Village can always assert ordinance violation

Listen to this article

“The bottom line is this: If local officials act irresponsibly, leading on landowners (including counties) and then pulling the rug out from under them, there ought to be a way for the landowners to obtain relief without first violating the zoning ordinance. Equitable estoppel, with stringent requirements to obtain it, strikes me as a reasonable solution.” Hon. David T. Prosser concurring

The Wisconsin Supreme Court held on June 15 that a municipality cannot be equitably estopped from asserting a violation of its zoning ordinance, but that equity may estop it from enforcing the ordinance.

Waste generated in Brown County was disposed of by the County at the Brown County East Landfill, until the landfill reached capacity in May 2003. In anticipation of this, the County entered into an agreement with Outagamie and Winnebago Counties. Pursuant to this agreement, the County is allowed to dispose of its solid waste at the landfill of one of the participating counties.

To address concerns regarding the transportation of waste to such a landfill, the County decided to construct a new solid waste transfer station to consolidate the waste before hauling it. The County proposed the construction and operation of this transfer station at the West Landfill, located in the Village of Hobart.

The County had purchased this property in May 1976, and operated it as an active landfill until July 1998. Before its official closure, the County managed the property as an "open area/wildlife refuge." After July 1998, a portion of the former landfill was opened as a pet exercise area.

On Feb. 18, 2002, the Village and the County met, at the Village’s request, to discuss the construction of the transfer station at the West Landfill. During this meeting, the Village represented to the County that the proposed transfer station would comply with the West Landfill’s current use and zoning. A second meeting between these parties was held one week later, where the County suggested an agreement in which it would own the transfer station and pay the Village an annual fee of $14,000.

The Village unanimously accepted the County’s proposal at a public meeting of the Village Board on March 5, 2002. During the meeting, the Village Chairman stated to those present that the County did not require approval from the Village for the construction of the transfer station, because the West Landfill was properly zoned and the transfer station would be a permitted use in the zoning district.

A Memorandum of Understanding was signed by the Village and the County in May, providing in part, "It is the Town of Hobart’s intention, per the above-approved motion, to approve the construction and operation of a landfill transfer station at the Brown County West Landfill site in the Town of Hobart."

In August, the Village’s Site Review Committee unanimously approved the County’s application. In reliance on this approval, the County hired a general contractor to begin construction of the transfer station. The contract was awarded for $1,332,076 and required construction to commence on or before Oct. 14, 2002.

“A municipality cannot be estopped from asserting a violation and seeking to enforce its ordinances, but … a circuit court has authority to exercise its discretion in deciding whether to grant enforcement.” Hon. N. Patrick Crooks Wisconsin Supreme Court

In September, the Village Board, in response to a negative reaction from residents, voted to reject the permit and building of the waste transfer site. The Village Board informed the County of its decision, and its rescission of the MOU, in a letter dated Oct. 1, 2002. The Village Clerk then declined to issue the County necessary permits.

The County commenced construction anyway, after obtaining advice from its corporation counsel that, pursuant to sec. 13.48(13)(a), it did not need a building permit from the Village prior to construction.

The Village brought suit to enjoin the County from constructing and operating the transfer station, alleging that the transfer station would violate the Village’s zoning ordinance, that the County had not obtained any building permits for construction, and that the County failed to comply with sec. 289.22.

Brown County Circuit Court Judge Peter J. Naze granted the County’s motion for summary judgment, concluding that the Village should be estopped from asserting that the County has violated the zoning ordinance, and that, the County, as an arm of the State, is not required to obtain local approval since the statutes involved do not apply to transfer stations.

The Village appealed, and the court of appeals reversed in a published opinion. Vill. of Hobart v. Brown County, 2004 WI App 66, 271 Wis. 2d 268, 678 N.W.2d 402. The court held that a village can be estopped from enforcing a zoning ordinance, but that the requirements for equitable estoppel had not been established in this case.

The Supreme Court accepted review, and affirmed the court of appeals in a decision by Justice N. Patrick Crooks, although on different grounds. Justice David T. Prosser wrote a concurrence joined by Justices Louis B. Butler, Jr., and Jon P. Wilcox.

The court concluded that the matter must be remanded to the circuit court for the resolution of a number of disputed material facts: whether the map provided by the Village to the County was a Village zoning map; what was the proper zoning and whether the County complied with such zoning ordinance and any related ordinance; what representations were made by the Village Board to the County about the proposed siting for the transfer station and whether such representations created any zoning problems; and whether the letter from the County’s corporation counsel advised the County that the zoning for the transfer station was proper, and thus affected the County’s claimed reliance on the Village’s representations.

