Wood v. City of Madison

2003 WI 24, 659 N.W.2d 31, 260 Wis. 2d 71, 2003 Wisc. LEXIS 205

• Court: Wisconsin Supreme Court
• Decided: April 11, 2003
• Docket: 01-1206
• Status: Published

Opinions

ANN WALSH BRADLEY, J.

¶ 1. This case is before the court on certification from the court of appeals.¹ The plaintiffs-appellants, Gerald and Debra Wood (the Woods) contend that the City of Madison (Madison)² improperly used its plat approval authority to mandate land use through a subdivision ordinance. In essence, they assert that Madison used its platting authority to perform a zoning function.

¶ 2. In its certification, the court of appeals more precisely states the issue as follows:

Does Wis. Stat. ch. 236 authorize a municipality to reject a preliminary plat under its extraterritorial jurisdictional authority based on a subdivision ordinance that considers the plat's proposed use?

In addition, the court of appeals requests that we review the holding in Gordie Boucher Lincoln-Mercury v. Madison Plan Comm'n, 178 Wis. 2d 74, 503 N.W.2d 265 (Ct. App. 1993), which previously addressed this issue. The court of appeals advances that Gordie Boucher "was probably wrongly decided."

¶ 3. In response to the issue presented, we conclude that Wis. Stat. ch. 236 (1999-2000)³ does authorize a municipality to reject a preliminary plat under its extraterritorial jurisdictional authority based upon a subdivision ordinance that considers the plat's proposed use. Because Gordie Boucher declared otherwise, we agree with the court of appeals that it was in error. We also conclude that the standards set forth in the subdivision ordinance in this case were neither vague nor applied in an arbitrary, unreasonable, or discriminatory manner. Accordingly, we determine that the City of Madison acted within its authority, and we affirm the circuit court order which upheld Madison's rejection of the Woods' plat.

HH

¶ 4. The facts of this case are not in significant dispute. The Woods own a 51.96 acre parcel of land east of Interstate Highway 90/94. Although the parcel is in the Town of Burke, it is also within Madison's extraterritorial plat approval jurisdiction.⁴ Although some property adjacent to the Woods' plat is zoned for commercial use, much of the land to the east and west of the Woods' plat is zoned for agricultural purposes, and is used accordingly.

¶ 5. The Woods submitted an extraterritorial plat and land division application to the City of Madison, seeking approval of a preliminary plat⁵ that would divide their property into eleven lots.⁶ The Woods sought to change the zoning of nine of the proposed new lots from "Agricultural" to "Commercial."

¶ 6. The City of Madison Department of Planning and Development issued a report analyzing the proposed plat under both the "Criteria for Agricultural Land Division" and the "Criteria for Non-Agricultural Land Division or Subdivision" of Madison General Ordinance (MGO) § 16.23(3)(c)l-2. The report stated that the preliminary plat failed to meet the agricultural land division criteria because it did not "assist and assure the continuation of agricultural land use on this property."

¶ 7. In considering the preliminary plat under the non-agricultural land division criteria, the report concluded that the development of the commercial lots would be incompatible with and would negatively impact the remaining lots and adjacent agricultural lands. It also concluded that commercial development would not constitute "infill," as little of the surrounding area featured commercial use. An addendum to the report indicated that "the Planning Unit concludes that the proposed subdivision plat does not meet the standards for approval at this time." The report recommended that the City of Madison Common Council reject the resolution approving the preliminary plat.

¶ 8. The City of Madison Plan Commission considered the Woods' application at two separate public hearings, on March 20, 2000 and May 15, 2000. At the first hearing, three representatives of the Woods spoke on their behalf.⁷ After the second hearing, the plan commission recommended denying the Woods' application.

¶ 9. The Common Council subsequently adopted the plan commission's recommendation and rejected the proposed plat. Noting that "the area [adjacent to the Woods' land] is largely agricultur[al]," it concluded that "[t]he subdivision of the bulk of the agricultural lands that exist on the Wood property would be a significant expansion of commercial land use in this area, and create additional pressures on the conversion of the remaining agricultural lands that exist on the Wood parcel, as well as adjacent agriculturally-utilized lands."

