City of Madison v. Connery

• Decision Date: 09 June 1988
• Citation: 145 Wis.2d 903,428 N.W.2d 645
• Parties: NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. CITY OF MADISON, Plaintiff-Respondent, v. RICHARD D. CONNERY and TIMOTHY CONNERY, Defendants-Appellants. 87-2090.
• Court: Wisconsin Court of Appeals

Page 645

428 N.W.2d 645

145 Wis.2d 903

NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES.

CITY OF MADISON, Plaintiff-Respondent, v. RICHARD D. CONNERY and TIMOTHY CONNERY, Defendants-Appellants.

87-2090.

Court of Appeals of Wisconsin.

June 9, 1988.

Circuit Court, Dane County

Affirmed

Appeal from a judgment of the circuit court for Dane county: WILLIAM D. BYRNE, Judge.

EICH, J.

This case is decided by a single judge pursuant to sec. 752.31(2)(b), Stats. Richard and Timothy Connery appeal from a judgment finding them to be in violation of two City of Madison ordinances relating to the presence of automobiles and other vehicles on their property. They raise several issues: (1) whether the trial court applied an erroneous standard of proof; (2) whether property owners, as opposed to lessees of the property, may be held responsible under the terms of the ordinances; (3) whether the trial court erred in finding the property in question to be subject to residential zoning laws; and (4) whether the court improperly allowed the city to amend its complaint after trial but before imposition of the penalties. We resolve all issues against the Connerys and affirm.

The basic facts are not in dispute. The city brought this action against the Connerys, charging that they were in violation of the two ordinances. The first count alleged that they permitted unlicensed motor vehicles to be parked on a residential lot, contrary to sec. 28.11(3)(a)(4) of the Madison General Ordinances (M.G.O.); and the second alleged that they permitted disabled vehicles to be parked on a residential lot in violation of sec. 28.11(3)(a)(3) of the ordinances.

The Connerys owned the lot, and had leased it to Alan Abel, who resides on the premises and also operates an automobile body and repair shop at the location. There was no dispute that unlicensed and disabled vehicles were parked on the lot, which is located in a commercial (nonresidential) zoning district. In such a district, however, a body shop is a permitted use only if a Certificate of Occupancy has been obtained from the city. Abel has neither applied for nor received such a certificate.

The case was tried to the court on February 18, 1987. The court, applying the "preponderance of the evidence"' standard of proof, determined that the leased premises were being occupied as a place of residence, that the presence of the vehicles on the lot violated the ordinances, and that the violations existed from April 15, 1986, through February 16, 1987, the last working day prior to the trial. The court also ruled that the Connerys, as owners, were responsible for the violations.

At the penalty hearing, held on November 2, 1987, the court heard testimony from a city inspector that the automobiles were still on the lot when she inspected the premises in May, July and October, 1987. The court then granted the city's oral motion to amend its complaint so as to change the alleged dates of violation to conform to the evidence presented at the hearing. After the hearing, the court entered judgment requiring the Connerys to forfeit $3,611, including penalties and fees, for violations occurring between April 15, 1986, and October 30, 1987.

I. THE STANDARD OF PROOF

The trial court applied the "preponderance of the evidence"' test to the evidence adduced at trial. The Connerys argue that this was improper. They maintain that the higher, "clear, satisfactory and convincing evidence"' standard should apply because, even though the action is civil, seeking a forfeiture, it should be equated to a crime and a higher burden of proof imposed on the city. They base their contention on the assertion that a "'stigma attaches to the class of acts [they were] alleged to have committed."' The "stigma,"' according to the Connerys, is the "serious damage"' to their reputations which they assert will flow from being found guilty of violating "'ordinances enacted to protect the health and wellbeing of city residents."'

We are not persuaded. In cases where the violation of a municipal ordinance is also a violation of a state statute, or would constitute a crime, public policy requires that the violation be proved by clear, convincing and satisfactory evidence. Madison v. Geier, 27 Wis.2d 687, 693 n.1, 135 N.W.2d 761, 764 (1965). Where, however, there is no state law counterpart to the local ordinance, the burden of proof is the same as that in civil actions generally: proof by a preponderance of the evidence.

There is no state criminal or civil law counterpart to the ordinances in question here, and the Connerys concede this fact. Nor do we believe that whatever "stigma"' may be attached to violation of a municipal zoning ordinance warrants imposition of a higher standard of proof than that applicable to other local ordinances. ^* The trial court applied the appropriate standard of proof.

