Missionaries of Our Lady of La Salette v. Village of Whitefish Bay

• Decision Date: 09 November 1954
• Citation: 66 N.W.2d 627,267 Wis. 609
• Parties: MISSIONARIES OF OUR LADY OF LA SALETTE, a Wis. corporation, Respondent, v. VILLAGE OF WHITEFISH BAY, Board of Zoning Appeals, Appellant.
• Court: Wisconsin Supreme Court

Page 627

66 N.W.2d 627

267 Wis. 609

MISSIONARIES OF OUR LADY OF LA SALETTE, a Wis. corporation, Respondent, v. VILLAGE OF WHITEFISH BAY, Board of Zoning Appeals, Appellant.

Supreme Court of Wisconsin.

Nov. 9, 1954.

This is an appeal from a judgment entered February 10, 1954, in the circuit court for Milwaukee county in a proceeding of review by certiorari, reversing the decision of appellant, Board of Appeals of the village of Whitefish Bay, which had affirmed an order of the Village Building Inspector directing the respondent, Missionaries of Our Lady of La Salette, a Wisconsin nonstock corporation, to discontinue its use and occupancy of a residence at 5270 North Lake Drive, Whitefish Bay, Milwaukee county, for reason that the same is in violation of the village zoning ordinance.

Thje following facts are established of record:

By zoning ordinance the village of Whitefish Bay is divided into seven districts. They are: District 1.--Lake Shore Residence District; District 2.--Single-Family Residence District; District 3.--Two Family Residence District; District 4.--Public Buildings and Grounds District; District 5.--Apartment District; District 6.--Business District; District 7.--Automobile Parking District.

Section 14.04 of the zoning ordinance restricts the use of buildings or premises in district 1 to the following: (a) Single family dwellings; (b) noncommercial greenhouses, nurseries, and gardens; (c) uses and buildings accessory to those enumerated above. However, not exceeding one person may, in a dwelling used as his residence--1. Rent out not more than two rooms from the premises designated for one family, or furnish table board to not exceeding four persons; 2. carry on a customary home occupation provided no persons other than members of his own household are employed therein; 3. carry on a profession, provided that the office of a dentist shall not contain more than one dentist's chair and a physician's office shall not contain more than one consultation or examination room.

Section 14.07 of the zoning ordinance permits the use in district 4 of the following: (a) Armories but not including stables for horses; (b) churches including accessory rectories, auditoriums and convents; (c) public buildings and grounds; (d) schools, including accessory buildings, play grounds, athletic fields, stadiums, gymnasiums and field houses; (e) hospitals and sanitariums; (f) sewerage ans water pumping stations and water storage tanks; (g) clubs, lodges, community houses, and homes for the aged or dependent, except those, the chief of activity of which is a service customarily carried on as a business; (h) uses and buildings accessory to those enumerated in subsections (a) to (g) in this subsection, including single family dwellings and private garages for the sole use of the owner and his or its officers, members of their families and employes, but not including any duplex or double house, store, trade, business or industry.

Section 14.02(11) of the zoning ordinance defines the word 'family' as follows: 'A family is one or more individuals living, sleeping, cooking or eating on premises as a single housekeeping unit.'

The premises at 5270 North Lake Drive are located in district 1 and consist of a tract having a frontage on Lake Drive of 230 feet, and a depth of 590 feet to Lake Michigan, and upon which is situate a twenty room (10 bedrooms) residence with fourcar garage attached. The tax assessment value is $65,000.

Fee title to the premises is in the respondent. Amongst the declared corporate purposes of the respondent are: (a) To own and occupy, as a residence, a home in the county of Milwaukee; (b) to assist wherever and whenever possible parish pastors in serving Roman Catholics in the state of Wisconsin and to promote Roman Catholic Missions; (c) to do all things necessary, proper and desirable toward the promotion of education, charity and religion and perform charitable and benevolent acts of all kinds and description.

Membership in the respondent corporation is limited to members of Reversend Saletyni Missionaries, an Illinois corporation, organized for religious purposes.

