Lake Bluff Housing Partners v. City of South Milwaukee

• Decision Date: 20 November 1995
• Docket Number: No. 94-1155,94-1155
• Citation: Lake Bluff Housing Partners v. City of South Milwaukee, 540 N.W.2d 189, 197 Wis.2d 157 (Wis. 1995)
• Parties: LAKE BLUFF HOUSING PARTNERS, a Wisconsin Limited Partnership, Plaintiff-Respondent, d v. CITY OF SOUTH MILWAUKEE and Michael Vesperman, in his capacity as City Building Inspector, Defendants-Appellants-Petitioners.
• Court: Wisconsin Supreme Court

Page 189

540 N.W.2d 189

197 Wis.2d 157

LAKE BLUFF HOUSING PARTNERS, a Wisconsin Limited Partnership, Plaintiff-Respondent, ^d v. CITY OF SOUTH MILWAUKEE and Michael Vesperman, in his capacity as City Building Inspector Defendants-Appellants-Petitioners.

No. 94-1155.

Supreme Court of Wisconsin.

Argued Sept. 7, 1995.

Decided Nov. 20, 1995.

For the defendants-appellants-petitioners there were briefs by Joseph G. Murphy, City Attorney, and Murphy & Leonard, South Milwaukee and oral argument by Joseph G. Murphy.

For the plaintiff-respondent there was a brief by Alan Marcuvitz, Debra A. Slater and Weiss, Berzowski, Brady & Donahue, Milwaukee and oral argument by Alan Marcuvitz & Debra A. Slater.

Amicus curiae brief was filed by Curtis A. Witynski, Madison, for the League of Wisconsin Municipalities.

ROLAND B. DAY, Chief Justice.

This is a review of a published decision of the court of appeals affirming a judgment of the Circuit Court for Milwaukee County, John E. McCormick, Judge, granting a writ of mandamus ordering the City of South Milwaukee (the City) to issue a building permit to Lake Bluff Housing Partners (Lake Bluff). This case presents the following issue: may a court, through the exercise of discretion, resort to "equitable principles" to supply a "right" to the issuance of a building permit where the building plans submitted did not comply with the applicable zoning and building code requirements, and thereby find a positive and plain duty on the part of the municipality to issue a building permit for a construction that would be in violation of the ordinance. We conclude that the circuit court in this case erred in granting a writ of mandamus in the absence of a clear legal right on the part of Lake Bluff and a positive and plain duty on the part of the City, and therefore reverse the decision of the court of appeals.

The facts in this case are largely undisputed. Lake Bluff, a Wisconsin limited partnership, is a developer of rental properties. In December 1992, Lake Bluff purchased a parcel of land for $294,000 along the shoreline of Lake Michigan in South Milwaukee, intending to construct a multi-family development that would qualify for low income housing tax credits administered by the Wisconsin Housing and Economic Development Authority (WHEDA). The zoning on the parcel was "C-2," a classification allowing the construction of multi-family residential units. Although the parcel had been zoned C-2 since 1965, there were no multi-family units on the land in 1992. Lake Bluff verified through the land's previous owners that the land was zoned C-2, and that such zoning would allow for a multi-family development, before purchasing the land.

Lake Bluff had applied for a tax credit through WHEDA in October, 1992. WHEDA awarded Lake Bluff a $266,903 site-specific tax credit in December, 1992. Later that same month, Lake Bluff paid WHEDA a non-refundable fee of $16,314 to reserve the credit. Lake Bluff then had the property surveyed at a cost of $1,150, and contracted with an architect to prepare project plans at a cost of $29,513. In order to preserve the WHEDA tax credit, Lake Bluff's project had to be built and certificates of occupancy had to issue by December 31, 1994. The trial court found that Lake Bluff would have had to begin construction "immediately" after the issuance of the trial court's May 1994 order granting mandamus in order to complete the project in time.

In February 1993, representatives of Lake Bluff met with the mayor, city administrator, building inspector, city engineer, and district alderperson of South Milwaukee to review initial plans for its project. At this meeting, Lake Bluff proposed building seven apartment buildings on the land, each with space for eight family units. ¹ The City confirmed that the property was in a C-2 zone that permitted a multi-family project. However, the City advised Lake Bluff that all construction along the lake bluff required a bluff assessment establishing that the project would not cause bluff erosion. The City also advised Lake Bluff that South Milwaukee's parking requirements had changed and that Lake Bluff would have to modify its plans to meet the new requirements. Lake Bluff subsequently modified its parking plans and commissioned a bluff erosion study costing $4,950.

