March/April 2021 Issue

Also in this issue: Local Governments Need to Plan for COVID Relief Funds Under the American Rescue Plan Act     |     Court of Appeals Upholds Rezoning as Consistent With Comprehensive Plan     |     Is the United States Supreme Court Signaling a Change in Its Treatment of Qualified Immunity?

Wisconsin Supreme Court Affirms Subdivision Authority as Separate and Distinct From Zoning Authority, Even Within Areas Subject to Shoreland Zoning

Jared Walker Smith | 04.01.21

In State ex rel. Anderson v. Town of Newbold, 2021 WI 6, the Wisconsin Supreme Court once again waded into the murky waters of distinguishing between a town’s separate subdivision and zoning powers; this time related to a town’s regulation of shoreland minimum frontage.

The facts were straightforward: The Town of Newbold denied a property owner’s request to subdivide his waterfront property into two properties, each with less than the minimum 225 feet of shoreline frontage required by the Town’s subdivision ordinance. The property owner sought certiorari review, contending that Wis. Stat. § 59.692 prohibits municipalities from enacting local shoreland zoning standards that are more restrictive than those enacted on a state level. The circuit court affirmed the Town’s decision, concluding that the Town’s ordinance was a Wis. Stat. § 236.45 subdivision ordinance and not a zoning ordinance falling under Wis. Stat. § 59.692. The court of appeals affirmed.

On certiorari review, the Wisconsin Supreme Court recognized the tension between the two statutes, but held (5−2) that the Town’s ordinance was a permissible exercise of its subdivision authority. In so upholding the Town’s subdivision authority, the majority relied heavily on precedent from two prior Supreme Court cases.

First, the Court cited Town of Sun Prairie v. Storms, 110 Wis. 2d 58 (1983) for the proposition that zoning ordinances and subdivision ordinances, while sometimes overlapping, are distinctly separate means of regulating the development of land. In Storms the Supreme Court recognized a town’s authority to regulate minimum lot size by subdivision ordinance under Wis. Stat. § 236.45 and distinguished that authority from a town’s limited zoning authority under Wis. Stat. ch. 60. While both zoning and subdivision ordinances are aimed at the ​“orderly development of a community” and both may establish minimum lot sizes, the Court distinguished the two underlying purposes: zoning regulations control the ​“uses of land and existing resources” while subdivision regulations control the ​“division of land” for the benefits of its occupants.

Zoning, therefore, provides more of an ​“overall comprehensive plan” for land use, while subdivision regulations ​“govern[s] the planning of new streets, standards for plotting new neighborhoods, and the protection of the community from financial loss due to poor development.” Consequently, because zoning and subdivision regulations are ​“complementary land planning devices” the majority held that if a town’s subdivision regulations are authorized by and within the purposes of Wis. Stat. ch. 236, those regulations will be valid even if they also fall within the town’s or county’s zoning power.

Having affirmed the Town of Newbold’s separate subdivision authority, the Court used the process it developed in Zwiefelhofer v. Town of Cooks Valley, 2012 WI 7, to answer the ​“essential question” of whether the Town’s ordinance was a zoning or subdivision ordinance.

In Zwiefelhofer, the Court was asked to declare a town’s nonmetallic mining ordinance as an invalid zoning ordinance. In upholding the town’s ordinance as a non-zoning police power ordinance, the Zwiefelhofer Court offered ​“guidance and a framework for analysis” to determine whether an ordinance is a zoning ordinance. First, the Court catalogued a nonexclusive list of the characteristics and commonly accepted purposes of traditional zoning ordinances: 

• zoning ordinances typically divide a geographic area into multiple zones or districts, and within the established districts or zones, certain uses are typically allowed as of right and certain uses are prohibited;
• zoning ordinances are traditionally aimed at directly controlling where a use takes place as opposed to how it takes place; 
• zoning ordinances traditionally classify uses in general terms and attempt to comprehensively address all possible uses in the geographic area; 
• zoning ordinances traditionally make a fixed, forward-looking determination regarding what uses will be permitted as opposed to case-by-case determinations; and 
• zoning ordinances traditionally allow certain landowners whose land use was legal prior to the adoption of the zoning ordinance to maintain their land use despite its failure to conform to the ordinance. 

Next, a reviewing court compares these traditional zoning characteristics and purposes to the characteristics and purposes of the challenged ordinance. But this is not a bright line test — no single characteristic or consideration is dispositive, and a court does not simply tally the numbers for and against. Rather, the analysis must be specific to the ordinance at issue, and under the specific circumstances of the case, some characteristics may be given more weight than others. The only certainty is that these factors are to be liberally construed in a town’s favor. (Citing Wis. Stat. § 236.45(2)(b).)

Using this Zwiefelhofer framework, the majority determined that the Town of Newbold’s ordinance was clearly not a zoning ordinance. Focusing on the first characteristic, the majority found that the Town’s ordinance has nothing to do with the use of land or the division of land into zones or districts, rather it just established a minimum lot size. This was dispositive since a ​“hallmark of a zoning ordinance is some type of use restriction.” Consequently, the majority ended its analysis here since the remaining Zwiefelhofer factors presuppose that the ordinance regulates land use in some way. 

In their dissent, Justices Hagedorn and Rebecca Grassl Bradley agreed that the ordinance was a subdivision ordinance not prohibited by Wis. Stat. § 59.692(1d)(a), but argued that Wis. Stat. § 59.692(2)(b) prohibits any town ordinance related to shorelands more restrictive than, and enacted after, a county ordinance regulating the same topic. 

While the majority began its analysis recognizing that shoreland zoning is given unique treatment under Wisconsin law, the majority held that nothing in Wis. Stat. ch. 236 prohibits subdivision regulation for shoreland areas. Consequently, since the majority held that the Town’s ordinance was a subdivision ordinance and not a zoning ordinance, the unique restrictions of shoreland zoning played little role in the majority’s opinion other than to refute the dissent’s argument.