Hoepker v. City of Madison Plan Com'n

• Decision Date: 11 April 1996
• Docket Number: No. 95-2013,95-2013
• Citation: Hoepker v. City of Madison Plan Com'n, 551 N.W.2d 63, 202 Wis.2d 650 (Wis. App. 1996)
• Parties: NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. Jerome HOEPKER and Jane Hoepker, Plaintiffs-Appellants, v. CITY OF MADISON PLAN COMMISSION and City of Madison, a Municipal Corporation, Defendants-Respondents.
• Court: Wisconsin Court of Appeals

Page 63

551 N.W.2d 63

202 Wis.2d 650

NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES.

Jerome HOEPKER and Jane Hoepker, Plaintiffs-Appellants, v.CITY OF MADISON PLAN COMMISSION and City of Madison, a Municipal Corporation, Defendants-Respondents.

No. 95-2013.

Court of Appeals of Wisconsin.

April 11, 1996.

APPEAL from an order of the circuit court for Dane County: GERALD C. NICHOL, Judge.Affirmed in part and reversed in part.

Before DYKMAN, SUNDBY, and VERGERONT, JJ.

VERGERONT, J.

Jerome and Jane Hoepker appeal from an order affirming the City of Madison's conditional approval of their preliminary plat of "Hoepker Heights", a proposed residential subdivision.The issues are: (1) whether the City exceeded its jurisdiction in conditioning preliminary plat approval on annexation of the property to the City; and (2) whether the City exceeded its jurisdiction in conditioning preliminary plat approval on reconfiguration of the plat to provide an open space corridor for a future recreational trail.We resolve the first issue in favor of the Hoepkers and the second issue in favor of the City.Accordingly, we affirm the trial court's order in part and reverse in part.

BACKGROUND

The Hoepkers own approximately forty-nine acres of land in the Town of Burke which they seek to develop as a residential subdivision.The property is located within the City of Madison's extraterritorial plat approval jurisdiction.¹ The Hoepkers' preliminary plat consists of sixty-two single-family residential lots with on-site septic systems and private individual wells, and three outlots.The lands within the preliminary plat are zoned A-1 Agriculture (Non-Exclusive) by Dane County, and the property is currently used primarily as a livestock farm.The proposed subdivision development is permitted by this zoning.

The Hoepkers submitted their preliminary plat ² of Hoepker Heights to the City on October 11, 1993.³ The City of Madison's Department of Planning and Development reviewed the preliminary plat and recommended, alternatively, that it be rejected or that it be approved with a number of conditions.The two conditions at issue in this appeal are as follows:

1.Annexation of the lands encompassed by the preliminary plat to the City of Madison, so that the full range of urban services, including public sanitary sewer and public water service, may be provided to the proposed development area in a timely manner by the City of Madison, according to established regulations, practices, policies, and procedures of the City.

2.Reconfiguration of the plat to provide an adequate open space corridor along the south frontage of Hoepker Road for a future recreational trail location.

Regarding the first condition, the department reported that the preliminary plat did not comply with the City's subdivision ordinance, § 16.23, Madison General Ordinances, the Peripheral Area Development Plan and the Rattman Neighborhood Development Plan ⁴ because it did not provide for public sanitary sewer and water service to the subdivision.The department's planning unit report explained:

The full range of urban services will not be available to the proposed plat.Instead of public sanitary sewer and public water service, the homes in this plat will be served by private on-site septic systems and private individual wells.Without public sewer or public water, it is reasonable to expect that water quality problems may develop in the future here, as they have elsewhere, due to nitrate concentrations in the private wells.

....

Urban services and public facilities, including public sewer and water service, could most efficiently be provided to the area of this proposed plat by extension of City of Madison services available on adjacent lands to the south.By enabling urban residential development in the township, at this time, without public sewer and water, the proposed plat would result either in the necessary urban services never becoming available to these homes, or in the services being extended to them at a later date after the area is fully developed, at much greater cost.

The department's planning unit report also stated that without annexation, adequate public services and improvements could not be provided to the subdivision.The report explained that the Town of Burke does not provide public sewer and water, the property is not in an urban service area, and public sewer and water cannot be extended unless the Central Urban Service Area is amended to include the Hoepkers' property (which would occur only upon annexation).According to the report:

City annexation in order to provide full urban services in the event that the area is developed rather than continuing in the recommended rural uses is an option recommended in both the Peripheral Area Development Plan and the Rattman Neighborhood Development Plan; and requiring an annexation agreement "to insure future provision of required public facilities and services" is authorized by Section 16.23(3)(a)6., Madison General Ordinances.

