Town of Delton v. Liston
| Decision Date | 29 March 2007 |
| Docket Number | No. 2006AP1288.,2006AP1288. |
| Citation | 2007 WI App 120,731 N.W.2d 308 |
| Parties | TOWN OF DELTON, Thomas W. Ritzenthaler, Crystal R. Ritzenthaler and Poplar Meadows, LLC, Plaintiffs-Respondents, v. Patrick J. LISTON, City of Baraboo Mayor, City of Baraboo, City of Baraboo Common Council, Cheryl M. Giese, City of Baraboo City Clerk and City of Baraboo Plan Commission, Defendants-Respondents. |
| Court | Wisconsin Court of Appeals |
On behalf of the plaintiffs-respondents, the cause was submitted on the brief of William F. Greenhalgh, Esq. of Greenhalgh Legal Services, Baraboo; and Troy M. Hellenbrand, Esq. of Hellebrand & Hellenbrand S.C., Waunakee.
Before LUNDSTEN, P.J., VERGERONT, HIGGINBOTHAM, JJ.
The City of Baraboo1 appeals the circuit court's declaratory judgment and its order that the City approve the preliminary plat of the Poplar Meadows subdivision. We agree with the circuit court that BARABOO, WI ORDINANCE (ORD.) § 18.02(8)(a) (1992) conflicts with WIS. STAT. § 236.13(2)(a) (2005-06)2 to the extent it imposes, as part of its extraterritorial plat review jurisdiction, a minimum lot size where the lot or parcel is not served by a public sanitary sewer system. We further agree with the circuit court's conclusion that the ordinance provision is void to that extent and the City's denial of the preliminary plat approval based on that portion of the ordinance was in excess of its authority. Accordingly, we affirm the circuit court's declaratory judgment and its order that the City approve the preliminary plat.
¶ 2 The facts are not in dispute. Thomas and Crystal Ritzenhaler own a forty-acre parcel of agricultural land in the Town of Delton. They developed a plan to convert this land into a new subdivision, Poplar Meadows, which would be comprised of twenty-one single family residential lots, each lot averaging between one and two acres in size. The Ritzenthalers presented this proposal to the Town of Delton and the Town approved the preliminary plat.
¶ 3 The Ritzenthalers' land is located within three miles of the City and therefore subject to the City's "extraterritorial plat approval jurisdiction." See WIS. STAT. § 236.02(5). Under WIS. STAT. § 236.45(3),3 the City may regulate the subdivision of land in extraterritorial plats. The City has an ordinance providing that the "minimum lot or parcel size for a lot or parcel to be used for residential purposes where the lot or parcel is not served by a public sanitary sewer system shall be 20 acres per dwelling unit." ORD § 18.02(8)(a).4
¶ 4 Upon learning the subdivision was within the City's extraterritorial plat approval jurisdiction, the Ritzenthalers applied to the City for a variance or special exception5 to the requirements of ORD. 18.02(8)(a). Initially, the Common Council approved the Ritzenthalers' application for a special exception to the requirement of a minimum lot size of twenty acres for all land divisions for residential purposes not served by a public sanitary sewer system. However, the Mayor subsequently vetoed the Council's action. The Ritzenthalers thereafter submitted the preliminary plat to the Plan Commission for approval and it was rejected based on noncompliance with ORD. 18.02(8)(a). The City informed the Ritzenthalers that the rejection was based on the city engineer's recommendation to deny approval because "the proposed lot size within the subdivision is less than 20 acres for each lot . . . [and] is not served by a public sanitary sewer system."
¶ 5 The Ritzenthalers, the Town of Delton, and Poplar Meadows, LLC filed a complaint in the circuit court seeking a declaratory judgment that ORD. § 18.02(8)(a) is unlawful and unenforceable when applied extraterritorially. The complaint also seeks certiorari review of the decision to deny preliminary plat approval. See WIS. STAT. § 236.13(5).6
¶ 6 The circuit court concluded that WIS. STAT. § 236.13(2)(a), as interpreted by Rice v. City of Oshkosh, 148 Wis.2d 78, 81, 435 N.W.2d 252 (1989), prohibits municipalities from imposing specifications pertaining to public improvements within their extraterritorial plat review jurisdiction. It rejected the City's argument that ORD. 18.02(8)(a) regulates only minimum lot size and does not mandate a public improvement. It therefore declared the ordinance void to the extent it requires lots less than twenty acres to have public sanitary sewer systems. The court also determined that the City had conditioned its approval of Poplar Meadows upon the requirement that the subdivision make or install a public sanitary sewer system. It therefore concluded the City had acted in excess of its authority in denying preliminary plat approval and ordered the City to approve the preliminary plat.
