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  • WisBar News
    February 12, 2014

    Appeals Court Okays Developer’s Plans for Subdivision, Clarifies City’s Power

    Feb. 12, 2014 – A real estate developer purchased land in the Town of Delavan to develop a 600-home subdivision, but the City of Delavan axed the plan. Recently, a state appeals court ruled the city had no power to halt the developer’s proposal.

    The land purchased by the Lake Delavan Property Company is located in the town, just outside Delavan city limits. In some circumstances, cities have jurisdiction to approve or deny proposed plats within a one and one-half mile perimeter of city limits.

    The city relied on this “extraterritorial” power to deny the developer’s subdivision proposal. But in Lake Delavan Property Company LLC v. City of Delavan, 2013AP1202 (Feb. 12, 2013), a three-judge appeals court panel ruled the developer can proceed.

    “The City acted outside its jurisdiction by using the extraterritorial plat approval power to deny a proposed plat based on land use,” wrote Judge Lisa Neubauer.

    When Lake Delavan Property Company purchased the land, located in Walworth County, the land was zoned for residential use. But the city adopted a subdivision ordinance in 2011 that invoked its extraterritorial jurisdiction and restricted the land division to one lot per 35 acres, effectively precluding residential development.

    The appeals panel ruled that the city’s ordinance improperly superseded the residential zoning that was in place, and state statute “does not permit approving authorities to supersede zoning regulations and restrictions.”

    Under Wis. Stat. section 236.45(3)(b), the appeals panel explained, a city cannot deny a proposed plat on the basis of a proposed land use in extraterritorial zones unless the denial “is based on zoning regulations passed cooperatively with neighboring towns.”

    The developer argued that the city made its decision based on the proposed use as a subdivision as the city was intent on preserving that land’s agricultural character.

    The appeals court agreed, concluding that the city had no authority to essentially “rezone” that area with a city ordinance because it had no independent zoning authority.

    “[T]he current law is that a city may not use its extraterritorial plat approval authority to impose land use regulation that should have been done in cooperation with neighboring towns through extraterritorial zoning,” Judge Neubauer explained. 



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