Regarding the open space corridor condition, the department's planning unit report stated that the preliminary plat was not consistent with the open space corridor recommendations in either the Peripheral Area Development Plan or the Rattman Neighborhood Development Plan.In particular, the Rattman Neighborhood Development Plan specifically recommends that, if subdivision development is permitted in the area of the proposed subdivision, an open space corridor be maintained along the north and south frontages of Hoepker Road ⁵ for a future recreational trail, connecting the proposed 250-acre open space preservation area south of Hoepker Road with Token Creek County Park and Cherokee Park to the north and west.The report did not specify the dimensions of the open space corridor and did not require dedication of any land to the City.

Following a public hearing, the City of Madison Plan Commission agreed with the second alternative recommendation of the Department of Planning and Development's planning unit report and recommended that the City of Madison Common Council conditionally approve the preliminary plat.Following a public hearing, the common council conditionally approved the preliminary plat on July 21, 1994, relying in large part on the Department of Planning and Development's planning unit report.⁶The Hoepkers sought certiorari review of the City's conditional preliminary plat approval under § 236.13(5), Stats.The trial court affirmed and this appeal followed.

STANDARD OF REVIEW

A person aggrieved by a municipality's failure to approve a plat may appeal to the trial court pursuant to § 236.13(5), Stats., which provides in relevant part: "The court shall direct that the plat be approved if it finds that the action of the approving authority or objecting agency is arbitrary, unreasonable or discriminatory."This review procedure is referred to as statutory certiorari.Busse v. City of Madison, 177 Wis.2d 808, 811, 503 N.W.2d 340, 341(Ct.App.1993).

We review the decision of the approving authority, not the decision of the trial court.Klinger v. Oneida County, 149 Wis.2d 838, 845 n. 6, 440 N.W.2d 348, 351(1989).Our review is limited to: (1) whether the City kept within its jurisdiction; (2) whether the City proceeded on a correct theory of law; (3) whether the City's action was arbitrary, capricious or unreasonable and represented its will and not its judgment; and (4) whether the evidence was such that it might reasonably make the decision in question.Snyder v. Waukesha County Zoning Bd., 74 Wis.2d 468, 475, 247 N.W.2d 98, 102(1976).

SUBDIVISION REGULATION

Chapter 236, Stats., sets out the minimum requirements imposed on subdividers throughout the state.Town of Sun Prairie v. Storms, 110 Wis.2d 58, 61, 327 N.W.2d 642, 643(1983).The requirements are designed to accomplish the purposes set forth in § 236.01, Stats., ⁷ and are enforced through the power to approve or disapprove subdivision plats.Town of Sun Prairie, 110 Wis.2d at 61, 327 N.W.2d at 643.The legislature has delegated the power to approve or disapprove subdivision plats to local governments that have established planning agencies.Section 236.45, Stats.This delegation allows local governments to regulate subdivisions more intensely than provided by the state by permitting them to adopt ordinances that are more restrictive than the provisions of ch. 236.Town of Sun Prairie, 110 Wis.2d at 61-64, 327 N.W.2d at 643-44.Section 236.45(1) provides in part:

Declaration of Legislative Intent.The purpose of this section is to promote the public health, safety and general welfare of the community and the regulations authorized to be made are designed to lessen congestion in the streets and highways; to further the orderly layout and use of land; to secure safety from fire, panic and other dangers; to provide adequate light and air, including access to sunlight for solar collectors and to wind for wind energy systems; to prevent the overcrowding of land; to avoid undue concentration of population; to facilitate adequate provision for transportation, water, sewerage, schools, parks, playgrounds and other public requirements; to facilitate the further resubdivision of larger tracts into smaller parcels of land.

An ordinance adopted by a municipality pursuant to § 236.45, Stats., must be liberally construed in favor of the municipality, provided it is in accord with the general declaration of legislative intent.Town of Sun Prairie, 110 Wis.2d at 64, 327 N.W.2d at 644-45.Such an ordinance may be applied to subdivisions within the municipality's extraterritorial plat approval jurisdiction.Section 236.45(2).

The City of Madison has enacted a subdivision ordinance pursuant to § 236.45, Stats.This ordinance, § 16.23, Madison General Ordinances, is more...