Leake concedes, and we agree, that zoning and other valid land-use ordinances and statutes continue to apply to partitioned land. Thus, for example, while it would be within the court’s power to partition land into parcels too small to meet the minimum lot size required by a zoning ordinance, the ordinance would prohibit any effective use of such lots after the division had been made. Thus, it is unlikely that the court would find such a division “convenient,” or, indeed, that any party litigant would seek such a division.
Leake, 363 S.E.2d at 927-28 (emphasis in original). Similarly, in probate actions in which courts have held that a testamentary devise succeeds regardless of the resulting parcel’s compliance with zoning laws, zoning laws nonetheless apply following the probate court’s judgment. Estate of Hunt, 990 A.2d 544, 547 (Me. 2010) (collecting cases).
¶ 10.
Where a court is asked to divide property in a partition or probate action, zoning regulations will apply to any parcels created by the court’s judgment. As a result, courts have agreed that applicable zoning regulations should be considered in evaluating whether partition by division would be “convenient” or can be accomplished without great prejudice to the parties. Withers v. Jepsen, 246 P.3d 1215, 1217 (Utah App. 2011); Friend, 964 P.2d at 1222; Bellnier v. Bellnier, 158 A.D.2d 947, 948 (N.Y. App. 1990); Leake, 363 S.E.2d at 927-28.¶ 11.
Further, if a trial court becomes aware that a lawsuit was brought to evade the subdivision or zoning law, it may decline to partition the property or vacate an earlier judgment of partition. Mount Laurel Township v. Barbieri, 376 A.2d 541, 545-46 (N.J. Super. 1977) (vacating partition sought in order to evade subdivision control and concluding that non-adversarial proceedings fell outside the exception for court-ordered divisions: “To hold otherwise would make a mockery of the municipal subdivision statute.”); Pratt v. Adams, 40 Cal. Rptr. 505, 508 (Cal. App. 1964) (landowners who commenced a partition action for the purpose of circumventing the subdivision statutes were subject to those statutes because they, not the court, caused the creation of new parcels). No Wisconsin case has construed the exception in Wis. Stat. § 236.45(2)(am) for property “[t]ransfer[red] . . . pursuant to court order[.]” Partition, however, is an equitable action. O’Connell v. O’Connell, 2005 WI App 51, ¶ 8, 279 Wis. 2d 406, 694 N.W.2d 429. Whether to award equitable relief is within the trial court’s discretion. Prince v. Bryant, 87 Wis. 2d 662, 674, 275 N.W.2d 676 (1979). A court might conclude that partition sought for the purpose of evading local subdivision regulations is inequitable and should be denied.¶ 12.
If property owners were able to obtain partition, despite these principles, they might seek a hardship-based zoning variance. Because such a hardship would be self-created, it would not be an appropriate candidate for a variance. A self-created hardship or practical difficulty cannot qualify as a basis for a grant of a variance. State ex rel. Ziervogel v. Washington Cnty. Bd. of Adjustment, 2004 WI 23, ¶ 7, 269 Wis. 2d 549, 676 N.W.2d 401 (reaffirming Snyder v. Waukesha Cnty. Zoning Bd. of Adjustment, 74 Wis. 2d 468, 476, 479, 247 N.W.2d 98 (1976)). The same principle would apply to a subsequent transferee. If a zoning board did grant a variance in such a case, the Department of Natural Resources or other aggrieved parties could challenge the variance in circuit court. State ex rel. Dep’t of Natural Res. v. Walworth Cnty. Bd. of Adjustment, 170 Wis. 2d 406, 412, 489 N.W.2d 631 (Ct. App. 1992).¶ 13.
Your second question involves all conveyances between adjoining property owners. You ask whether a county can require prior review of sales or exchanges of parcels between adjoining landowners and impose a reasonable review fee in order to assure that a proposed transfer or exchange complies with minimum lot size requirements. You advise that the county is normally not informed when adjoining landowners transfer or exchange land in a way that creates substandard lots, and that the county might not discover until years later that a substandard lot has been created.¶ 14.
Wisconsin Stat. § 236.45(2)(am) authorizes municipalities, towns, and counties to enact subdivision ordinances that impose “approving requirements” for divisions of land into less than five parcels. The statute exempts sale or exchange of parcels between owners of adjoining property from such regulation, but only if additional lots are not thereby created and the resulting lots are not reduced below the minimum sizes required by applicable laws or ordinances. Wis. Stat. § 236.45(2)(am)3. Such an ordinance thus could require preapproval of a proposed transfer, division, or exchange between owners of adjoining property if it would create one or more additional lots or if the newly-created lots would fail to comply with applicable zoning regulations.¶ 15.
A county must have the ability to review the proposed sale or exchange in order to determine whether it would come within the exception in Wis. Stat. § 236.45(1)(am)3. In Town of Clearfield v. Cushman, 150 Wis. 2d 10, 20-21, 440 N.W.2d 777 (1989), the Wisconsin Supreme Court held that a town had the authority to require building permits because permitting allowed the town to fulfill its statutory responsibilities: “[W]hen specific duties are intrusted to [towns] and made obligatory on their part, it must be assumed that it was the legislative intent to give them ample authority to carry out those duties.” Cushman, 150 Wis. 2d at 21 (quotations and citations omitted). Wisconsin Stat. § 236.45(2)(am) and (2)(am)3. allow counties to prohibit sales or exchanges between owners of adjoining property that result in lots smaller than the minimum lot size regulations require. That grant of authority is sufficient to permit counties to review proposed sales or exchanges of property to determine whether they would meet those requirements.¶ 16.
You also ask if a fee may be imposed to offset all or part of the cost of such a limited review. A reasonable regulatory fee may be imposed to defray costs incurred in connection with the review process. Rusk v. City of Milwaukee, 2007 WI App 7, ¶¶ 9, 15, 298 Wis. 2d 407, 727 N.W.2d 358 (2006).¶ 17.
I conclude that a county’s minimum lot size zoning ordinance applies to parcels created by a court through division in a partition or probate action, even if such division would be exempted from a municipality’s subdivision authority under Wis. Stat. § 236.45(2)(am)1. I further conclude that a county can enact a subdivision ordinance requiring prior review of sales or exchanges of parcels between adjoining landowners in order to determine whether the division would comply with minimum lot size requirements. The county may impose a reasonable fee therefor. Sincerely,
J.B. VAN HOLLEN
Attorney General
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