State ex rel. B'nai B'rith Foundation of U.S. v. Walworth County Bd. of Adjustment

• Decision Date: 18 June 1973
• Docket Number: No. 408,408
• Citation: 59 Wis.2d 296,208 N.W.2d 113
• Parties: , 64 A.L.R.3d 1075 STATE ex rel. B'NAL B'RITH FOUNDATION OF the UNITED STATES, etc., Appellant, v. WALWORTH COUNTY BOARD OF ADJUSTMENT, Respondent, Lauderdale Lakes Improvement Assn. et al., Intervenors-Respondents.
• Court: Wisconsin Supreme Court

Page 113

208 N.W.2d 113

59 Wis.2d 296, 64 A.L.R.3d 1075

STATE ex rel. B'NAL B'RITH FOUNDATION OF the UNITED STATES etc., Appellant, v. WALWORTH COUNTY BOARD OF ADJUSTMENT, Respondent Lauderdale Lakes Improvement Assn. et al., Intervenors-Respondents.

No. 408.

Supreme Court of Wisconsin.

June 18, 1973.

Quarles, Herriott, Clemons, Teschner & Noelke, Milwaukee (Maxwell H. Herriott and Steven R. Duback, Milwaukee, of counsel), for appellant.

William L. Seymour, Corp. Counsel, Elkhorn, for Bd. of Adjustment.

Godfrey, Neshek, Worth & Howarth, Milton E. Neshek and Richard A. Howarth, Jr., Elkhorn, for intervenors.

WILKIE, Justice.

Two issues are raised by this appeal:

1. Did the trial court err in its ruling that the evidence established the use to which appellant intended to put its property was not within either of the two Walworth county zoning ordinances?

2. Do the Walworth county zoning ordinances violate appellant's rights under the United States and Wisconsin Constitutions?

Is Intended Use Within Zoning Ordinances?

Appellant's chief contention is that its proposed use of the 28 acres is included within the permitted uses of the applicable zoning ordinances, and that the circuit court's conclusion to the contrary is not supported by the credible evidence. According to appellant, the trial court adequately summarized the application statement of the intended use of the 28 acres in question under both Walworth county zoning ordinances:

'1. Conference Center--to include programs for adults in current topics of interest to members of B'nai B'rith, primarily religious and educational.

"2. Leadership Training Center--for special short-term sessions to train teenagers and young adults to be more responsible members of society and more responsive to their Jewish faith.

"3. Children's Program--for 8-to-16-year-olds: to provide a summer program emphasizing religious programs, educational discussions, and an incidental role for the recreational programs that can exist concurrently with the other two."

Mr. Samuel B. Skolnick, a director of appellant's outdoor education program, testified at the hearing before the Board of Adjustment that appellant's intended use of the entire acreage owned by B'nai B'rith could be separated into two categories on the basis of age. According to Skolnick, the 28 acres for which occupancy and zoning permits were refused would be used solely for the year-round conference center (adults) and leadership training center (young adults). These centers, he testified, would house from 30 to 70 persons for from one to seven weeks. The staff, according to appellant's application, would consist of rabbis, social workers and educators, and '(p)rimary emphasis will be placed on subjects involving the Jewish faith.'

Skolnick further testified that the children, from the ages of 8--16 years, would occupy the B'nai B'rith acreage east of Highway 12 chiefly during the months of July and August. While Skolnick would not comment upon the maximum number of children anticipated by appellant, its brief suggests the number to be around 400. These children, while using the educational and recreational facilities located on the 28 acres in respondent's Residence District 'A,' would be housed and fed on the east tract. According to appellant's application the meals would be prepared in the Main House on the 28-acre tract but transported to the 'Trout Pond Lodge' east of Highway 12. According to Skolnick, the majority of time in the youth programs would be spent in educational programs. These programs include classes in arts and crafts, camp craft, nature, athletics, drama and music, current affairs, and religious programs which include daily worship and Sabbath services and Hebrew and Bible classes.

Appellant's zoning applications also listed the following adult recreational facilities to be used on the 28-acre tract: swimming pool and cabana, rowboats and canoes, a miniature and regular golf course, and tennis courts. Changes in the existing buildings would involve shifting of beds in several houses for maximum space advantage and the conversion of the farm buildings into classrooms and an auditorium. Children's program activities listed in appellant's application are: swimming pool and waterfront activities, basketball and volleyball, minor use of the golf course, and other activities. ²

The two Walworth county zoning ordinances are identical with respect to Residence District 'A.' The pertinent provisions of the Shoreland Zoning Ordinance and the Amended Zoning Ordinance of 1962 are as follows:

'SECTION III. RESIDENCE DISTRICT 'A'

'Use. In the Residence District 'A' no building or premises shall be used and no building shall hereafter be erected, moved or structurally altered, unless otherwise provided in this ordinance, except for one or more of the following specified uses:

'1. Single family dwellings.

