Summary
upholding trial court's order that property owner remove garage constructed in violation of code but pursuant to building permit
Summary of this case from Lake Bluff Housing v. South MilwaukeeOpinion
January 31, 1967. —
February 28, 1967.
APPEAL from a judgment of the circuit court for Fond du Lac county: JEROLD E. MURPHY, Circuit Judge. Affirmed.
For the appellant there was a brief by St. Peter Hauer, attorneys, and John William Calhoun of counsel, all of Fond du Lac, and oral argument by Mr. Calhoun.
For the respondents there was a brief by McLeod Donohue of Fond du Lac, and oral argument by Joseph D. Donohue.
The judgment appealed from requires the defendant to remove his garage to comply with the five-foot side-yard setback requirement of sec. IV, B, sub. 7, of the zoning ordinance of the town of Taycheedah, Fond du Lac county.
Mr. and Mrs. John Jelinski, the plaintiffs, live in a year-around home on Linden Beach, a residential development in the town of Taycheedah along the southeast shore of Lake Winnebago. The shore of Lake Winnebago forms the western boundary of the Linden Beach lots. The Jelinskis' lot is about 230 feet long east to west and 60 feet wide, with 60 feet of frontage on the lake. Immediately to the south of the Jelinskis lives next door neighbor, the defendant, Maurice Eggers. His lot is substantially the same size and shape as that of the Jelinskis.
On July 19, 1961, the town of Taycheedah adopted a comprehensive zoning ordinance which became effective on August 24, 1961. The ordinance provides that accessory buildings not part of a main building shall not be more than 12-feet high nor nearer than five feet to any lot line.
Sometime late in July of 1962, Mr. Eggers placed stakes in the shape of a proposed garage on his land; one side of the staked outline ran about two feet from the Jelinskis' south lot line. On about August 3, 1962, Mr. Jelinski talked to town building inspector Schneider about the stakes he saw on Eggers' lot and was informed of the five-foot side-yard requirement. Mr. Jelinski told Schneider that he and his wife were leaving for a vacation and requested that Eggers be made to comply with the five-foot setback requirement.
After the Jelinskis had departed on vacation, on August 6, 1962, Eggers telephoned building inspector Schneider inquiring about a building permit for his proposed garage. Schneider informed Eggers of the five-foot setback requirement. Eggers stated that he wished to build within two feet of the Jelinski lot. Schneider stated that he could not issue a permit in violation of the ordinance unless a variance were authorized by the board of appeals. Schneider suggested that Eggers contact Mr. Querin Loehr, chairman of the board of appeals. That evening Eggers, together with his neighbor Halfman, a member of the board of appeals, talked to Loehr regarding a permit to build a garage. Loehr told the men that he, Loehr, could not issue a building permit and that Eggers would have to obtain a permit from the building inspector who knew all the regulations. Halfman and Eggers then went to Schneider and informed him that Loehr had no objection to issuing a permit to build within two feet of Eggers' lot line. Schneider issued the building permit allowing only a two-foot setback. In the course of these conversations Eggers was informed that a month or two would be required before a variance allowing him to build within two feet could be processed before the board of appeals.
Eggers began constructing his garage within two feet of the lot line. When the Jelinskis returned from their vacation about August 15, 1962, they discovered that the garage was substantially completed.
On September 10, 1962, the Jelinskis instituted the instant action under sec. 62.23 (8), Stats., to have Eggers remove his garage so as to comply with the zoning ordinance. In October of 1962, Eggers petitioned the town board of appeals for a variance both as to the height of the building, which was 12 feet 8 inches instead of the lawful 12 feet, and a side-yard variance from five feet to two feet. The board of appeals granted the height variance but denied the side-yard variance. Eggers did not petition for a writ of certiorari to review the decision of the board of appeals. Trial in the instant action was had to the circuit court, the Honorable RUSSELL E. HANSON, presiding, on January 29, 1963. Judge HANSON died before judgment was entered. The parties stipulated that any judge assigned the case could determine it solely upon the record without further testimony or argument. On April 23, 1966, Judge JEROLD E. MURPHY entered a judgment in the form of a mandatory injunction ordering Eggers to remove his garage to comply with the side-yard requirement of the zoning ordinance. Eggers has appealed from the judgment.
