VACATING AND ALTERING PLATS
236.36
236.36
Replats. Except as provided in
s. 70.27 (1), replat of all or any part of a recorded subdivision, if it alters areas dedicated to the public, may not be made or recorded except after proper court action, in the county in which the subdivision is located, has been taken to vacate the original plat or the specific part thereof.
236.36 Annotation
A recorded subdivision may be replatted under this section without undertaking the court proceedings set forth in ss. 236.40, 236.41, and 236.42 if the replat complies with the requirements of ch. 236 applicable to original plats and does not alter areas dedicated to the public. 58 Atty. Gen. 145.
236.36 Annotation
A replat of a recorded subdivision must comply with the formal platting requirements of ch. 236 relating to new subdivision plats, including those relating to the survey, approval, and recording. 63 Atty. Gen. 193.
236.36 Annotation
This section permits the replat of a part of a previously recorded subdivision plat, without circuit court action, if the only areas dedicated to the public in that portion of the original subdivision being replatted were discontinued streets fully and properly vacated under s. 66.296 [now s. 66.1003]. 63 Atty. Gen. 210.
236.36 Annotation
The circumstances under which lots in a recorded subdivision may be legally divided without replatting are discussed. 64 Atty. Gen. 80.
236.36 Annotation
Chapter 236 does not require a replat when the division of a lot or redivision of more than one lot does not meet the definition of a “subdivision" under this section. 67 Atty. Gen. 121.
236.40
236.40
Who may apply for vacation of plat. Any of the following may apply to the circuit court for the county in which a subdivision is located for the vacation or alteration of all or part of the recorded plat of that subdivision:
236.40(1)
(1) The owner of the subdivision or of any lot in the subdivision.
236.40(2)
(2) The county board if the county has acquired an interest in the subdivision or in any lot in the subdivision by tax deed.
236.41
236.41
How notice given. Notice of the application for the vacation or alteration of the plat shall be given at least 3 weeks before the application:
236.41(1)
(1) By posting a written notice thereof in at least 2 of the most public places in the county; and
236.41(2)
(2) By publication of a copy of the notice as a class 3 notice, under
ch. 985; and
236.41(3)
(3) By service of the notice in the manner required for service of a summons in the circuit court on the municipality or town in which the subdivision is located, and if it is located in a county having a population of 500,000 or over, on the county; and
236.41(4)
(4) By mailing a copy of the notice to the owners of record of all the lots in the subdivision or the part of the subdivision proposed to be vacated or altered at their last-known address.
236.41 Annotation
The provisions of s. 236.41 relating to vacation of streets are inapplicable to assessors plats under s. 70.27. Once properly filed and recorded an assessor's plat becomes the operative document of record, and only sections specified in s. 236.03 (2) apply to assessor's plats. Schaetz v. Town of Scott,
222 Wis. 2d 90,
585 N.W.2d 889 (Ct. App. 1998),
98-0841.
236.42
236.42
Hearing and order. 236.42(1)
(1) After requiring proof that the notices required by
s. 236.41 have been given and after hearing all interested parties, the court may in its discretion grant an order vacating or altering the plat or any part thereof except:
236.42(1)(a)
(a) The court shall not vacate any alleys immediately in the rear of lots fronting on county trunk highways without the prior approval of the county board or on state trunk highways without the prior approval of the department of transportation.
236.42(1)(b)
(b) The court shall not vacate any parts of the plat which have been dedicated to and accepted by the public for public use except as provided in
s. 236.43.
236.42(2)
(2) The vacation or alteration of a plat shall not affect:
236.42(2)(a)
(a) Any restriction under
s. 236.293, unless the public body having the right to enforce the restriction has in writing released or waived such restriction.
236.42(2)(b)
(b) Any restrictive covenant applying to any of the platted land.
236.42 History
History: 1977 c. 29 s.
1654 (8) (c).
236.43
236.43
Vacation or alteration of areas dedicated to the public. Parts of a plat dedicated to and accepted by the public for public use may be vacated or altered as follows:
236.43(1)
(1) The court may vacate streets, roads or other public ways on a plat if:
236.43(1)(a)
(a) The plat was recorded more than 40 years previous to the filing of the application for vacation or alteration; and
236.43(1)(b)
(b) During all that period the areas dedicated for streets, roads or other public ways were not improved as streets, roads or other public ways; and
236.43(1)(c)
(c) Those areas are not necessary to reach other platted property; and
236.43(1)(d)
(d) All the owners of all the land in the plat or part thereof sought to be vacated and the governing body of the city, village or town in which the street, road or other public way is located have joined in the application for vacation.