¶ 10. The Woods petitioned the Dane County Circuit Court for certiorari review of the City of Madison's decision, pursuant to Wis. Stat. §§ 236.15(5) and 62.23(7)(e)10. The court affirmed Madison's rejection of the plat, finding that the City "did not violate any part of' chapter 236, and that the City's decision was intended to further the quality of the subdivision. It also concluded that the rejection of the plat was "clearly grounded in the plain language of the non-agricultural criteria" of MGO § 16.23. The Woods appealed to the court of appeals, which subsequently certified the appeal to this court.

HH I — I

¶ 11. Resolution of the issue set forth in the certification by the court of appeals requires us to interpret portions of chapters 62 and 236 of the Wisconsin Statutes. Statutory interpretation presents a question of law subject to independent appellate review. Lake City Corp. v. City of Mequon, 207 Wis. 2d 155, 162, 563 N.W.2d 145 (1997).

¶ 12. Resolution of the remaining issues requires us to review the decision by the Madison Common Council rejecting the Woods' preliminary plat. Appeals from the rejection of a plat are governed by Wis. Stat. §§ 236.13(5) and 62.23(7)(e)10. A person aggrieved by such a rejection may commence a certiorari action. Wis. Stat. § 62.23(7)(e)10. On certiorari, a court "shall direct that the plat be approved if it finds that the action of the approving authority... is arbitrary, unreasonable or discriminatory." Wis. Stat. § 236.13(5). On appeal from an order or judgment entered on certiorari, a reviewing court reviews the record of the agency, not the findings or judgment of the circuit court. Hoepker v. City of Madison Plan Comm'n, 209 Wis. 2d 663, 563 N.W.2d 145 (1997). Whether an agency has exceeded its authority in rejecting a plat also presents a question of law, subject to independent appellate review. Pederson v. Town Bd. of Town of Windsor, 191 Wis. 2d 663, 669 n.2, 530 N.W.2d 427 (Ct. App. 1995).

I — I I — I H-l

¶ 13. We begin with the issue presented by the court of appeals:

Does Wis. Stat. ch. 236 authorize a municipality to reject a preliminary plat under its extraterritorial jurisdictional authority based on a subdivision ordinance that considers the plat's proposed use?

Chapter 236 of the Wisconsin Statutes is entitled "Platting Lands and Recording and Vacating Plats." It "regulates intensively the process by which land can be divided into building sites." Town of Sun Prairie v. Storms, 110 Wis. 2d 58, 61, 327 N.W.2d 642 (1983). The purpose of the chapter is set out in Wis. Stat. § 236.01:

The purpose of this chapter is to regulate the subdivision of land to promote public health, safety and general welfare; to further the orderly layout and use of land; to prevent the overcrowding of land; to lessen congestion in the streets and highways; to provide for adequate light and air; to facilitate adequate provision for water, sewerage and other public requirements; to provide for proper ingress and egress; and to promote proper monumenting of land subdivided and conveyancing by accurate legal description. The approvals to be obtained by the subdivider as required in this chapter shall be based on requirements designed to accomplish the aforesaid purposes.

¶ 14. Wisconsin requires that all subdivisions be surveyed and that all plats be approved before they can be recorded. Wis. Stat. § 236.03(1). Local governments with planning agencies have the power to approve subdivision plats. Storms, 110 Wis. 2d at 61; Mequon v. Lake Estates Co., 52 Wis. 2d 765, 773, 190 N.W.2d 912 (1971). Plats located within the extraterritorial plat approval jurisdiction of a municipality require approval by the town board, the county planning agency, and the governing body of the municipality or its planning committee or commission. Wis. Stat. §§ 236.10(l)(b)l. and 3.; 236.10(3).

¶ 15. Approval of any plat is also conditioned on compliance with any subdivision ordinance validly enacted by the appropriate municipality, town, or county. Wis. Stat. § 236.13(l)(b). If multiple governing bodies or agencies with authority to approve or reject a plat have ordinances with conflicting requirements, the plat must comply with the most restrictive requirements. Wis. Stat. § 236.13(4).

¶ 16. In Wis. Stat. § 236.45, the legislature has permitted municipalities, towns, and counties, if they have established planning agencies, to legislate more intensively in the field of subdivision control than provided for the state at large by allowing them to adopt ordinances which are more restrictive than the provisions of ch. 236. Section 236.45(3) authorizes municipalities to utilize their subdivision ordinances within their extraterritorial plat approval jurisdiction.

