A.
Jurisdiction. Jurisdiction of these regulations shall include all
lands and waters within the corporate limits of the City and those
lands within the extraterritorial jurisdiction of the City as established
in §§ 62.23(2), 236.02 and 236.10, Wis. Stats. The
provisions of this chapter which apply to divisions of tracts of land
into less than five parcels shall not apply to:[1]
(1)
Transfers of interest in land by will or pursuant to court order.
(2)
Leases for a term not to exceed 10 years, mortgages or easements.
(3)
Sale or exchange of parcels of land between owners of adjoining property if additional lots are not thereby created and the lots resulting are not reduced below the minimum size required by these regulations, Chapter 400, Zoning, of the City Code or other applicable laws or ordinances.
(4)
Cemetery plats made under § 157.07, Wis. Stats.
(5)
Assessors' plats made under § 70.27, Wis. Stats., but such
Assessors' plats shall comply with §§ 236.15(1)(ag)
to (g) and 236.20(1) and (2)(a) to (e), Wis. Stats.
(6)
Sale or exchange of parcels of land between owners of adjoining property if additional lots are not thereby created and the lots resulting are not reduced below the minimum size required by these regulations, Chapter 400, Zoning, of the City Code or other applicable laws or ordinances when accomplished by a certified survey map, when not prohibited by other laws or ordinances, including but not limited to § 236.34(1m)(e), Wis. Stats. The certified survey map pursuant to this subsection may be executed by the Public Works and Development Director or designee without the necessity of Plan Commission or Common Council review.
B.
Compliance. No person shall divide any land located within the jurisdictional
limits of these regulations so that such division results in a subdivision,
minor land division or replat as defined herein; no such subdivision,
minor land division or replat shall be entitled to recording; and
no street shall be laid out or improvements made to land without compliance
with all requirements of this chapter and the following documents:
(1)
Provisions of Ch. 236, Wis. Stats.
(2)
Rules of the Wisconsin Department of Safety and Professional Services,
as contained in Ch. SPS 383, Wis. Adm. Code, regulating lot size and
lot elevation if the land to be subdivided is not served by a public
sewer and provisions for such service have not been made.
(3)
Rules of the Wisconsin Department of Transportation, as contained
in Ch. Trans 233, Wis. Adm. Code, relating to safety of access and
the preservation of the public interest and investment in the highway
system if the land owned or controlled by the subdivider abuts on
a state trunk highway or connecting street.
(4)
Rules of the Wisconsin Department of Natural Resources, as contained
in Chs. NR 116, 117 and 118 , Wis. Adm. Code, setting water quality
standards, preventing and abating pollution and regulating development
within floodland, wetland and shoreland areas.
(5)
Approved Comprehensive Plan or Comprehensive Plan components of the
City.
A.
Streets, highways and drainageways. Whenever a tract of land to be subdivided within the jurisdiction of this chapter encompasses all or any part of an arterial or collector street, drainageway, other public way or public access to navigable lakes or streams which has been designated in the adopted regional, county or City comprehensive plan or adopted comprehensive plan components or on the Official Street System Map, such public way shall be made a part of the plat or certified survey map and dedicated or reserved by the subdivider in the locations and dimensions indicated on such plan, comprehensive plan component or map and as set forth in §§ 392-28 through 392-34 of this chapter.
B.
Schools, parks, environmental corridors and other open spaces. Whenever a tract of land to be divided within the City encompasses all or part of a school site, park site, environmental corridor or other open space, other than streets, highways, drainageways, other public ways or public access to navigable lakes or streams, which has been designated on an adopted regional, county or City comprehensive plan or adopted comprehensive plan component of the City, such school site, park site, environmental corridor or other open space shall be made a part of the plat or certified survey map and dedicated by the subdivider in the locations and dimensions indicated on such plan and in accordance with the procedures in § 392-34 of this chapter.
[Amended 9-17-2009 by Ord. No. 1303]
C.
Floodlands and shorelands. Whenever floodlands and shorelands are
contained in a tract of land proposed to be divided into lots, building
sites or parcels of less than five acres in area, all floodlands and
those shorelands designated for park, recreation, environmental corridor
or other open space land use in a comprehensive plan or a component
of such a comprehensive plan prepared by state, regional, county or
municipal agencies and adopted or acknowledged by the City and lying
within the below-specified distances from the high-water elevation
shall, at the discretion of the Common Council following recommendation
by the Plan Commission, be dedicated to the public by the subdivider.
The lot area should generally not include such shorelands and floodlands.
[Amended 9-17-2009 by Ord. No. 1303]
D.
Proportionate payment in lieu of dedication.
(1)
Payment in lieu of park dedication (active and passive).
(a)
If the Common Council has determined that such dedication is
not feasible or compatible with development of the community, the
developer shall in lieu thereof pay to the City a fee, as from time
to time established by resolution of Common Council, to defray the
impact the additional development and residences will have on City
parks and the preserving of the City's agricultural, natural and cultural
resources within the City's park system.
(b)
Such fees shall be placed in two nonlapsing funds (one for active
recreational park system uses and one for passive recreational uses)
and shall be used exclusively for funding the acquisition or initial
improvement of land for public parks as per 2007 Wisconsin Act 44.
