reason for the heavy emphasis on zoning is the sometimes strained relationship between towns and counties with respect to land use regulations. In the late 1960s, the state began mandating shoreland zoning to protect public waters from some of the harmful effects of overdevelopment. The state entrusted county boards, through their zoning committees and boards of adjustment, to enforce the statewide minimum standards on lot size and frontage. In doing so, the state reduced the role of town boards, eliminating their veto authority in shoreland rezoning (areas within 1,000 feet of a lake or 300 feet of a river). Many counties have since developed their own shoreland standards that go above and beyond state minimums. However, in many lake and forest rich towns, local residents and their elected town boards are coming to realize that even these updated standards may not be enough to protect threatened resources, particularly lakes. Viewed from a watershed perspective, local communities can see the 1000/300 foot delineation of �shorelands� as somewhat arbitrary, since development beyond this limit can still deliver substantial runoff to streams, rivers, and lakes.

This is creating new tensions in areas where town boards feel that county standards are too low. Towns may find it difficult to raise zoning-based development standards. While a town can go through a process to enact its own zoning, such town zoning ordinances are subject to approval (or veto) by the county board in counties with comprehensive zoning. The county may or may not go along with the town, depending in part on their intergovernmental relationship. Counties also have reason to seek uniformity in their regulations, both to make administration more straightforward and to avoid the appearance of favoring one community over another. County regulations, for example, might not differentiate between standards applicable in a developing area next to a city or village and a rural, isolated area where city utilities are unlikely to extend in the foreseeable future.

Seen in this light, land division ordinances that raise minimum lot sizes and otherwise impact the ease of creating new rural lots represent a powerful and appropriate tool for a town to deploy to better manage local growth and development, in part because unlike county zoning, a town can enact land division regulations without county approval. As always, great power comes with great responsibility. The following section summarizes some of the issues and caveats that a town ought to consider before wielding this legal device.

BACKGROUND AND STATE ROLE IN LAND DIVISION CONTROL
The regulation of how landowners divide and sell their holdings actually predates zoning in Wisconsin. This is due in large part to the government�s duty for enforcing private property rights. In order to resolve ownership disputes, the state needs a clear method of determining where one person�s land ends and another�s begins. Over time, the state has become more demanding of how surveys and records are maintained to hopefully eliminate instances where two people claim ownership of the exact same piece of land.

The state has also changed its role in reviewing proposals to divide and sell new parcels of land. Where once it took a laissez faire approach, the state now reviews subdivisions to ensure proper on-site waste disposal. Where once many long, narrow �piano key� lots could be built on a state highway, the state now regulates lot creation along highways. And where once landowners could surround an entire lake with nothing but private lots, the state now requires regularly spaced access points to ensure the public�s right to their common waters. Starting in 1951, the state has also permitted local governments to develop their own land division regulations to address specific, local issues.

LOCAL GOVERNMENT ROLES IN LAND DIVISION CONTROLS
Most counties have regulations that closely reflect the state standards. However, these same standards contain loopholes that reduce their effectiveness in rural areas. For example, the state definition of subdivisions limits its oversight to �a division of a lot, parcel, or tract of land by the owner thereof or the owner�s agent for the purpose of sale or of building development, where: (a) The act of division creates 5 or more parcels or building sites of 1� acres each or less in area; or (b) Five or more parcels or building sites of 1� acres each or less in area are created by successive divisions within a period of 5 years.� (Wis. Stat. � 236.02(12)). This does not address lots larger than 1� acres, a common occurrence in rural areas, and it also permits a landowner to survey and create multiple small lots so long they do so over a sufficiently long period of time.

Any local government (city, village, county, or town) can define a subdivision in a more restrictive manner than the state. A town could develop a subdivision regulation that is applicable to all new lots, regardless of size. Such a regulation may be more properly labeled a land division ordinance. State statutes further allow a local government to define different classes of subdivision. A town could, for example, classify new lots larger than 10 acres as �minor land divisions� and grant them a more expeditious review and approval process. While local governments have wide latitude in developing the detailed requirements of a land division ordinance, they still need to relate the ordinance to the health, safety, and welfare of their population and they need to enforce the ordinance in a fair and non-discriminatory fashion. Beginning in 2010 the ordinance must also be consistent with a local comprehensive plan.

While the ordinance cannot discriminate against land owners, it can reflect the fact that not all land is created equal. Rules near lakes and rivers, for example, can reflect the likely impacts of land division and development on riparian and aquatic resources. Rules applying to steeply sloped land can reflect the challenges of access, erosion, and soils unsuitable for septic systems.

The process of adopting and enforcing land division ordinances adds to their appeal for rural towns facing subdivision pressure. As mentioned earlier, the process does not involve review and approval by a county. Still, like most ordinances, the town must have village powers and needs to follow the same procedures for legally adopting any ordinance. Once in place, a town board can assign the duty of applying the ordinance to a town plan commission. This is due, in part, to the fact that there is minimal room for personal judgment in applying a well written ordinance. An applicant will either meet the standards or not, and the town plan commission ought to be prepared to point out the flaws in a rejected land division proposal. A town that has assigned land division approval to the town plan commission can assign appeal and oversight authority to the town board. This is a variation from zoning, where a town is required to have both a plan commission and a local board of adjustment. The statutes actually do not specify the need to have a local appeal body for land division ordinances, but not having one is a sure way to invite challenges at the circuit court level.

