Brookhill Development, Ltd. v. City of Waukesha, 80-398
| Citation | 299 N.W.2d 610,99 Wis.2d 485 |
| Decision Date | 10 November 1980 |
| Docket Number | No. 80-398,80-398 |
| Parties | BROOKHILL DEVELOPMENT, LTD., a Wisconsin Corporation, Plaintiff-Appellant, v. CITY OF WAUKESHA, a Wisconsin Municipal Corporation, Defendant-Respondent. |
| Court | Wisconsin Court of Appeals |
Review Granted.
Paul J. Burbach, Wauwatosa, on brief, for plaintiff-appellant; William T. Schmid, of counsel.
George E. Lawler, City Atty., Waukesha, for defendant-respondent.
Before VOSS, P. J., and BROWN and SCOTT, JJ.
Brookhill, a subdivision developer, appeals the judgment summarily granted to the City of Waukesha which upheld the City's authority to require Brookhill to pay a fee in lieu of dedication of land for school purposes for the entire subdivision, as a condition of plat approval, even though 100 of the 104 subdivision lots were located outside the City's extraterritorial plat approval jurisdiction. We hold that the City had no statutory authority to require either dedication of land or a fee in lieu thereof for any portion of the subdivision located outside the City's extraterritorial plat approval jurisdiction. We further hold that the plat approval ordinance which required school land dedication was not rendered invalid by the failure of the Fiscal Board to ratify the ordinance and that the application of the ordinance to Brookhill's four lots located within the City's extraterritorial jurisdiction did not deprive Brookhill of equal protection of the laws as guaranteed by the fourteenth amendment.
In requiring Brookhill to pay a fee, the City relied on an ordinance numbered 39-76 passed by the Common Council in 1976. The ordinance amended the City's Subdivision and Platting Code to provide, in part:
23.10(1)
(b) Dedication of Sites. Within the jurisdiction as set forth in § 23.01(2) and within the Waukesha Joint School District No. 1 located within such jurisdiction, the subdivider shall provide and dedicate to the Board of Education, through the City, adequate land to provide for schools and school site needs of the subdivision, as set forth in par. (c).
(c) Substitution of Payment in Lieu of Dedication. 1. Where such dedication is not feasible or consistent with the City Comprehensive Plan, the subdivider shall, in lieu thereof, pay to the Board of Education a fee equivalent to the value of the required dedication.
2. Such fees collected shall be placed in a non-lapsing fund to be used for school construction or school site acquisition, within the subdivision or within a reasonable proximity of the subdivision.
Section 23.01(2) of the Code provided:
(2) JURISDICTION. These regulations shall govern subdivisions within the City, and may be applied within the unincorporated area within 3 miles of the City over which the City has extraterritorial plat approval jurisdiction.
Brookhill submitted to the Common Council for its approval the final plat of a 104 lot subdivision. Approximately four lots were within the City's extraterritorial plat approval jurisdiction. The remaining 100 lots were outside the City of Waukesha's, but within the City of Brookfield's, extraterritorial plat approval jurisdiction. 1 The whole subdivision was within the Waukesha Joint School District.
The Common Council approved the plat subject to the condition that Brookhill pay $14,560 in lieu of school land dedication. The fee was calculated upon the basis of all 104 lots. 2
Brookhill paid the full amount and then brought this action for declaratory judgment. In its first claim, Brookhill sought a judgment that the required payment of $14,560 for the 104 lots or, in the alternative, the required payment of $13,999.44 for the 100 lots outside the City's jurisdiction, was not authorized by law and sought to recover the respective amounts, plus interest and costs. In its second claim, Brookhill sought a judgment that the $14,560 demanded by the City bore no reasonable relationship to the City's need to provide schools for Brookhill's subdivision.