In a letter to a City of South Milwaukee alderperson dated April 28, 1993, William J. Fox, III, a neighboring landowner, requested that Lake Bluff's land be rezoned from C-2 to R-A. This zoning change would allow for single-family housing, but not for Lake Bluff's proposed multi-family units. On May 6, the City referred Fox's request to its Plan Commission; on May 24, the Plan Commission referred the matter to the South Milwaukee City Attorney for review and comment. The Plan Commission also recommended that no building permits issue while the rezoning request was under consideration. The trial court found that Lake Bluff did not learn that the City was considering a moratorium on the issuance of any building permits for the property or a rezoning until June 22, 1993, and that Lake Bluff did not have an opportunity to participate in the May meetings of the Plan Commission or the Common Council.

On July 6, 1993, the South Milwaukee Common Council adopted resolution number 93-30, pertaining only to the Lake Bluff property, imposing a moratorium on the issuance of any building permits while the Council considered the rezoning request. ² The Plan Commission then considered the rezoning request at its meeting of July 12, 1993.

On August 5, 1993, the Wisconsin Department of Industry, Labor and Human Relations issued its conditional approval of Lake Bluff's plans. This approval enabled Lake Bluff to seek a "footing and foundation" building permit from the City and subsequently begin construction. Lake Bluff submitted an application for the permit on that same day. Lake Bluff now proposed construction of two buildings: one a three-story building containing 40 units, and the other a two-story building containing 16 units. The City's building inspector denied the permit that same day. The building inspector wrote "per resolution number 93-30 [the moratorium], permit is denied" on Lake Bluff's permit application and returned it to Lake Bluff's representative.

Two days later, in an apparent effort to determine whether the denial was based solely on the moratorium or on some defect in its plans, Lake Bluff wrote to Michael Vesperman, South Milwaukee's building inspector:

Pursuant to our application for a "Footing/Foundation" permit on Thursday, August 5, 1993, ... it is the understanding of this office that the following additional information will be required:

a. the City Engineer ... will review the drawings deposited with your office to "verify site/building grades" for conformance,

b. your office will review the drawings deposited with your office for "conformance to required set backs,"

c. two (2) additional sets of drawings are required for application, one (1) additional "State Approved" copy, plus one (1) not necessarily stamped set,

d. evidence of "DILHR Letter of Approval" dated August 5, 1993 for each building, copies of which have been sent directly to your office by DILHR via the U.S. Mail, and

e. Footing/Foundation permit for the above captioned project "has been denied" per [the moratorium] dated July 6, 1993. Any questions concerning this matter should be referred to the City Attorneys office, attention Mr. Joseph Murphy.

Should you be in disagreement with any of the contents of this letter, please notify this writer via facsimile ... with a hard copy via U.S. mail, prior to the close of business on Monday, August 9, 1993.

The City did not formally respond to this letter. ³ On August 20, Lake Bluff again wrote to the City requesting a specific response to its concerns. On August 24, the City Attorney replied to the August 20 letter, writing, in part:

Please be advised that Mr. Vesperman has not yet reviewed the plans presented for the structural aspects of the property, has not verified the setbacks and zoning compliance and erosion control measures contemplated and the City Engineer has not had the opportunity to check the grading and zoning compliance. Furthermore, the Building Board of Review has not yet reviewed the plans. Also, please be advised that inasmuch as the moratorium will not allow construction of this project until after November 4, 1993, neither the City Building Inspector nor the City Engineer intends to drop everything else that they are currently engaged in to process this application for a building permit. Your application for a permit will simply have to wait its turn for their attention like everything else that is coming across their desk. If there is some reason that their review ought to be advanced and expedited, please advise me.

Lake Bluff did not reply to the City Attorney's request to be advised "if there is some reason that ... review ought to be advanced and expedited." Instead, the partnership attempted to resolve its difficulties through the political process. A Lake Bluff general partner wrote letters to the Mayor of South Milwaukee on September 24 and October 7, 1993, requesting the cooperation of the City in consideration of the development plans, and in the scheduling of a Plan Commission meeting at which to discuss alternative solutions ⁴ to the dispute.

On October 7, the Common Council of the City of South Milwaukee held a public hearing on the rezoning request. On November 2, 1993, the City enacted an ordinance rezoning the Lake Bluff property from C-2 to R-A. ⁵ On March 10, 1994, Lake Bluff resubmitted its application for a building permit, and also filed a complaint seeking a writ of mandamus to compel issuance of the permit. ⁶ The complaint alleged that Lake Bluff had acquired vested rights in the C-2 zoning of the property prior to the City's enactment of the change in the zoning, and requested the...