As suggested earlier, a town can categorize land division proposals based in part on the size and number of lots being created. Faced with a large, complex subdivision proposal, a town can choose to hire an engineer or landscape architect to assist in the review of the application. Their ordinance can assign the costs of such assistance to the applicant. Again, the town�s contractor and the plan commission are constrained to evaluating the proposal against the standards put forth in the ordinance, so the review process should be rather straightforward. A town can further facilitate the review process by creating a �users guide� to the ordinance and providing ordinance text to landowners seeking to divide their land. They can also require a less-formal �pre-application� meeting to discuss the landowner�s vision and point out potential conflicts between the landowner�s scheme and what the ordinance allows. This is best done early in the process to prevent landowners from investing time and money in a clearly incompatible proposal.

RELATING LAND DIVISION CONTROLS TO LOCAL COMPREHENSIVE PLANS
Local land division regulations can be a very effective bridge between a community�s comprehensive plan and their desired future. This is especially true in places where the vast majority of land is still undeveloped. The land division ordinance can work to severely constrain new development and preserve existing conditions, if that is the community�s will, or it can work to facilitate orderly development and change. Moreover, by highlighting the real challenges of developing land with numerous natural constraints (slopes, wetlands, etc.), the land division ordinance can be another tool for directing future development towards areas where the land itself is more accommodating. In towns with minimal such constraints, the land division ordinance may still be useful if the town elects to significantly increase the minimum permitted lot size.

Managing the size, shape, and location of new parcels is but one way that a land division ordinance can help a town implement its plan. Land division ordinances can also regulate the layout of roads, specifying standards and expectations for design and construction. It can (and should) detail how the cost of roads, stormwater controls, and other development-related infrastructure will be assigned to the applicant and provide for financial guarantees to ensure that the town is not left holding the bag with respect to road construction costs or partially completed construction. It can include requirements for off-site improvements required due to the pressures created by the new development. In most cities, the local government requires park dedications or payments in-lieu-of as part of subdivision approval. Conservation subdivision standards, requiring permanent set-aside of open space, can also be included in a land division ordinance.

Land division ordinances are not well suited for dealing with land that is already divided. There are means for �undoing� poorly platted lands and eliminating non-conforming lots, but they are by no means easy. In reality, the zoning ordinance is and always has been the best tool for addressing land use issues on already platted lands. The Wisconsin Supreme Court has, for example, supported zoning laws that require owners of adjacent small lots, say 35 feet in width each, to combine them into lots double that size. The zoning ordinance will, for example, best handle cases of someone seeking permission to open a tavern in a residential area, or store abandoned vehicles on land near a school. In these cases, land division regulations are of little use.

CONCLUSION
One of the first rules of carpentry is �measure twice, cut once.� In Wisconsin, the landscape has been cut time and again with little measurement of whether the resulting pieces will fit into a desirable future. Landscape ecologists point out that the rampant parcelization of undeveloped northern lands inevitably leads to habitat fragmentation, and that large contiguous blocks of habitat are becoming increasingly scarce. Aldo Leopold offers another first rule, that of intelligent tinkering: keep all the parts. We watch large tracts of habitat disappear at our own risk. Land division ordinances are not a silver bullet for managing development pressures in Wisconsin, but they are a powerful tool for local communities to use in implementing their comprehensive plans. They can guide and manage the rate and extent of land division, consistent with the community�s goal.

Rebecca Frisch, Darryl Landeau, Lynn Markham, and Rebecca Roberts provided helpful comments in preparing this article. Errors and omissions remain the responsibility of the author. Eric Olson welcomes your comments and feedback.

REFERENCES AND FURTHER READING:
Shultz, Michael M. and Jeffrey B. Groy, 1988. The Failure of Subdivision Control in the Western United States: A Blueprint for Local Government Action. Utah Law Review, pp. 569-674.

Knetzger, Russel, 2003. Model Subdivision Ordinance Online. WAPA Newsletter, Fall 2003, pp. 8-9. Available online from WAPA.

Melli, Marygold Shire, 1953. Subdivision Control in Wisconsin. Wisconsin Law Review, pp. 389-457.

Ohm, Brian W. 1999. Chapter 7: Subdivision regulations. Guide to community planning in Wisconsin. Madison: University of Wisconsin Board of Regents. Available online from UW-Madison Department of Urban and Regional Planning.

Olson, Eric, 2005. Raising the Gangplank: A Defense of Localism Aimed at Resource Protection. In Natural Amenities and Rural Development edited by G.P. Green, S.C. Deller, and D.W. Marcouiller. New York: Edward Elgar Publishing.

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