Summary
affirming circuit court's determination that property owner had acquired protected vested rights by virtue of expenditures for plans and for financing made in reliance on existing ordinance and before attempted change in ordinance
Summary of this case from Town of Cross Plains v. KornerOpinion
June 7, 1950 —
June 30, 1950.
APPEAL from a judgment of the circuit court for Milwaukee county: AUGUST E. BRAUN, Circuit Judge. Affirmed.
Bernard F. Mathiowetz of Milwaukee, for the appellant.
For the respondent there was a brief by Wolfe, O'Leary Kenney and Whyte, Hirschboeck Minahan, all of Milwaukee, and oral argument by H. O. Wolfe and Roger C. Minahan.
The circuit court adjudged that a peremptory writ of mandamus issue directing the defendant in his official capacity as building inspector of the village of Whitefish Bay to issue twenty building permits to the petitioner. From such judgment and writ the defendant appeals.
Between 1945 and January, 1950, the relator acquired title to a twenty-four-acre unplatted tract of land in the village of Whitefish Bay at a total cost of $125,000.
From 1928 to 1931 this property was zoned by the village as an industrial area. In 1931 it was zoned for apartment use. Immediately to the north of this tract there is the village incinerator and apartments. On the east the property abuts on Santa Monica boulevard, and on the south on East Hampton avenue. At the intersection of Santa Monica and East Hampton one piece of property is zoned and used for commercial purposes. Through the rectangle from which this property is carved, running from southeast to northwest, is the North Western railroad track. Along the southwest side of the right way (partially within the village and partially within the adjoining township) lie industrial and heavy-commercial properties.
Relator bought the land for the purpose of building a garden-apartment project. His plans called for a group of two-story apartments abutting upon streets which he proposed to lay and dedicate to public use. From time to time as his plans progressed relator discussed his progress informally with the village board, and exhibited to it illustrations of his plans for apartments containing three hundred twenty living units.
In February, 1950, the village board adopted new and rather burdensome garage requirements for apartments to be constructed in the future. Relator changed his plans to conform to these requirements.
At a meeting of the village board on March 6, 1950, relator learned of a proposal to rezone the tract to restrict it to single-family dwellings. The proposed ordinance was contained in a resolution adopted by the board at that meeting.
Respondent thereupon, on March 9, 1950, filed applications with appellant, together with complete plans and specifications which had been approved by the Wisconsin industrial commission as conforming to the state code. He also tendered his check for the required fees, which was accepted.
On March 15, 1950, appellant denied the applications upon the following grounds:
"1. Failure to comply with section 9.12(5) of the village code which provides that `no permit shall be issued for any building intended to be used as a human habitation . . . unless there is available in an abutting street a main sewer and a water main to which the plans and specifications for such building provides a connection. This provision may be waived but only by resolution of the village board.'
"2. That at the time the applications were filed the village board had under consideration a proposal to rezone the tract involved to restrict its use to single-family homes.
"3. That respondent's proposed development was inconsistent with the general scheme of the village's zoning restrictions."
The alternative writ of mandamus issued March 17, 1950.
On April 3, 1950, the village board adopted an ordinance rezoning the area for single residences only.
On April 26, 1950, the peremptory writ issued.
The trial court found that in addition to the cost of the land the applicant had expended a total of $59,116 upon the project in contemplation of building:
"1. Cost of surveys for the project ......... $ 1,000 "2. Federal housing administration inspection fee on application for insured FHA section 608 mortgage loan ........... 4,116 "3. Value of detailed plans, land planning, architectural services, and preparation specifications .......................... 25,000 "4. Loss on warehouse constructed adjacent to site for use and useful only in construction of the project ............. 10,000 "5. Maintenance of trained building organization for construction of the project. 19,000 ------- $59,116"In addition to finding that the respondent made large investments which would result in loss to him if the permits were withheld, the court found that the respondent acquired the land in reliance upon the fact that the zoning ordinance which had been in effect for almost twenty years permitted apartments; that there has been no material change in the neighborhood which would justify any reclassification; that the project compared favorably with the housing project immediately north of the proposed site; and that respondent proposed to build and dedicate to the village streets within the project in which he proposed to install water mains and sewer mains, all to conform to the standards of the village, and all to connect with its existing streets, sewer and water mains upon acceptance of the proposed plat.
