Jefferson County v. Timmel

• Decision Date: 05 February 1952
• Citation: 51 N.W.2d 518,261 Wis. 39
• Parties: JEFFERSON COUNTY, v. TIMMEL.
• Court: Wisconsin Supreme Court

Page 518

51 N.W.2d 518

261 Wis. 39

JEFFERSON COUNTY, v. TIMMEL.

Supreme Court of Wisconsin.

Feb. 5, 1952.

Rehearing Denied April 8, 1952.

At a special session of the Board of Supervisors of Jefferson county (hereinafter referred to as the 'county board') held June 7, 1938, a comprehensive zoning ordinance for Jefferson county was adopted. By this zoning ordinance certain districts in the county were zoned as 'conservancy districts' and any buildings and premises located in such conservancy districts were prohibited to be used for either retail business or wholesale business purposes. At the time of adoption the town boards of the Town of Farmington and certain other towns had approved the ordinance, and the ordinance provided it was to be effective in other towns when approved by their respective town boards. The county board also in 1938 adopted a building permit ordinance which provided that thereafter no building was to be built, altered or moved within the county outside of the limits of incorporated villages or cities unless a building permit for the same be first obtained from the county clerk after a written application for the same shall first have been filed with the clerk stating the purpose for which the building was to be used. This latter ordinance further provided that the clerk was to issue the building permit only after he had found that the proposed building would comply with all ordinances of the county. This building permit ordinance provided that the remedy of any person aggrieved by any ruling of the county clerk under the ordinance was an appeal to the Board of Adjustment created by the zoning ordinance.

The zoning ordinance was amended from time to time by the county board but the only amendments material to this appeal are the amendments reported to the county board by the county park commission on December 16, 1947, and on that date the county board tentatively approved the proposed amendments and amended zoning map and provided for their submission to the town boards affected thereby. By these amendments a Conservancy District B was established along State Trunk Highway 30 which traverses Jefferson county in a generally easterly and westerly direction, and it was provided that no building, premises or structures were to be thereafter erected or structurally altered in Conservancy District B except for one or more of the following purposes:

1. Single family residence

2. Multiple family residence

3. Accessory buildings

4. Home occupations

5. General farming

These amendments also contained the following clause: 'Be it further ordained that the zoning map of Jefferson county be amended by the establishment of Conservancy District B as shown on the map attached hereto and made a part of this ordinance'.

The county park commission had been directed by the county board to prepare such amendments and had conducted a public hearing on the same on December 9, 1947, at the court house, notice of which hearing had been published in the Watertown Daily Times on November 28th, December 2nd, and December 5th, 1947. This published notice gave the date, place, and hour of the public hearing and stated that the hearing was being held on proposed changes in the Jefferson county zoning ordinance to create a new conservancy district along new State Trunk Highway 30, and that the entire proposed amendments were on file at the county clerk's office.

On January 13, 1948, the county board adopted these proposed amendments previously reported to it by the county park commission on December 16, 1947, and such amendments will hereafter be referred to as the '1947 amendments'. The December 16, 1947 proceedings of the county board, containing an exact copy in full of these 1947 amendments to the zoning ordinance, except only that the amended zoning map was omitted, were published in the Jefferson Banner on January 29, 1947, it being the officially designated newspaper for publication of the county board proceedings. The county board proceedings of January 13, 1948, showing final adoption on that date of these amendments to the zoning ordinance were published in the February 5, 1948, issue of the Jefferson Banner.

One John Perry, a former county highway commissioner, for many years owned a farm abutting on State Trunk Highway 30 in the Town of Farmington where such highway intersected County Trunk P, the latter highway running in a northerly and southerly direction. The dwelling house on this farm was on the east side of County Trunk P some distance north of the intersection with Highway 30, and the barn and other farm buildings were located on the west side of P. For some years Perry had two farm gasoline pumps, one on the west side of P and the other on the east side of such highway. These pumps had underground gasoline storage tanks and were used to store gasoline for use on the farm and were of the type to be found on many farms, but some gasoline was also sold by Perry and his son from these pumps to passers-by. At one time there was a small one-car garage adjacent to the pump on the east side of the highway which was used in connection with making sales from the pump and for repairing motor vehicles, but such garage was removed from the premises in 1941 or 1942. Perry also claims that he or his son sold some tires and tubes from the premises.

