Aurora deal rests on little-used law

Town of Summit agrees to Oconomowoc's use of special zoning powers

Milwaukee Journal Sentinel, August 29, 2006

By AMY RINARD
arinard@journalsentinel.com

Oconomowoc - The legal deal between the city and Aurora Health Care that sets the stage for a new hospital and a surge of development in western Waukesha County hinges on a little-known, seldom used and rarely successful provision of state law that lets municipalities try to zone land outside their borders.

In most cases in which the special zoning law is invoked, such as a recent one between the Town and City of Cedarburg, it is an adversarial process in which a city tries to force its land-use will on a neighbor.

But towns may block the move simply by boycotting the joint city / town committee required under the law or by refusing to endorse a committee's recommended zoning plan for the area in question.

"Extraterritorial zoning is not used very frequently because towns and cities can't reach agreement, or it's used aggressively by a city," said Curt Witynski, assistant director of the League of Wisconsin Municipalities.

"The town has to be willing to give up some stuff, and the city has to sit down and talk, and, frankly, that doesn't happen that often. No one wants to give up any of their power or authority."

After as long as a three-year freeze on zoning changes in an area, set under the law to allow time for the city and town to reach agreement, if no agreement is reached, the city's zoning attempt has failed, the committee disbands and everything is as it was before, except, perhaps, for a higher level of hostility between city and town governments.

In this respect, the settlement this month of a 5-year-old lawsuit filed by Aurora against Oconomowoc might be unique because the Town of Summit was made a party to the deal and has agreed to participate in the extraterritorial zoning.

That makes the outcome of the process - the rezoning of 55 acres in Summit so Aurora can build a hospital in Pabst Farms - a foregone conclusion. The town has previously endorsed the hospital plan.

All other provisions of the legal settlement, including construction by Pabst Farms developers of a joint city / town fire station and dismissal of the Aurora lawsuit, are contingent on the successful rezoning of the Summit site.

"We haven't seen many of those," Richard Stadelman, executive director of the Wisconsin Towns Association, said of the complicated settlement.

The state law granting cities and villages the power to attempt to zone land 3 miles outside their boundaries was enacted in the 1950s at the height of the home-building boom after World War II.

At the time, officials in many Wisconsin municipalities were thinking of expanding their borders by annexing land and were concerned about ensuring that development on that land be consistent with city plans.

Even in fast-growing Waukesha County, where disputes between towns and their municipal neighbors are common, it's rare for a municipality to initiate extraterritorial zoning, said Dale Shaver, county director of parks and land use.

"It's not often that it happens, and when it does happen, it often doesn't succeed," he said.

Aurora sued Oconomowoc in 2001 after the Common Council rezoned its original construction site so that a hospital could not be built there. The health care provider then turned its attention to another nearby site, also in Pabst Farms, in Summit.

Despite approval by the Town Board, the Waukesha County Board blocked the hospital plan when it rejected needed land use and zoning changes for the site.

Shaver confirmed that the extraterritorial zoning authority granted to cities under state law is so powerful that counties play no part in the process. That means the County Board will have no say this time in the construction of an Aurora hospital in western Waukesha County.

"From a general land-use perspective, the city executing its extraterritorial zoning authority removes the county from the process," Shaver said.