236.13 Basis for approval.

(1) Approval of the preliminary or final plat shall be conditioned upon compliance with:

(a) The provisions of this chapter.

(b) Any municipal, town, or county ordinance that is in effect when the subdivider submits a preliminary plat, or a final plat if no preliminary plat is submitted.

(d) The rules of the department of safety and professional services relating to lot size and lot elevation necessary for proper sanitary conditions in a subdivision not served by a public sewer, where provision for public sewer service has not been made.

(e) The rules of the department of transportation relating to provision for the safety of entrance upon and departure from the abutting state trunk highways or connecting highways and for the preservation of the public interest and investment in such highways.

(2)

(ad) In this subsection:

1. “Binder course” means the non-surface-level course that is attached to the packed-level gravel course.

2. “Land disturbing activity” means any man-made alteration of the land surface resulting in a change in the topography or existing vegetative or nonvegetative soil cover that may result in runoff and lead to an increase in soil erosion and movement of sediment into waters of this state. “Land disturbing activity” includes clearing and grubbing, demolition, excavating, pit trench dewatering, filling, and grading activities.

3. “Total cost to complete a public improvement” includes the cost to make and install storm water facilities. “Total cost to complete a public improvement” does not include any of the following:

a. Any fees charged by the governing body of the town or municipality.

b. Land disturbing activities that are necessary to achieve the desired subgrade for public improvements.

(am)

1.

a. As a further condition of approval, the governing body of the town or municipality within which the subdivision lies may require that the subdivider make and install any public improvements reasonably necessary or that the subdivider provide security to ensure that the subdivider will make those improvements within a reasonable time. The governing body may not require the subdivider to provide security at the commencement of a project in an amount that is more than 120 percent of the estimated total cost to complete the required public improvements, as determined under subd. 1d.

b. The subdivider may construct the project in such phases as the governing body of the town or municipality approves, which approval may not be unreasonably withheld. If the subdivider's project will be constructed in phases, the amount of security required by the governing body under subd. 1. a. is limited to the phase of the project that is currently being constructed. The governing body may not require that the subdivider provide any security for improvements sooner than is reasonably necessary before the commencement of the installation of the improvements.

c. If the governing body of the town or municipality requires a subdivider to provide security under subd. 1. a., the governing body may not require the subdivider to provide the security for more than 14 months after the date the public improvements for which the security is provided are substantially completed and upon substantial completion of the public improvements, the amount of the security the subdivider is required to provide may be no more than an amount equal to the total cost to complete any uncompleted public improvements plus 10 percent of the total cost of the completed public improvements.

d. This paragraph applies to all preliminary and final plats, regardless of whether submitted for approval before, on, or after August 1, 2014.

1d. The estimated total cost to complete the required public improvements under subd. 1. shall be determined as follows:

a. A governing body of the town or municipality may provide an initial estimate to the subdivider of the estimated total cost to complete the required public improvements. If the subdivider accepts the initial estimate, then the initial estimate is the estimated total cost to complete the required public improvements.

b. If the governing body of the town or municipality does not provide an initial estimate to the subdivider or the subdivider rejects the initial estimate, the subdivider shall provide the governing body with a bona fide bid from the subdivider's contractor to complete the required public improvements in the event of a default. If the governing body accepts the subdivider's bona fide bid, the bona fide bid is the estimated total cost to complete the required public improvements.

c. If the governing body of the town or municipality rejects the subdivider's bona fide bid, the governing body shall provide the subdivider with an estimate for the cost to complete the public improvements in the event of a default. If the governing body's estimate does not exceed the subdivider's bona fide bid by more than 10 percent, the governing body's estimate is the estimated total cost to complete the required public improvements. If the governing body's estimate exceeds the subdivider's bona fide bid by 10 percent or more, the estimated total cost to complete the required public improvements is the amount agreed upon by the subdivider's engineer and the governing body's engineer.

