Guide to Community Planning in Wisconsin by Brian W. Ohm

Chapter 7: Subdivision Regulations
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1.2.5  Extraterritorial Plat Review

Several references have been made to extraterritorial plat approval jurisdiction. The geographical area in which a city or village can exercise its extraterritorial powers is the same as the extraterritorial zoning jurisdiction. That is, the unincorporated area within three miles of the corporate limits of a first, second, or third-class city; or within 1½ miles of a fourth class city or a village.

However, the process for exercising extraterritorial plat review is very different from the process for exercising extraterritorial zoning. Extraterritorial zoning requires town approval of the zoning ordinance. (43 It is not widely used in the state. Extraterritorial plat review applies automatically if the city or village adopts a subdivision ordinance or an official map. (44)  The town does not approve the subdivision ordinance for the city or village. The city or village may waive its extraterritorial plat approval jurisdiction if it does not want to exercise it. (45) 

The purpose of extraterritorial plat approval jurisdiction is to help cities and villages influence the development pattern of areas outside the city/village boundaries that will probably be annexed to the city or village. In addition, it helps cities and villages protect land use near its boundaries from conflicting uses outside the city/village limits. (46

Again, since a town and the county may also have a subdivision ordinance that applies in the extraterritorial area, if there is a conflict in the requirements of the various ordinances, the proposed subdivision must comply with the most restrictive requirements. (47 Thus, coordination between the city/village, the town, and the county will be helpful in reducing costly scattered development.

Overlapping authority by multiple cities and villages in the extraterritorial area is prohibited. Where the extraterritorial areas of two or more cities or villages overlap, the application of the respective subdivision ordinances of those cities or villages shall be divided on a line all points of which are equidistant from the boundaries of each city or village so not more than one ordinance will apply. (48 Drawing the line could divide a proposed subdivision. This may mean that some lots of a proposed subdivision will be subject to the authority of one city while the remaining lots are subject to the authority of another city. (49) 

The scope of the extraterritorial plat approval jurisdiction has been the subject of several recent court decisions that limit the extraterritorial authority. The Wisconsin Supreme Court has held that a city or village does not have the authority to impose its own requirements and specifications for public improvements (streets and stormwater facilities) as a condition of extraterritorial plat approval jurisdiction. (50 A city or village also cannot condition approval of a plat in the extraterritorial area on annexation of the proposed subdivision to the city or village. (51)  The Wisconsin Court of Appeals has held that a municipality cannot use its extraterritorial plat approval jurisdiction to control the use of property. The court of appeals found this to be a zoning function that can be exercised only through an extraterritorial zoning ordinance. (52) 

In the Lake City Corp. v. City of Mequon case discussed earlier, the Court stated that the portion of its decision holding that, if there is a conflict between a zoning ordinance and a master plan, the master plan prevails, does not apply to the extraterritorial plat review jurisdiction of a municipality. Absent a conflict, presumably the Court’s reliance on the master plan as a controlling document would apply.

Areas where the Lake City Corp. case might apply concern issues related to the quality of development. For example, contrary to its other decisions discussed above, the court of appeals has upheld the use of extraterritorial plat approval jurisdiction to reject a proposed subdivision based on the unsuitability of the land due to stormwater runoff, impact on the flow of groundwater, erosion, and the loss of wildlife habitat. (53 According to the court, these are issues that relate to the quality of the development.

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(43)  Wis. Stat. § 62.23(7a)(c).
(44)  Wis. Stat. § 236.10(1)(b)2.
(45)  Wis. Stat. § 236.10(5).
(46)  Melli & Devoy, "Extraterritorial Planning and Urban Growth," Wisconsin Law Review, vol. 1959, p. 55, at p. 56.
(47)  Wis. Stat. § 236.13(4).
(48)  Wis. Stat. § 236.10(2) and Wis. Stat. § 66.32.
(49)  Brookhill Development, Ltd. v. City of Waukesha, 103 Wis.2d 27, 307 N.W.2d 242 (1981).
(50)  Rice v. City of Oshkosh, 148 Wis.2d 78, 435 N.W.2d 252 (1989).
(51)  Hoepker v. City of Madison, 209 Wis.2d 633, 563 N.W.2d 145 (1997).
(52)  Gordie Boucher Lincoln-Mercury Madison, Inc. v. City of Madison Plan Commission, 178 Wis.2d 74, 503 N.W.2d 265 (Ct. App. 1993) (proposed use as an automobile dealership was inconsistent with plans for area to be used for open space).
(53)  Busse v. City of Madison, 177 Wis.2d 808, 503 N.W.2d 340 (1993), review denied 510 N.W.2d 136. The City's ordinance read: "No land shall be subdivided which is held by the City Plan Commission to be unsuitable for use by reason of flooding, bad drainage, soil or rock formations with severe limitations for development, severe erosion potential, or unfavorable topography, or any other feature likely to be harmful to health, safety or welfare of future residents or landowners in the proposed subdivision or of the community."

Wisconsin Statutes