PUBLISHED OPINION
Case No.: 95-1312
† Petition
for Review filed.
Complete
Title
of
Case:LLOYD D. MANTHE,
SR.,
AND DORIS MANTHE,
Plaintiffs-Respondents,†
v.
TOWN BOARD OF THE TOWN OF
WINDSOR AND TOWN OF WINDSOR,
Defendants-Appellants.
Oral
Argument: April 18, 1996
COURT COURT OF
APPEALS OF WISCONSIN
Opinion
Released: September 26, 1996
Opinion
Filed: September
26, 1996
Source
of APPEAL Appeal from an order
Full
Name JUDGE COURT: Circuit
Lower
Court. COUNTY: Dane
(If
"Special" JUDGE: P.
Charles Jones
so
indicate)
JUDGES:Dykman, P.J., Vergeront, J., and
Paul C. Gartzke, Reserve Judge
Concurred:
Dissented:
Appellant
ATTORNEYSFor the defendants-appellants the
cause was submitted on the briefs of Lawrence E. Bechler of Murphy
& Desmond, S.C. of Madison, and orally argued by Lawrence E. Bechler.
Respondent
ATTORNEYSFor the plaintiffs-respondents the
cause was submitted on the briefs of Michael J. Lawton of Lathrop
& Clark of Madison, and orally argued by Michael J. Lawton.
For the Wisconsin Towns Association an amicus curiae brief was
submitted by Thomas W. Harnisch of the Wisconsin Towns Association
of Madison.
For Wisconsin's Environmental Decade an amicus curiae brief was
submitted by Lawrence E. Classen of Madison.
For the League of Wisconsin Municipalities an amicus curiae
brief was submitted by Curtis A. Witynski of the League of Wisconsin
Municipalities of Madison.
COURT OF
APPEALS DECISION DATED AND
RELEASED September
26, 1996 |
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. 95-1312
STATE OF WISCONSIN IN
COURT OF APPEALS
LLOYD
D. MANTHE, SR.,
and
DORIS MANTHE,
Plaintiffs-Respondents,
v.
TOWN
BOARD OF THE TOWN OF
WINDSOR
and TOWN OF WINDSOR,
Defendants-Appellants.
APPEAL
from an order of the circuit court for Dane County: P. CHARLES
JONES, Judge. Reversed.
Before
Dykman, P.J., Vergeront, J., and Paul C. Gartzke, Reserve Judge.
DYKMAN,
J. The Town of Windsor and its town board appeal from an order
of the circuit court requiring Windsor to give conditional preliminary approval
to a plat submitted by Lloyd D. Manthe, Sr. and Doris Manthe and rejected by
Windsor. Because we conclude that the
town board's rejection of the plat was not arbitrary, unreasonable,
discriminatory or contrary to law, we reverse.
BACKGROUND
The
Manthes own approximately sixty-six acres of farmland in Windsor and want to
develop it into a fifty-five lot subdivision.
On June 29, 1993, the Manthes filed a preliminary plat for the
subdivision with Windsor for review. On
July 8, 1993, Tom Bricker, Windsor's business manager, advised Richard Boots,
the Manthes' real estate consultant, that Windsor would not begin formal review
of the preliminary plat because of deficiencies in the proposal.
The
Manthes challenged Windsor's refusal.
On September 20, 1993, Windsor agreed to consider the preliminary plat
on its merits despite its alleged deficiencies. Windsor ultimately rejected the plat at its September 30, 1993
town board meeting.
On
October 6, 1993, Windsor sent the Manthes a letter listing the grounds for its
rejection of the plat. The reasons
included: (1) the Manthes'
preliminary plat violated the thirty-five acre minimum lot size required by
zoning ordinances; (2) the preliminary plat was incomplete and failed to
provide sufficient information, including reasonable assurance that public
sewer services would be provided to the site, for Windsor's staff to complete a
conclusive review of the proposed development; and (3) the proposed development
is on lands unsuitable for development because of natural conditions that would
be harmful to future residents.[1]
The
Manthes appealed Windsor's decision to the circuit court pursuant to
§ 236.13(5), Stats. The circuit court concluded that Windsor's
rejection of the Manthes' plat was improper and ordered Windsor to give
conditional preliminary approval to the plat.
Windsor appeals.
