Rice v. City of Oshkosh

435 N.W.2d 252, 148 Wis. 2d 78, 1989 Wisc. LEXIS 18
CourtWisconsin Supreme Court
DecidedFebruary 14, 1989
Docket87-1521
StatusPublished
Cited by20 cases

This text of 435 N.W.2d 252 (Rice v. City of Oshkosh) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rice v. City of Oshkosh, 435 N.W.2d 252, 148 Wis. 2d 78, 1989 Wisc. LEXIS 18 (Wis. 1989).

Opinions

DAY, J.

This appeal was accepted on bypass of the court of appeals pursuant to sec. 808.05, Stats., (1985-86). The appeal is from a judgment of the circuit court for Winnebago county, Honorable Thomas S. Williams, judge. The circuit court ruled that the town of Algoma (Town) was granted sole authority, pursuant [81]*81to sec. 236.13(2)(a), Stats.,1 to establish the public improvement requirements of a subdivision plat owned by the Plaintiffs, Dale D. Rice and Jeffrey J. Welhouse, d/b/a Algoma Properties (Algoma Properties). The circuit court concluded that only the Town was authorized by statute to require public improvements and, therefore, the city of Oshkosh (City) could not condition its extraterritorial approval of the plat on compliance with the City’s public improvement requirements. We conclude that pursuant to sec. 236.13(2)(a) the power to condition plat approval based on installation of public improvements2 is granted solely to the governing body within which the subdivision lies and in this case that is the Town. We therefore affirm the judgment of the circuit court.

The facts in this case are not in dispute. Algoma Properties prepared a preliminary subdivision plat entitled “Oakwood Circle,” which is entirely located within the Town’s limits. The plat also lies within the three-mile extraterritorial plat approval jurisdiction of the City.3

[82]*82Algoma Properties presented the plat for approval4 to the required governmental bodies, including both the City and the Town. The Town conditionally approved the plat. It required that the plat comply with the Town’s public improvement requirements. The City also conditionally approved the plat. The City, however, imposed its own public improvement requirements and specifications as a condition of its extraterritorial plat approval. The rest of the governmental bodies; the Wisconsin Department of Development, the East Central Wisconsin Regional Plan Commission, and Winnebago County, unconditionally approved the plat.

It is not possible to meet the public improvement requirements of both the Town and City. For instance, the street pavement requirements of the two governments differ. Both parties state that the Town requires asphalt surfacing whereas the City requires concrete. The City also requires underground storm sewers designed to accommodate a “seven to ten year return rainfall,” whereas the Town merely requires surface drains designed to accommodate a “twenty-five year return rainfall.”

Algoma Properties filed an action pursuant to sec. 236.13(5), Stats.,5 seeking a review of the City’s decision [83]*83to condition its approval on the plat meeting the City’s public improvement requirements. Algoma Properties alleged five causes of action including one that stated that the City had no authority to impose its public improvement requirements upon Algoma Properties because the plat lay within the Town’s jurisdiction on these matters.

Subsequently, Algoma Properties asked the City to grant a variance so that the City’s public improvement requirements did not have to be met as a condition of the City’s approval of the plat. This was denied and the final plat was rejected by the City.

Algoma Properties, therefore, amended its complaint to include, among other things, the rejection of its variance request. The circuit court requested briefs on the first cause of action — that the City was not authorized to impose its public improvement requirements as a condition of its extraterritorial plat approval.

In a written decision, the circuit court “conclude [d] that because the power to require improvements under [sec.] 236.13(2)(a), [Stats.,]6 is vested solely in the governing body of the town within which the subdivision lies, the City cannot condition its approval on the making of such improvements.” The circuit court ruled that although sec. 236.45(2), Stats.,7 was a general grant of power to the City to enact subdivision ordinances, it held the “specific enumeration of areas in which the city may act ... seem to be a far cry from requiring public improvements.” It found the specific language of [84]*84sec. 236.13(2)(a), Stats., to be a granting of exclusive power to require public improvements to only that government within which the plat is located. Consequently, the City was ordered to approve Algoma Properties’ preliminary plat without such public improvement conditions.

The City appealed. Both parties joined in a petition to bypass the court of appeals. The single issue, as phrased in the bypass petition, is:

As between Sections 236.13(2)(a) and 236.45(2)(a), Wis. Stats., does a municipality have authority to impose its own requirements and specifications for public improvements in another governmental jurisdiction as a condition of extraterritorial plat approval?

A question of statutory construction is a question of law which this court reviews without deference to the circuit court’s determination. State ex rel. Newspapers v. Showers, 135 Wis. 2d 77, 85, 398 N.W.2d 154 (1987). In construing a statute, this court must first look to the language of the statute itself. Milwaukee Met. Sewerage Dist. v. DNR, 126 Wis. 2d 63, 71, 375 N.W.2d 649 (1985). If the meaning of the statute is clear on its face, this court will not look outside the statute to determine legislative intent. Only when the language of the statute is unclear or ambiguous should this court examine the scope, history, context, subject matter, and object of the statute to discern the legislative intent. Id.

We conclude the language in sec. 236.13(2)(a), Stats., is clear that only the government within which the plat lies may establish public improvement require[85]*85ments. Section 236.13(2)(a), Stats.,8 provides in part: “farther 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....” (Emphasis added.) Only the Town is granted specific authority to regulate the public improvements of the Oakwood Circle plat.

Even if the phrase “within which the subdivision lies” was held to be unclear as to whether or not it also applies to extraterritorial jurisdiction, we note the Interpretive Commentary about this section which states: “The authority under this section to require installation of public improvements does not apply extraterritorially.”9 Beuscher, Interpretive Commentary (1957), Wis. Stat. Ann., sec. 236.13, at 262 (1987) (emphasis in original). We conclude the City is not authorized to set the requirements for public improvements in this case.

The City argues that it is granted authority to regulate public improvements extraterritorially if it passes a public improvement ordinance pursuant to sec. 236.45, Stats. The City cites Jordan v. Menomonee Falls, 28 Wis. 2d 608, 137 N.W.2d 442

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Rice v. City of Oshkosh
435 N.W.2d 252 (Wisconsin Supreme Court, 1989)

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Bluebook (online)
435 N.W.2d 252, 148 Wis. 2d 78, 1989 Wisc. LEXIS 18, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rice-v-city-of-oshkosh-wis-1989.