State ex rel. Cities Service Oil Co. v. Board of Appeals

• Decision Date: 26 November 1963
• Parties: STATE ex rel. CITIES SERVICE OIL CO., a corp., Petitioner-Respondent, v. BOARD OF APPEALS et al., Respondents, Modern Car Wash, Inc., et al., Impleaded Appellants, Paul D. Post, Intervening Respondent. (Two notices of appeal) STATE ex rel. MODERN CAR WASH, INC., et al., Appellants, v. BOARD OF ZONING APPEALS OF the CITY OF MILWAUKEE et al., Respondents.
• Court: Wisconsin Supreme Court

Page 809

124 N.W.2d 809

21 Wis.2d 516

STATE ex rel. CITIES SERVICE OIL CO., a corp., Petitioner-Respondent, v. BOARD OF APPEALS et al., Respondents, Modern Car Wash, Inc., et al., Impleaded Appellants, Paul D. Post, Intervening Respondent. (Two notices of appeal)

STATE ex rel. MODERN CAR WASH, INC., et al., Appellants, v. BOARD OF ZONING APPEALS OF the CITY OF MILWAUKEE et al., Respondents.

Supreme Court of Wisconsin.

Nov. 26, 1963.

Harry W. Theuerkauf, Milwaukee, for impleaded appellants.

Hanley, Wedemeyer & Cavanaugh, Milwaukee, for Cities Service Oil Co.

John J. Fleming, City Atty., Cornelius J. Merten, Asst. City Atty., Milwaukee, for Board of Appeals.

Grootemaat, Cook & Franke, Milwaukee, for Paul D. Post, Robert E. Cook, Milwaukee, of counsel.

CURRIE, Justice.

These appeals raise the following pertinent issues:

(1) Does the defendant Board of Appeals possess the power to revoke a building permit issued by the city building inspector?

(2) Did the relators make expenditures in reliance upon the validity of the permit so as to acquire vested rights therein which would prevent the board from thereafter revoking the permit?

(3) Was the appeal to the board by Post, a nearby property owner, fatally defective with respect to timeliness, adequately stating the ground of appeal, or failure to pay required filing fee?

(4) Was the Board of Appeals without jurisdiction to proceed because of alleged defects in the published notices of the hearings called to consider the appeal?

(5) Did the board commit prejudicial error in the manner in which the minutes of its proceedings were kept and made available to public inspection?

(6) Did the board commit prejudicial error by holding executive sessions, or by taking any action at such executive sessions?

(7) Were there such absences from meetings on the part of individual board members as to disqualify them from participating in the final decision revoking the permit?

(8) Did a subsequent change in the applicable zoning ordinance render the proceeding before the board moot?

(9) Does the revocation of the permit constitute a discriminatory enforcement of the applicable zoning ordinance so as to violate the constitutional rights of the relators?

Power of Board to Revoke Building Permit

The appellants advance two reasons in support of their contention that the Board of Appeals was without authority to revoke the building permit. First, they contend that it does not possess this power under the provisions of pars. 7 and 8 of sec. 62.23(7)(e), Stats., 1959. Secondly, they maintain that, even if a board of appeals organized pursuant to sec. 62.23(7)(e), Stats. does possess this power, the instant Board of Appeals was not so organized.

In contending that a board of zoning appeals generally does not possess the power to revoke a building permit, appellants quote this statement appearing in State ex rel. Tingley v. Gurda (1932), 209 Wis. 63, 68, 243 N.W. 317, 319:

'It has been held that zoning boards of adjustment are not created as appellate bodies, and that legal or constitutional questions involved in zoning requirements are not a subject-matter for the determination of such boards, but must be presented for consideration to the proper legal forum. It seems that, generally, their powers of review are limited to practical difficulties, or unnecessary hardship, in the way of carrying out the strict letter of the law. Municipal Gas Co. v. Nolan, 121 Misc. 606, 201 N.Y.S. 582; Losick v. Binda, 102 N.J.Law 157, 130 A. 537; Builder's Realty Corp. v. Bigelow, 102 N.J.Law 433, 131 A. 888.'

When the Tingley Case arose, the powers of the board of appeals were found in sec. 62.23(8)(b), Stats., 1929. Subsequently the statutory language was greatly amended. Not only does par. 7 of sec. 62.23(7)(e), Stats., 1959 provide that the board of appeals has power 'To hear and decide appeals where it is alleged there is error in any order, * * * decision or determination made by an administrative official in the enforcement of this section,' but par. 8 of sec. 62.23(7)(e) has been added which provides:

'In exercising the above mentioned powers such board may, in conformity with the provisions of such section, reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from, and may make such order, requirement, decision or determination as ought to be made, and to that end shall have all the powers of the officer from whom the appeal is taken, and may issue or direct the issue of a permit.'