STANDARD OF REVIEW
Any
person aggrieved by a municipality's rejection of a plat may appeal to the
circuit court pursuant to § 236.13(5), Stats.,
under which "[t]he 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." This process is called statutory certiorari. Busse v. City of Madison, 177
Wis.2d 808, 811, 503 N.W.2d 340, 341 (Ct. App. 1993).
We
review the decision of the town board, not the decision of the trial
court. Gordie Boucher
Lincoln-Mercury Madison, Inc. v. City of Madison Plan Comm'n, 178
Wis.2d 74, 84, 503 N.W.2d 265, 267 (Ct. App. 1993). On certiorari, our review is limited to: (1) whether Windsor stayed within its
jurisdiction; (2) whether it acted according to law; (3) whether its
action was arbitrary, oppressive or unreasonable and represented its will and
not its judgment; and (4) whether the evidence was such that it might
reasonably make the decision in question.
Snyder v. Waukesha County Zoning Bd. of Adjustment, 74
Wis.2d 468, 475, 247 N.W.2d 98, 102 (1976).
Whether Windsor has exceeded its authority is a question of law that we
review de novo. Gordie
Boucher, 178 Wis.2d at 84, 503 N.W.2d at 268.
DISCUSSION
Windsor
offered several reasons for its rejection of the Manthes' plat. However, we do not need to address every reason
Windsor gave for its rejection of the plat.
"If one of the [town's] reasons for rejecting the plat is adequate,
whether the other reasons are valid is irrelevant." Busse v. City of Madison, 177
Wis.2d 808, 813, 503 N.W.2d 340, 342 (Ct. App. 1993).
Windsor
argues that its rejection of the plat is justified under section 8.7 of its
1979 subdivision ordinance. We
agree.
Chapter
236, Stats., regulates the
subdivision of land. Section 236.03(1),
Stats., requires that any
subdivision[2] shall be
surveyed and a plat thereof approved and recorded as required by Chapter 236.
Windsor
has the authority to approve plats within its boundaries under
§ 236.10(1)(a), Stats. Section 236.13(1)(b), Stats., provides that "[a]pproval
of the preliminary or final plat shall be conditioned upon compliance with ...
[a]ny municipal, town or county ordinance."[3]
Windsor
adopted section 8.7 of its 1979 ordinance pursuant to § 236.45(2)(a), Stats., which permits local governments
to enact subdivision ordinances that are more restrictive than the requirements
of Chapter 236. Any ordinance adopted
pursuant to § 236.45 must be liberally construed in favor of the town and
must not be deemed a limitation or repeal of any requirement or power relating
to the subdivision of lands. Section
236.45(2)(b).[4]
Section
8.7 of the 1979 ordinance provides, in relevant part:
8.7 Sanitary Sewage Disposal Systems
The subdivider shall make adequate sewage
disposal systems available to each lot within the subdivision or land
division.
Major Subdivisions shall be served by public sewer facilities. The size, type, and installation of all sanitary sewers proposed
to be constructed shall be in accordance with plans and specifications approved
by the Town Board.
Town of Windsor, Wis., Subdivision Ordinance § 8.7 (Mar.
27, 1978). Windsor rejected the
Manthes' preliminary plat because the Manthes' proposal failed to include the
public sewer services for the subdivision required by section 8.7 of the 1979
ordinance.
The
Manthes argue that Windsor repealed its 1979 subdivision ordinance when it
enacted its 1987 subdivision ordinance, and therefore section 8.7 of the 1979
ordinance is inapplicable. Whether the
1979 ordinance was repealed by the 1987 ordinance is a question of law that we
review de novo. See Eastman
v. City of Madison, 117 Wis.2d 106, 112, 342 N.W.2d 764, 767 (Ct. App.
1983).
The 1987 ordinance does not expressly repeal
the 1979 ordinance. An ordinance is
expressly repealed when a subsequent ordinance declares that the former
ordinance shall be revoked and abrogated.
See State v. Dairyland Power Coop., 52 Wis.2d 45,
51, 187 N.W.2d 878, 881 (1971). The
1987 ordinance does not contain such language.
Instead, section 1.6 of the 1987 ordinance states: "All other ordinances or parts of ordinances
of the Town inconsistent or conflicting with this ordinance, to the extent
of the inconsistency only, are hereby repealed." (Emphasis added.)