1m.

a. If the governing body of the town or municipality requires a subdivider to provide security under subd. 1. a., the governing body shall accept a performance bond or a letter of credit, or any combination thereof, at the subdivider's option, to satisfy the requirement.

b. The subdivider and the governing body of the town or municipality may agree that all or part of the requirement to provide security under subd. 1. a. may be satisfied by a performance bond provided by the subdivider's contractor that names the town or municipality as an additional obligee provided that the form of the contractor's performance bond is acceptable to the governing body of the town or municipality.

c. Unless the governing body of a town or municipality demonstrates that a bond form does not sufficiently ensure performance in the event of default, the governing body of the town or municipality shall accept a performance bond under this subdivision if the person submitting the performance bond demonstrates that the performance bond is consistent with a standard surety bond form used by a company that, on the date the bond is obtained, is listed as an acceptable surety on federal bonds in the most recent circular 570 published by the federal department of the treasury, as required under 31 CFR 223.16, and the performance bond is issued by a surety company licensed to do business in this state.

2. For purposes of subd. 1., public improvements reasonably necessary for a project or a phase of a project are considered to be substantially completed upon the installation of the asphalt or concrete binder course on roads to be dedicated or, if the required public improvements do not include a road to be dedicated, at the time that 90 percent of the public improvements by cost are completed.

3.

a. With regard to public improvements to which subd. 1. applies, no town or municipality may enact an ordinance relating to the substantial completion of such a public improvement that is inconsistent with subd. 2.

b. Upon such substantial completion, any outstanding local building permits that are related to, and dependent upon, substantial completion shall be released.

c. The governing body of a town or municipality shall, upon a subdivider's request, issue a permit to commence construction of a foundation or any other noncombustible structure before substantial completion of a public improvement if all public improvements related to public safety are complete and the security requirement under subd. 1. a. has been met. The subdivider may not commence work on a building until the governing body of the town or municipality approves or issues a permit for the construction of the building.

(b) Any city or village may require as a condition for accepting the dedication of public streets, alleys or other ways, or for permitting private streets, alleys or other public ways to be placed on the official map, that designated facilities shall have been previously provided without cost to the municipality, but which are constructed according to municipal specifications and under municipal inspection, such as, without limitation because of enumeration, sewerage, water mains and laterals, storm water management or treatment facilities, grading and improvement of streets, alleys, sidewalks and other public ways, street lighting or other facilities designated by the governing body, or that a specified portion of such costs shall be paid in advance as provided in s. 66.0709.

(c) Any county, town, city or village may require as a condition of approval that the subdivider be responsible for the cost of any necessary alterations of any existing utilities which, by virtue of the platting or certified survey map, fall within the public right-of-way.

(d) As a further condition of approval, any county, town, city or village may require the dedication of easements by the subdivider for the purpose of assuring the unobstructed flow of solar or wind energy across adjacent lots in the subdivision.

(2m) As a further condition of approval when lands included in the plat lie within 500 feet of the ordinary high-water mark of any lake, any navigable stream, or any other body of navigable water or if land in the proposed plat involves lake or navigable stream shorelands referred to in s. 236.16, the department of natural resources, to prevent pollution of navigable waters, or the department of safety and professional services, to protect the public health and safety, may require assurance of adequate drainage areas for private on-site wastewater treatment systems and building setback restrictions, or provisions by the owner for public sewage disposal facilities for waters of the state, as defined in s. 281.01 (18), industrial wastes, as defined in s. 281.01 (5), and other wastes, as defined in s. 281.01 (7). The public sewage disposal facilities may consist of one or more systems as the department of natural resources or the department of safety and professional services determines on the basis of need for prevention of pollution of the waters of the state or protection of public health and safety.

(3) No approving authority or agency having the power to approve or object to plats shall condition approval upon compliance with, or base an objection upon, any requirement other than those specified in this section.

(4) Where more than one governing body or other agency has authority to approve or to object to a plat and the requirements of such bodies or agencies are conflicting, the plat shall comply with the most restrictive requirements.

(5) Any person aggrieved by an objection to a plat or a failure to approve a plat may appeal therefrom as provided in s. 62.23 (7) (e) 10., 14. and 15., within 30 days of notification of the rejection of the plat. For the purpose of such appeal the term “board of appeals" means an “approving authority". Where the failure to approve is based on an unsatisfied objection, the agency making the objection shall be made a party to the action. The court shall direct that the plat be approved if it finds that the action of the approving authority or objecting agency is arbitrary, unreasonable or discriminatory.

