COURT OF APPEALS DECISION DATED AND RELEASED August
17, 1995 |
NOTICE |
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule 809.62,
Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 94-3280
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STEVEN
D. PEDERSON,
Plaintiff-Appellant,
v.
TOWN
BOARD OF THE TOWN OF WINDSOR,
AND
TOWN OF WINDSOR,
Defendants-Respondents.
APPEAL
from an order of the circuit court for Dane County: MICHAEL N. NOWAKOWSKI, Judge.
Affirmed.
Before
Gartzke, P.J., Dykman and Vergeront, JJ.
VERGERONT,
J. Steven D. Pederson appeals from an
order affirming the rejection by the Windsor Town Board (board) of his four-lot
certified survey map. We conclude that
the board's rejection of the certified survey map on the ground that Pederson
was unwilling to pay for improvements to an affected substandard road was not
arbitrary, unreasonable, discriminatory or contrary to law. We therefore affirm.
BACKGROUND
Pederson
owns a fifty-nine acre tract of land in the Town of Windsor. He submitted a certified survey map (CSM) to
the board seeking approval for the creation of four lots of five and one-half acres
each on this tract. The sole public
access to the four lots is from Martinson Road. Martinson Road is adjacent to, and not part of, Pederson's tract. The Town of Windsor Planning Report, in
response to Pederson's preliminary CSM, stated that Martinson Road is a
substandard single purpose town road, providing access to one home at the end
of the road, and that certain improvements were needed if it were to function
as a road for four building sites. The
Town of Windsor Plan Commission (plan commission) moved that Pederson address
the substandard condition of Martinson Road and other matters.
At
a public hearing before the board held on Pederson's proposed final CSM,
Pederson proposed sharing the cost of improving Martinson Road with the Town of
Windsor. His petition was held in
abeyance with his approval and taken up at a subsequent hearing before the
board on July 27, 1993. At that time,
there was testimony that Martinson Road was used as a driveway for one
farm. The four proposed lots would increase
traffic on the road and there was a concern about public safety given the
condition of the road. The paved
surface now is approximately sixteen feet wide and would need to be increased
to twenty or twenty-two feet to accommodate two traffic lanes. Pederson had agreed to dedicate land to
increase the right of way from 41.25 feet to 66 feet, as required by the town
ordinance.
At
the July 27 hearing, Pederson proposed that the Town of Windsor rebuild
Martinson Road, assessing the cost to all adjoining property owners. This was a proposal he had previously made
to the plan commission. The board
refused to accept that proposal. It wanted
Pederson to bear the costs of improvement, but Pederson would not agree to
that. The board therefore denied approval
of the CSM on the ground, among others, that the proposed lots were not
accessed by a public roadway meeting the standards of the Town of Windsor Land
Division and Subdivision Ordinance.
Pederson appealed from the board's decision and the trial court
affirmed.
Pederson
appeals the board's rejection of the CSM under § 236.13(5), Stats.[1] This court, like the trial court, reviews
the action of the approving authority (here, the Windsor Town Board) to
determine whether it was arbitrary, unreasonable or discriminatory. Section 236.13(5). Although the board gave several reasons for the rejection of
Pederson's CSM, we examine only one ground--that the proposed plots were not
accessed by a public roadway meeting the standards of the Town of Windsor Land
Division and Subdivision Ordinance. See
Busse v. City of Madison, 177 Wis.2d 808, 813, 503 N.W.2d 340,
342 (Ct. App. 1993) (where one of the authority's reasons for rejection is
adequate, whether the other reasons are valid is irrelevant).
Pederson
argues that the board's decision should be reversed because it was unreasonable,
unnecessary and beyond the power of the board to require that he bear the cost
of improving Martinson Road. Whether
the board exceeded its authority and whether it acted unreasonably in rejecting
the CSM because Pederson would not bear the cost of improving the road present
questions of law that we review de novo.
Pederson v. Town Board of Windsor, 191 Wis.2d 664, 670,
530 N.W.2d 427, 430 (Ct. App. 1995).
However, in construing the Town of Windsor Land Division and Subdivision
Ordinance, we construe it liberally in favor of the municipality. Section 236.45(2)(b), Stats.; Town of Sun Prairie v.
Storms, 110 Wis.2d 58, 64, 327 N.W.2d 642, 644-45 (1983).
Pursuant
to its authority under § 236.45(2)(a), Stats.,
the Town of Windsor has adopted a Land Division and Subdivision Ordinance,
effective November 10, 1987. "The
purpose of § 236.45 is to permit municipalities to respond to the
pressures of development by regulating the formation of subdivisions." Pederson, 191 Wis.2d at 672,
530 N.W.2d at 431. Section 5.3 of the
ordinance requires use of a CSM to divide land into two, but no more than four,
building sites under certain circumstances.