The
language of section 1.6 of the 1987 ordinance is consistent with the concept of
repeal by implication. Repeal by
implication occurs when the latter ordinance contains provisions so contrary to
or irreconcilable with those of the earlier ordinance that only one of the two
ordinances can stand in force. See
id.
Repeal
by implication is not a favored legal concept, however. Id. Because the cardinal principle of statutory construction is to
save and not to destroy, this court will not lightly or quickly find that the
two ordinances are irreconcilable. See
id.
Section
8.7 of the 1979 ordinance is not inconsistent with the 1987 ordinance. Instead, the statutes can have concurrent
operation.[5] Section 6.7 of the 1987 ordinance is silent
on the issue of whether subdividers outside of the urban service area
are required to provide public sewer facilities. Section 6.7(c) regulates subdivisions in the urban service
area, while section 6.7(d) regulates land divisions outside the urban
service area. As a result, the
requirement that subdivisions outside the urban service area provide public
sewer service, as contained in section 8.7 of the 1979 ordinance, is not
inconsistent with section 6.7 of the 1987 ordinance.
The
Manthes argue that the 1987 ordinance is a complete and comprehensive ordinance
covering all phases of subdivision development, and therefore any provision in
the old ordinance covering the same subject matter must be deemed repealed.[6] It is apparent, however, that Windsor did
not intend the 1987 ordinance to be a "complete and comprehensive
ordinance."
If
Windsor intended to completely repeal the 1979 ordinance, it would have said
so. As stated by the Wisconsin Supreme
Court in Dairyland Power Coop.:
"If the actual intent ... was to repeal [the earlier law], it seems
strange indeed that no express statement to that effect may be found in [the
latter law]." 52 Wis.2d at 52, 187
N.W.2d at 881
An
ordinance must be construed so that every portion of it is given effect and no
part of it is rendered superfluous. See
State ex rel. Briggs & Stratton Corp. v. Noll, 100 Wis.2d
650, 655, 302 N.W.2d 487, 490 (1981).
Windsor repealed the 1979 ordinance "to the extent of [its]
inconsistency [with the 1987 ordinance] only." Town of Windsor, Wis., Land
Division and Subdivision Ordinance § 1.6 (Nov. 10, 1987). If we concluded that the 1987 ordinance
completely repealed the 1979 ordinance, we would render this language
superfluous. Because we must give
effect to every portion of the 1987 ordinance, we hold that it does not repeal
the 1979 ordinance in whole; it only repeals inconsistent portions of the 1979
ordinance.
Our
conclusion that the 1987 ordinance does not repeal section 8.7 of the 1979
ordinance is consistent with our prior decision of Pederson v. Town Bd.,
191 Wis.2d 663, 530 N.W.2d 427 (Ct. App. 1995). In Pederson, we construed both Windsor's 1979
ordinance and 1987 ordinance to determine whether public water service was
required in subdivisions outside of Windsor's urban service area. Id. at 674, 530 N.W.2d at
432. We did not conclude that the 1987
ordinance repealed the 1979 ordinance; we noted instead that the 1987 ordinance
was "an additional subdivision ordinance." Id. at 673, 530 N.W.2d at 431
(emphasis added).
The
Manthes argue that § 236.45, Stats.,
authorizes local governments to enact and enforce only one subdivision
ordinance, and therefore the 1979 ordinance is inapplicable. This is an inaccurate reading of the
law. In fact, § 236.45(2)(a)
authorizes a local government to "adopt ordinances governing the
subdivision ... of land."
(Emphasis added.) Even if §
236.45 only referred to "an ordinance," § 990.001(1), Stats., provides that in construing
Wisconsin laws, the singular includes the plural. Therefore, Windsor can adopt more than one subdivision ordinance.
Next, the Manthes argue that
§ 236.13(1)(d), Stats.,
prohibits Windsor from enacting an ordinance requiring the Manthes to provide
public sewers as a condition of preliminary plat approval. Under § 236.13(1)(d):
Approval of the preliminary ... plat shall be
conditioned on compliance with ... [t]he rules of the department of industry,
labor and human relations [DILHR] 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.
The Manthes argue that this provision shows the
legislature's intent to allow lands not located in areas served by public sewer
to be served by private sewer systems in compliance with DILHR
regulations. We disagree.
