Model Subdivision Ordinance Online

by Russell Knetzger, AICP
Milwaukee, Wisconsin

As with the model zoning ordinance discussed in the Summer 2003 “WAPA News”, a model land division ordinance for use by anyone is now available on the WA PA web site, (www.wisconsinplanners.org).

The ordinance was drafted in January, 1992 for the Town of McMillan in far southwestern Marathon County. It was drafted under the auspices of the North Central Wisconsin Regional Planning Commission (NCWRPC), located in Wausau, Wisconsin. The Town of Marathon is the recipient of sprawl growth from the City of Marshfield, home of the famous Marshfield Clinic. Marshfield is in adjacent Wood County. The ordinance has been available from NCWRPC in hard copy and on diskette.  It is intended the on-line access would relieve NCWRPC of such requests.

Is A Land Division Ordinance Necessary?

Wisconsin has some rural towns and incorporated hamlets that are not growing much, and might be able to function without a local land division ordinance. This is because Wisconsin Law, Chapter 236, provides a few basic protections to the local community, and because most Counties have land division ordinances that provide additional protections.

For example, it is not possible under Chapter 236 to create the right of way for a public street without the consent of the local community that would be receiving jurisdiction of that street. Said state law will also guarantee that absent a local ordinance to the contrary, the street right of way must be at least 66 feet wide, and any lots fronting on it must be at least 60 feet in width. County ordinances typically add a clause that no street can be created unless the local community also is satisfied with the improvements to be placed in the proposed street.

But if the local community, (using towns as the most likely example) has no “town road ordinance,” the community is vulnerable to receiving a substandard road bed, paving, and drainage system, because neither Chapter 236, nor the typical County land division ordinance, goes into that kind of detail.  Thus any town expecting even a small amount of land division activity, but wishing not to administer a land division ordinance, should have a road ordinance.

A community that has available public utilities such as sewer and water should by ordinance be able to impose the utilization of those utilities upon any construction within the boundary area of the utility district. Such an ordinance would typically be a building code or a general local ordinance.  But if a lot is to be created with private intent to avoid conventional placement of a structure upon a street, the community without a land division ordinance may have difficulty insisting a street be extended and improved to the structure

There also still are land division ordinances in existence which regulate only “subdivisions” (5 or more lots within five years, each under 1.5 acres in size), which is the Chapter 236 definition. Thus especially in rural situations, large “country lots” or “lake lots” might be created without local government oversight.

For this reason, a modern subdivision ordinance will take the title “Land Division Ordinance” because all divisions of land are regulated, not just subdivisions.  The model ordinance described herein regulates all divisions of 35 acres in size or smaller. The 35 acre number was taken from the minimum acreage needed to qualify for State of Wisconsin farmland preservation tax credits.

Teaming With the County

If a community only has minimal need for a local land division ordinance, or even communities with moderate platting activity feel overwhelmed by the administrative responsibilities of such an ordinance, it is recommended that the community team up with its County planning office.  That means that by mutual agreement, the local community adopts its own ordinance, but allows for critical steps to be assumed for it by the County.  The model ordinance contains such a County-partner provision.

The most critical step to allocate to the County, is that copies of maps and plats filed for action are distributed in a timely fashion to other communities and agencies listed in Chapter 236 for their review and comment.  These include the Wisconsin Dept. of Administration, and state and county highway departments abutting land divisions. Where water frontage is involved the Dept. of Natural Resources will be a receiving agency. Nearby communities with Extraterritorial Jurisdiction under Chap. 236 are also entitled to copies.

Some counties will also help review storm water management plans, and where public sewer is not being provided, the County Sanitary function will review suitability of lots for soil absorption sewage treatment.

What is the Role of a Preliminary Map or Plat?

By common usage, a “plat” refers to a “subdivision” plan as defined above, and a “map” refers to a “land division” other than a subdivision, what are commonly called “land splits” or “CSM’s” (division by Certified Survey Map).  Chapter 236 allows a community by ordinance to review and deal with a divider of land via “preliminary” drawings submitted by the divider. Both local governments and land dividers are more likely to engage in healthy give and take on the proposals in the drawings if the plans were not expensive to create, and can cheaply be modified.  That is the purpose of Preliminary Maps or Plats.