The trial court filed the following conclusions of law:
1. That the plans and specifications for the proposed buildings conform with the requirements of sec. 9.12(5) of the building code of the village of Whitefish Bay.
2. That the applications for building permits and the plans and specifications filed in conjunction therewith call for the erection of apartment buildings which would be valid and lawful under the zoning laws as they existed on March 9, 1950, and that the same are in conformity with all of the applicable building codes and requirements of the village of Whitefish Bay and the state of Wisconsin on the day of the applications therefor.
3. That the petitioner acquired protected vested rights and interests by virtue of the expenditures made by him in the preparation of plans and specifications and financing in reliance upon the existing zoning laws; that the proposed ordinance would cause petitioner great financial loss; that such ordinance may not be construed to prevent construction of petitioner's proposed buildings since substantial rights had vested in him prior to the enactment of the ordinance.
4. That the village board is estopped from adopting said ordinance and making it applicable to petitioner and the tract in question because it had knowledge of petitioner's plans and preparations prior to the filing of his applications for building permits.
5. That the action of the building inspector in refusing the requested permits was arbitrary, unlawful, and constituted an abuse of authority; that he be forthwith required to issue such permits.
Three questions are raised upon this appeal:
1. Did the trial court err in overruling appellant's demurrer ore tenus?
2. Did the trial court err in adjudging that relator's plans are in compliance with sec. 9.12(5) of the village code?
3. Did the trial court err in adjudging that the relator had a vested right as against the rezoning ordinance?
Upon the hearing of the return to the writ the appellant entered a demurrer ore tenus.
The petition of the relator as originally drawn failed to set out that the ordinance of the village of Whitefish Bay imposed a duty upon the building inspector to issue such permits. The answer did set out the ordinance, but appellant relies upon Wisconsin Lakes I. C. Co. v. Pike North Lakes I. Co. (1902), 115 Wis. 377, 91 N.W. 988, in contending that allegations contained in the return will not aid in remedying the defect since the sole question upon demurrer is the sufficiency of the petition.
The trial court permitted the petitioner to amend by adding allegations which sufficiently set forth the ordinance, and the hearing proceeded upon the merits. This was clearly within the discretion of the trial court. The objection raised by the appellant was purely technical; the amendment corrected the technical error, and the matter stood at issue. All of the allegations omitted from the petition were well known to the appellant and his counsel, and the return then on file was the complete answer, — that which appellant wished to make to the amended petition as well as to the original.
The right of the trial court to permit the amendment was clear under the provisions of sec. 269.44, Stats.
"It is well settled that when a trial court keeps within the limitations imposed by the statute as to allowing amendments, the power is very broad, resting in sound discretion, and the decision will not be disturbed except for a clear abuse of judicial power." Turner Mfg. Co. v. Gmeinder (1924), 183 Wis. 664, 669, 198 N.W. 611.
It is contended by appellant that the relator's plans do not conform to the requirements of the ordinance as it existed at the time the applications were filed. The relator contends, first, that since all of the property belonged to but one owner, water mains in one abutting street and sewer mains on the opposite block were sufficient. We have considerable doubt upon this point, and express no opinion because in this case it is not necessary. The relator's plans call for a platting of the area so that such structures when erected will abut upon streets to be laid by the relator and dedicated to the public. The trial court has found that when completed the streets and sewers will conform to the requirements of the village. The court's finding that the plans conform to the requirements of the ordinance is amply sustained, upon this basis, by the evidence.
Whether the ordinance adopted by the village board on April 3d can deprive the relator of the right to complete the building project must be decided in the negative.
