Wisconsin’s Smart Growth Law: Recent Changes and Future Expectations

Wisconsin’s Comprehensive Planning Law, often referred to as “Smart Growth,” was originally adopted in 1999-2000.  The law required local governments to adopt a Comprehensive Plan in order to engage in certain land use regulations, such as subdivision regulation and zoning.  To date, most local governments have adopted, or are in the process of adopting, comprehensive plans.

For builders in Wisconsin, of particular interest are the Comprehensive Plan’s required elements focused on Housing, Transportation, Utilities and Community Facilities, Economic Development, and Land-use.  A Plan must compile and address a set of objectives, policies, goals, maps and programs for each element.  The content of these elements potentially affects the future ability and/or timing to develop real estate in the subject community.

The Law required, beginning January 1, 2010, that such land use regulations “shall be consistent with” the local government’s comprehensive plan.  The undefined term “consistent with” created a critical uncertainty.  However, by mid-2010, the Legislature took steps to address that uncertainty:

1.         Defined a comprehensive plan as a “guide” as opposed to a regulation, and clarified that an adopted plan is not a “regulation.”

2.         Defined “consistent with” to mean “furthers or does not contradict the objectives, goals, and policies contained in the comprehensive plan.”

3.         Limits the application of the consistency requirement to the adoption or amendment of ordinances addressing mapping, subdivisions, zoning, and shoreland zoning.

These amendments will affect how local governments apply their new comprehensive plans.  The consistency requirement is very loose, giving substantial discretion to local governments.  It only applies to new or amended ordinances, rather than all land use actions, such as the application of an ordinance to a specific proposed land use, e.g., a zoning variance.  There is the assumption that if the ordinance is consistent with the plan, then all applications of the ordinance must be consistent.  Moreover, the consistency requirement is only subject to a Plan’s objectives, goals, and policies, as opposed to any specific land use recommendations with a plan.

When dealing with any local government on land use issues, whether actions on ordinances or specific land use approvals, a developer/builder should take care to ensure that a local government follows its Plan and documents its analysis with the new consistency requirement.  The recent changes should allow greater flexibility to fit a proposal within the Plan.

For more information, watch this short video:  watch?v=tfjGnoerbOk

Mitchell Olson is an attorney at the Madison, Wisconsin law firm of Axley Brynelson, LLP.  For more information on Wisconsin’s Comprehensive Planning Law, contact Mitchell at 608.283.6724 or molson@axley.com.

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