In Ostrowsky v. City of Newark (1928), 102 N.J.Eq. 169, 139 A. 911, the court had before it a New Jersey zoning statute dealing with the powers of the board of appeals couched in substantially the same language as par. 8 of sec. 62.23(7)(e), Wis.Stats., 1959. The New Jersey court held that under such statute the board of appeals possessed the power to revoke a building permit. We are of the opinion that par. 8 of sec. 62.23(7)(e) clearly confers such power upon a board of appeals constituted pursuant to sec. 62.23(7)(e).

Sec. 62.03, Stats. was enacted in 1921, and has remained unamended in its original form to the present time. This statute provides:

'(1) The provisions of chapter 62 of the statutes shall not apply to cities of the first class under special charter.

'(2) Any such city may adopt by ordinance the provisiosn of chapter 62 of the statutes or any section or sections thereof, which when so adopted shall apply to such city.'

Milwaukee is a city of the first class. On October 15, 1923 its common council enacted an ordinance, section 1 of which provided:

'Section 62.23 of the Statutes of the State of Wisconsin, relating to the Public Land Commission, is hereby adopted by the Common Council and made applicable to the City of Milwaukee.'

Sec. 62.23, Stats., 1923, was entitled 'City Planning' and among other things authorized cities to enact zoning ordinances which would regulate the location of industries and restrict the use of buildings in certain districts. It also authorized a five-member board of appeals. Nowhere does the ordinance specifically refer to a public land commission. The 1923 statute which authorized the creation of a board of public land commissioners is sec. 27.11, Stats., 1923. Sub (14) of sec. 62.23, Stats., 1923 relates to special assessments for street improvements, bridges, memorial grounds, parks and playgrounds, and provides that the plan for these may be adopted either under sec. 62.23 or sec. 27.11. The words of the October 15, 1923 ordinance 'relating to the Public Land Commission' does create an ambiguity. However, we cannot interpret this ordinance as only adopting sub. (14) of sec. 62.23, Stats., 1923, or hold that the ordinance mistakenly referred to sec. 62.23 instead of sec. 27.11. The preamble state sthat its purpose was to 'adopt certain sections of the general charter law according to the provisions of section 62.03 of the statutes of the State of Wisconsin.' In case of ambiguity it is proper to resort to the preamble to ascertain legislative intent. Smith v. City of Brookfield (1956), 272 Wis. 1, 74 N.W.2d 770. Sec. 62.03, Stats., is entirely inapplicable to any section of the statutes not found in ch. 62, the General Charter Law. In order to avoid an absurd result we hold that the words 'relating to the Public Land Commission' does not qualify or restrict the preceding language whereby the common council of the city adopted sec. 62.23, Stats.

We determine that where a city of the first class, pursuant to sec. 62.03, Stats., by ordinance adopts a particular section of ch. 62, The General Charter Law, such adoption embraces any subsequent amendment which the legislature may thereafter make in the adopted statute which is not wholly incompatible with such statute as it stood at the time the adopting ordinance was enacted. Cf. George Williams College v. Williams Bay (1943), 242 Wis. 311, 316, 7 N.W.2d 891. Here the legislature by ch. 203, Laws of 1941, repealed certain subsections of sec. 62.23, Stats., 1939, and created new subsections to take their place. The provisions relating to the board of appeals, which were formerly found in sub. (8), were placed in newly created sub. (7)(e).

It is well settled that the effect of the repeal of a statute and its reenactment at the same time in substantially the same words is to continue the statute in uninterrupted operation. E. L. Husting Co. v. City of Milwaukee (1930), 200 Wis. 434, 437, 228 N.W. 502; State ex rel. Ohlenforst v. Beck (1909), 139 Wis. 37, 39, 40, 119 N.W. 300; and State v. Gumber (1875), 37 Wis. 298, 303. This principle is applicable here to the extent that both before and after the enactment of ch. 203, Laws of 1941, a five member board of appeals was authorized by sec. 62.23, Stats., 1939 and 1941.

While extensive changes were wrought as a result of the enactment of ch. 203, Laws of 1941, none of them were so incompatible with sec. 62.23, Stats., 1939, so as to terminate the operation of Milwaukee's adopting ordinance of October 15, 1923. The effect is the same as if these changes had been made by simple amendment without repeal. We deem it immaterial that the device of repeal, with simultaneous creation of compatible new provisions, was used to accomplish the amending process.

Prior to the 1941 changes in sec. 62.23, Stats., the common council of a city was authorized to create a board of appeals by resolution while thereafter such a board could only be created by city ordinance. See sec. 62.23(8), Stats., 1939, and sec. 62.23(7)(e), Stats., 1941. Therefore, because Milwaukee's then existing board of appeals had been created by resolution the common council on June 14, 1943 enacted an ordinance creating a new board of appeals. For reasons already stated this ordinance was sufficient to clothe the instant Board of Appeals with the statutory powers set forth in pars. 7 and 8 of sec. 62.23(7)(e), Stats., 1959.

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