The improvement of land for public parks means grading, landscaping,
installation of utilities, construction of sidewalks, installation
of playground equipment, and construction or installation of restroom
facilities on land intended for public park purposes. The City of
Muskego Parks and Conservation Plan distinguishes land for public
park purposes as active (parks) and passive (conservation). Such fees
shall be applied to residential development on the basis of total
number of newly created residential dwelling units, newly created
lots, and per acre of developable land. Such fees shall apply to units/lots/acres
of developable land created by subdivision platting, condominium platting,
certified survey map or planned unit development.
(2)
Where the development results in the creation of not more than one
additional unit or parcel of land, payment shall be required only
for the additional unit.
(3)
If the parent parcel on a certified survey map, with an existing
dwelling upon it, remains unchanged (meaning no construction or grading),
the parent parcel will not be assessed the per-acre dedication fee
until the time of further division. (Note: Parent parcel would be
one of the new parcels created by a land division that has an original
residence upon it.)
(4)
Payment shall be in a lump sum and shall be paid prior to City execution
of the final plat, final condominium plat, certified survey map, or
planned development and before the City allows the recording of the
documents stated.
(5)
Where a lot or parcel for which payment has once been made is further
divided, payment shall be required for the additional lots or parcels
created.
(6)
For the purpose of this chapter, the definition of "nondevelopable
land" for the per-acre dedication fee shall constitute wetlands and/or
preservation/conservation easement areas and shall not be charged
the per-acre dedication fee.
(7)
The Parks and Conservation Committee will be the governing body for
determinations of dedication fee "in lieu of" situations, where a
developer may make land dedications in return for not having to pay
dedication fees.
Before final approval of any plat or certified survey map located
within the jurisdictional limits of this chapter, the subdivider shall
install street, utility and other public improvements as provided
below. In addition:
A.
Contract approvals. Contracts and contract specifications for the
construction of street and utility improvements on dedicated street
rights-of-way, as well as the contractors and subcontractors who are
to be engaged in the construction of street and utility improvements
on dedicated street rights-of-way, shall be subject to review and
approval of the City Engineer and approval of the City.
B.
Governmental units. Governmental units to which these bonds and contract
provisions apply may file, in lieu of such contract and bond, a letter
from officers authorized to act on their behalf agreeing to comply
with the provisions of this section.
C.
Survey monuments. Before final approval of any plat within the corporate
limits of the City or its extraterritorial jurisdictional limits,
the subdivider shall install survey monuments placed in accordance
with § 236.15, Wis. Stats., and as may be required by the
City Engineer.
D.
Plats outside the corporate limits. Before final approval by the
City of any plat or certified survey map located outside the corporate
limits of the City, but within the plat approval jurisdiction of the
City, the subdivider shall give evidence that he has complied with
all street and utility improvements of the town in which the land
being platted is located.
E.
Advance reimbursement. The subdivider shall pay the City in advance
of signing the subdivider's agreement for all fees, expenses and disbursements
which are incurred by the City and reimburse the City, without limitation
by reason of enumeration, for design, engineering, preparation, checking
and review of designs, plans and specifications; supervision and inspection
to ensure that construction is in compliance with applicable plans,
specifications, regulations and ordinances; and legal, administrative
and fiscal work undertaken to assure and implement such compliance.
A.
Where in the judgment of the City Plan Commission it would be inappropriate to apply literally the provisions of § 392-28 and where, in the judgment of the Common Council, it would be inappropriate to apply literally the provisions of § 392-35 of this chapter because the proposed subdivision is located outside the corporate limits of the City or because exceptional or undue hardship would result, the Plan Commission or Council may grant a variance from any requirement to the extent deemed just and proper.
B.
No variance to the provisions of this chapter shall be granted unless
the Plan Commission finds all the following facts and conditions exist
and so indicates in the minutes of its proceedings:
(1)
Exceptional circumstances. There are exceptional, extraordinary or
unusual circumstances or conditions where a literal enforcement of
the requirements of this chapter would result in severe hardship.
Such hardships should not apply generally to other properties or be
of such a recurrent nature as to suggest that this chapter should
be changed.
(2)
Preservation of property rights. Such variance is necessary for preservation
and enjoyment of substantial property rights possessed by other properties
in the same vicinity.
(3)
Absence of detriment. The variance will not create substantial detriment
to adjacent property and will not materially impair or be contrary
to the purpose and spirit of this chapter or the public interest.
C.
A minimum of five affirmative Plan Commission member votes shall
be required to grant any variance to this chapter.
D.
The Common Council may waive the placing of monuments required under
§ 236.15(1)(b), (c) and (d), Wis. Stats., for a reasonable
time, not to exceed one year, on condition that the subdivider execute
a surety bond to insure the placing of such monuments within the required
time limits established by statute. Additional time may be granted
upon show of cause.
E.
When such relief is granted, it shall be without detriment to the
public good and without impairing the intent and purpose of this chapter
or the desirable general development of the City in accordance with
the adopted regional, county or City comprehensive plans or adopted
plan components. The reasons shall be entered in the Plan Commission
minutes.