¶ 17. Wisconsin Stat. § 236.45(1) explains the legislative intent behind the additional subdivision plat approval authority granted under the section:

(1) Declaration of legislative intent. The purpose of this section is to promote the public health, safety and general welfare of the community and the regulations authorized to be made are designed to . .. further the orderly layout and use of land;... to prevent the overcrowding of land; to avoid undue concentration of population;.... The regulations provided for by this section shall be made with reasonable consideration, among other things, of the character of the municipality, town or county with a view of conserving the value of the buildings placed upon land, providing the best possible environment for human habitation, and for encouraging the most appropriate use of land throughout the municipality, town or county.

Wis. Stat. § 236.45(1) (emphasis added).

¶ 18. In Mequon, 52 Wis. 2d at 774, we described the statement of legislative intent in § 236.45(1) as "indicat[ing] that the purpose of the law is to permit a municipality to adopt regulations encouraging the most appropriate use of land throughout." Noting that under § 236.45(2)(b), "any ordinance adopted by a municipality shall be liberally construed in favor of the municipality," we described § 236.45 as granting wide discretion that a municipality may exercise by ordinance or appropriate resolution. Id.

¶ 19. The plain language of the declaration of intent in § 236.45(1) leaves no doubt that subdivision regulations and ordinances may consider the use of land. In fact, the statute requires that such ordinances "shall be made with reasonable consideration ... of the character of the municipality, town or county with a view ... for encouraging the most appropriate use of land throughout the municipality, town or county." Wis. Stat. § 236.45(1) (emphasis added).

¶ 20. The Woods present no argument to the contrary regarding the meaning of the term "use" as set forth in § 236.45(1). They do not claim that the word "use" in the context of the phrase "encouraging the most appropriate use of land" refers to something other than the common, ordinary meaning of the word.

¶ 21. Notwithstanding the explicit language in Wis. Stat. § 236.45(1) authorizing the planning agencies of municipalities, towns, and counties to enact subdivision ordinances that consider the "most appropriate use of land," the Woods contend that the use of property may not properly be the subject of subdivision approval authority under chapter 236. They assert that platting authority is inherently different from zoning authority and that only zoning regulations may consider the use of land. In essence, they claim that Wis. Stat. § 62.23 relating to city planning, and in particular subsections (7) and (7a) of the statute, on zoning and extraterritorial zoning, respectively, provide the sole authorization for municipal regulations concerning land use.⁸

¶ 22. Wisconsin Stat. § 62.23(7)(a) authorizes cities to regulate by zoning:

(a) Grant of power. For the purpose of promoting health, safety, morals or the general welfare of the community, the council may regulate and restrict by ordinance,.. . the size of yards, courts and other open spaces, the density of population, and the location and use of buildings, structures and land for trade, industry, mining, residence or other purposes ....

Cities are authorized under § 62.23(7)(b) to "divide the city into districts ... as may be deemed best suited to carry out the purposes" of the chapter. Within zoning districts, cities may "regulate and restrict the erection, construction, reconstruction, alteration or use of buildings, structures or land." Wis. Stat. § 62.23(7)(b).

¶ 23. The purposes of zoning are listed in § 62.23(7)(c), and apply as well to extraterritorial zoning under Wis. Stat. § 62.23(7a).⁹ The listed purposes are remarkably similar to those which underlie subdivision plat approval authority under § 236.45(1). Notably, both zoning and subdivision plat approval authority state that regulation "shall be made with reasonable consideration ... of the character of the district. . . with a view to . .. encouraging the most appropriate use of land." Wis. Stat. §§ 62.23(7)(c) and 236.45(1).

¶ 24. Although the legislature has conferred upon cities both extraterritorial zoning authority and extraterritorial subdivision plat approval authority, and has stated that the purposes for each type of regulation are nearly identical, the Woods insist that the use of land may not be considered in subdivision plat approval decisions. They largely base their contention on Gordie Boucher, 178 Wis. 2d 74, a case decided by the court of appeals in 1993.

¶ 25. Gordie Boucher concerned the City of Madison Common Council's denial of a certified survey map (CSM) which a corporation (Boucher) had submitted because it wanted to locate an automobile dealership on a lot in the Madison-Sun Prairie visual open space separation district. The lot's zoning permitted the proposed use of land, and the Town of Burke and Dane County conditionally approved the CSM. Id. at 82-83. The City of Madison denied Boucher's CSM for several reasons. However, on appeal it relied on only one of the reasons: "The proposed survey is not consistent with the City's Master Plan, including the Peripheral Area Development Plan, the Land Use Plan, and the Parks and Open Space Plan." Id. at 83.

