Summary
refusing to apply estoppel against the City enforcing its zoning ordinance against nearly two decades of nonconforming use
Summary of this case from Maiman Real Estate, LLC v. Waupaca Cnty.Opinion
April 14, 1966. —
May 10, 1966.
APPEAL from a judgment of the circuit court for Milwaukee county: HERBERT J. STEFFES, Circuit Judge. Affirmed.
For the appellants there was a brief by Anderson, Bylsma Eisenberg of Madison, and oral argument by Clarence G. Bylsma.
For the respondent there was a brief by John J. Fleming, city attorney, and Maurice L. Markey, assistant city attorney, and oral argument by Mr. Markey.
Action instituted in the county court of Milwaukee county by complaint and warrant against defendant Richard Leavitt. The complaint alleged that Leavitt was occupying the building at 1301 South Twenty-Fourth Street in Milwaukee (1) contrary to restrictions contained in the city zoning ordinances; (2) in violation of an order of the inspector of buildings; and (3) in violation of sec. 16-28, Milwaukee Code of Ordinances, which provides:
"It shall be unlawful to use or permit the use of any building or premises or part thereof hereafter created, erected, altered, changed, or converted wholly or partly in its use until a certificate of occupancy is issued by the inspector of buildings to the effect that the building or premises or the part thereof so created, erected, altered, changed or converted and the proposed use thereof conforms to the applicable provisions of this chapter and the Milwaukee Code of Ordinances."
Since December 29, 1961, Leavitt has occupied this building as tenant of Melmar Realty Company (hereinafter "Melmar"), the owner of the premises. By stipulation of the parties, Melmar was made an additional party defendant. Defendants have also stipulated that Leavitt's occupancy of the building is a nonconforming use under the applicable residential zoning restrictions of the city zoning ordinances.
The building and the land upon which it is situated are in an area of the city restricted to residential use by the general zoning ordinances of Milwaukee, first enacted in 1921. The building itself, which is of concrete block construction, was erected sometime prior to 1912, and was continuously used for nonresidential purposes from 1912 until 1941. From 1941 to 1946, inclusive, the building was not occupied for a period of at least four years. On January 7, 1947, Sidney Perssion acquired the property. Perssion testified that he spent "a couple thousand dollars" on the property and building to make it suitable for commercial companies. Most of this expenditure was incurred in tearing down a wooden building adjacent to the present concrete block structure.
Since 1947, various tenants have continuously occupied the building for nonconforming industrial or commercial uses. During Leavitt's occupancy he has carried on the business of repairing and refinishing vending machines. Before entering into occupancy he applied to the city building inspector for an occupancy permit. Thereupon the building inspector inspected the building and required that certain electrical repair work be done before he would issue the occupancy permit. Levitt had such electrical repair work done at a cost of $225. The certificate of occupancy was then issued to him on December 29, 1961. Leavitt testified he spent $2,500 in preparing the building for his business use. This expenditure included costs of purchasing a compressor, having it installed, and building a spray paint booth.
On June 4, 1964, the building inspector sent Leavitt a letter informing him that the occupancy permit issued to him in 1961 was being revoked and that he must terminate the unlawful use of the premises. Leavitt did not comply with the order and the instant action was commenced by the city on August 11, 1964. During the pendency of the instant action defendants petitioned the Milwaukee board of zoning appeals for a variance. After a hearing the board denied the petition on December 18, 1964. The time for seeking a court review of that denial has expired.
On April 12, 1965, the county court adjudged defendants guilty of violating sec. 16-28, Milwaukee Code of Ordinances, ordered vacation of the premises, and fined defendants one dollar and costs. This, judgment was appealed to the circuit court and affirmed by a judgment of that court (denominated an order) on October 18, 1965. Defendants have appealed therefrom.
We start with the premise that the non-residential uses of the building made between the adoption of the Milwaukee Zoning Ordinance in 1921 and the year 1941 constituted legal nonconforming uses, but that the commercial and industrial uses made subsequent to January 7, 1947 (the date Perssion acquired title) were illegal nonconforming uses. This is because sec. 62.23 (7) (h), Stats., provides:
" Nonconforming uses. The lawful use of a building or premises existing at the time of the adoption or amendment of a zoning ordinance may be continued although such use does not conform with the provisions of the ordinance . . . . If such nonconforming use is discontinued for a period of 12 months, any future use of the building and premises shall conform to the ordinance."
This statute was adopted by the city of Milwaukee on October 15, 1923. See State ex rel. Cities Service Oil Co. v. Board of Appeals (1963), 21 Wis.2d 516, 526, 527, 124 N.W.2d 809. See also secs. 12-3, 15-5, 15-6, Milwaukee Code of Ordinances.
The sole issue raised by defendants on this appeal is whether plaintiff city is estopped from revoking defendant Leavitt's occupancy permit and prosecuting this action. Defendants contend that the city is so estopped on these two grounds: (1) Since 1947 occupancy permits have been continuously granted to tenants for uses violative of the zoning ordinance; and (2) appellant Leavitt expended a considerable sum of money to ready the building for his vending-machine repair and refinishing business in reliance on the validity of the occupancy permit.