No land shall be subdivided as a plat or certified survey map
which is determined to be unsuitable for such use by the Plan Commission,
upon the recommendation of the City Engineer or any other agency as
determined by the Plan Commission, for reason of flooding, inadequate
drainage, adverse soil or rock formations with severe limitations
for development, severe erosion potential, unfavorable topography,
inadequate water supply or sewage disposal capabilities or any other
feature likely to be harmful to the health, safety or welfare of future
residents of the proposed subdivision or the City. In addition:
A.
Floodlands.
(1)
No lot served by public sanitary sewerage facilities shall have less
than its required lot area, as specified in the zoning district regulations,
below the elevation of the one-hundred-year recurrence interval flood,
or, where such data is not available, the elevation shall be determined
by a registered professional engineer and the sealed documents shall
be approved by the City Engineer.
(2)
For planned development projects served by public sanitary sewerage
facilities, no lot shall have less than the average lot area, as specified
by the Plan Commission, below the elevation of the one-hundred-year
recurrence interval flood, or, where such data is not available, the
elevation shall be determined by a registered professional engineer
and the sealed documents shall be approved by the City Engineer.
(3)
No lot of one acre or less in area served by an on-site sanitary
sewage disposal (septic tank or mound) system shall include floodlands.
All lots more than one acre in area served by a septic tank system
or mound system shall contain not less than 40,000 square feet of
land which is at an elevation above the elevation of the one-hundred-year
recurrence interval flood, or, where such data is not available, the
elevation shall be determined by a registered professional engineer
and the sealed documents shall be approved by the City Engineer.
B.
Shorelands. Shorelands shall not be divided into building sites which
are to be served by soil absorption waste disposal systems.
C.
Fill materials.
(1)
Lands made, altered or filled with non-earth materials within the
last 10 years shall not be divided into building sites which are to
be served by soil absorption waste disposal systems.
(2)
Lands made, altered or filled with non-earth materials within the
preceding 20 years shall not be divided into building sites which
are to be served by soil absorption waste disposal systems except
where soil tests prepared by a professional soil scientist clearly
show the soils are suited to such use. Soil reports shall include,
but need not be limited to, an evaluation of soil permeability, depth
to groundwater, depth to bedrock, soil bearing capacity, and soil
compaction. To accomplish this purpose, a minimum of one test per
acre shall be made initially. The City does not guarantee, warrant
or represent that the required samples represent conditions on an
entire property and thereby asserts that there is no liability on
the part of the Common Council, its agencies or employees for sanitary
problems or structural damages that may occur as a result of reliance
upon such tests.
D.
Steep slopes. Each lot proposed to be served by an on-site soil absorption
sewage disposal system shall have 50% of its minimum required lot
area or 20,000 square feet, whichever is less, in slopes of less than
12%.
E.
Shallow bedrock. Lands having bedrock within six feet of the natural
undisturbed surface shall not be divided into building sites to be
served by soil absorption sewage disposal systems.
F.
Shallow groundwater table. Lands having groundwater within six feet
of the natural undisturbed surface shall not be divided into building
sites to be served by soil absorption sewage disposal systems.
G.
Percolation rates. Soils having a percolation rate slower than 60
minutes per inch shall not be divided into building sites to be served
by soil absorption sewage disposal systems.
H.
Plan Commission. The Plan Commission, in applying the provisions
of this section, shall in writing recite the particular facts upon
which it bases its conclusion that the land is unsuitable for residential
use and afford the subdivider an opportunity to present evidence in
rebuttal to such finding of unsuitability, if he so desires. Thereafter,
the Commission may affirm, modify or withdraw its determination of
unsuitability.
Heavily wooded areas should be preserved insofar as possible
and by application of reservation and dedication provisions of this
chapter and other applicable ordinances. The subdivider shall not
remove trees in anticipation of a land division until final subdivision
approval is received. Each tree exceeding three inches in diameter
at 4.5 feet above the ground that is removed in preparation for development
shall be replaced on a one-to-one ratio. Each tree of 10 inches to
20 inches in diameter at 4.5 feet above the ground that is removed
in preparation for development shall be replaced on a one-to-four
ratio. Each tree of 20 to 30 inches in diameter at 4.5 feet above
the ground that is removed in preparation for development shall be
replaced on a one-to-eight ratio. Each tree of 30 plus inches in diameter
at 4.5 feet above the ground that is removed in preparation for development
shall be replaced on a one-to-twelve ratio. A tree survey may be required
to adequately make these determinations. Replacement trees shall be
of species approved by the City Forester and measure between 1.5 inches
and 2.5 inches in trunk diameter at one foot above ground. If complete
tree mitigation is not feasible within the subject subdivision development
the City may require tree plantings within parks, conservation lands,
street rights-of-way, or other publicly owned lands or require payment
to a land management fund at a rate commensurate with planting said
mitigation trees.
All land divisions subject to this chapter shall obtain a certificate of adequate public facilities or a waiver of certificate as found in Chapter 400, Zoning, of the City Code.