A
statute must be construed so that every portion of it is given effect and no
part of it is rendered superfluous. See
Briggs & Stratton, 100 Wis.2d at 655, 302 N.W.2d at 490. If we were to follow the Manthes' reasoning,
we would render portions of both § 236.13(4), Stats., and § 236.45(2)(a), Stats., superfluous, a result that the rules of statutory construction
direct us to avoid.
Section
236.13(4), Stats., provides that
"[w]here 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." This suggests that
when local ordinances are more restrictive than the requirements of agencies
such as DILHR, the local ordinances apply.
If the legislature intended only DILHR rules and not local ordinances to
regulate the disposal of sewage, it would not have provided that subdividers
must comply with more restrictive local requirements.
In
addition, § 236.45(2)(a), Stats.,
states that "any municipality, town or county which has established a
planning agency may adopt ordinances governing the subdivision or other
division of land which are more restrictive than the provisions of this
chapter." If we did not allow
Windsor to adopt sewerage requirements more restrictive than DILHR
requirements, we would render the language of § 236.45(2)(a) meaningless. The plain language of this section mandates
that we permit Windsor to adopt sewer requirements more restrictive than the
DILHR rules allowed by
§ 236.13(1)(d), Stats.
The
Manthes argue that if Windsor's ordinance is held applicable to their plat, the
language of § 236.13(1)(d), Stats.,
is rendered meaningless. This is
incorrect. The DILHR rules merely set
forth the minimum standards with which subdividers must comply. Under §§ 236.13(4) and 236.45(2)(a), Stats., local municipalities are
allowed to enact more restrictive requirements.
The
Manthes also argue that Windsor's ordinance requiring public sewers is an
illegal zoning ordinance. They rely on Gordie
Boucher Lincoln-Mercury Madison, Inc. v. City of Madison Plan Comm'n,
178 Wis.2d 74, 503 N.W.2d 265 (Ct. App. 1993).
In Gordie Boucher, the City of Madison rejected Boucher's
certified survey map of a land division because Boucher's proposed use of a lot
created by the land division was inconsistent with the city's Peripheral Area
Development Plan. Id. at
79-80, 503 N.W.2d at 266. We held that
the city's rejection was improper, stating:
While ch. 236,
Stats., and sec. 236.45, Stats., confer broad regulatory authority upon local
governing bodies, that authority relates to the quality of the subdivision or
land division and not the use to which the lots in the subdivision or land
division may be put. Control over the
use to which property may be devoted is a zoning control which can be imposed
only by a comprehensive zoning ordinance enacted as required by the zoning
enabling act.
Id. at 101-02, 503 N.W.2d at 275. We concluded that the city's
attempt to control the proposed use of Boucher's property went beyond its
delegated authority. Id.
at 102, 503 N.W.2d at 275.
Windsor's
ordinance does not regulate the use of the Manthes' land; it merely provides
that the Manthes must provide public sewer facilities. Windsor's ordinance is distinguishable from
the area development plan construed in Gordie Boucher.
If
a local regulation is intended to enhance the quality of the subdivision, it
may be imposed in a subdivision ordinance as well as a zoning ordinance. Id. at 96, 503 N.W.2d at
273. By requiring public sewer
facilities, Windsor is regulating the quality of the subdivision, not the use
of the land. Therefore, Windsor
properly required public sewer facilities through its subdivision
ordinance. This conclusion is supported
by § 236.45, Stats., which
specifically allows local governments to adopt ordinances governing the
subdivision of land for the purpose of facilitating adequate provision for
sewerage.
Finally,
the Manthes argue that Windsor violated the "rule of law" approach by
implicitly requiring them to obtain a change in urban service area boundaries
to receive public sewer service. Under
the rule of law approach, "local units of government have no discretion to
reject proposed plats under sec. 236.13, Stats., unless the plat conflicts with
an existing statutory requirement of ch. 236 or with an existing written
ordinance, master plan, official map, or rule as provided by sec. 236.13(1)(a)
through (e), Stats." State
ex rel. Columbia Corp. v. Town Bd., 92 Wis.2d 767, 779, 286 N.W.2d 130,
136 (Ct. App. 1979).
Windsor
rejected the Manthes' plat based on an existing written ordinance—section 8.7
of Windsor's 1979 subdivision ordinance.
