Atty Mark Hazelbaker
The impact of the
Wisconsin Supreme Court's decision in the case of Wood vs. City of Madison
continues to reverberate many weeks after the opinion was released. As you
may recall, in that decision, the Wisconsin Supreme Court held that cities and
villages may object to proposed land divisions in the extraterritorial
jurisdiction of the city or village on the basis of the adopted plans of the
city or village. In practical terms, this gives cities or villages an
effective veto over land divisions and, therefore, most development in their
extraterritorial areas, which is the 1 ½-mile or 3-mile area adjacent to the
village or city boundary.
The Supreme Court decision was immediately hailed by city and village interests
as a victory which enhanced city and village authority to control growth on
their periphery. However, for towns, the impact is decidedly negative.
The decision may have a broad range of impacts on towns, some of which will not
be apparent for many years.
First and foremost, for the towns which are immediately adjacent to the City,
the decision means that cities or villages which choose to do so can adopt plans
which effectively thwart all development by towns in the extraterritorial area.
It is almost always necessary to subdivide a parcel in order to develop it.
It would be very difficult, for example, to develop a 40-acre parcel for
residential purposes unless the land were divided into smaller and presumably
more affordable lots. If cities and villages have the ability to prevent
land divisions, then they can prevent development.
Under the Wood holding, cities and villages can block development by adopting
plans which indicate that land located within their extraterritorial
jurisdiction is planned for preservation, agriculture, open space, or deferred
development. They can object to proposed plats on the ground that the
plats are inconsistent with the adopted city plan. The fact that the plan
being enforced was enacted with no input or control whatsoever from the adjacent
town does nothing to minimize its enforceability. And, cities and villages
can amend the plan the instant the land is annexed and approve subdivision and
development of the land.
At first blush, this may seem like a step forward in the fight against urban
sprawl. However, one may question whether it does not serve only to push
development pressure further out. Instead of rural subdivisions and
development occurring on the periphery of the cities, people will be looking to
undertake rural development where they can, in the areas which are outside the
control of cities and villages. To the degree that this is possible and
actually happens, we have definitely moved backward.
Another interesting result of the Wood decision
may be to render the question of the future of the RPC all but moot.
The struggle over the RPC is a struggle over access to public sewers, which
facilitate higher density development. Almost all the sewer interceptors
that are of use to towns in developing land are located at the edge of existing
cities and villages. Certainly the land adjacent to existing sewers will
lie within the 1 ½- or 3-mile jurisdiction of the village or cities.
As such, the question of whether or not a parcel of land contiguous to or near a
city or village can have sewer service becomes
moot. If the land cannot be developed unless it is annexed, for the town,
providing sewer service to the land is pointless. Sewer service does
nothing to add value to large lots that cannot be divided until they are
annexed. Another way of putting it is that even if towns were able to
restructure the Regional Planning Commission or other water quality planning
agencies such that they had a fair opportunity to seek approval of urban service
area, any likely to be designated will almost certainly lie within the
extraterritorial jurisdiction of some city or village, since the sewers are
going to be installed next to where they already are. The cost of running
sewer lines one and one-half miles or three miles to areas far outside of the
city or village is too expensive to be practical.
Therefore, the Wood decision,
if applied aggressively, may actually lead to the extinction of existing urban
towns and the preclusion of new urban towns from occurring. It also may
have the effect of greatly increasing development pressure on areas outside of
the extraterritorial jurisdiction. In other words, if aspirations of
individuals seeking rural-type subdivisions are frustrated in the periphery of
cities and villages, then they may have no choice but to look further beyond.
Clearly, this would be something none of us would like to see happen.
More broadly, the Wood decision comes at a time when the Wisconsin
Towns Association is preparing to gear up for a legislative struggle which goes
to the very existence of towns in the future. The Wood
decision is the latest in a series of actions and decisions that have frustrated
towns and their ability to survive. Coming in the wake of the Town of
Madison's agreement to gradually dissolve itself over the next twenty years, the
Wood decision serves as a warning: people who believe in town
government as a viable way of meeting the needs of people should focus their
efforts on developing political consensus for legislation that will keep towns
viable now and in the future. The Dane County Towns Association will be
working with the Wisconsin Towns Association to address the implications of
Wood through corrective legislation. We can only hope that
these efforts pay off and that the struggle to maintain towns as a viable means
of meeting public needs is successful.