II. THE CONNERYS' LIABILITY UNDER THE ORDINANCES

The Connerys argue that because the ordinances do not expressly state that property owners, as opposed to tenants, are responsible for the violations, the trial court erred when it confirmed the violations. The ordinances state simply that "[a]ll . . . vehicles parked on a residential lot"': (1) must be in operable condition; and (2) must display current license plates. Secs. 28.11(3)(a)(3) and 28.11(3)(a)(4), M.G.O. The penalty provisions set the forfeiture at not more than $200 for each day of violation. Sec. 28.12(12), M.G.O.

The power to restrict the use of land and buildings by ordinance is granted to cities by sec. 62.23(7)(a), Stats. Included within that grant of power is the provision that ordinances enacted thereunder "shall be liberally construed in favor of the city . . . ."' The Madison ordinances (sec. 28.04) contain a similar provision, and the cases are in accord. See Cushman v. Racine, 39 Wis.2d 303, 306, 159 N.W.2d 67, 69 (1968) (ordinance adopted under sec. 62.23 "is to be liberally construed in favor of the municipality by the express provisions of the section"'); State ex rel. American Oil Co. v. Bessent, 27 Wis.2d 537, 546, 135 N.W.2d 317, 322-23 (1965) ("We must start with the premise that a . . . zoning ordinance enacted pursuant to sec. 62.23, Stats., is presumed to be valid and such ordinance must be liberally construed in favor of a municipality."'); Black v. City of Waukesha, 125 Wis.2d 254, 257, 371 N.W.2d 389, 391 (Ct. App. 1985) ("We begin by noting that zoning ordinances [enacted under sec. 62.23] are to be construed in favor of the municipality."').

The Connerys argue, however, that just the opposite is true -- that zoning ordinances, being in derogation of the common law, should be strictly construed against the city, citing Cohen v. Dane County Board of Adjustment, 74 Wis.2d 87, 91, 246 N.W.2d 112, 114 (1976), and Hansman v. Oneida County, 123 Wis.2d 511, 514, 366 N.W.2d 901, 903 (Ct. App. 1985). The ordinances in those cases, however, were not adopted under the authority of sec. 62.23, Stats., and it is the language in sec. 62.23(7)(a) that forms the basis of the rule favoring liberal construction in favor of the city. Indeed, the Hansman court distinguished ordinances adopted under sec. 62.23 from those adopted under other statutes, noting that "[t]he source of this rule [that 'zoning ordinances are to be liberally construed in favor of the municipality'] is sec. 62.23(7), Stats."' Hansman, 123 Wis.2d at 514, 366 N.W.2d at 903.

To construe the ordinances as the Connerys suggest would emasculate them. The purpose of zoning ordinances adopted under the legislative grant of power in ch. 66, Stats., is to promote the health, safety, and general welfare of the community. Sec. 62.23(7)(a), Stats. If property owners cannot be held responsible for violations of zoning ordinances, then the city's ability to enforce them would be severely limited, if not extinguished. In this case, for example, for the city to enforce these "junk auto"' ordinances at all, it would have to search out and consider whatever leasing arrangements between the owner and possible tenants might exist, and determine who owned the individual vehicles on the lot, and who put them there, before even beginning the enforcement process. Surely such a result would make enforcement both burdensome and impractical, and thus would defeat the very purposes for which the ordinances were enacted. Ordinances, like statutes, are to be construed to avoid absurd results. County of Columbia v. Bylewski, 94 Wis.2d 153, 168, 288 N.W.2d 129, 137 (1980).

The ordinances in question are part of a comprehensive zoning law governing the uses to which privately owned property in the City of Madison can be put. It is the owner of property who controls and governs the property's use. Consequently, it would make no sense at all to require, as a condition of enforcement, that each of the hundreds of property restrictions found in Madison's ordinances must specifically state (and restate and state again) that it is the owner of the property, not some unknown lessee or licensee, who is being looked to for compliance. Indeed, the ordinances themselves provide, in other sections, that owners of rental property are generally responsible for the condition of exterior property areas and for the maintenance of "yards, courts, usable open spaces, and other open spaces."' Secs. 27.05(2)(c) and 28.04(6)(a), M.G.O. Thus, to deny owner responsibility for violations would be inconsistent with other provisions within the same general ordinance, and with other provisions of Madison's zoning laws.

The Connerys also argue that the absence of a specific statement in the ordinances that property owners are potentially liable for violations denies them adequate notice of that potential liability and thus constitutes a denial of due process. They do not dispute, however, that they received a...