236.43(2)
(2) The court may vacate land platted as a public square upon the application of the municipality or town in which the dedicated land is located if:
236.43(2)(a)
(a) The plat was recorded more than 40 years previous to the filing of the application for vacation or alteration; and
236.43(2)(b)
(b) The land was never in fact developed or utilized by the municipality or town as a public square.
236.43(3)
(3) The court may vacate land, in a city, county, village or town, platted as a public park or playground upon the application of the local legislative body of such city, county, village or town where the land has never been developed by said city, county, village or town as a public park or playground.
236.43(4)
(4) When the plat is being vacated or altered in any 2nd, 3rd or 4th class city or in any village or town which includes a street, road, alley or public walkway, said street, road, alley or public walkway may be vacated or altered by the circuit court proceeding under
ss. 236.41 and
236.42 upon the following conditions:
236.43(4)(a)
(a) A resolution is passed by the governing body requesting such vacation or alteration.
236.43(4)(b)
(b) The owners of all frontage of the lots and lands abutting on the portion sought to be vacated or altered request in writing that such action be taken.
236.43 Cross-reference
Cross-reference: See s.
66.1003 for other provisions for vacating streets.
236.43 Annotation
Although dedicated as a street, an improvement of land as another public way may meet the requirements of sub. (1) (b). A walkway cleared and improved to be conducive to pedestrian traffic is a public way improved in accordance with sub. (1) (b). Application of K.G.R. Partnership,
187 Wis. 2d 375,
523 N.W.2d 120 (Ct. App. 1994).
236.43 Annotation
Isolated improvements to provide for a scenic outlook were not improvements as a street, road, or public way under sub. (1). Closser v. Town of Harding,
212 Wis. 2d 561,
569 N.W.2d 338 (Ct. App. 1997),
96-3086.
236.43 Annotation1997 Wis. Act 172 made several things clear: 1) a local government has no obligation to improve a lake or stream access, regardless of when that access was created; 2) a lake or stream access may not be discontinued under s. 80.32 [now s. 82.19]; and 3) a lake or stream access may be vacated under this section only, and only if the governing municipality agrees. Vande Zande v. Town of Marquette,
2008 WI App 144,
314 Wis. 2d 143,
758 N.W.2d 187,
07-2354.
236.44
236.44
Recording order. The applicant for the vacation or alteration shall record in the office of the register of deeds the order vacating or altering the plat together with the plat showing the part vacated if only part of the plat is vacated or the altered plat if the plat is altered.
236.445
236.445
Discontinuance of streets by county board. Any county board may alter or discontinue any street, slip or alley in any recorded plat in any town in such county, not within any city or village, in the same manner and with like effect as provided in
s. 66.1003.
236.445 History
History: 1999 a. 150 s.
672.
SUBDIVISION REGULATION AND REGIONAL PLANS
236.45
236.45
Local subdivision regulation. 236.45(1)
(1)
Declaration of legislative intent. The purpose of this section is to promote the public health, safety and general welfare of the community and the regulations authorized to be made are designed to lessen congestion in the streets and highways; to further the orderly layout and use of land; to secure safety from fire, panic and other dangers; to provide adequate light and air, including access to sunlight for solar collectors and to wind for wind energy systems; to prevent the overcrowding of land; to avoid undue concentration of population; to facilitate adequate provision for transportation, water, sewerage, schools, parks, playgrounds and other public requirements; to facilitate the further resubdivision of larger tracts into smaller parcels of land. The regulations provided for by this section shall be made with reasonable consideration, among other things, of the character of the municipality, town or county with a view of conserving the value of the buildings placed upon land, providing the best possible environment for human habitation, and for encouraging the most appropriate use of land throughout the municipality, town or county.
236.45(2)(ac)(ac) To accomplish the purposes listed in
sub. (1), any municipality, town or county that has established a planning agency may enact ordinances governing the subdivision or other division of land that are more restrictive than the provisions of this chapter, except that no ordinance may modify in a more restrictive way time limits, deadlines, notice requirements, or other provisions of this chapter that provide protections for a subdivider.