We are of the opinion that the trial court's conclusion to that effect is supported by the principle adhered to in the Building Height Cases (1923), 181 Wis. 519, 195 N.W. 544, and Rosenberg v. Whitefish Bay (1929), 199 Wis. 214, 217, 225 N.W. 838. In the latter case the ordinance expressly provided that any building on premises devoted to a nonconforming use at the time the ordinance was passed might continue in such use after the passage. The ordinance was silent concerning buildings in process of erection at the time the law took effect. The court there said:
"`A construction of a statute [or ordinance] which gives it a retrospective effect is not favored, and this is especially true where vested rights are affected.' Building Height Cases, 181 Wis. 519, 531, 195 N.W. 544. . . .
"In the case at bar the plans prepared and all expenses incurred by the plaintiffs will be rendered of no value if the ordinance prevents them from proceeding with the building of hotel and apartment buildings.
"Assuming that the village of Whitefish Bay had the power to enact a zoning ordinance, and that the procedure followed in enacting ordinance 219 was such as to make it an effective zoning regulation, and without determining that the village board had no power to pass an ordinance applicable to buildings planned before the ordinance was passed, we are clear that this ordinance should not be so construed as to prevent the erection of the proposed buildings where substantial rights had vested prior to the enactment of the ordinance which would be unreasonably injured by such a construction because such a purpose is not made clearly to appear by the language of the ordinance itself." See also Eggebeen v. Sonnenburg (1941), 239 Wis. 213, 1 N.W.2d 84.
There is also in this case evidence to sustain the finding of the trial court that the nature of the surrounding area is such as to make the rezoning arbitrary and unreasonable. Upon the west, north, and south the tract is adjacent to either industrial, commercial, or apartment zones. Only on the east are there single-family units, and they are separated from the respondent's property as well as from the other undesirable area by Santa Monica boulevard, which is a double street with parkway in the middle.
The New Jersey court in a case where the ordinance was changed after filing of an application for building permit, said:
"Clearly this was an eleventh-hour attempt to prevent this relator from using her property for its highest use and for which it had been zoned for seven years, during which time its assessed value had been substantially increased because it was so zoned. Such action was ill-advised, capricious, and unreasonable. It was doubtless precipitated because of public excitement and clamor. Some of this opposition was likely based upon misinformation as to the plan of development contemplated.
"However that may be, we are satisfied that the result was an arbitrary interference with the lawful and legitimate use of private property." Vine v. Zabriskie (1939), 122 N.J.L. 4, 6, 3 A.2d 886.
In Geisenfeld v. Shorewood (1939), 232 Wis. 410, 414, 417, 287 N.W. 683, where the factual situation was very similar to that in this case, the trial court held that:
". . . the ordinance which classified the plaintiff's property as residential was adopted without due consideration being given to the natural development of the village in the area surrounding the plaintiff's property; that the plaintiff's property was and now is in the heart of an apartment and business district; that the classification of the plaintiff's property as residential deprives the plaintiff of his property without due process of law . . . that the action of the board of trustees in classifying plaintiff's property as residential was and is arbitrary, unreasonable, unjustified . . . and an abuse of discretion. . . ."
This court affirmed the trial court, and after reviewing the Wisconsin cases, held that the physical facts indicated that "the board of trustees, in adopting the ordinance restricting the plaintiff's lots to residential purposes, clearly exceeded the bounds of legislative discretion, and that the ordinance in that respect was unconstitutional and void because `clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.' Euclid v. Ambler Co. 272 U.S. 365, 47 Sup. Ct. 114, 71 L.Ed. 303; Zahn v. Board of Public Works, 274 U.S. 325, 47 Sup. Ct. 594, 71 L.Ed. 1074; Nectow v. Cambridge, 277 U.S. 183, 48 Sup. Ct. 447, 72 L.Ed. 842."
The decision of the trial court is soundly based upon both the nature of the uses of the surrounding property and the vested rights acquired by the relator before the attempted change in the ordinance.
By the Court. — Judgment affirmed.