Chapter 236

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 History History: 1993 a. 246; 1997 a. 172; 2003 a. 286.

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). K.G.R. Partnership v. Town of East Troy, 187 Wis. 2d 376, 523 N.W.2d 120 (Ct. App. 1994).

236.43 Annotation A municipality is not an owner under sub. (1) (d). Closser v. Town of Harding, 212 Wis. 2d 561, 569 N.W.2d 338 (Ct. App. 1997), 96-3086.

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 Annotation 1997 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.

subch. IX of ch. 236 SUBCHAPTER IX

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) (2) Delegation of power.

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)(am)4. 4. Such other divisions exempted by such 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 if the fee or other charge is imposed under a subdivision ordinance enacted or amended in accordance with the procedures under s. 66.0617 (3) to (5) and meets the requirements under s. 66.0617 (6) to (10).

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(6)(c) (c) If a subdivision ordinance of a municipality, town, or county requires, as a condition of approval under this chapter, that a subdivider dedicate land for a public park, the municipality, town, or county may offer the subdivider the option of either dedicating land consistent with the municipality’s, town’s, or county’s park plan and comprehensive plan or paying a fee or other charge under par. (am) in lieu of the dedication. If the subdivider elects to pay a fee or other charge under this paragraph, the fee or other charge is payable by the landowner to the municipality, town, or county upon the issuance of a building permit by the municipality, town, or county. If the subdivider elects to dedicate land under this paragraph, unless the municipality, town, or county agrees otherwise, the subdivider only may dedicate land that is consistent with the municipality’s, town’s, or county’s park plan and comprehensive plan.

236.45 History History: 1979 c. 221, 248, 355; 1981 c. 354; 1983 a. 189 s. 329 (26); 2001 a. 16; 2005 a. 477; 2007 a. 44; 2009 a. 376, 399; 2015 a. 48, 391; 2017 a. 243.

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 this chapter. Town of Beloit v. Rock County, 2001 WI App 256, 249 Wis. 2d 88, 637 N.W.2d 71, 00-1231.

236.45 Annotation Affirmed on other grounds. 2003 WI 8, 259 Wis. 2d 37, 657 N.W.2d 344, 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 Ass’n 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 Co. v. City of Delavan, 2014 WI App 35, 353 Wis. 2d 173, 844 N.W.2d 632, 13-1202.

236.45 Annotation Although they often work together, zoning and subdivision regulations provide separate and distinct means of regulating the development of land. There are areas of overlap between the two powers, but there are also key differences. Subdivision control is concerned with the initial division of undeveloped land, while zoning more specifically regulates the further use of this land. State ex rel. Anderson v. Town of Newbold, 2021 WI 6, 395 Wis. 2d 351, 954 N.W.2d 323, 18-0547.

236.45 Annotation In this case, the town’s ordinance set minimum lot frontage requirements for each lake within its borders. Pursuant to the Zwiefelhofer, 2012 WI 7, factors, the town’s ordinance was not a zoning ordinance. It did not concern land use, and it did not separate compatible and incompatible land uses, which is a key purpose of a zoning ordinance. Because it was not a zoning ordinance, the restrictions on town enactment of zoning ordinances set by s. 59.692 did not apply, and the ordinance was a permissible exercise of the town’s subdivision authority pursuant to this section. State ex rel. Anderson v. Town of Newbold, 2021 WI 6, 395 Wis. 2d 351, 954 N.W.2d 323, 18-0547.

236.45 Annotation A subdivision plat prepared in compliance with a local ordinance enacted under authority of this section 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 this section, conflict, a plat must comply with the most restrictive requirement. 61 Atty. Gen. 289.

236.45 Annotation Discussing application of municipal and county subdivision control ordinances within the municipality’s extraterritorial plat approval jurisdiction. 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.

236.46 236.46 County plans.

236.46(1) (1) 

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 750,000 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.

236.46(3) (3) Such system of arterial thoroughfares and such system of minor streets within such system of arterial thoroughfares and such platting of lots within any such system of minor streets may be adopted by the same proceeding. For the purpose of this section a parkway may be considered either an arterial thoroughfare or a minor street if it performs the function of an arterial thoroughfare or minor street. A natural obstacle like a lake or river or an artificial obstacle like a railroad or town line may, where necessary, be the boundary of a plan adopted under this section instead of a street or highway or parkway.

236.46 History History: 1979 c. 248; 2017 a. 207 s. 5.

subch. X of ch. 236 SUBCHAPTER X

GENERAL PROVISIONS

236.50 236.50 Date chapter applies; curative provisions as to plats before that date.

236.50(1) (1) 

236.50(1)(a) (a) This chapter shall take effect upon July 1, 1956, but any plat recorded prior to December 31, 1956, may be approved and recorded in accordance with this chapter or ch. 236, 1953 stats. This chapter shall not require that any subdivision made prior to July 1, 1956, which was platted under the laws in force at that time or which did not constitute a subdivision under the laws in force at that time, be platted and the plat approved and recorded as provided in this chapter.

236.50(1)(b) (b) This chapter shall not require the preparation and recording of a plat of any subdivision which has been staked out and in which sales or contracts of sales have actually been made prior to June 28, 1935, and nothing herein contained shall require the recording of a plat showing property sold or contracted for sale by metes and bounds or by reference to an unrecorded plat prior to June 28, 1935, as a condition precedent to the sale or contract of sale of the whole or part thereof.

236.50(2) (2) No plat which was recorded in the office of any register of deeds prior to July 1, 1956, shall be held invalid by reason of noncompliance with any statute regulating the platting of lands, in force at the time of such recording. Any unaccepted offer of donation or dedication of land attempted to be made in any such plat shall be as effectual as though all statutory requirements had been complied with unless an action to set aside such offer of donation or dedication is commenced prior to July 1, 1958.