Bouchard v. Zetley

• Citation: 196 Wis. 635,220 N.W. 209
• Parties: BOUCHARD ET UX. v. ZETLEY ET AL.
• Decision Date: 18 June 1928
• Court: Wisconsin Supreme Court

196 Wis. 635

220 N.W. 209

BOUCHARD ET UX.

v.ZETLEY ET AL.

Supreme Court of Wisconsin.

June 18, 1928.

Appeal from a judgment of the Circuit Court for Milwaukee County; August E. Braun, Circuit Judge. Affirmed.

Action for mandatory injunction to compel compliance with zoning ordinance and building restrictions in deed of predecessor in title to defendants, begun July 19, 1926. Judgment for plaintiffs entered October 8, 1927. The case was tried before the court, which made findings of fact as follows:

“I. That in February, 1919, the plaintiffs purchased a piece of property on Thirty-Second street in the city of Milwaukee described as ‘the south 35 feet of lots 5 and 6 in block 9 in continuation of Merrill Park in the Sixteenth ward of the city of Milwaukee, Milwaukee county, Wisconsin, also known as 74 Thirty-Second street, Milwaukee,’ upon which there is located a two-family dwelling, which they have ever since that time and are now occupying as a residence for themselves and their family. The building on said property consists of a single family two-story frame building with a porch across the front of it, which is set back 19 feet, measuring from the front of the porch to the lot line.

II. In May, 1926, the defendant Anna Zetley acquired by warranty deed title to the north 85 feet of lots 5 and 6 in block 9 in Continuation of Merrill Park in the Sixteenth ward of the city of Milwaukee, Wisconsin, which at the time of purchase was vacant unimproved property. Said lots 5 and 6 as platted had each a frontage of 45 feet fronting on Clybourn street and a depth of 120 feet, so that by such purchase the defendant Anna Zetley acquired a tract of land with a frontage of 90 feet on Clybourn street and a depth of 85 feet, making a frontage on Thirty-Second street of 85 feet. The plaintiffs by virtue of their purchase and ownership have the remainder of said two lots, which is immediately to the south of and adjoining the piece of land so purchased by the defendant Anna Zetley, having a frontage of 35 feet on Thirty-Second street and extending back the width of the two lots, or a depth of 90 feet. That the plaintiffs and the defendant Anna Zetley owned all of said lots 5 and 6 in block 9.

That after acquiring said property the defendant Anna Zetley, to carry out an arrangement to assist her in financing the erection of two four-family apartment buildings she contemplated erecting upon said piece of land, conveyed her interest therein to the defendant Realty Finance & Securities Company, a Wisconsin corporation, and received back from it two land contracts. One of said land contracts conveyed a piece of land on the corner having a frontage of 43 feet on Clybourn street and extending back the full depth of her property, or a frontage of 85 feet on Thirty-Second street. The other land contract conveyed the inside piece, which has a frontage of 47 feet on Clybourn street and a depth of 85 feet.

III. In platting the subdivision of Continuation of Merrill Park, in which the properties of the plaintiffs and the defendants are located, the original owners adopted a general plan and scheme to preserve all the property therein contained as a first-class residence section, and to enhance and render more secure the value of this land restricted the use of the same for first-class residence purposes and provided a uniform setback line in all of the deeds conveying lots in this subdivision. These deeds provided for a setback of all buildings from the center of the street upon which the lots were platted to face, and the setback for each street was uniform. In the deed conveying lots 5 and 6 in block 9, which are now owned by the plaintiffs and the defendants, the uniform setback line provided for Clybourn street was placed therein, providing that the front line of any building shall be no nearer the center of Clybourn street than 55 feet. No mention was made in the deeds conveying lots 5 and 6, either by the original subdividers or any subsequent owners, providing for any setback on the front line of buildings from the center of Thirty-Second street.