On March 30, 1949, Perry filed a written application with the county clerk for a building permit to erect a one-story building with basement underneath, 30 by 36 feet in size, on the northeast corner of the intersection of highways 30 and P, the same to be 91 feet east from the center line of P and 153 feet north from the center line of 30. The application stated that the building was to be used for a retail store. This application was denied and on July 1, 1949, Perry filed with the county clerk a new application which was practically identical with the first application except that it stated that the building was to be used for a private residence. On July 5, 1949, the clerk issued a building permit to Perry to build such building, the permit stating that the application had been approved by the county zoning committee and bore this special notation 'Approved orally by Edward Brewin--he told Hyer it would be O.K. if only for a residence'. (Brewin was chairman of the county zoning committee and Hyer was county clerk.)

The new building authorized by the permit was completed sometime after September 9, 1949, and two gasoline pumps with attached underground storage tanks were installed alongside the new building for the commercial sale of Shell gasoline. These new pumps were 50 to 75 feet distant from where the old pump formerly located to the north and on the east side of P had been, and the new building was 50 or 60 feet distant from the former garage building which had been removed from the premises seven or eight years before.

Upon completion of the new building Perry did not use it for residence purposes but as a business place and storeroom for selling gasoline, oil, anti-freeze, tobacco, cigarettes and pop. On February 28, 1950, Perry sold this new building and some of the adjoining land to the defendant Ernst Timmel, but it does not appear from the record whether there was included the parcel to the north of the new building on which the original gasoline pump on the east side of P was located. The parcel sold was in the form of a trapezium, the dimensions of the four sides being 165, 226, 178, and 257 feet respectively. At the time of sale there was no discussion between Perry and Timmel about the zoning ordinance, and Timmel testified that he did not learn until afterward that the premises were barred from use for commercial purposes by reason of such ordinance. Timmel continued to sell the same articles that Perry had, and in addition tires, candy, and ice cream. On July 1, 1950, Timmel obtained a Class B beer license and sold beer in the premises from a fifteen-foot bar, which was the first time beer had ever been sold there. Timmel and his family occupied part of the building for residence purposes.

On May 22, 1950, the zoning committee and the district attorney of Jefferson county met with Perry and Timmel. Perry and Timmel were then warned that the premises could be used for residence purposes only in accordance with the building permit and if they persisted in using the building for commercial purposes an injunction suit to restrain such use would be instituted. Timmel persisted in using the premises for commercial purposes, and even expanded such use by thereafter commencing the sale of beer.

On November 3, 1950, the plaintiff county commenced an action against Timmel praying for a permanent injunction restraining Timmel from using the premises as a filling station, or tavern, or any other purpose which would be in violation of the county zoning ordinance. The defendant served an answer in which he denied the validity of the zoning ordinance and alleged that since February 28, 1950, he had used the premises as a filling station and for the sale of gasoline, oil, soft drinks, candy, and other merchandise commonly sold at filling stations, and that since July 1, 1950, he had sold beer there, but denied that any of such uses of the premises violated any zoning ordinance of the county. The answer then set forth a counterclaim in which the defendant alleged that he was maintaining the action and defense in behalf of all persons similarly situated who were affected by the alleged zoning ordinance; that defendant had purchased the premises on February 28, 1950, under a warranty deed and abstract which did not disclose any restrictions as to the use of the premises and that the restrictions of the alleged zoning ordinance were not recorded in the office of the register of deeds; that the threatened enforcement of the alleged zoning ordinance would seriously affect the defendant and those similarly situated from carrying on legitimate...