Atty. Mark Hazelbaker
The DCTA is working with Dane County to develop a model ordinance
establishing road standards in the wake of a Court of Appeals decision which
invalidates county ordinances imposing road standards on towns. In the absence
of a town ordinance, towns will have no authority to require developers to meet
minimum road standards needed to protect the town and the public.
The Court of Appeals’ decision came in the case of Rogers Development,
Inc. vs. Rock County Planning and Development Committee and County of Rock.
The case concerned a Rock County ordinance which imposed road standards on town
subdivisions. The ordinance limited the length of cul-de-sac roads and the
length of blocks and set standards for the location of roads. The Court of
Appeals held that counties do not have the authority to condition approval of
subdivisions in towns on the nature of the roads laid out in the town. The Court
wrote in paragraph 19 of the decision:
We conclude that land division regulations relating to the size of
cul-de-sacs, the length of street blocks, and the location of town roads
constitute public improvement requirements. Because sec. 236.13(2)(a),
Stats., grants only to a “town or municipality” within which the plat lies
the authority to require public improvements as a condition of plat
approval, and a county is not a municipality for purposes of ch. 236, we
conclude that the County may not regulate the size of cul-de-sacs, the
length of street blocks and the location of town roads when the plat is
located within a town, as it is here.
Based upon the Rogers decision, DCTA contacted Dane County
Zoning and Natural Resources Chairman Lyman Anderson to point out that the
Rogers renders unenforceable many of the County’s current development
standards. Upon review of the decision, Dane County Corporation Counsel Marcia
MacKenzie agreed that several County ordinances are invalid and will have to be
repealed. She immediately suggested that the County and towns work together to
prepare a model ordinance so towns can step in and assure there are development
standards.
Some towns already have subdivision ordinances. Those which do not will have
to adopt them unless the town is willing to allow developers to create any road
or street layout the developer desires. There is an indirect effect of adopting
a subdivision ordinance, though. In order to adopt and enforce a subdivision
ordinance, sec. 236.45 (2)(a), Wis. Stats., requires that the town have or
create a planning agency. That means the Town must have a zoning committee or
plan commission.
The DCTA believes that towns are perfectly capable of protecting their
interests, and will do so. The Court’s decision allows towns the chance to adopt
development standards which meet their local needs. The issue of cul de sacs is
a perfect example. Some towns are dead set against them, and don’t want any cul
de sacs. Some towns, however, see cul de sacs as a useful way to direct
development away from prime farmland onto land which can only be served by cul
de sacs.
The DCTA model ordinance will contain minimum road construction standards,
driveways, grade, radii, pavement width and thickness, base, shouldering, and
length of blocks, among other issues. We plan to have a model ordinance in your
hands by the middle of July.