¶ 26. On certiorari review, the circuit court concluded that Madison's rejection of Boucher's CSM based on inconsistency with the city's master plan constituted extraterritorial zoning. The court determined that the city "used its plat approval authority to regulate for what, as opposed to how, the parcel may be used." Id. at 89. It therefore ordered the city to conditionally approve the CSM pursuant to Wis. Stat. § 236.13(5). Id. at 83-84.

¶ 27. On appeal, the issue was "whether the plan commission engaged in zoning when it used its plat approval authority to control land use in the city's extraterritorial plat approval jurisdiction." Id. at 93. The court of appeals determined that the City of Madison had engaged in zoning by controlling land use. It stated:

In this case, however, the approving authority has rejected a proposed land division for reasons having nothing to do with the quality of the division. It is the use to which Boucher proposes to put lot two which the commission claims justifies its rejection of its CSM. Land use control is the function of zoning.

Id. at 98 (emphasis in original).

¶ 28. The Gordie Boucher court drew a clear distinction between zoning and subdivision approval. It concluded:

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 to 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 (emphasis added).

¶ 29. The court in Gordie Boucher recognized an overlap between zoning and platting when plat approval imposes "quality" requirements. Id. at 96. However, it did not clearly explain the meaning of "quality" in this context. It noted that "quality" considerations include "the orderly layout and use of land." Id. As the court of appeals stated in its certification of this case, "[i]n many cases it will be impossible to distinguish a 'quality' requirement from a use restriction because regulating uses is generally aimed at maintaining a high quality of living."

¶ 30. Thus, we do not believe the "quality" standard referred to in Gordie Boucher to distinguish between zoning functions and subdivision approval functions is tenable. Under the plain language of the declaration of legislative intent in § 236.45(1), all subdivision regulations "shall" be made with a view for "encouraging the most appropriate use of land throughout the municipality, town or county." Therefore, any regulation relating to the "quality" of a subdivision must necessarily consider the "most appropriate use" of land. We cannot fathom how an ordinance can consider the most appropriate use of land if it cannot consider the use of land.

¶ 31. As noted above, in certifying the issue presented in this case, the court of appeals concluded that "Gordie Boucher was probably wrongly decided." The court of appeals questioned the reasoning in Gordie Boucher: "we believe that the mutually exclusive view of zoning and platting that Gordie Boucher adopted is somewhat artificial and unsupported by either Wisconsin case law or statutes."¹⁰

¶ 32. The certification specifically points to the language in Wis. Stat. § 236.45 requiring that governmental bodies enacting subdivision ordinances do so with a view of "encouraging the most appropriate use of land throughout the municipality town or county." The court of appeals notes that it did not address the above-quoted language in Gordie Boucher, and asserts that it "believe [s] the legislature has expressed approval for municipalities to include in their subdivision ordinances and master plans considerations regarding the proposed use of a plat."

¶ 33. We agree with the court of appeals that the holding in Gordie Boucher does not accurately reflect the law and must be overruled. Although Gordie Boucher correctly noted that zoning and subdivision plat approval authority are different types of land use controls which do not serve identical purposes, it incorrectly concluded that subdivision plat approval authority may not consider the appropriate use of land.

¶ 34. The court did not attempt to reconcile its conclusion that land use is strictly a zoning issue with the final sentence in § 236.45(1): "The regulations provided for by this section shall be made with reasonable consideration ... of the character of the municipality, town or county with a view ... for encouraging the most appropriate use of land throughout the municipality, town or county." The court's conclusion is contrary to this clear statutory language.

¶ 35. Moreover, while Gordie Boucher cited numerous secondary authorities indicating that zoning and platting are mutually exclusive, and that "use" of land relates only to zoning, it disregarded case law determining that while zoning and platting are different, zoning authority and platting authority are not mutually exclusive. In Storms, we determined that certain types of regulations could be accomplished by zoning or by subdivision approval authority:

As long as the regulation is authorized by and within the purposes of ch. 236, the fact that it may also fall under the zoning power does not preclude a local government from enacting the regulation pursuant to the conditions and procedures of ch. 236.

Storms, 110 Wis. 2d at 70-71. Additionally, in Lake City, while noting the different authorizations for zoning and platting, we stated that "the authority of the agency assigned to plat review may not be limited by zoning regulations." Lake City, 207 Wis. 2d at 173.