'2. Churches, public and parochial schools.

'. . .

'4. Parks, playgrounds, swimming pools, tennis courts and bathing beaches. It is considered desirable that each such park or playground comply as far as possible with the yard and parking requirements established for recreation camps in Section IV. . . .

'. . .

'7. Accessory buildings, including private garages and buildings clearly incidental to the residential use of the property, provided, however, that no accessory building may be used as a separate dwelling unit.

'. . .

'10. Home occupations, when such occupation is incidental to the residential use of the premises and does not involve any external alteration that would effect a substantial change in the residential character of the building . . ..

'11. Professional offices, when such office is conducted solely by a member or members of the resident family, entirely within the residence and incidental to the residential use of the premises; provided further that there shall be no external alterations that would effect a substantial change in the residential character of the building . . ..' ³

The Amended Zoning Ordinance of 1962 defines a dingle family dwelling as '(a) detached building designed for, and occupied exclusively by, one family.' ⁴ A family is defined as '(a)ny number of individuals related by blood, adoption, marriage or not to exceed 5 persons not so related, living together on the premises as a single housekeeping unit, including any domestic servants.' ⁵

Appellant contends each and every one of its intended uses of the 28 acres subject to the Residence District 'A' designation of the two Walworth county zoning ordinances is a permitted use thereunder. Thus, appellant contends its main use of the acreage as an educational and religious training center falls within the Residence District 'A' authorization of schools and churches. Additionally, it is contended that all of the recreational aspects of the intended use are also permitted under the ordinance's 'A' district. Appellant urges this court to recognize the spirit of the ordinance rather than its letter, ⁶ and to construe any ambiguities in favor of the free and unrestricted use of the property. ⁷ Appellant also cites, in its reply brief, the utilization in the ordinances of the word 'uses' to describe permissible structures rather than buildings and argues that as a result an activity or proposed use must be assigned to that zoning district 'which best fits the totality of proposed uses.' According to appellant, the totality of its proposed uses on the 28 acres are educational and religious and, therefore, such uses fit within the school and church 'uses' permitted within Residence District 'A.'

The standard of review on certiorari of an administrative board action has long been 'the findings of the board upon the facts before it are conclusive if in any reasonable view the evidence sustains them.' ⁸ While appellant is correct in citing Missionaries of La Salette v. Whitefish Bay for the proposition that ambiguities in zoning ordinances should be construed in favor of the free and unrestricted use of property, ⁹ this court has recently held in a number of cases, on the other hand, that zoning ordinances are to be liberally construed in favor of the municipality, ¹⁰ and that judicial review of the legislative function of zoning is 'restricted to cases of abuse of discretion, excess of power, or error of law.' ¹¹

In the instant case the county planner, Mr. Johnson, in denying appellant's zoning applications, stated:

'It is my opinion that use 2: 'Churches, public and parochial schools' of Section III of the Zoning Ordinance does not include the main uses listed under your general intent section, such as 1) Conference Center, 2) Leadership Training Center, and 3) Children's Program. My interpretation is that a 'school' by the Zoning Ordinance is meant to be the conventional school building commonly located in most municipalities.'

Mr. Johnson further stated that the appellant's intended use more accurately fitted Section XIV A 9(d) of the 1962 zoning ordinance. This section provides:

'9. The board of adjustment, after investigation and public hearing, may authorize the location of any of the following buildings or uses in any district from which they are excluded by this ordinance, provided the board of adjustment shall find . . ..

'. . .

'(d) Institutions, public or private, of an educational, philanthropic or charitable nature.' ¹²

The Board of Adjustment expressly adopted these reasons as their own in affirming the county planner's denial of appellant's applications. In its review this court must, therefore, determine whether the orders of the county planner and County Board of Adjustment are, in any reasonable view, supported by the credible evidence.

Critical to appellant's contentions is the meaning of the words 'school' and 'church' which are used in the two zoning ordinances to describe permitted uses. While the ordinances expressly define a variety of terms, they are silent on both these words....