This section also prescribes the procedure for review, approval and
disapproval of a CSM. Section 5.3(h)
provides: "To the extent
reasonably practicable, the [CSM] shall comply with the provisions of this
Ordinance relating to general requirements, design standards and required
improvements."
Section
6.1 of the ordinance requires that subdividers install, furnish and finance at
their sole expense the improvements defined in chapter 6 of the ordinance. The defined improvements include street
improvements which must meet the requirements of the ordinance. Section 7.1(b) of the ordinance requires
that the subdivider shall dedicate land and improve streets as provided in the
ordinance. Section 7.2(b) sets forth
detailed construction and design standards for "[a]ll streets and highways
constructed in the Town or to be dedicated to the Town."
Pederson
does not argue that Martinson Road meets the standards of the ordinance. Rather, he argues that the ordinance does
not apply to Martinson Road because it is an existing town road. We reject this interpretation of the
ordinance. We see no language in the ordinance
that limits the design standards to new roads.
Reasonably interpreted, the references to "street
improvements" and "streets and highways constructed in the Town"
include a road, like Martinson Road, that already exists but has been used
solely as a driveway for one home.
Pederson also argues that requiring him to
pay for improvements to Martinson Road is not reasonably necessary because of
the cost. Pederson describes this as a
major project involving realignment of the roadbed, a new roadbed and changes
in the ditches along the road. He also
claims it is unreasonable to require him to pay for the improvements to
Martinson Road because it only abuts his property and is not within the
subdivision.
The
governing body of a town within which a subdivision lies may require that
"the subdivider make and install any public improvements reasonably
necessary." Section 236.13(2)(a), Stats.
Although, as we have held, the ordinance authorizes the Town of Windsor
to require Pederson to improve Martinson Road, that requirement must also be
reasonable in the particular circumstances.
See Pederson, 191 Wis.2d at 667, 530 N.W.2d at 429
(town has the authority to require certain public improvements authorized by
ordinance and by § 236.13(2)(a), Stats.,
as long as they are reasonable).
The
evidence on the record concerning the cost of upgrading Martinson Road to meet
the ordinance's requirements is that it would cost, conservatively $30,000,
"[m]aybe a little more," and that "starting from scratch,
without excavation, probably about $30,000." Pederson did not dispute these estimates at the hearings and did
not present any data indicating that the required improvements were not
feasible or were unreasonably expensive compared to his expected profits. Based on the evidence presented to the board
on the scope and cost of the improvements, on the increased traffic resulting
from the proposed new lots and the resulting safety concerns, we conclude that the improvements to
Martinson Road were reasonably necessary.
We also conclude it was reasonable for the board to require Pederson to
pay for those improvements.
The
fact that Martinson Road was not within Pederson's subdivision does not
alter our conclusion that the board's decision was reasonable. The road abuts the proposed subdivision and
is the sole public access road to the proposed lots. The road is used now by one family as a driveway. Although Pederson does not own the land on
the other side of Martinson Road, he is the only landowner that is now seeking
to subdivide and use the road for the new lots. There is no evidence that the Town of Windsor had any intention
of upgrading Martinson Road.
The
board acted reasonably when it did not accept Pederson's proposal that the Town
of Windsor fund improvements to Martinson Road by special assessment. Section 6.1(a) of the ordinance requires
that all improvements for land divisions "shall be installed, furnished
and financed at the sole expense of the subdivider." Pederson has provided no authority for his
contention that the town had the authority to, let alone was required to, fund
improvements to Martinson Road by a special assessment.
Pederson
contends that, rather than rejecting the CSM, the board should have approved it
on the condition that he pay for the upgrading of Martinson Road. Under § 4.3 of the ordinance, the board does
have the authority to conditionally approve a CSM, as well as the authority to
approve and disapprove. However, since
Pederson was unwilling to agree to the conditions the board wanted to impose,
it was reasonable for the board to reject the CSM.
Pederson's
final argument is that the disapproval of his CSM was discriminatory because
the board approved a CSM of another individual, Robert Rademacher, at about the
same time. We reject this claim because
Pederson has not established that the two are similar in ways that would
require similar responses by the board.
By
the Court.—Order affirmed.
Not recommended for
publication in the official reports.
[1] Section 236.13(5), Stats., provides in part:
"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." The parties agree that Pederson had a right
to appeal the rejection of the CSM under this section and they agree that other
provisions of § 236.13, and cases decided under this section, apply to
approvals and rejections of CSMs. We
therefore do not decide this issue.