Columbia County v. Bylewski, 77-125

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtCOFFEY
Citation94 Wis.2d 153,288 N.W.2d 129
PartiesCOUNTY OF COLUMBIA, a Wisconsin Municipal Corporation, Respondent, v. Joseph BYLEWSKI, Appellant.
Docket NumberNo. 77-125,77-125
Decision Date07 February 1980

Francis R. Bannen, S. C., Wisconsin Dells, for appellant.

James R. Meier, Corp. Counsel, Portage, for respondent.

COFFEY, Justice.

This is an appeal from a judgment of the Circuit Court for Columbia County denying the appellant's motion for reversal of the judgment of the County Court or, in the alternative, a new trial.

In October of 1973, the appellant, Joseph Bylewski, and his wife, purchased a tract of land in Blackhawk Park in Columbia County from a group of investors developing that area. At the time of the land purchase, there was an old mobile home located on the property.

Prior to the appellant's purchase of the land, Columbia County, in 1966, enacted a zoning ordinance declaring the Blackhawk Park area to be a "Recreation District", thus limiting the types of buildings allowed in the district as to both construction and use. 1

In December of 1973, two months after purchasing the property, the appellant replaced the existing non-conforming mobile home with another mobile home, thus terminating the non-conforming protection afforded the prior structure. In the year following, Bylewski erected a garage on the property without securing a building permit.

A year and a half later Columbia County commenced two actions 2 in the county court alleging:

1. that the appellant violated sec. 11.07 of the County's Zoning Code by substituting a new mobile home for the old mobile home located on his property in the Blackhawk Park area; and

2. that the appellant violated sec. 11.13-3(a) of the County Zoning Code by constructing a garage on the property without obtaining a building permit.

A trial was held in the county court, pursuant to the procedure prescribed for small claims type actions in ch. 299 (1975), and the court found the defendant guilty as charged but declined to impose a forfeiture. At the trial, the County argued that when it enacted the ordinance declaring the Blackhawk Park area to be a recreation district, it exempted the mobile home, then and there located on the property as a non-conforming structure. The County admitted that although it was prohibited by sec. 59.97(10)(a), Stats., from preventing the continuance of a non-conforming use, it was empowered to limit alterations in excess of 50% Of the assessed value of such non-conforming use structures. Furthermore, the County claimed that the appellant's removal of the old mobile home and its replacement with a new one, thus was an alteration of the old structure in excess of 50% Of the assessed value and in violation of sec. 11.07 of the zoning code. The appellant contended that the old mobile home was only partly livable and therefore he was required to demolish the existing structure and replace it with a new building in order to make it habitable.

The appellant was also charged with a violation of sec. 11.13-3(a) of the Zoning Code for failing to obtain a building permit before constructing his garage valued at more than $250. The County argued that this ordinance should be interpreted to mean that a permit must be obtained for the building of any structure having an Assessed value of more than $250. The appellant conversely contended that he was not required to obtain a permit because he had no knowledge of the ordinance, and secondly, the only expense he incurred was For the materials valued at less than $250. The record is silent as to any labor costs.

Following the hearing on December 11, 1975, the county court, in its written decision, ruled that the new mobile home structure was in violation of sec. 11.07 of the Zoning Code and also not protected as an existing non-conforming use structure. Furthermore, the court construed the zoning code to require a building permit for structures with an assessed valuation of more than $250 and, therefore, the appellant's failure to obtain a building permit for the garage was in violation of sec. 11.13-3(a) and the court also directed the appellant to remove the mobile home and garage from his property before October 1, 1976.

The appellant, Bylewski, appealed to the circuit court, requesting an order reversing the judgment of the county court or, in the alternative, for a new trial.

The circuit court, following a review of the record and the briefs on file, affirmed the judgment of the county court and denied the appellant's request for a reversal of the county court's judgment or the granting of a new trial. The appellant appealed the circuit court judgment.


1. May a county court of limited authority, in a small claims type action brought pursuant to sec. 299.01(2), Stats., to recover a forfeiture for violation of county zoning ordinances, also enforce compliance with the code by means of an injunctional order in the absence of statutory authority or equitable jurisdiction?

