Landowners can contest enforcement of decision

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Hon. Ann Walsh Bradley

A landowner may contest enforcement of an adverse zoning decision, even though he has already been found in violation of the zoning laws, the Wisconsin Supreme Court held on March 5.

Eric and Christine Winkelman own a lot containing two houses in the Town of Delafield. The Winkelmans used one of the two homes on their lot as their own residence, and the other home is a rental unit.

Both of the homes are considered nonconforming uses under the Town’s zoning code, because the property is located in a residential zoning district, which allows only one single-family residence per lot.

In 1991, the Winkelmans obtained a building permit for interior remodeling of the two homes. After construction began, the Town’s building inspector discovered that the remodeling involved work on a legal, nonconforming structure and placed a stop-work order on the project.

The Winkelmans then applied for variances from the Town’s zoning code. The Winkelmans’ request for the variances was granted in part, but the zoning board conditioned the approval on the Winkelmans removing the rental residence from the property within three years of the date of the board’s decision, which was dated Sept. 30, 1994.

The Winkelmans sought certiorari review of the board’s decision on the variance, claiming that the board lacked the authority to impose the condition. The circuit court upheld the decision and the Winkelmans did not appeal.

The Town then extended the deadline for removal of the rental residence from March 1998 to April 1999. However, as of April 1999, the Winkelmans had not yet removed the rental residence from their property.

To enforce the condition of the variance, the board brought a motion entitled Motion for Further Relief requesting that the certiorari court order the Winkelmans to raze the house or allow the Town to do so.

The certiorari court granted the board’s motion, but the court of appeals reversed, holding that the board needed to obtain jurisdiction over the Winkelmans for the enforcement action by starting an original action. Winkelman v. Town of Delafield, 2000 WI App 254, 239 Wis.2d 542, 620 N.W.2d 438 (Winkelman I).

The Town then filed an original complaint in the circuit court seeking issuance of an order directing the Winkelmans to remove the rental residence from their property immediately and seeking fines for the Winkelmans’ failure to do so.

The Winkelmans contested the order on equitable grounds, but the circuit court granted the Town’s motion for summary judgment, concluding that it had no authority to weigh the competing equities in the case.

The Winkelmans appealed, and the court of appeals reversed. Town of Delafield v. Winkelman, 2003 WI App 92, 264 Wis.2d 264, 663 N.W.2d 324 (Winkelman II).

The Supreme Court granted review, and affirmed the court of appeals in a decision by Justice Ann Walsh Bradley. Justice David Prosser wrote a concurring opinion.
Jurisdiction

The court first considered subject matter jurisdiction, as the Winkelmans argued the circuit court lacked jurisdiction to consider the enforcement action.

The Winkelmans argued that, because the property is controlled by the Waukesha County Shoreland Code, the Town’s ordinance does not extend to them.

Section 59.692(2)(b) provides, “If an existing town ordinance relating to shorelands is more restrictive than an ordinance later enacted under this section affecting the same shorelands, it continues as a town ordinance in all respects to the extent of the greater restrictions, but not otherwise.”

Because the town ordinance does not impose a greater restriction than the county ordinance, the Winkelmans argued that the Town cannot enforce it, and the court has no jurisdiction over the violation.

The court refused to decide the argument, however, because this was the first time in the nine-year history of the case that the Winkelmans raised the issue. Because the Winkelmans did not timely object to the town’s jurisdiction, the court deemed the issue waived.

Equitable Arguments

The court then held that the circuit court did have the power to consider the Winkelmans’ equitable arguments in the enforcement proceeding, relying on Forest County v. Goode, 219 Wis.2d 654, 579 N.W.2d 715 (1998).

In Goode, the Supreme Court held that, in enacting sec. 59.69(11), the legislature
did not intend to eliminate the traditional equitable powers of the circuit court. Thus, a court in an enforcement action had authority to consider the equities of the municipality’s requested relief — forfeitures and an order compelling Goode to relocate his house to comply with a 50-foot setback requirement.

In a subsequent case, Lake Bluff Housing Partners v. City of South Milwaukee, 2001 WI App 150, 246 Wis.2d 785, 632 N.W.2d 485 (Lake Bluff IV), the court of appeals applied the same reasoning to a different statute, sec. 62.23(8)(the same statute as was at issue in the case at bar).

The Supreme Court agreed with the court of appeals in Lake Bluff IV, and the case at bar, that when a governmental body exercises its authority pursuant to either sec. 59.69(11) or sec. 62.23(8), and seeks injunctive relief, the circuit court retains the power to deny the relief sought on equitable grounds.

The Town argued that Goode and Lake Bluff IV are distinguishable, because the Winkelmans actually had the opportunity to present equitable arguments to the certiorari court, and did so. The town warned that permitting further equitable arguments would create the “extraordinary situation of one circuit court exercising appellate powers over another circuit court’s decision,” and violate the doctrines of issue and claim preclusion.

The court rejected the argument, however, concluding it is based on the untenable premise that certiorari review is a proper forum for consideration of equities. Instead, certiorari review is limited to determining: (1) whether the board acted within its jurisdiction; (2) whether it acted according to law; (3) whether its actions were arbitrary, oppressive or unreasonable and represented its will and not its judgment; and (4) whether the evidence was such that it might reasonably make the order in question.

Issue Preclusion

The court then held that the doctrine of issue preclusion does not apply to any aspect of the case. The Town argued, and the court of appeals agreed, that the Winkelmans could be precluded from arguing on remand that the board’s action was unreasonable and they would suffer hardship because, if they razed the second residence, they would not be able to make the mortgage payments on their own home.

Although the Winkelmans did argue hardship to the certiorari court on this ground, the court found the requirements for issue preclusion were unmet because the Winkelmans may have lacked incentive to obtain a full and fair adjudication of the issue in the certiorari action.

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The court reasoned, “The reason for this is that they have no way of knowing for certain at the certiorari review what relief the Town will be seeking. Here, there was over a three-year period between the initial certiorari review and enforcement action. Ultimately, the Town sought to enforce the razing condition of the variance. It could have, however, sought forfeitures, pursued alternative relief, or simply declined to pursue relief altogether. The Winkelmans should not have to prepare equitable defenses for all possible relief.”

Accordingly, the court held that the circuit court has the power to hear all of the Winkelmans’ equitable arguments, and affirmed the remand to the circuit court for that purpose.

The Concurrence

Justice Prosser wrote a concurring opinion, agreeing with the application of Goode to the case, but maintaining that Lake Bluff IV was incorrectly decided.

Prosser wrote, “the majority opinion implies that the decision in [Lake Bluff IV], which extended the principles of the Goode case to enforcement actions under a different statute, is copacetic [very satisfactory]. It is not, and it should have been reversed.”

Prosser explained that the circuit court in Lake Bluff IV refused to consider some equitable factors, because they had been raised and r
ejected in prior legal proceedings. Thus, Prosser disagreed with the court of appeals’ conclusion in Lake Bluff IV that the circuit court had addressed all the pertinent factors.

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David Ziemer can be reached by email.