This court has often said that zoning ordinances, such as the one sought to be enforced in the instant case, are enacted pursuant to the police power of municipalities.
State ex rel. American Oil Co. v. Bessent (1965), 27 Wis.2d 537, 540, 135 N.W.2d 317; State ex rel. Saveland Park Holding Corp. v. Wieland (1955), 269 Wis. 262, 69 N.W.2d 217; State ex rel. Carter v. Harper (1923), 182 Wis. 148, 154, 155, 196 N.W. 451.
While municipal and other government units are not wholly immune from application of the doctrine of equitable estoppel, this court is firmly committed to the principle that estoppel "will not lie against a municipality so as to bar it from enforcing an ordinance enacted pursuant to the police power." Thus erroneous acts of municipal officers do not afford a basis to estop the municipality from enforcing its ordinances enacted pursuant to the police power. In Anno. 1 A.L.R.2d 338, the rule is well stated:
City of Milwaukee v. Milwaukee County (1965), 27 Wis.2d 53, 66, 133 N.W.2d 393; Milwaukee County v. Badger Chair Furniture Co. (1936), 223 Wis. 118, 128, 269 N.W. 659; Lang v. Cumberland (1962), 18 Wis.2d 157, 163, 118 N.W.2d 114; Anno. Applicability of doctrine of estoppel against government and its governmental agencies, 1 A.L.R.2d 338, 340, 349-359; 31 C.J.S., Estoppel, p. 696, sec. 141; 19 Am. Jur. Estoppel, pp. 820, 821, sec. 168. See Park Bldg. Corp. v. Industrial Comm. (1960), 9 Wis.2d 78, 87, 100 N.W.2d 571, for a general discussion of the application of the doctrine of estoppel against government units.
Milwaukee v. Milwaukee Amusement, Inc. (1964), 22 Wis.2d 240, 253, 125 N.W.2d 625; see also concurring opinion in Schober v. Milwaukee (1963), 18 Wis.2d 591, 597, 598, 119 N.W.2d 316; 31 C.J.S., Estoppel, pp. 700, 701, sec. 141; and Anno. 1 A.L.R.2d 338, 349, 350. For cases generally recognizing that the doctrine of estoppel will not be applied against a governmental unit so as to curtail the exercise of its police power, see McKenna v. State Highway Comm. (1965), 28 Wis.2d 179, 186, 135 N.W.2d 827; State v. Chippewa Cable Co. (1963), 21 Wis.2d 598, 608, 124 N.W.2d 616; Park Bldg. Corp. v. Industrial Comm., supra, footnote 3 at pages 87, 88.
"Ordinarily a municipality is not estopped by a mistake, unauthorized act, laches, dereliction, or wrongful conduct on the part of a public official, and no estoppel can grow out of dealings with municipal public officers of limited authority where such authority has been exceeded."
Supra, footnote 3, at page 351; also see 31 C.J.S., Estoppel, p. 703, sec. 142, 19 Am. Jur., Estoppel, pp. 820, 821, sec. 168.
Defendants stress the fact that Leavitt made substantial expenditures in repair and installations in the building in order to utilize it for the purposes of his business. In State ex rel. Cities Service Oil Co. v. Board of Appeals and Wauwatosa v. Strudell this court specifically considered situations in which a building inspector had erroneously issued a permit, and as a defense to a later action by the city to revoke that permit the aggrieved party raised the defense that because of expenditures in reliance on the building permit they had a "vested right" to the property. In the Cities Service Oil Co. Case the relators claimed expenditures of $3,200 and installation of two 10,000-gallon gasoline storage tanks in reliance on an erroneous building permit. In spite of these expenditures this court affirmed revocation of the permit, stating:
Supra, footnote 1.
(1959), 6 Wis.2d 450, 95 N.W.2d 257.
". . . the building inspector issued the permit in violation of the zoning ordinance because of his unreasonable and erroneous interpretation of its meaning. Sec. 13-5 of the Milwaukee zoning ordinance provides: `The issuance of a [building] permit. . . shall not be deemed or construed to be a permit for, or an approval of, any violation of any of the regulations of this code.' A similar provision of the Milwaukee county zoning ordinance was before this court in Wauwatosa v. Strudell (1959), 6 Wis.2d 450, 455, 95 N.W.2d 257. It was there claimed that an expenditure of $60,000 had been made in reliance on the permit. We held that the issuance of a permit did not authorize a use which violated the zoning ordinance. This holding controls the issue raised by appellants that the expenditure of funds by them precluded the Board of Appeals from revoking the building permit."
Supra, footnote 1, at page 530. Sec. 13-5 is still a part of the Milwaukee Code of Ordinances. For cases in accord that estoppel cannot be invoked on the basis of an illegally issued permit see Anno. Rights of Permittee under illegally issued building permit, 6 A.L.R.2d 960, 965; Anno. Right of municipality or other public authority to enforce zoning or fire limit regulations as affected by its previous conduct in permitting or encouraging violation thereof, 119 A.L.R. 1509, 1512; and 9 McQuillin, Mun. Corp. (3d ed. rev.), pp. 559, 560, sec. 26.214.
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.
By the Court. — Judgment affirmed.