A description of the precise use and occupancy of the property is contained in the trial court's written decision, wherein, upon undisputed evidence, it is found 'that at the present time three priests and two lay brothers live in the home out of a total of twenty priests who reside in the midwest and who serve other missions and live at other places of residence in this section of the country. All of the priests and lay brothers residing upon the premises in the village of Whitefish Bay are subject to Father Czelusniak as their Superior. The duty of the two lay brothers includes helping to keep the house and kitchen in order, cooking, serving food, and all of the people living in the house partake of meals at the same table served by one kitchen. The duty of the Superior was described as supplying everything material necessary for living for the entire household, and also spiritual advice and direction. Each person living in the house has his separate room and the place is used as a private residence and for no other purpose. The members of the order who reside upon the premises are authorized in the archdiocese of Milwaukee to help parishes with missions conducted within parish churches away from the premises, retreats, sick calls and administration of sacraments, all outside and away from the premises used as a residence. It is not intended to use the premises for a residence for more than six priests and two lay brothers at any time in the future. The plaintiff will not manufacture anything on the premises nor operate any printing presses or make any spirituous liquors. No alterations in the building are planned or contemplated, and all decisions as to the manner in which the house operates are the responsibility of the Superior. A chapel has been set aside in the home for private religious devotions of the members of the household to which the public is not admitted.'

The Building Inspector's order which was affirmed by the board of appeals contains findings which include the following:

'My investigation indicates that this property was occupied by the Uihlein family as a residence for many years and was then sold in 1947 to Central Office Buildings, Inc. and was not occupied while owned by said corporation. Following the transfer to the Missionaries of Our Lady of La Salette, a Wisconsin corporation, the premises were and are now used and occupied by this corporation housing several priests, and I find such use and occupancy violates section 14.04 of the zoning laws of the village of Whitefish Bay.

'The Missionaries of Our Lady of La Salette, a Wisconsin corporation, could properly use and occupy property in the village of Whitefish Bay in district 4, described in section 14.06 of the zoning laws of the village of Whitefish Bay.' (N. B. Restrictions as to district 4 are embraced in sec. 14.07 of the zoning code.)

Harry J. Hayes, Village Atty., Maxwell H. Herriott, Special Atty., Milwaukee, for appellant.

Richard B. Surges, Milwaukee, for respondent.

STEINLE, Justice.

The question presented is whether the use and occupancy conforms to that permitted by the ordinance in the district where the premises are located. The facts are not in dispute. There is no challenge of the validity of the zoning ordinance with respect to its enactment. The classification prescribed by the ordinance is not unreasonable.

The appellant strongly contends that the use and occupancy of the premises by the respondent is not that of a family such as is only permitted in district 1, but that in fact its use is that of a convent, permitted only in districts 4, 5, and 6.

Restrictions contained in a zoning ordinance must be strictly construed. A violation of such ordinance occurs only when there is a plain disregard of its limitations imposed by its express words. In State ex rel. Bollenbeck v. Village of Shorewood Hills, 1941, 237 Wis. 501, 507, 297 N.W. 568, 571, this court quoted with approval from Brown v. Levin, 1929, 295 Pa. 530, 531, 145 A. 593, as follows:

"Covenants restricting the use of land are construed most strictly against one claiming their benefit and in favor of free and unrestricted use of property; a violation of the covenant occurs only when there is a plain disregard of the limitations imposed by its express words."

and stated that 'This rule has been extended to restrictions in zoning and building ordinances.' See Chamberlain v. Roberts, 1927, 81 Colo. 23, 253 P. 27; Town of Darien v. Webb, 1932, 115 Conn. 581, 162 A. 690; and Landay v. MacWilliams, 1938, 173 Md. 460, 196 A. 293, 114 A.L.R. 984. This court in its opinion in the Bollenbeck case, 237 Wis. at page 508, 297 N.W. at page 571, then declared:

'Upon the foregoing authorities, it must be held that building restrictions, whether contained in deeds or ordinances, must be strictly construed.'

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