¶ 7 On appeal, the City renews it argument that ORD. 18.02(8)(a) does not mandate public improvements in its extraterritorial plat review jurisdiction and therefore it does not conflict with WIS. STAT. § 236.13(2)(a).7
¶ 8 The dispute in this case involves the interpretation of a city ordinance and its relation to the statutes governing the subdivision of land. The interpretation of an ordinance, like statutory interpretation, presents a question of law, which we review de novo.8 Hillis v. Village of Fox Point Bd. of Appeals, 2005 WI App 106, ¶ 6, 281 Wis.2d 147, 699 N.W.2d 636.
¶ 9 WISCONSIN STAT. ch. 236 regulates the subdivision of land. WIS. STAT. § 236.01. WISCONSIN STAT. § 236.459 grants a municipality town, or county a broad range of powers to regulate the subdivision of land. In certain instances, ch. 236 grants power to more than one governing body to regulate the same parcel of land. See e.g. WIS. STAT. § 236.10, § 236.45(3); WIS. STAT. § 236.13(4). However, regarding the installation of public improvements, § 236.13(2)(a) grants specific authority to the town or municipality within which the subdivision lies to choose to require that the subdivider make and install any public improvements as a further condition of plat approval. Section 236.13(2)(a) provides:
As a further condition of approval, the governing body of the town or municipality within which the subdivision lies may require that the subdivider make and install any public improvements reasonably necessary or that the sub divider execute a surety bond or provide other security to ensure that he or she will make those improvements within a reasonable time.
¶ 10 In Rice, 148 Wis.2d at 81, 435 N.W.2d 252, the supreme court held that WIS. STAT. § 236.13(2)(a) grants the power to condition plat approval on installation of public improvements "solely to the governing body within which the subdivision lies." It therefore rejected the contention that a city had the authority to require public improvements in its extraterritorial plat review jurisdiction. Id. at 84-87, 435 N.W.2d 252. In rejecting policy arguments that might support a city having that authority, the court stated that the legislature had already made the following policy choice as expressed in the language of § 236.13(2)(a):
Public improvements are subject to the political and financial base of the area directly involved. In the case before us, the City is not financially responsible for the public improvements they require. . . . The legislature left this decision of public improvements to the governmental unit most accountable for such decisions. . . .
¶ 11 A municipality may not circumvent WIS. STAT. § 236.13(2)(a) by conditioning plat approval on requirements that compel another municipality to implement and maintain public improvements. See Rogers Dev. Inc. v. Rock County Planning & Dev. Comm., 2003 WI App 113, ¶ 18, 265 Wis.2d 214, 666 N.W.2d 504.
¶ 12 The parties in this case do not dispute that a public sanitary sewer system is a public improvement. Rather, the dispute is whether ORD. 18.02(8)(a)'s requirement of a public sanitary sewer system for lots smaller than twenty acres is a lot size regulation or a mandate of extraterritorial public improvements in violation of WIS. STAT. § 236.13(2)(a) as construed in Rice. The City argues "that a condition on minimum lot size that allows smaller lots where those lots are served by a public sanitary sewer system is not the same as requiring that the subdivision actually install a public sanitary sewer system." We conclude that the City's proffered distinction is not meaningful in light of the court's holding and reasoning in Rice. The ordinance provision plainly has the effect of requiring a public sanitary sewer system for lot sizes smaller than twenty acres. We agree with the circuit court that this aspect of the ordinance cannot be reconciled with § 236.13(2)(a), as construed in Rice: the City is requiring a public improvement for lots of certain sizes even though the City is not financially responsible for those improvements.
¶ 13 The City's characterization of the reason it denied the preliminary plat approval does not avoid the conflict with WIS. STAT. § 236.13(2)(a) as construed in Rice. The City contends it denied approval simply because the proposed subdivision did not meet the minimum lot size requirement. However, it is also true that, had there been a public sanitary sewer system, the City would not have denied approval because of lot size. The fact that the ordinance does not require a public sanitary sewer system for all lot sizes does not alter the fact that it does impose that requirement for lot sizes smaller than twenty acres. Similarly, the fact that a purpose of the ordinance is to regulate lot size does not alter the fact that the City has chosen to accomplish this purpose by mandating a public sanitary sewer system for smaller lot sizes.10
¶ 14 We conclude that ORD. § 18.02(8)(a) conflicts with WIS. STAT. § 236.13(2)(a) as construed by Ri...
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