The court then turned to whether the Village can be stopped from asserting a violation, and held that it could not, citing its earlier opinions in City of Milwaukee v. Leavitt, 31 Wis. 2d 72, 142 N.W.2d 169 (1966), and Willow Creek Ranch v. Town of Shelby, 2000 WI 56, 235 Wis. 2d 409, 611 N.W.2d 693.

The court distinguished the case of Russell Dairy Stores v. Chippewa Falls, 272 Wis. 138, 74 N.W.2d 169 (1966), in which estoppel was applied, noting that, there, the city had already granted the necessary permits, and the plaintiff had gained a vested right in the permit.

The court wrote, "We do not dispute that ‘zoning may be the most essential function performed by local government, since it allows a municipality to protect its citizens’ quality of life.’ Lake Bluff Hous. v. City of S. Milwaukee, 2001 WI App 150, par. 25, 246 Wis. 2d 785, 632 N.W.2d 485. Thus, generally we will not allow estoppel to be invoked against the government for the erroneous acts or representations of its officials. To do so would elevate the mistake of the official above the needs of the citizens and their right to rely on the laws enacted. When we read the cases that we discussed herein, together with Forest County v. Goode and Town of Delafield v. Winkelman, 2004 WI 17, 269 Wis. 2d 109, 675 N.W.2d 470, we conclude that a municipality cannot be estopped from asserting a violation and seeking to enforce its ordinances, but that a circuit court has authority to exercise its discretion in deciding whether to grant enforcement."

Reaffirming Forest County v. Goode, 219 Wis.2d 654, 579 N.W.2d 715 (1998), the court stated that a circuit court retains equitable power to deny injunctive relief, even if the municipality proves a prima facie case of a zoning ordinance violation.

The elements of estoppel are: (1) action or non-action, (2) on the part of one against whom estoppel is asserted, (3) which induces reasonable reliance thereon by the other, either in action or non-action, and (4) which is to his or her detriment.

The court of appeals had concluded that the County failed to meet the element of reasonable reliance, finding that it relied on the advice of its counsel, rather than the actions of the Village.

The Supreme Court rejected this conclusion, stating, "The issue regarding the meaning of and reliance on the corporation counsel’s letter remains in dispute. The court of appeals may have misinterpreted, and thus overemphasized, the County’s reliance on the advice given by its corporation counsel. A fair reading of the letter does not necessarily lead to the conclusion that the corporation counsel asserted that there was no zoning problem. The circuit court must determine whether there has been a violation of the Village’s ordinances, and if the Village continues in its attempt to enforce its ordinances by seeking injunctive relief, whether, consistent with Forest County v. Goode and the equitable considerations outlined therein, the court should enforce any such ordinance and grant the Village an injunction."

The Concurrence

Justice Prosser wrote a concurrence, beginning, "I agree with the mandate to remand this case to the circuit court for the resolution of disputed facts. I also applaud the court’s reaffirmation of Forest County v. Goode, 219 Wis. 2d 654, 579 N.W.2d 715 (1998). But I disagree with some of the court’s analysis and its conclusion that "a municipality cannot be estopped from asserting a violation of its zoning ordinance in court." Majority op., par. 25. As a legal proposition, the quoted statement is too broad, and it sends the wrong message to local governments."

Quoting the court of appeals’ statement that "[E]quitable estoppel can be a basis upon which the trial court refuses to grant injunctive relief for a zoning violation.," Prosser wrote, "I agree with this conclusion but am not certain where the majority stands. Even if the majority agrees with the court of appeals, it is forcing a landowner like Brown County to violate the zoning ordinance before it can obtain equitable relief. This strikes me not only as risky for the landowner but also nonsensical as a principle of law."

	Related Links Wisconsin Court System Related Article Case Analysis

Prosser also chastised the majority for the following statement quoting Leavitt, which is inconsistent with the court’s holding: "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."

Another statement with which Prosser quarreled was, "If we allow the estoppel doctrine to hinder the government’s exercise of its police power, we will be ‘expos[ing] a significant number of persons to a risk the legislature has determined to be contrary to their safety, welfare, health or morals.’ This is particularly true in the context of zoning," noting that this statement is inconsistent with the holding in Goode, and the ultimate holding in the case at bar.

Finally, Prosser noted that the County did not rely on the representations of a mere local official, but on the acts of the highest municipal body, the Village Board.

Prosser concluded, "The bottom line is this: If local officials act irresponsibly, leading on landowners (including counties) and then pulling the rug out from under them, there ought to be a way for the landowners to obtain relief without first violating the zoning ordinance. Equitable estoppel, with stringent requirements to obtain it, strikes me as a reasonable solution.

"Because the majority opinion is internally inconsistent and undermines the rule in Goode, I respectfully concur."

Click here for Case Analysis.

David Ziemer can be reached by email.