¶ 36. We further stated in Storms, in comparing zoning and subdivision approval authority, that:

Zoning presupposes that the needs of the community have become sufficiently crystallized to permit the enactment of specific regulations. Subdivision control, on the other hand, establishes more general standards to be specifically applied by an administrative body in order to insure that the change of use will not be detrimental to the community.

Id. at 69 (citations omitted) (emphasis added). We thus spoke of subdivision approval authority as essentially regulating the "use" of land.

¶ 37. For these reasons, we conclude, in response to the issue set forth in the certification, that Wis. Stat. ch. 236 does authorize a municipality to reject a preliminary plat under its extraterritorial jurisdictional authority based upon a subdivision ordinance that considers the plat's proposed use. Because Gordie Boucher concluded otherwise, its holding must be overruled.

¶ 38. Our conclusion in large part is driven by the plain language of the declaration - of intent in § 236.45(1) which leaves no doubt that subdivision ordinances may consider the proposed use of land. The Woods and the amici argue that such a conclusion is bad policy. The remedy for change of this policy, however, lies with the legislature.¹¹ The courts should not rewrite the clear language of the statute.

IV

¶ 39. Having determined that subdivision regulations under chapter 236 may consider the use of land, we turn to the ordinances at issue in this case and their application. The Woods contend that the City of Madison's rejection of their application was arbitrary, unreasonable, or discriminatory. They also advance that the ordinances improperly require the exercise of discretion by the plat approval authority and are im-permissibly vague.

¶ 40. The ordinance provisions at issue are part of Madison's "Land Subdivision Regulations" ordinance, which functions to "regulate and control the subdivision of land within the corporate limits and extraterritorial plat approval jurisdiction of the City...." MGO § 16.23. Specifically at issue is Madison's extraterritorial plat approval ordinance, under which "[t]he Plan Commission may recommend or approve the subdividing of lands in the extraterritorial plat approval jurisdiction based on the applicable criteria enumerated hereinafter." MGO § 16.23(3)(c).

¶ 41. The "applicable criteria" depend on whether the land is agricultural or nonagricultural. The extraterritorial plat approval ordinance, MGO § 16.23(3)(c), sets forth only one criterion for agricultural land division: the subdivision must "assist and assure the continuation of the agricultural use." For nonagricultural land, a subdivision or land division must meet each of four criteria. It must: "be compatible with adjacent land uses" and "maintain the general land use pattern of the area"; "result in a development pattern which is compatible with surrounding developments and land uses"; "not demonstrably adversely affect the City's ability to provide public services, install public improvements or accomplish future annexations"; and either constitute "infilling" of vacant land or "provide permanent open space lands for use by the general public."¹² MGO § 16.23(3) (c)2.a.-d.

¶ 42. The City of Madison plan commission determined that the proposed preliminary plat did not satisfy the Criteria for Agricultural Land Division. It found that the subdivision did not comply with MGO § 16.23(3)(c)l. because it would not "assist and assure the continuation of agricultural land use on the property" and because "development of nine lots for commercial purposes under the proposed C-2 commercial zoning will result in a loss of most of the agriculturally utilized lands within the boundaries of the proposed preliminary plat."

¶ 43. The plan commission also determined that the subdivision did not meet three of the "Criteria for Non-Agricultural Subdivision or Land Division." Finding that the subdivision did not comply with MGO § 16.23(3)(c)2.a. because it did not maintain the general use patterns of the area, the plan commission stated:

The undivided property currently consists of agricultural lands .... The subdivision of this property to create nine commercial lots does not appear to be compatible with adjacent land uses and [does not] maintain the general land use pattern of the area in question. The development of nine commercial lots will be inconsistent with the remaining conservation easement parcel... the remaining agricultural lands ... in addition to vacant, agricultural, unimproved lands to the west and to the east.

¶ 44. The plan commission also determined that the subdivision did not meet the requirements of MGO § 16.23(3)(c)2.b. because the commercial development was not compatible with surrounding land uses:

The development of currently agricultural lands for commercial purposes proposed with this preliminary plat would extend the scattering of unplanned, commercial development within the general area .... The development of the agricultural lands on this property for commercial purposes will negatively impact the rural agricultural land uses that will remain on this parcel, as well as adjacent parcels to the immediate east and west.