236.45(2)(am)
(am) Ordinances under
par. (ac) may include provisions regulating divisions of land into parcels larger than 1 1/2 acres or divisions of land into less than 5 parcels, and, except as provided in
s. 59.69 (4) (intro.) and subject to
s. 66.1002, may prohibit the division of land in areas where such prohibition will carry out the purposes of this section. Such ordinances shall make applicable to such divisions all of the provisions of this chapter, or may provide other surveying, monumenting, mapping and approving requirements for such division. The governing body of the municipality, town, or county shall require that a plat of such division be recorded with the register of deeds and kept in a book provided for that purpose or stored electronically. “COUNTY PLAT," “MUNICIPAL PLAT," or “TOWN PLAT" shall be printed on the map in prominent letters with the location of the land by government lot, recorded private claim, quarter-quarter section, section, township, range, and county noted. When so recorded, the lots included in the plat shall be described by reference to “COUNTY PLAT," “MUNICIPAL PLAT," or “TOWN PLAT," the name of the plat and the lot and block in the plat, for all purposes, including those of assessment, taxation, devise, descent, and conveyance as defined in
s. 706.01 (4). Such ordinance, insofar as it may apply to divisions of less than 5 parcels, shall not apply to:
236.45(2)(am)1.
1. Transfers of interests in land by will or pursuant to court order;
236.45(2)(am)2.
2. Leases for a term not to exceed 10 years, mortgages or easements;
236.45(2)(am)3.
3. The sale or exchange of parcels of land between owners of adjoining property if additional lots are not thereby created and the lots resulting are not reduced below the minimum sizes required by this chapter or other applicable laws or ordinances;
236.45(2)(b)
(b) This section and any ordinance adopted pursuant thereto shall be liberally construed in favor of the municipality, town or county and shall not be deemed a limitation or repeal of any requirement or power granted or appearing in this chapter or elsewhere, relating to the subdivision of lands.
236.45(3)
(3) Areas in which subdivision ordinances apply. 236.45(3)(a)(a) An ordinance adopted hereunder by a municipality may regulate the division or subdivision of land within the extraterritorial plat approval jurisdiction of the municipality as well as land within the corporate limits of the municipality if it has the right to approve or object to plats within that area under
s. 236.10 (1) (b) 2. and
(2).
236.45(3)(b)
(b) Notwithstanding
par. (a) and
subs. (1) and
(2), a municipality may not deny approval of a plat or certified survey map under this section or
s. 236.10 or
236.13 on the basis of the proposed use of land within the extraterritorial plat approval jurisdiction of the municipality, unless the denial is based on a plan or regulations, or amendments thereto, adopted by the governing body of the municipality under
s. 62.23 (7a) (c).
236.45(4)
(4) Procedure. Before adoption of a subdivision ordinance or any amendments thereto the governing body shall receive the recommendation of its planning agency and shall hold a public hearing thereon. Notice of the hearing shall be given by publication of a class 2 notice, under
ch. 985. Any ordinance adopted shall be published in form suitable for public distribution.
236.45(5)
(5) Regulation of federal surplus land. With respect to any surplus lands in excess of 500 acres in area, except the Bong air base in Kenosha County, sold in this state by the federal government for private development, the department, in accordance with the procedure specified in
ch. 227, may regulate the subdivision or other division of such federal surplus land in any of the ways and with the same powers authorized hereunder for municipalities, towns or counties. Before promulgating such rules, the department shall first receive the recommendations of any committee appointed for that purpose by the governor.
236.45(6)
(6) Requirements for approval conditions. 236.45(6)(ac)(ac) In this subsection, “improvement of land for public parks" means grading, landscaping, installation of utilities, construction of sidewalks, installation of playground equipment, and construction or installation of restroom facilities on land intended for public park purposes.
236.45(6)(am)
(am) Notwithstanding
subs. (1) and
(2) (ac), a municipality, town, or county may not, as a condition of approval under this chapter, impose any fees or other charges to fund the acquisition or improvement of land, infrastructure, or other real or personal property, except that a municipality or town may impose a fee or other charge to fund the acquisition or initial improvement of land for public parks.
236.45(6)(b)
(b) Any land dedication, easement, or other public improvement or fee for the acquisition or initial improvement of land for a public park that is required by a municipality, town, or county as a condition of approval under this chapter must bear a rational relationship to a need for the land dedication, easement, or other public improvement or parkland acquisition or initial improvement fee resulting from the subdivision or other division of land and must be proportional to the need.