2. Did the appellant violate sec. 11.07 of the Columbia County Zoning Code by removing an existing mobile home protected as a nonconforming use structure from his property in a zoned "recreational district" and substituting a new structure involving an alteration (improvement) in excess of 50% Of the assessed value?

3. Did the defendant violate sec. 11.13-3(a) of the Columbia County Zoning Code by failing to obtain a building permit before constructing a garage on his property?

The appellant contends that the county court was without authority in a small claims proceeding to issue an injunctional order. He also contends the court was without authority, Sua sponte, to grant injunctional relief when the only relief requested by the county in the original complaints was for imposition of a fine not to exceed $200 for each ordinance violation.

Ordinarily, zoning ordinances may be enforced in numerous ways:

1. by refusing to issue building or occupancy permits where the construction on or use of the land in question fails to comply with the existing code;

2. by commencing a civil action to recover forfeitures for a violation of the ordinances;

3. by injunctional orders in a court of equitable jurisdiction. See generally ; 82 Am.Jur. 2d Zoning and Planning § 242 at 774-75 (1976).

In the case at bar, the original complaints requested that the court impose a forfeiture not to exceed $200 for each ordinance violation. A statutory or ordinance forfeiture proceeding is usually an action by a governmental unit for the recovery of a money penalty and enforceable in a civil action. 49 Op.Atty.Gen. 22 (1960); 36 Am.Jur.2d Forfeitures and Penalties § 71 at 658 (1968). The municipality has a special interest in the enforcement of zoning ordinances that promote the public health, safety and general welfare, pursuant to sec. 59.97(11), Stats.

In keeping with this general procedure, the Wisconsin Legislature enacted sec. 59.97, Stats., establishing a procedure for the enforcement of county zoning ordinances. Sec. 59.97(11), Stats., reads as follows:

"PROCEDURE FOR ENFORCEMENT OF COUNTY ZONING ORDINANCE. The county board shall prescribe such rules and regulations and administrative procedures, and provide such administrative personnel as it may deem necessary for the enforcement of the provisions of this section, and all ordinances enacted in pursuance thereof. Such rules and regulations and the districts, setback building lines and regulations authorized by this section, shall be prescribed by ordinances which shall be declared to be for the purpose of promoting the public health, safety and the general welfare. Such ordinances shall be enforced by appropriate fines and penalties. Compliance with such ordinances may also be enforced by injunctional order at the suit of such county or the owner or owners of real estate within the district affected by such regulation."

Thus, in addition to the imposition of forfeitures, sec. 59.97(11), Stats., also allows the enforcement of zoning ordinances by means of injunctional orders in the proper forum. A suit for an injunctional order differs from an action to recover a forfeiture in that an action for injunctional relief before a court of competent jurisdiction is an action in equity as opposed to a forfeiture action, which is a statutory action at law. As a general rule, a municipality is not entitled to obtain equitable relief to enforce its ordinances In the absence of a specific enabling statute, unless there is a showing that such a violation constitutes a nuisance Per se or threatens to destroy property rights. Village of Wind Point v. Halverson, 38 Wis.2d 1, 11, 155 N.W.2d 654 (1968). In Pure Milk Products Coop. v. National Farmers Organization, 90 Wis.2d 781, 280 N.W.2d 691 (1979) this court held that:

"The injunction is a preventive order, looking to the future conduct of the parties. To obtain an injunction, a plaintiff must show a sufficient probability that future conduct of the defendant will violate a right of and will injure the plaintiff. The Kimberly & Clark Co. v. Hewitt 75 Wis. 371, 375, 44 N.W. 303 (1890). To invoke the remedy of injunction the plaintiff must moreover establish that the injury is irreparable, I. e. not adequately compensable in damages. Ferguson v. Kenosha, 5 Wis.2d 556, 561, 93 N.W.2d 460 (1958). Finally, injunctive relief is addressed to the sound discretion of the trial court; competing interests must be reconciled and the plaintiff must satisfy the trial court that on balance equity favors issuing the injunction." Id. at 800, 280 N.W.2d at 700.

However, Where a statute, such as sec. 59.97(11), Stats., authorizes a municipality or public entity to seek an injunction in order to enforce compliance with a county zoning ordinance, but says nothing about the injury caused, the municipality is Not required to show irreparable injury before obtaining an injunction. 42 Am.Jur.2d Injunctions § 48 at...

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