¶ 45. Finally, the plan commission found that the proposed plat was inconsistent with MGO § 16.23(3)(c)2.d. because the commercial lots would not constitute infill:

Although there is a scattering of. .. commercial development adjacent to this parcel, the existing agricultural land use on the parcel, combined with the extensive agricultural land uses on properties immediately to the east and west... establish the general character of the area. . .. [The area] is largely agricultural] interspersed with small, single-family improved lots. The subdivision of the bulk of the agricultural lands that exist on the Wood property would be a significant expansion of commercial land use in this area.... The creation of nine commercial lots on a parcel where no commercial activity exists beyond [an] agricultural trucking firm ... does not support a conclusion that this would be infill development....

¶ 46. The plan commission therefore recommended that the Common Council deny the proposed plat. The Common Council adopted the findings of the plan commission and subsequently rejected the proposed plat.

¶ 47. Like the circuit court, we conclude that the findings in the City of Madison's decision were clearly grounded in the plain language of the non-agricultural criteria of the Madison general ordinances relating to subdivision plat approval. Accordingly, we determine that the City of Madison acted within its authority in rejecting the application and that its actions were not arbitrary, unreasonable, or discriminatory.

¶ 48. The Woods claim that platting approval is purely ministerial and that the Common Council's consideration of compatibility of uses was improper because it required an exercise of discretion. However, discretion is granted to municipalities to condition approval on compliance with municipal ordinances. Wis. Stat. § 236.13(l)(b). A city has broad discretion to implement subdivision control if its ordinances comport with the platting statutes. State ex rel. Columbia Corp. v. Pacific Town Bd., 92 Wis. 2d 767, 778, 286 N.W.2d 130 (Ct. App. 1979) (citing Mequon, 52 Wis. 2d at 773-74). There is no dispute that if a proposed plat is not in compliance with an existing statutory requirement or ordinance, plat approval authorities may properly reject it. In this case, the City of Madison properly rejected the proposed plat after finding that it was inconsistent with city ordinances.

¶ 49. Finally, the Woods assert that the ordinance provisions and their application by the City of Madison are too vague for Madison to fulfill its administrative responsibilities under the law. The Woods' vagueness argument is premised on the ordinance lacking set standards, resulting in the unauthorized exercise of discretion. Because we have determined above that the City of Madison properly made findings which comported with specific standards set forth in the ordinances, and that the City appropriately exercised its discretion, the Woods' vagueness argument must fail.

¶ 50. Additionally, the Woods' vagueness argument relies on Columbia Corp., 92 Wis. 2d at 774, 779, in asserting that the regulations in the subdivision ordinance fail to give adequate warning as to what the approving authority would consider in making its decision. Columbia Corp. does not support the Woods' position.

¶ 51. The court determined in Columbia Corp. that plat approval authorities have no discretion to reject proposed plats "unless the plat conflicts with an existing statutory requirement of ch. 236 or with an existing written ordinance." Id. at 779. At the time of the plat rejection in Columbia Corp., there was no existing written ordinance, much less set standards. Here, however, a written ordinance existed which was of long standing, published on the Internet, and available to developers and property owners.¹³

V

¶ 52. In summary, we hold that Wis. Stat. ch. 236 authorizes a municipality to reject a preliminary plat under its extraterritorial jurisdictional authority based upon a subdivision ordinance that considers the plat's proposed use. We overrule Gordie Boucher because it held to the contrary. We also determine that the standards set forth in the subdivision ordinance in this case were neither vague nor applied in an arbitrary, unreasonable, or discriminatory manner. Accordingly, we determine that the City of Madison acted within its authority, and we affirm the circuit court order which upheld Madison's rejection of the Woods' plat.

By the Court. — The order of the circuit court is affirmed.

1 The plaintiffs-appellants appeal an order of the Circuit Court for Dane County, Richard J. Callaway, Judge, denying their writ of certiorari and affirming the decision of the City of Madison Common Council.

2 We will refer to the several defendants in this case collectively as "the City of Madison" or "Madison."

3 All subsequent references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise indicated.

4 "Extraterritorial plat jurisdiction" refers to the unincorporated area within 3 miles of the corporate limits of a first, second, or third class city, or 11/2 miles of a fourth class city or a village. Wis. Stat. § 236.02(5).

5 A "preliminary plat" is "a map showing the salient features of a proposed subdivision submitted to an approving authority for purposes of preliminary consideration." Wis. Stat. - § 236.02(9).

6 The Town of Burke had previously approved the preliminary plat and the Woods' rezoning petition. The Dane County Zoning and Natural Resources Committee had conditionally approved both the preliminary plat and the rezoning petition.