236.45 Annotation
This section authorizes towns to regulate minimum lot size. Town of Sun Prairie v. Storms,
110 Wis. 2d 58,
327 N.W.2d 642 (1983).
236.45 Annotation
Assessment of school and park land dedication fees as a condition for rezoning and issuance of building permit was authorized. Black v. City of Waukesha,
125 Wis. 2d 254,
371 N.W.2d 389 (Ct. App. 1985).
236.45 Annotation
This section does not prevent municipalities from adopting and enforcing more than one ordinance that relates to subdivisions. Manthe v. Town of Windsor,
204 Wis. 2d 546,
555 N.W.2d 156 (Ct. App. 1996),
95-1312.
236.45 Annotation
A city may not condition extraterritorial plat approval on annexation. Hoepker v. City of Madison Plan Commission,
209 Wis. 2d 633,
563 N.W.2d 145 (1997),
95-2013.
236.45 Annotation
It was not a violation of this section, s. 61.34, or the public purpose doctrine for a municipality to assume the dual role of subdivider of property it owned and reviewer of the plat under ch. 236. Town of Beloit v. Rock County,
2001 WI App 256,
249 Wis. 2d 88,
637 N.W.2d 71,
00-1231.
236.45 Annotation
A municipality has the authority under sub. (2) to impose a temporary town-wide prohibition on land division while developing a comprehensive plan under s. 66.1001. Wisconsin Realtors Association v. Town of West Point,
2008 WI App 40,
309 Wis. 2d 199,
747 N.W.2d 681,
06-2761.
236.45 Annotation
A city may not use its extraterritorial plat approval authority to impose land use regulation that should have been done in cooperation with neighboring towns through extraterritorial zoning. Although purporting to be a density standard, the city's 35-acre density restriction was a use prohibition, the very essence of zoning. Lake Delavan Property Company, LLC v. City of Delavan,
2014 WI App 35,
353 Wis. 2d 173,
844 N.W.2d 632,
2014 WI App 35,
13-1202.
236.45 Annotation
A subdivision plat prepared in compliance with a local ordinance enacted under authority of s. 236.45 is not required by statutes to be submitted for state level review unless such land division results in a “subdivision" as defined in s. 236.02 (8) [now s. 236.02 (12)]. 59 Atty. Gen. 262.
236.45 Annotation
If subdivision regulations, adopted under s. 236.45, conflict, a plat must comply with the most restrictive requirement. 61 Atty. Gen. 289.
236.45 Annotation
Application of municipal and county subdivision control ordinances within the municipality's extraterritorial plat approval jurisdiction is discussed. 66 Atty. Gen. 103.
236.45 Annotation
A county's minimum lot size zoning ordinance applies to parcels created by a court through division in a partition or probate action, even if such division would be exempted from a municipality's subdivision authority under sub. (2) (am) 1. A county can enact a subdivision ordinance requiring prior review of sales or exchanges of parcels between adjoining landowners in order to determine whether the division would comply with minimum lot size requirements.
OAG 1-14.
236.46(1)(a)(a) The county planning agency may prepare plans, in such units as it may determine, for the future platting of lands within the county, but without the limits of any municipality, or for the future location of streets or highways or parkways, and the extension or widening of existing streets and highways. Before completion of these plans, the county planning agency shall fix the time and place it will hear all persons who desire to be heard upon the proposed plans, and shall give notice of that hearing as required below for the passage of the ordinance by the county board. After these hearings the county planning agency shall certify the plans to the county board, who may, after having submitted the same to the town boards of the several towns in which the lands are located and obtained the approval of the town boards, adopt by ordinance the proposed plans for future platting or for street or highway or parkway location in towns which may have approved the same, and upon approval of those towns may amend the ordinance. Before the ordinance or any amendments to the ordinance are adopted by the county board, notice shall be given by publication of a class 2 notice, under
ch. 985, of a hearing at which all persons interested shall be given an opportunity to be heard at a time and place to be specified in the notice. The ordinance with any amendments as may be made shall govern the platting of all lands within the area to which it applies.
236.46(1)(b)
(b) In counties having a population of less than 500,000 any plan adopted under this section does not apply in the extraterritorial plat approval jurisdiction of any municipality unless that municipality by ordinance approves the same. This approval may be rescinded by ordinance.
236.46(2)
(2) A plan adopted under this section may be any of the following:
236.46(2)(a)
(a) A system of arterial thoroughfares complete for each town.
236.46(2)(b)
(b) A system of minor streets for the complete area surrounded by any such main arterial thoroughfares and connecting therewith.
236.46(2)(c)
(c) The platting of lots for any area surrounded completely by any such arterial thoroughfares or any such minor streets or both.
