Court of Appeals Limits Extraterritorial Land Division Powers

February 12, 2014

The Wisconsin Court of Appeals just issued an opinion limiting the City of Delavan’s extraterritorial land division ordinance. Under chapter 236, cities and villages may exercise some control over land outside their own geographical border. This is referred to as “extraterritorial” land division jurisdiction. In other words, if a developer wishes to develop land within a town that is also within the extraterritorial area of a city or village, the developer would need to seek approval from not just the town, but also from the city or village if the city or village has an extraterritorial subdivision ordinance.

If a city or village is going to exercise extraterritorial zoning powers, it has to be done by a joint committee comprised of members of the city or village, and of each town affected. In this way, towns have a voice in such regulations. As a general matter, zoning ordinances address issues such as residential, agricultural or commercial use restrictions. Alternatively, if a city or village is going to exercise extraterritorial land division approval, the city or village may adopt an ordinance without working cooperatively with towns or counties.

In Lake Delavan Property Company, LLC v. City of Delavan, the Delavan Property Company requested approval of a preliminary plat for its property located in the Town of Delavan in an area zoned residential by the county. The City of Delavan rejected the preliminary plat on the basis that its extraterritorial subdivision ordinance restricted land divisions 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.

The developer appealed the decision arguing the regulation of land use (for example, issues relating to density) are zoning matters that must be done through the cooperative efforts of the city and the town, and that the city could not unilaterally adopt such restrictions under its extraterritorial land division jurisdiction. The Court of Appeals determined the city’s thirty-five acre density restriction effectively precluded residential development in the extraterritorial jurisdiction, and, therefore, was a zoning restriction. The Court of Appeals affirmed the Circuit Court’s determination that the City of Delavan could not deny a subdivision plat in its extraterritorial jurisdiction based on zoning restrictions unless the denial is based on zoning regulations passed cooperatively with the town.

This is a significant victory for property owners within the extraterritorial jurisdiction of cities and villages, and for towns that desire more cooperation as to land use issues with their neighboring cities and villages.

The Court of Appeals decision is recommended for publication in the official reports.

Lake Delavan Property Company, LLC. v. City of Delavan, Appeal No. 2013Ap1202 

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