7 At the March 20, 2000 hearing, Dan Birrenkott (representing the Woods), Sam Simon, and Sean Wolf registered and spoke in support of the Woods' preliminary plat application. Birrenkott was the Woods' surveyor; Simon was their real estate agent.

8 The argument regarding the interaction of chapters 62 and 236 is more fully set forth in the brief and oral argument of the Wisconsin Realtors Association, as amicus curiae in support of the Woods.

9 Wisconsin Stat. § 62.23(7)(c) provides:

Purposes in view. Such regulations shall he made in accordance with a comprehensive plan and designed to lessen congestion in the streets; to secure safety from fire, panic and other dangers; to promote health and the general welfare; to provide adequate light and air, including access to sunlight for solar collectors and to wind for wind energy systems; to encourage the protection of groundwater resources; to prevent the overcrowding of land; to avoid undue concentration of population; to facilitate the adequate provision of transportation, water, sewerage, schools, parks and other public requirements; and to preserve burial sites, as defined in s. 157.70(l)(b). Such regulations shall he made with reasonable consideration, among other things, of the character of the district and its peculiar suitability for particular uses, and with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout such city.

10 The court of appeals acknowledged in its certification that it does not have the power to overrule the Gordie Boucher holding, but could "signal [its] disfavor" for the decision and request that this court consider overruling the prior holding. See Cook v. Cook, 208 Wis. 2d 166, 189-90, 560 N.W.2d 246 (1997).

11 The legislature recently enacted new "Smart Growth" legislation, Wis. Stat. § 66.1001, that requires municipalities to adopt comprehensive plans that include land use provisions. See 1999 Wis. Act 9. Wfliile the parties briefly address its implications, this legislation will not fully take effect until 2010, and does not apply in this case. Wis. Stat. § 66.1001(3).

12 Madison General Ordinance § 16.23(3)(c)l-2 reads:

1. Criteria for Agricultural Land Division. The Plan Commission may grant approval of a land division subdividing portions of agricultural lands provided the Commission shall determine that the proposed land division will assist and assure the continuation of the agricultural use.

2. Criteria for Nonagricultural Subdivision or Land Division. In the case of nonagricultural lands, the Plan Commission may recommend approval of a subdivision to the Common Council or may grant approval of a land division provided that the Plan Commission shall determine that the proposed subdivision or land division complies with each of the following four criteria:

a. The proposed subdivision or land division shall be compatible with adjacent land uses and shall maintain the general land use pattern of the area in question.

b. The proposed subdivision or land division shall result in a development pattern which is compatible with surrounding developments and land uses. Measures of compatibility shall consider lot sizes, traffic generation, access, noise and visual features.

c. The proposed subdivision or land division and the resulting development shall not demonstrably adversely affect the City's ability to provide public services, install public improvements or accomplish future annexations. . . . The Plan Commission may also consider whether the City and Town(s) have reached an agreement on necessary public improvements and public services facilities required to serve the development.

d. The proposed subdivision or land division shall comply with one of the following:

i. The proposed subdivision .. . shall represent infilling of vacant land. Infilling is defined as a subdivision .. . which will accommodate the development of vacant land located such that surrounding existing land uses render the land impractical for any but similar uses.

ii. The proposed subdivision .. . shall provide permanent open space lands for use by the general public in conformance with the adopted Parks and Open Space Plan for Dane County, Wisconsin, the City of Madison adopted Parks and Open Space Plan or the City's other adopted Master Plan elements, including the Peripheral Area Development Plan....

13 The Woods make an additional argument, claiming that Madison improperly conditioned approval of their proposed plat on a requirement of public improvements. However, if one of Madison's reasons for rejecting the final plat is adequate, the court need not consider whether the other reasons are valid. See Busse v. City of Madison, 177 Wis. 2d 808, 813, 503 N.W.2d 340 (Ct. App. 1993). Because we have determined that Madison's rejection of the proposed plat based on the change in use of the land was proper, we need not reach the public improvement issue.

Likewise, we note that although the Woods have not challenged the constitutionality of the procedures set forth in chapter 236, the amicus curiae brief of the Wisconsin Realtors Association argues that due process considerations mandate the use of zoning, not platting, to control land use. Because an argument challenging the procedural provisions in chapter 236 was not argued or preserved by the Woods, we do not address it here.