Daily Development for
Wednesday, November 19, 1997

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law

ZONING AND PLANNING; COMPREHENSIVE PLAN; CONSISTENCY WITH ZONING: A city planning commission may deny approval of a proposed preliminary plat based on the plat's conflict with the city's master plan, notwithstanding conformity of proposal with presently existing zoning.

Lake City Corp. v. City of Mequon, 558 N.W.2d 100 (Wis. 1997).

According to the City, it let its residents know that it was contemplating a revision in its master plan, and many developers leaped to "firm up" long moribund projects to preserve existing zoning arrangements. Whatever the truth of that claim, the fact was that Developer submitted plan for projects in conformance with the then existing statutory requirements including applicable zoning ordinances. The City continued its hearing on the Developer's proposal until such time as it took up the proposed revision to its plan. When it did consider the revision to the Plan, it adopted it, and the consequence was a restriction on density that reduced the available density on Developer's parcel by about 40% (56 permitted housing units down to 37 units). City denied developer's request for preliminary plat approval due to this conflict.

The Court of Appeals had overturned the City action in light of a newly enacted Wisconsin statute that provided that "[a]pproval of a preliminary of final plat shall be conditions upon compliance with . . . [a]ny local master plan which is consistent with any . . . official map . . . " As indicated, the plan approved by the city established density standards that exceeded those set up under the existing map. The ensuing appeal had amicus briefs from the local chapters of the League of Cities and the American Planning Association.

The Supreme Court reversed, analyzing the case primarily in terms of statutory construction, looking to the legislative history of the statute in question to support the city's interpretation of its decisional powers. As the court interpreted the statutory language, a master plan is "consistent" with an official map even if the former contains additional elements that the latter does not. "A master plan is not incompatiable with an official map simply because the master plan contains additional elements. So lng as any issues addressed in both a master plan and an official map are not contradictory, the master plan is consistend with the official map."

Here, the developer's property was zoned RS-3 under the map. The map identified certain permitted density for this zone classification. The revised plan reduced the density permitted to Developer's property through a provision in the plan that applied only to a portion of the area zoned RS-3. Apparently the court views this provision, even though it specifically altered the available zoning in this zone, as "supplementary" and not "contradictory," because other RS-3 property still had the original available density. (The editor is guessing at this analysis, as the court is not very clear - insofar as the editor is concerned - about why otherwise the two documents are not contradictory.)

The court also points to other provisions of the Wisconsin statutory scheme that support the City's position, both those provisions predate the statutory language in question, and the Court of Appeals had concluded that the new statute was designed to make a change in existing law.

Comment 1: The editor has heard howls from the frosty North before as Wisconsin developers get their tails twisted by planners and very supportive courts. Clearly the court could have found the plan and the zoning map not "consistent" here - each established a different density level for an identified area. This is different from what might arise if the plan established new special considerations that might supplment the factors that justified certain results under the map. Here, a geographical density allocation seems to be a direct reversal of policy determinations underlying the original map.

Comment 2: Note that there is no "taking" here, since the developer apparently had not established "vested rights." There is no mention of significant investment, much less in the awarding of a building permit. The question simply is how much discretion the legislature chooses to give to local government to alter zoning patterns after developers have invested in the existing scheme. Clearly the answer has to be "some." Is the balance here a fair one?

Comment 3: The above having been said, the editor sees great merit in requiring that plans and zoning be consistent, and that zone changes ought to proceed promptly, if not simultaneously, when plans are revised.

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