Holzbauer v. Ritter

• Decision Date: 06 May 1924
• Citation: 198 N.W. 852,184 Wis. 35
• Parties: HOLZBAUER ET AL. v. RITTER ET AL.
• Court: Wisconsin Supreme Court

184 Wis. 35

198 N.W. 852

HOLZBAUER ET AL.

v.RITTER ET AL.

Supreme Court of Wisconsin.

May 6, 1924.

Appeal from Circuit Court, Milwaukee County; Walter Schinz, Judge.

Suit by A. J. Holzbauer and others, against Alex Ritter and others. From an order of the Circuit court, granting a temporary injunction, defendants appeal. Affirmed.T. F. Hayden, Clifton Williams, John M. Niven, City Atty., and C. W. Babcock and Jos. L. Bednarek, Asst. City Attys., all of Milwaukee, for appellants.

G. J. Davelaar, of Milwaukee (W. O. Meilahn and J. G. Konop, both of Milwaukee, of counsel), for respondents.

JONES, J.

This is an appeal from a temporary order enjoining the city of Milwaukee and its agents from granting a permit for building operations to the other defendants in a district set apart for residence purposes by a zoning ordinance of the city, and to enjoin the defendants Ritter and Loughlin from erecting a store building therein.

We shall only summarize the complaint, which alleges that the plaintiffs are electors, residents, and taxpayers of the city, and that the action is brought in their behalf and in behalf of other persons similarly situated, that defendant Loughlin, being the owner of certain premises, under an agreement with the defendant Ritter, was about to erect for nonresidential purposes a store building within the district which had been set apart under the ordinance as a residential district, and that the zoning ordinance had been regularly passed.

It was also alleged that the residence district created by the zoning ordinance was in character essentially residential; that plaintiffs and others, relying on the ordinance, had made large investments in constructing and beautifying their homes; that on or about July 9th a pretended ordinance was passed which purported to include in the business district the property owned by plaintiffs; that pursuant to the zoning ordinance protests were duly made by the plaintiffs and others largely in excess of the number required by the zoning ordinance against the passage of such amendment; that these protests were duly executed and filed in due time with the city clerk, but that he failed and refused to deliver the same to the common council and its committee on streets and alleys, so that the pretended ordinance was passed by the common council without the protests being heard as contemplated by the zoning ordinance; that this was a violation of the zoning ordinance and the law, and in fraud of the rights of plaintiff and others; that Loughlin and Ritter were threatening to erect a store building under said pretended ordinance and a pretended permit, and that the city and its officers threatened to issue other similar permits, on account of which plaintiffs would suffer irreparable damage, and that they had no adequate remedy at law; that plaintiffs' real estate is in close proximity to that of defendant Loughlin; that immediately after the passage of the pretended ordinance plaintiffs remonstrated to the city of Milwaukeeand the common council, objecting to the manner in which the pretended ordinance was passed and to the issuance of said permit, and that the common council then repealed the pretended ordinance. There are allegations stating the duties of the defendant Harper, the building inspector, that, although the defendant Ritter was promptly advised that the pretended ordinance would be repealed he threatened and continues to threaten the erection of said building, and that he wrongfully influenced city officials to withhold from the common council and the proper committee said written protests.

The zoning ordinance contains provisions to the effect that the common council may change the boundaries of districts, and proceeds as follows:

“Whenever the owners of fifty per cent. or more of the frontage in any district or part thereof present a petition duly signed and acknowledged to the council requesting an amendment, supplement or change in the regulations prescribed for such district or part thereof, it shall be the duty of the council to vote upon said petition within ninety days after the filing of the same by the petitioners with the city clerk. In case of protest against a proposed amendment, supplement or change be presented, duly signed and acknowledged by the owners of twenty per cent. or more of any frontage proposed to be altered, or by the owners of twenty per cent. of the frontage immediately in the rear thereof, or by the owners of twenty per cent. of the owners of the frontage directly opposite the frontage proposed to be altered, such amendment shall not be passed except by three-fourths vote of the council.”

Plaintiffs prayed for both a temporary and permanent injunction restraining the issue of further permits of the same character and restraining defendants Ritter and Loughlin from erecting buildings not contemplated by the zoning ordinance, and for judgment declaring void the pretended ordinance and permit.

It is an important contention of defendants that injunction is not the proper remedy; that, if the amendment of July 9th is void, the remedy was an arrest and prosecution under the zoning ordinance as it stood prior to the amendment. For this proposition they rely on two Wisconsin cases. Waupun v. Moore, 34 Wis. 450, 17 Am. Rep. 446, and Janesville v. Carpenter, 77 Wis. 288, 46 N. W. 128, 8 L. R. A. 808, 20 Am. St. Rep. 123.

In the first of these cases an ordinance of the...