Rosenberg v. Vill. of Whitefish Bay

• Decision Date: 04 June 1929
• Citation: 225 N.W. 838,199 Wis. 214
• Parties: ROSENBERG ET AL. v. VILLAGE OF WHITEFISH BAY ET AL.
• Court: Wisconsin Supreme Court

199 Wis. 214

225 N.W. 838

ROSENBERG ET AL.

v.VILLAGE OF WHITEFISH BAY ET AL.

Supreme Court of Wisconsin.

June 4, 1929.

Appeal from a judgment of the Circuit Court for Milwaukee County; Edward T. Fairchild, Circuit Judge. Reversed.

Action for declaratory relief under section 269.56 of the Statutes begun February 16, 1928, by I. J. Rosenberg, Rose Rosenberg, and Highland Beach Company against the village of Whitefish Bay, Frank C. Klode, Harold Connell, John E. Kitzke, Walter G. Meyer, O. F. Stotzer, Henry Wright, G. W. Van Dersee, W. H. Volkmann, and E. L. Pagels to determine the effect of a zoning ordinance passed by the village of Whitefish Bay. From a judgment entered December 24, 1928, determining that such ordinance prevented the plaintiffs from erecting hotel and apartment buildings on their property, the plaintiffs appealed.

Under the zoning ordinances in force when Mr. Rosenberg acquired an interest in the property here in question, the same could be used only for the erection of one and two family dwellings. Mr. Rosenberg asked that these zoning ordinances be so changed that the property could be used for hotel and apartment house purposes. The village trustees called a meeting, which was largely attended by residents of the village, which voted by an overwhelming majority in favor of the requested change. The village board then passed an ordinance repealing the restriction that this area should be only used for one and two family dwellings.

At the same time, in order to protect the interests of the public, the village attorney drew a deed from the plaintiffs Rosenberg to the Highland Beach Company which conveyed the property in question and restricted its use to either apartment hotels and buildings or to one and two family dwellings for the period of 50 years. The deed contained restrictions as to the area to be occupied by buildings, building lines, and heights and costs of buildings that were declared to be covenants running with the land for the benefit of the village and of the inhabitants thereof which could be enforced at the suit of the village in case of a violation of any of these restrictions.

Following the passage of this ordinance, Mr. Rosenberg engaged an architect to investigate similar buildings in other cities, and incurred obligations for architect's services and expenses of travel which totaled about $9,000. About 15 months after the passage of the ordinance referred to above, Mr. Rosenberg's architect presented preliminary plans and a model of the proposed apartment hotel to the proper village officer, and asked a permit to begin excavating for the building. He was informed that Mr. Rosenberg would not be permitted to erect the building on this property, and that the village proposed to condemn the property for park purposes. Condemnation proceedings were then begun, but dismissed seven months later. Prior to the dismissal of the condemnation proceedings, the village trustees passed Ordinance 219 amending the zoning ordinance of the village so that the property in question could be used for neither hotel nor apartment purposes. The trial court held that Ordinance 219 was valid and enforceable, and that plaintiffs could not use the property in question for any other purpose than that permitted by the ordinance. The appeal is from that determination.Benj. J. Wiener and Alexander, Burke & Clark, all of Milwaukee, for appellants.

George H. Gabel, of Milwaukee (J. E. McCarty, of Milwaukee, of counsel), for respondents.

STEVENS, J.

[1] 1. The case is controlled by the Building Height Cases, 181 Wis. 519, 195 N. W. 544. Ordinance 219, like the statute considered in the Building Height Cases, looks to the future, and is not retroactive in effect. It contains the identical language of the statute considered in those cases; that is, that “no building shall be erected,” etc. The ordinance expressly provides that any building on premises devoted to a nonconforming use at the time the ordinance is passed may be continued in such use after the passage of the ordinance. Like the statute considered in the Building Height Cases, “it is silent concerning buildings in the process of erection at the time the law took effect. A construction of a statute [or ordinance] which gives it a retrospective effect is not favored, and this is especially true where vested rights are affected.” Building Height Cases, 181 Wis. 519, 531, 195 N. W. 544.

[2] The facts in this case are very similar to those presented in the Piper Case ...