Wisconsin Weakens Smart Growth Comprehensive Planning Law

May 27, 2010

After ten years of anticipation, on January 1, 2010, Wisconsin’s Comprehensive Planning Law went into full effect. However, just months later, at the end of the 2009-2010 legislative session, the State Legislature passed Senate Bill 601, which bill was signed into law by Governor James Doyle on May 18, 2010. This Bill makes limited but significant amendments to the implementation of the Comprehensive Planning Law. This article will highlight the most important changes.

Introduction
The Comprehensive Planning Law, Wis. Stats. sec. 66.1001, was originally adopted in 1999 and amended in 2000. As of 2000, it was structured to require a City, Village, or Town (exercising village powers) to adopt a Comprehensive Plan in order to engage in certain land use activities, including subdivision regulation, zoning, and shoreland zoning. Most notably, it provided: “Beginning on January 1, 2010, if a local governmental unit engages in any of the following actions [subdivision regulation, zoning regulation, shoreland zoning regulation], those actions shall be consistent with that local governmental unit’s comprehensive plan.”

Thus, if a governmental unit engaged in subdivision regulation or zoning, such actions were required to have some undefined measure of consistency with the Plan. For example, if a residential subdivision were approved, that subdivision must be consistent with the Plan. Likewise, the application of the zoning ordinance, or any amendment thereto or variance therefrom, must be consistent with the Plan.

It was widely noted that the law did not define the meaning of “consistent with.” There was the expectation on many fronts that litigation would be required to establish a definition. Until the Appeals Court, and likely the Supreme Court, ruled on that provision, over the course of perhaps several years, the law would be subject to great uncertainty, litigation, and possibly inconsistent results. As 2010 arrived, however, the law went into effect without further legislation addressing this concern.

Significant Amendments
Within months of the new law taking effect, the legislature took action. In the process, not only did the legislature take the expected step of defining the consistency requirement, but it went further to weaken that requirement in several respects.

  • First, the amendment defines “comprehensive plan” as “a guide to the physical, social and economic development of a local government unit…” 66.1001(1)(a)(intro)(emphasis added). This is a new definition. The use of the term guide, as noted below, is significant
  • Second, the amendment clarifies that enacting a Comprehensive Plan does not, in and of itself, make the Plan a “regulation” 66.1001(2m)
  • Third, the amendment adds a definition of “consistent with” to mean “furthers or does not contradict the objectives, goals, and policies contained in the comprehensive plan” 66.1001(1)(am)
  • Fourth, the amendment changes the application of the consistency requirement. The former version required that any local government engaging in the actions of subdivision regulation, zoning, and shoreland zoning must act consistent with its Comprehensive Plan. The new version states:
    ORDINANCES THAT MUST BE CONSISTENT WITH COMPREHENSIVE PLANS. Except as provided in sub. (3m), beginning on January 1, 2010, if a local government unit enacts or amends any of the following ordinances, the ordinance shall be consistent with that local governmental unit’s comprehensive plan….” 66.1001(3)

    The ordinances subject to the law include: official mapping ordinances, local subdivision ordinances, zoning ordinances, and shoreland zoning ordinances. Id.

  • Fifth, a local government can delay the imposition of the consistency requirement where (a) it has applied for but not received a planning grant and adopts a resolution committing to Plan adoption by January 1, 2012; or (b) it has received a planning grant and an extension to complete planning

Analysis of Amendments
SB 601 will have a notable effect on the application of the Comprehensive Planning Law. Although the Bill’s sponsor represented that SB 601 makes “no significant changes to the Comprehensive Planning Law,” [1] a comparison of the former and new versions leads to a different conclusion.

The addition of language describing the Plan as a “guide” and not a “regulation” – while fundamentally true in planning practice – was not necessary and demonstrates an intent to limit the effect of Plans. This intent is important when reviewing the other changes, as noted below.

The prior version of the law did not define “consistent with.” The new amendment defines that term, and in the process, includes two elements which weaken its ultimate effect. First, based on the laws and court opinions from other states with a history of comprehensive planning laws, there are two ways to define consistent with: loose consistency and strict consistency. Loose consistency gives the local government some discretion to determine if a land use is consistent with its plan. Consistency can be defined as “basic harmony.” For example, if a city council, based on the evidence before it, could have determined that the rezoning was in basic harmony with the general plan, the rezoning is valid.Haines v. City of Phoenix, 727 P.2d 339 (Ariz. App. 1986). Conversely, strict consistency removes discretion from the governmental body.Pinecrest Lakes, Inc. v. Shidel, 795 So.2d 191 (Fla. Dist. Ct. App. 4th Dist. 2001). SB 601 only requires that the local government make a finding that a covered action “furthers or does not contradict” the Plan. This leaves significant discretion to the governmental body. It is not a strict consistency standard.

Second, SB 601 limits which land use actions must be consistent with the Plan. The prior version required that all subdivision regulation, zoning, and shoreland zoning be consistent with the Plan. Now, the consistency requirement only applies when a governmental body enacts or adopts an ordinance after January 1, 2010. This amendment limits application to adoption or amendment of ordinances, as opposed to the prior coverage of all official mapping, all regulation of subdivisions, and all zoning activities. The concept is simply that new ordinancesshould be consistent with the Plan. The application of those ordinances, however, is not required to be consistent. There is an implicit assumption that so long as the ordinance is consistent, all applications of the ordinance will also be consistent.

Third, SB 601 limits what portions of the Plan are considered for purposes of consistency. The former version simply required consistency with “the Plan.” The new amendments restrict consistency to the “objectives, goals, and policies contained in the comprehensive plan.” It typically will not be difficult to show loose consistency of a subject land use ordinance with broad, overarching, and thematic plan language. To the extent the Plan makes specific recommendations for specific parcel(s), those recommendations may arguably be disregarded so long as the larger goals and objectives are not contradicted.

Conclusion
These 2010 amendments to the Comprehensive Planning Law will effect how local communities apply their new Plans in their day-to-day land use activities. While the amendments give greater certainty in applying the law, they also allow significant discretion to local governments, weakening the effect of Comprehensive Plans. The true effect will only be known over time, of course, as the multitude of plans adopted over the last ten years evolve under this law.

[1] Rep. Mary Hubler, Testimony to Assembly Committee on Urban and Local Affairs, March 23, 2010.

To subscribe to email alerts from Axley Law Firm, click here.

For more information about "Wisconsin Weakens Smart Growth Comprehensive Planning Law," contact Mitch R. Olson at molson@axley.com or 608.283.6724.