Platting

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144 R1. Concludes that municipalities will generally use sec. 66.1003 or 62.73, Stats., to discontinue platted streets and alleys rather than sec. 236.43, Stats., although the latter provision is used in plat vacation and alteration proceedings in court, brought by owners of land in the subdivision, which involve the vacation of platted streets and alleys. 9/30/04.

145 R1. A municipality may vacate a platted public square, park or playground by court action under the procedures set forth in sec. 236.43(2) and (3), Stats. 9/30/04.

152. A municipality does not have authority under sec. 236.45, Stats., to condition approval of a preliminary plat located within its extraterritorial plat approval jurisdiction on annexation. Hoepker v. City of Madison Plan Commission, No. 95-2013 (Wis. May 16, 1997). 5/30/97.

153. Concludes that a division of land accomplished by a certified survey map ostensibly establishing a single lot actually resulted in the creation of three parcels or potential building sites of 11/2 acres or less in size which count toward the four parcel limit under sec. 236.02(12)(b), Stats.

154. A "lot," "parcel" or "tract of land" for purposes of the definition of "subdivision" in sec. 236.02(12), Stats., cannot consist of two parcels separated by a public highway. 66 Op. Att'y Gen. 2 (1977). Accordingly, a developer may, unless precluded by local ordinance, divide his land into 8 parcels of 11/2 acres in size or less by using two CSMs, rather than a subdivision plat, where the first CSM severs the "parent" parcel in half by dedication of a public street and each CSM creates 4 lots on each side of the street.

155. Section 66.55(2)(c), Stats., does not preclude a municipality from imposing and collecting park or school fees in lieu of land dedication as a condition of plat approval pursuant to an ordinance adopted under sec. 236.45, Stats. Therefore, a municipality may continue to collect and need not refund park and school fees initially imposed before May 1, 1995, as a condition of plat approval pursuant to an ordinance adopted under sec. 236.45, Stats. In addition, municipalities may continue to impose fees in lieu of land dedication as a condition of plat approval under sec. 236.45, Stats., and such fees need not be imposed exclusively under sec. 66.55, Stats. (3/4/98).

156. A municipality can require that condominiums and other land divisions in its extraterritorial plat approval jurisdiction be submitted for its approval but a municipal subdivision ordinance is not applicable to condominiums unless the ordinance, by its express terms, applies to condominiums. Sec.703.27(1), Stats. (3/4/98)

157. Revisions to the Wisconsin Department of Transportation's administrative rule governing land divisions abutting state trunk highways or connecting highways, Trans 233, Wis. Admin. Code, became effective February 1, 1999. Under the revised Trans 233 all land divisions occurring after February 1, 1999, which abut state trunk and connecting highways, including land divisions occurring through the preparation of certified survey maps and the creation of condominium plats, are required to be reviewed by the department for conformance with Trans 233. 12/30/98.

158. A village whose impact fee ordinance required that a developer pay all impact fees for a residential subdivision prior to final plat approval, could not impose any additional impact fees on the development after the final plat was approved. Country Meadows West Partnership v. Village of Germantown, No-99-1291 (Ct. App. May 3, 2000) (recommended for publication). 5/31/00.

159. Municipalities are authorized to subdivide property and the expenditure of taxpayer funds to plat and develop the property did not violate the public purpose doctrine. Town of Beloit v. County of Rock, Case No. 00-1231 (Ct. App. Oct 25, 2001) (recommended for publication). Heimerl v. Ozaukee County, 256 Wis. 151, 40 N.W.2d 564 (1949) does not suggest that municipalities can never engage in traditionally private business in competition with the private sector. Id. 10/31/01.

160. The phrase "public improvements" as used in §236.13(2)(a), Stats., means an improvement or addition that improves the value or utility of a subdivision and is made available for public use, and includes the size of cul-de-sacs, length of street blocks and location of town roads. Rogers Development, Inc. v. Rock County Planning and Development Committee, Appeal No. 02-0017 (Ct. App. May 1, 2003) (recommended for publication). 4/30/03.

161. The sec. 236.13(2)(a), Stats., authority of a governmental unit to designate a public improvement necessarily envelops the right to determine the size, shape and location of the improvement. Rogers Development, Inc. v. Rock County Planning and Development Committee, Appeal No. 02-0017 (Ct. App. May 1, 2003) (recommended for publication). 4/30/03.