The Manthes attempt to characterize Windsor's decision not as a
rejection, but as an approval conditioned upon Windsor and the Dane County
Regional Plan Commission changing the urban service area boundaries to permit
public sewer service to be extended to the preliminary plat. If we were to follow the Manthe's reasoning,
local governments could never reject proposed plats because these rejections
could always be characterized as approvals conditioned on the future amendment
or repeal of the statute, ordinance, master plan, official map or rule on which
the original rejection was based.
Because such a result is contrary to the intent of Chapter 236, Stats., we reject the Manthes'
argument.
By
the Court.—Order reversed.
[2] Section 236.02(12), Stats., defines "subdivision" as:
a division of a lot, parcel or tract of land by the owner
thereof or the owner's agent for the purpose of sale or of building
development, where:
(a) The act of
division creates 5 or more parcels or building sites of 1 1/2 acres each or
less in area; or
(b) Five or more
parcels or building sites of 1 1/2 acres each or less in area are created by
successive divisions within a period of 5 years.
[3] Section 236.13, Stats., provides the only basis for plat rejection:
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.
Section 236.13(3).
[4] The Manthes argue that Windsor's subdivision
ordinance must be strictly construed to favor the free use of property. In support of their position, the Manthes
cite Cohen v. Dane County Bd. of Adjustment, 74 Wis.2d 87, 91,
246 N.W.2d 112, 114 (1976), in which the Wisconsin Supreme Court stated:
"The provisions of a zoning ordinance, to operate in derogation of the
common law, must be in clear, unambiguous, and peremptory terms." Cohen, however, deals with the
interpretation of a county zoning ordinance, not a subdivision ordinance. The plain language of § 236.45(2)(b), Stats., requires that Windsor's
subdivision ordinance be liberally construed.
[5] The 1987 ordinance provides, in relevant
part:
SEC. 6.7 SANITARY
SEWERAGE SYSTEM.
(a) There
shall be provided a sanitary sewerage system in conformity with the master plan
of sewers as approved by the Town Board and/or sanitary district.
(b) The
subdivider shall make adequate sewage disposal systems available to each lot
within the subdivision, certified survey parcel or land division.
(c) Subdivisions
and certified survey parcels in the Urban Service Area shall be served by
public sewer facilities. The size,
type, and installation of all sanitary sewers proposed to be constructed shall
be in accordance with plans and specifications approved by the appropriate
sanitary district.
(d) Land
divisions created by certified survey outside the Urban Service Area may be
served by private sewage disposal systems, if public sewer facilities are not
available. Private sewage disposal
systems shall comply with the Wisconsin Administrative Code Section H 62.20 and
with Dane County Sanitation Ordinance.
Service laterals shall be provided to all lots.
(e) The
subdivider shall pay all the costs of all sanitary sewer work including the
bringing of the sanitary sewer from where it exists to the subdivision in
question as well as providing all sanitary sewer work within the
subdivision. The size, type and
installation of all sanitary sewers proposed to be constructed shall be in
accordance with plans and standard specifications approved by the appropriate
sanitary district serving the area.
Town of Windsor, Wis., Land Division and Subdivision
Ordinance § 6.7 (Nov. 10, 1987).
[6] In support of their position, the Manthes rely
on City of Madison v. Southern Wis. Ry. Co., 156 Wis. 352, 360,
146 N.W. 492, 495 (1914), aff'd, 240 U.S. 457 (1916), in which the court
stated that if a substantive part of an earlier act is omitted from a later
one, the statutes "are inconsistent and the former falls under the general
repeal of `all acts and parts of acts inconsistent with and conflicting with
the provisions' of the later act."
The Manthes oversimplify Madison's holding, however, as
the court offered this rule as only one of several rules to use in determining
whether an act of legislation repeals an earlier act relating to the subject
matter covered by the latter one. Id.
at 359-60, 146 N.W. at 495. Ultimately,
the court concluded:
The numerous rules
for statutory construction on the subject of repeal of an earlier by a later
statute, are general, in respect to the particular situation to which they
respectively apply; but are subject to the ultimate purpose of giving effect to
the legislative intent, when from the whole body of an act, or by a comparison
of the enactment with others, or other circumstances characterizing the new
enactment, it is clear that a repeal was not intended and the real purpose can
be carried out by aid of judicial construction.
Id. at 360, 146 N.W. at 495.