March/April 2021 Issue

Also in this issue: Local Governments Need to Plan for COVID Relief Funds Under the American Rescue Plan Act     |     Wisconsin Supreme Court Affirms Subdivision Authority as Separate and Distinct From Zoning Authority, Even Within Areas Subject to Shoreland Zoning     |     Is the United States Supreme Court Signaling a Change in Its Treatment of Qualified Immunity?

Court of Appeals Upholds Rezoning as Consistent With Comprehensive Plan

Julia Potter | 04.01.21

A recent case from the Wisconsin Court of Appeals, Lakeland Area Property Owners Association, U.A. v. Oneida County, 2020AP858, sheds some light on the consistency requirement in Wisconsin’s Comprehensive Planning law while leaving some important questions unanswered. Wisconsin’s Comprehensive Planning law, Wis. Stat. § 66.1001, requires that certain ordinances, including zoning code amendments, be ​“consistent with” the local comprehensive plan. To date, there have been relatively few reported cases decided under the comprehensive planning law.

This case involved an application to rezone property in the Town of Hazelhurst from the Business district to the Manufacturing and Industrial district to allow the landowner to seek a conditional use permit for a gravel mining operation. Oneida County’s zoning ordinance applies within the Town. A nearly identical rezoning application had been denied for the same property in 2014 because a rezoning to the Industrial District was inconsistent with the Town’s 1999 comprehensive plan (which was incorporated by reference into the County’s comprehensive plan). However, the Town had begun the process of amending its comprehensive plan when the new rezoning petition was submitted in December of 2017 and it formally adopted the amended plan in January of 2018. In August of 2018, the County Board voted to approve rezoning the property from Business to Manufacturing and Industrial, after having received a positive recommendation from both the Town Board and the County Planning and Zoning Committee.

A group of local property owners, the Lakeland Area Property Owners Association, sued the county to overturn the rezoning ordinance and argued, among other things, that it violated the consistency requirement in Wisconsin’s Comprehensive Planning law. The Court of Appeals rejected this challenge and upheld the rezoning ordinance. 

First, Lakeland argued that the County should have analyzed the application for consistency with the 1999 comprehensive plan, which was in effect at the time the rezoning application was submitted, rather than the 2018 comprehensive plan, which was in effect at the time the rezoning ordinance was adopted by the County Board. Wis. Stat. § 66.10015(2)(a) provides that ​“if a person has submitted an application for an approval, the political subdivision shall approve, deny, or conditionally approve the application solely based on existing requirements, unless the applicant and the political subdivision agree otherwise” (emphasis added). Existing requirements are defined as ​“regulations, ordinances, rules, or other properly adopted requirements of a political subdivision that are in effect at the time the application for an approval is submitted to the political subdivision.”

Lakeland argued that there was no evidence of any formal agreement between the landowner and the County to apply the 2018 comprehensive plan to the rezoning application, so the 1999 plan, which was in effect at the time the application was submitted, is the plan that should apply. The Court of Appeals rejected that argument, stating “[n]othing in the statute’s text indicates that such agreement must be formal, in writing, or memorialized in meeting minutes.… ​‘The statutory language does not dictate how or when the parties must agree, only that they agree.’” Because the County approved this rezoning application when a nearly identical application had been previously denied for inconsistency with the 1999 comprehensive plan, the Court concluded that the only reasonable inference was that the parties had agreed to evaluate the application under the 2018 comprehensive plan.

Second, Lakeland argued that, even if the 2018 comprehensive plan did apply, rezoning the property to Industrial was not consistent with that plan. For the purposes of the Comprehensive Planning law, ​“consistent with” means ​“furthers or does not contradict the objectives, goals, and policies contained in the comprehensive plan.” Wis. Stat. § 66.1001(1)(am). 

The future land use map in the 2018 plan designated the future land use for this property as Industrial. The County argued that a rezoning to Industrial was consistent with this designation, but Lakeland took the position that only the narrative portion of the plan could be considered in a consistency analysis and not the future land use map. The Court sided with the County, observing that “[g]iven that the statute requires a comprehensive plan to include land use maps, it would be unreasonable to conclude that a decision maker may not consider those maps when determining whether a proposed change is consistent with the plan.” 

Lakeland also argued that, regardless of the designation on the future land use map, the rezoning was inconsistent with the narrative portion of the 2018 plan, which stated that “[a]dditional industrial development will be welcomed in the Town in places away from [U.S. Highway] 51.” Because the subject property directly abuts Highway 51, Lakeland argued that rezoning the property to Industrial would be inconsistent with this language in the plan. The Court of Appeals disagreed, concluding that the narrative portion of the plan must be read in the context of the remainder of the plan, including the future land use map that designated this property as Industrial. In context, the Court concluded that ​“the only reasonable interpretation of the plan’s statement that the Town welcomes ​‘additional’ industrial development away from U.S. Highway 51 is that it refers to industrial development beyond that which already exists or has already been contemplated by the Town on the future land use map.”

Finally, Lakeland argued that the rezoning should be overturned because there was no evidence that the County performed a formal consistency analysis before approving the rezoning application. The Court disagreed, explaining nothing in Wis. Stat. § 66.1001(3) requires that the County perform a consistency analysis before enacting a zoning ordinance — it merely states that the ordinance ​“shall be consistent” with the applicable comprehensive plan.

While the Court ultimately upheld the County’s rezoning ordinance on the merits, determining that the ordinance was consistent with the applicable comprehensive plan, it is notable that the Court declined to resolve one issue of significance to local governments — whether Lakeland had the right to sue the County under Wis. Stat. § 66.1001(3) in the first place. The County had argued that the lawsuit should be dismissed because the consistency requirement in the comprehensive planning law does not give right to a private right of action. The Court did not reach a conclusion on that issue because the parties did not present the Court with well-developed legal arguments on the subject. Instead, the Court assumed, without deciding, that there is a private right of action under § 66.1001(3) but concluded that Lakeland’s consistency claim nevertheless failed on its merits. 

Although this case leaves that important issue unresolved, it does provide some practical guidance to municipalities in applying the consistency requirements of Wis. Stat. § 66.1001(3). When reviewing an ordinance for consistency with a comprehensive plan, the future land use map and narrative portions of the plan should not be reviewed in isolation, but instead should be understood in relation to each other and in the context of the remainder of the plan. And, while it is often beneficial to memorialize in writing an agreement to apply standards other than the ​“existing requirements” under Wis. Stat. § 66.10015(2), the courts will not require it, nor will they require evidence that a municipality undertook a formal ​“consistency analysis” before enacting a rezoning ordinance, so long as the ordinance is, in fact, consistent with the comprehensive plan.