IV. That, at the time of the purchase by the defendant Anna Zetley of said property, there was in force and effect the ordinance known as the zoning law of the city of Milwaukee, and among its provisions are the following sections, which were in full force and effect at that time. The provision concerning setbacks in C districts as found in section 26.63 is as follows:

‘ Setbacks. On lots fronting on one side of a street between two intersecting streets, no building shall hereafter be erected, and no existing building shall be reconstructed or altered in such a way that any portion thereof shall be closer to the street line than any existing building fronting on that street within that block, but in no case shall the required setback in a C residence district, and in any adjacent D residence district be greater than 15 feet.’

Since the commencement of this action and prior to the trial thereof said section was amended by having added thereto the following sentence:

‘Along the side line of a corner lot the setback must be ten per cent. of the width of the lot up to a maximum of fifteen feet.’

The regulations concerning rear yards in C districts as found in section 26.63 are as follows:

‘ Rear Yards. No rear yards shall be less than twenty feet wide on an interior lot nor less than ten feet wide on a corner lot for a building two stories or less in height. For each additional story in height the width of such rear yard shall be increased three feet.’

The above section covering rear yards is controlled by the general regulations in area districts found in section 26.65 of said zoning ordinance, which is as follows:

‘ Rear Yards--Reduction in Size. On a lot less than one hundred feet deep the width of a rear yard required in preceding sections of this article for a building two stories or less in height may be reduced one per cent. for each foot such lot is less than one hundred feet in depth, provided that such reduction shall in no case exceed one-half the required width. For each additional story in height the width of such yard shall be increased by the amounts required by preceding sections of this article.’

Two other sections of the zoning ordinance affecting this case are as follows:

‘ Projections Allowed. The area required in a yard or court at any given level shall be open from such level to the sky unobstructed, except for the ordinary projections of skylights and parapets above the bottom of such court or yard, and except for the ordinary projection of window sills, belt courses, gutters, cornices and other ornamental features to the extent of not more than six inches, provided that wider cornices on the street front may turn the corner and project their full width into a side yard or outer court within five feet of the street wall of the building.’

‘Section 26.71. In their interpretation and application the provisions of this chapter shall be held to be the minimum requirements adopted for the promotion of the public safety, health, convenience and general welfare. It is not intended by this chapter to interfere with or abrogate or annul any easements, covenants or other agreements between parties; nor is it intended by this chapter to repeal, abrogate, annul or in any way to impair or interfere with any existing provision of law or ordinance or any rules, regulations or permits previously adopted or issued or which shall be adopted or issued pursuant to law relating to the use of buildings or premises: Provided, however, that where this chapter imposes a greater restriction upon the use of buildings or larger yards, courts or other open spaces than are imposed or required by such existing provision of law or ordinance or by such rules, regulations or permits, the provisions of this chapter shall control.’

That some of the sections of the ordinance providing for the administration thereof and material to this case are as follows:

‘Section 26.72. This chapter shall be enforced by the inspector of buildings. He shall issue no permit for the construction or alteration of any building or structure or part thereof plans and specifications and intended use for which are not in all respects in conformity with the provisions of this chapter. In case the intended use owing to its nature or the vagueness of its statement falls within more than one of the classes of use established by article 2 of this chapter, such building or structure shall not be permitted in any district in which any such classes are prohibited.

Section 26.73. Certificates of Occupancy. 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 or structure until a certificate of occupancy to the effect that the building or premises or the part thereof so created, erected, altered, changed or converted and the proposed use thereof conform to the provisions of this chapter shall have been issued by the Inspector of Buildings. It shall be the duty of the Inspector of Buildings to issue a certificate of occupancy within ten days after the request for the same is filed in his office by any owner of a building or premises affected by this chapter, provided said building or premises, or the part thereof, so created, erected, altered, changed or converted, and the proposed use thereof conform with all the requirements of article 4 of this chapter.

Fees for Certificates of Occupancy. There shall be charged for each certificate of occupancy for a single family dwelling and uses accessory thereto a fee of one dollar, and for all other uses a fee of two dollars. Such fees shall be paid into the city treasury and credited to the general city fund.'

V. That on June 1, 1926, the defendant Anna Zetley made application and did secure a building permit issued by the defendant William D. Harper,...