State ex rel. Bollenbeck v. Vill. of Hills

• Decision Date: 15 April 1941
• Citation: 297 N.W. 568,237 Wis. 501
• Parties: STATE ex rel. BOLLENBECK v. VILLAGE OF SHOREWOOD HILLS et al.
• Court: Wisconsin Supreme Court

237 Wis. 501

297 N.W. 568

STATE ex rel. BOLLENBECK

v.VILLAGE OF SHOREWOOD HILLS et al.

Supreme Court of Wisconsin.

April 15, 1941.

Appeal from a judgment of the Circuit Court for Dane County; Alvin C. Reis, Circuit Judge.

Affirmed.

Action by Madeline B. Bollenbeck, plaintiff and respondent, commenced by petition to the circuit court for Dane County on August 19, 1940, for a review of the decisions of the commissioner of buildings and the board of appeals under the zoning ordinance of the village of Shorewood Hills. The plaintiff, hereinafter referred to as the petitioner, in the owner of Lot 155, Second Addition to Shorewood Hills, diagrams of which, exhibit B, parts 1 and 2, are printed herein.

Exhibit B

Part I.

PART OF 2nd ADDITION TO SHOREWOOD HILLS, DANE COUNTY, WISCONSIN.

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Exhibit B.

Part II

Detailed Diagram of Lot 155, 2nd Addition to Shorewood Hills

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Lot 155 is in the “AA” residential district of Shorewood Hills. The petitioner applied to the commissioner of buildings for a building permit for a house of the size and shape, and located on said lot, as shown on diagram, exhibit B, part 2. The building commissioner ruled that under the zoning ordinance it was necessary for the petitioner to maintain a setback of twenty-five feet from Shady Lane, and a setback of twenty-five feet from Wood Lane. Petitioner appealed from the ruling of the commissioner to the board of appeals, which board on July 20, 1940, rendered a decision affirming the ruling of the commissioner, whereupon these proceedings were instituted in the circuit court for Dane County. On August 21, 1940 the trial court entered judgment reversing and setting aside the action of the board of appeals which refused petitioner a permit to build her house on Lot 155, Second Addition to Shorewood Hills according to the plans and specifications theretofore presented. The defendants village of Shorewood Hills and the commissioner of buildings appeal.

Schubring, Ryan, Petersen & Sutherland and Ralph E. Axley, all of Madison, for appellants.

Sanborn, Blake & Aberg, Wm. J. P. Aberg, R. W. Bollenbeck, and Edwin Conrad, all of Madison; for respondent.

MARTIN, Justice.

Defendants contend that the plaintiff's petition does not state a cause of action and that the court erred in overruling their motion to supersede the writ of certiorari and in entering judgment for the plaintiff upon such petition. The motion to supersede the writ of certiorari is in the nature of a demurrer to the petition.

A construction of the zoning ordinance involves the following definitions of the various types of lots as defined in the ordinance:

“Lot: Land occupied or to be occupied by a building and its accessory buildings and including such open spaces as are required under this ordinance and having its principal frontage on a public street or officially approved place and constituting an entire platted lot or more unless held under separate and distinct ownership from adjacent lots and of record at the time of the adoption of the regulations herein contained, or having an average width of at least eighty feet, and an area of at least ninety-six hundred square feet unless held under separate and distinct ownership from adjacent lots and of record at the time of the adoption of the regulations herein contained.

“Lot, Corner: A parcel of land, other than a triangular lot, under common ownership, not more than fifty feet wide at the intersection of two or more streets, intersecting at an angle not exceeding one hundred and thirty-five degrees.

“Lot, Interior: A lot other than a corner lot.

“Lot, Through: An interior lot having frontage on two streets.

“Lot, Triangular: A parcel of land under common ownership fronting on two or more streets intersecting at an angle of less than forty-five degrees. ***”

General definitions pertaining to building requirements are as follows:

“Setback: The minimum horizontal distance between the front line of the building, including enclosed and unenclosed porches, and the street line.”

“Yard, Rear: A space, unoccupied by any building, extending for the full width of the lot between the building and the rear lot line.”

“Yard, Side: An open, unoccupied space on the same lot with a building, between the building and the side lot line, and extending from the street to the rear yard.”

Area regulations of the “AA” residence districts are as follows:

“Rear Yard. There shall be a rear yard having a minimum depth of twenty-five feet free from accessory buildings.

“Side Yard. There shall be a side yard on each side of the building of not less than fifteen feet in width.

“Setback. There shall be a setback line of not less than twenty-five feet, provided that when twenty-five per cent or more of all the frontage on one side of a street between two intersecting streets is built up with buildings having a minimum setback line of more, or of less than twenty-five feet from the street line, no building hereafter erected or altered shall project beyond the minimum set back line so established; provided that this regulation shall not be interpreted so as to reduce the buildable depth of any lot to less than forty feet or so as to reduce the buildable width of a corner lot facing an intersecting street, held under a separate and distinct ownership from adjacent lots and of record, at the time this ordinance is adopted, to lens than twenty-seven feet.”

“Area. (A) Buildings on through lots shall have the required setback from both streets in lieu of the required rear yard.”

Defendants contend that Lot 155 is a through lot as defined in the ordinance and that the building to be located thereon must have a setback of not less than twenty-five feet from both Wood and Shady Lanes. Shady Lane, as shown in the diagram, exhibit B, part 1, is a dead end street extending from the front end of petitioner's lot to the rear line where it ends, abutting property owned by the...