(6) An outlot may not be used as a building site unless it is in compliance with restrictions imposed by or under this section with respect to building sites. An outlot may be conveyed regardless of whether it may be used as a building site.

History: 1977 c. 29 ss. 1384, 1654 (8) (c); 1977 c. 162; 1979 c. 221, 248; 1981 c. 289 s. 19; 1981 c. 354; 1993 a. 414; 1995 a. 27 ss. 6310, 6311, 9116 (5); 1995 a. 227; 1997 a. 27; 1999 a. 9; 1999 a. 150 s. 672; 2001 a. 30; 2007 a. 44; 2009 a. 372, 376; 2011 a. 32, 146; 2013 a. 280, 358; 2015 a. 195; 2017 a. 243; 2017 a. 364 s. 49; s. 35.17 correction in (2) (ad) 2.

Local units of government may not reject a proposed plat under this section unless the plat conflicts with an existing statutory requirement or an existing written ordinance, master plan, official map, or rule under sub. (1). State ex rel. Columbia Corporation v. Town of Pacific, 92 Wis. 2d 767, 286 N.W.2d 130 (Ct. App. 1979).

Under sub. (2) (a), authority to condition plat approval on public improvements is granted solely to the governing body of the municipality in which the subdivision is located. Rice v. City of Oshkosh, 148 Wis. 2d 78, 435 N.W.2d 252 (1989).

Municipalities have no authority to impose conditions upon a subdivision that extend beyond the municipality's borders. Pedersen v. Town of Windsor, 191 Wis. 2d 664, 530 N.W.2d 427 (Ct. App. 1995).

Sub. (2) (a) does not grant a municipality the power to establish public improvement requirements without an ordinance. Pedersen v. Town of Windsor, 191 Wis. 2d 664, 530 N.W.2d 427 (Ct. App. 1995).

Sub. (1) (d) does not prevent municipalities from enacting more restrictive sewer regulations than the rules cited in that paragraph. Manthe v. Town of Windsor, 204 Wis. 2d 546, 555 N.W.2d 156 (Ct. App. 1996), 95-1312.

So long as any issues addressed in both a master plan and an official map are not contradictory, for purposes of sub. (1) (c), the master plan is consistent with the official map. A master plan is not inconsistent with an official map if the plan contains elements the map does not. Lake City Corp. v. City of Mequon, 207 Wis. 2d 155, 558 N.W.2d 100 (1997), 94-3240.

In the area of minimum lot size regulation, the power of a plan commission authorized to review plats is not limited or detracted by zoning regulations. Lake City Corp. v. City of Mequon, 207 Wis. 2d 156, 558 N.W.2d 100 (1997), 94-3240.

As sub. (5) does not expressly designate the “appealing authority" to whom appeal papers should be directed, the appellant's service of an appeal on the county planning and development department rather than on the planning and development committee, which had made the disputed decision, was not grounds for dismissal when there had been pervasive use of department personnel and stationery in the process. Weber v. Dodge County Planning and Development Dept. 231 Wis. 2d 222, 604 N.W.2d 297 (Ct. App. 1999), 99-1116.

Sub. (2) (a) does not restrict a town's authority to impose public improvements as conditions for plat approval during a contested annexation. When a town is legally contesting the annexation s. 236.10 (1) (a) requires both the annexing municipality and the town from which the area has been annexed to approve a final plat in accordance with s. 236.12. KW Holdings, LLC v. Town of Windsor, 2003 WI App 9, 259 Wis. 2d 357, 656 N.W.2d 752, 02-0706.

Chapter 236 does not authorize the transportation department to regulate land divisions that are not subdivisions within the meaning of s. 236.02 (12). Wisconsin Builders Association v. DOT, 2005 WI App 160, 285 Wis. 2d 472, 702 N.W.2d 433, 04-2388.

A city's extraterritorial plat condition that allowed lots of less than 20 acres only when attached to the public sanitary sewer system had the effect of requiring a public sanitary sewer system for lot sizes smaller than 20 acres, violating the ruling of Rice that authority to condition plat approval on public improvements is granted solely to the governing body of the municipality in which the subdivision is located. Town of Delton v. City of Baraboo, 2007 WI App 120, 301 Wis. 2d 720, 731 N.W.2d 308, 06-1288.