The statute and ordinance involved are:
Sec. 62.23 (8) "OTHER MEASURES OF ENFORCEMENT AND REMEDIES; PENALTY. Any building erected, constructed or reconstructed in violation of this section or regulations adopted pursuant thereto shall be deemed an unlawful structure, and the building inspector or city attorney or other official designated by the council may bring action to enjoin such erection, construction or reconstruction, or cause such structure to be vacated or removed. It shall be unlawful to erect, construct or reconstruct any building or structure in violation of this' section or regulations adopted pursuant thereto. . . . In case any building or structure is or is proposed to be erected, constructed or reconstructed, or any land is or is proposed to be used in violation of this section or regulations adopted pursuant thereto, the building inspector or the city attorney or any adjacent or neighboring property owner who would be specially damaged by such violation, may, in addition to other remedies provided by law, institute injunction, mandamus, abatement or any other appropriate action or proceeding to prevent or enjoin or abate or remove such unlawful erection, construction or reconstruction."
Town of Taycheedah Zoning Ordinance, Sec. IV, B, 7. "Accessory buildings which are not a part of the main building shall not occupy more than 30 per cent of the area of the required rear yard, shall not be more than 12 feet high and shall not be nearer than 5 feet to any lot line. Where an accessory building is a part of the main building or is substantially attached thereto, the side yard and rear yard regulations applicable to the main building shall be applied to the accessory building."
The issues are as follows:
1. Have the plaintiffs sustained special damages' by reason of the defendant's violation of the zoning ordinance entitling them to relief under sec. 62.23 (8), Stats.?
2. May the plaintiffs bring an action under sec. 62.23 (8), Stats., even though all administrative remedies may not have been exhausted by the plaintiffs or the town ?
3. Does the defendant's construction in compliance with a building permit preclude the plaintiffs' action to enforce the zoning ordinance ?
4. Does the town zoning ordinance deny the defendant equal protection of the. laws. because it allows the preservation of prior existing nonconforming uses ?
Sec. 62.23 (8), Stats., provides that ". . . any adjacent or neighboring property owner who would be specially damaged by such [zoning ordinance] violation, may, in addition to other remedies provided by law, institute injunction, mandamus, abatement or any other appropriate action or proceeding to prevent or enjoin or abate or remove such unlawful erection, construction or reconstruction."
At the trial the plaintiffs, Mr. and Mrs. Jelinski, testified that their house was 10 feet from the property line and that defendant Eggers' garage was built two feet from the property line in violation of the setback requirement of the zoning ordinance, that it cut off their air and light and partially blocked their view of the land and to the south, increased the possibility of a fire hazard, and depreciated the value of their property. The trial court found that the defendant's garage denied the plaintiffs the full use of light and air and blocked their view to the south.
The defendant contends that the evidence is not sufficient to show special damage so as to entitle plaintiffs to relief under sec. 62.23 (8), Stats.
This court has recognized the right of a landowner "to prevent irreparable injury to his property when the injury threatened is special and different from that of the general public." Such property right can be protected by injunction when threatened by violation of a zoning ordinance and it is not necessary for the party seeking relief to show that the action violating the ordinance is a nuisance per se.
Holzbauer v. Ritter (1924), 184 Wis. 35, 39, 198 N.W. 852.
Ibid.
In Ramaker v. Cities Service Oil Co. (1965), 27 Wis.2d 143, 152-154, 133 N.W.2d 789, we held that neighbors whose enjoyment of their property was decreased by the noise and traffic caused by the defendant's. use of its property in violation of a zoning ordinance were specially damaged within the meaning of sec. 62.23 (7) (f) 2, Stats. The language of sec. 62.23 (7) (f) 2 pertinent to "specially damaged" question is identical to that in sec. 62.23 (8). In Ramaker it is stated, at page 152: "There are also esthetic considerations which are very important to respondents in the enjoyment of their homes."
We conclude that the finding that the plaintiffs were denied the full use of the light and air and view from their home is amply supported by the evidence and that they have been specially damaged, as distinguished from general or public damage, so as to entitle them to relief under sec. 62.23 (8), Stats.