An unfortunate trend over the past few decades has been for land division ordinances to impose ever more technical detail in Preliminary submittals, to the point that dividers are reluctant to make changes to their submittals, and some reviewers become reluctant to ask for changes.

Here is a test for whether your land division ordinance has gone too far in what is requested on a Preliminary Map or Plat:  If your review body has created neighborhood plans, either ahead of time as part of master planning, or concurrently to show alternatives to what the divider has submitted, do those plans contain the same level of detail as your ordinance requires of a Preliminary submittal?  If not, your community may be committing overkill on your preliminary submittal requirements.

Some communities have sidestepped this issue by calling for a “Concept Submittal” before submission of a Preliminary Plat or Map. Concept plans tend to require less rigorous information than an official Preliminary Plat or Map.  The model ordinance does not provide for the Concept step because Chapter 236 establishes Preliminary Plats as the official “bargaining process”, and once agreed to, an approved Preliminary is binding upon the Final Plat. Thus the Preliminary Plat/Map is a critical step, and not to be taken lightly.

To balance the need for enough information to make informed decisions, without turning the Preliminary step into a Final Plat,  the model tries to set the Preliminary requirements at a reasonable level. The goal is to not burden the divider with expensive unnecessary detail, and yet provide enough information that both parties, the community and the divider, can live with the approved Preliminary Plan through final engineering and infrastructure installation.  The model could, however, easily be adapted to include a Concept Plan stage.

What Role Do Design Standards Play?

Most local subdivision ordinances do, or should, contain “Design Standards” for street arrangement, block sizes, minimum and maximum road and drainage gradients, easements, lot proportions, and similar physical criteria. County ordinances are prone to downplay these criteria because their jurisdictions vary so much, from very rural, to suburban situations with utilities just outside corporate limits. Where the County ordinance does not contain standards suitable for your community, a local land division ordinance is called for.

It is important such standards be adhered to.  At this point in Wisconsin’s development history, dividers are resisting extending existing unimproved stub streets, or platting new stubs touching adjacent open lands. Blocks are becoming exceptionally long, well beyond the most lenient limits. Together these conditions create “you can’t get there from here” situations of disconnected subdivisions. That pattern will defeat any ultimate sense of achieving “community.”

What About Improvements and Parkland Dedication?

The model ordinance referred to herein provides for the possibility of all possible urban or rural improvements, ranging from streets with drainage swales and no walking paths, to full sewer and water utilities, and sidewalks. Storm water detention basins are included, plus the option for parks.

With regard to dividers dedicating parkland or “a fee in lieu thereof” toward the neighborhood park plan, Wisconsin’s Impact Fee law is not used.  Rather the model relies on the still valid earlier standard approved in the Wisconsin Supreme Court case of Jordan v. Menomonee Falls (28 Wis 2^nd 608, 1965).  Said earlier approach is easier to establish and administer, though it does require separate non-lapsing funds for each planned park.  Such funds if held for long periods before use can be difficult to administer accurately.

Is a Model Development  Improvements Contract Included?

Yes. It is taken from the version developed in Racine County in 1983 by a diverse committee of county and local planning staff and officials, plus private surveyors.  Using a contract with dividers for improvements allows details to be bargained and agreed to that then become clearly defined and enforceable via the contract.  The contract covers such items as:  Who pays for municipal inspection fees of road and utility work, and how much?  Is liability insurance being provided? If stub streets are extended to adjacent properties, how much reimbursement will later flow to the divider? Are financial sureties required that guarantee all work will be completed in a specific time?

The Irrevocable Letter of Credit has become the favored method of ensuring financial performance by the divider in completing the improvements to the division.  A model Letter of Credit is included.

The model contract is also adaptable to enforcing developments under the Zoning Ordinance, where land divisions creating additional abutting public street rights of way s may not be occurring.  Examples would be commercial or office centers with private drives, or private road condominium projects or Planned Unit Developments, including some forms of Conservation Subdivisions.  All of these types of developments are better administered if a Development Contract has been bargained and executed between the developer and the local community.

(The above is a copy of the article submitted in September, 2003 to the WAPA NEWS, newsletter of the Wisconsin Chapter of the American Planning Association.)