Bur v. Schwarten, 75-458
| Decision Date | 05 April 1978 |
| Docket Number | No. 75-458,75-458 |
| Citation | 83 Wis.2d 1,264 N.W.2d 721 |
| Parties | Nicholas BUR and Janet E. Bur, his wife, Appellants, v. Curtis J. SCHWARTEN, Kenneth C. Kurtz and Manuel R. Mendez, Respondents. |
| Court | Wisconsin Supreme Court |
Nicholas Bur and Janet E. Bur in pro. per.
Samuel J. Recht and Quarles & Brady, Milwaukee, submitted brief for respondents.
This is an appeal from a judgment of the Milwaukee County Circuit Court dismissing on its merits the action of the plaintiffs-appellants, Nicholas and Janet Bur (hereafter plaintiffs). The plaintiffs brought an action for injunctive relief pursuant to sec. 62.23(8), Stats. (1975). 1 The complaint alleged that the defendants- respondents, Curtis J. Schwarten, Kenneth C. Kurtz and Manual R. Mendez (hereafter defendants) violated the Whitefish Bay Zoning Code by building a condominium apartment building too close to the plaintiffs' lot line. The trial court found there was no violation of the ordinance and dismissed the plaintiffs' action on its merits.
The principal issue involved is whether or not the defendants violated sec. 16.08(1)(d)(2) of the Whitefish Bay Zoning Code with respect to setback distances from the plaintiffs' property. The plaintiffs also raised other issues which will be discussed in the opinion.
Plaintiffs own the residence located at 5663 North Consaul Place, Whitefish Bay and had owned the property for approximately eleven years at the time that this action was commenced. The defendants constructed an L-shaped condominium apartment building on the adjacent property, which was purchased from the Village of Whitefish Bay. The defendants constructed the building in accordance with plans approved by the village. The plans left a side yard between the building and the plaintiffs' property of seven and one-half feet on the southern portion of plaintiffs' property and along the western boundary of plaintiffs' property.
The following is a diagram of the properties involved.
The defendants' building has a vehicle entrance on East Beaumont Avenue and a pedestrian entrance with mail delivery, lobby and elevator on Consaul Place. The Village of Whitefish Bay's "front setback" and "side setback" maps indicate that the front setback on the defendants' property is located on East Beaumont Avenue and the side setback is located on North Consaul Place.
The defendants' building is L-shaped. It is located at least seven and one-half feet away from plaintiffs' west boundary line and south boundary line and defendants' west boundary line. The rear of the defendants' property is adjacent to an alley and the building is located ten feet from the alley. There is more than a twenty-five foot setback from North Consaul Place.
The properties on which the defendants made their improvement was 330 and 450 East Beaumont Avenue. The defendants submitted a proposal for the improvement of that property to the Village of Whitefish Bay prior to May 22, 1972. The proposal was accepted by the Village Board. The property had been previously rezoned after several public hearings to what is known as a District 5 Zone. According to sec. 16.08 of the Whitefish Bay Building Code this is an apartment district. The defendants then applied for a building permit authorizing construction of a condominium apartment building in accordance with proposals previously submitted by the defendants. A building permit was issued by the building inspector, David M. Weis, on October 29, 1973. Pursuant to the permit the defendants constructed the building at a cost in excess of $500,000.
Plaintiffs first objected to the building inspector concerning the location of the defendants' building in a letter of October 28, 1973. Plaintiffs made unsuccessful objections to the Whitefish Bay Board of Trustees and the Village Manager, the Board of Zoning Appeals and the Village Building Board in letters dated November 1 and November 7, 1973.
The action here was commenced on January 1, 1974 after the defendants had undertaken substantial excavation and foundation construction on their property. Plaintiffs amended their complaint twice. The third complaint and the one before us sought injunctive relief and was filed October 9, 1974 after seventy-five to eighty percent of the building had been constructed. Plaintiffs' two previous complaints had not sought injunctive relief.
In the course of the development of their property, the defendants raised the ground level approximately three feet. The trial court found that the defendants graded the slopes so there was no substantial change in the ground level at the lot lines bordering plaintiffs' property.
The plaintiffs contend that the defendants violated sec. 16.08(1)(d)(2) of the Whitefish Bay Zoning Ordinance 2 because the defendants were given three rather than two side yard setbacks of seven and one-half feet each. Plaintiffs argue that if the front of defendants' building faces south on East Beaumont Avenue then defendants are entitled to two seven and one-half foot side yard setbacks on the eastern and western sides of their property and not a third side yard setback running along the south side of plaintiffs' property parallel to East Beaumont Avenue as permitted by the Village. Plaintiffs contend that the portion of the building near their south lot line constitutes another, or second rear to the building, requiring a twenty-five foot setback.
Judge Robert Landry heard the first motion made by plaintiffs for summary judgment on their original complaint and agreed that a twenty-five foot rear yard setback was required along the plaintiffs south boundary line. He also stated, in denying their motion for summary judgment, that his determination in that respect was not res adjudicata at any later proceeding. Pursuant to the defendants' request, Judge Moser was later substituted for Judge Landry in the case and that substitution is also objected to by the plaintiffs in their briefs.
The setback issue was litigated at the trial before Judge Moser who found in favor of the defendants and concluded that the defendants had not violated the zoning ordinances of the village in the construction of the condominium. The building inspector who testified at the trial interpreted 16.02(23) & (24) of the ordinance as making the southern boundary of the alley as the defendants' rear lot line and determined that the defendants' building came within the prescribed distance required by the ordinance for approach to rear lot lines. The southern boundary of plaintiffs' property was not interpreted by the building inspector as being a second rear lot line. Because the building is L-shaped it is only required to meet the standard for one rear setback.
We hold that this interpretation of the ordinance was reasonable and was properly sustained by the trial judge. The ordinance does not deal with L-shaped apartment buildings and to...
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