Brookhill subsequently moved for summary judgment, limited to its first claim that the required payment of $14,560 or, at least, $13,999.44 thereof, was unauthorized by law. The City agreed that no issue of material fact existed but argued it was entitled to judgment as a matter of law. The trial court agreed with the City. The court declared that Ordinance 39-76 was valid and that the City was authorized to require a fee in lieu of school land dedication for the entire 104 lot subdivision. The trial court stated:
The only issue is whether or not the City, by approving of the entire plat, can make their ordinance apply with respect to land dedication to the entire hundred four lots rather than only the four. City of Brookfield has had no ordinance on this subject. Had the City of Brookfield also had an ordinance covering this specific question, then the court would believe that the statute would, under 236.13(4), indicate that the ordinance that was most restrictive would apply, and there being no restrictive ordinance, the court is of the opinion that the City is correct in their allocation, that it applies to the entire one hundred four lots, there being nothing to the contrary, rather than just four lots, because they approved the entire plat.
We agree with the trial court and the parties that no genuine issue of material fact existed requiring a trial in this case. Nevertheless, we believe the trial court erroneously concluded that sec. 236.13(4), Stats., applied to the instant situation. Section 236.13(4) provides that "where more than one governing body or other agency has authority to approve or to object to a plat and the requirements of such bodies or agencies are conflicting, the plat shall comply with the most restrictive requirements." This provision is directed to the situation in which more than one body or agency has concurrent or overlapping plat approval authority over the entire plat. For example, under sec. 236.10(1)(b), Stats., the town board, the governing body of a municipality and the county planning agency may all have approval authority over a plat which is within the municipality's extraterritorial plat approval jurisdiction. Section 236.13(4) provides, therefore, that if, for example, the county's plat approval requirements conflict with and are more restrictive than those of the municipality, the county's requirements shall apply.
Section 236.13(4), Stats., is not directed to the situation in which a plat lies within the extraterritorial plat approval jurisdiction of more than one municipality. Section 236.10(2), Stats., expressly applies to such a situation and states that "if a subdivision lies within the extraterritorial plat approval jurisdiction of more than one municipality, the provisions of s. 66.32 shall apply." Section 66.32, Stats., provides that the plat approval power of each municipality extends only to "a line all points of which are equidistant from the boundaries of each municipality concerned so that not more than one municipality shall exercise such power over any area." (Emphasis added.) 3
Applying secs. 236.10(2) and 66.32, Stats., to the present case, the City of Waukesha has plat approval jurisdiction only over the four lots actually located within its extraterritorial jurisdiction, and the City of Brookfield has such jurisdiction over the remaining 100 lots. While it is true each city can approve or reject only the whole plat submitted to it and not a portion of the plat, 4 such approval or rejection can be made only upon the basis of that portion of the plat actually located within the city's plat approval jurisdiction. For example, the City of Waukesha cannot reject Brookhill's plat on the ground that a portion of the subdivision located outside the City's extraterritorial jurisdiction did not meet the requirements of its ordinances.
If sec. 236.13(4), Stats., were read to apply to the present situation as the trial court has read it, then sec. 236.10(2), Stats., would be without effect. The law is settled that statutes are to be reconciled if possible and are not to be interpreted in such manner as to show contradictory legislative intent if that result can be avoided. State ex rel. Cabott, Inc. v. Wojcik, 47 Wis.2d 759, 766, 177 N.W.2d 828, 832 (1970).
Further, the City's own ordinances do not purport to give the City the authority to approve plats located outside the City's extraterritorial plat approval jurisdiction. The ordinances provide that the subdivider may be required to dedicate adequate land for school purposes or a fee in lieu thereof only within the City or the unincorporated area over which the City has extraterritorial plat approval jurisdiction and within the Waukesha Joint School District. In attempting to exact a fee from Brookhill's subdivision land located outside the City's extraterritorial jurisdiction, the City exceeds the bounds of its own ordinances.
No cases have come to our attention in which it was held that a municipality had the authority to place plat approval restrictions upon property located outside its plat approval jurisdiction. We have discovered one case...
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Coulter v. City of Rawlins
...imposed on the transaction having to do with obtaining plat approval. This holding was followed in Brookhill Development Ltd. v. City of Waukesha, 99 Wis.2d 485, 299 N.W.2d 610 (1980), where the court upheld an ordinance requiring dedication or a fee in lieu of dedicating land for school pu......
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Brookhill Development Ltd. v. City of Waukesha, 80-398
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