162. A city or village has statutory authority to reject a preliminary plat under its extraterritorial jurisdictional authority based upon a subdivision ordinance that considers the plat's proposed use. Wood v. City of Madison, 2003 WI 24, 260 Wis. 271, 659 N.W.2d 31, overruling Gordie Boucher Lincoln-Mercury v. Madison Plan Comm'n, 178 Wis.2d 74, 503 N.W.2d 265 (Ct. App. 1993). 4/30/03.

163. An association of developers has legal standing to challenge the use of impact fees collected by a municipality "so long as any of its developer members has the right to challenge the use of the impact fees" but the impact fee law allows "a municipality to impose impact fees for a general type of facility, such as an aquatic or youth center, without committing itself to any particular proposal before charging the fees." Metropolitan Builders Association of Greater Milwaukee v. Village of Germantown, Appeal No. 2004 AP 1433 (Ct. App. April 13, 2005) (recommended for publication). 4/29/05.

164. 2005 Wisconsin Act 203 specifies that municipalities must use impact fees imposed under sec. 66.0617 within 7 years or return the fee to the property's current owner. The law appears to be retroactive, applying to impact fees imposed under "impact fee ordinances that are in effect on the effective date" of the subsection, April 11, 2006. The law allows municipalities to extend the 7-year time period for an additional 3 years by enacting a resolution specifying hardship or extenuating circumstances. 4/30/06

165. Describes 2005 Wisconsin Act 477, which prohibits municipalities from imposing fees in lieu of land dedication on developers as a condition of plat approval. 5/31/06.

166. A municipal ordinance conflicts with Wis. Stat. sec. 236.13(2)(a), as construed in Rice v. City of Oshkosh, 148 Wis. 2d 78, 81, 435 N.W.2d 252 (1989), to the extent that it imposes, in the municipality's extraterritorial plat review jurisdiction, a minimum lot size of twenty acres where the lot or parcel is not served by a public sanitary sewer system Town of Delton v. Liston, 2007 WI App 120, 731 N.W.2d 308. 3/31/07.

167. A navigable stream meandering over a parcel does not divide the parcel into two parcels when the same riparian owner holds qualified title to the property on both shores of the stream and the entirety of such a parcel, including the streambed, is used to calculate the width of the lakeshore frontage when the streambed is not expressly excluded from such calculation. FAS, LLC v. Town of Bass Lake, 2007 WI 73, __ Wis. 2d __, 733 N.W.2d 287. 6/30/07.

168. A municipality that regulates land divisions has authority under Wis. Stat. sec. 236.45(2) to impose a temporary area-wide prohibition on land division while developing its comprehensive plan. Wisconsin Realtors Association v. Town of West Point, 2008 WI App 40, 747 N.W.2d 681. 2/29/08.

169. Recorded plat’s designation of sixty foot strip of land providing lake access as “Public Access” was sufficient to dedicate the lake access to the public and town’s failure to improve or maintain the strip in the 31 years between the recording of the plat and the town’s assertion of an interest in the strip did not justify estoppel against the public’s interest in the land. Regardless of when it was created, a lake or stream access can only be vacated under Wis. Stat. sec. 236.43 and only if the governing municipality agrees. Vande Zande v. Town of Marquette, 2007 AP2354 (Ct. App. Aug. 13, 2008, publication recommended). 8/29/08.

170. A subdivision ordinance that restricts land division within its extraterritorial jurisdiction to a density of no more than one lot per thirty-five acres of land and a minimum lot size of one acre and explicitly intended to protect rural character and farming viability is an impermissible land use restriction contrary to Wis. Stat. sec. 236.45(3)(b). Lake Delavan Property Co. v. City of Delavan, 2013AP1202, 2014 WI App __ , __ Wis. 2d __, __ N. W.2d __. 03/01/14.

171. Legal comment by Brian Ohm summarizes history of law related to extraterritorial plat review in Wisconsin and reviews case law governing extraterritorial plat approval authority in Wisconsin, including Lake Delevan Property Co. , LLC v. City of Delevan, 2014 WI App 35, review denied, 2015 WI 50, which limited the authority of cities and villages to use density standards to control proposed plats in their extraterritorial area. Comment  explains the authority that cities and village still have in exercising extraterritorial plat review, primarily related to the suitability of land for the proposed development and the quality of the proposed subdivision, and also summarizes other options available to cities and villages. 9/30/14.