The defendant contends that the plaintiffs have not exhausted their administrative remedies' in that they have not sought enforcement of the ordinance through the town board or by appeal to the board of appeals provided for in the ordinance.
This matter did come before the board of appeals upon the application of the defendant. The board did not grant a variance of the ordinance insofar as the five-foot setback is concerned, although it did grant a variance as to the 12-foot height requirement. It can hardly be said that the plaintiffs were "aggrieved" by the action of the board so as to require them to seek certiorari review. If anyone, it was the defendant who failed to pursue his administrative remedies.
In any event, by the terms of the statute itself, the plaintiffs were not required to pursue administrative remedies through the board of appeals. Sec. 62.23 (8), Stats., provides: ". . . in addition to other remedies provided by law [adjacent or neighboring property owners may] institute injunction, mandamus, abatement or any other appropriate action . . . ."
In Diehl v. Dunn (1961), 13 Wis.2d 280, 284, 108 N.W.2d 519, we stated:
"The defendants contend that the plaintiffs as aggrieved parties should have been required to take the matter before the board of appeals provided for in the zoning ordinance before seeking the trial court's aid. This contention bears no merit. The statute recognizes the right of a private citizen who would be specially damaged to apply to the court directly under sec. 62.23 (8), Stats. 1955, supra."
The defendant also argues that the doctrine of estoppel should be invoked to prohibit compliance with the ordinance because of the issuance of the building permit, his reliance on it, the expenditure of funds in construction of the garage, and cost of removal. He, in effect, claims that he is an innocent party, obtained the building permit in good faith and now has a vested right to insist upon the validity of the permit.
Aside from the fact that the trial court found that the defendant Eggers knew of the provisions of the ordinance and did not act in good faith in obtaining the building permit, this court has held a building permit grants no vested rights to unlawful use. Wauwatosa v. Strudell (1959), 6 Wis.2d 450, 95 N.W.2d 257; State ex rel. Cities Service Oil Co. v. Board of Appeals (1963), 21 Wis.2d 516, 530, 124 N.W.2d 809; Ramaker v. Cities Service Oil Co., supra, at page 149; Milwaukee v. Leavitt (1966), 31 Wis.2d 72, 142 N.W.2d 169. In the Leavitt Case we stated, at pages 78, 79:
"Zoning ordinances are enacted for the benefit and welfare of the citizens of a municipality. Issuance of an occupancy or building permit which violates such an ordinance not only is illegal per se, but is injurious to the interests of property owners and residents of the neighborhood adversely affected by the violation. Thus when the city acts to revoke such an illegal permit it is exercising its police power to enforce the zoning ordinance for the protection of all citizens who are being injured by the violation, and not to protect some proprietary interest of the city. These citizens have a right to rely upon city officials not having acted in violation of the ordinance, and, when such officials do so act, their acts should not afford a basis for estopping the city from later enforcing the ordinance. This is true regardless of whether or not the holder of the illegal permit has incurred expenditures in reliance thereon."
Certainly estoppel should not apply to an adjacent property owner seeking enforcement of the ordinance who was in no way responsible for the issuance of the building permit.
The defendant complains that he will be denied equal protection of the laws if he is made to conform with the zoning ordinance because 23 of the 28 developed lots in Linden Beach have buildings nearer than five feet to lot lines. This argument must fail because all the other lots involve prior existing nonconforming uses. The defendant's garage was constructed after the effective date the ordinance. There is no denial of equal protection if all future building is required to conform to the requirements of the zoning ordinance. The ordinance is entitled to every presumption in favor of its validity as a proper exercise of police power until facts to the contrary are proved beyond a reasonable doubt. The evidence here in no way meets this burden. See State ex rel. Carter v. Harper (1923), 182 Wis. 148, 196 N.W. 451; Highway 100 Auto Wreckers v. West Allis (1959), 6 Wis.2d 637, 96 N.W.2d 85, 97 N.W.2d 423; and Milwaukee v. Hoffmann (1965), 29 Wis.2d 193, 138 N.W.2d 223. If the defendant's argument was accepted very few zoning ordinances could be valid during their initial years of operation.
By the Court. — Judgment affirmed and remanded to the trial court to fix a reasonable time to comply with the judgment.